Patna High Court
RAJDEEP THATHERAversusTHE STATE OF BIHAR
- Decided
- Disposal
- ALLOWED
Holding
The High Court held that the victim was not a minor and the prosecution failed to prove the alleged offences, thereby setting aside the conviction and acquitting the appellant.
Summary
The appellant Rajdeep Thathera was convicted by the Additional Sessions Judge‑VI‑cum‑Special Judge, POCSO, for kidnapping, rape and offences under the POCSO Act based on the testimony of a 15‑year‑old girl and other police evidence. The appellant appealed, contending that the victim was actually an adult and that the prosecution had suppressed the school birth record while relying on a later panchayat birth certificate. The High Court examined the medical age‑estimation reports, the suppressed school record, and the credibility of the victim’s testimony, concluding that the victim was at least 18 years old and that the presumption under Sections 29 and 30 of the POCSO Act did not arise. It also held that the elements of kidnapping under IPC 363 and rape under IPC 376(3) were not proved. Consequently, the Court set aside the conviction, acquitted the appellant of all charges and ordered his immediate release. The appeal was allowed.
Issues considered
- Whether the victim was a child within the meaning of Section 2(d) of the POCSO Act.
- Whether the prosecution proved the offence of kidnapping under IPC 363.
- Whether the prosecution proved the offence of rape under IPC 376(3) and the corresponding POCSO provisions.
- Whether the trial court erred in admitting the panchayat birth certificate and in evaluating the age‑determination evidence.
- Whether the presumptions under Sections 29 and 30 of the POCSO Act were attracted.
Legislation cited
- Indian Evidence Act, 1872 — s. 114(g)
- Indian Penal Code — s. 363, 376(3)
- Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 94
- Protection of Children from Sexual Offences Act — s. 29, 30, 4, 8
- Registration of Births and Deaths Act, 1969
Subjects
- POCSO
- age of victim
- kidnapping
- rape
- presumption of innocence
- evidence suppression
- acquittal
- appellate review
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.580 of 2023
Arising Out of PS. Case No.-212 Year-2022 Thana- VAISALI GRP CASE District- Vaishali
======================================================
Rajdeep Thathera S/O Lt. Nepal Thathera R/O Vill. Potka Thastheri Sai, Ps.
Chakradharpur, Dist. West Singhbhum, Jharkhand-833102
... ... Appellant
Versus
1. The State Of Bihar
2. Respondent No.2 (Informant) Bihar
... ... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Vasant Vikas, Advocate
Mr. Nilesh Kumar, Advocate
Mr. Shivesh Kr. Singh, Advocate
Mr. Abhishek Kr. Singh, Advocate
For the State : Mr. Abhimanyu Sharma, APP
For the Informant : Mr. Arun Kr. Tiwary, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 12-03-2026
Heard learned counsel for the appellant, learned counsel
for the informant and learned Additional Public Prosecutor for the
State.
2. The sole appellant in this case is seeking setting aside
of the judgment of conviction dated 05.04.2023 (hereinafter
referred to as ‘impugned judgment’) and the order of sentence
dated 12.04.2023 (in short called the ‘impugned order’), passed by
the Additional Sessions Judge-VI-cum-Special Judge, POCSO,
Vaishali at Hajipur (hereinafter referred to as the ‘learned trial
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court’) in POCSO Gr. No. 58 of 2022 (arising out of Sonepur
(Hajipur) Rail P.S. Case No. 212 of 2022).
3. By the impugned judgment, the learned trial court has
been pleased to convict the appellant for the offences under
Sections 376(3)/363 of Indian Penal Code (in short ‘IPC’) and
Section 4/8 of Protection of Children from Sexual Offences Act
(hereinafter referred to as ‘POCSO Act’). Having convicted the
appellant under these provisions, the learned trial Court has
ordered the appellant to undergo rigorous imprisonment for 20
years for the offence under Section 376(3) of IPC and to pay a fine
of Rs. 10,000/-. In default of payment of fine, the appellant shall
undergo rigorous imprisonment for one year more. Further, the
appellant has been sentenced to undergo rigorous imprisonment
for five years under Section 363 of the IPC and to pay a fine of
Rs.5,000/-. In default of payment of fine, he shall undergo rigorous
imprisonment for six months more. For the offence punishable
under Section 4 of the POCSO Act, the appellant has been ordered
to undergo rigorous imprisonment for 20 years and to pay a fine of
Rs.5,000/-. In default of payment of fine, he shall undergo rigorous
imprisonment for six months more. Against for the offence under
Section 8 of POCSO Act, the appellant shall undergo rigorous
imprisonment for 4 years and also to pay a fine of Rs.4,000/-. In
default of payment of the fine, he shall further undergo rigorous
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imprisonment for six months. All the sentences are to run
concurrently.
