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Patna High Court
Mukesh Sharma @ Mukesh Kr. Sharma vs The State Of Bihar on 15 January, 2026
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2 of 2016
Arising Out of PS. Case No.-59 Year-2014 Thana- MAHILA P.S District- Supaul
======================================================
Mukesh Sharma @ Mukesh Kr. Sharma, Son of Ramu Sharma, Resident of
Village Parsauni Bakaur, P.S. - Supaul, District - Supaul.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. Shashi Bhushan Prasad, Advocate
For the State : Ms. Anita Kumari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 15-01-2026
The instant appeal has been preferred against the
judgment of conviction dated 04.11.2015 and order of sentence
dated 09.11.2015 passed by the court of learned Additional
Sessions Judge-I- cum- Special Judge, Supaul, in POCSO Trial
No. 17/14 arising out of Supaul Mahila P.S. Case No. 59/14
whereby and whereunder the appellant has been convicted for the
offences punishable under Sections 366, 376 and 323 of the Indian
Penal Code (in short 'IPC') and acquitted of the charged offences
under Sections 366- A and 506 of IPC and Section 4 of the
Protection of Children from Sexual Offences Act (in short
'POCSO Act'). The appellant has been sentenced to undergo
rigorous imprisonment for seven years with a fine of Rs. 10,000/-
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separately for the offences under Sections 376 and 366 of IPC
each, and in default of payment of fine, he has been directed to
undergo simple imprisonment for one year additionally. For the
offence under Section 323 of IPC, the appellant has been
sentenced to undergo rigorous imprisonment for one year. All the
sentences of imprisonment have been directed to run concurrently.
Prosecution Story:-
2. The prosecution case as appears from the complaint
petition of complaint case bearing no. 438C/2014 filed by the
complainant in the court of CJM, Supaul which is the basis of the
institution of the prosecution's case, in brief, is that on 03.04.2014
at about 7:00- 7:30 p.m., when the informant/victim namely, 'N'
(hereinafter referred to as 'N') who is said to be the minor
daughter of 'M' (the real names of victim and her father withheld
in order to conceal the identity of the informant/victim), went to
the back side of the Utkramit Madhya Vidyalaya, Bijalpur Bakaur
to ease herself, then her co-villager Mukesh Sharma (appellant)
with the help of his three unknown associates caught hold of her
and they gagged her mouth forcibly and then took her towards the
east embankment of river Koshi situated nearby where at the point
of pistol made her sit in a tempo and took her via Panchgachhiya
Railway Station to the house of his cousin situated in a village and
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confined her there in a room and in the night, he committed rape
with her. During the course of committing rape, the appellant also
assaulted her when she raised her protest and in the early morning
he with the help of his associates took her to Saharsa Railway
Station by a train. At the railway station upon seeing her co-
villagers, she raised an alarm then upon hearing her alarm her co-
villagers namely, Ajeet Mahto, Hare Ram Mahto and Satya
Narayan Mahto and others rescued her but the accused/appellant
Mukesh and his associates fled away thereafter, her co-villagers
took her back to her house. As per the victim, at the time of
occurrence her father was not present in her village, and after his
returning back to home his father convened a Panchayat Meeting
in the village but the accused refused to attend the said Panchayat
so, she had to approach the police but as the police were adopting
dilatory tactics in this regard, so, she filed her complaint in the
court.
3. On the basis of complaint petition of the victim sent
under Section 156(3) of Cr.P.C., to the concerned Police Station
for investigation, Supaul Mahila P.S. Case No. 59 of 2014 was
registered for the offences under Sections 323, 376, 506, 366A of
IPC and Section 4 of the POCSO Act on 02.06.2014 and a formal
FIR was drawn up against the appellant and his three unknown
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associates. After investigation, the police chargesheeted only the
appellant for the offences under Sections 366-A and 376 of IPC
only. But differing with the police conclusion, cognizance of the
offence under Section 4 of the POCSO Act besides other offences
punishable under Sections 366-A and 376 of IPC was also taken
against the appellant by the trial court.
