Patna High Court
Santosh Kumar vs The State Of Bihar on 30 October, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.369 of 2023
Arising Out of PS. Case No.-49 Year-2021 Thana- MAHILA P.S. District- Muzaffarpur
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Santosh Kumar Son of Late Nawal Singh @ Nawal Kishor Singh Resident of
village - Sabha, P.S. - Sakra, Distt. - Muzaffarpur
... ... Appellant
Versus
1. The State of Bihar
2. X, C/o Subodh Singh R/o Vill - Sabha, P.S. - Sakra, Distt.- Muzaffarpur
... ... Respondents
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Appearance :
For the Appellant/s : Mrs. Bela Singh, Advocate
For the Respondent/s :
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 30-10-2025
Heard Mrs. Bela Singh, learned counsel for the
appellant. Learned Additional Public Prosecutor for the State is not
present.
2. This appeal is arising out of judgment of conviction
dated 13.03.2023 (hereinafter referred to as the 'impugned
judgment') and the order of sentence dated 14.03.2023 (hereinafter
referred to as the 'impugned order') passed by learned learned 7th
Additional Sessions Judge-cum-Special Judge, POCSO (W)
Muzaffarpur (hereinafter referred to as the 'learned trial court') in
Patna High Court CR. APP (DB) No.369 of 2023 dt.30-10-2025
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G.R. No. 61 of 2021 arising out of Mahila P.S. Case No. 49 of
2021.
3. By the impugned judgment, the learned trial court has
been pleased to convict the appellant of the charges under Section
376 of the Indian Penal Code (in short 'IPC') and Section 6 of the
Protection of Children from Sexual Offences (in short 'POCSO')
Act and ordered to undergo rigorous imprisonment for 20 years
and a fine of Rs. 50,000/- and in default of payment of fine, the
appellant has to undergo imprisonment of one year.
Prosecution case
4. The prosecution case is based on the written
complaint submitted by the informant (victim) to the Station
House Officer (SHO) of Mahila Police Station on 24.05.2021. In
her written complaint, the victim has stated that she is aged about
fourteen years. She has alleged that adjoining to her house, there is
house of Ramsevak Singh of her village in which no one resides.
On 24.04.2020, informant's cousin brother (the appellant), on the
pretext of marriage, took her to the house of Ramsevak Singh and
committed rape upon her. She is carrying pregnancy due to this
act. She has further alleged that the appellant is continuously
indulged in raping her.
Patna High Court CR. APP (DB) No.369 of 2023 dt.30-10-2025
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5. After investigation of the case, police submitted a
chargesheet against the appellant vide Chargesheet No. 64 of 2021
dated 04.07.2021 under Sections 341, 342, 493 and 376 of IPC and
Sections 4 and 6 of the POCSO Act. Cognizance of the offences
was taken by the learned Special Court, POCSO on 12.07.2021
under Sections 341, 342, 493 and 376 IPC and Sections 4 and 6 of
the POCSO Act. Charges were read over and explained to the
appellant in Hindi to which he pleaded not guilty and claimed to
be tried. Accordingly, vide order dated 03.09.2022, charges were
framed under the same sections against the appellant on.
6. The prosecution examined altogether seven witnesses
and placed on record nine documentary evidences. The list of the
witnesses and the documentary evidences produced on behalf of
the prosecution is as under:-
PW-1 Mother of the Victim
PW-2 Victim
PW-3 Ashok Kumar
PW-4 Bina Devi
PW-5 Ramsevak Singh
PW-6 Kalpana Adhikari I.O.
PW-7 Dr. Mukul Kumar
Exhibit- Photocopy of the School Transfer
1/PW-1 Certificate of the victim
Exhibit-2 Written application of the informant
Exhibit-3 Signature of the SHO on written
application
Patna High Court CR. APP (DB) No.369 of 2023 dt.30-10-2025
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Exhibit-4 Signature of the SHO on last page of FIR
Exhibit-5/ Photocopy of the School Transfer
PW-6 Certificate of the victim
Exhibit-6 Signature of I.O. on chargesheet
Exhibit-7 Ultrasonography report of the victim dated
29.05.2021
Exhibit-8 Ultrasonography report of the victim dated
16.06.2021
Exhibit-9 Section 164 CrPC statement of the victim
7. It appears from the record that the learned trial court
recorded the statement of the accused-appellant on 17.02.2023
through video conferencing from jail, thereafter the evidence of
the defence was closed on the request of the defence. The trial
court proceeded to examine the evidences available on the record
and after appreciation of the evidences, the trial court came to a
conclusion that the prosecution has proved the foundational facts
of this case beyond reasonable doubt against the accused-
appellant, hence the appellant is guilty under Section 376 IPC and
Section 6 of the POCSO Act.
