Patna High Court
Sonu Singh @ Sonu Kumar SinghversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
Holding
The conviction under Section 376D IPC is unsafe and is set aside, resulting in the acquittal of all appellants.
Summary
The appellants were convicted by the Special Judge, SC/ST Act, Samastipur, for gang rape under Section 376D IPC, along with charges under the IT Act and SC/ST Act, and sentenced to 20 years rigorous imprisonment and a fine. On appeal, the Patna High Court examined the evidence, noting a 13‑day delay in lodging the FIR, the victim’s failure to identify the accused in court, the absence of any medical evidence of violence, and the non‑appearance of the victim’s husband, a material witness. The Court also observed that the video alleged to have been made was never produced, and the prosecution could not prove the IT‑Act and SC/ST‑Act charges. Relying on these deficiencies, the Court held that the conviction rested on an unreliable sole testimony and was unsafe. Consequently, the High Court set aside the conviction, acquitted all appellants, ordered their immediate release, and allowed the appeals.
Issues considered
- The prosecution evidence, particularly the victim’s testimony, is sufficient to sustain a conviction under Section 376D IPC.
- Whether the 13‑day delay in filing the FIR vitiates the reliability of the prosecution case.
- Whether the lack of medical evidence and the victim’s failure to identify the accused negate proof beyond reasonable doubt.
- Whether the charges under Section 67 of the IT Act and Section 3(2)(v) of the SC/ST Act can be proved.
- Whether the presumption of innocence can be overridden by the alleged conduct of the victim.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 164, 313
- Indian Penal Code — s. 376D
- Information Technology Act, 2000 — s. 67
- Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 — s. 3(2)(v)
Subjects
- gang rape
- Section 376D IPC
- delay in FIR
- reliability of witness
- acquittal
- presumption of innocence
- IT Act
- SC/ST Act
- criminal appeal
- evidence appraisal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.104 of 2025
Arising Out of PS. Case No.-46 Year-2019 Thana- MAHILA P.S. District- Samastipur
======================================================
Luv Kumar @ Chhotu Son of Garnu Sah @ Garabhu Sahu @ Garbu Sah R/o
Village- Mangalgarh, P.S.- Hasanpur, District- Samastipur
... ... Appellant
Versus
1. The State of Bihar
2. Reeta Devi W/o- Rambalak Sada Village- Mangalgarh PS-Hasanpur Distt-
Samastipur
... ... Respondents
======================================================
with
CRIMINAL APPEAL (DB) No. 3 of 2025
Arising Out of PS. Case No.-46 Year-2019 Thana- MAHILA P.S. District- Samastipur
======================================================
Tuntun Sah S/o- Late Mangal Sah Village- Deodha PS-Hasanpur Distt-
Samastipur
... ... Appellant
Versus
1. The State of Bihar
2. Reeta Devi W/o- Rambalak Sada Village- Mangalgarh PS-Hasanpur Distt-
Samastipur
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 75 of 2025
Arising Out of PS. Case No.-46 Year-2019 Thana- MAHILA P.S. District- Samastipur
======================================================
Ajay Kumar Yadav @ Ajay Yadav @ Jhulwa S/O Shiv Yadav @ Shibu Yadav
Village- Mangal Garh, P.S.- Hasanpur, District- Samastipur
... ... Appellant
Versus
1. The State of Bihar
2. Rita Devi @ Manju Devi W/o Ram Balak Sada Village- Mangal Garh, P.S.-
Hasanpur, District- Samastipur
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 150 of 2025
Arising Out of PS. Case No.-46 Year-2019 Thana- MAHILA P.S. District- Samastipur
======================================================
Patna High Court CR. APP (DB) No.104 of 2025 dt.19-03-2026
2/22
Sonu Singh @ Sonu Kumar Singh S/o Ajit Prasad Singh R/o Village- Devdha,
P.S.-Hasanpur, District-Samastipur
... ... Appellant
Versus
1. The State of Bihar
2. Rita Devi @ Manju Devi W/o Ram Balak Sada Village- Mangal Garh, P.S.-