4. The appellant stood charged for the offences under
Sections 323, 366-A, 376 and 506 of IPC and Section 4 of the
POCSO Act that was read over and explained to him in Hindi to
which he did not plead guilty and claimed to be tried.
5. In ocular evidence the prosecution examined
altogether the following eight witnesses:-
Sl. No. Name Relevancy
P.W.1 Hare Ram Mahto A Witness of facts
P.W.2 'M' Victim's father
P.W.3 Shambhu A Witness of facts
P.W.4 Satya Narayan Mahto A Witness of facts
P.W.5 'N' Informant and victim
P.W.6 Prem Lata Bhupashri Investigating Officer
P.W.7 Dr. Arun Kumar Singh Doctor
P.W.8 Dr. Ragini Bhushan Doctor
6. In documentary evidence following documents were
proved and exhibited by the prosecution:-
Sl. No. Relevancy
Ext.1 Endorsement on complaint petition bearing case
no.
Ext.2 Medical examination report of the informant
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7. After the completion of prosecution's evidence, the
statement of the appellant was recorded under Section 313 of
Cr.P.C. by the trial court giving him an opportunity to explain all
the material incriminating circumstances appearing against him
from the prosecution evidences which were denied by him and he
claimed himself to be innocent, although he did not take any
specific defence while recording his statement.
8. Mr. Shashi Bhushan Prasad, learned counsel
appearing for the appellant and Ms. Anita Kumari Singh, learned
APP for the State are present and they are heard.
Analysis:-
9. I have perused the judgment impugned, the evidences
adduced by both the sides before the trial court and the statement
of the appellant.
10. Mr. Shashi Bhushan Prasad, learned counsel
appearing for the appellant has argued that an inordinate delay of
26 days in filing the complaint by the victim took place without
explaining the convincing reason and the same is sufficient to cast
a serious doubt in the credibility of the prosecution story narrated
by the victim in her complaint.
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10.1. In response to the said contention, learned APP for
the State has submitted that the said delay was properly explained
by the victim in her complaint and according to her, after the
commission of the occurrence, panchayat meetings were held and
when no fruitful result came out of the panchayat meetings then
the victim and her father went to the police station but no action
was taken.
10.2. In the light of the aforesaid contention, I have
perused the FIR, based on the complaint of the victim as well as
the evidence of the prosecution witnesses. The alleged occurrence
is stated to have taken place on 03.04.2014 and the incident of
missing of the victim on the alleged date of occurrence had come
in the knowledge of the victim's parents on the same day and as
per the evidence of the victim 'N' (P.W.5.), on the next day from
her kidnapping she was rescued from the railway station and
admittedly, the complaint was filed on 29.04.2014, so, the delay
period between 04.04.2014 and 29.04.2014 was to be explained by
the prosecution before the trial court. In this regard, the victim
mainly took the plea that on account of panchayat meetings having
held in between them and, subsequently, no action was taken by
the police despite they had approached to the police, the said delay
occurred. But the said explanation does not seem to be reliable as
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none amongst the persons, who attended the said panchayat
meetings, such as local sarpanch, panch and others, was produced
and examined by the prosecution before the trial court to
substantiate the victim's plea as to the panchayat meetings having
held in between the family of the accused and informant's family.
Moreover, there is serious contradiction in prosecution evidence
in respect of conducting the said panchayat meetings. The victim
revealed in her complaint petition that several panchayat meetings
were held however, the accused and his family members did not
become agree to the directions given in the panchayat. But the
victim's father 'M' (P.W.2.) deposed in his examination-in-chief in
paragraph No. 2 that the accused did not appear in the panchayat
meetings while as per the victim, the accused participated in the
panchayat meetings but did not become agree to the directions of
the panchayat.
