Sanjay Giri vs The State Of Bihar on 9 February, 2026

Author: Rajeev Ranjan Prasad

Bench: Rajeev Ranjan Prasad, Shailendra Singh

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                    CRIMINAL APPEAL (DB) No.52 of 2023
 Arising Out of PS. Case No.-44 Year-2020 Thana- MATIYARIA District- West Champaran
======================================================
Sanjay Giri, S/o Sri Subhash Giri, Resident of Village- Itawa, P.S.- Matiyaria,
Distt- West Champaran.
                                                               ... ... Appellant
                                    Versus
 1.     The State of Bihar
 2.     Umarawati Devi, w/o Suraj Mahto, Resident of village- Itawa, P.S.-
        Matiyaria, Distt- West Champaran.

                                          ... ... Respondents
======================================================
Appearance :
For the Appellant       :        Mr. M.N. Parbat, Sr. Advocate
                                 Mr. Praveen Prabhakar, Advocate
For the State           :        Mr. Binod Bihari Singh, Addl.PP
For the Informant       :        Mr. Zainul Abedin, Advocate
                                 Mr. Sanobar Shahnaz, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
        and
        HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

 Date : 09-02-2026


             Heard Mr. M.N. Parbat, learned Senior counsel assisted

by Mr. Praveen Prabhakrar, learned counsel for the appellant, Mr.

Zainul Abedin, learned counsel for the informant and Mr. Binod

Bihari Singh, learned Additional Public Prosecutor for the State as

also perused the trial court's records.

             2. This appeal has been preferred for setting aside the

judgment of conviction dated 12.12.2022 (hereinafter referred to

as the 'impugned judgment') and order of sentence dated

14.12.2022 (hereinafter referred to as the 'impugned order')
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        passed by learned Additional District and Sessions Judge-VII-

        cum-Special Judge, POCSO Act, West Champaran at Bettiah

        (hereinafter referred to as the 'learned trial court') in Matiyaria

        P.S. Case No. 44 of 2020, S.G.R. No. 111 of 2020. By the

        impugned judgment, the appellant has been convicted for the

        offences punishable under Section 376(3) of the Indian Penal

        Code (in short 'IPC') and Sections 4 and 6 of the Protection of

        Children from Sexual Offences (in short 'POCSO') Act and has

        been sentenced to undergo twenty years rigorous imprisonment

        under Section 376(3) IPC and Sections 4 and 6 of the POCSO Act

        each with a fine of Rs.20,000/- and in default of payment of fine,

        he has to further under three months imprisonment. All the

        sentences are to run concurrently.

                    Prosecution Case

                    3. The prosecution case is based on the written

       application of the informant (PW-2). In her written application, the

       informant has stated that on 31.07.2020 when she asked her

       daughter/victim about her last menstrual date, her daughter replied

       that she had her last period 5-6 months ago. Thereafter, the

       informant got her daughter checked by a lady who told her that her

       daughter is carrying pregnancy. When the informant inquired, the

       victim disclosed that this appellant forcibly established physical
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       relation with her when the informant and other family members

       had gone to the house of her maternal grandmother at her funeral.

       It is alleged that when the informant went to the house of this

       appellant then the news of pregnancy spread like fire in the village.

       Thereafter the informant, her husband and her daughter/victim

       gave written application. The informant also told that the age of

       her daughter is 14 years.

                    4. On the basis of this written application, FIR being

       Matiyaria P.S. Case No. 44 of 2020 dated 31.07.2020 was

       registered under Section 376 IPC and Sections 4/6 of the POCSO

       Act against this appellant. After investigation, police submitted

       chargesheet bearing Chargesheet No. 13 of 2020 dated 28.09.2020

       under Section 376 IPC and Sections 4/6 of the POCSO Act against

       this appellant. Learned trial court vide order dated 07.11.2020 took

       cognizance of the offences punishable under abovementioned

       Sections.

                    5. 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 23.02.2021, charges were framed

       under Section 376 IPC and Sections 4/6 of the POCSO Act.