Prosecution Story
4. The prosecution case is based on the written
information submitted by the father of the victim, who was himself
posted at Sub-Inspector of Police in Rail P.S Sonepur in the district
of Vaishali. In his written information dated 13.09.2022 giving rise
to Sonepur (Hajipur) Rail P.S. Case No. 212 of 2022 under
Sections 363/366A and Section 4/8 of POCSO Act (Exhibit-5), the
informant has alleged that he resides with his wife and his
daughter (X) aged about 15 years, in a government quarter situated
in the Hajipur Station Campus. He further alleged that on the night
of 06.09.2022, after having dinner, the informant’s wife and his
daughter went for sleeping and he went for duty. On 07.09.2022,
the informant’s wife called him and informed him that their
daughter was missing and that her mobile number was switched
off. After receiving this information, the informant along with his
wife, started searching for their daughter. During the search of the
room of his daughter, they searched her diary and found that a
mobile number 7717794766 was written in it with the name
Rajdeep Thathera (the appellant) aged about 20 years, S/o Late
Nepal Thathera, R/o Village Potka Thatheri Sai, P.S.
Chakradharpur, District West Singhbhum, Jharkhand. On inquiry,
the informant’s wife told him that for the last few days their
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daughter had been talking with the said Rajdeep and there is an
apprehension that the said Rajdeep (appellant) kidnapped his
daughter for the purpose of marriage.
5. On the basis of this written information, FIR being
Sonepur (Hajipur) Rail P.S. Case No. 212 of 2022 dated
13.09.2022 was registered under Sections 363/366A IPC and
Section 8 of POCSO Act against this appellant. After investigation,
upon completion charge-sheet was filed against the accused-
appellant, showing sufficient materials to proceed against him and
police submitted chargesheet bearing Chargesheet No. 292 of 2022
dated 30.11.2022 under Sections 363, 366(a) and 376 IPC and
Section 8 of the POCSO Act against Rajdeep Thathera. Learned
Special Court, POCSO vide order dated 15.12.2022 took
cognizance of the offences punishable under above-mentioned
Sections against the appellant.
6. The charges were explained to the appellant in Hindi
which he denied and claimed to be tried. Thereafter, the learned
trial court framed the charges under Sections 376(3), 366A and
363 of IPC and Sections 4, 6 and 8 of the POCSO Act.
7. In course of trial, the prosecution examined as many
as six witnesses and exhibited various documents including the
statement of the victim recorded under Section 164 for the Code of
Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’). The list
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of witnesses and the description of the documents marked exhibits
on behalf of prosecution are provided hereunder in a tabular form:-
List of Prosecution Witnesses:-
PW-1 Victim (X)
PW-2 Mother of the victim
PW-3 Dr. Deepti Sinha
PW-4 Dr. Seema Sinha
PW-5 Father of the victim (informant)
PW-6 Praveen Kumar (I.O.)
List of Exhibits:-
Exhibit ‘1’ Statement under Section 164 CrPC
Exhibit ‘2’ Signature of witness on medical examination
application
Exhibit ‘3’ Dental Report
Exhibit ‘4’ Medical Report
Exhibit ‘5’ Written application
Exhibit ‘6’ Seizure List
Exhibit ‘7’ Birth certificate (original)
Exhibit ‘8’ FIR
Exhibit ‘9’ Charge-sheet
8. Thereafter, the statement of the accused was recorded
under Section 313 Cr.P.C. in which he took a plea that he is
innocent.
9. The defence did not adduce any oral or documentary
evidence.
Findings of the learned Trial Court
10. The learned trial court analyzed the entire evidences
available on the record and concluded that the victim girl is aged
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about 15 years and there are direct evidence against the accused
that he had kidnapped the minor daughter of the informant, took
her away to one of his mama Alok Maharat, which has been
proved by PW-6 Praveen Kumar, the Investigating Officer (in
short ‘I.O.’). The trial court held that the I.O. had found the tower
location and the present physical address at Orrisa. The learned
trial court rejected the defence plea that the accused had been
falsely implicated in this case as according to the learned trial
Court, the defence had failed to establish as to why and for which
reason, the accused has been falsely implicated in the case.
