Patna High Court
ANIL PANDEYversusTHE STATE OF BIHAR
- Decided
- Disposal
- PARTLY ALLOWED (DISPOSAL)
Holding
The conviction was affirmed because the victim’s testimony, corroborative medical evidence, and age determination established the offence beyond reasonable doubt, despite procedural irregularities.
Summary
The appellant Anil Pandey was convicted for aggravated assault (Sec. 315 IPC), criminal intimidation (Sec. 506 IPC) and penetrative sexual assault of a minor (Sec. 4 POCSO Act) and sentenced to life imprisonment with fines. The victim, a girl of about 15 years, alleged that Pandey raped her after luring her from her house and threatened her family, leading to pregnancy and a subsequent abortion. The prosecution presented the victim’s written statement, her testimony before the magistrate, medical reports confirming pregnancy and an age estimate of about 15 years, and corroborative statements of village witnesses. The defence argued that the FIR was delayed, the victim’s statements were inconsistent, and the age determination was unreliable without a medical board or DNA evidence. The Court held that the victim’s testimony was that of a sterling witness, the medical evidence was sufficient to establish her minority, and the alleged procedural lapses did not defeat the prosecution’s case. Consequently, the conviction was upheld, but the sentence was reduced to the period already served, with the fine remaining unchanged.
Issues considered
- The prosecution proved the offence of penetrative sexual assault of a minor beyond reasonable doubt despite alleged delay in filing the FIR.
- Whether the victim’s age at the time of the offence can be conclusively determined under the Juvenile Justice Act and POCSO provisions.
- Whether inconsistencies in the victim’s statements and lack of DNA evidence undermine the conviction.
- Whether the sentencing under the amended IPC and POCSO statutes should be adjusted in view of the timing of the offence.
Legislation cited
- Criminal Procedure Code — s. 164, 313
- Indian Penal Code — s. 315, 376, 506
- Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 94
- Protection of Children from Sexual Offences Act, 2012 — s. 3, 4, 42
Subjects
- sexual assault
- POCSO
- age determination
- delay in FIR
- sterling witness
- conviction
- sentence modification
- juvenile justice
- forensic evidence
- DNA testing
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.221 of 2020
Arising Out of PS. Case No.-40 Year-2018 Thana- MAHILA PS District- Jamui
======================================================
Anil Pandey, Son of Late Ramswarup Pandey, Resident of Village - Maujhwe,
P.S.+ District- Jamui
... ... Appellant/s
Versus
1. The State of Bihar
2. XXX
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Shashank Shekhar Sinha, Advocate
Mr.Shyam Sunder Pandey, Advocate
For the State : Mr. Sujit Kumar Singh, APP
For Respondent no.2 : Ms. Akanksha Malviya, Amicus Curiae
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ARUN KUMAR JHA)
Date : 14-05-2026
The present appeal has been filed by the appellant
against the judgment of conviction dated 23.12.2019 and order
of sentence dated 06.01.2020 passed by the learned Special
Judge-cum-Additional District and Sessions Judge-1, Jamui, in
Protection of Children from Sexual Offences (POCSO) Special
Case No. 23/2018, arising out of Jamui Mahila P.S. Case No.
40/2018, whereby and whereunder the appellant has been
convicted for the offences punishable under Sections 315 and
506 of the Indian Penal Code and Section 4 of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred
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to as the “POCSO Act”). Accordingly, he has been sentenced to
undergo rigorous imprisonment for ten years with fine of
Rs.5,000/- under Section 315 IPC and in dedault of payment of
fine, the appellant has been directed to undergo further one year
imprisonment. The appellant has also been sentenced to undergo
six months rigorous imprisonment under Section 506 IPC with
fine of Rs. 1,000/- and in default of payment of the same, he
has been further directed to undergo one month imprisonment.
The appellant has also been sentenced to undergo life
imprisonment under Section 4 of POCSO Act with fine of
Rs.10,000/- and in default of payment of fine, he has been
further sentenced to undergo one year imprisonment. However,
all the sentences have been directed to run concurrently.
2. Shorn of unnecessary details, the facts of the case
are that the informant/victim gave her written statement to the
effect that approximately 4-5 months prior to 07.07.2018, at
about 4.00 A.M. in the morning, her parents had gone to harvest
wheat crop in Anil Pandey’s (appellant herein) field. The
appellant is her neighbour and her parents worked for him. It is
alleged that when her parents left to harvest the field, she was
alone and when she went out to attend the call of nature, the
appellant called her and when she refused to go, he forcibly
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dragged her to his porch and raped her after gagging her and
then threatened her that if she told anyone, he would kill her
entire family. Fearing for her life, the informant/victim did not
disclose the incident to anyone. Thereafter, she was raped
multiple times by the appellant and consequently, she became
pregnant. Coming to know about her pregnancy, the appellant,
on 06.07.2018, on the pretext of treatment, took the victim to
Jamui. When the family members of the informant came to
know about the incident, the appellant fled away leaving behind
the victim. The informant/victim also stated that earlier she did
not disclose this fact to anyone due to fear of life and shame.
3. On the basis of the aforesaid written statement of
the informant/victim, a formal FIR being Jamui Mahila P.S.
Case No. 40/2018 dated 07.07.2018 was instituted under
Sections 376, 315 IPC and 3/4 of the POCSO Act. The police
investigated the matter and submitted charge sheet under
Sections 376, 315, 506 IPC and Sections 3, 4 of the POCSO Act
on 07.09.2018 against the appellant finding the case to be true.
After taking cognizance on 10.09.2018, charges were framed on
27.11.2018 against the appellant under Sections 376, 315, 506
of the IPC and Sections 3/4 of the POCSO Act to which, the
appellant pleaded not guilty and claimed trial.
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4. During trial, the prosecution has examined
altogether eleven witnesses in support of its case. P.W.-1 is
Naresh Pandit, who is a co-villager. P.W.-2 is Shivdani Pandit,
who is the cousin of the victim. P.W.-3 is Mahendra Yadav, who
is also a co-villager. P.W.-4 is Pramod Pandit, who is also a
cousin of the victim. P.W.-5 is victim herself. P.W.-6 Pradeep
Pandit is the father of the victim. P.W.-7 Dr. Shweta Kumari
Singh is a Medical Officer, who conducted medical examination
of the victim. P.W.-8 Dr. Devendra Kumar was one of the
members of the Medical Board. P.W.-9 is Rita Kumari, who was
the first Investigating Officer. P.W.-10 is Ramadhar Yadav, who
was the second Investigating Officer. P.W.-11 Manish Kumar
Pandey is the Judicial Magistrate, who recorded the statement of
the victim under Section 164 Cr.P.C.
5. Following documents have been exhibited by the
prosecution during trial:-
Exhibit 1 is the signature of the victim on written
report.
Exhibit 2 is the signature of the victim on the
statement recorded u/s 164 Cr.P.C. before the Ld.
Court.
Exhibit 3 is the signature of Dr. Shweta Kumari
Singh on her medical report.
Exhibit 4 is the signature of Dr. Shweta Kumari
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Singh on the report of medical board.
Exhibit 5 is the signature of Dr. Devendra Kumar
on Radiology Report.
Exhibit 6 is the signature of Rita Kumari
(Investigating Officer) on the memo of arrest.
Exhibit 7 is the signature of Rita Kumari
(Investigating Officer) on the formal FIR.
Exhibit 8 is the signature of Sarita Kumari on the
death certificate of the infant.
Exhibit 9 is the letter with reference to handing
over the child to Nari Gunjan Institute.
Exhibit 10 is the application for postmortem report
of the infant.
Exhibit 11 is the certified Copy of the Infant’s
treatment slip.
Exhibit 12 is the letter regarding enrollment of the
infant.
Exhibit 13 is the order of the District Child Welfare
Committee, Patna.
Exhibit 14 is the treatment slip.
