Patna High Court
RANJAY SINGHversusTHE STATE OF BIHAR
- Decided
- Disposal
- ALLOWED
Holding
The appellate court set aside the conviction, finding that the trial court failed to establish the victim’s age and relied on insufficient and inconsistent evidence, and therefore the appeal is allowed.
Summary
The appellant Ranjay Singh was convicted by a Special Court under Section 376(3) IPC and Section 5(j)(ii) read with Section 6 of the POCSO Act for raping a minor who later became pregnant. The trial court relied mainly on the victim’s testimony and medical reports but failed to determine the victim’s age as required by Section 34 of the POCSO Act and the Juvenile Justice Act. The appellate court noted serious evidential gaps, including the non‑disclosure of the doctors who treated the victim, lack of DNA or forensic corroboration, and non‑compliance with Section 53A CrPC for a medical examination of the accused. It also held that the conviction was based on a provision (Section 376(3) IPC) that was not in force at the time of the alleged offence and that applying the amended provision retrospectively was impermissible. Consequently, the court set aside the conviction, ordered the appellant’s release, and directed the trial court to be sent the records. The appeal was therefore allowed.
Issues considered
- Whether the trial court correctly applied Section 376(3) IPC and the amended provisions of the POCSO Act to an offence that occurred before their retrospective commencement.
- Whether the age of the alleged victim was properly determined in accordance with Section 34 of the POCSO Act and Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
- Whether the conviction can be sustained on the sole testimony of the victim without corroborative forensic or documentary evidence.
- Whether the procedural requirement of a medical examination of the accused under Section 53A CrPC was complied with.
- Whether the trial court erred in convicting the appellant despite inconsistencies in the statements of the victim, her mother, and the father.
Legislation cited
- Code of Criminal Procedure — s. 164, 313, 53A
- Criminal Law (Amendment) Act, 2018 — s. Insertion of Section 376(3) IPC
- Indian Penal Code — s. 376(3)
- Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 94
- Protection of Children from Sexual Offences Act — s. 29, 30, 34, 42, 5(j)(ii), 6
Subjects
- rape
- child sexual abuse
- POCSO Act
- age determination
- retrospective legislation
- conviction set aside
- medical evidence
- procedural lapse
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.324 of 2023
Arising Out of PS. Case No.-284 Year-2018 Thana- BEGUSARAI MUFFASIL District-
Begusarai
======================================================
Ranjay Singh, S/O Late Bogo Singh, Resident of Jagdishpur Tarbana, P.S.-
Muffasil (Lakho) O.P., Distt.- Begusarai (Bihar).
... ... Appellant
Versus
1. The State of Bihar
2. Father of Victim, S/O Yugal Rai, Resident of Jagdishpur, P.S.- Muffasil
(Lakho) O.P, Distt.- Begusarai (Bihar).
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Mayank Mani, Advocate
Mr. Jai Prakash Singh, Advocate
For the State : Mr. Abhimanyu Sharma, Addl.PP
For the Resp No. 2 : None
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 01-07-2026
Heard learned counsel for the appellant and learned
Additional Public Prosecutor for the State.
2. Despite valid service of notice on Respondent No. 2,
no one has entered appearance on his behalf to oppose the appeal.
3. The present appeal has been preferred for setting
aside the judgment of conviction dated 02.02.2023 (hereinafter
referred to as the ‘impugned judgment’) and the order of sentence
dated 06.02.2023 (hereinafter referred to as the ‘impugned order’)
passed by learned Exclusive Special Court (POCSO Act)-cum-6th
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Additional Sessions Judge, Begusarai (hereinafter referred to as
the ‘learned trial court’) in POCSO Case No. 73 of 2018 arising
out of Muffasil (Lakho O.P.) P.S. Case No. 284 of 2018. By the
impugned judgment, the appellant has been convicted for the
offences punishable under Section 376(3) of the Indian Penal Code
(in short ‘IPC’) and Section 5(j)(ii) read with Section 6 of the
Protection of Children from Sexual Offences Act (in short 'POCSO
Act'). By the impugned order, he has been sentenced to undergo
rigorous imprisonment for twenty years with a fine of Rs.50,000/-
under Section 5(j)(ii)/6 of the POCSO Act and in default of
payment of fine, he shall further undergo simple imprisonment for
six months.
