Patna High Court
MANU KUMAR @ MONU KUMAR @ MANNU KUMARversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
Holding
The appeal is allowed; the conviction under Section 376D IPC and Sections 4 and 6 POCSO is set aside and the appellant is acquitted.
Summary
Manu Kumar was convicted by a Special POCSO Court for rape under Section 376D IPC and Sections 4 and 6 of the POCSO Act based solely on the victim’s testimony. On appeal, the Patna High Court examined the victim’s age, noting that she declared herself 18 years old and a medical opinion placed her between 16‑17, but applying the Supreme Court’s margin‑of‑error principle the court deemed her age to be 18‑19, thus not a ‘child’ under POCSO. The court also found the victim’s statements inconsistent, noting she had not disclosed the rape before the Juvenile Justice Board and had claimed a compromise, rendering her not a sterling witness. Moreover, the medical and forensic evidence did not link the appellant to the alleged sexual act. Consequently, the court held that the prosecution failed to prove the offences and set aside the conviction, acquitting the appellant. The appeal was allowed and the appellant was ordered to be released.
Issues considered
- Whether the victim’s testimony alone is sufficient to convict under Section 376D IPC and POCSO Act provisions.
- Whether the victim qualifies as a child under Section 2(12) of the Juvenile Justice (Care and Protection of Children) Act, 2015 for the purposes of POCSO.
- Whether the lack of forensic linkage and the victim’s inconsistent statements preclude a conviction.
- Whether the appellant is entitled to benefit of doubt and acquittal.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 164, 313
- Indian Penal Code — s. 376D
- Information Technology Act, 2000 — s. 67(A), 67(C)
- Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 2(12)
- Protection of Children from Sexual Offences Act, 2012 — s. 4, 6
Subjects
- POCSO
- rape
- age of victim
- child sexual offence
- sterling witness
- acquittal
- IPC 376D
- evidentiary standards
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.200 of 2023
Arising Out of PS. Case No.-298 Year-2020 Thana- MADHAURAH District- Saran
======================================================
Manu Kumar @ Monu Kumar @ Mannu Kumar, S/o Surendra Raut, R/o
village- Bikrampur, P.S.- Marhowrah, Distt- Saran.
... ... Appellant
Versus
1. The State of Bihar
2. Ms. X D/O Idrish Miyan R/O Vill.- Karnpura, P.S.- Madhaurah, Dist.- Saran.
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Rajendra Narain, Sr. Advocate
Dr. Rajesh Kumar Singh, Advocate
Mr. Kanaya Kumar, Advocate
For the State : Mr. Binod Bihari Singh, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE PRAVEEN KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 10-02-2026
Heard learned Senior Counsel for the appellant and
learned Additional Public Prosecutor for the State.
2. Notice has been issued to respondent no.2 but in spite
of valid service of notice, respondent no. 2 has chosen not to
appear in this case.
3. This appeal has been preferred for setting aside the
judgment of conviction dated 05.09.2022 (hereinafter referred to
as the ‘impugned judgment’) and the order of sentence dated
12.09.2022 (hereinafter referred to as the ‘impugned order’)
passed by learned Additional Sessions Judge-VI-cum-Exclusive
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Special Judge, POCSO Act, Saran at Chapra (hereinafter referred
to as the ‘learned trial court’) in ST POCSO No. 21 of 2021 arising
out of Marhowrah P.S. Case No. 298 of 2020. By the impugned
judgment, the appellant has been convicted for the offences
punishable under Section 376 D of the Indian Penal Code (in short
‘IPC’) and Section 4 and 6 of the Protection of Children from
Sexual Offences Act (in short ‘POCSO Act’) and has been
sentenced to undergo ten years rigorous imprisonment with a fine
of Rs.10,000/- under Section 4 of the POCSO Act and in default of
payment of fine, he has to further undergo six months simple
imprisonment. He has also been ordered to undergo twenty years
rigorous imprisonment with a fine of Rs.10,000/- under Section 6
of the POCSO Act and in default of payment of fine, he has to
further undergo six months simple imprisonment. Both the
sentences are to run concurrently.
Prosecution Case
4. The prosecution case is based on the fardbeyan of the
informant/victim (PW-4). In her fardbeyan, she has alleged that on
12.04.2020 at about 07:00 PM, when she had gone out to attend
the nature’s call in the field then Dhuman Kumar, Manu Kumar
(the appellant) and Pankaj Kumar caught hold of her, tied her
mouth with dupatta, thereaftere, Manu and Pankaj tore her clothes
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and raped her one by one. She has alleged that she somehow
managed to escape and went home. She did not tell about this
occurrence to anyone due to social stigma and fear of the accused
persons. It is further alleged that on 13.04.2020 Manu and Pankaj
had beaten her by a danda near a mango orchard in front of
Karnpura School and asked her not to tell about this to anyone.
