Patna High Court

BIRJU RAM @ BIRJU BABAversusThe State of Bihar

Decided: 10 March 2026
Disposal: ALLOWED
Bench: RAJEEV RANJAN PRASAD SONI SHRIVASTAVA

Holding

The appellate court set aside the conviction, holding that reliance on the untested child witness testimony was unsafe and the procedural deficiencies warranted acquittal.

Summary

The appellant Birju Ram was convicted by a Special POCSO Court for rape of an 11‑year‑old girl under IPC 376(2) and POCSO Sec 6 and sentenced to twenty years rigorous imprisonment. The prosecution’s case rested on the mother’s fardbeyan, the child’s statement recorded under Section 164 CrPC after an eleven‑day delay, and medical reports that showed no external injuries. The appellant, through an amicus curiae, challenged the conviction on grounds of delayed FIR and statement, lack of proof of the victim’s age, non‑compliance with Section 53A CrPC, suppression of an earlier victim statement, and the failure to test the child’s competence under Section 118 of the Evidence Act. The High Court found that the conviction was unsafe, noting the sole reliance on an untested child witness, the procedural lapses, and the improper application of the amended POCSO sentencing provisions. Consequently, the court set aside the conviction, acquitted the appellant, and ordered his release, allowing the appeal.

Issues considered

Whether a conviction under IPC 376(2) and POCSO Sec 6 can be sustained on the sole testimony of a child witness without a competency test under Section 118 of the Evidence Act.
Whether the delay in filing the FIR and recording the victim’s statement under Section 164(5A) CrPC renders the evidence inadmissible.
Whether the age of the victim was duly proved as required under the Juvenile Justice (Care and Protection of Children) Act, 2015.
Whether the suppression of the victim’s earlier statement and the absence of medical evidence defeat the prosecution’s case.
Whether the sentencing applied the correct provisions of the POCSO Act, given the amendment effective from 16 August 2019.

Legislation cited

Code of Criminal Procedure, 1973 — s. 164, 313, 53A
Indian Evidence Act, 1872 — s. 118
Indian Penal Code — s. 376(2)
Juvenile Justice (Care and Protection of Children) Act, 2015
Oaths Act, 1969 — s. 44
Protection of Children from Sexual Offences Act — s. 42, 6

Subjects

rape
POCSO
child witness competence
delay in FIR
acquittal
appeal
evidence
Section 376 IPC
Section 6 POCSO
medical examination

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.407 of 2023
Arising Out of PS. Case No.-636 Year-2018 Thana- AHIYAPUR District- Muzaffarpur
======================================================
Birju Ram @ Birju Baba Son of Khedu Ram R/o Village/Mohalla- Chaturi
Punas, P.S.- Ahiyapur, District- Muzaffarpur ... ... Appellant
Versus
1. The State of Bihar
2. Anita Devi Wife Of Shashi Sahani R/o Village- Raja Punas, P.S.- Ahiyapur,
District- Muzaffarpur
... ... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Prashant Kumar, Amicus Curiae
For the State : Mr. Abhimanyu Sharma, APP
For the Informant : None
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Date : 10-03-2026

We have heard learned counsel for the appellant and

learned Additional Public Prosecutor for the State.

2. Despite proper service of notice on the legal

heir/husband of the informant, no one has entered appearance to

oppose the appeal.

3. This appeal has been preferred for setting aside the

judgment of conviction dated 22.04.2022 (hereinafter referred to as

the ‘impugned judgment’) and the order of sentence dated

28.04.2022 (hereinafter referred to as the ‘impugned order’) passed

by learned Additional District & Sessions Judge-VI-cum Special

Judge, POCSO Act, Muzaffarpur (hereinafter referred to as the
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‘learned trial court’) in POCSO (G.R. No.) 84 of 2018 arising out

of Ahiyapur P.S. Case No. 636 of 2018. By the impugned judgment,

the appellant has been convicted for the offences punishable under

Section 376(2) of the Indian Penal Code (in short ‘IPC’) and

Section 6 of the Protection of Children from Sexual Offences Act

(in short ‘POCSO Act’) and has been sentenced to undergo twenty

years rigorous imprisonment with a fine of Rs.50,000/- under

Section 6 of the POCSO Act and in default of payment of fine, he

has to further undergo two years simple imprisonment.