Prosecution Case
4. The prosecution case is based on the written
application of the father of the victim (PW-2) wherein he has
stated that on 25.05.2018 at around 08:00 A.M., his daughter told
him that her stomach is aching. Then for treatment, he brought his
daughter to the nearby private hospital, where the doctor told him
that his daughter is pregnant. Thereafter, when the informant
repeatedly asked his daughter then she told him that about 5-6
months ago, when she was coming from school alone, then (1)
Ranjay Singh (appellant) and (2) Gaurav Kumar caught hold of her
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and took her inside the maize field and committed rape upon her
one after another. The victim also alleged that they threatened her
not to disclose this to anyone otherwise they will kill her and her
father.
5. On the basis of the aforesaid written information of
the informant, FIR being Muffasil (Lakho O.P.) P.S. Case No. 284
of 2018 dated 25.05.2018 was registered under Section 376 IPC
and Sections 8 and 12 of the POCSO Act against (1) Ranjay Singh
and (2) Gaurav Kumar. After investigation, Police submitted first
chargesheet bearing Chargesheet No. 435 of 2018 dated
20.07.2018 against Gaurav Kumar keeping investigation pending
against Ranjay Kumar. Learned trial court vide order dated
06.08.2018 took cognizance of the offence punishable under
Sections 376 of the IPC as well as under Sections 8 and 12 of the
POCSO Act against accused Gaurav Kumar and after finding him
juvenile in conflict with law, learned trial court sent his records to
the Juvenile Justice Board, Begusarai vide order dated 06.08.2018
and ordered for opening of supplementary records against Ranjay
Singh (appellant herein).
6. Later on, supplementary Chargesheet No. 497 of 2018
dated 31.08.2018 was submitted against Ranjay Singh (this
appellant) under Sections 376(D), 313, 506/34 IPC and Section
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5(8) of the POCSO Act. Vide order dated 06.03.2019, learned trial
court found that the cognizance of the offence in this case has
already been taken, accordingly, fixed the case for supply of police
papers. After supply of police papers, charges were explained to
the appellant in Hindi which he denied and claimed to be tried,
accordingly, the charges were framed vide order dated 08.04.2019
under Section 376 IPC and Sections 8 and 12 of the POCSO Act.
7. In course of trial, the prosecution examined as many
as ten witnesses and exhibited several documents. The list of
prosecution witnesses and the documents are given hereunder in
tabular form:-
List of Prosecution witnesses
Prosecution Name of Witness Description of the Witness
Witness No.
P.W-1 Dr. Kamini Ray Medical Officer
P.W-2 Informant Father of the Victim
P.W-3 Mother of the victim
P.W-4 Uncle of the victim
P.W-5 X Victim
P.W-6 Dr. Aasha Kumari Member of Medical Board
P.W-7 Dr. Shashi Prabha Member of Medical Board
P.W-8 Dr. Rampravesh Prasad Member of Medical Board
P.W-9 Dr. Arun Kumar Member of Medical Board
P.W-10 Parsuram Sharma Investigating Officer
List of Exhibits on behalf of Prosecution
Exhibit No. Description of the Exhibit Proved by/ Attested by
Ext.- P1 Signature of PW-3 on the PW-3
Statement of the Victim
Ext.- P1/1 Signature of the Victim PW-5
Ext. - P2 Signature of PW-6 on Medical PW-6
Report
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Ext. - P2/1 Signature of PW-1 on Medical PW-1
Report
Ext. - P2/2 Signature of PW-7 on Medical PW-7
Report
Ext. - P2/3 Signature of PW-8 on Medical PW-8
Report
Ext. - P2/4 Signature of PW-9 on Medical PW-9
Report
Ext. - P3 Formal FIR PW-10
Ext. - P4 Suppl. Chargesheet PW-10
8. Thereafter, the statement of the appellant was
recorded under Section 313 of the Code of Criminal Procedure (in
short ‘CrPC’). The appellant in his 313 CrPC statement denied the
allegations and stated that to usurp his land, Mukhiya of the
village has falsely been implicated him in this case and also stated
that victim was about to get married with co-accused Gaurav.
