Patna High Court

SANTOSH MARANDIversusTHE STATE OF BIHAR

Decided: 25 March 2026
Disposal: ALLOWED
Bench: RAJEEV RANJAN PRASAD SONI SHRIVASTAVA

Holding

The conviction under both the POCSO Act and IPC 376 is set aside and the appellant is acquitted.

Summary

Santosh Marandi was convicted by a Special Judge under the POCSO Act (Sec 4(2)) and IPC 376 for raping a minor who was also his first cousin, and sentenced to 20 years rigorous imprisonment with a fine. The appellant appealed, arguing that the prosecution failed to establish the victim’s age, so the presumption under Sec 29 of the POCSO Act could not arise, and that the victim’s statements and her parents’ telephone report were not contemporaneous enough to qualify as res gesta under Sec 6 of the Evidence Act. He also contended that the medical report did not prove forceful intercourse, that the three‑day delay in lodging the FIR and the non‑examination of the victim’s brother created reasonable doubt, and that conviction on the sole testimony of the victim was unsafe. The High Court held that the trial court erred in applying the presumption of age, in treating the telephone call as part of the same transaction, and in accepting the victim as a sterling witness despite contradictions and material omissions. Consequently, the Court set aside the conviction and acquitted the appellant of both offences, ordering his immediate release. The appeal was allowed.

Issues considered

The prosecution failed to prove the victim’s age, rendering Sec 29 POCSO presumption inapplicable.
Whether the victim’s telephone statement to her parents the next morning qualifies as res gesta under Sec 6 Evidence Act.
Whether the medical evidence corroborates a forceful sexual act.
The impact of the three‑day FIR delay and non‑examination of the victim’s brother on the credibility of the prosecution case.
Whether conviction can be sustained on the sole testimony of the victim in the absence of corroborative evidence.

Legislation cited

Code of Criminal Procedure, 1973 — s. 164, 357
Indian Evidence Act, 1872 — s. 114(g)
Indian Evidence Act, 1872 (now Bharatiya Sakshya Adhiniyam, 2023) — s. 6
Indian Penal Code — s. 376
Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 94
Protection of Children from Sexual Offences Act, 2012 — s. 29, 4(2), 42

Subjects

POCSO
rape
minor
presumption of age
res gestae
evidence law
delay in FIR
acquittal
criminal appeal

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.591 of 2023
Arising Out of PS. Case No.-205 Year-2020 Thana- JHAJHA District- Jamui
======================================================
Santosh Marandi, S/o Bhairo Marandi R/o Village- Chhappar Ghutu, Aasta,
P.S. Jhajha, Dist. Jamui
... ... Appellant
Versus
1. The State of Bihar
2. XXX, C/o Late Suresh Marandi Resident of Village- Asta, PS- Jhajha, Dist-
Jamui, Presently resident of Village- Chewara, PS- Chewara, Dist-
Sheikhpura
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Mr. Jitendra Narain Sinha, Advocate
Mr. Ritwaj Raman, Advocate
For the State : Mr. Ajay Mishra, Addl PP
For the Resp No. 2 : None
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Date : 25-03-2026

Heard Mr. Ajay Kumar Thakur, learned counsel for the

appellant and Mr. Ajay Mishra, learned Additional Public

Prosecutor for the State.

2. The informant-Respondent No. 2 has entered

appearance through her Advocate and the name of the learned

Advocate is printed in the cause list but no one has appeared

before this Court.

3. The sole appellant in this case is seeking setting aside

of the judgment of conviction dated 16.05.2023 (hereinafter
Patna High Court CR. APP (DB) No.591 of 2023 dt.25-03-2026
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referred to as the ‘impugned judgment’) and the order of sentence

dated 20.05.2023 (hereinafter referred to as the ‘impugned order’)

passed by learned Additional Sessions Judge-I-cum-Special Judge,

POCSO Act, Jamui (hereinafter referred to as the ‘learned trial

court’) in POCSO Case No. 18 of 2021 arising out of Jhajha P.S.

Case No. 205 of 2020.