Prosecution Case

4. The prosecution case is based on the fardbeyan of the

informant (PW-5) who is mother of the victim. In her fardbeyan,

the informant has alleged that because of stomachache on

10.06.2018 at about 10:00 PM, she took her minor daughter aged

about 11 years to her co-villager Birju Ram @ Birju Baba (the

appellant) for ‘totama’. The Baba (appellant) gave five flowers and

asked the informant to sit there as he is going to do jhadphuk upon

which the informant said that she will accompany him with her

daughter on which the accused did jhadphuk in front of her and

asked her to come again on 12.06.2018 (Tuesday). It is alleged that

on 12.06.2018, the informant did not visit the appellant but the

appellant himself came at the darwaza of the informant at 9.00 PM

and said that he has come to do ‘totama’ and let her minor daughter
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go with him, the informant became ready to let her daughter go

with the appellant. After one hour, minor victim girl returned back

weeping and said that Birju Baba took her in the litchi orchard of

Bholi Sharma where he removed her leggings and frock, laid her

down on his gamchha on the ground, committed wrong act with

her, gave her fifty rupees and asked to purchase snacks and also

asked not to tell this to anybody. It is further alleged that the

informant told about this occurrence to her husband then her

husband took his daughter to medical for treatment. The informant

believes that in the name of jhadphuk, the appellant committed rape

on her minor daughter.

5. On the basis of this fardbeyan, FIR being Ahiyapur

P.S. Case No. 636 of 2018 dated 13.06.2018 was registered under

Section 376 IPC, 3/4 of the Prevention of Witch (Daain) Practices

Act and 8/10 of the POCSO Act against Birju Ram @ Birju Baba.

After investigation, police submitted chargesheet bearing

Chargesheet No. 649 of 2018 dated 31.08.2018 under Section 376

IPC, 3/4 of the Prevention of Witch (Daain) Practices Act and

Section 4 of the POCSO Act against Birju Ram @ Birju Baba.

Learned trial court vide order dated 12.09.2018 took cognizance of

the offences punishable under above-mentioned Sections against

the appellant.
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6. Charges were read over and explained to the appellant

in Hindi to which he denied and claimed to be tried, accordingly,

vide order dated 03.10.2018 charges were framed under Section

376 IPC and Section 6 of the POCSO Act against the appellant

Birju Ram @ Birju Baba.

7. In course of trial, the prosecution has examined

altogether seven witnesses and exhibited several documentary

evidences. The description of the prosecution witnesses and the

exhibits are given hereunder in tabular form:-

List of Prosecution Witnesses

PW-1 Victim
PW-2 Shivchandra Sahni
PW-3 Grandmother of victim
PW-4 Niece of victim
PW-5 Mother of the victim
PW-6 Anita Devi (I.O.)
PW-7 Dr. Pooja Sinha

List of Exhibits on behalf of Prosecution

Exhibit ‘1’ Signature of victim on Section 164 CrPC statement
Exhibit ‘1/1’ Signature of Shivchandra Sahni on fardbeyan
Exhibit ‘2’ Endorsement on fardbeyan to register case
Exhibit ‘3’ Formal FIR
Exhibit ‘4’ Medical Examination Report of victim

8. Thereafter, the statement of the appellant was recorded

under Section 313 of the Code of Criminal Procedure (in short

‘CrPC’) in which he took a plea that he is innocent.
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9. The defence has not adduced any oral or any

documentary evidence.

Findings of the Learned Trial Court

10. Learned trial court after analysing the evidences

available on the record found that the victim, who is minor, in her

statement under Section 164 CrPC has very clearly stated that the

appellant committed penetrative sexual assault against her and there

is no reason on the record either to overlook this evidence or to

discard the same.

11. Learned trial court found that that there is no

contradiction between the statement 164 CrPC and the FIR version

as also in the deposition of victim girl (PW-1) and the evidence of

other corroborative witnesses.

12. Learned trial court found that the evidence of other

witnesses being victim’s parents, doctor and the I.O. there is no

deviation on their evidence on the point of date of occurrence and

as such evidence of other witnesses, corroborates evidence of the

victim girl on the point of commission of penetrative sexual assault.

