Patna High Court
Md. Pappu @ Md. Saba UddinversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- BIBEK CHAUDHURIANSUL
Holding
The appeal is allowed and the conviction and sentence are set aside.
Summary
The appellant Md. Pappu was convicted by a Special Judge under the POCSO Act and IPC for raping a 13‑year‑old girl who later became pregnant. The trial court sentenced him to life imprisonment and a fine, relying primarily on the victim’s testimony and medical evidence, without examining the accused under Section 53A of the Cr.P.C. The appellant appealed, arguing that the victim’s evidence was not of "sterling" quality, that there were material inconsistencies, and that the statutory presumption under Sections 29 and 30 of the POCSO Act could not replace the prosecution’s duty to prove the foundational facts. The High Court held that the victim’s testimony was unreliable, the prosecution failed to meet its evidentiary burden, and the lack of a medical examination of the accused further weakened the case. Consequently, the Court allowed the appeal, set aside the conviction and sentence, and ordered the appellant’s release.
Issues considered
- The prosecution can sustain a conviction for rape under IPC 376 and POCSO 6 solely on the victim’s testimony without corroboration.
- Whether the victim’s testimony qualifies as a "sterling witness" under Supreme Court jurisprudence.
- The effect of the failure to medically examine the accused under Section 53A of the Cr.P.C. on the conviction.
- Whether the statutory presumption under Sections 29 and 30 of the POCSO Act shifts the burden of proof to the accused.
- The trial court’s compliance with Section 118 of the Evidence Act in assessing the competency of a child witness.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 164, 313, 53A
- Indian Evidence Act, 1872 — s. 118
- Indian Penal Code — s. 376
- Protection of Children from Sexual Offences Act, 2012 — s. 29, 30, 4, 6
Subjects
- rape
- child sexual abuse
- POCSO
- IPC 376
- evidence
- sterling witness
- medical examination
- burden of proof
- conviction set aside
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.14 of 2019
Arising Out of PS. Case No.-171 Year-2016 Thana- SULTANGANJ District- Patna
======================================================
Md. Pappu @ Md. Saba Uddin Son of Late Md. Sirajuddin Resident of
Village - Malaria Office, Baksariya Tola, Sultanganj, P.S.- Sultanganj, District
- Patna
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant : Mr.Madhav Raj, Advocate
Mr.Vikash Kumar Jha, Advocate
Mr.Abhinav Kumar, Advocate
Mr.Kumar Ashish, Advocate
For the Respondent-State: Mr.Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE ANSUL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 03-02-2026
1. The correctness of the judgement of conviction
and order of sentence, dated 29th of September, 2018 and 5th of
October, 2018, respectively, is under challenge in the instant
appeal.
2. It is necessary to mention that by passing the
impugned order the learned Additional Sessions Judge, 1 st
Court at Patna-cum-Special Judge under POCSO Act held the
appellant guilty for committing offence under Section 376 of
the Indian Penal Code and Section 6 of the POCSO Act in
Special Case No. 122 of 2016, arising out of Sultanganj P.S.
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Case No. 171 of 2016, dated 22nd of August, 2016.
3. It is pertinent to mention, at the outset, that the
learned Trial Judge recorded sentence of imprisonment for life
for the offence under Section 6 of the POCSO Act with fine of
Rs. 10,000/- against the appellant. Further, it was directed that
if the fine amount is recovered, 80 per cent of the same shall
be paid to the victim.
4. In view of such punishment the Trial Court did
not pass separate sentence under Section 376 of the IPC in
compliance of Section 4 of the POCSO Act against the
appellant.
5. Brief facts of the case: -
Sultanganj P.S. Case No. 171 of 2016, dated 22 nd of
August, 2016, was registered on the basis of a farde bayan
submitted by the father of the victim (we are consciously not
stating the name of the informant and the victim in order to
conceal their identity). It is stated by the informant in his
statement that his daughter, aged about 13 years, at the
relevant point of time, used to stay at Sultanganj in the house
of Guddun Ji. She used to perform small household work.