4. By the impugned judgment, the learned trial court has

held the accused-appellant guilty of commission of the offences

punishable under Section 4(2) of the Protection of Children from

Sexual Offences Act (in short ‘POCSO Act’) and Section 376 of

the Indian Penal Code (in short ‘IPC’) and by the impugned order,

the learned trial court has ordered that the appellant shall undergo

a period of 20 years rigorous imprisonment and pay a fine of

Rs.20,000/- for the offence punishable under Section 4(2) of the

POCSO Act. In default of payment of fine, the convict shall

further undergo simple imprisonment of three months. The fine so

realised, shall be given to the victim under Section 357 of the

Code of Criminal Procedure (in short ‘CrPC’). In view of Section

42 of the POCSO Act, the victim-appellant has been sentenced

only under Section 4(2) of the POCSO Act. No separate sentence

has been awarded for the offence punishable under Section 376

IPC.
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Prosecution Case

5. The prosecution case is based on the written

information furnished under the signature of the victim/prosecutrix

on 01.07.2020 with respect to the alleged occurrence which took

place on 29.06.2020 at 11:00 PM. In her written application (not

exhibited), the victim alleged that when she was sleeping in her

house, this appellant entered into her house and forcibly

committed rape upon her. She claimed that she was a minor child.

The accused-appellant threatened her that if she would disclose it

to anyone then he would kill her and he would also kill her

mother-father. In course of trial, the signature of the

victim/prosecutrix and the signature of her father, who stood as a

witness, on the application have been marked Exhibits ‘P-3/PW3’

and ‘P-1/PW1’ respectively.

6. On the basis of the aforesaid written application,

Jhajha P.S. Case No. 205 of 2020 dated 01.07.2020 was registered

under Section 376 IPC and Section 4 of the POCSO Act. After

completion of investigation, police submitted a chargesheet

bearing Chargesgeet No. 128 of 2021 against the accused on

30.04.2021. Cognizance of the offences was taken on 07.06.2021

and thereafter, the copy of the police papers were supplied to the

accused.
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7. In the trial court, the charges were explained to the

accused in Hindi on 07.06.2021 which he denied and claimed to be

tried. Accordingly, charges were framed under Section 4(2) of the

POCSO Act and Section 376 IPC.

8. On behalf of the prosecution, altogether five

witnesses were examined and some documentary evidences were

brought on the record by way of exhibits. The list of the

prosecution witnesses and the exhibits produced on behalf of the

prosecution are mentioned hereinbelow in tabular form:-

List of Prosecution Witnesses

PW-1 Father of victim
PW-2 Mother of victim
PW-3 Victim
PW-4 Raj Kumar Paswan
PW-5 Dr. Kavita Singh

List of Exhibits on behalf of Prosecution

Exhibit P-1/PW1 Signature of PW-1 on the written application
Exhibit P-2/PW2 Signature of PW-2 on the statement under
Section 164 CrPC
Exhibit P-3/PW3 Signature of victim/informant on the written
application
Exhibit P-4/PW3 Signature of victim/informant on the
statement under Section 164 CrPC

Exhibit P-5/PW5 Medical report prepared by Dr. Kavita Singh

9. Thereafter, the statement of the accused was recorded

under Section 313 CrPC. The appellant in his Section 313 CrPC

statement denied the suggestion and pleaded innocence. The
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defence also examined one witness, namely, Vasudev Marandi

(DW-1) who is the grandfather of the victim as well as the

accused-appellant.

Findings of the Learned Trial Court

10. It appears that on analysis of the evidences available

on the record, the learned trial court concluded that in this case, the

testimony of the victim inspires confidence and it is found to be

reliable. Relying upon the judgment of the Hon’ble Supreme Court

in the case of State of Punjab Vs. Gurmeet Singh and Others

reported in (1996) 2 SCC 384, the learned trial court has held that

the deposition of the victim is required to be given full credence

and her statement that she had informed her mother (PW-2) and

father (PW-1) regarding the occurrence would form part of the

same transaction within the meaning of Section 6 of the Indian

Evidence Act (since repealed), therefore, PW-1 and PW-2 cannot

be treated as hearsay witnesses. In the opinion of the learned trial

court, the communication made by the victim to her parents is the

part of the same transaction and has been made substantially soon

after the commission of the crime. This statement ought to be

admitted, hence, the deposition of PW-1 and PW-2 would also

inspire confidence of the court.
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11. The learned trial court has further referred to the