9. The Defence has also produced three witnesses and
some documentary evidence which are being mentioned
hereunder in tabular form:-
List of Defence witnesses
Prosecution Name of Witness Description of the Witness
Witness No.
D.W-1 Malti Devi Neighbour
D.W-2 Shivanand Sah
D.W-3 Mahendra Sah
List of Exhibits on behalf of Defence
Exhibit No. Description of the Proved by/ Attested by
Exhibit
Ext.- D1 Postal Receipt
Ext. - D2 Report of Block Cooperative
Extension Officer, Begusarai
Ext. - D3 Signature of Ranjeet Kumar DW-3
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Singh on petition dated
26.11.2016.
Finding of the Learned Trial Court
10. Learned trial court, having gone through the
evidences brought on record by the prosecution, found that the
prosecution has been able to prove the charges under Section
376(3) IPC and under Section 5(j)(ii) read with Section 6 of the
POCSO Act.
11. The learned trial court found that the defence has not
disputed the age of the victim and the defence has not even
evasively denied the age of the victim and learned trial court came
to the conclusion that the victim was “child” as per definition under
Section 2(d) of the POCSO Act on the date of alleged occurrence.
12. Taking note of the medical evidences together with
the evidences of the doctors (PW-6, PW-7, PW-8 and PW-9) who
were the members of the Medical Board, the learned trial court
opined that there is sufficient believable evidence on the record that
the minor victim was sexually assaulted resulting in pregnancy and
when the parents of the victim came to know this fact, she was
taken to doctor who examined the victim and carried out a
miscarriage of the pregnancy.
13. On the point of involvement of the accused in the
alleged offence, the learned trial court took the evidence of the
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victim and came to a finding that there is evidence on record that
the accused (appellant herein) along with co-accused Gaurav
committed penetrative sexual assault on the person of the victim
resulting in pregnancy later on miscarriage.
14. On the point of defence of the accused, the learned
trial court found that three defence witnesses were examined out of
whom DW-1 has admitted that the victim was carrying pregnancy
and has not stated anything with regard to land dispute of the
present accused with the mukhiya in the village. Regarding DW-2
and DW-3, the learned trial court opined that evidence of these
witnesses regarding land dispute cannot be believed without any
corroboration. The learned trial court found the defence evidence to
be trembling.
15. Taking note of the evidences of the prosecution, the
learned trial court found reason to believe that the prosecution has
established a strong foundation of the allegation made against the
accused and in view of the provisions of Sections 29 and 30 of the
POCSO Act, the defence has not been able to prove his innocence
and has also not been able to prove that he did not have any
culpable mental state in commission of the offence and
accordingly, the learned trial court found that the prosecution has
been able to prove the charges against the appellant.
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Submissions on behalf of the Appellant
16. Learned counsel for the appellant while assailing the
impugned judgment and order of the learned trial court submits that
the learned trial court has committed grave error in convicting the
appellant.
17. Learned counsel for the appellant submits that
informant has not disclosed the name of the doctor to whom the
victim was first taken. Learned counsel submits that the first doctor
who disclosed to the informant that the victim (PW-5) was carrying
a pregnancy has not been examined in course of investigation and
trial.
18. Learned counsel for the appellant while referring to 164
CrPC statement submits that the victim (PW-5) has made further
statements that about 1-2 months ago, while she was going to attend
nature’s call, then Gaurav Kumar (stand acquitted) gagged her by her
mouth and made her to take a tablet, whereafter she suffered
abdomen pain. The victim thereafter stated that her mother brought
her to a compounder in the village who did not give her any
medicine, thereafter, on asking of her mother she disclosed the entire
occurrence. The victim’s mother went to police station with the
victim where she suffered pain and a dead child was delivered. She
has further disclosed that her mother took her to her house where she
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was given medicines. Learned counsel submits that it shows that
within three days of lodging of the FIR, the victim came out with
added story which were not disclosed at the time of lodging the FIR.
19. Learned counsel for the appellant submits that mother
(PW-3) of the victim in her deposition deposed that she took the
victim to a doctor for abortion and then she has stated that the victim
had suffered abortion in the police station itself and police had seen
the child who was delivered dead for which no paper was prepared. It
is stated that Police asked her to throw away the child. Name of the
doctor to whom the victim was taken for abortion has not been
disclosed by PW-3. Learned counsel submits that at every stage, the
name of the doctor has not been disclosed.