11. The learned trial court observed that no self
respecting woman would normally concoct rape allegation putting
her character and the father or mother put their girl forward for the
false implication and damage their self-respect in the Indian
society.
12. The learned trial Court further held that so far as the
medical evidence is concerned, the occurrence is of 06.09.2022 at
the night hour and the victim was medically examined on
10.10.2022 and 15.10.2022 i.e. after one month of the alleged
occurrence and in such a situation there are no chances of any
motile or non-motile spermatozoa or any sexual activity with any
injury on the part of the victim girl. It has been observed that
minor contradictions cannot be taken for consideration to overlook
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the consideration of the POCSO trial as the defence has to prove
the innocence of the accused.
13. In ultimate analysis, the learned trial court held that
the prosecution had miserably failed to prove the case under
Section 366A of the IPC and Section 6 of POCSO Act against the
accused, therefore, the accused-appellant has been acquitted under
those provisions but so far as the other offences are concerned, as
recorded hereinabove, the learned trial court has convicted the
appellant.
Submission on behalf of appellant
14. Learned counsel for the appellant has assailed the
impugned judgment on various grounds. At first instance, it is
submitted that in this case, the learned trial court has failed to
appreciate that the prosecution has suppressed the correct age of
victim girl. It has come in the evidence of the victim (PW-1) that at
the time of occurrence, she was studying in Delhi Public School at
Chakradharpur, Jharkhand in Class-X. The Investigating Officer
did not visit the said school to obtain the date of birth certificate of
the victim girl. The parents of the victim did not produce the date
of birth certificate from the school which she had first attended.
What has been done is that when the trial was going on, a date of
birth certificate was got prepared from the Gram Panchayat, Jamid
under Section 12/17 of the Registration of Births and Deaths Act,
1969 and Rule 8 / 13 of the Jharkhand Registration of Births and
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Deaths Rules, 2009. The certificate has been issued only on
09.12.2022. It has been marked as Exhibit ‘7’ at the instance of the
father of the victim, who has been examined as PW-5 in course of
trial. It is submitted that in this case, a charge-sheet was filed
against the appellant on 30.11.2022. On the said date, this birth
certificate (Exhibit ‘7’) was not forming part of the charge-sheet,
therefore, it was not a part of police papers supplied to the
appellant.
15. Learned counsel further refers the evidences of the
doctors, who have been examined in this case, as PW-3 and PW-4.
Dr. Deepti Sinha (PW-3) has stated that on police requisition, she
has examined the victim on 15.10.2022 and she has stated that
according to dentician and OPG X-ray by the dental age, the
victim is below 18 years. In her cross-examination, she has stated
that dental age may vary from radiological age. Dr. Seema Sinha
(PW-4) has stated that she was posted as Specialist Lady
Gynecologist at Sadar Hospital, Hajipur. On police requisition, she
had examined the victim on 15.10.2022. She has observed that “no
external physical injury was found”. She was sent to the
radiologist Dr. L.P. Gupta and according to him, her age is above
22 years. She has concluded that taking consideration of the report,
her age is around 18 years and in her opinion, it was difficult to
say recent sexual activity has taken place or not. She has proved
her report, which has been marked as Exhibit ‘4’. In her cross-
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examination, she has stated that she found no recent sexual activity
and there was no injury on the private part of the victim. With
these evidences of the two doctors, learned counsel for the
appellant submits that the victim has to be taken as at least 18
years of age. He has relied upon the judgments of the Hon’ble
Supreme Court in the case of Rajak Mohammad vs. State of H.P.
reported in (2018) 9 SCC 248 and the Hon’ble Delhi High Court
in the case of Court on its own Motion vs. State (NCT of Delhi)
(Crl. Ref. 2/2024) reported in 2024 SC OnLine Delhi 4484.
16. Learned counsel further submits that the statement of
the victim as PW-1 would clearly demonstrate that she was
friendly to the appellant who is in the same age group and was the
resident of same locality in Chakradharpur. Being well acquainted
and friendly with the appellant, she had left her house on receipt of
a call from the appellant and on his request to stay with him during
the night, she had decided to stay with him and for that reason, she
has stated that when she told him that it was late in night and she
should go otherwise her mom would scold her, he told her that he
would leave her to her house in the morning and thereafter, he took
her on a visit here and there and she was in the vehicle with the
appellant. It only shows her proximity with the appellant and that
they were friendly to each other.
