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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

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
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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
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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
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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.
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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
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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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