                    6. In course of trial, the prosecution has examined

       altogether nine witnesses and exhibited several documentary
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       evidences. The description of prosecution witnesses and the

       exhibits are given hereunder in tabular form:-

                    List of Prosecution Witnesses

                     PW-1                            Victim (X)
                     PW-2               Informant/Mother of the victim
                     PW-3                      Father of the victim
                     PW-4                      Brother of the victim
                     PW-5                          Kiraman Mahto
                     PW-6                           Parvati Devi
                     PW-7                     Uamesh Kumar Yadav
                     PW-8                         Dr. Rubi Kumari
                     PW-9                         Dr. Srikant Dubey

                   List of Exhibits on behalf of Prosecution

   Exhibit 'P-1'             Handwriting on written application of FIR
   Exhibit 'P-1/1'           Pagination of formal FIR
   Exhibit 'P-1/2'           Initial of Sanjay Kumar on pagination of
                             formal FIR
   Exhibit P-1/3             Signature of Sanjay Kumar on pagination of
                             formal FIR
   Exhibit P-2               Signature of Dr. Rubi on medical report
   Exhibit P-3               Signature of members of FMT Dept + GMC
                             Bettiah on the five members medical board
                             team
   Exhibit P-3/1             Signature of medical board member
                             Radialist GMC Bettiah
   Exhibit P-3/2             Signature of Member Gyane and OBS,
                             GMC Bettiah on the five members medical
                             board team
   Exhibit P-3/3             Signature of Member Dentidt GMC, Bettiah
                             on Medical Board
   Exhibit P-3/4             Signature of Dr. Shrikant Dubey on medical
                             board
   Exhibit P-4               Signature of Dr. K.M. Piparvey on medical
                             board report
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                    7. Thereafter, the statement of the appellant was

        recorded under Section 313 of the Code of Criminal Procedure (in

        short 'CrPC') in which he took a plea that he is innocent.

                   8. The defence has adduced oral and documentary

       evidence which are being reproduced hereunder in tabular form:-

                                List of Defence witnesses

                  DW-1            Ranjit Giri
                  DW-2            Khenhar Yadav

                                 List of Exhibits on behalf of Defence

                  Exhibit P-A Handwriting on Labour Card and signature
                              of Dinanath
                  Exhibit P- Handwriting on Labour Card and signature
                  A/1         of Dinanath

                   Findings of the Learned Trial Court

                   9. Learned trial court after analysing the evidences

       available on the record found that prosecution case has been fully

       supported by the victim (PW-1) and her mother (PW-2). Learned

       trial court found that the occurrence had taken place 5-6 months

       ago and since then the victim was pregnant and she gave birth to a

       child who died after twenty days.

                    10. Learned trial court after considering all the facts and

        circumstances of the case held that the prosecution has been able

        to prove it's case beyond all shadow of reasonable doubts.

        Accordingly, the appellant has been convicted for the offences
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        punishable under Section 376(3) IPC and Sections 4/6 of the

        POCSO Act.

                    Submissions on behalf of the appellant

                    11. Learned Senior counsel for the appellant submits that

        there is an unexplained delay in lodging of the First Information

        Report, even the date of occurrence has been not mentioned which

        creates doubt regarding the veracity of the prosecution case. The

        victim's statement under Section 164 CrPC is also incomplete and

        doesn't disclose the time and place of occurrence, thereby

        vitiating its credibility.

                    12. It is further submitted that the medical report fails to

        corroborate the alleged occurrence, further weakening the

        prosecution's case. No effort was made to match the DNA of the

        fetus with the appellant to corroborate the alleged occurrence. The

        submissions is that not a single independent witness has been

        produced by the prosecution.

                    13. Learned Senior counsel for the appellant submits that

        PW-1 (victim) in her examination-in-chief has omitted to state any

        particulars of date, time or manner of the alleged occurrence. The

        manner of occurrence as narrated by PW-1 stands in stark variance

        with the allegations in the FIR as well as the informant's version

        under Section 164 CrPC. In her examination-in-chief, the victim
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        has stated that she had not seen the appellant earlier, which vitiates

        the prosecution evidence in its entirety and such glaring omissions

        and inconsistencies fundamentally erode the credibility and

        trustworthiness of her testimony, warranting its outright rejection

        as she cannot be kept in category of a sterling witness.

                    14. Learned counsel for the appellant submits that the

        I.O. who has been examined as PW-7 states about different places

        of occurrence, he has been cross-examined by the defence to

        corroborate the evidences collected during investigation. He

        further submits that on basis of age, the victim cannot be kept in

        the category of minor.

