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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

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.
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                                 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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