17. Learned counsel further submits that the victim (X)
in this case cannot be said to be a sterling witness and the
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conviction of the appellant based on the sole testimony of the
victim (PW-1) would not be safe. It is submitted that while the
parents of the victim, who have deposed as PW-2 and PW-5, have
stated that the victim returned home after one month from the date
of her missing, the victim herself came out with a different
statement saying that she was subjected to rape in the night of
06.09.2022 and on the very next date i.e. 07.09.2022, when he was
bringing her via Patna Bus Stand then they were caught by the
police and the police informed her mother and father, whereafter
she told the story to her mother and father and, thereafter, her
father lodged the case. Thus, the statement of the victim (PW-1), if
taken into account she had returned home on the very next day
and, thereafter, the case was lodged by her father whereas her
mother and father both have stated that the victim returned after
one month.
18. Learned counsel further submits that her father (PW-
5) was himself posted as Sub-Inspector of Police in the same
police station where the case has been registered. Despite being the
police officer, he chose to submit a written information only on
13.09.2022 i.e. seven days after the victim went missing from her
house. This cannot be said to a natural conduct of a police officer
whose daughter had gone missing. It is further submitted that the
informant (PW-5) claimed that he found a writing in the diary
which was in the pen of his daughter and she had written the name
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of this appellant and mobile number and his wife informed him
that their daughter was talking with this boy for some time.
Although the I.O. has stated that father of the victim had produced
the diary (Exhibit ‘6’), the mother (PW-2) has stated that no diary
was produced before the I.O.. In any case, the writing in the case
diary was never sent to any handwriting expert and there is no
proof of the fact that the victim had written the name of appellant
in the diary and from that the informant had come to know about
the boy. It is submitted that PW-1 has stated in her cross-
examination that on the day she left her house only her mom was
in the house and she had left without telling her mom in the night.
She has stated that the appellant had not taken her away forcibly.
19. Learned counsel further submits that in the kind of
evidences available on the record, neither the presumption under
Section 29 and 30 of the POCSO Act would be attracted nor the
principle of presumption of innocence of the accused is lost. The
learned trial court seems to have relied upon the date of birth
certificate which was not falling in any of the categories envisaged
under Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015, the panchayat certificate is not
contemporaneous piece of evidence and it has only been fabricated
and concocted in course of trial.
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Submissions on behalf of the Informant and State
20. Learned Additional Public Prosecutor for the State as
well as learned counsel for the informant have opposed the bail. It
is submitted that even as the date of birth certificate issued by the
Registering authority of the Panchayat has been prepared during
trial and it was not forming part of the charge-sheet, it being a
piece of evidence on the record is required to be considered and
duly appreciated. It has been submitted that the learned trial court
has not committed any error in admitting the said piece of
evidence (Exhibit ‘7’) and relying upon the same.
21. Learned counsel further submits that the victim seem
to be acquainted with the appellant and she had gone outside her
house to meet him, still there are evidences on the record that the
appellant made her to stay with him and then committed rape on
her at least once as stated by PW-1. In such circumstance, there
would be no reason to disbelieve the testimony of the victim.
Minor discrepancies in the evidence of the victim (PW-1), PW-2
and PW-5 may not be vital and would not affect the outcome of the
case otherwise.
Consideration
22. Having heard learned counsel for the parties and on
perusal of the trial court records, we find that in this case the
learned trial court has not only admitted the date of birth certificate
issued by the Gram Panchayat (Exhibit ‘7’) in course of trial but
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has heavily placed reliance on the same to come to a conclusion
that the victim was minor at the time of the occurrence. This Court
is of the considered opinion that the trial court has erred in
appreciation of the evidences and in attaching adequate evidentiary
value to the documentary evidence. It is evident that PW-1 was
studying in Class-X in Delhi Public School at Chakradharpur, her
date of birth certificate as mentioned in the school admission
register, would have been admissible and reliable piece of
evidence but the prosecution has suppressed the same. This is a
material information/evidence which has been suppressed by the
prosecution and for that reason, an adverse inference is required to
be drawn in terms of Section 114(g) of the Evidence Act. We have
noticed the age of the victim as stated by PW-3 and PW-4, who are
the two doctors, and had examined the victim. The bare perusal of
the report of PW-4 and PW-5, which have been marked Exhibit ‘4’
and Exhibit ‘6’ respectively, would show that the age of the victim
(X) was around 18 years. How to assess the age of the victim
under the POCSO Act has been eloquently discussed by the
Hon’ble Supreme Court in the case of Rajak Mohammad (supra)
and the Hon’ble Delhi High Court in the case of Court on its own
Motion (supra). The views expressed by the Hon’ble Delhi High
Court in the case of Court on its own Motion (supra) are as
under:-
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“46. As an upshot of our foregoing discussion, the
Reference is answered as under:-
(i) Whether in POCSO cases, the Court is required
to consider the lower side of the age estimation
report, or the upper side of the age estimation
report of a victim in cases where the age of the
victim is proved through bone age ossification
test?