                    15. Lastly, it is submitted that the case is fit for acquittal

        as the time and place of occurrence are highly doubtful, the

        manner of occurrence has been not proved, nor the alleged

        occurrence is supported by the medical evidence, the infant was

        not medico- legally examined to match with the DNA of the

        appellant.

                    Submissions on behalf of the State and the Informant

                    16. Learned Additional Public Prosecutor for the State as

        well as the learned counsel for the informant have defended the

        impugned judgment of the learned trial court. It is submitted that

        the victim's statement fully corroborates the prosecution case and
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        further the defence has failed to bring any contradiction. It is

        submitted that defence has not raised any ground for false

        accusation. The victim in this case is a sterling witness and her

        statement is sufficient to prove the case.

                    Consideration

                    17. In this case, the informant is the mother of the

        victim, who filed a written application addressed to the Station

        House Officer, Matyariya Police Station in the district of West

        Champaran on 31.07.2020, wherein she alleged that when she

        asked her daughter (X) as to when was her last menstruation

        period, she informed that it was about 5-6 months back. On asking

        in some hard tone, the victim disclosed to her mother that when

        her mother (the informant) had gone to attend the shraadh

        ceremony of the maternal grandmother of the victim, during that

        period, the appellant had forcibly established physical relationship

        with her and had made her pregnant. On hearing this from the

        victim, the informant went to the house of the appellant, this

        matter became known to the villagers and they started whispering

        about this then the informant came with her daughter and husband

        and submitted the written application. She disclosed the age of her

        daughter (X) as 14 years.
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                    18. We further find that in her 164 CrPC statement

        recorded on 04.08.2020 by learned Magistrate at Bettiah, West

        Champaran, the victim disclosed that when she had gone to graze

        the she-goat, then this appellant tied her mouth by a towel and

        robbed her decency and told her that if she would disclose it to

        anyone, then she would be killed. She further stated that due to the

        said threat, she had not disclosed the occurrence to her parents but

        after a few days, her mother got her checked, then she was found

        pregnant.

                    19. We further find that the statement of the mother of

        the victim, who is the informant of this case, was also recorded

        under Section 164 CrPC, in which she supported the prosecution

        case.

                    20. In course of trial, the victim (PW-1) has stated that

        she was subjected to rape and her mother asked her about it

        sometimes 6-7 months back, then she disclosed that she was not

        having menstruation period and also disclosed to her mother that

        when she had gone to graze the she-goat, then the appellant had

        tied her mouth and committed rape on her. Her mother took her to

        a doctor who found that she was pregnant. Her mother also went

        to ask the appellant but he started assaulting, thereafter, the case

        was lodged in the police station. She was taken to a doctor for
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        medical examination and police got her statement recorded in the

        court. She identified the appellant in the court. Although, learned

        Senior counsel for the appellant submits that there are some

        material contradictions in the evidence of PW-1, as she is not

        consistent with regard to the period/time when her mother came to

        know about the occurrence and her pregnancy, we do not agree

        with the submissions of learned Senior counsel in this regard as

        we have noticed that the victim (PW-1) has remained consistent in

        her statement and during cross-examination, she has stated that

        she knew the meaning of rape, however, she did not remember as

        to when and in which month her mother had asked about the

        menstruation period. She has stated that she did not remember it.

        We find no reason to take an adverse view only because the victim

        (PW-1) did not remember the month in which her mother had

        asked her about her menstruation period.

                    21. We have found that the victim has stated in her

        cross-examination that because of the threat, she had not disclosed

        the occurrence to anyone in her house and after three months of

        the rape, her mother had asked her about her menstruation and had

        taken her to Nathuni Mahato and Hiraman in the village. She did

        not know the name of the doctor to whom she was taken. She has

        stated that when the doctor first examined her, she had been
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        carrying pregnancy of five months. With respect to this period, the

        learned Senior counsel for the appellant has tried to impress upon

        this Court that the mother of the victim had come to know about

        the occurrence only three months after the occurrence but

        thereafter, even as the victim had been taken to the doctor and she

        had been found pregnant, no case was lodged. In this regard, we

        have noticed from the evidence of the mother (PW-2) that her

        daughter had said that menstruation had come about 5-6 months

        back and when she got her examined, then it was found that she

        was pregnant. She had disclosed it to the neighbours and had also

        told the occurrence to the mother of the accused. She has stated

        that the day on which her daughter was going after giving her

        statement in the court, she was being threatened to kill. In her

        cross-examination, PW-2 has stated that regarding the occurrence,

        no Panchayati had taken place in the village but she has stated that

        her husband had gone to the house of the appellant to enquire but

        no quarrel had taken place that day. We do not find any material

        discrepancy, much less any contradiction in the evidence of PW-2.

