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Patna High Court

Sahina Khatoon vs The State Of Bihar on 24 February, 2026

Author: Rajeev Ranjan Prasad

Bench: Rajeev Ranjan Prasad

            IN THE HIGH COURT OF JUDICATURE AT PATNA
                        CRIMINAL APPEAL (DB) No.552 of 2023
               Arising Out of PS. Case No.-75 Year-2014 Thana- BUXAR District- Buxar
       ======================================================
  1.    Sahina Khatoon W/O Pappu Dalal Banarsi R/O Muhalla Koeirpurwa P.S.
        Buxar (T) Dist. Buxar
  2.   Pappu Dalal Banarsi S/O Jalaluddin R/O Muhalla Koeirpurwa P.S. Buxar
       (T) Dist. Buxar
  3.   Munna Darijee S/O Ayub Ali R/O Muhalla Koeirpurwa P.S. Buxar (T) Dist.
       Buxar
                                                            ... ... Appellant/s
                                      Versus
  1.   The State of Bihar
  2.   MS. 'X'
                                                 ... ... Respondent/s
       ======================================================
       Appearance :
       For the Appellant/s      :       Mr. Ajay Kumar Thakur, Advocate
                                        Mr. Bachan Jee Ojha, Advocate
                                        Mr. Navin Kumar Jha, Advocate
                                        Mr. Ritwik Thakur, Advocate
                                        Ms. Vaishnavi Singh, Advocate
       For the Respondent-State:        Mr. Parmeshwar Mehta, Addl.PP
       For the Respondent No.2:         None
       ======================================================
       CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
               and
               HONOURABLE MR. JUSTICE PRAVEEN KUMAR
       ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Date : 24-02-2026

Heard learned counsel for the appellants and learned

Additional Public Prosecutor for the State. Earlier the informant-

respondent No. 2 was served and she had entered appearance through a

lawyer, but in course of hearing of the appeal, no one has appeared on

behalf of the informant-respondent No. 2.

2. The appellants in this case are seeking setting aside of the

judgment of conviction (hereinafter referred to as the 'impugned Patna High Court CR. APP (DB) No.552 of 2023 dt.24-02-2026

judgment') dated 28.04.2023 and the order of sentence (in short

'impugned order') dated 29.04.2023 passed by the learned 6 th Additional

Sessions Judge-cum-Special Judge POCSO Court, Buxar (hereinafter

referred to as the 'learned trial court') arising out of Buxar Town P.S.

Case No. 75 of 2014 registered for offences punishable under Sections

376 and 120B of Indian Penal Code (in short 'IPC') and under Section 5

of the Immortal Traffic (Prevention) Act, 1956.

Prosecution Story

3. The prosecution case is based on a written typed

information under signature of the victim addressed to the

Superintendent of Police, Buxar. In her written information, mother of

the victim alleged that her daughter ('X') was kidnapped on 30 th

September 2012 at about 09:00 P.M., by Sahina Khatoon (appellant

No.1). It is stated that Sahina Khatoon hatched a conspiracy and on

finding the daughter of the informant alone in her house, came to her

house and told her daughter that her mother was calling her and as the

victim came to see her mother then Pappu Dalal Banarsi (appellant no.2)

and Munna Darjee (appellant no.3) injured the victim and forcibly took

her away in an auto-rickshaw to Buxar Station and from there they went

to Mughalsarai and from Mughalsarai to Varanasi, from Varanasi she

was taken to Mumbai where she stayed for about three months. The

informant further alleged that her daughter was sold in brothel house and Patna High Court CR. APP (DB) No.552 of 2023 dt.24-02-2026

her name and pan card were changed. She claimed that these facts were

told by her daughter, who somehow returned saving her life. The

informant alleged that rape was also committed with her daughter. In

past, Munna Darjee (appellant no.3) had assaulted the informant and her

daughter on 24th August 2009 and because she had made a complaint of

this occurrence, they had kidnapped the victim girl and sold her in a

brothel house.