Exhibit 15 is the Infant’s examination papers.
Exhibit 16 is the application of Child Welfare
Committee, Patna.
Exhibit 17 is the signature of Shri Manish Kumar
Pandey (Judicial Magistrate, First Class, Jamui)
on the 164 Cr.P.C. statement of the victim.
6. Defence has not examined any witness in support
of it case.
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7. However, one document Exhibit-A has been
exhibited by the defence during trial, which is the application
for permission to close supplementary investigation.
8. The learned trial court, after consideration of the
evidence, came to the finding that the appellant was guilty of
commission of offences under Sections 315, 506 IPC and
Section 4 of the POCSO Act and thus he was sentenced in the
manner as already mentioned hereinbefore vide judgment of
conviction dated 23.12.2019 and order of sentence dated
06.01.2020. Being aggrieved by the aforesaid judgment of
conviction and order of sentence, the appellant has preferred the
present memo of appeal.
9. Since there has been no representation on behalf
of the respondent no. 2 despite valid service of notice, this
Court, vide order dated 05.01.2026 has appointed Ms. Akanksha
Malviya, Advocate as Amicus Curiae to assist this Court on
behalf of the respondent no. 2/the victim girl. Accordingly, Ms.
Malviya assisted the Court after thorough preparation.
10. The learned counsel, Mr. Shashank Shekhar
Sinha, appearing on behalf of the appellant vehemently
submitted that the impugned judgment of conviction and order
of sentence are bad in the eyes of law as well as on facts. It is a
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case of false implication. The prosecution has miserably failed
to prove that rape was even committed on the victim by the
appellant and the whole occurrence is doubtful and not
believable. There are material contradictions in the evidence of
prosecution witnesses and some of the material witnesses have
not even been examined. But the learned trial court has not
considered these aspects and declared the appellant guilty in
casual manner.
11. The learned counsel for the appellant further
submitted that the FIR has been registered after a delay of 4-5
months and the reason given for such delay is not proper and
satisfactory and for this reason, not believable. Referring to the
written report of the victim, the learned counsel submitted that
the manner of occurrence is not believable. From the written
report, it appears the victim was subjected to rape on a number
of occasions but surprisingly, she did not tell anybody about her
ordeal. The falsity of the allegation is also apparent from the
contradictions in the FIR and the evidence of witnesses
especially the victim herself who has deposed as P.W.5. The
learned counsel thus, submitted that there is no satisfactory
reason given for not registering the FIR promptly and it makes
the whole case of the prosecution suspect. This delay in lodging
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the FIR immediately after commission of offence coupled with
inability of prosecution to prove foundational facts would
negate the presumption of Section 29 of the POCSO Act, which
provides that the accused is presumed to have committed or
abetted or attempted to commit the offence, as the case may be,
unless the contrary is proved.
12. On the point of delay in lodging the FIR, the
learned counsel relied on a decision of the Hon’ble Supreme
Court rendered in the case of Thulia Kali vs. The State of Tamil
Nadu, reported in (1972) 3 SCR 623 wherein the Hon’ble
Supreme Court has held that the delay in lodging the FIR would
raise considerable doubt regarding the veracity of the evidence
of the witnesses and point to an infirmity in that evidence and
would render it unsafe to base the conviction of the appellant.
The Hon’ble Supreme Court has further held that the first
information report in a criminal case is an extremely vital and
valuable piece of evidence for the purpose of corroborating the
oral evidence adduced at the trial. The object of insisting upon
prompt lodging of the report to the police in respect of
commission of an offence is to obtain early information
regarding the circumstances in which the crime was committed,
the names of actual culprits and the part played by them as well
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as the names of eye witnesses present at the scene of
occurrence. Delay in lodging the first information report quite
often results in embellishment which is a creature of after
thought. It is, therefore, essential that the delay in lodging the
report should be satisfactorily explained.
13. The learned counsel for the appellant has further
submitted that the prosecution has failed to discharge its duty in
proving the age of the victim. The victim, deposing as P.W.5,
has stated that she has studied till Class-8, but the prosecution
did not come forward with any definite proof of age of the
victim. Under the provisions of the POCSO Act, it has been
made clear that if any question arises in any proceeding before
the Special Court whether a person is a child or not, such
question shall be determined by the Special Court after
satisfying itself about the age of such person and it shall record
its reasons in writing for such determination. For determination
of age of a victim of sexual offence, the Hon’ble Supreme Court
in the case of Jarnail Singh vs. State of Haryana, reported in
(2013) 7 SCC 263, considering the issue of determination of age
of the victim, has held that Rule 12 of Juvenile Justice (Care and
Protection of Children) Rules, 2007 (hereinafter referred to ‘JJ
Rules, 2007) should be the basis of determining age, both for a
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child in conflict with law and a child who is victim of crime.
Thus, age of the victim/prosecutrix was required to be
determined by adopting procedure under Rule 12 of the JJ
Rules, 2007. The Hon’ble Supreme Court has further held that
under Rule 12 of the JJ Rules, 2007, age of a child is to be
ascertained by adopting first available basis out of a number of
options postulated in Rule 12(3) of the JJ Rules, 2007. It has
further been held that if, in scheme of options under Rule 12(2),
an option is expressed in a preceding clause, it has overriding
effect over an option expressed in a subsequent clause and
highest rated option available would conclusively determine age
of a minor. It has also been held that in scheme contemplated
under Rule 12(3) of JJ Rules, 2007, it is not permissible to
determine age in any other manner and certainly not on the basis
of an option mentioned in a subsequent clause.
14. The learned counsel for the appellant has further
submitted that Rule 12 of JJ Rules, 2007 provides that the age
determination shall be conducted by the court or the Board or as
the case may be, the Committee, by seeking evidence by
obtaining- a (i) the matriculation or equivalent certificates, if
available; and in the absence whereof; (ii) the date of birth
certificate from the school (other than a play school) first
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attended; and in the absence whereof; (iii) the birth certificate
given by a corporation or a municipal authority or a panchayat.
The learned counsel further submitted that only in absence of all
the above documents, a Medical Board could be constituted to
conduct ossification test or other test to estimate the age. The
learned counsel further submitted that the same finds mention in
Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter referred to as JJ Act, 2015)
wherein it has been provided that in case the Committee or the
Board has reasonable grounds for doubt regarding whether the
person brought before it is a child or not, the Committee or the
Board, as the case may be, shall undertake the process of age
determination, by seeking evidence by obtaining (i) the date of
birth certificate from the school or the matriculation or
equivalent certificate from the concerned examination Board, if
available; and in the absence thereof; (ii) the birth certificate
given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical
age determination test conducted on the orders of the
Committee or the Board. The learned counsel has submitted that
in the present case the prosecution has failed to bring on record
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any documentary evidence regarding the age of the victim to
show that she was a child on the date of occurrence. Even for
ossification test, no Medical Board was constituted, although
Medical Board was constituted to give opinion regarding
termination of pregnancy of the prosecutrix. However, Dr.
Devendra Kumar (P.W.8) is said to have conducted a test for age
determination of the prosecutrix and he recorded the finding that
age of the victim was about 15 years. The radiological report
submitted by the P.W.8 has been marked as Exhibit-5, but the
said report does not contain the thumb impression/signature of
the victim. Thus, it appears the Dr. Devendra Kumar (P.W.8 )
had given a conclusion about the age of the victim/prosecutrix
on 07.07.2018. But another doctor P.W.-7 Shweta Kumari Singh
in her deposition has specifically mentioned that the age would
be determined by the Board of Doctors, however, no such Board
was constituted. On the adverse effect of thumb impression not
being obtained on the report and the prosecution not proving the
age, the learned counsel relied on a decision of this Court
rendered in the case of Uday Kumar Singh @ Uday Kumar
Kushwaha @ Uday Pratap Singh vs. the State of Bihar (Cr.