10.3. The investigating officer did not take any attempt
to verify the factum of holding the said panchayat meetings, so,
there is no convincing material to explain the long delay of 26
days having occurred on the part of the victim or her family in
taking legal action in respect of the commission of the alleged
occurrence. Though, a delay in lodging the FIR is generally not, by
itself considered a ground to discard the prosecution's case but in
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respect of the such delay, the prosecution must offer a plausible
and satisfactory explanation otherwise it will raise serious doubts
in prosecution's allegations. In this regard, I would like to refer to
the observations which are relevant to the present matter made by
the Hon'ble Apex Court in the paragraph nos. 14 and 15 of the
judgment passed in the case of Sekaran vs. State of Tamil Nadu,
reported in (2024) 2 SCC 176 and the same are being reproduced
as under:-
" 14. We start with the FIR, to which exception has
been taken by the appellant urging that there has been no
satisfactory explanation for its belated registration. It is trite
that merely because there is some delay in lodging an FIR, the
same by itself and without anything more ought not to weigh
in the mind of the courts in all cases as fatal for the
prosecution. A realistic and pragmatic approach has to be
adopted, keeping in mind the peculiarities of each particular
case, to assess whether the unexplained delay in lodging the
FIR is an afterthought to give a coloured version of the
incident, which is sufficient to corrode the credibility of the
prosecution version.
15. In cases where delay occurs, it has to be tested
on the anvil of other attending circumstances. If on an overall
consideration of all relevant circumstances it appears to the
court that the delay in lodging the FIR has been explained,
mere delay cannot be sufficient to disbelieve the prosecution
case; however, if the delay is not satisfactorily explained and it
appears to the court that cause for the delay had been
necessitated to frame anyone as an accused, there is no reason
as to why the delay should not be considered as fatal forming
part of several factors to vitiate the conviction."
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11. The second contention made by the appellant's
counsel is that the place of recovery of the victim as shown in the
complaint is highly doubtful.
11.1. In response to this contention, it has been
submitted by learned APP that the victim as well as other
prosecution witnesses (P.W.3. & P.W.4.) remained consistent to the
place of recovery of the victim shown in the prosecution story.
11.2. As per the prosecution story narrated by the victim
in her complaint, she was brought and rescued by her villagers
namely Ajit Mahto, Hare Ram Mahto and Satya Narayan Mahto,
etc., from Saharsa railway station but she remained silent with
regard to the time of that part of the incident in her complaint
before the trial court. The victim stated that her villagers reached
at the railway station while searching for her in the morning and
upon seeing them, she raised an alarm, then the appellant and his
associates fled away. While Hare Ram Matho, P.W.1., deposed in
his examination-in-chief that during the course of searching for the
victim in the night they reached at Saharsa railway station at 11-
11:30 p.m. and they saw the victim, who raised an alarm from a
train. Satya Narayan Mahto, P.W.4, who was also among them and
found the victim at Saharsa railway station, stated in his cross-
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examination that after finding the victim, no information was
given to Saharsa Sadar police station. The said contradiction with
regard to the timing of recovery of the victim at the said railway
station and no action on the part of the searching team in
informing the nearby police station or taking other legal step
immediately after finding the victim, creates a serious doubt in the
prosecution story.
12. The third contention raised by the appellant's
counsel is that the investigation made by the investigating officer
in connection with the offences alleged by the victim is completely
defective and there are serious lapses in the investigation with
regard to the second part of the alleged occurrence resulting to the
sexual assault and the same has also weakened the prosecution's
case.