While she was stayed in the house of Guddun Ji, one day
about five months before the date of lodging farde bayan, she
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left the said house from some unknown place and returned on
the next morning. When the informant came to know about
her leaving away from the house of Guddun Ji for one night,
he repeatedly asked his daughter about her whereabouts on
that fateful date. But she did not say anything to her father.
About one month before the date of lodging FIR, the
informant noticed some physical changes in her daughter.
Initially, she did not disclose anything on being asked about
her physical changes. But, on the date of lodging farde bayan,
she disclosed that she was pregnant. She also disclosed that
one Md. Pappu took her to Darbhanga by a motor-cycle about
five months before the date of lodging F.I.R. and forcibly
established physical relationship with her. On the next
morning, she was returned back by the accused to the house of
the said Guddun Ji. The daughter of the informant did not
disclose anything to her father out of fear, and there was no
occasion for her to disclose the same to her mother, as her
mother is mentally ill. The informant also disclosed that even
after Darbhanga incident, the accused committed physical
intercourse with her putting her under fear. One Thakur (Nai)
(barber), namely, Chhotu Thakur saw such physical
relationship between Pappu and the victim and taking
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advantage of the said incident, he also committed penetrative
sexual assault upon the victim. On the basis of the said
information, police registered Sultanganj P.S. Case No. 171
of 2016 and investigation was entrusted to one Bharti Kumari,
S.I. of Mahila Police Station–Patna. In course of investigation,
she visited the place of occurrence, recorded the statement of
the available witnesses, got the statement of the victim
recorded under Section 164 of the Cr.P.C. Medical
examination of the victim was also done and medical report
was obtained by the I.O. and on completion of investigation,
she has submitted charge-sheet against the appellant under
Section 376 of the Indian Penal Code read with Section 4 / 6
of the POCSO Act.
6. Process of the Court: -Charge-sheet was filed
before the learned Chief Judicial Magistrate at Patna. When
the learned Chief Judicial Magistrate found that the case is
exclusively triable by the learned Special Judge, POCSO Act,
the case was committed to the Court of the learned Special
Judge-cum-Additional Sessions Judge 1st Court at Patna for
trial and disposal.
7. Trial of the Case: - The learned Sessions Judge
framed charge against the accused under Section 376 of the
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IPC as well as 4/6 of the POCSO Act. When the charge was
read over and explained to the appellant, he pleaded not
guilty.
8. Accordingly, the trial of the case commenced.
9. During trial of the case, prosecution examined as
many as five witnesses. The victim girl was further examined
to prove her statement under Section 164 of the Cr.P.C.
10. The defence case as disclosed from the trend of
cross examination of the witnesses on behalf of the
prosecution as well as examination of the accused under
Section 313 of the Cr.P.C. and the averments made by the
witnesses on behalf of defence (three in numbers), it is
ascertained that the appellant completely denied the allegation
made against him by the prosecution. It is specifically pleaded
that the victim had illicit relationship with one Chhotu Thakur,
who is a barber by profession. Seeing such illicit relationship,
the accused assaulted Chhotu. Out of the said grudge, the
victim in collusion with his father implicated the appellant
falsely in this case.
11. Evidence on record: - Out of the five
witnesses, who were examined on behalf of the prosecution,
P.W. 1 Gullu @ Bullu is a Manager of one Saddam Marriage
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Hall at Sultanganj. The appellant used to work as an
Electrician in the said marriage hall. Adjacent to the marriage
hall, the house of the informant is situated. He stated that he
does not know the daughter of the informant. He also denied
making any statement to the police. Thus, P.W.1 would not
throw any light about the incident. It is important to note that
during trial the prosecution did not declare P.W.1 as a hostile
witness.