Hasanpur, District- Samastipur
... ... Respondents
======================================================
with
CRIMINAL APPEAL (DB) No. 192 of 2025
Arising Out of PS. Case No.-46 Year-2019 Thana- MAHILA P.S. District- Samastipur
======================================================
Amit Kumar @ Santji @ Amit Kumar Khan S/o- Late Manikant khan Village-
Deodha PS- Hasanpur, Dist- Samastipur
... ... Appellant
Versus
1. The State of Bihar
2. Rita Devi W/o- Rambalak Sada Village- Mangalgarh PS- Hasanpur Dist-
Samastipur
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 104 of 2025)
For the Appellant : Mr. Ramakant Akela, Advocate
For the State : Ms. Shashi Bala Verma, APP
For the Resp No. 2 : None
(In CRIMINAL APPEAL (DB) No. 3 of 2025)
For the Appellant : Mr. Jitendra Narain Sinha, Advocate
: Ms. Khushi Awadh, Advocate
For the State : Mr. Sadanand Paswan, Advocate
: Mr. Dilip Kumar Sinha, APP
For the Resp No. 2 : None
(In CRIMINAL APPEAL (DB) No. 75 of 2025)
For the Appellant : Mr. Ramakant Sharma, Sr. Advocate
: Mr. Rakesh Kumar Sharma, Advocate
: Mr. Sarbottam Kumar Sarkar, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
For the Resp No. 2 : None
(In CRIMINAL APPEAL (DB) No. 150 of 2025
For the Appellant : Mr. Sanjay Kumar Singh, Advocate
For the State : Mr. Binod Bihari Singh, APP
For the Resp No. 2 : None
(In CRIMINAL APPEAL (DB) No. 192 of 2025)
For the Appellant : Mr. Rabindra Kumar Priyadarshi, Advocate
: Mr. Dheeraj Kumar, Advocate
For the State : Mr. Binod Bihari Singh, APP
For the Resp No. 2 : None
======================================================
Patna High Court CR. APP (DB) No.104 of 2025 dt.19-03-2026
3/22
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 19-03-2026
Heard learned counsel for the appellants and learned
Additional Public Prosecutor for the State.
2. Despite valid service of notice on Respondent No. 2,
no one has entered appearance on her behalf to oppose the appeals.
3. The appellants in these cases are seeking setting aside
of the judgment of conviction dated 27.11.2024 (hereinafter
referred to as ‘impugned judgment’) and the order of sentence
dated 02.12.2024 ( hereinafter referred to as ‘impugned order’),
passed by the learned Additional District and Sessions Judge-cum-
Special Judge, SC/ST Act, Samastipur (hereinafter referred to as
the ‘learned trial court’) in T.R. No.978/2024 (Reg No.1416/2019)
+ T.R. No.1091/2024 ( Reg. No.87/2019), arising out of Mahila
P.S. Case No. 46 of 2019, under Section 376D of Indian Penal
Code (in short ‘IPC’).
4. By the impugned judgment, the learned trial court has
been pleased to convict the appellants for the offences under
Section 376D of IPC. Having convicted the appellants under this
provision, the learned trial Court has sentenced the appellants to
undergo rigorous imprisonment for 20 years and to pay a total fine
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of Rs. 1,25,000/- (which comes out to be Rs.25,000/- per convict)
for the offence under Section 376-D of IPC. In default of payment
of fine, the appellants shall undergo simple imprisonment for six
months.
Prosecution story
5. The prosecution case is that on 09.07.2019, the
informant (victim), who was a resident of village-Mangalgarh, was
going alone to meet her Nanad in village-Ghardas and on the way
about 12:00 Noon, accused Ajay Yadav @ Jhulwa forcibly took
her to a Litchi Semal orchard of Ramchandra Pandit, where the
accused persons, namely Luv Kumar @ Chhotu, Amit Kumar @
Santji, Tuntun Sah, Chhotu Prasad Singh and Sonu Kumar Singh
were present from before and one by one all of them committed
rape upon the informant, also prepared a video and made the video
viral. Thereafter, the informant gave this information to her
husband who resided outside and after the husband of the
informant came on 22.07.2019, then the informant along with her
husband went to Mahila P.S. and lodged this FIR against all the
accused persons.