20. Learned counsel for the appellant submits that there is a
delay in lodging of the FIR and no cogent explanation has been given
for the delay.
21. Learned counsel for the appellant further submits that
the victim claimed that she was studying in Class-V in a school but
she could not produce the proof of her age. Learned counsel submits
that the I.O. also has not procured any proof of the age of the victim.
22. Learned counsel for the appellant submits that for
taking undue advantage from the appellant, false case had been
registered against him and no such occurrence had taken place and
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the learned trial court has erroneously held the appellant guilty
shifting the burden upon the defence to prove his innocence without
any material to prove the foundational facts.
Submission of the State
23. Learned Additional Public Prosecutor for the State
has opposed the appeal by submitting that the testimonies of the
victim and other witnesses are consistent throughout the trial.
There are no material contradictions or discrepancies affecting the
core of the prosecution case. Learned Additional Prosecutor for the
State submits that the medical examination report of the victim
corroborates the prosecution case. Therefore, the learned trial court
has rightly convicted the appellant by carefully considering the
evidence available on the record.
Consideration
24. Having heard learned counsel for the appellant and
learned Additional Public Prosecutor for the State as also on perusal
of the records, this Court finds that on the basis of a written
information submitted on 25.05.2018 at 8:00 AM by the father (PW-
2) of the victim girl (PW-5), a First Information Report has been
registered, giving rise to Muffasil (Lakho) P.S. Case No. 284 of 2018,
dated 25.05.2018 under Section 376 IPC and Section 8/12 of the
POCSO Act. From the formal FIR (Exhibit ‘P/3’), it is evident that
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the information is said to have been received in the police station on
25.05.2018 at 22:30 Hrs. The FIR was received in the court of
learned Special Judge, POCSO Act on 27.05.2018, i.e. after one day
from the date of registration of the FIR.
25. In the written information, it is stated that the daughter
of the informant felt abdomen pain on 25.05.2018 at 8:00 AM. She
was taken to a private doctor for treatment but the informant has not
disclosed the name of the doctor to whom the victim was first taken.
Neither in the written information nor in course of her deposition in
course of trial, she has disclosed the name of the doctor, therefore,
the first doctor who disclosed to the informant that the victim (PW-5)
was carrying a pregnancy has not been examined in course of
investigation and trial.
26. It is further found that on asking of the informant, the
victim girl is said to have disclosed that two named persons, one of
whom is this appellant, had committed rape on her about 5-6 months
back when the victim was returning from her middle school. In the
written information, the name of the middle school where the victim
was studying and from where she is said to be returning has not been
disclosed. To explain the delay in lodging of the FIR, the written
information states that the accused persons had threatened to kill her
father, therefore, the victim had not disclosed the occurrence.
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27. The statement of the victim recorded under Section 164
CrPC on 28th May, 2018 (Exhibit ‘01/01’) is on the record. In this
statement, besides stating about the occurrence, the victim has made
further statements that about 1-2 months back, when she was going to
defecate, then Gaurav Kumar (stand acquitted) gagged her by her
mouth and made her to take a tablet, whereafter she had abdomen
pain. The victim (PW-5) stated that her mother took her to a
compounder in the village who did not give her any medicine,
thereafter, her mother asked her and she disclosed the entire
occurrence. Her mother took her to police station where she had pain
and the dead child was delivered. She has further stated that her
mother took her to her house where she was given medicines. It is
evident that within three days of lodging of the FIR, the victim came
out with some very material information which were not disclosed at
the time of lodging the FIR.
28. It is important to note that during her 164 CrPC
statement, the victim disclosed to the learned Special Judge, POCSO
Act, Begusarai that she was a student of Class-V but again she did
not disclose the name of her school.
29. PW-1, PW-6, PW-7, PW-8, and PW-9 are the doctors
who had occasion to examine the victim. Dr. Kamini Rai (PW-1) had
examined the victim, and her signature on the medical report has
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been marked Exhibit ‘1’. PW-1 has stated in her cross-examination
that she had not stated in her report the reasons for abortion.