Appeal (DB) No. 183/2019). The learned counsel has further
relied on a decision of the Hon’ble Supreme Court rendered in
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the case of Rajak Mohammad vs. State of Himachal Pradesh,
reported in (2018) 9 SCC 248 to stress the point that
radiological examination may not be an accurate determination.
Thus, the learned counsel for the appellant submitted that the
prosecution has failed to prove the age of the prosecutrix
beyond reasonable doubt.
15. The learned counsel for the appellant has further
submitted that admittedly the victim gave birth to a child, but no
DNA profiling was done to show that the appellant was the
father of the child. This would have conclusively proved the
culpability of the appellant, but the prosecution utterly failed in
its duty and did not bring on record any scientific proof like
DNA sampling to bring home the charge against the appellant.
16. The learned counsel for the appellant has next
submitted that the prosecution story does not appear to be
believable also for the reason that though four and half month
has elapsed, but no one noticed the pregnancy. The mother of
the victim was not examined, who would have been the best
witness in these circumstances to depose about the situational
facts. Even the scribe, who wrote the written report leading to
registration of FIR, has not been examined. So there are chances
of manipulation in the written report. For the sake of argument,
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if it is taken that rape was committed with the prosecutrix,
considering her age as claimed by the prosecution, she must
have suffered injuries, but no such report has been brought on
record for any injuries suffered by the victim/prosecutrix. The
learned counsel also pointed out that the occurrence is stated to
have taken place in the month of Chaitra and time of the
occurrence is said to be 5.00 A.M; when in the villages, a large
number of persons wake up early and it is also not believable
that no one saw anything when the alleged occurrence took
place. All these facts go to show that the prosecution case is on
shaky grounds. If foundational facts have not been proved, the
prosecution story cant not be sustained and in this regard, the
learned counsel has relied on a decision of this Court rendered
in the case of Heera Das vs. State of Bihar, reported in, 2025(2)
BLJ 617.
17. The learned counsel for the appellant has also
assailed the credibility of the victim as a sterling witness and
regarding the qualities of sterling witness, learned counsel has
referred to the case of Rai Sandeep @ Deepu vs. State (NCT of
Delhi), reported in (2012) 8 SCC 21. The learned counsel for
the appellant has submitted that for proving the allegation of
rape, the victim should be a sterling witness. But there are
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material contradictions in the story made out in the written
report and the statement made before the learned Judicial
Magistrate recorded under Section 164 Cr.P.C. as also in the
deposition recorded before the court inasmuch as the prosecutrix
has made improvement upon her statement. There are even
material contradictions and inconsistencies in her statement. The
learned counsel further submitted that in the written report, she
stated that she was alone in her house and when she was called
by the appellant, she refused to go and he forcibly took her to
the porch of his house and committed rape with her by putting
her on a chauki and gagging her mouth with gamachha. But in
her statement under Section 164 Cr.P.C., she stated about her
siblings, who were also present in her house and were sleeping.
She further deposed in her statement under Section 164 Cr.P.C.
that the appellant put her on the floor and also described in
detail how the rape was committed. In the written report, the
prosecutrix has not stated about her being given any injection by
the appellant, but in her deposition before the court, she stated
about administration of an injection to her. The learned counsel
has further submitted that in her cross-examination, she has
stated that adjacent to the house of the appellant, there are a
number of houses and it was a dense locality and all the houses
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are contiguous. She has also admitted that the time of
occurrence was in the month of Chaitra and there was hustle
and bustle and everybody was going to the fields for agriculture
work. The learned counsel further submitted that there are even
contradiction between the statement of prosecutrix and her
father. The father of the prosecutrix, who deposed as P.W.6, in
his cross-examination, was not able to give details about
Aanganwari Centre where the prosecutrix was taken after she
complained of pain in her stomach. Thus, learned counsel has
submitted that the prosecutrix, who deposed as P.W.5, does not
have the qualities of a sterling witness.
18. The learned counsel has further submitted that
the prosecutrix in her deposition has stated that she first told
about the occurrence to her chacha and mama, but these
witnesses have not been examined. Similarly, the mother of the
prosecutrix has also not been examined. If these witnesses
would have been examined, true facts of the case would have
become clear. Thus, learned counsel submitted that there are a
number of inconsistencies and contradictions and improvement
in the statement of prosecutrix, hence conviction cannot be
based on such inconsistent evidence.
19. The learned counsel has lastly submitted that the
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prosecution has failed to prove the allegations made against the
appellant beyond reasonable doubt and reiterated that the
impugned judgment of conviction and order of sentence passed
against the appellant are otherwise bad in law as well as on facts
and are liable to be set aside.
20. On the other hand, the learned APP for the State,
Mr. Sujit Kumar Singh, has vehemently contended that there are
no contradictions or inconsistencies in the prosecution case and
the victim has narrated the manner in which occurrence took
place and her version could not be doubted. The learned APP
further submitted that the victim girl has clearly stated that she
was threatened by the appellant and due to his fear, she did not
report the matter when rape was first committed. The
prosecution witnesses are natural witnesses and even the so
called hearsay witnesses have witnessed the subsequent events
and their evidence is also relevant. The learned APP further
submitted that the matter was investigated and it was found that
the victim was pregnant and this fact has come in the deposition
of P.W.7, Dr. Sweta Kumari Singh. The prosecution has further
proved all the allegations by cogent evidence. The relevant
documents including the report of Medical Board as well as
report of radiology have been marked as exhibits. The written
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report leading to lodging of the FIR was also proved without
any objection. The death certificate of the child of the
prosecutrix was also brought on record and proved. Supported
with the oral evidence, these documents go on to prove the
charge against the appellant and, hence prosecution has
effectively discharged its obligation and proved the case against
the appellant.
21. The learned Amicus Curiae, appointed to
represent the respondent no.2/victim, rebutting the contention of
the appellant, has submitted that the prosecution has been able
to prove its case beyond all reasonable doubts through its
evidence. The learned Amicus Curiae has submitted that the
delay in lodging the FIR is not much material in the given facts
and circumstances of the case and the delay has satisfactorily
been explained.
22. The learned Amicus Curiae has further submitted
that in sexual offences the delay in lodging of the FIR can be for
a number of reasons particularly due to the reluctance of the
prosecutrix or her family members to go to the police and
complain about the incident which concerns the reputation of
the prosecutrix and the honour of her family. Hence, delay in
lodging the first information report cannot be used as a
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ritualistic formula for doubting the prosecution’s case and
discarding the same on the ground of delay. She further
submitted that delay in lodging the FIR is immaterial if it stands
explained and appellant cannot be discharged merely on the
ground of delay in lodging of the FIR. In support of her
contention, she has placed reliance on the following judgments
Dildar Singh v. The State of Punjab Dildar Singh v. State of
Punjab, (2006) 10 SCC 531 ; Deo Narayan Yadav v. State of
Bihar, 2024 SCC OnLine Pat 3010 ; Manendra Prasad Tiwari
v. Amit Kumar Tiwari, (2022) 20 SCC 757.
23. On the point of determination of age of the
victim, the learned Amicus Curiae has submitted that there
could be no quarrel with the proposition of law as laid down in
the case of Jarnail Singh (supra). She also referred to Section
94 of the JJ Act in this regard and submitted that since no
matriculation or school certificate was available, the next mode
provided for determination of age of the victim had been
adopted and a medical examination was conduced to determine
the age of the victim and her age came out to be 15 years. She
relied on a decision of the Hon’ble Supreme Court rendered in
the case of Shah Nawaz vs. State of UP, reported in (2011) 13
SCC 751 in support of her contention. She has further submitted
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that the background of the victim is also to be considered as the
victim comes from a lower strata of society and absence of
documentary evidence is natural. She stressed that there is no
specific provision under the POCSO Act for determination of
age of the victim, hence Section 94 of the JJ Act is applicable
for all such determination of age.