13. Learned trial court, after considering all the facts and

circumstances of the case found that the prosecution has

successfully been able to prove the charges levelled against the

appellant beyond all reasonable doubts. Accordingly, learned trial
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court held the appellant guilty of the offences punishable under

Section 6 of the POCSO Act and Section 376(2) IPC.

Submissions on behalf of the Appellant

14. Learned Amicus Curiae appointed by the Court

submits that there is delay of twenty hours in the lodgement of FIR

and there is no explanation offered by the prosecution for delay in

recording of fardbeyan of the mother on the next date of the

occurrence. It is further submitted that there is unjustified delay in

recording the statement of the victim under section 164 of CrPC, it

has been recorded after a gap of eleven days, therefore, the veracity

of statement recorded under section 164 CrPC is hit by non-

compliance of section 164 (5A) CrPC which provides for recording

of such statement as soon as the commission of offence is brought

to the notice of the police. Learned Amicus has relied on the

judgment of the Hon’ble Supreme Court in the case of State of

Karnataka vs. Shivanna reported in (2014) 8 SCC 913 in which

the Hon’ble Supreme Court has specifically directed for timely

recording of statements of victims of rape. Thus it is submitted that

reliance by the learned trial court upon the statement of the victim

recorded under Section 164 CrPC is misplaced as such statements

cannot be treated as a piece of evidence.

15. Learned Amicus further submits that the age of the

victim has not been proved by the prosecution in the manner as
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mandated under the Juvenile Justice (Care and Protection of

Children) Act, 2015. Therefore, the rigours of the POCSO Act can

be attracted only when the victim is conclusively proved to be a

child and the age of the victim is one of the foundational facts for

initiating and sustaining a prosecution under the POCSO Act.

16. It is further submitted that the clothes of the alleged

victim have neither been seized nor exhibited by the prosecution.

Consequently, there is no evidence to support the prosecution’s case

that any blood was found, noticed or seized on the clothes or at the

place of occurrence. It is submitted that the appellant was not

medically examined as mandated under Section 53A CrPC despite

his arrest on the same day. Such examination could have aided the

defence in contradicting the prosecution story, particularly given

that the appellant was 68 years old at the time of the alleged

occurrence.

17. Learned Amicus further submits that the medical

findings do not support the prosecution evidence. While

prosecution witnesses have claimed that blood was found on the

person/clothes of the alleged victim, there is no material to

corroborate this assertion and the Medical Report (Exhibit ‘4’) fails

to indicate any injury (internal or external) on the private parts of

the alleged victim.
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18. It is further pointed out that PW-2 in paragraph ‘8’,

PW-4 in paragraph ‘14’ and PW-5 in paragraph ‘10’ have

unequivocally stated that the alleged victim became unconscious

after returning home and was taken to hospital for treatment.

However, the prosecution has failed to exhibit any treatment papers

or documents in this regard, leaving this fact unproven beyond

reasonable doubt due to the absence of medical evidence. It is

settled law that facts forming the effect of facts in issue and

subsequent conduct of a person are relevant under Sections 6, 7,

and 8 of the Indian Evidence Act. Therefore, truthfulness of the

ocular version is negated in totality as wholly inconsistent with the

medical report and therefore, oral version cannot be relied upon

with certainty.

19. It is further submitted that the earliest version of the

occurrence has been suppressed. PW-1 in paragraph ‘9’, PW-4 in

paragraph ‘15’ and PW-5 in paragraph ‘11’ of their deposition have

unequivocally asserted that the victim’s fardbeyan was reduced to

writing by the police on 12.06.2018 (date of occurrence) and signed

by her, however, the exhibited FIR (Exhibit ‘3’) annexes the

mother’s fardbeyan dated 13.06.2018 at 15:00 Hrs., clearly

indicating suppression of the earliest version. Such suppression

strikes at the root of the prosecution case and creates serious doubt

about fabrication of the story after deliberation. In this regard,
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reliance has been placed upon the judgment of the Hon’ble

Supreme Court in the case of Allarakha Habib Memon vs. State

of Gujarat reported in (2024) 9 SCC 546.