6. On the basis of written complaint of the informant
(victim), Mahila P.S. Case No.46/2019 dated 22.07.2019 was
registered for the offence punishable Section 376(D) of the IPC,
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Sections 67, 67(A) of Information Technology Act, 2000
(hereinafter referred to as ‘I.T. Act’) and Section 3(2)(v) of the the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (hereinafter referred to as ‘SC/ST Act’) against the
appellants, namely Ajay Yadav @ Jhulwa, Love Kumar @
Chhotu, Amit Kumar @ Sant Jee, Tuntun Sah, Sonu Kumar Singh
and Chhotu Prasad Singh (not appellant herein).
7. After investigation charge-sheet bearing Chargesheet
No. 52 of 2019 dated 30.09.2019, against accused persons,
namely, Luv Kumar @ Chhotu, Amit Kumar @ Sanjit and Tuntun
Sah was filed keeping investigation pending against others.
Thereafter, learned Trial Court took cognizance for the offence
under Section 376(D) of the IPC, Section 67 of IT Act and Section
3(2)(v) of the SC/ST Act. The charges were explained to the
appellants, namely Luv Kumar @ Chhotu, Amit Kumar @ Sanjit
and Tuntun Sah in Hindi which they denied and claimed to be
tried. Thereafter, the learned trial court framed the charges under
Section 376(2)(G) of IPC, 67 of I.T. Act and Section 3(2)(v) of the
SC/ST Act vide order dated 03.01.2020.
8. A plea of juvenility was taken on behalf of accused
Chhotu Prasad Singh @ Gaurav Prasad Singh on which vide order
dated 10.02.2020, learned trial court sent the records of the FIR
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named accused Chhotu Prasad Singh @ Gaurav Prasad Singh to
the Juvenile Justice Board, Samastipur for further proceeding.
9. A supplementary charge-sheet bearing no.28 of 2020
dated 31.03.2020 against the accused persons, namely Ajay Yadav
@ Jhulwa, Sonu Kumar Singh and Chhotu Prasad Singh was filed
upon which learned trial court, vide order dated 06.05.2020 took
cognizance for the offence under Sections 67 of I.T. Act, Section
376(D) of IPC and Section 3(2)(v) of the SC/ST Act. After
securing attendance of the accused, namely Ajay Yadav @ Jhulwa,
Sonu Kumar Singh, the charges were explained to them in Hindi to
which they denied and claimed to be tried. Thereafter, the learned
trial court framed the charges under Section 376D of IPC, 67 of
I.T. Act and Section 3(2)(v) of the SC/ST Act.
10. In course of trial of accused appellants the
prosecution has examined three witnesses and exhibited some
documents which are in table form hereinbelow:
List of Prosecution Witnesses
PW-1 Informant
PW-2 Nilima Kumari (I.O.)
PW-3 Dr. Kranti Kumari
List of Exhibits:-
Exhibit Endorsement of S.H.O. Mahila P.S. Case on
‘P1/PW-2’ the FIR of Mahila P.S. Case No.46/2019
Exhibit Signature of S.H.O. on formal FIR of Mahila
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‘P2/PW-2’ P.S. Case No.46/2019
Exhibit Requisition for conducting medical
‘P3/PW-2’ examination of victim
Exhibit Medial examination report of the victim
‘P4/PW-3’
Exhibit ‘P5’ Statement u/s 164 Cr.P.C. of the victim
11. Thereafter, the statement of the accused persons was
recorded under Section 313 Cr.P.C. in which they took a plea that
they are innocent and have been falsely implicated under village
politics. Appellant Amit Kumar took a plea that he was working at
the motorcycle stand in Delhi. Appellant Sonu Kumar Singh took a
plea that on the date of occurrence, he had gone to Khagaria with
other villagers from where he had gone to Deoghar. He stated that
his co-villager has falsely implicated him in this case due to
previous dispute.
12 The defence did not adduce any oral or documentary
evidence.
Findings of the learned Trial Court
13. Learned Trial court after examining the evidences on
record found that the victim/informant has supported her case that
when she was going to her nanad's house then the accused, Ajay
Yadav forcibly made her to sit in his car and took her to Semal
orchard, where all accused persons committed gang rape with her
and made a video of the said act and also made the said video viral
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on facebook. Learned trial court found that the informant/victim
remained intact in her evidence and in her statement under Section
164 of the Cr.P.C. and thereby proved the date and time of
occurrence and also established the place of occurrence.