24. The learned Amicus Curiae has further
submitted that even in the FIR, the victim has claimed her age to
be 16 years at the time of registration of the FIR and 4-5 months
back she was 15 years and 6 months when the occurrence took
place. Therefore, the doctor coming to a finding that the age of
the victim was about 15 years is not incorrect. Therefore,
foundational facts for prosecution under the POCSO Act has
been clearly laid down as age of the victim has been proved
firstly through the assertion of the victim and secondly by way
of medical evidence. She further submitted that, moreover,
admittedly the victim had been studying in Class-8 and a
reasonable presumption about the student of Class-8 would be
that she would be aged about 15 years. Moreover, the doctor did
not put the age of the victim in a bracket and she relied on a
decision of this Court rendered in the case of Deo Naryan
Yadav vs. State of Bihar, reported in 2024 SCC OnLine Pat
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3010 wherein it has been held that medical opinion could be
very useful guiding factor to be considered along with attending
circumstances. She has also relied on a decision of the Hon’ble
Supreme Court rendered in the case of Mukarrab vs. State of
UP, reported in (2017) 2 SCC 210 in this regard. The learned
Amicus Curiae has further submitted that it is not a case of
marginal minority to take out the case from the ambit of POCSO
Act.
25. The learned Amicus Curiae has further submitted
that absence of injury on the victim does not necessarily imply
false allegation or consent to sexual intercourse and in support
of this argument, she has relied on a judgment of the Hon’ble
Supreme Court rendered in the case of State of Rajasthan v.
N.K., reported in (2000) 5 SCC 30. She has further submitted
that the absence of detailed medical evidence or external
injuries does not automatically weaken the prosecution case
when other evidence is robust and in support of this argument,
she has relied on a judgment rendered by the Hon’ble Supreme
Court in the case of Deepak Kumar Sahu v. State of
Chhattisgarh, reported in 2025 SCC OnLine SC 1610. She has
then submitted that the sole testimony of the prosecutrix can
certainly be relied upon for conviction provided that the
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testimony is found to be credible and consistent. She has
submitted that even if there was certain minor discrepancies in
the testimony of the prosecutrix, it does not render the testimony
unreliable as such discrepancies are not fatal to the case, and in
support of her contention, she has placed reliance on a judgment
rendered by the Hon’ble Supreme Court in the case of Phool
Singh v. State of M.P., reported in (2022) 2 SCC 74.
26. The learned Amicus Curiae has further submitted
that a defective investigation cannot be fatal to the prosecution
when ocular testimony is found credible and cogent and she has
relied on a decision rendered by the Hon’ble Supreme Court in
the case of Munna Lal vs. State of Uttar Pradesh, reported in
2023 SCC OnLine SC 80 :: (2023) 18 SCC 661. She has further
submitted that the accused cannot take advantage of faulty
investigation if there exists other clinching evidence and has
relied on a decision rendered by the Hon’ble Supreme Court in
the case of Zindar Ali Sheikh vs. State of West Bengal, reported
in (2009) 3 SCC 761 :: 2009 SCC OnLine SC 258.
27. The learned Amicus Curiae has reiterated that
the victim is a sterling witness and the contradictions or
inconsistencies pointed out by the learned counsel for the
appellant are not only minor but insignificant considering the
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whole occurrence and the persons involved. She has further
submitted that in the context of Indian society, no female would
like to get stigmatized by falsely claiming herself to be a
victim of rape. There is no reason for the prosecutrix to come up
with allegation of rape against the appellant and whatever she
has stated, she has only deposed the truth and the learned trial
court has rightly relied upon her statement and the evidence
adduced on behalf of the prosecution and rightly convicted and
sentenced the appellant. Thus, no interference is required by this
Court in the impugned judgment of conviction and order of
sentence.
28. We have given our thoughtful consideration to the
rival submission of the parties and perused the material
available on record.
29. The issue before this Court is whether the
prosecution has been able to prove its charge against the
appellant beyond all reasonable doubt and whether the judgment
of the learned trial court is correct and does not suffer from any
infirmity.
30. The prosecution has examined altogether eleven
witnesses in support of its case before the learned trial court.
But the defence has not examined any witness in support of its
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case.
31. P.W.-1 Naresh Pandit is a co-villager of the
prosecutrix and he has deposed in his examination-in-chief that
the occurrence took place six months back and his deposition
was recorded on 30.01.2019. This witness further deposed that
Anil Pandey committed rape with prosecutrix and she became
pregnant. The prosecutrix was threatened by Anil Pandey that if
she told about this incident to any person, her parents would be
killed and for this reason, the prosecutrix did not tell about the
incident to anybody. Due to sudden surge of pain in the stomach
of the prosecutrix, she was taken to Anganwari Kendra by her
parents where the fact came to notice that she was pregnant.
This witness also deposed that Anil Pandey used to tease his
labourers.
In his cross-examination, this witness has deposed
that the prosecutrix told him about her pregnancy about six
months back in her house. This fact was also told to Mahendra
Yadav, Pradeep Pandit, Shivdani Pandit, Pramod Pandit and
other villagers. At that time, pregnancy of prosecutrix was two
and half months old. This witness also deposed in his cross-
examination that Anil Pandey took the prosecutrix to the doctor
for abortion about eight and half months back and the parents of
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the prosecutrix had been knowing the fact that Anil Pandey had
taken the prosecutrix to the doctor for abortion. This witness
also deposed that there is no dispute between this witness and
Anil Pandey and he is a family man having wife and children,
who stays with them in his house.
32. P.W. 2 Shivdani Pandit is the cousin of the
prosecutrix and his deposition was recorded on 21.02.2019. This
witness deposed in his examination-in-chief that the occurrence
took place eight months back as some commotion took place in
the village and he went there and came to know that Anil
Pandey committed rape with the prosecutrix. This witness
further deposed that he heard about Anil Pandey taking the
prosecutrix to Jamui for abortion. When the prosecutrix
returned, she was asked about it by her parents and she told
them that she went to Jamui for abortion. He came to know
about this fact from the villagers as well as prosecutrix.
In his cross-examination, this witness deposed about
his relationship with the prosecutrix and her father stating that
they are his cousin and his uncle, respectively. This witness
further deposed in his cross-examination that he came to know
on 06.07.2018 that rape was committed with the prosecutrix and
it was committed 2-3 months prior to 06.07.2018. This witness
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also deposed that the parents of the prosecutrix were not
knowing that she had been taken to Jamui for abortion. But she
returned in the evening accompanied by the appellant. This
witness admitted that prior to that the prosecutrix did not tell
him that she was subjected to rape. She did not tell him the
name of doctor nor has shown him any documents for the
treatment. This witness has further deposed that the prosecutrix
used to do work of labourer with Anil Pandey and her parents
also used to work with Anil Pandey. This witness deposed that
the parents of the prosecutrix did not tell him about the
commission of rape. This witness has further deposed that the
appellant is married having two daughters and two sons and his
wife is alive and she is beautiful and Anil Pandey stayed with
wife and children in his house.
33. Not much reliance can be placed upon the
evidence of this witness (P.W.2) as he appears to be a hearsay
witness and it seems that he was not told about the commission
of rape either by the prosecutrix or by her parents.
34. P.W.3 Mahendra Yadav recorded his deposition on
11.03.2019 wherein he deposed in his examination-in-chief that
the occurrence took place 8-9 months back. This witness further
deposed that while he was going towards the market, he saw a
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big crowd at the house of the prosecutrix and he went there and
asked why the crowd had assembled, then the prosecutrix told
him that Anil Pandey forcibly committed rape with her and she
became pregnant. This witness further deposed that he inquired
from the prosecutrix as to why she did not disclose about it in
the village earlier, then she told him that she was threatened by
Anil Pandey with life. When the prosecutrix went for
examination at the Anganwari, she was told about her
pregnancy. Thereafter, Anil Pandey took the prosecutrix for
abortion.