20. It is further submitted that the I.O. reached the place

of occurrence only after three days from the date of the alleged

incident and the place of occurrence as stated by the I.O. is

contradictory to that stated by other witnesses in this context.

21. Learned Amicus Curiae for the appellant submits that

the learned Magistrate failed to examine the victim’s competency

under Section 118 of the Evidence Act before recording her

statement under Section 164 CrPC, despite her being a child

witness whose ability and competency ought to have been assessed

by the court. Moreover, the learned trial court has not followed the

mandated provisions and guiding principles laid down in this

regard.

22. Lastly, it is submitted that the sentencing is based on

a misconceived legal position prevailing on the date of occurrence

(12.06.2018). The amendment to Section 6 of the POCSO Act,

enhancing minimum punishment to rigorous imprisonment for 20

years took effect only on 16.08.2019, whereas prior thereto, it

prescribed minimum rigorous imprisonment for 10 years yet, the

learned Special Court erroneously applied Section 42 of the

POCSO Act to deem Section 6 of the POCSO Act as attracting
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higher punishment (minimum rigorous imprisonment 20 years) than

Section 376(2) IPC (minimum 10 years rigorous imprisonment).

23. Learned Amicus for the appellant has also relied upon

several judgment of the Hon’ble Supreme Court in the case of

Babu Sahebagouda Rudragoudar vs. State of Karnataka

reported in (2024) 8 SCC 149, Krishan Kumar Malik vs. State of

Haryana reported in (2011) 7 SCC 130, Krishnegowda vs. State

of Karnataka reported in (2017) 13 SCC 98, Sunil Kumar

Sambhudayal Gupta vs. State of Maharashtra reported in (2010)

13 SCC 657.

Submissions on behalf of the State

24. Learned Additional Public Prosecutor for the State

has defended the impugned judgment and order of the learned trial

court. It is submitted that mother of the victim (PW-5) has

supported the case of prosecution and the informant’s deposition is

getting corroborated by the evidence of PW-2, PW-3 and PW-4 and

from perusal of their depositions it appears that the same are quite

consistent and do not suffer from any contradiction.

Consideration

25. We have heard learned Amicus Curiae for the

appellant and learned Additional Public Prosecutor for the State.

The prosecution case arises out of the fardbeyan of the mother of

the victim girl recorded at Gaynic Ward, SKMCH, Muzaffarpur at
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15:00 Hrs. In her fardbeyan, the informant has alleged that because

of stomachache on 10.06.2018 at about 10:00 PM, she took her

minor daughter aged about 11 years to her co-villager Birju Ram @

Birju Baba (the appellant) for ‘totama’. The Baba (appellant) gave

five flowers and asked the informant to sit there as he is going to do

jhadphuk upon which the informant said that she will accompany

him with her daughter on which the accused did jhadphuk in front

of her and asked her to come again on 12.06.2018 (Tuesday). It is

alleged that on 12.06.2018, the informant did not visit the appellant

but the appellant himself came at the darwaza of the informant at

9.00 PM and said that he has come to do ‘totama’ and let her minor

daughter go with him, the informant became ready to let her

daughter go with the appellant. After one hour, minor victim girl

returned back weeping and said that Birju Baba took her in the

litchi orchard of Bholi Sharma where he removed her leggings and

frock, laid her down on his gamchha on the ground, committed

wrong act with her, gave her fifty rupees and asked to purchase

snacks and also asked not to tell this to anybody. It is further alleged

that the informant told about this occurrence to her husband then

her husband took his daughter to medical for treatment. The

informant believes that in the name of jhadphuk, the appellant

committed rape on her minor daughter.
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26. To prove the charges, the prosecution has examined

as many as seven witnesses and got exhibited five documents which

we have already taken note of in detail hereinabove.

27. It appears that the victim in this case is a minor aged

about 11 years at the time of occurrence. The date of occurrence as

disclosed in the fardbeyan of the mother of the victim is 12.06.2018

at about 9:00 PM when the appellant came to the house of the

victim and took her away with him on the pretext of doing some

‘totma’. As per prosecution, she was taken to a nearby orchard

where according to the victim she was subjected to wrong act with

her after making her to lie down on a piece of cloth (gamchha)

placed over the earth. The victim girl (X) returned her home after

one hour. The prosecution witnesses have stated that she was

having blood on her clothes and blood was also there on the

towel/gamcha but neither the said towel nor the cloth of the victim

had been seized by the I.O.