The villagers were also present there. On 14.04.2020 at about
10:00 AM her neighbour Javed Bhai told her elder sister that a
video of her sister (victim) is viral on the net. Thereafter, the
victim told her sister about the incident. She stated that all the
accused persons were from Vikrampur village adjacent to her
village.
5. On the basis of this fardbeyan, FIR being Marhowrah
P.S. Case No. 298 of 2020 dated 15.04.2020 was registered under
Section 376D IPC and Section 67(A)(C) of the Information
Technology Act, 2008 (in short ‘IT Act’) against (1) Dhuman
Kumar, (2) Manu Kumar (this appellant) and (3) Pankaj Kumar.
After investigation, police submitted chargesheet bearing
Chargesheet No. 378 of 2020 dated 02.07.2020 under Section
376D and Sections 4/6 of the POCSO Act against three FIR named
accused. Learned trial court vide order dated 08.12.2020 took
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cognizance of the offences punishable under above-mentioned
Sections against three FIR named accused.
6. Charges were read over and explained to the accused
persons to which they denied and claimed to be tried, accordingly,
vide order dated 16.12.2020, charges were framed under Section
376D IPC and Sections 4/6 of the POCSO Act against three
accused, namely, Dhuman Kumar @ Praduman, (2) Manu Kumar
@ Monu Kumar (appellant) and (3) Pankaj Kumar. On the plea of
juvenility taken by the accused, namely, Dhuman Kumar @
Praduman and Pankaj, learned trial court sent the records of
Dhuman Kumar @ Praduman and Pankaj to Juvenile Justice
Board, Saran vide order dated 25.01.2021 and 10.03.2021
respectively for age assessment.
7. In course of trial, the prosecution has examined
altogether nine witnesses and exhibited several documentary
evidences. The description of the prosecution witnesses and the
exhibits are given hereunder in tabular form:-
List of Prosecution witnesses
PW-1 Elder sister of the victim
PW-2 Ajay Tiwary
PW-3 Anil Kumar Tiwary
PW-4 X (Victim/Informant)
PW-5 Meera Devi
PW-6 Lakshman Kumar Yadav
PW-7 Sunil Kumar Singh
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PW-8 Dr. Kiran Ojha
PW-9 Hemlata Kumari
List of Exhibits on behalf of Prosecution
Exhibit ‘P-1/PW4’ Signature of PW-4 on fardbeyan.
Exhibit ‘P-2/PW-4’ Signature of PW-1 on fardbeyan.
Exhibit ‘P-3/PW-4’ Signature of PW-1 on seizure list.
Exhibit ‘P-4/PW-4 Signature of PW-4 on the statement
recorded under Section 164 CrP.C.
Exhibit P-5/PW-8 Medical Report
Exhibit P-6/PW-9 Signature of SHO on Formal FIR
Exhibit P-7/PW-9 Signature of SHO on Fardbeyan
Exhibit P-8/PW-9 FSL Report
Exhibit P- Contents of the statement under section
9/Prosecution 164 CrPC
8. Thereafter, the statement of the appellant was
recorded under Section 313 of the Code of Criminal Procedure (in
short ‘CrPC’). He took a plea that he is innocent.
The defence has not adduced any oral or any documentary
evidence.
Findings of the Learned Trial Court
9. Learned trial court after analysing the evidences
available on the record found that the victim’s testimony is clear,
cogent and unwavering insofar as it concerns with the allegation
against the appellant. Learned trial court found that the victim is
consistent in her evidence right from the very beginning and even
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in her cross-examination, she has supported the case of the
prosecution and there is nothing in cross-examination of the victim
to discard her evidence or brand it as unbelievable or
untrustworthy.
10. Learned trial court observed that the argument of the
defence as to the fact that all the independent witnesses turned
hostile and have not supported the prosecution case do not deserve
attention for the reason that the law is well settled that the
deposition of the victim alone is sufficient for holding the guilt of
the accused.
11. Learned trial court after considering all the facts and
circumstances of the case and placing reliance on the evidence of
victim (PW-4), her 164 CrPC statement, medical evidence
(Exhibit ‘5’) and FSL Report (Exhibit ‘P/8’) held the appellant
guilty of the offences punishable under Section 376D IPC and
Sections 4/6 of the POCSO Act.
Submissions on behalf of the Appellant
12. Learned senior counsel for the appellant submits that
the victim herself has declared her age 18 years in her fardbeyan
and has not brought on record any date of birth certificate of the
school or the matriculation certificate. It is also submitted that the
doctor has in her opinion stated the age of the victim 16-17 years.