                    22. We have further examined the evidence of the father

        of the victim who has been examined as PW-3. In his

        examination-in-chief, PW-3 has stated that he had come to know

        about the occurrence from his wife, then he had asked the mother
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        of the appellant that what will be the future, whereafter the

        occurrence became known in the village. In his examination-in-

        chief, PW-3 has stated that Sanjay Giri (the appellant) refused to

        marry and keep her daughter and told that she would be made to

        cut the grasses. From the evidence of PW-3, it appears that after

        the occurrence came to the knowledge of the parents of the victim,

        some attempts were taken to persuade the appellant to marry the

        victim and keep her with him but it appears that the appellant was

        not ready for that, thereafter the present case was lodged. Be that

        as it may, the evidence of PW-1, PW-2 and PW-3, so far as the

        commission of rape is concerned, remain consistent.

                    23. We have further found from the evidence of the

        doctor, namely Rubi Kumari (PW-8) that she was posted at GMC

        Bettiah, Department of OBS and Gynae as a Senior Resident on

        01.08.2020

. She had examined the victim girl and had made the

following observations:-

"Secondary sexual character - developed. P/V examination- Hymen ruptured, old tag present There is no injury on external part as well as on private parts of the body According to pathologist, GMC, Bettiah No spermatozoa found in vaginal swab Mark of Identification:-

(1) A mole on right index finger (2) A mole on lateral side of right lower leg below knee joint Patna High Court CR. APP (DB) No.52 of 2023 dt.09-02-2026

USG Abdomen - single alive fetus in unstable lie of 23 weeks maturity seen inside the uterine cavity.

Opinion - According to above finding and other physical examination, there is no any recent sign of sexual assault.

Age determination opinion should be taken from Medical Board, GMCH, Bettiah She is pregnant, 23 week alive fetus"

24. Further, we have noticed that Dr. Shrikant Dubey

(PW-9), who was the Chairman of the Medical Board constituted

to examine the victim, has stated that a team of five doctors had

come to an opinion that the victim was between 16 to 17 years. He

has proved the signatures of all the Board members which have

been marked Exhibit '3', '3/1', '3/2', '3/3' and '3/4'. The medical

report written by the radiologist K.M. Piperve has been marked

Exhibit '4'. From the evidence of the doctor (PW-9), it further

appears that in Bettiah, there is no DNA test facility in the

Government Medical College.

25. It is evident from the evidence of the doctor (PW-8)

that the victim was found pregnant, carrying a pregnancy of 23

weeks on the date of her examination. PW-9 has proved the

medical report showing that the victim was between 16-17 years

of age. It has come in evidence that the victim was illiterate. We

have found from the impugned judgment that the learned trial

court framed a question as to whether on the date of occurrence Patna High Court CR. APP (DB) No.52 of 2023 dt.09-02-2026

the victim was a minor or not. While examining this question, the

learned trial court has noticed that the victim had not joined any

educational institution and there is no proof of age issued by any

government institution. Thereafter, the learned trial court has

observed that on perusal of the evidence of all the witnesses, the

victim appears to be a minor and on the date of the occurrence,

she was below 14 years of age. The trial court has relied upon the

medical report in which the age of the victim has been stated to be

16-17 years but having noticed the medical examination report,

the trial court has taken the lower extremity of the age and

determined the age of the victim as 16 years.

26. We are of the considered opinion that, at this stage,

the learned trial court has committed an error in determination of

the age of the victim. How to assess the age of a victim in a

POCSO case has been considered by the Hon'ble Supreme Court

in the case of Rajak Mohammad vs. State of H.P. reported in

(2018) 9 SCC 248 and the Hon'ble Delhi High Court in the case

of Court on its own Motion vs. State (NCT of Delhi) (Crl. Ref.