30. Dr. Asha Kumari (PW-6) has stated that “history of 4
months amenorrhea and aborted female fetus on 25th May, 2018”.
The internal findings showed blood mixed watery discharge present,
hymen torn and vaginal swab taken and sent to pathologist. The
vaginal swab for examination of spermatozoa showed spermatozoa
found and the USG of lower abdomen showed uterus is bulky, hypo
echoic and shows plenty of hyper echoic debris in cavity. Ovaries
are normal, postpartum uterus with lochia/RPOC. The doctor opined
that bulky uterus and fresh lochia suggest recent termination of
pregnancy. The medical report has been marked Exhibit ‘2’.
31. In her cross-examination, PW-6 has stated that she was
told about abortion by the victim and the person who brought the
victim to her. On external examination of the victim, the doctor found
no injury on any part of the body including front and back. According
to the report, abortion may take place within 1-4 days but she had not
mentioned the date of abortion. Dr. Shashi Prabha (PW-7) is the
another member of the Medical Board who has opined the same.
32. Dr. Rampravesh Prasad (PW-8) has assessed the age of
the victim girl and on the basis of the dental details and dental
radiological findings, the age of the victim has been assessed
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between 14 to 15 years. The report issued by Dr. Rampravesh Prasad
(PW-8) has been marked Exhibit ‘02/03’. In his cross-examination,
PW-8 has stated that the victim had eight premolars and eight molars
at the time of examination. Dr. Arun Kumar (PW-9) has stated that
finding last molar teeth not erupted on both sides of mandible, hence
on the basis of radiological and dental findings, the age of the victim
lies between 14 to 15 years. The medical report issued by PW-9 has
been marked Exhibit ‘02/04’.
33. Father of the victim (PW-2) has stated in his
examination-in-chief that when the victim was taken to the doctor,
the doctor disclosed that she was carrying a pregnancy of seven
months, thereafter, the victim disclosed about the occurrence. In his
examination-in-chief, PW-2 has not stated anything about the
abortion at the police station. He has also not stated that the victim
was administered a tablet by Gaurav about 1-2 months back. He
disclosed that her daughter was studying in Bhagwanpur School,
other 2-4 girls from the village were studying with her and all the
girls were coming and going together.
34. In his cross-examination, PW-2 has disclosed that
Ranjay Singh (the appellant) resides besides his house, he carries
several litigations but the witness has stated that he cannot produce
any paper. He has stated that he had no case with Ranjay Singh. He
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has stated that his family is on visiting term with Ranjay Singh
because he happened to be neighbour. In his cross-examination, PW-
2 has stated that the victim had delivered the child at the police
station and the child died at the police station itself.
35. This Court finds from the deposition of PW-2 that he
claims visiting relationship with family of Ranjay Singh, but when
this Court examines the evidence of the mother of the victim (PW-3)
it is noticed that in paragraph ‘7’ of her deposition, she has stated that
they were not on talking terms. She has also stated that when she
found changes in the physical features of her daughter, she took her
to a doctor. She has clearly stated that she had gone to the doctor for
abortion. Then she has stated that the victim had suffered abortion in
the police station itself and police had seen the child who was
delivered dead but no paper was prepared. Police told her to throw
away the child. PW-3 is not disclosing the name of the doctor to
whom the victim was taken for abortion. It is evident that at every
stage, the name of the doctor has been withheld.
36. It further appears that in her examination-in-chief, PW-
3 has stated that her daughter had a pregnancy of 7-8 months and she
was taken to a government hospital for treatment where doctor said
about her pregnancy. In her examination-in-chief, she has not stated
that her daughter had given birth to a child in the police station. The
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name of the government hospital has not been disclosed. There is no
reason to explain why the name of the government hospital or the
private doctor to whom the victim was taken could not be disclosed
by the mother of the victim (PW-3). The prosecution witnesses were
suggested that for taking undue advantage from the appellant, false
case had been registered against him and no such occurrence had
taken place.