In his cross-examination, this witness deposed that
Anil Pandey is married man and his wife is alive and they have
five children. This witness also deposed that he could not say
whether any medicine was administered by Anil Pandey to abort
her pregnancy and the prosecutrix did not tell him about
administration of any such medicine. This witness also deposed
that the prosecutrix did not tell him about the time period of
pregnancy and also did not tell him about the time when the
rape was committed. This witness also deposed that he did not
accompany them to the doctor. He was also not told when the
rape was committed and he did not go to the doctor at
Anganwari and did not accompany the parents of the
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prosecutrix. This witness further deposed that he did not know
whether the prosecutrix was taken to abort her pregnancy by
Anil Pandey with consent of her parents. This witness further
deposed that he stayed at the place for half an hour and did not
know what happened thereafter. He has been deposing what he
heard from others and also from the prosecutrix. This witness
also deposed that he was told by the father of the prosecutrix
that his name was given in the list of the witnesses and he has
brought him for deposition.
35. This witness also appears to be a hearsay witness
and no reliance can be placed on the evidence of such witness.
36. P.W.4 Pramod Pandit was examined on
25.03.2019 and he is nephew of the father of the prosecutrix and
he is a shopkeeper. This witness deposed in his examination-in-
chief that occurrence took place 8-9 months back. There was
uproar in the village that rape has been committed by Anil
Pandey. Hearing the noise and uproar, he went to the house of
the prosecutrix where he was told by the prosecutrix about Anil
Pandey committing rape with the prosecutrix and she becoming
pregnant.
In his cross-examination, attention of this witness was
drawn to his statement made under Section 161 Cr.P.C. and he
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denied the suggestion that he did not give any statement before
the police that on hearing uproar in the village, he went to the
house of the prosecutrix. This witness also denied the
suggestion that he did not give statement before the police to the
effect that he went to the house of the prosecutrix and the
prosecutrix told him that Anil Pandey had committed rape with
her.
37. P.W.5 is the victim/prosecutrix in this case and her
deposition was recorded on 03.05.2019. In her examination-in-
chief, this witness deposed that about one year and six month
back at 5.00 A.M., her parents had gone to the field of Anil
Pandey for cutting wheat crops and she was alone in her house.
When she went outside to ease herself, Anil Pandey called her
and she went to his porch where he put her down on a chauki
and gagged her mouth with gamachha and committed rape with
her. He threatened that if she raised any alarm, then she and her
family members would be killed. She did not tell anybody about
the occurrence due to fear. This witness further deposed that
four and half month, thereafter she had pain in stomach. She
told her mother about pain and she was taken to Anganwari
Centre for treatment where, after examination, the doctor told
them that she was pregnant. Subsequently, she told everyone
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about the incident. Thereafter, Anil Pandey brought her to Jamui
for treatment and she was administered an injection in her arm.
Her parents followed there. Meanwhile, Anil Pandey went to his
house leaving her behind. This witness further deposed that she
returned to her house and on the next day, i.e., 07.07.2018, the
police personnel came and took her written statement on which
she put her signature and on her identification, her signature on
written report was marked as Exhibit 1. This witness also
deposed that she was sent to the hospital for treatment on the
same day by the police. This witness also admitted her signature
on the statement made before the police and this document was
marked as Exhibit 2. This witness further deposed that thereafter
she went to Indira Gandhi Hospital at Patna where she stayed
for one and half month and gave birth to a child by operation.
Child was handed over to an orphanage.
In her cross-examination, this witness deposed that
near the house of Anil Pandey, there are houses of Rahul
Pandey, Vijay Pandey, Pankaj Pandey, Ashok Pandey, Hathiya
Pandey and also of some other persons. The place where the
house of Anil Pandey is situated is a densely populated locality.
She also deposed that her house is adjacent to the house of Anil
Pandey. This witness further deposed that the occurrence took
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place in the month of Chaitra and it was the period when wheat
crop is cut. The persons of neighbourhood had been going for
cultivating their fields. This witness also deposed that next day
after the commission of rape, she told the police about the
occurrence. In her cross-examination, this witness further
deposed that the police came to her door a day after lodging of
the case and she met the police for the first time at her house.
This witness also deposed that she has studied till Class-8 but
left her studies after the occurrence. This witness further
deposed that prior to lodging of the case, the family members
deliberated upon the same as to how the case was to be lodged.
This witness in her cross-examination admitted that for aborting
her pregnancy, she was taken by Anil Pandey to the hospital
where he left her behind and she returned with her parents. She
was brought alone for treatment by Anil Pandey. She further
deposed that after the occurrence, she did not meet the persons
of neighbourhood and she told her Mama and Chachi about the
occurrence but she could not name them. This witness also
deposed that she did not know whether she was taken to a
government hospital or a private hospital.
38. P.W.6 Pradeep Pandit, who is the father of the
prosecutrix, was examined on 17.05.2019. In his examination-
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in-chief, this witness deposed that the prosecutrix is his daughter
and the occurrence took place 8-10 months ago. This witness
also deposed that the prosecutrix is his daughter and she
suffered stomach pain and the womenfolk came and examined
her pain, who told that she was pregnant. When she was taken to
Anganwari, her pregnancy was confirmed. Thereafter, when he
enquired from his daughter as to how this has happened, then
his daughter told him that Anil Pandey committed rape with her
and she has been carrying his child in her womb. Thereafter, he
went to the house of Anil Pandey and scolded him and he told
him that he did not do anything. Afterwards, he brought his
daughter to Jamui for treatment and the doctor told him that his
daughter was pregnant. Anil Pandey fled away from the place
leaving behind his daughter.
In his cross-examination, this witness deposed that
prior to the occurrence, Anil Pandey never did any wrongful act
either with this witness or his family. This witness also deposed
that Anil Pandey was married and he has five children. His
daughter is the eldest, who is aged about 17-18 years and she is
already married. This witness described the boundary of the
house of Anil Pandey and further deposed that adjacent to the
house of Anil Pandey, there are houses of other villagers. This
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witness further deposed in his cross-examination that on any
other day, his co-villagers wake up at 5-5.30 A.M. However, this
witness showed his ignorance about the place of Anganwari
where his daughter was taken for treatment, rather he deposed
that he does not know whether any doctor sits in Anganwari
Centre. This witness further deposed that no document was
handed over to him for treatment of his daughter either at
Anganwari or at Government Hospital, Jamui.
39. P.W.7 Dr. Shweta Kumari Singh is the doctor, who
examined the prosecutrix. In her examination-in-chief, this
witness deposed that she examined the prosecutrix on
07.07.2018 at around 7.55 in the evening. After examination,
she recorded her findings as follows :
“Physically Examination- (i) Mark of
identification- (1) Mole on upper lip (2) Mole on right
arm.
(ii) No sign of external injury on hands,
legs, arms, chest etc.
(iii) Pubic hair and axillary hairs present.
(iv) P/A- Uterus 16-18 weeks size.
(v) Vagina admits one finger loose.
Lab Findings- (I) Vaginal swab smear
examination done by Dr. Arun Kumar Singh shows no
spermatozoa, no RBCs but few epithelial cells seen.
(ii) U.S.G. shows single live intrauterine
fetus of 17 weeks 1 day +/- days. G.A. with adequate
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liquor and volume.
(iii) U.P.T.= positive.
All reports attached.
Age will be determined by the board of
Doctors.
Conclusion- Victim had undergone sexual
intercourse and is pregnant with 17 weeks 1 day +/- 8
days. Gestational age fetus”.
On identification by this witness, the report prepared
by this witness and bearing her signature was marked as
Exhibit-3.