4. On the basis of the said information Buxar Town P.S. Case

No. 75 of 2014 dated 12.02.2014 was registered. Investigation was done

and charge-sheet bearing No. 184 of 2015 dated 30.04.2015 was filed

under Sections 376 and 120B of the I.P.C., under Section 5 of the

Immoral Traffic (Prevention) Act and under Section 12 of the Protection

of Children from Sexual Offences Act, 2012 (hereinafter referred to as

the 'POCSO Act') against the accused persons.

5. Cognizance of the offences was taken and on finding that

the charges were triable by the Special Judge, POCSO Court, the learned

Court ordered for supply of the police paper in compliance of Section

207 of the Cr.P.C. Thereafter, the charges were read over and explained

to the accused persons-appellants, in Hindi, they denied the charges and

claimed to be tried. By order dated 17.05.2018, charges under Sections

376, 120B of the I.P.C., Section 4 of the POCSO Act and Section 5 of the

Immoral Traffic (Prevention) Act were framed.

Patna High Court CR. APP (DB) No.552 of 2023 dt.24-02-2026

6. The prosecution examined as many as seven witnesses and

produced certain documents which have been marked exhibits. The

description of prosecution witnesses and the exhibits are given hereunder in

tabular form:-

List of Prosecution Witnesses

PW-1 Victim, daughter of informant (X) PW-2 Informant PW-3 Dr. Madhu Singh PW-4 Harinath Ram PW-5 Dr. Yogendra Kumar PW-6 Sharda Kumar Jha, Investigating Officer PW-7 Mirajuddin

List of Exhibits on behalf of the Prosecution

Exhibit '1' Signature of informant on written petition.

Exhibit '1/1' Registration of F.I.R. by S.H.O., Gorakh Ram Exhibit '1/2' Signature of S.H.O., Gorakh Ram on the back side of F.I.R.

              Exhibit '1/3'      Writing of Formal F.I.R.
              Exhibit '2'        Medical Report
              Exhibit '3'        Writing and Signature of Dr. Yogendra Kumar
                                 on X-ray Report
              Exhibit '4'        Signature of Dr. Yogendra Kumar on Medical
                                 Report

7. After completion of the evidence on behalf of the prosecution,

the statements of the accused persons-appellants were recorded under

Section 313 Cr.P.C. In their statements they claimed innocence and

contended that they were innocent and have been falsely implicated in this

case.

Patna High Court CR. APP (DB) No.552 of 2023 dt.24-02-2026

8. The defence adduced one witness, Md. Aurangjeb, DW-1, and

documentary evidences, Exhibit-D - Certified copy of FIR of Buxar Town

P.S. Case No. 224/2009, Exhibit D/1 - Certified copy of judgment passed

by the C.J.M., Buxar in G.R. Case No. 1385/2009 and Exhibit D/2 -

Certified copy of order dated 06.02.2014 of National Lok Adalat.

Findings of the Learned Trial Court

9. The learned trial Court having examined the evidences

available on the record concluded that the charges against the accused

persons have been duly proved beyond all reasonable doubts. The trial

court took a view that the victim (PW-1) has narrated the entire story and

also identified the accused persons in the Court. Referring to the medical

report (Exhibit-2), the learned trial court found that there was an old

ruptured hymen and the vaginal opening was admitting two fingers

easily and the doctors have opined that the victim had sexual intercourse

in past and she was habitual.

10. The learned trial court held that the POCSO Act is a

special legislation dealing with special circumstances and principle of

reverse burden is applicable in the cases falling under POCSO Act. The

presumption under Section 29 and Section 30 of the POCSO Act have

been applied for and it has been held that the defence side has miserably

failed to discharge the onus/burden. The trial court held that the

prosecution side has brought on the record plausible evidence through

the victim witness (PW-1) and other evidences, regarding the Patna High Court CR. APP (DB) No.552 of 2023 dt.24-02-2026

commission of penetrative sexual assault by the accused persons upon

the victim.