Ans: In such cases of sexual assault, wherever, the
court is called upon to determine the age of victim
based on ‘bone age ossification report’, the upper
age given in ‘reference range’ be considered as age
of the victim.
(ii) Whether the principle of ‘margin of error’ is to
be applicable or not in cases under the POCSO Act
where the age of a victim is to be proved through
bone age ossification test.
Ans: Yes. The margin of error of two years is
further required to be applied.”
23. The Hon’ble Supreme Court had occasion to
consider this aspect of the matter in the case Rajak Mohammad
(supra) and the paragraph ‘9’ and ‘10’ of the judgment in case is
reproduced hereunder:-
“9. While it is correct that the age determined on the
basis of a radiological examination may not be an
accurate determination and sufficient margin either
way has to be allowed, yet the totality of the facts
stated above read with the report of the radiological
examination leaves room for ample doubt with
regard to the correct age of the prosecutrix. The
benefit of the aforesaid doubt, naturally, must go in
favour of the accused.
10. We will, therefore, have to hold that in the
present case the prosecution has not succeeded in
proving that the prosecutrix was a minor on the date
of the alleged occurrence. If that is so, based on the
evidence on record, already referred to, we will
further have to hold that the possibility of the
prosecutrix being a consenting party cannot be
altogether ruled out.”
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24. Keeping in view the afore-mentioned judicial
pronouncements on the subject, we would have no hesitation in
recording that in this case the age of the victim would come to
above 18 years and as such, the charges framed under the POCSO
Act are not sustainable. The basic ingredients which is required to
be present to prove all these charges is that the victim must be a
‘child’ within the meaning of Section 2(d) of the POCSO Act. This
being the position, we reverse the finding of the learned trial court
that the victim was a minor.
25. The learned Trial Court has convicted the appellant
for the offence punishable under Section 363 of the IPC. We
reproduce Section 363 of IPC hereunder:-
“363.Punishment for kidnapping.- whoever
kidnaps any person from 1[India] or from lawful
guardianship, shall be punished with imprisonment
of either description for a term which may extend to
seven years, and shall also be liable to fine.”
A perusal of the same would show that whoever kidnaps any
person from India or from lawful guardianship, shall be punished
with imprisonment for either description for a term which may
extend to seven years, and shall also be liable to fine. In this case,
the victim has not stated that she was kidnapped by the appellant.
She has rather stated about her friendly relationship with the
appellant and that she had left her home on her own to meet him.
She has been found aged above 18 years in our findings above. By
1. The word “British India” have successively been subs. By the A.O. 1948, the A.O. 1950 and Act 3 of 1951, s. 3 and
the Schedule, to read as above
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no stretch of imagination, the ingredients of Section 363 of IPC
can be said to be satisfactory.
26. This would bring us to the last question as to whether
the charge under Section 376(3) may be taken to have been
proved. Section 376(3) reads as under:-
“376(1) ……….
(2) ……………
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.]”
27. We have discussed hereinabove that the victim has
stated that she had gone on her own to meet the appellant and on
his request she had stayed with him through out the night hours.
She has alleged that the appellant established physical relationship
with her only once on 06.09.2022 and then she along with the
appellant was caught by the police on 07.09.2022 at Patna Bus
Stand. On the other hand, her parents have stated that she returned
home after one month and thereafter, her statement was recorded
under Section 164 of the Cr.P.C. She has stated in her 164 Cr.P.C.
statement once again the same fact and this time she has given the
date of occurrence as 07.09.2022. It is evident to us that victim,
1. Ins. by Act 22 of 2018, S. 4 (w.r.e.f 21-4-2018).
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who was major, had left her house on her own and then she had
gone on to travel with the appellant and returned home after a
month, but she is suppressing the entire occurrence. The defence
has suggested to the victim in her cross-examination that she was
not taken away forcibly from her house and the victim has
admitted that the appellant had not taken her away forcibly from
her house. The defence suggested that no such occurrence had
taken place and she was making a false statement which she
denied. The mother of the victim was suggested by the defence
that her daughter was having love with the appellant and she had
gone somewhere outside but by putting pressure on her daughter
they had got registered a false case against the appellant, who is
wholly innocent. She was also suggested that her husband was the
Station House Officer in the same police station, therefore, a false
case was lodged by him misusing his position.