This Court finds it quite unnatural conduct on the part of the

parents to allow the victim girl to go with the appellant at 9:00 PM

to an undisclosed place. The story does not inspire confidence.

28. The prosecution witness (PW-3) has stated in

paragraph ‘9’ that blood had come out due to commission of rape

and blood were also present on the towel and the cloth of the

victim but the clothes were not torn and there was no presence of
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soil on the clothes. This witness (PW-3), who is the grandmother

of the victim, has stated that there was no injury on the face and

nose. It has come in evidence that the appellant was arrested on the

date of registration of the FIR i.e. 13.06.2018 but no medical

examination of the accused-appellant has been done. Thus, there is

a clear non-compliance with the mandate of Section 53A of the

CrPC.

29. This Court finds from the evidence of the

prosecution witness (PW-4), who claims to be a close relative of

the victim, that the victim had returned after half an hour but

during this period, to which side she was taken away by the Baba

(the appellant) was not seen, there were darkness and the victim

had returned weeping. She has stated that after return, the victim

had become unconscious thereafter she had regained

consciousness and then she was taken to hospital where first of all

she was treated and then case was lodged. Mother of the victim

had lodged the case but this witness has stated that at first the

victim had stated to Darogaji which Darogaji had written down

and the victim had put her signature thereon. Thereafter, mother of

the victim was interrogated and the other witnesses were also

interrogated. Thus, it appears from the statement of PW-4 that the

first statement was given by the victim herself and she had put her
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signature on the statement recorded by Darogaji but this statement

of the victim has not been brought on the record. This is where

learned Amicus Curiae for the appellant has submitted that the

prosecution has suppressed the first version of the case and only at

a belated stage, the present case has been lodged on 13.06.2018 on

the basis of the fardbeyan of the mother of the victim. In this

connection, attention of this Court has been drawn towards the fact

that in the formal FIR (Exhibit ‘3’), the date and time of receipt of

information of the occurrence in the police station is recorded as

13.06.2018 at 15:30 Hrs. whereas, the police station is only at a

distance of 6 kilometers. We find much force in the submission

that the first version of the prosecution case has been suppressed.

30. The victim does not claim that she had become

unconscious after returning to her house rather she has stated that

after returning to her house, she had disclosed everything to her

father who took her for medical. She has also stated that she was

not well for 5-6 days. The victim has claimed that the case was

registered on the same day and she has further claimed that she

had swelling on her head, however, this Court finds from the injury

report (Exhibit ‘4’) that the victim was examined by the doctor on

12.06.2018 at 11:30 PM in the Emergency Ward and during her

physical examination, the doctor had not found any external injury
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marked. The pelvic examination shows labia normal, hymen

partially torn (old tear). The doctor did not found any spermatozoa

and it would appear from the evidence of the doctor (PW-7) that

the victim had told to the doctor that the accused who was known

to her took her to a lonely place, he had removed her clothes and

tried to penetrate but she somehow escaped by physical effort and

informed her parents about the incident. It, therefore, appears from

the medical examination report and the evidence of the doctor

(PW-7) that the victim was able to escape a penetrating sexual act.

31. We have noticed from the evidence on the record that

the victim girl was produced before the learned Magistrate for

recording of her statement under Section 164 CrPC after eleven

days. She disclosed her age as 11 years but perusal of her

statement would show that the learned Magistrate has not

examined the competence of the victim, who was a child witness,

to speak the truth, no such competence test has been done and no

satisfaction is recorded by the Magistrate. The Magistrate has not

come in the dock to prove the 164 CrPC statement, therefore, the

victim (PW-1) has only proved her statement and signature on the

164 CrPC statement which has been marked (Exhibit ‘1’).

32. Again, in course of trial, the victim came to depose

and disclosed her age as 11 years. This time also, the learned trial
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court has not put any question to her to test her competence to