11. The learned trial court has further held that the charge

under Section 5 of the Immoral Traffic Act, 1956 is also proved as the

accused persons took the victim from Buxar to Mumbai via Banaras with

a view to sell her in a Brothel house and by this way the victim was

subjected to prostitution.

Submissions on behalf of the Appellants

12. Mr. Ajay Kumar Thakur, learned counsel for the appellant

has assailed the impugned judgment and order on various grounds. It is

submitted that the POCSO Act came into force with effect from

14.11.2012. The date of occurrence in this case is said to be 30 th of

September, 2012. The mother of the victim has deposed as PW-2. In

Paragraph-5 of her deposition she has stated that she had gone to

Mumbai after 1 and ½ month from the date of the missing of her

daughter. She had received information about her daughter being at

Mumbai from one Hasnain Khan. She has further stated in Paragraph-11

of her deposition that after seven days she had returned from Mumbai for

Buxar and 15 days after reaching Buxar she had lodged the case. It is

submitted that the date of missing of the victim (PW-1) is 30 th

September, 2012. It is submitted that on the date of occurrence the

POCSO Act, 2012 had not been brought into effect.

Patna High Court CR. APP (DB) No.552 of 2023 dt.24-02-2026

13. Learned counsel further submits that the learned trial court

could not appreciate that in this case the bone ossification test of the

victim girl was conducted and in that test her age was found between 15-

16 years. If plus/minus two years is added to the same, the upper

extremity of the age of the victim would be 18 years. In this regard,

learned counsel has relied upon the judgment of the Hon'ble Supreme

Court in 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 pf Delhi) (Crl. Ref. 2/2024) reported in

2024 SC OnLine Delhi 4484. It is submitted that this Court has

consistently followed these two judgments.

14. Learned counsel submits that on a bare reading of the

deposition of PW-1 and PW-2, it would appear that they are

contradicting each other on material aspects of the matter. PW-2 admits

that she had earlier filed 4-5 cases of like nature which were

compromised on payment of money. It is submitted that the learned trial

court has discussed the presumption raised under Section 29 and 30 of

the POCSO Act, 2012, but could not appreciate that to attract the said

presumption, the foundational facts are required to be proved by the

prosecution. It is submitted that in any case the principle of presumption

of innocence of an accused cannot be lost sight off and that presumption

still remains.

Patna High Court CR. APP (DB) No.552 of 2023 dt.24-02-2026

15. It is submitted that according to the victim (PW-1), Sahina

Begum (appellant No.1) had told her that her mother had come and she

was calling her on the road side, she was taken to the road where Pappu

Dalal and Munna Darjee started beating her and forcibly took her in a

tempo and from there she was taken to Mughalsarai by train where she

was kept in the house of the sister of Pappu Dalal. She has claimed that

in the house of the sister of Pappu Dalal, Pappu Dalal and Munna Darjee

both had committed wrong act with her. Learned counsel submits that

PW-1 has further stated that after her kidnapping and before her return to

Buxar, no case was lodged at Buxar. She has stated that her co-villager

Mehadi Hasan lives in Mumbai and is engaged in rickshaw pulling, he

had seen her and had informed her mother but her mother (PW-2) has

stated in her deposition that one Hasnain had informed her. The said

Mehadi Hasan or Hasnain have not been interrogated by the police and

they were not made charge-sheet witnesses.

16. It is submitted that according to PW-1 her mother came to

Mumbai and met Mehadi at the police station in Mumbai, her mother

had got recorded a report on which Mehadi Hasan and the victim both

had put their signatures. In Paragraph-8 of her deposition PW-1 has

reiterated that she had also put her signature at the Mumbai Police

Station. Contrary to this evidence of PW-1, PW-2 has stated that when

she went to Mumbai, she brought her daughter to the police station, she Patna High Court CR. APP (DB) No.552 of 2023 dt.24-02-2026

did not remember the name of the police station but claimed that she was

asked to go away from the police station. It is submitted that apparently

the prosecution has suppressed the first version of the prosecution story

which was disclosed to Mumbai Police.