2/2024) reported in 2024 SC OnLine Delhi 4484. The views

expressed by the Hon'ble Delhi High Court in the case of Court

on its own Motion (supra) are as under:-

"46. As an upshot of our foregoing discussion, the Reference is answered as under:-

Patna High Court CR. APP (DB) No.52 of 2023 dt.09-02-2026

(i) Whether in POCSO cases, the Court is required to consider the lower side of the age estimation report, or the upper side of the age estimation report of a victim in cases where the age of the victim is proved through bone age ossification test?

Ans: In such cases of sexual assault, wherever, the court is called upon to determine the age of victim based on 'bone age ossification report', the upper age given in 'reference range' be considered as age of the victim.

(ii) Whether the principle of 'margin of error' is to be applicable or not in cases under the POCSO Act where the age of a victim is to be proved through bone age ossification test.

Ans: Yes. The margin of error of two years is further required to be applied."

27. Similarly, we quote hereinbelow the views expressed

by the Hon'ble Supreme Court in paragraph '9' and '10' of the

judgment in case of Rajak Mohammad (supra):-

"9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused.

10. We will, therefore, have to hold that in the present case the prosecution has not succeeded in proving that the prosecutrix was a minor on the date of the alleged occurrence. If that is so, based on the evidence on record, already referred to, we will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out."

28. In view of the aforementioned judgments, we are of

the considered opinion that on giving +/- 2 years to the age Patna High Court CR. APP (DB) No.52 of 2023 dt.09-02-2026

recorded by the doctor, the upper extremity of the age of the

victim would come to 19 years. In such circumstance, the charges

under section 4/6 of the POCSO Act would not be attracted. Thus,

the conviction of the appellant for the charges under section 4/6 of

the POCSO Act is liable to be set aside and we accordingly do so.

29. The learned trial court has convicted the appellant

also for the offence under Section 376(3) IPC. We reproduce

Section 376(3) IPC hereunder:-

"376. (1) ...

(2) ...

(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this sub-section shall be paid to the victim."

30. It is evident on a bare reading of the aforementioned

provision that to bring the case within the ambit of the provision

of sub-section (3) of Section 376 IPC, the victim must be under 16

years of age. Since in this case, the doctors have come to a

conclusion that the victim was between 16-17 years of age and on

giving a margin of two years, the upper extremity of age comes to

1. Ins. by Act 22 of 2018, S. 4 (w.r.e.f 21-4-2018).

Patna High Court CR. APP (DB) No.52 of 2023 dt.09-02-2026

19 years, in our considered opinion, the charge under Section

376(3) IPC cannot be said to have been proved. We would,

however, hasten to add that in this case, even though the charge

was framed under sub-section (3) of Section 376 IPC but the

prosecution has been able to prove a case under sub-section (1) of

Section 376 IPC, which reads as under:-

"376. Punishment for rape.-(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which 2[shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine]."

31. Accordingly, we modify the conviction of the

appellant from Section 376(3) IPC to one under Section 376(1)

IPC. The minimum sentence prescribed under Section 376(1) IPC

is 10 years, which may extend up to life imprisonment.

On the point of sentence

32. We have heard learned counsel for the parties on the

point of sentence once again.

33. Taking into consideration that the appellant is said to

be a married person having children and he is the only bread earner

for his family, his age was only 45 years at the time of occurrence,

2. Subs. by Act 22 of 2018, s. 4, for "shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine" (w.r.e.f 21-4-2018).

Patna High Court CR. APP (DB) No.52 of 2023 dt.09-02-2026

we are of the considered opinion that an award of twelve years

rigorous imprisonment with a fine of Rs. 20,000/- payable to the

victim would be commensurate to the status of guilt. Accordingly,

the appellant is directed to undergo rigorous imprisonment for

twelve years and pay a fine of Rs. 20,000/-. In case of non-payment

of the fine, the appellant would further undergo a period of three

months imprisonment. The period already spent by the appellant in

jail shall be allowed to be set off. The judgment of conviction and

order of sentence are modified to the aforesaid extent. The District

Legal Services Authority ('DLSA'), West Champaran, Bettiah shall

ensure payment of compensation to the victim as per direction of the

learned trial court.

34. This appeal is partly allowed.

35. Let a copy of this judgment together with the trial

court records be sent down to the learned trial court.

(Rajeev Ranjan Prasad, J)

(Shailendra Singh, J) Rishi/-
AFR/NAFR
CAV DATE
Uploading Date          13.02.2026
Transmission Date       13.02.2026
 