speak the truth. Learned Amicus Curiae for the appellant has

placed reliance on the judgment of the Hon’ble Supreme Court in

the case of P. Ramesh vs. State represented by Inspector of Police

reported in (2019) 20 SCC 593. We reproduce paragraphs ‘13’ to

‘16’ hereunder for a ready reference:-

“13. Section 1183 of the Evidence Act, 1872 deals
with the competence of a person to testify before
the court. Section 44 of the Oaths Act, 1969
requires all witnesses to take oath or affirmation,
with an exception for child witnesses under the
age of twelve years. Therefore, if the court is
satisfied that the child witness below the age of
twelve years is a competent witness, such a
witness can be examined without oath or
affirmation. The rule was stated in Dattu Ramrao
Sakhare v. State of Maharashtra5, where this
Court, in relation to child witnesses, held thus :
(SCC p. 343, para 5)”

3. “118. Who may testify.—All persons shall be competent to testify unless the Court considers that
they are prevented from understanding the questions put to them, or from giving rational answers to
those questions, by tender years, extreme old age, disease, whether of body or mind, or any other
cause of the same kind.
Explanation.—A lunatic is not incompetent to testify, unless he is prevented by his lunacy from
understanding the questions put to him and giving rational answers to them.”
4. “4. Oaths or affirmations to be made by witnesses, interpreter and jurors.—(1) Oaths or
affirmations shall be made by the following persons, namely:
(a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required
to give, evidence by or before any court or person having by law or consent of parties authority to
examine such persons or to receive evidence;
(b) interpreters of questions put to, and evidence given by, witnesses; and
(c) jurors:
Provided that where the witness is a child under twelve years of age, and the court or person having
authority to examine such witness is of opinion that, though the witness understands the duty of
speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing
provisions of this section and the provisions of Section 5 shall not apply to such witness; but in any
such case the absence of an oath or affirmation shall not render inadmissible any evidence given by
such witness nor affect the obligation of the witness to state the truth.
(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or
affirmation to the accused person, unless he is examined as a witness for the defence, or necessary
to administer to the official interpreter of any court, after he has entered on the execution of the
duties of his office, an oath or affirmation that he will faithfully discharge those duties.”
5. (1997) 5 SCC 341 : 1997 SCC (Cri) 685]
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“5. … A child witness if found competent to
depose to the facts and reliable one such
evidence could be the basis of conviction. In
other words even in the absence of oath the
evidence of a child witness can be considered
under Section 118 of the Evidence Act
provided that such witness is able to
understand the questions and able to give
rational answers thereof. The evidence of a
child witness and credibility thereof would
depend upon the circumstances of each case.
The only precaution which the court should
bear in mind while assessing the evidence of a
child witness is that the witness must be a
reliable one and his/her demeanour must be
like any other competent witness and there is
no likelihood of being tutored.”
14. A child has to be a competent witness first,
only then is her/his statement admissible. The rule
was laid down in a decision of the US Supreme
Court in Wheeler v. United States6, wherein it was
held thus : (SCC OnLine US SC para 5)
“5. … While no one would think of calling as
a witness an infant only two or three years
old, there is no precise age which determines
the question of competency. This depends on
the capacity and intelligence of the child, his
appreciation of the difference between truth
and falsehood, as well as of his duty to tell the
former. The decision of this question rests
primarily with the trial Judge, who sees the
proposed witness, notices his manner, his
apparent possession or lack of intelligence,
and may resort to any examination which will
tend to disclose his capacity and intelligence
as well as his understanding of the
obligations of an oath. As many of these
matters cannot be photographed into the
record the decision of the trial Judge will not
be disturbed on review unless from that which
is preserved it is clear that it was erroneous.”
(Emphasis supplied)