8. In course of hearing of the appeal, learned counsel for
the appellant brought to the notice of this Court that the statement
recorded under Section 351 of the Bharatiya Nagarik Suraksha
Sanhita (in short 'BNSS') (earlier Section 313 of the CrPC) is not
available on the record. This Court perused the entire ordersheets
of the trial court and found that the statement was recorded on
Patna High Court CR. APP (DB) No.369 of 2023 dt.30-10-2025
17.02.2023 through video conferencing. In view of what transpired
from the ordersheet of the trial court, this Court vide its order
dated 24.09.2025 directed the learned Principal District and
Sessions Judge, Muzaffarpur to get the statement of the accused
under Section 313 of the CrPC traced and send to this Court at the
earliest. This Court also observed that this should have been
pointed out by the concerned Section where paperbooks were
prepared. The order dated 24.09.2025 was communicated to the
learned Principal District and Sessions Judge, Muzaffarpur via
email communication, however, the statement of the accused
under Section 313 CrPC could not be traced.
9. The learned Principal District and Sessions Judge,
Muzaffarpur addressed a letter bearing Number 6692/E dated
10.10.2025 to the Assistant Registrar (Judicial) of this Court and
prayed for two weeks further time to allow to trace the statement
of the accused and make available the same to this Court. The
request of the learned Principal District and Sessions Judge,
Muzaffarpur was accepted by this Court vide order dated
13.10.2025. Two weeks time was allowed to trace the statement,
however, the statement of the accused could not be traced.
10. This Court has further noticed that in the impugned
judgment though it is recorded that the statement of the accused-
Patna High Court CR. APP (DB) No.369 of 2023 dt.30-10-2025
appellant under Section 313 CrPC (Section 351 BNSS) was
recorded in which the accused has denied the commission of the
offence and claimed that he was falsely implicated in the case but
there is nothing on the record to show that the attention of the
accused-appellant was drawn towards all the incriminating
circumstances/materials to the accused during his statement under
Section 313 CrPC (Section 351 BNSS). The fact remains that the
said statement is not on the record.
11. In the aforementioned background, this Court is of
the opinion that in absence of an appropriate consideration of the
statement of the accused under Section 313 CrPC, serious
prejudice has been caused to the case of the defence. In a catena of
decisions, the Hon'ble Supreme Court has pointed out the
importance of the statement under Section 313 CrPC. In the case
of Sharad Birdhichand Sarda vs. State of Maharashtra
reported in (1984) 4 SCC 116, the Hon'ble Supreme Court has
gone to the extent of saying that all such incriminating
circumstances, which were not brought to the notice of the accused
during his statement under Section 313 CrPC, cannot be relied
upon by the prosecution. We quote the relevant paragraph
hereunder for ready reference:-
"143. Apart from the aforesaid comments there is
one vital defect in some of the circumstances
mentioned above and relied upon by the High Court
Patna High Court CR. APP (DB) No.369 of 2023 dt.30-10-2025
viz. Circumstances 4, 5, 6, 8, 9, 11, 12, 13, 16 and
17. As these circumstances were not put to the
appellant in his statement under Section 313 of the
Criminal Procedure Code, 1973 they must be
completely excluded from consideration because the
appellant did not have any chance to explain them.
This has been consistently held by this Court as far
back as 1953 where in the case of Hate Singh
Bhagat Singh v. State of Madhya Pradesh14 this
Court held that any circumstance in respect of
which an accused was not examined under Section
342 of the Criminal Procedure Code cannot be used
against him. Ever since this decision, there is a
catena of authorities of this Court uniformly taking
the view that unless the circumstance appearing
against an accused is put to him in his examination
under Section 342 of the old Code (corresponding
to Section 313 of the Criminal Procedure Code,
1973), the same cannot be used against him. In
Shamu Balu Chaugule v. State of Maharashtra15 this
Court held thus: [SCC para 5, p. 440: SCC (Cri) p.
58]
The fact that the appellant was said to be
absconding, not having been put to him under
Section 342, Criminal Procedure Code, could not be
used against him."
12. We are of the considered opinion that in the present
case, it would only be appropriate to set aside the impugned
judgment and order and remit the matter to the learned trial court
for recording of the statement of the accused-appellant afresh
under Section 351 of the BNSS.
13. In result, the impugned judgment and order are set
aside.
14. The trial court records be sent down to the learned
trial court immediately through a special messenger.
14. AIR 1953 SC 468 : 1953 Cri LJ 1933
15. (1976) 1 SCC 438 : 1976 SCC (Cri) 56
Patna High Court CR. APP (DB) No.369 of 2023 dt.30-10-2025
15. The trial court shall record the statement of the
accused under Section 351 of the BNSS and thereafter in case, the
defence would request to allow them to produce witnesses,
appropriate time shall be granted to the defence for the same. In view
of the judgment of the Hon'ble Supreme Court in the case of The
Central Bureau of Investigation vs. Mir Usman @ Ara @ Mir
Usman Ali reported in 2025 INSC 1155, the trial shall continue on
day to day basis unless it becomes imperative to adjourn the matter
for a cogent reason. It is expected that the trial court shall pass a
fresh judgment after following the established procedure of law and
hearing within a period of six months from the date of
receipt/production of a copy of this judgment.
16. It is clarified that we have not made any observations
on the merit of the case keeping in view the fact that the case is being
remitted for a fresh consideration after recording of the statement of
the accused.
17. This appeal is allowed to the extent indicated
hereinabove.
(Rajeev Ranjan Prasad, J)
(Sourendra Pandey, J)
Rishi/-
AFR/NAFR
CAV DATE
Uploading Date 01.11.2025
Transmission Date 01.11.2025