14. Learned trial court opined that since the victim is a
married woman, no marks of violence was found on her private
part. Learned trial court found that the informant/victim stated in
her deposition that the accused persons committed rape on her one
by one forcefully without her consent which establishes that all the
accused persons facing trial constituted a group, acting in
furtherance of common intention and committed gang rape.
Accordingly, learned trial court opined that the prosecution has
successfully established its case beyond all reasonable doubts that
the accused persons committed gang rape on the victim.
Accordingly, held the appellants guilty under Section 376-D of the
IPC.
Submission on behalf of appellants
15. Learned counsel for the appellants while assailing
the impugned judgment and order submits that the learned trial
court committed grave error in convicting the appellants without
properly appreciating the evidences available on the record.
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16. Learned counsel submits that the occurrence took
place on 09.07.2019 and the FIR was lodged on 22.07.2019,
hence, there is an inordinate delay of thirteen days in lodging of
the FIR which remains unexplained with cogent reasons by the
prosecution.
17. Learned counsel for the appellants submits that the
prosecutrix did not identify any of the accused persons, who were
present in the court rather said that she had not seen them earlier
and further, she said that she had no physical relationship with
anybody else expect her husband. Learned counsel for the
appellants submits that these statements of the prosecutrix has
damaged the whole prosecution case and created a huge doubt
over the prosecution story. Hence, the prosecutrix (PW-1) cannot
be put in the category of a sterling witness.
18. Learned counsel for the appellants submits that in
this case, the husband of the prosecutrix has not come to the Court,
even as he is one of the charge-sheet witnesses and he could have
been a material witness as to certain circumstances before and
after the occurrence but has been withheld by the prosecution
without any explanation.
19. Learned counsel for the appellants submits that the
Doctor (PW-3) has clearly opined in her medical examination
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report that it cannot be decided whether rape has been committed
or not. The Doctor has not found any mark of violence either over
the private part or other parts of the body of the victim.
20. Learned counsel for the appellants submits that
conviction of the appellants based on the sole testimony of the
prosecutrix in this case, who doesn’t fall in the category of a
sterling witness is not safe. Learned counsel submits that the
presumption of innocence in this case is not lost only because of
the allegation of commission of rape by the prosecutrix. A wholly
unreliable evidence of the prosecutrix cannot lay down even the
foundational facts and hence, for all these reasons, impugned
judgment of conviction and order of sentence are liable to be set
aside.
Submission on behalf of State
21. Learned Additional Public Prosecutor for the State
has opposed the appeals. Learned Additional Public Prosecutor for
the State submits that evidence of the informant (PW-1) is
consistent and there is no reason to disbelieve her testimony.
Learned Additional Public Prosecutor submits that the learned trial
court has rightly convicted the appellants by carefully considering
the evidences available on the record.
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Consideration
22. We have heard learned counsel for the appellants and
learned Additional Public Prosecutors for the State in all these
appeals as also perused the trial court records. It is evident from
the records that in the present case, the police submitted first
charge-sheet against the accused, namely Luv Kumar @ Chhotu,
Amit Kumar Khan @ Santiji and Tuntun Shah, vide charge-sheet
No. 52 of 2019 dated 30.09.2019. The learned Special judge took
cognizance of the offences on 18.10.2019 and explained the
charges to the three accused persons on 03.01.2020. They denied
the charges and claimed to be tried, whereafter T.R. no. 1123 of
2020 was registered. On 14.01.2020, the prosecutrix (PW-1) was
examined in presence of three accused only.
23. It is a matter of record that subsequently on
31.03.2020, a supplementary charge sheet bearing No. 28 of 2020,
dated 31.03.2020 was filed against three accused, namely, Ajay
Yadav @ Jhulwa, Sonu Kumar Singh and Chhotu Prasad Singh @
Gaurav Prasad Singh. At this stage, the case of Chhotu @ Gaurav
Pd. Singh was separated and his records were sent to the Juvenile
Justice Board. The original Trial No. 1123 of 2020 was later on
renumbered as Trial No. 978 of 2024. Against Ajay Yadav @
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Jhulwa and Tuntun Shah, charges were framed on 28.03.2022 and
Trial No. 1216 of 2022 was registered, which was later on
renumbered as Trial No. 1091 of 2024. The prosecutrix (PW-1)
was again examined in this trial on 02.08.2022. She was cross-
examined on behalf of accused Ajay Yadav and Sonu Kumar
Singh. The record would show that the other two witnesses,
namely Nilima Kumari (PW-2), who is the Investigating Officer of
the case and the Dr. Kranti Kumari (PW-3), were examined on the
same date in both the trials. In fact, their depositions in both the
trials are verbatimly the same and one. It has only changed with
respect to the trial number in the deposition form.