28. On giving a complete consideration to the entire
facts and circumstances of the case and the evidences which have
found on the record, we are unable to put the evidence of the
victim in the category of a sterling witness. Who will be sterling
witness has been discussed by the Hon’ble Court in case of Rai
Sandeep @ Deepu vs. State (NCT of Delhi) reported in (2012) 8
SCC 21. Paragraph ‘22’ of the said judgment is being reproduced
hereunder for a ready reference:-
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“22.* In our considered opinion, the “sterling
witness” should be of a very high quality and calibre
whose version should, therefore, be unassailable. The
court considering the version of such witness should
be in a position to accept it for its face value without
any hesitation. To test the quality of such a witness,
the status of the witness would be immaterial and
what would be relevant is the truthfulness of the
statement made by such a witness. What would be
more relevant would be the consistency of the
statement right from the starting point till the end,
namely, at the time when the witness makes the
initial statement and ultimately before the court. It
should be natural and consistent with the case of the
prosecution qua the accused. There should not be any
prevarication in the version of such a witness. The
witness should be in a position to withstand the
cross-examination of any length and howsoever
strenuous it may be and under no circumstance
should give room for any doubt as to the factum of
the occurrence, the persons involved, as well as the
sequence of it. Such a version should have co-
relation with each and every one of other supporting
material such as the recoveries made, the weapons
used, the manner of offence committed, the scientific
evidence and the expert opinion. The said version
should consistently match with the version of every
other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial
evidence where there should not be any missing link
in the chain of circumstances to hold the accused
guilty of the offence alleged against him. Only if the
version of such a witness qualifies the above test as
well as all other such similar tests to be applied, can
it be held that such a witness can be called as a
* Ed.: Para 22 corrected vide Official Corrigendum No. F.3/Ed.B.J./48/2012 dated 18-8-2012.
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“sterling witness” whose version can be accepted
by the court without any corroboration and based on
which the guilty can be punished. To be more
precise, the version of the said witness on the core
spectrum of the crime should remain intact while all
other attendant materials, namely, oral, documentary
and material objects should match the said version in
material particulars in order to enable the court trying
the offence to rely on the core version to sieve the
other supporting materials for holding the offender
guilty of the charge alleged.”
29. Having regard to the discussions hereinabove and
judicial pronouncements on the subject, we are of the considered
opinion that in this case the foundational facts for raising
presumption under Sections 29 and 30 of the POCSO Act are not
available. In any case, the principle of presumption of innocence
of an accused is not lost in a case under the POCSO Act and what
is required on the part of an accused under the POCSO Act is to
only rebutt the presumption under Sections 29 and 30 of the
POCSO Act by way of preponderance of possibilities. The degree
of proof as required to the prosecution is not similar to that as
required by an accused to be proved to raise the presumption of
innocence.
30. In our opinion, the conviction of the appellant is not
sustainable. We, therefore, set aside the impugned judgment and
order of the learned trial court and acquit the appellant of the
charges by giving him benefit doubt.
Patna High Court CR. APP (DB) No.580 of 2023 dt.12-03-2026
20/20
31. We have been told that in SLP (CRL.) No(s).21000
of 2025, the Hon’ble Supreme Court has been pleased to grant
suspension of sentence and direction has been issued that the
appellant shall be produced before the concerned trial court as
early possible and the learned trial court shall release him on bail
on such condition as it may deem fit and proper to impose to
ensure his presence in the proceedings. It has been informed that
the appellant has, however, yet not been released perhaps for the
reason that he could not arrange for the bailors.
32. Since the appellant has been acquitted, we direct that
the appellant shall be released forthwith if not wanted in any other
case.
33. Learned counsel has placed before us the copy of the
order dated 27.02.2026, which we have kept on records.
34. This appeal is allowed.
35. Let a copy of the judgment together with the trial
court’s records be sent down to learned trial court.
(Rajeev Ranjan Prasad, J)
(Soni Shrivastava, J)
anand/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 18 .03.2026
Transmission Date 18.03.2026
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