This witness further deposed in her examination-in-
chief that on 16.08.2018, in the Sadar Hospital, Jamui, a
Medical Board was constituted for examining the prosecutrix
and the Medical Board recorded the following findings :
(i) L.M.P.-27.02.2018 (ii) P/A- Uterus
24-26 weeks size.
From above findings the G.A. is approx
24 weeks +/- 1 week.
According to M.T.P. Act, 1971 pregnancy
of a girl about 15 years old can be advised by two
M.O. upto 20 weeks only. And since it is G/A 24
weeks +/- 1 week, so termination of pregnancy can
not be possible in this hospital (Sadar Hospital,
Jamui).
This witness also deposed that the report of Medical
Board was in her writing and signature but it was prepared by
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all doctors of the Medical Board including this witness. This
report of Medical Board was marked as Exhibit-4.
In her cross-examination, this witness deposed that
she did not recommend USG in her report. She also deposed
that she does not know how long spermatozoa can be found in
vagina following sexual intercourse. This witness also deposed
that she did not find any injury in and around vagina. She
further deposed that it may or may not cause injury when a full
grown male organ (Penis) is inserted into the vagina of a girl.
40. P.W.8 Dr. Devendra Kumar has been examined on
09.07.2019 and in his examination-in-chief, this witness
deposed that on 07.07.2018, he was posted in Sadar Hospital,
Jamui as Medical Officer and on the same day, he examined the
prosecutrix for her age determination and found the following :
Height- 04 feet 8 inch
Weight- 39 Kg.
Teeth- 7/7
7/7
M.I.- Til on right forearm.
Radiology-
X-ray of right elbow (AP & Lat.), Rt wrist
(AP & Lat.) ad pelvis done by Sadar Hospital, Jamui
on 07.07.2018.
X-ray of right elbow shows epiphysis of
radial head and olecranon process fused.
X-ray of right wrist shows there is no
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fusion of epiphysis of lower end of radius and ulna.
X-ray of pelvis shows epiphysis of iliac
crest has appeared.
From the above finding, it is concluded
that the age of the prosecutrix is about 15 years.
This report was in his pen and writing and it was
marked as Exhibit-5.
In his cross-examination, this witness deposed that his
finding is based on ossification of bone. This witness further
deposed that he is not aware of chromosome tally method. It is
not true that the report prepared by him is not scientific.
41. P.W.9 Rita Kumari is the investigating officer of
this case. This witness deposed in her examination-in-chief that
on 07.07.2018, she was holding the post of SHO of Jamui
Mahila Police Station. After taking over the investigation of
Jamui Mahila P.S. Case No. 40 of 2018, she recorded the further
statement of the prosecutrix and sent the prosecutrix for medical
treatment at Sadar Hospital, Jamui. Thereafter, she went for
examination of place of occurrence and found the place of
occurrence to be bricks and cement house of Anil Pandey. This
witness further deposed that there was a porch (veranda) in
front of the house of Anil Pandey. This witness also deposed
that she recorded the statement of Shivdani Pandit and Pradeep
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Kumar. Thereafter, she arrested the accused from Manjhwe Hill.
This witness also deposed that thereafter, she recorded the
statement of Mahendra Yadav. The statement of victim girl was
got recorded under Section 164 Cr.P.C. This witness also
deposed that she submitted charge sheet bearing no. 54/18 on
07.09.2018 under Sections 376, 315, 506 of the Indian Penal
Code and Sections 3/4 of POCSO Act. This witness also
deposed that she took permission for DNA Test and after her
transfer, she handed over the charge to one Gyan Bharti. This
witness identified the arrest memo which was in her
handwriting and signature and the same was marked as Exhibit-
6.
In her cross-examination, this witness deposed that
she did not find any sign of incident taking place at the spot.
This witness also deposed that she did not record the statement
of all persons whose houses were adjacent to the house of the
place of occurrence. This witness also deposed that the
witnesses whose statement she has recorded were neither called
after issuance of notice by her nor any one produced the
witnesses. As no DNA test was conducted, she did not get any
report.
42. P.W.10 is Ramadhar Yadav, who appears to be the
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second investigating officer. This witness in his examination-in-
chief deposed that after perusing the records of the case, he
found that the blood sample of the mother and child taken by the
doctor at IGIMS was not brought before the Magistrate or any
Investigating Officer. Thereafter, for conducting the DNA Test
during investigation, he reached Nari Gunjan Srijani Dattak
Sansthan, Danapur and made contact with its Project
Coordinator and recorded her statement who gave her the death
certificate of the child and other documents after attestation.
Thereafter, he informed the court and found that it was not
possible to conduct the DNA Test after the death of child. This
witness further deposed that the copy of the death certificate
was attested by one Sarita Kumari and the said document has
been marked as Exhibit-8. This witness got exhibited certain
documents related to child like post mortem report, treatment
papers of the child and giving name of the child. All these
documents were exhibited after objection.
In his cross-examination, this witness deposed that he
gave an application before the learned trial court on 11.07.2019
mentioning the fact that the child has died on 15.01.2019 and
for this reason it is not possible to conduct the DNA Test.
43. P.W.11, Manish Kumar Pandey, is the Judicial
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Magistrate, who recorded the statement of the victim
girl/prosecutrix under Section 164 Cr.P.C. and on identification
of this witness, the statement was marked as Exhibit-17.
44. After closing the prosecution evidence, the learned
trial court recorded the statement of the appellant on 16.07.2019
under Section 313 Cr.P.C. for enabling him to personally explain
the circumstances appearing in the evidence against him,
however in his statement, he denied the allegations and claimed
himself to be innocent.
45. From the discussion of the evidence of the
prosecution witnesses and the exhibits, the first contention of
the learned counsel for the appellant about the delay in lodging
the FIR could be negatived on consideration of the facts
discussed hereinafter.
46. It is obvious that the prosecutrix comes from a
poor family and her parents are labourers. In such
circumstances, if rape was committed by the landlord/ the
appellant herein and threat was extended by the appellant to the
prosecutrix, keeping mum for quite long period can not be said
to be unnatural. Rather, it appears to be believable in the given
facts and circumstances of the case as brought on record by the
prosecution through its evidence.
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47. Similarly, absence of exact date of commission of
the offence of rape can not be stressed too much to discredit the
prosecution story. There is no eye witness to the occurrence of
rape and none has claimed himself/herself to be an eye witness.
So it leaves us only with the statement of the victim girl and
other corroborative circumstances. The victim girl in her
deposition has stated that the occurrence took place in the month
of Chaitra and this fact along with statement of other witnesses
and the period of pregnancy of the prosecutrix, a rough estimate
of time of occurrence could be gathered. The pregnancy was
discovered on 07.07.2018 when the medical examination was
done and uterus was found 16-18 weeks of size. This puts the
date of commission of offence to be 16-18 weeks prior to
07.07.2018 and it roughly comes to the month of April which
corresponds with the Hindu Calendar of Chaitra.
48. Much stress has been put on contradictions and
inconsistencies as well as improvement made by the witnesses.
It has also been harped that the story of prosecution is not
believable considering the time gap between the alleged
occurrence and discovery of this fact. Further stress has been
put on absence of injuries upon the victim/prosecutrix. So far as
the so called inconsistencies and contradictions are concerned,
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we are of the opinion that these contradictions or inconsistencies
are not of such nature so as to disbelieve the allegation against
the appellant. The appellant has not been able to show major
contradictions or inconsistencies in the statement of the
witnesses so as to make the whole prosecution suspect. The
learned counsel for the appellant has tried to show that there are
different versions in the written report leading to loding of the
FIR and the allegation of the victim girl as well as other
witnesses like the victim being forcibly taken to his door by the
appellant or the victim voluntarily coming to the door of the
appellant on his call or the appellant putting the victim on floor
while committing rape or victim being forced on a chauki. It is
material to take note of the fact that the victim has more or less
stuck to her story in the FIR as well as in her deposition. The
statement of other witnesses is immaterial as they are not eye
witnesses and whatever deposition has been recorded by these
witnesses, the same is on the basis of statement of
victim/prosecutrix. Similarly, the inconsistencies in the
statement of witnesses as to how the victim was taken to
hospital as to when and why the victim was taken to hospital or
whether her parents accompanied her or not, are not of much
significance because the appellant is facing the charges of
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penetrative sexual assault on a minor girl and subsequent events
and subsequent conduct is not of such nature that it may cast a
doubt over the prosecution story. Therefore, these
inconsistencies need to be ignored.