24. We have noticed that the accused persons, who were
facing the charges in the two trials, were examined under Section
313 Cr.P.C and, thereafter, the defence did not adduce any
evidence, hence, the records were kept for hearing. At this stage of
hearing, the defence moved an application for amalgamation of
both the trials, which was not objected to by the prosecution. The
learned trial court has vide order dated 27.09.2024 allowed the
prayer after recording that both the records are pending for
hearing.
25. On going through the written (typed) information
furnished by the prosecutrix (PW-1), it would appear that there is a
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thumb impression and the said thumb impression has been circled
and besides that it is recorded; सही ननशान रीता दे वी; but who had
written it and who identified the thumb impression of the
prosecutrix (PW-1), is not mentioned. In the written information, it
is not mentioned that who has typed the application, addressed to
the Station House Officer, Mahila Thana, Samastipur. The
prosecutrix has stated in the application that she had come to the
Mahila Thana with her husband and was submitting the
application for legal action against the culprits, but her husband
has not witnessed the thumb impression of the prosecutrix (PW-1).
26. This Court finds that the occurrence is said to have
taken place on 09.07.2019 at about 12:00 Noon, when Ajay Yadav
@ Jhulwa, a resident of village-Mangalgarh, forcibly took her to
the orchard of Ramchandra Pandit, where it is alleged that five
boys, who are the other accused in this case, were already present.
As per the written information, all the accused persons took their
turn one after another and also prepared the video and made it
viral. Here, it is important to note that even as the charges were
framed under Section 67 of the I.T. Act, the learned trial court has
held that the said charge could not be proved by the prosecution
and for that reason, the accused persons have been acquitted of the
charge under Section 67 of the IT Act. Charge under Section 3(2)
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(v) of the SC/ST Act, has also not been proved and therefore, the
accused have been acquitted of this charge also. It is evident that in
course of investigation, no video showing the commission of rape
on the victim by these appellants could be found by the
Investigating Officer, therefore, in absence of evidence on the
record, the trial court has acquitted all the accused persons from
the charge under the IT Act.
27. Coming to the deposition of the prosecutrix in the
first trial, this court finds that in her examination-in-chief, the
prosecutrix has come out with some improvements as regards the
manner of occurrence. In examination-in-chief, she states that Ajay
Yadav of Devdha asked her as to where she was going, then she
informed him that she was going in emergency to her nanad and
that two boys were after her, whereafter he asked as to why those
boys were after her and offered to take her to destination, then the
prosecutrix refused to go, but she was forcibly made to sit in a car
and was taken to a Semal orchard where five boys were already
sitting and thereafter they committed rape on her. She has stated
that she had informed her family (gharwala). She claimed that her
husband lives outside (pradesh me). She has stated that her
husband came whereafter she gave information to the police
station and the case was registered on which she had put her thumb
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impression. We have noticed that in course of cross-examination,
the prosecutrix has stated that her husband lives in Delhi and she
has further stated that her husband and her son both live outside.
She has further stated that on that day she was alone. She claimed
that she was not keeping any phone and the phone call of nanad
had come on the mobile of the gothni. This Court has noticed that
PW-1 could not say the mobile number from which the call had
come and the mobile number on which the call had come. She
could not say the date on which telephone call of her nanad had
come. She has stated that ‘Devdha’ village is at a far distance place
and she had no occasion earlier to visit Devdha or Sakardiha. She
has stated that on the date of occurrence, she did not go to
Ghardaha and returned Mangalgarh from Sakardiha and in course
of going and coming back, she had not met anyone. She had
reached her home at 7:00 p.m. that day. In paragraph no.24 of her
deposition, PW-1 has stated that her husband lives outside, she had
no mobile and her husband has a mobile but she did not know his
number.
28. It is important to take note of the statement of the
prosecutrix (P.W.1) in paragraphs-25, 26, 27, 28, 29, 30 and 31 of
her evidence. To this Court, it appears that these paragraphs of the
cross-examination of PW-1 would completely take away the
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prosecution case as by no stretch of imagination, the prosecutrix
(PW-1) can be put in the category of even partly reliable witness.