12. P.W. 2 is the informant himself. It is stated by
him that at the time of alleged incident, his daughter was aged
about 13 years. It is found from his evidence that he heard
from his daughter that the appellant committed some illicit act
(galat kaam) with his daughter. Hearing the said incident, he
went to Sultanganj Police Station and made his statement and
put his LTI thereon. His daughter was medically examined by
a Medical Officer in the local hospital. The witness also stated
that her daughter gave birth to a baby, who died five days after
her birth. In his cross examination, he clearly admitted that he
does not know any person, namely, Chhotu Thakur. He denied
his statement made before the Police that Chhotu Thakur
committed illicit act (nazayaz kaam) with his daughter. In
cross examination, it is admitted by the informant that he did
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not lodge any complaint against one Kammu, who allegedly
committed some illicit act with his wife. It is sufficient to note
that the evidence of P.W.2 is hearsay in nature because he
deposed what he heard from his daughter.
13. P.W. 3 is the victim. She deposed in this case on
03.02.2018.
14. At the outset, we are of the view that we should
record that the noting made by the learned Trial Judge at the
very initiation of the evidence of the victim is in the following
words: -
"साकी के समझने की शककक का परीकण
ककया गया। उसके सोचने समझने की शककक को सही
पाकर उसका बयान अं ककक ककया गया।"
15. We are constrained to note that the above-noting
does not suggest due compliance of Section 118 of the
Evidence Act. Section 118 of the Evidence Act states as
follows: -
“118. Who may testify. –– All persons
shall be competent to testify unless the Court
considers that they are prevented from
understanding the questions put to them, or from
giving rational answers to those questions, by
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tender years, extreme old age, disease, whether of
body or mind, or any other cause of the same
kind”
16. Thus, it is the duty of the Trial Court to examine
a witness having tender age to ascertain whether he/she is
prevented from understanding the questions and give
reasonable answer thereto. The deposition of a child witness
must contain the questions which a Trial Judge asks in order
to find out his mental capability and rationality and
understanding of question.
17. In the instant case, the learned Special Judge did
not record the questions or interrogatories after which he was
ascertained that the victim had the capability to understand
and give reasonable answer regarding the incident. On this
aspect, the evidence of P.W. 3 is found to be irregularly
recorded, though not completely illegal.
18. From her evidence, it is found that the incident
took place about one and a half years before the date of her
deposition. The appellant took her to Darbhanga and did illicit
act with her (ganda ganda kaam), as a result of which, she
became pregnant. It is further stated by the victim in her
deposition that her father works as a Painter. In her house, her
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mother and her elder sister stay. During cross-examination,
she stated that she does not know any person namely Chhotu
Thakur. Her father did not lodge any complaint against
Chhotu. Chhotu did not commit any illicit act with her. At the
relevant point time, the victim used to stay in a house,
adjacent to the marriage hall. The appellant used to work as
Electrician in the said marriage hall. Chhotu Thakur has a
barber shop at the vicinity. After the institution of the Case,
Chhotu closed his shop and fled away. The victim came to
know Pappu as he used to stay in the same locality. She
denied the suggestion that Pappu did not commit any
wrongful act upon the victim.
19. The Investigating Officer was examined during
trial as P.W. 5. There is nothing remarkable in the evidence of
the Investigating Officer to be noted in the instant appeal.
20. In her statement recorded under Section 164 of
the Cr.P.C., the victim stated that the appellant took her to
Gandhi Maidan for walking on 14th of August, 2016. Once, he
took her to Darbhanga and committed some wrongful act
(ganda kaam). She raised alarm but nobody heard it. Initial
incident at Darbhanga took place at about 9 / 10 P.M at night
and after that the appellant left her to her house. She could not
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recollect when she returned to the house. She stated that she
was pregnant for about 5 months. She used to discharge
household work in the house of one Gudan Didi. Presently,
she does not perform any work. In her statement under
Section 164 of the Cr.P.C., the victim further stated that
whenever her father was not present in the house, the
appellant used to come to her house and committed Ganda
Kaam.