17. Learned counsel further submits that the evidence adduced

by PW-1 and PW-2 are highly doubtful. In her examination-in-chief the

victim (PW-1) has stated that she somehow came out of the brothel

house and reached her home at Buxar and after reaching Buxar, she told

the entire occurrence to her mother whereafter her mother had lodged the

case. It is pointed out that on the one hand she claims that her mother

had come to Mumbai and then she had met Mehadi in the Mumbai

Police Station. This is a self contradictory statement of PW-1.

18. Learned counsel submits that it is highly improbable that

despite missing/kidnapping of the victim girl, her mother did not inform

the police station at any stage. The FIR has been lodged on 12.02.2014

that is at least after more than one year of the return of the victim. If the

victim had returned within nearly 3-4 months, the date of her return

would relate back to the month of January, 2013, but the FIR has been

lodged in February, 2014. The creditworthiness of the FIR gets

blemished and it would not be safe to sustain the conviction of the

appellants on the basis of these vacillating evidences on the record. Patna High Court CR. APP (DB) No.552 of 2023 dt.24-02-2026

Submissions on behalf of the State

19. The appeal has been contested by learned Additional

Public Prosecutor for the State. It is submitted that the victim (PW-1) has

narrated the entire occurrence and supported the prosecution case. The

learned Additional Public Prosecutor, however, admits that as per the

evidences available on the record the victim had returned Buxar after

three months but the present FIR has been lodged in February, 2014

therefore inordinate delay in lodging of the FIR can not be contested.

Consideration

20. We have considered the rival submissions at the bar and

perused the trial court records. It is an admitted position emerging from

the records that the date of missing/kidnapping of the victim is

30.09.2012 at about 9:00 P.M. The informant (PW-2) did not go to the

police station to submit any information regarding her missing daughter.

Her daughter had been taken to Mumbai via Banaras and she claims to

have gone to Mumbai on information received from one Hasnain but

even at this stage she did not inform the police station and no police help

was taken in order to recover the victim girl. The victim (PW-1) returned

after three months according to her own statement but police did not take

her for recording of her statement under Section 164 of the Cr.PC before

the Learned Magistrate.

Patna High Court CR. APP (DB) No.552 of 2023 dt.24-02-2026

21. The Investigating Officer (PW-6) took charge of the

investigation on 12.02.2014 at 03:45 P.M., and visited the hut of the

informant. The I.O. did not go for verification of the statement of the

victim to the brothel house or to the police station where the victim

claimed to have gone in Mumbai. PW-6 has contradicted the evidence of

PW-2. In paragraph nos. '16 and 17' of his deposition, PW-6 has stated

that PW-2 had not made any statement that two persons had committed

rape with the victim and put vermilion on her forehead and solemnized

marriage after taking her to Varanasi. PW-6 has further stated that neither

the victim nor the informant had told him that Hasnain had informed that

he had brought the victim to Mumbai.

22. We have further noticed that PW-6 has stated that he had

got to know through secret information that the informant and the victim

are used to lodge these kind of cases and then they compromise after

taking money and this has become their occupation. In this regard, the

statement of the I.O. (PW-6) may be found in paragraph no. '18' of his

deposition. In paragraph no. '21' of his deposition, the I.O. has disclosed

that in Buxar Town P.S. Case no. 322 of 2012 the victim had herself told

in the Court that she had gone on her own and no one had kidnapped her.

In case no. 324 of 2009 also she entered into a compromise after taking

money. He has also stated that in course of investigation he had not gone

to Mughalsarai, Banaras or Mumbai.