She has stated in paragraph- 25 that on the date of occurrence
itself, she had got informed her husband about the occurrence and
her husband had reached next day of the occurrence, then after two
days of the occurrence, she went to the Mahila Police Station,
where her statement was taken and her statement was recorded by
the police in the Thana itself which was read over to her and on the
said written information, she had put her thumb impression and on
the said application, her husband had also put his signature as a
witness. This Court finds that the occurrence is of 09.07.2019,
whereas the typed copy of the written information was submitted
in the police station on 22.07.2019 i.e., after 13 days of the
occurrence. This written information is not a recorded statement in
form of fardbeyan of the informant. Further, this Court finds that
there is no signature of the husband of the prosecutrix on the typed
copy of the written information. Thus, it is evident that the
prosecution has suppressed the first version of the prosecution case
and the written application, which forms basis of the present FIR is
a belatedly introduced application and that would take away the
very credence of the prosecution case. The Hon’ble Supreme
Court has time and again considered the effect of inordinate delay
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in lodgment of the case, particularly, in the serious and heinous
offence. We rely upon the judgments of the Hon’ble Supreme
Court in the case of Meharaj Singh (L/Nk.) versus State of U.P.,
reported in (1994) 5 SCC 188 and in the case of Chotkau vs.
State of UP, reported in (2023) 6 SCC 742. Paragraph ‘12’ of the
judgment of Meharaj (supra) reads as under:-
“12. FIR in a criminal case and particularly in a murder case
is a vital and valuable piece of evidence for the purpose of
appreciating the evidence led at the trial. The object of
insisting upon prompt lodging of the FIR is to obtain the
earliest information regarding the circumstance in which the
crime was committed, including the names of the actual
culprits and the parts played by them, the weapons, if any,
used, as also the names of the eyewitnesses, if any. Delay in
lodging the FIR often results in embellishment, which is a
creature of an afterthought. On account of delay, the FIR not
only gets bereft of the advantage of spontaneity, danger also
creeps in of the introduction of a coloured version or
exaggerated story. With a view to determine whether the
FIR was lodged at the time it is alleged to have been
recorded, the courts generally look for certain external
checks. One of the checks is the receipt of the copy of the
FIR, called a special report in a murder case, by the local
Magistrate. If this report is received by the Magistrate late it
can give rise to an inference that the FIR was not lodged at
the time it is alleged to have been recorded, unless, of
course the prosecution can offer a satisfactory explanation
for the delay in despatching or receipt of the copy of the FIR
by the local Magistrate. Prosecution has led no evidence at
all in this behalf. The second external check equally
important is the sending of the copy of the FIR along with
the dead body and its reference in the inquest report. Even
though the inquest report, prepared under Section 174 CrPC,
is aimed at serving a statutory function, to lend credence to
the prosecution case, the details of the FIR and the gist of
statements recorded during inquest proceedings get reflected
in the report. The absence of those details is indicative of the
fact that the prosecution story was still in an embryo state
and had not been given any shape and that the FIR came to
be recorded later on after due deliberations and
consultations and was then ante-timed to give it the colour
of a promptly lodged FIR. In our opinion, on account of the
infirmities as noticed above, the FIR has lost its value and
authenticity and it appears to us that the same has been ante-
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timed and had not been recorded till the inquest proceedings
were over at the spot by PW 8.”
29. In paragraph-28 of her deposition, PW-1 has refused
to identify the accused persons and she has stated that she was
seeing the accused persons for the first time in the court, prior to
this she had not seen them. Further, she has stated in paragraph-29
that her physical relationship was not made with any other person
except than that of her husband. In paragraph-30 she has stated
that the application on the basis of which case has been lodged,
was not got written by her rather her husband had got the same
written and on that basis the case was registered. When the
application was being written, she was sitting beside him and after
that she was called to put her thumb impression.