49. The credential of the prosecutrix as a sterling
witness has been challenged by the appellant. It has been
submitted on behalf of the appellant that the prosecutrix
deposing as P.W.5 is a tutored witness and she has tried to
improve her statement now and then but we are afraid that there
is no such improvement from the written report given by the
prosecutrix to her deposition as P.W.5. Before assailing her
statement made before the police and thereafter before the
learned Judicial Magistrate and lastly before the learned trial
court, it is to be borne in mind that the prosecutrix is a merely a
girl aged about 16 years, who has suffered the agony of rape
which casts more aspersion on the victim than the perpetrator in
the society even today. It has been rightly said that sexual
assault on any count is attack against human dignity and leaves
a mental scar on its victim, therefore it is always the victim who
is at the receiving end. Hence, the statement of victim
girl/prosecutrix needs to be considered in the light of these facts
and also the facts and circumstances of the case in hand. The
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prosecutrix is consistent in her statement about appellant
committing rape with her and consequently, she becoming
pregnant. Her pregnancy has also been taken note of by P.W.-7
Dr. Shweta Kumari Singh in her medical examination report.
The medical examination report proves beyond doubt that the
prosecutrix was sexually ravished and this fact coupled with the
statement of the victim girl shows perpetrator of sexual assault
is the appellant. No other contradictory fact absolving the
appellant as perpetrator of the crime has come on record.
Therefore, the argument on behalf of the appellant that no DNA
test was conducted on the child also loses its significance. If
DNA test would have been conducted on the child as well as the
appellant and the result would have come positive, it would
have clinched the issue in favour of the prosecution without any
doubt. If the said test was not done, that does not mean that the
prosecution has failed in its duty to bring home the charges
against the appellant. The evidence on record is sufficient to
prove that it is the appellant who committed the offence of rape
with the prosecutrix. The submission that the prosecutrix is not a
sterling witness, does not hold much water. The Hon’ble
Supreme Court in the case of Rai Sandeep (supra), in paragraph
22, held as under :
“22. In our considered opinion, the “sterling
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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
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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”.
50. Therefore, on the touchstone of the aforesaid
parameters laid down by the Hon’ble Supreme Court in the case
of Rai Sandeep (supra), we have no hesitation in holding that
the prosecutrix qualifies as a sterling witness and her version of
story can be accepted by this Court without demur.
51. Now, we come to the issue of challenge to the age
of the prosecutrix. At this juncture, it is also advantageous to
take note of various amendments in the POCSO Act as well as
in the Indian Penal Code which have made the punishment for
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commission of the sexual offences under these two acts harsher.
52. Both sides have relied on the decision of the
Hon’ble Supreme Court in the case of Jarnail Singh (supra)
regarding the manner in which the age of the victim is to be
determined as there is no provision under the POCSO Act.
While dealing with the case of the prosecutrix in the aforesaid
case, the Hon’ble Supreme Court held that the rules relating to
age determination of a child in conflict with law shall equally
apply for determination of age of a victim of crime. The
Hon’ble Supreme Court further held that in case an entry of date
of birth is available in matriculation certificate, the same shall
be final and conclusive and no other evidence is to be relied
upon. The Hon’ble Supreme Court reiterated that it is only in
absence of any of the certificates as mentioned in first three
option of Rule 12 of Juvenile Justice (Care and Protection of
Children) Rules, 2007 (hereinafter refereed to as JJ Rules,
2007), the age of concerned child can be determined on the
basis of medical opinion. The observation made in the case of
Jarnail Singh (supra) regarding determination of age has been
given statutory shape in Section 94 of the JJ Act and the said
provision reads as under:-
“94. Presumption and determination of
age.—(1) Where, it is obvious to the Committee or
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the Board, based on the appearance of the person
brought before it under any of the provisions of
this Act (other than for the purpose of giving
evidence) that the said person is a child, the
Committee or the Board shall record such
observation stating the age of the child as nearly
as may be and proceed with the inquiry under
section 14 or section 36, as the case may be,
without waiting for further confirmation of the
age.
(2) In case, the Committee or the Board
has reasonable grounds for doubt regarding
whether the person brought before it is a child or
not, the Committee or the Board, as the case may
be, shall undertake the process of age
determination, by seeking evidence by obtaining—
(i) the date of birth certificate from the
school, or the matriculation or equivalent
certificate from the concerned examination Board,
if available; and in the absence thereof;
(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;
(iii) and only in the absence of (i) and
(ii) above, age shall be determined by an
ossification test or any other latest medical age
determination test conducted on the orders of the
Committee or the Board:
Provided such age determination test
conducted on the order of the Committee or the
Board shall be completed within fifteen days from
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the date of such order. (3) The age recorded by the
Committee or the Board to be the age of person so
brought before it shall, for the purpose of this Act,
be deemed to be the true age of that person”.
53. We may now refer to Section 4 of the un-amended
POCSO Act, which reads as under :
“4. Punishment for penetrative sexual
assault.—Whoever commits penetrative sexual
assault shall be punished with imprisonment of
either description for a term which shall not be
less than seven years but which may extend to
imprisonment for life, and shall also be liable to
fine”.
54. The POCSO Act was amended in the year 2019 to
make punishments more stringent by increasing the minimum
imprisonment term from seven years to ten years for general
cases, and to twenty years for cases involving a child below
sixteen years. Section 4 of the amended POCSO Act, which
came in effect from 16.08.2019, reads as under:
“4. Punishment for penetrative sexual
assault.—[(1)] Whoever commits penetrative sexual
assault shall be punished with imprisonment of either
description for a term which shall not be less than
[ten years] but which may extend to imprisonment
for life, and shall also be liable to fine.
[(2) Whoever commits penetrative sexual
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assault on a child below sixteen years of age shall be
punished with imprisonment for a term which shall
not be less than twenty years, but which may extend
to imprisonment for life, which shall mean
imprisonment for the remainder of natural life of that
person and shall also be liable to fine.
(3) The fine imposed under sub-section (1)
shall be just and reasonable and paid to the victim to
meet the medical expenses and rehabilitation of such
victim.]”
55. Nonetheless, the aforesaid amendment would have
no bearing upon the case of the appellant as the amendment
came into effect on 16.08.2019, however the occurrence in the
present case took place in the year 2018.
56. At the same time, Section 376 (1) of the Indian
Penal Code prior to its amendment, which came into force on
21.04.2018, reads as under:-
“376. Punishment for rape.- (1) Whoever,
except in the cases provided for in sub-section (2),
commits rape, shall be punished with rigorous
imprisonment of either description for a term which
shall not be less than seven years, but which may
extend to imprisonment for life, and shall also be
liable to fine”.
57. However, the Indian Penal Code was amended in
the year 2018 and after the said amendment, Section 376(1)
reads as under :
“376. Punishment for rape.- (1)
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Whoever, except in the cases provided for in sub-
section (2), commits rape, shall be punished with
rigorous imprisonment of either description for a
term which shall not be less than ten years, but
which may extend to imprisonment for life, and
shall also be liable to fine”.
58. Further, a new sub-section (3) has been inserted in
Section 376 of the Indian Penal Code and it reads as under :
“(3) Whoever, commits rape on a woman
under sixteen years of age shall be punished with
rigorous imprisonment for a term which shall not be
less than twenty years, but which may extend to
imprisonment for life, which shall mean
imprisonment for the remainder of that person’s
natural life, and shall also be liable to fine”.