deposition of the Doctor (PW-5) who had medically examined the

victim on 02.07.2020 when she was brought before her by the

police. The Doctor had found that foul smelling bleeding was

present, hymen ruptured, carunculae myritiformes was present. It

is stated that in medical terminology, carunculae myritiformes

means small elevation of rounded mounds of hymen in circling the

vaginal orific, found in sexual activity and postpartum female. The

learned trial court has further held that the Doctor had opined that

the victim might have been forced for sexual intercourse. It is

concluded that the another observation of the Doctor (PW-5)

would prove that the victim was subjected to forceful sexual

intercourse and the evidence of the Doctor fully corroborates the

testimony of the victim and her parents.

Submissions on behalf of the Appellant

12. Mr. Ajay Kumar Thakur, learned counsel for the

appellant has assailed the impugned judgment and order on

various grounds. At the outset, it is submitted that in the present

case, there is no material on the record to show even prima-facie

the age of the victim. Neither in the written application nor in her

statement under Section 164 CrPC or in course of her deposition in

course of trial, the victim has disclosed her date of birth/age. It is
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further pointed out that PW-1 and PW-2 who are the parents of the

victim have also not whispered about the date of birth/age of the

victim. The I.O. (PW-4) has specifically stated that he had not

conducted any investigation with regard to the age of the victim.

13. Learned counsel submits that if the prosecution has

not come out with a statement with regard to the age of the victim,

the presumption under Section 29 of the POCSO Act would not

come into play. The basic foundation is required to be laid down to

attract the presumption, if it has not been done by the prosecution,

the burden of proof would not shift to the accused. It is also

submitted that in a case under the POCSO Act, the presumption of

innocence of an accused is not lost. An accused facing the trial

may rebut the presumption and the degree of rebuttal would not be

the same as required by the prosecution to prove the guilt of the

accused. It is, thus, submitted that in absence of any cogent

evidence either in form of any date of birth certificate of the school

first attended by the victim or the medical examination report by

conducting ossification test of the victim, it would not be

appropriate to raise the presumption as envisaged under Section 29

of the POCSO Act.

14. Learned counsel submits that there is a delay of at

least three days in lodging of the first information report. The
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occurrence is said to have taken place at 11:00 PM on 29.06.2020

but the victim did not inform the occurrence to her parents during

the night hours over telephone, she chose to inform her parents

about the occurrence only on the next day at 06:00 AM. It is

further submitted that on receipt of information, PW-1 and PW-2

returned home, they claimed to have gone to the police station,

according to PW-2, police registered a case and recorded their

statements. Contrary to the claim of PW-2 that when they went to

the police station then police registered the case and recorded their

statement, the victim (PW-3) has stated that when she went along

with her mother and father to the police station and disclosed the

occurrence then the police did not register the case and the case

was registered on the next day. It is submitted that the statement of

PW-3 that the police did not register the case that day is result of

tutoring to her in order to explain the delay of three days in

lodging of the first information report. The statement of the

prosecutrix to this effect is in complete conflict with the statement

of her mother (PW-2). We find that there is a contradiction in the

statement of PW-1 and PW-2 also on this point.

15. It is submitted that the victim and her parents did not

produce the clothes which the victim was wearing at the time of

the alleged occurrence. The clothes were washed off and as such,
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the prosecution could not obtain certain scientific materials with

regard to the occurrence. The accused was arrested on 04.02.2021.

The I.O. had not examined the brother of the victim who was

sleeping inside the house. He could have been a material witness

but he has been withheld by the prosecution without any

explanation.

16. Learned counsel submits that the trial court has

completely erred in saying that the information given by the victim

to her parents over telephone on the next day of the occurrence at

06:00 AM would be part of the same transaction and it would be in

the nature of a res gestae within the meaning of Section 6 of the

Indian Evidence Act.