30. To this Court, it is evident that the prosecutrix
having failed to identify the accused persons, who were present in
the Court, saying that she had not seen them earlier and further, by
saying that she had no physical relationship with anybody else
expect her husband, has only damaged the whole prosecution case
and has created a huge doubt over the prosecution story. It is
difficult to understand that at 12:00 Noon in the day hours she was
subjected to rape by these accused persons, whose names she has
disclosed in the written typed information submitted before police,
but she has not identified them in the dock. In our considered
Patna High Court CR. APP (DB) No.104 of 2025 dt.19-03-2026
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opinion, the prosecutrix (PW-1) is not a sterling witness in this
case and conviction based on her sole testimony would not be safe.
31. We have once again examined the evidence of PW-1
in Sessions Trial No. 1216 of 2022 (T.R. No. 1091 of 2024). In her
deposition, PW-1 has stated that her husband was living in
Guwahati but on the date of occurrence he was in Muzaffarpur.
She has also stated that her first statement was made before police
after two months of the occurrence and the case was registered on
the basis of the said statement. She has stated that she had given a
call to her husband when she reached Devdha Chowk, where there
was no one of the village and there was no shopkeeper. She has
stated that she came to Samastipur Mahila Police Station with her
husband and got an application typed in the police station through
Computer Typist, her husband had got written the application and
she had put her thumb impression thereon. From paragraph-9 of
her deposition, it appears that her husband had submitted the
written application taking the same to the Mahila Police Station.
Her husband had informed her that what were recorded in the
application. She has further stated that she had deposed only those
things which were told by her husband in the application. This
Court, therefore, finds that PW-1, though, claimed that her
husband is in Guwahati but she admits that on the date of
Patna High Court CR. APP (DB) No.104 of 2025 dt.19-03-2026
20/22
occurrence, he was in Muzaffarpur and she has stated that he had
come back at 9:00 A.M. whereafter, she had gone to the police
station but the present FIR was lodged after thirteen days of the
occurrence. We further fail to understand as to how the prosecutrix
could make a phone call to her husband when it is her own
statement that she didn’t have a mobile and she did not remember
the mobile number of her husband.
32. This Court finds that in this case, the husband of the
prosecutrix has not come to the Court, even as he is one of the
charge-sheet witnesses. He could have been a material witness as
to certain circumstances but has been withheld by the prosecution
without any explanation.
33. This Court further finds that the I.O. (PW-2) has
stated in her evidence that she has not made the nazari-naksha of
the place of occurrence and had not recorded as to the distance at
which any village or house is situated from the place of
occurrence. She had not recorded the statement of anybody else
except the statement of the husband of the victim. She had not
recorded the statement of the doctor, who had examined the victim
and she had not examined the CDR or Mobile Tower location of
the accused persons.
Patna High Court CR. APP (DB) No.104 of 2025 dt.19-03-2026
21/22
34. The Doctor (PW-3) had examined the victim and she
has proved the medical examination in Court which has been
marked Exhibit –P4/PW-3. The doctor has clearly opined that on
the basis of the physical and investigation report it cannot be
decided whether rape has been committed or not. She has not
found any mark of violence either over private part or other part of
the body.
35. Having regard to the entire evidences available on
the record, we are of the considered opinion that the learned Trial
Court has grossly erred in appreciation of the evidences available
on record. Conviction of the appellants based on the sole
testimony of the prosecutrix in this case, who doesn’t fall in the
category of a sterling witness, would be highly unsafe. The
presumption of innocence in this case is not lost only because of
the allegation of commission of rape by the prosecutrix. A wholly
unreliable evidence of the prosecutrix cannot lay down even the
foundational facts and we are of the considered opinion that for all
these reasons, impugned judgment of conviction and order of
sentence are liable to be set aside. Those are accordingly set aside.
36. The appellants, namely, Luv Kumar @ Chhotu,
Tuntun Sah, Ajay Kumar Yadav @ Ajay Yadav @ Jhulwa, Sonu
Patna High Court CR. APP (DB) No.104 of 2025 dt.19-03-2026
22/22
Singh @ Sonu Kumar Singh and Amit Kumar @ Santji @ Amit
Kumar Khan are acquitted of the charges.
37. Since the appellants have been acquitted, we direct
that the appellants shall be released forthwith if not wanted in any
other case.
38. These appeals are allowed.
39. Let a copy of this judgment along with trial court’s
record be sent down to learned trial court.
(Rajeev Ranjan Prasad, J)
( Soni Shrivastava, J)
harsh/anand/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 30.03.2026
Transmission Date 30.03.2026
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