37. On perusal of the evidence of PW-4, who is uncle of
the victim, it would appear that the victim girl had not disclosed the
occurrence to him. PW-4 was cross-examined on the age of the
victim and he has stated that the victim was eleven years old, which
he was saying on estimation basis. He denied the suggestion that the
victim was sixteen years old at the time of occurrence. He has stated
that there was no rumour about rape in the village. It spread after 7-8
months. PW-4 has disclosed that Gaurav has already been acquitted
in this case. This witness has further stated that there is no visiting
term between the family of the appellant and the family of the
witness. This witness is brother of the informant, therefore, the
defence has suggested that he was falsely deposing in favor of the
victim.
38. This Court finds that the victim has been examined as
PW-5. In her examination-in-chief, she has stated about the
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occurrence and has stated that she had become pregnant because of
the rape committed on her by Gaurav Kumar and Ranjay Singh. She
has stated that after 6-7 months when she was going home after
studying, then on way there was a gaachhi (orchard) where she was
given a tablet which caused abdomen pain, which she disclosed to
her mother and then she was taken to Sadar Hospital where
government doctor had examined her and told that the child has
already died, thereafter they went to police station. In her
examination-in-chief, the victim has not stated that she had delivered
a dead child at the police station. The medical papers/documents of
the Sadar Hospital where she was taken by her mother has not been
brought on record by the prosecution.
39. This Court further finds that in course of her cross-
examination, the defence questioned the victim about the proof of her
age but she clearly said that she cannot produce any document
relating to her age. In paragraph ‘10’ of her cross examination, PW-5
has stated that she had no complaint against Ranjay Singh.
40. The I.O. of this case has been examined as PW-10. In
his examination-in-chief, the I.O. has not stated about delivery of
dead child by the victim at the police station. He had taken charge of
the investigation on the same day from the Officer-in-charge Lal
Mohan Singh. He has proved the formal FIR (Exhibit ‘P/3’) which
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has been drawn in the handwriting and under signature of Lal Mohan
Singh (not examined).
41. Contrary to the statement of the father of the victim that
the appellant had several cases on his head, the I.O. (PW-10) has
stated that the appellant had no criminal antecedent. In his cross-
examination, PW-10 has stated that he used to visit the village in
which the place of occurrence is situated and he had gone several
times in the village but he had not heard anything about the
occurrence. He had not submitted any proof of age of the victim and
he had not investigated on the point as to whether the victim had
attended the school. PW-10 has stated that the victim had told that
she had delivered the dead child at the police station. PW-10 had not
seized the delivered child. This Court finds that the I.O. (PW-10) has
not stated or corroborated the statement of the victim that she had
delivered a dead child at the police station.
42. On a complete reading of the evidences available on
the record, this Court finds that in this case, the age of the victim has
been questioned by the defence. The victim was studying in Class-V
in a school but she has clearly stated that she cannot produce the
proof of her age. The I.O. did not submit any proof of the age of the
victim. Apparently, the prosecution has withheld the age of the victim
as per her school admission register. Proof of age of the victim is an
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essential requirement to bring a case under the scope and ambit of
POCSO Act.
43. It, however appears that the learned trial court has not
at all considered this aspect of the matter and the age of the victim
(PW-5) has not been duly determined. Section 34 of the POCSO Act
provides for the procedure in case of commission of offence by child
and determination of age by the Special Court. Sub-section (2) of
Section 34 of the POCSO Act states as under:-
(2) 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 in writing its reasons for
such determination.”
44. The scheme for determination of age of a child is
provided under Section 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (hereinafter referred to as ‘the Act
of 2015’). Section 94 of the Act of 2015 is being extracted hereunder
for a ready reference:-
“94. Presumption and determination of age.
(1) Where, it is obvious to the Committee or 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
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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 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.”
45. In view of the aforesaid scheme, the prosecution was
obliged to bring before the learned trial court the date of birth
certificate from the school and only in absence of the same, the age
of the victim may be determined by an ossification test or any other
latest medical age determination test conducted on the orders of the
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committee or the Board. In this case, the fact is that the learned trial
court has not determined the age of the victim girl and the medical
age shown in the medical reports, on which Doctors PW-1, PW-6,
PW-7, PW-8, PW-9 have identified their signatures as Exhibits
‘P2/1’, ‘P2’, ‘P2/2’, ‘P2/3’, ‘P2/4’ respectively, are not on the orders
of the Board or the Committee within the meaning of Clause 10 of
Section 2 and Clause 22 of Section 2 of the Act of 2015 respectively.