21. P.W. 4 is Dr. Premlata Verma. who was posted at
Medical Officer at Guru Govind Singh Hospital, Patna City
on 23rd of August, 2016. She medically examined the victim
girl and recorded the following findings in her report:-
“Mark of Identification
1. A black til on left collar bone
2. A black til on right arm on lateral
side average built Height 144 cm, Weight 40 kg
and dentition upper 14, Lower 14 total 28 teeth.
Secondary sex characteristic Auxiliary
hair, pubic hair and breast are well developed.
Last menstrual period is unknown.
Abdominal swelling three fingers
above umbilicous is present.
There is no mark of any injury on any
part of body including private parts.
P/V examination- Vagina admits two
fingers easily.
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Investigation 1 X-ray wrist Ap.Lateral
X-ray elbow Ap,Lat
X-ray chest Ap
X-ray hip Ap
Above examination is for determination
of age.
2 Sealed vaginal smear for microscopic
examination to see any semen or foreign body.
3 Ultrasonography of whole abdomen_
the report was awaited on 23.0816
On 06.09.16, Report по. 158/24.08.16
of dept of microbiology.PMCH shows
spermatozoa not found.
Report no. 1064/24.08.16 of dept of
radiology, PMCH shows complete fusion of
epiphysis of medial epicondyle of humerous and
head of radius which fuses at 14 years. There is
incomplete fusion of distal radial epiphysis which
fuses at 16.5 years.
Conclusion of age of the pt. is between
14-16.5 years.
Ultrasound report no. 33/24.08.16 of
dept of radiology, PMCH shows single foetus
(intrauterine) with cardiac activity of composite
age 23 weeks and 2 days.
This report is written in my pen and
signature on 06.09.2016, mark exhibit – 2.”
22. Submission made by the learned Advocate for
the Appellant:- It is submitted by the learned Advocate for
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the appellant that the Trial Court held the appellant guilty for
the offence punishable under Section 376 of the IPC read with
Section 4 / 6 of the POCSO Act, mainly, relying on the
evidence of victim girl and the Medical Officer. The learned
Trial Court held that the victim girl specifically deposed
implicating the appellant as perpetrator of the offence.
Relying on a judgment in the case of State of Punjab v.
Ramdev Singh, reported in (2004) 1 SCC 421, the Trial Court
held that even if the victims’ evidence is not corroborated by
other witness, the same cannot be thrown away for the lack of
corroboration because in an offence of penetrative sexual
assault or sexual assault, the evidence of the victim is
important more than the evidence of an injured person. In an
offence of sexual assault, the victim is not an accomplice but
she is more than an injured and the best witness in the case. A
minor girl who was made pregnant taking advantage of her
tender age ought not be disbelieved for want of corroboration
or certain discrepancies in her evidence.
23. The learned Trial Judge also relied on the
decision of the Hon’ble Supreme Court in the case of Rafiq v.
State of U.P., reported in AIR 1981 SCC 559, wherein it is
held that if the evidence of the victim is found to be
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trustworthy, cogent and reliable, conviction can be based on
the sole testimony of the victim.
24. The learned Advocate on behalf of the Appellant
further submits that there cannot be any disagreement against
the ratio laid down by the Hon’ble Supreme Court in the
aforesaid decisions, but the Trial Court did not consider that
the evidence of the victim as well as her father is surrounded
by a dark cloud of suspicion and under such circumstances,
their evidence cannot be considered as reliable, trustworthy
and cogent. In order to substantiate his contention, he refers to
the FIR where the informant clearly stated that one Chhotu
Thakur also sexually assaulted the victim. The Trial Court did
not notice that immediately after lodging of the FIR, Chhotu
Thakur fled away from the locality keeping his shop under
lock and key. During evidence, both the informant and victim
refused to implicate Chhotu Thakur. The victim even stated
that Chhotu did not commit any wrong upon her. It was only
the appellant who committed wrong upon her.