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13. Learned senior counsel submits that the victim in her
164 CrPC statement has alleged that all the three accused persons
had committed rape on her, however, she did not make statement
before the Juvenile Justice Board about the commission of rape
and when she came to depose in course of trial, she made a
statement that she had entered into a compromise with Pankaj
Kumar and Dhuman Kumar. Hence, the victim cannot be put in the
category of a sterling witness.
14. Learned senior counsel submits that though the
Doctor found that sexual act has been committed with the victim
and the FSL report shows finding of presence of blood on the
panty (Exhibit ‘1/A’) and white dupatta (Exhibit ‘1/B’) of the
victim but neither the blood samples of the victim were taken nor
that of the accused. Learned senior counsel further submits that the
semen of the three accused were taken but no semen has been
found at Exhibits marked ‘1/A’ and ‘1/B’. It is submitted that
Exhibit ‘1/C’ is the pink purple colour salwar of the victim on
which no blood or semen could be found.
Submissions on behalf of the State
15. Learned Additional Public Prosecutor for the State
has defended the impugned judgment and order of the learned trial
court. It is submitted that the victim’s statement fully corroborates
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the prosecution case and further the defence has failed to bring any
contradiction. It is submitted that the defence has not raised any
ground for false accusation. It is submitted that in the present case,
the deposition of the victim alone is sufficient for holding the guilt
of the appellant.
Consideration
16. Having heard learned Senior Counsel for the
appellant and learned Additional Public Prosecutor for the State as
also on perusal of the records, this Court finds that the whole
prosecution case rests upon the testimony of the
victim/prosecutrix. In her fardbeyan recorded on 15.04.2020 at
11:00 AM at Madhawra P.S., Saran, the victim has declared her
age as 18 years. She claimed that on 12.04.2020 at about 07:00
PM when she had gone outside her house to ease out/ defecate
then three accused, namely, (1) Dhuman Kumar aged 19 years, (2)
Manu Kumar aged 19 years son of late Mahesh Shah and (3)
Pankaj Kumar aged 19 years tied her mouth by dupatta and then
Manu Kumar and Pankaj Kumar tore her sameej and thereafter,
Dhuman Kumar committed rape on her. Thereafter, Manu Kumar
and Pankaj Kumar took their turn one after another and committed
rape upon her. She somehow got herself set at free and reached her
house covering her face with dupatta. She has stated that on the
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next day i.e. 13.04.2020, Manu Kumar and Pankaj Kumar had
beaten her by a danda near a mango orchard in front of Karnpura
School and told her that she would not disclose the occurrence to
anyone. She has stated that at the said place, villagers were also
present. On 14.04.2020 at 10:00 AM, her neighbour Javed bhai
had told the occurrence to her elder sister that her sister’s (X)
video has been made viral on the net whereafter, the informant
disclosed the occurrence to her sister. She made her fardbeyan on
15.04.2020.
17. In her 164 CrPC statement recorded on 16 th April,
2020, her age was assessed by the learned Magistrate as 17-18
years, however, she declared her age as 18 years which is recorded
by the learned Magistrate. In her 164 CrPC statement, she alleged
that all the three accused persons had committed rape on her,
however, when she came to depose in course of trial, she made a
statement that she had entered into a compromise with Pankaj
Kumar and Dhuman Kumar. She has further stated that Praduman
@ Dhuman Kumar had committed rape on her for one hour and
thereafter, he had tied her dupatta on her eyes, therefore, who
committed rape with her for how much time cannot be said. She
has stated that she did not know that when was she admitted in a
school but she remembered that in the year 2010, she was studying
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in class V. We find that in this case, prosecutrix (PW-4) has
admitted in paragraph ‘16’ of her deposition that in the Juvenile
Justice Board, she had not stated about commission of rape.
18. From the evidence of the prosecutrix itself it is
crystal clear that she has always maintained her age being 18
years. The prosecutrix has not brought on record any date of birth
certificate or the matriculation certificate.
19. Dr. Kiran Ojha (PW-8) who had examined the victim
was posted as Medical Officer at Sadar Hospital on 15.04.2020 has
stated in her opinion that the victim was between 16-17 years. In
view of the aforesaid material on the record, when we apply the
settled position in law keeping in view the judgment of the
Hon’ble Supreme Court in the case of Rajak Mohammad vs.