In absence of the determination of age of the victim, the basic
foundation as envisaged under Section 29 of the POCSO Act cannot
be said to be laid down by the prosecution.
46. The learned trial court has convicted the appellant
under sub-section (3) of Section 376 IPC, however, on the date of
occurrence, sub-section (3) was not in existence. Sub-section (3) has
been inserted by Act 22 of 2018 with retrospective effect from
21.04.2018. The Criminal Law Amendment Act, 2018 was published
on 11th August, 2018 but it has been made effective from 21st April,
2018. By Section 4 of the Amendment Act, 2018 after sub-section
(2), sub-section (3) was inserted. By the same amendment under sub-
section (1) after the words "shall not be less than 7 years but which
may extend to imprisonment for life and shall also be liable to fine"
the words "shall not be less than 10 years, but which may extend to
Patna High Court CR. APP (DB) No.324 of 2023 dt.01-07-2026
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imprisonment for life, and shall also be liable to fine" has been
substituted.
47. From the analysis of evidences present on the record,
this Court finds that while the informant has stated that the victim
was taken to a private doctor for treatment where the victim had
disclosed to the informant about the occurrence, the mother of the
victim (PW-3) has stated that her daughter had a pregnancy of 7-8
months and she was taken to a government hospital for treatment.
She has not named the government hospital but the victim (PW-5)
has stated that she was taken to Sadar Hospital where government
doctor had examined her and told her that the child had already died,
thereafter they went to the police station. It is evident on analysing
these statements of the prosecution witnesses that the prosecution is
not disclosing the name of the private doctor or the government
hospital or that of the doctor who treated the victim in the Sadar
Hospital. No document showing treatment of the victim girl by any
doctor during her pregnancy has been brought on record. The I.O.
had not conducted any investigation and had not examined any
doctor who had treated the victim prior to her visiting to the police
station. The statement of the victim that the doctor told her that the
child had already died, then she went to the police station with her
mother and returned to her home from the police station substantially
Patna High Court CR. APP (DB) No.324 of 2023 dt.01-07-2026
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differs with the deposition of her father (PW-2) who has stated in his
cross-examination that the victim had given birth to the child in the
police station and the child died in the police station itself. The
mother of the victim (PW-3) has stated in her examination-in-chief
that her daughter had given birth to the child but that child was dead.
In her examination-in-chief, she does not say that her daughter had
aborted in the police station but in the cross-examination PW-3 says
that she had gone to the doctor for abortion and then she says that the
abortion had taken place in the police station and that child was seen
by the police but no paper was prepared. These statements of PW-2
and PW-3 are in conflict with the statement of the victim (PW-5) who
has stated that the doctor told her that the child had already died and
only thereafter she had gone to the police station. The victim has not
stated that she had given birth to a child in the police station and the
child was dead. Surprisingly, she has stated in paragraph ‘10’ of her
deposition that she had no complaint against Ranjay Singh (the
appellant).
48. From these evidences on the record, it is not well
proved that the victim girl had been carrying pregnancy caused by
rape committed on her by the appellant. Gaurav Kumar, who was the
co-accused with the appellant, has already been acquitted by the
learned trial court. In his 313 CrPC statement, the appellant has taken
Patna High Court CR. APP (DB) No.324 of 2023 dt.01-07-2026
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a plea that to usurp his land, Mukhiyaji got him falsely implicated.
Her marriage was to be performed with Gaurav Kumar.
49. This Court further finds that even as the appellant was
arrested by police and produced in court on 04.08.2018, his medical
examination was not conducted. The allegations against the appellant
was serious in nature and it required compliance with Section 53A of
the CrPC but no compliance has been made by the prosecution.
50. This Court finds that during medical examination the
doctor (PW-6) has stated about a history of 4 months amenorrhea
and aborted female fetus on 25th May, 2018. PW-6 has also stated
about blood mixed watery discharge and spermatozoa found but there
is no further information on this issue and neither any matching of
blood nor matching of semen has been done. The dead child, if any
has been made to disappear. Thus, no DNA test could be conducted
to establish the biological father of the child. The evidence of the
doctors would at best suggest that the victim had undergone abortion
but where the said abortion took place, when the abortion took place
and in whose presence she had aborted the female fetus on 25 th May,
2018 is not known. The prosecution could not establish scientifically
that the aborted child was that of this appellant or of Gaurav Kumar.
