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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

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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