25. The learned Advocate for the Appellant has
pointed out a glaring factual discrepancy between the FIR and
the statement made by the victim under Section 164 of the
Cr.P.C. and her deposition. In the farde bayan, it is clearly
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stated that her daughter was taken to Darbhanga about 5
months before the date of lodging of FIR.
26. We have already recorded that the date of
lodging FIR was on 22nd of August, 2016. Therefore, if the
FIR is believed, the appellant for the first time took her to
Darbhanga some times in the last part of February or March,
2016, but both in her evidence and statement under Section
164 of the Cr.P.C., the victim stated that Darbhanga incident
took place away before 5 months of lodging FIR. There is no
explanation as to why Chhotu Thakur was left away by the
victim and her father.
27. Thus, it is open for the Court to take an adverse
presumption that the victim and the informant did not
approach the Trial Court with clear picture of the incident.
Therefore, their evidence cannot be believed.
28. Learned Advocate for the appellant further
submits that the victim’s evidence is not of sterling quality
and, therefore, her evidence cannot be considered in the light
of the observation made by the Hon’ble Supreme Court in Rai
Sandeep @ Deepu v. State (NCT of Delhi) reported in (2012)
8 SCC 21.
29. He also refers to another judgement in the case
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of Nirmal Premkumar and Anr. v. State Rep. By Inspector of
Police reported in 2024 SCC Online SC 260, where the
Hon’ble Supreme Court reiterated the principle laid down in
Rai Sandeep (supra) in the light of a case under Section 376
(2) (g) of the IPC.
30. On the same point, the learned Advocate for the
appellant refers to a Division Bench Judgment of this Court in
the case of Sukumar Jana v. The State of Bihar (Cr. APP (DB)
304 of 2021) dated 6th of December, 2023. Paragraphs 24, 25
and 26 of the said judgement are relevant and quoted below:-
“24. In case of Rai Sandeep v. State
(NCT of Delhi) reported in (2012) 8 SCC 21, the
Supreme Court elucidated that a sterling witness
should be of high quality and caliber and the
Court considering the version of such witness
should be in a position to accept for its face value
without any hesitation. To test the quality of such
a witness, the status of the witness would be
immaterial and what would be relevant is the
truthfulness of the statement made by such a
witness. What would be more relevant would be
consistency of the statement right from the
starting point till the end, namely, at the time
when the witness makes the initial statement and
ultimately before the court, the Supreme Court
observed.
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25. The Supreme Court further held in
case of Rai Sandeep (supra) that such witness
should be in a position to withstand the cross-
examination of any length and howsoever
strenuous it may be and under no circumstance
should give room for any doubt as to the factum
of the occurrence, the persons involved as well as
the sequence of it. The said version should
constantly match with the version of every other
witness. It can even be stated that it should be
akin to the test applied in the case of
circumstantial evidence where there should not be
any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged
against him. The Supreme Court emphasized
“…... only if the version of such a witness
qualifies the above tests as well as all other such
similar tests to be applied, can it be held that such
a witness can be called as a sterling witness
whose version can be accepted by the Court
without any corroboration and based on which
the guilty can be punished”. The Supreme Court
concluded in case of Rai Sandeep (supra) as
under:-
“To be more precise, the version of the
said witness on the core spectrum of the crime
should remain intact while all other attendant
materials, namely, oral, documentary and
material objects should match the said version in
material particulars in order to enable the court
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trying the offence to rely on the core version to
sieve the other supporting materials for holding
the offender guilty of the charge alleged.”
26. The said decision in case of Rai
Sandeep (Supra) has been followed in case of
Santosh Prasad v. State of Bihar, reported in
(2020) 3 SCC 443”
31. Submission on behalf of the
State/respondents:- Learned APP has supported the case of
the prosecution. It is submitted by him that from the medical
evidence, it is conclusively proved that the victim was
pregnant for 5 months on the date of her medical examination.