59. The purpose of the amendment of the Indian Penal
Code brought in the year 2018 seems to bring in a deterrent
effect by making the punishment severe and stringent and
making it subjective to the age of the victim as also to protect
such children from the roving eyes of sexual marauders so that
such person would refrain from any misadventure considering
the severity of the sentence. However, it is a matter of study
whether making punishment more severe has/had the desired
effect. The amendment in the Indian Penal Code providing for
harsher punishment would come into play in the light of Section
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42 of the POCSO Act, 2012. Section 42 read as under :
“42. Alternate punishment.- Where an
act or omission constitutes an offence punishable
under this Act and also under sections 166-A, 354-
A, 354-B, 354-C, 354-D, 370, 370-A, 375, 376,
376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA,
376DB, 376-E, section 509 of the Indian Penal
Code (45 of 1860) or section 67-B of the
Information Technology Act, 2000 (21 of 2000),
then, notwithstanding anything contained in any
law for the time being in force, the offender found
guilty of such offence shall be liable to punishment
under this Act or under the Indian Penal Code as
provides for punishment which is greater in
degree”.
60. Therefore, it is clear that when an offence which is
punishable under POCSO Act, 2012 is also an offence under the
Indian Penal Code, the law provides that offender shall be liable
to be punished either under the POCSO Act or under the Indian
Penal Code so far as it provides for punishment which is greater
in degree.
61. A bare perusal of Section 94 of the JJ Act, 2015
makes it clear that for determination of age of the victim, the
documentary evidence in the form of birth certificate from the
school, or the matriculation or equivalent certificate from the
concerned examination Board is to be first looked into and in
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absence thereof; the birth certificate given by a corporation or a
municipal authority or a panchayat is to be looked into and only
in absence of the above documents/certificates, the age shall be
determined by an ossification test or any other latest medical
age determination test.
62. In the case at hand, there could be no
matriculation or equivalent certificate as the victim girl
deposing as P.W.5 has stated in her cross-examination that she
has studied only up to Class-8 and then she has dropped her
studies after the occurrence. Then comes to the consideration of
the birth certificate given by a Corporation or a municipal
authority or a panchayat or the school first attended to prove the
age of the prosecutrix, but the prosecution has failed to bring on
record any such document and has further failed to show why
the said document was not produced. Nonetheless, we find that
the victim girl was subjected to medical examination for
determination of her age and on the basis of X-ray of right
elbow, right wrist and pelvis area, the doctor has concluded that
the age of the victim was about 15 years.
63. It is pertinent to take note of the fact here that no
Medical Board was constituted for determination of age of the
prosecutrix though victim was referred to radiologist for
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determination of her age. Similarly, the reference range in
determination of age has not been mentioned in the report of
doctor (P.W.8), rather the doctor has concluded that the age of
the victim was about 15 years. It is to be noted that the medical
test though gives us the estimation of age but it does not provide
us with the precise and definite age. It rather gives us a
reference range which, generally has a margin error of +/-2
years. The Hon’ble Supreme Court in the case of Jaya Mala vs.
Home Secretary, Govt. of Jammu & Kashmir, reported in AIR
1982 SC 1297, has held that judicial notice can be taken that the
error of margin to be applied in the determination of age of the
victim is two years on either side. In the present case, as per the
report of doctor, the age of the victim was about 15 years and
therefore, taking the margin of two years in favour of the
appellant, it can safely be said that the age of the victim on the
date of occurrence could be more than 16 years. However, the
age of the victim would still come to be below 18 years and
therefore, she would be a child for the purpose of POCSO Act.
64. Moreover, the opinion has been given by an
individual medical practitioner and not by any medical board
which might have consisted of a psychologist, radiologist and a
dentist. Therefore, there appears to be some doubt over the
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correct age of the victim/prosecutrix. It is a well settled law that
in case there is any doubt over the age of the victim, under the
criminal law jurisprudence, the benefit would go to the accused
and in the instant case the appellant. The Hon’ble Supreme
Court in the case of Sunil vs. State of Haryana, reported in
(2010) 1 SCC 742 has held that in a criminal case, the
conviction of the appellant cannot be based on an approximate
date which is not supported by any record. It would be quite
unsafe to base conviction on an approximate date. This
observation was made when the appellant was facing allegation
of rape of a minor.
65. Thus, we are of the view that the appellant has
succeeded in proving that the prosecutrix was aged more than
16 years on the date of occurrence, hence the appellant could
avoid the severity of minimum punishment as the punishment
which could be inflicted upon the appellant would be a
minimum of 7 years and maximum of life imprisonment.
66. There is yet another aspect of the matter that the
amendment in the Indian Penal Code prescribing minimum
sentence of 10 years for penetrating sexual assault came into
effect on 21.04.2018. We have already discussed and found the
prosecution story about the appellant committing rape with the
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prosecutrix in the month of Chaitra 2018 to have been proved
beyond all reasonable doubts. Now taking sua sponte judicial
notice of the calendars of the year 2018, it appears that Chaitra
started from 22.03.2018 and ended on 21.04.2018, thus it can be
safely assumed that the occurrence took place in-between
22.03.2018 and 21.04.2018. As the amendment in Section 376
of Indian Penal Code came into effect on 21.04.2018, the case
of the appellant would be covered by the sentence provided
under the un-amended Section 376 of Indian Penal Code which
prescribes a minimum sentence of 7 years, which may extend to
life imprisonment for life.
67. Therefore, the minimum sentence which can be
imposed upon the appellant would be 7 years which may extend
to life imprisonment with fine, however in the present case, the
learned trial court has imposed the sentence of life
imprisonment upon the appellant herein.
68. In the light of the discussions made here-in-before
and for the forgoing reasons, we have no hesitation in holding
that the appellant has rightly been convicted by the learned trial
court, hence the judgment of conviction dated 23.12.2019
passed by the learned court of Special Judge-cum-Additional
District and Sessions Judge-1, Jamui, against the appellant is
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hereby confirmed.
69. No doubt, the offence committed by the appellant
is heinous and reprehensible, still considering the fact that the
appellant is stated to be a middle aged man having wife and five
children and further considering the fact that the appellant is in
custody since 07.07.2018, i.e., since about quarter to eight years
as also considering the clean antecedent of the appellant, we are
of the considered opinion that a liberal view can be taken on the
issue of sentence by reducing the term of sentence to the period
of imprisonment already undergone by the appellant in this case.
70. Consequently, the judgment of conviction dated
23.12.2019 is upheld and the order of sentence dated
06.01.2020, passed by the learned court of Special Judge-cum-
Additional District and Sessions Judge-1, Jamui in Protection of
Children from Sexual Offences (POCSO) Special Case No.
23/2018, arising out of Jamui Mahila P.S. Case No. 40/2018, is
modified and reduced to the period of imprisonment already
undergone by the appellant. However, the amount of fine as
imposed by the learned trial court will remain the same and in
default of payment thereof, the appellant shall undergo six
month’s additional imprisonment. Accordingly, the appellant is
directed to be released from jail forthwith unless required in any
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other case.
71. With the aforesaid modification in the order of
sentence dated 06.01.2020, the present appeal is partly allowed
to the said extent.
72. Let the lower court records be sent to the learned
trial court, henceforth.
73. Ms. Akanksha Malviya, Amicus Curiae was
appointed to assist this Court on behalf of the respondent no.2.
We put on record our words of appreciation for able assistance
rendered by her. The Patna High Court Legal Services
Committee is hereby directed to pay a sum of Rs. 10,000/-
(Rupees Ten Thousand Only) to her towards her professional
fee.
(Mohit Kumar Shah, J)
( Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR AFR
CAV DATE 17.03.2026
Uploading Date 14.05.2026
Transmission Date 14.05.2026
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