17. Further, it is submitted that the opinion of the Doctor

(PW-5) would show that the victim did not remember her last

menstrual period. She could not say whether the menstrual period

started after the incidence of rape or it was due to forceful act. The

victim was not sure about it and did not remember the menstrual

date before the incidence. It is pointed out that the victim had

washed her clothes and taken bath after the incidence. No mark of

injury nor any sign of resistance were found on the victim’s lips,

cheeks, mammae, genitalia or any other body part. Her vaginal

examination- foul smelling bleeding was present (++), hymen
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ruptured, carunculae myritiformes was present, however, these

findings of the Doctor nowhere connect with any forceful sexual

act because the Doctor has not recorded any sign of recent sexual

act with the victim. It is pointed out that in course of cross-

examination, PW-5 has stated that she did not find any swelling on

hymen and in case of menses, bleeding occurs. The Doctor admits

in paragraph ‘3’ of her deposition that her conclusion is suspicious.

It is, thus, submitted that the opinion of the Doctor (PW-5) is not

in the nature of a corroborative piece of evidence and no

conclusion may be reached on the strength of this medical report

(Exhibit ‘P-5/PW5’).

18. It is lastly submitted that in this case, the grandfather

of the victim has deposed as a defence witness. He has stated that

Bhairo Marandi and PW-1 both were his sons and they were

having quarrels. DW-1 has stated that the appellant Santosh who is

son of Bhairo Marandi was good in studies, he was appearing in

the B.A. examination and wanted to go further for study in the

post-graduation courses which caused jealousy to PW-1 and with

an intention to jeopardise the career of Santosh, PW-1 got this

false case registered through his daughter. This witness has stated

that he had four sons, all were equal to him. He was suggested that

he had deposed falsely which he denied and has further stated that
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he had complained about this to the Mukhiya and the Sarpanch of

the village orally.

19. It is submitted that from the deposition of DW-1, it

would appear that the family of the victim and the accused both

were on inimical terms.

Submissions of the State

20. Responding to the submissions of learned counsel

for the appellant, Mr. Ajay Mishra, learned Additional Public

Prosecutor for the State submits that in this case, the

victim/prosecutrix is the first cousin of the appellant and there

appears no plausible reason as to why she would falsely implicate

the appellant in this case. Learned Additional Public Prosecutor

submits that the learned trial court seems to have taken a view that

the victim was a minor on the basis of the age recorded in the

proforma of the deposition sheet.

It is, however, not contested that even as the victim is said to

be student of Class-8, the date of birth certificate from the school

where she had studied was not brought on the record. It is also not

contested that no ossification test report of the victim has been

brought on record to demonstrate her age as assessed in the

ossification/dental test, if any.
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21. Learned Additional Public Prosecutor submits that

the victim in this case has been put in the category of sterling

witness and no fault may be found with the same. In his opinion,

conviction of the appellant on the basis of sole testimony of the

victim would be justified.

Consideration

22. Having heard learned counsel for the appellant and

learned Additional Public Prosecutor for the State as also on

perusal of the records, we find that in the present case, the age of

the victim/prosecutrix has not been disclosed by the prosecution. It

has not been determined by the learned trial court in accordance

with the scheme of Section 94 of the Juvenile Justice (Care and

Protection of Children) Act, 2015. No endeavour/effort has been

undertaken in course of trial to determine the age which was the

prime requirement for raising a presumption under Section 29 of

the POCSO Act. It appears from the record that neither in the

written application which is the basis of the FIR nor in her Section

164 CrPC statement or the deposition in course of trial, the victim

has disclosed her date of birth/age at the time of occurrence. The

I.O. (PW-4) has not conducted any investigation with respect to

the age of the victim. The parents of the victim who deposed as

PW-1 and PW-2 have also not whispered about the age and date of
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birth of the victim. This being the material on the record, we are of

the considered opinion that the prosecution has failed to lay down

basic foundational facts to attract the presumption under Section

29 of the POCSO Act. The charge leveled under Section 4 of the

POCSO Act is, therefore, liable to fail.

23. Coming to the evidences with regard to the proof of

guilt under Section 376 IPC, we find that the victim has stated in

course of trial that her parents had gone to Sheikhpura, the

occurrence took place on 29.06.2020 in between 11-12 PM (night)

when she was sleeping. She claims that she had protested but her

hands were twisted and she was assaulted by hand and fist blow,

however, this part of her deposition that she was assaulted, does

not find support from the medical examination report (Exhibit ‘P-

5/PW5’). PW-5 has categorically stated that there was no sign of

any struggle and protest.