There is no challenge on the age of the victim. She was a
minor and the provisions of the POCSO Act is squarely
applicable for her. The victim in her statement stated that she
was subjected to penetrative sexual assault by the appellant.
The said fact was corroborated by medical evidence.
Therefore, leaving aside all the evidences, this Court ought to
hold that the learned Trial Judge rightly held the appellant
guilty for committing offence under Section 376 of the IPC
and Section 4/6 of the POCSO Act.
32. Our Conclusion:- Law regarding probity of
charge for sexual atrocities is consistent that :
(i) evidence of prosecutrix if found reliable,
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trustworthy and free from blemish can be the sole basis of the
conviction;
(ii) the medical examination of the victim is
absolutely necessary and forms a piece of very important
evidence to ascertain the reliability of the evidence of the
victim in a case like nature;
(iii) Medical examination of the accused specially in
a case of sexual atrocities is obligatory in view of Section 53A
of the Cr.P.C.
33. In the event, a case is required to be proved by
DNA profiling, it is the duty of the Medical Officer under
Section 53A to collect the samples of the accused for DNA
profiling.
34. In the instant case, while we are always mindful
about the above-mentioned principle, we like to record, at the
outset, that accused had not been examined after his arrest
under Section 53A of the Cr.P.C.
35. It is needless to say that the provision contained
in 53A is a forgotten provision in the State of Bihar because
this Court had dealt with number of criminal appeals and
found that not in a single appeal, the Investigating Officer
took resort of Section 53A.
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36. Let us give an example, if in a case of sexual
atrocity, where the accused is not examined medically and
during trial, takes a plea of impotence, the Court will have no
other alternative but to accept such contention in the absence
of any report under Section 53A. Moreover, when Section
53A has been specially provided in the statute during trial or
in the course of appeal, if in such appeal plea is taken by the
accused, the Court probably cannot direct fresh medical
examination of the accused because in that case such action
by the Court will be in the nature of fishing out of evidence.
Time has come to sensitize the police department directing
them to have medical examination of the accused immediately
after arrest.
37. In the instant case, the appellant was arrested on
same day of lodging of FIR. There is no explanation as to why
he was not medically examined. At least, some independent
evidence should come before the Court to come to a finding
that the accused was capable of committing such offence. It is
the only medical examination of the accused which can amply
prove the capability of the accused.
38. The next point, which we are of the opinion to
discuss, is as to whether the evidence of the prosecutrix can be
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accepted as an evidence of sterling character.
39. The Hon’ble Supreme Court Rai Sandeep @
Deepu (supra) defines sterling witness in the following
words:--
“22. In our considered opinion, the
“sterling witness” should be of a very high
quality and calibre whose version should,
therefore, be unassailable. The court
considering the version of such witness should
be in a position to accept it for its face value
without any hesitation. To test the quality of
such a witness, the status of the witness would
be immaterial and what would be relevant is
the truthfulness of the statement made by such
a witness. What would be more relevant would
be the consistency of the statement right from
the starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the court. It
should be natural and consistent with the case
of the prosecution qua the accused. There
should not be any prevarication in the version
of such a witness. The witness should be in a
position to withstand the cross-examination of
any length and howsoever strenuous it may be
and under no circumstance should give room
for any doubt as to the factum of the
occurrence, the persons involved, as well as
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the sequence of it. Such a version should have
co-relation with each and every one of other
supporting material such as the recoveries
made, the weapons used, the manner of
offence committed, the scientific evidence and
the expert opinion. The said version should
consistently match with the version of every
other witness. It can even be stated that it
should be akin to the test applied in the case
of circumstantial evidence where there should
not be any missing link in the chain of
circumstances to hold the accused guilty of the
offence alleged against him. Only if the
version of such a witness qualifies the above
test as well as all other such similar tests to be
applied, can it be held that such a witness can
be called as a “sterling witness” whose
version can be accepted by the court without
any corroboration and based on which the
guilty can be punished. To be more precise,
the version of the said witness on the core
spectrum of the crime should remain intact
while all other attendant materials, namely,
oral, documentary and material objects
should match the said version in material
particulars in order to enable the court trying
the offence to rely on the core version to sieve
the other supporting materials for holding the
offender guilty of the charge alleged.”