6 1895 SCC OnLine US SC 220 : 40 L Ed 244 : 159 US 523 (1895)
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15. In Ratansinh Dalsukhbhai Nayak v. State of
Gujarat7, this Court held thus : (SCC pp. 67-68, para 7)
“7. … The decision on the question whether the child
witness has sufficient intelligence primarily rests with
the trial Judge who notices his manners, his apparent
possession or lack of intelligence, and the said Judge
may resort to any examination which will tend to
disclose his capacity and intelligence as well as his
understanding of the obligation of an oath. The
decision of the trial court may, however, be disturbed
by the higher court if from what is preserved in the
records, it is clear that his conclusion was erroneous.
This precaution is necessary because child witnesses
are amenable to tutoring and often live in a world of
make-believe. Though it is an established principle that
child witnesses are dangerous witnesses as they are
pliable and liable to be influenced easily, shaped and
moulded, but it is also an accepted norm that if after
careful scrutiny of their evidence the court comes to the
conclusion that there is an impress of truth in it, there is
no obstacle in the way of accepting the evidence of a
child witness.”
(Emphasis supplied)
16. In order to determine the competency of a child
witness, the Judge has to form her or his opinion. The
Judge is at liberty to test the capacity of a child witness
and no precise rule can be laid down regarding the
degree of intelligence and knowledge which will render
the child a competent witness. The competency of a
child witness can be ascertained by questioning her/him
to find out the capability to understand the occurrence
witnessed and to speak the truth before the court. In
criminal proceedings, a person of any age is competent
to give evidence if she/he is able to (i) understand
questions put as a witness; and (ii) give such answers to
the questions that can be understood. A child of tender
age can be allowed to testify if she/he has the
intellectual capacity to understand questions and give
rational answers thereto.8 A child becomes incompetent
only in case the court considers that the child was
unable to understand the questions and answer them in
a coherent and comprehensible manner9. If the child
understands the questions put to her/him and gives
rational answers to those questions, it can be taken that
she/he is a competent witness to be examined.”

7. (2004) 1 SCC 64 : 2004 SCC (Cri) 7. Subsequently, relied upon in Nivrutti Pandurang Kokate v. State of
Maharashtra, (2008) 12 SCC 565 : (2009) 1 SCC (Cri) 454
8. Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64 : 2004 SCC (Cri) 7
9. Sarkar, Law of Evidence, 19th Edn., Vol. 2, Lexis Nexis, p. 2678 citing Director of Public Prosecutions v. M,
1998 QB 913 : (1998) 2 WLR 604 : (1997) 2 All ER 749 (QBD)
Patna High Court CR. APP (DB) No.407 of 2023 dt.10-03-2026
19/20

33. This Court is of the opinion that in this case conviction

of the appellant on the basis of the sole testimony of the child witness

would not be safe. We have pointed out the various reasons

hereinabove.

34. We have also noticed that in his 313 CrPC statement,

the appellant has stated that he has been falsely implicated in this case,

he was selling vegetables and because of certain outstanding amount

which he was claiming from the victim’s family, he has been falsely

implicated.

35. On perusal of the entire evidence on the record, we find

that in this case the appellant is aged about 72 years at the time of

recording of his statement on 12.04.2022, therefore, at the time of

occurrence, he was about 68 years old, had his medical examination

been conducted, which was quite possible because he was

immediately arrested after the occurrence, the prosecution would have

collected some vital evidences in order to prove the truth but that has

not been done. This has seriously prejudiced the defence of the

appellant. The medical evidence has shown that it is not a case of

penetrative sexual act. The only evidence on which the prosecution

case remains is that of the victim, who is a child witness, but her

competence has not been duly tested. Further, this Court finds that

while the occurrence is of 12.06.2018, the learned trial court has while

awarding sentence, proceeded to apply the amended/substituted
Patna High Court CR. APP (DB) No.407 of 2023 dt.10-03-2026
20/20

provision of the POCSO Act, which came into effect from 16 th August,

2019.

36. In ultimate analysis, we are 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 child witness.

37. We therefore, set aside the impugned judgment and

order of the learned trial court. The appellant is acquitted of the

charges giving him benefit of doubt. He is in jail, therefore, he shall be

released forthwith if not wanted in any other case.

38. This appeal is allowed.

39. Let a copy of the judgment together with the trial

court’s records be sent down to learned trial court.

40. We acknowledge the assistance rendered by Mr. Prashant

Kumar, learned Advocate as Amicus Curiae for the appellant. A

consolidated sum of Rs. 15,000/- (Rupees Fifteen Thousand/-) shall be

paid to the learned Amicus Curiae by the Patna High Court Legal

Services Committee within one month from the date of receipt of a

copy of this judgment.

(Rajeev Ranjan Prasad, J)

(Soni Shrivastava, J)
Rishi/-
AFR/NAFR
CAV DATE
Uploading Date 13.03.2026
Transmission Date 13.03.2026

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