Patna High Court CR. APP (DB) No.552 of 2023 dt.24-02-2026

23. We are of the view that in the kind of inordinate delay in

lodging of the FIR, the ratio of the judgment in the case of Mehraj

Singh (L/Nk.) vs State of U.P. reported in (1994) 5 SCC 188 would

come into play and the prosecution story as disclosed in the written

information would lose its sanctity.

24. As regard the presumption under Sections 29 and 30 of the

POCSO Act, this Court has, on various occasions, examined the scope of

application of the presumption. So far as the present case is concerned,

this Court is of the considered opinion that the basic foundational facts

such as the prosecution story, the age of the victim and that she was

allured and was sold in a Brothel house in Mumbai have not been prima-

facie proved. Reliance in this regard is placed on the judgments of the

Hon'ble Delhi High Court in the case of Veerpal vs. State reported in

2024 SCC OnLine Del 2686 (para '20') and of the Hon'ble Kerala

High Court in the case of Joy V.S. vs. State of Kerala reported in 2019

SCC OnLine Ker 783 (para '10' and '11'). The presumption of

innocence in such cases remains intact. In this connection, we rely on the

judgment of the Hon'ble Supreme Court in the case of Ramanand vs.

State of U.P. reported in AIR 2022 Supreme Court 5273. Paragraph

'99' and '101' are being reproduced hereunder for a ready reference:-

"99. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof Patna High Court CR. APP (DB) No.552 of 2023 dt.24-02-2026

lying upon the accused person is to prove his case by a preponderance of probability. In American Jurisprudence, 2nd Edn., Vol. 30, the expression "preponderance of evidence" has been defined in Article 1164. In America the term means "the weight, credit and value of the aggregate evidence on either side, and is usually considered to be synonymous with the term greater weight of the evidence", or "greater weight of the credible evidence". It is a phrase which, in the last analysis, means probability of the truth. To be satisfied, certain, or convinced is a much higher test than the test of "preponderance of evidence". The phrase "preponderance of probability" appears to have been taken from Charles R. Cooper v. F.W. Slade Charles R. Cooper v. F.W. Slade, (1857-59) 6 HLC 746. The observations made therein make it clear that what "preponderance of probability" means "more probable and rational view of the case", not necessarily as certain as the pleading should be.

101. The inalienable interface of presumption of innocence and the burden of proof in a criminal case on the prosecution has been succinctly expounded in the following passage from the treatise The Law of Evidence, 5th Edn. by Ian Dennis at p. 445:

"The presumption of innocence states that a person is presumed to be innocent until proven guilty. In one sense this simply restates in different language the rule that the burden of proof in a criminal case is on the prosecution to prove the defendant's guilt. As explained above, the burden of proof rule has a number of functions, one of which is to provide a rule of decision for the fact-finder in a situation of uncertainty. Another function is to allocate the risk of mis-decision in criminal trials. Because the outcome of wrongful conviction is regarded as a significantly worse harm than wrongful acquittal the rule is constructed so as to minimise the risk of the former. The burden of overcoming a presumption that the defendant is innocent therefore requires the State to prove the defendant's guilt."

[Emphasis supplied] Patna High Court CR. APP (DB) No.552 of 2023 dt.24-02-2026

25. We are of the considered opinion that the evidences of PW-

1 and PW-2 are not trustworthy and it would not be safe to sustain the

conviction of the appellants on the testimonies of PW-1 and PW-2. The

appellants are acquitted of the charges.

26. The impugned judgment of conviction and order of

sentence dated 28.04.2023 and 29.04.2023 respectively passed by

learned 6th Additional Sessions Judge-cum-Special Judge, POCSO Court,

Buxar in POSCO Case No. 27 of 2016. C.I.S. No. 63 of 2020 arising out

of Buxar Town P.S. Case No. 75 of 2014 are accordingly, set aside.

27. The appellant no. 2, Pappu Dalal Banarsi and the appellant

no. 3, namely, Munna Darjee are in jail, therefore, they shall be released