A doubt arises as to whether it is a case of over-implication.
Patna High Court CR. APP (DB) No.324 of 2023 dt.01-07-2026
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51. We have noticed from the defence evidences that the
appellant is a member of the PACS. PW-1 has stated that he knows
the appellant who is a driver and member of the PACS but there was
no complaint against him in the village. He came to know from the
rumour that the victim had a pregnancy of 7-8 months. Shivnandan
Sah (DW-2) has stated that the informant and his brother were
working with Mukhiyaji and wife of the informant was also working
in his house. Mukhiyaji of Sahpur and Mukhiyaji had inimical
relationship with Ranjay Singh for 7-8 years on account of some
transactions in the PACS.
52. While this Court finds that there are some evidence that
the victim girl had suffered abortion but save and except the
statement of the victim that she was subjected to rape 6-7 months ago
by this appellant and one Gaurav Kumar, there is no corroborating
evidence to take a safe view of the matter that the appellant is guilty
of commission of rape on the victim girl. Suppression of age of the
victim has to be kept in mind and the fact that the prosecution
witnesses are not wholly reliable would further create doubt in the
mind of this Court in taking a clear view of the commission of
offence by this appellant. The victim in this case is not a wholly
reliable witness. She has stated that she had no complaint against this
Patna High Court CR. APP (DB) No.324 of 2023 dt.01-07-2026
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appellant. This statement of the victim is significant. Why is she
saying that she had no complaint with the appellant.
53. We have further noticed that the occurrence in this case is
said to have taken place about 6-7 months prior to the date of lodgment
of the case i.e. 25.05.2018. The date of occurrence would, therefore,
relate back to 6-7 months prior to 25.05.2018. At the relevant time,
Section 376(3) IPC was not in existence. It has been inserted vide
Criminal Law Amendment Act, 2018 with retrospective effect from
21.04.2018. Section 376(3) IPC, Section 5(j)(ii) and Section 6 of the
POCSO Act read as under:-
"376 1[(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:
Provided that such fine shall be just and reasonable to meet the
medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section
shall be paid to the victim.]
5(j)(ii) of the POCSO Act
5(j) Whoever commits penetrative sexual assault on a child,
which-
(i) ......
(ii) in the case of female child, makes the child pregnant as a
consequence of sexual assault;
2[6. Punishment for aggravated penetrative sexual assault.--
(1) Whoever commits aggravated penetrative sexual assault 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 natural life of that person and shall also be liable to
fine, or with death.
(2) 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.] "
1. Inserted by Act 22 of 2018, S.4 (w.r.e.f. 21-4-2018)
2. Substituted by Act 25 of 2019, S. 5 (w.e.f. 16-8-2019). Prior to its substitution, S.6. read as under:- "6.
Punishment for aggravated penetrative sexual assault.- Whoever, commits aggravated penetrative sexual assault,
shall be punished with rigorous imprisonment 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."
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54. On the date of occurrence, i.e. 6-7 months prior to
amendment, the minimum punishment prescribed under these provisions
were 7 years but the learned trial court seems to have proceeded to convict
the appellant under these provisions and awarded him a sentence under the
newly substituted/amended/inserted provisions. The learned trial court has
awarded rigorous imprisonment of 20 years and fine of Rs.50,000/- for
committing offence under Section 5(j)(ii)/6 of the POCSO Act. No
separate sentence has been awarded for the offence under Section 376(3)
IPC in view of the mandate under Section 42 of the POCSO Act.
55. In ultimate analysis, this Court is of the opinion that it
would not be safe to sustain the conviction of the appellant on the basis of
the sole testimony of the victim in this case which this Court has found as
no wholly reliable piece of evidence. The impugned judgment and order
are, therefore, set aside.
56. This appeal is allowed.
57. Let the appellant be released forthwith, if not wanted in any
other case.
58. A copy of the judgment together with the trial court records
be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
(Ritesh Kumar, J)
SUSHMA2/Rishi-
AFR/NAFR
CAV DATE 30.06.2026
Uploading Date 02.07.2026
Transmission Date 02.07.2026
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