40. In Nirmal Premkumar (supra) such observation
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of Rai Sandeep (supra) was recorded with approval.
41. Following the law as aforesaid and in our
persuade to answer the question as to whether the evidence of
the prosecutrix can be held to be that of sterling witness, we
are constrained to note that the following circumstances have
the effect of casting a serious doubt with regard to the veracity
of the prosecution version. They are summarized below:-
(i) Neither the victim nor the informant would tell
even the approximate date and time when the incident first
took place at Darbhanga;
(ii) The Investigating Officer did not visit the place
of occurrence at Darbhanga;
(iii) The victim was found pregnant for about 5
months when the FIR was lodged. Therefore, it is obvious that
victim was conceived any time before 5 months but the victim
failed to state when such incident occurred, by whom such
incident occurred and where such incident occurred;
(iv) There is no explanation as to why Chhotu
Thakur was relieved of his criminal liability by the informant
and her daughter;
(v) when there is specific allegation against the said
Chhotu Thakur of committing sexual assault upon the victim
Patna High Court CR. APP (DB) No.14 of 2019 dt.03-02-2026
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and farde bayan was recorded by the police officer on being
stated by the father of the victim on the basis of what he heard
from the victim and why no step taken by the Investigating
Officer to find out as to whether the victim became pregnant
either by the appellant or by Chhotu Thakur.
42. Thus, we find, considering such circumstances
as stated above, that the evidence of the de facto complainant
is not that of a sterling quality.
43. The Trial Court passed the order of conviction
and sentence on the basis of rule of presumption laid down in
Sections 29 and 30 of the POCSO Act. This rule of
presumption has been succinctly discussed in the case of
Subrata Biswas & Anr. v. State reported in 2019 SCC Online
1815. It is sufficient to note that the Division Bench of the
Calcutta High Court are held in paragraph 22 of the
judgement that the statutory presumption applies when a
person is prosecuted for committing offence under Sections 5
and 9 of the POCSO Act and a reverse burden is imposed on
the accused to prove the contrary. The word “is prosecuted” in
the aforesaid provision does not mean that the prosecution has
no role to play in establishing and/or probablising the primary
facts constituting the offence. If that were so then the
Patna High Court CR. APP (DB) No.14 of 2019 dt.03-02-2026
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prosecution would be absolved of the responsibility of leading
any evidence whatsoever and the Court would be required to
call upon the accused to disprove a case without the
prosecution laying the firm contours thereof by leading
reliable and admissible evidence. Such an interpretation not
only leads to absurdity but renders the aforesaid provision
constitutionally suspect.
44. Thus, it was held by the Division Bench of
Calcutta High Court that foundational fact of the prosecution
case must be proved beyond any shadow of doubt by the
prosecution. Only thereafter the burden will shift upon the
accused to prove the contrary.
45. In the instant case, the evidence on record is not
sufficient to prove the foundational fact of the prosecution
case.
46. For the reasons stated above, we are not
agreeable with the findings made by the learned Trial Judge
by the Trial Court.
47. Accordingly, the appeal is allowed.
48. The judgement of conviction and order of
sentence, dated 29th of September, 2018 and 5th of October,
2018, respectively, passed by the learned Additional Sessions
Patna High Court CR. APP (DB) No.14 of 2019 dt.03-02-2026
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Judge, 1st Court at Patna-cum-Special Judge under POCSO
Act, are set aside.
49. If the appellant is in jail, he shall be released
forthwith, if not required in any other case.
50. The lower court records be sent to the concerned
court.
(Bibek Chaudhuri, J)
(Ansul, J)
uttam/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 05.02.2026
Transmission Date 05.02.2026
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