12.1. I find substance in the said contention. The
prosecution story as narrated by the victim in her complaint
consisting of two parts, first part relates to kidnapping made by the
appellant and his associates, second relates to her confinement in
the house of the appellant's maternal sister where the appellant
confined and raped the victim. In respect of the second part of the
prosecution story, the investigation officer did not make any
investigation and even did not take any pain to inspect or find out
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the place of occurrence relating to second part of the occurrence
concerning to the offence of sexual assault. The investigating
officer, examined as P.W.6 accepted in the cross-examination that
she did not verify the places of occurrences accept one place that
relates to the occurrence of kidnapping. She further stated in the
cross-examination that she could not state the dates upon which
the statements of the witnesses were recorded as all the witnesses
were examined on the same date. This statement shows that the
investigating officer was not serious in conducting the
investigation to verify the accusations levelled by the victim
particularly with regard to the main and second part of the
occurrence rather she stated that during investigation, some
witnesses revealed before her that the alleged incident was the
result of a love affair. The investigating officer did not take attempt
to seize the tempo which was used by the accused in taking the
victim to the alleged places and no investigating was made to
ascertain the identities of the appellant's associates who were three
in numbers and actively helped the appellant in kidnapping the
victim and confining her in the house of appellant's maternal
sister. These lapses on the part of the investigating officer cannot
be ignored as the same are very serious in nature and go to the root
of the matter. In this regard, I would like to refer to the
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observation made by the Hon'ble Apex Court in the case of Sunil
Kundu and Another vs. State of Jharkhand and other analogous
cases, reported in (2013) 4 SCC 422, of which paragraph no. 29 is
relevant and the same is reproduced as under:-
"29. We began by commenting on the unhappy
conduct of the investigating agency. We conclude by
reaffirming our view. We are distressed at the way in which
the investigation of this case was carried out. It is true that
acquitting the accused merely on the ground of lapses or
irregularities in the investigation of a case would amount to
putting premium on the deprecable conduct of an
incompetent investigating agency at the cost of the victims
which may lead to encouraging perpetrators of crimes.
This Court has laid down that the lapses or irregularities in
the investigation could be ignored subject to a rider. They
can be ignored only if despite their existence, the evidence
on record bears out the case of the prosecution and the
evidence is of sterling quality. If the lapses or irregularities
do not go to the root of the matter, if they do not dislodge
the substratum of the prosecution case, they can be ignored.
In this case, the lapses are very serious. PW 5 Jaldhari
Yadav is a pancha to the seizure panchnama under which
weapons and other articles were seized from the scene of
offence and also to the inquest panchnama. Independent
panchas have not been examined. The investigating officer
has stated in his evidence that the seized articles were not
sent to the court along with the charge-sheet. They were
kept in the malkhana of the police station. He has admitted
that the seized articles were not sent to the forensic science
laboratory. No explanation is offered by him about the
missing sanha entries. His evidence on that aspect is
evasive. Clothes of the deceased were not sent to the
forensic science laboratory. The investigating officer
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admitted that no seizure list of the clothes of the deceased
was made. Blood group of the deceased was not
ascertained. No link is established between the blood found
on the seized articles and the blood of the deceased. It is
difficult to make allowance for such gross lapses. Besides,
the evidence of eyewitnesses does not inspire confidence.
Undoubtedly, a grave suspicion is created about the
involvement of the accused in the offence of murder. It is
well settled that suspicion, however strong, cannot take the
place of proof. In such a case, benefit of doubt must go to
the accused. In the circumstances, we quash and set aside
the impugned judgment and order . The appellant-accused
are in jail. We direct that the appellants A-1 Sunil Kundu,
A-2 Bablu Kundu, A-3 Nageshwar Prasad Sah and A-4
Hira Lal Yadav be released forthwith unless otherwise
required in any other case."
Conclusion:-
13. For the reasons stated above I find substance in the
appellant's contentions discussed above and the same are sufficient
to cast a serious doubt in the prosecution's allegations levelled
against the appellant by the victim and the trial court's approach in
convicting the appellant for the charged offences does not inspire
confidence of this Court and there are sufficient circumstances
discussed above making the prosecution's allegations to be highly
suspicious and the trial court failed to appreciate the prosecution
evidences in right perspective. The appellant is entitled to get the
benefit of doubt.
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14. In the result, the impugned judgment dated
04.11.2015
, whereby the appellant was convicted for the charged
offences, and the impugned order dated 09.11.2015, whereby the
appellant was sentenced for the said offences, passed in POCSO
Trial No. 17 of 2014 arising out of Supaul Mahila P.S. Case No. 59
of 2014, are hereby set aside.
15. The appeal is allowed.
16. The appellant is presently on bail in this matter,
accordingly, his bail bonds shall stand cancelled forthwith, and he
as well as his sureties are hereby discharged from their respective
liabilities.
17. Let the records of the trial court along with the copy
of this judgment be sent forthwith to the court concerned for
compliance and doing the needful.
(Shailendra Singh, J)
maynaz/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 21.01.2026
Transmission Date 21.01.2026