State of H.P. reported in (2018) 9 SCC 248 and the judgment of
the Hon’ble Delhi High Court in the case of Court on its own
Motion vs. State (NCT of Delhi) (Crl. Ref. 2/2024) reported in
2024 SC OnLine Delhi 4484 which this Court has followed in
several cases, the upper extremity of the age of the victim by
adding +2 years would be between 18-19 years. The learned trial
court has clearly erred in the matter of determination of age of the
victim. In our considered opinion the charges under Sections 4 and
6 of the POCSO Act would not sustain because the victim would
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not come within the meaning of the word “child” under Sub-
Section (12) of Section 2 of the Juvenile Justice (Care and
Protection of Children) Act, 2015.
20. The relevant paragraph nos. 8, 9 and 10 of the
judgment of the Hon’ble Supreme Court in the case of Rajak
Mohammad (supra) are quoted hereunder for a ready reference:-
“8. On the other hand, we have on record the
evidence of Dr Neelam Gupta (PW 8), a Radiologist
working in the Civil Hospital, Nalagarh who had
given an opinion that the age of the prosecutrix was
between 17 to 18 years.
9. While it is correct that the age determined on the
basis of a radiological examination may not be an
accurate determination and sufficient margin either
way has to be allowed, yet the totality of the facts
stated above read with the report of the radiological
examination leaves room for ample doubt with
regard to the correct age of the prosecutrix. The
benefit of the aforesaid doubt, naturally, must go in
favour of the accused.
10. We will, therefore, have to hold that in the
present case the prosecution has not succeeded in
proving that the prosecutrix was a minor on the date
of the alleged occurrence. If that is so, based on the
evidence on record, already referred to, we will
further have to hold that the possibility of the
prosecutrix being a consenting party cannot be
altogether ruled out.”
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Similarly, we quote paragraph ‘46’ of the judgment of the
Hon’ble Delhi High Court in the case of Court on its own Motion
(supra):-
“46. As an upshot of our foregoing discussion, the
Reference is answered as under:-
(i) Whether in POCSO cases, the Court is required
to consider the lower side of the age estimation
report, or the upper side of the age estimation report
of a victim in cases where the age of the victim is
proved through bone age ossification test?
Ans: In such cases of sexual assault, wherever, the
court is called upon to determine the age of victim
based on ‘bone age ossification report’, the upper
age given in ‘reference range’ be considered as age of
the victim. (ii) Whether the principle of ‘margin of
error’ is to be applicable or not in cases under the
POCSO Act where the age of a victim is to be proved
through bone age ossification test.
Ans: Yes. The margin of error of two years is further
required to be applied.”
21. We have further noticed that in this case, the solitary
witness is the victim herself but she cannot be put in the category
of a sterling witness. In course of trial, she has clearly stated that
before the Juvenile Justice Board, she had not stated about the
commission of rape. This Court finds that she had compromised
the matter with the two accused persons one of whom had
committed rape on her for one hour but before the Juvenile Justice
Board, she did not speak about commission of rape on her.
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Therefore, she is speaking one thing in one forum and another
thing before another forum. Who will be called a sterling witness
has been observed by the Hon’ble Supreme Court in the case of
Rai Sandeep @ Deepu vs. State (NCT of Delhi) reported in
(2012) 8 SCC 21. Paragraph ‘22’ of the said judgment is being
quoted hereunder for a ready reference:-
“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 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
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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.”
22. We have also noticed from the medical examination
report proved by the Doctor that though the Doctor found that
sexual act has been committed with the victim and the FSL report
shows finding of presence of blood on the panty (Exhibit ‘1/A’) and
white dupatta (Exhibit ‘1/B’) of the victim but neither the blood
samples of the victim were taken nor that of the accused. The
semen of the three accused were taken but no semen has been
found at Exhibits marked ‘1/A’ and ‘1/B’. Exhibit ‘1/C’ is the pink
purple colour salwar of the victim on which no blood or semen
could be found. There is no matching of blood or the semen. In the
case of the present nature where the victim has compromised the
matter with the two accused persons, did not make statement before
the Juvenile Justice Board about the commission of rape and there
is no medical evidence to connect the appellant with the occurrence
of rape upon the victim (PW-4), we are of the considered opinion
that it would not be safe to convict the appellant on the basis of the
sole testimony of the victim, she would not fall in the category of a
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‘sterling witness’. In our considered opinion, the charge under
Section 376D IPC has not been duly proved by the prosecution.
23. The impugned judgment and order of the learned
trial court are set aside. The appellant is acquitted of the charges
giving him benefit of doubt. The appellant is in incarceration. He
shall be released forthwith if not wanted in any other case.
24. The appeal is allowed.
25. Let the trial court records along with the judgment
be sent down to learned trial court.
(Rajeev Ranjan Prasad, J)
( Praveen Kumar, J)
SUSHMA2/-
AFR/NAFR
CAV DATE
Uploading Date 13.02.2026
Transmission Date 13.02.2026
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