24. We further find that the prosecutrix has come out

with a definite case of penetrative sexual act and claimed that she

was in pain when she was being subjected to the said penetrative

sexual act, she was also bleeding but she did not disclose it to

anyone, she made a phone call to her parents in the morning at

06:00 AM. In her examination-in-chief, she has stated that, that

night in her house, she was with her brother. It is, therefore,
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evident that her brother who was very much present in the house

would have come to her rescue if she would have shouted or made

a protest against the appellant. It is not the case of the prosecution

that the appellant was lashed/armed with any deadly weapon and

for that reason, the victim was unable to raise her voice and made

a protest. The presence of her brother in the house was known to

her still, she did not call him for help and even after the

occurrence, she did not call her brother to help her, these are some

of the circumstances which are creating doubt about the

prosecution story. The fact that she had a phone with her, still she

did not call her parents immediately after the occurrence, is the

another circumstance which creates doubt on the prosecution story.

25. We further find from the evidences available on the

record that her parents returned home on the very next day after

getting information. The mother of the victim who has been

examined as PW-2 says that when she went to the police station

with the victim and her husband, then the police had lodged the

case and had recorded their statements, but contrary to the claim of

PW-2, PW-1 and PW-3 have come out with a statement that the

police did not register the FIR and told them that they would first

visit the place of occurrence and then the case would be lodged.

Again, this statement being contrary to each other seems doubtful.
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26. Yet another circumstance which goes against the

prosecution is the fact that the victim is said to have washed off the

clothes and had taken bath and went to the police station to lodge

the case only on 01.07.2020. A three days’ delay in lodging of the

FIR even after knowledge of the occurrence would create some

dent in the prosecution story and the FIR cannot be said to be free

from blemish.

27. We further notice from the evidences available on

the record that the grandfather of the victim who is 82 years old

was very much present in the house. He has stated in his

examination-in-chief that on 29.06.2020, he was sleeping at the

house of PW-1. He has stated that the victim and her brother were

sleeping in the room separately on the cots and this witness was

sleeping at the veranda. DW-1 has stated that on the said night, no

occurrence had taken place with the victim. He has further stated

that on the said night, Santosh (the appellant) had not visited the

house as he had gone outside to work. DW-1 has stated that there

is a quarrel between Bhairo Marandi and PW-1, the appellant is

son of Bhairo who was good in studies and wanted to do his

graduation (B.A.) and go for further studies (M.A.) and this was

causing jealousy to PW-1, it is for this reason that with an

intention to jeopardise the career of Santosh, the present case was
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lodged. He had also made complaint in this regard to the Mukhiya

and the Sarpanch. We have noticed that the fact that brother of the

victim was sleeping in the house, has been admitted by the victim

also, but her brother has not been examined by the prosecution.

This withholdment of a material witness would result in drawing

an adverse inference against the prosecution in terms of Section

114(g) of the Indian Evidence Act, 1872. No explanation has been

furnished by the prosecution as to why such a material witness

who could have proved the presence of the appellant inside the

house in the night hours and then the immediate circumstance

present at the place of occurrence, has not been examined.

28. We have further noticed that the learned trial court

has taken a view that the information furnished by the victim to

her parents on the next day in the morning at 06:00 AM by

telephone would be a relevant fact forming part of the same

transaction as envisaged under Section 6 of the Indian Evidence

Act. We reproduce Section 6 hereunder for a ready reference:-

“6. Relevancy of facts forming part of same
transaction.-Facts which, though not in issue, are so
connected with a fact in issue as to form part of the
same transaction, are relevant whether they occurred
at the same time and place or at different times and
places.

Illustrations
(a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the by-standers
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at the beating, or so shortly before or after it as to form
part of the transaction, is a relevant fact.
(b) A is accused of waging war against the
18
[Government of India] by taking part in an armed
insurrection in which property is destroyed, troops are
attacked, and gaols are broken open. The occurrence of
these facts is relevant, as forming part of the general
transaction, though A may not have been present at all
of them.
(c) Asues B for a libel contained in a letter forming part
of a correspondence. Letters between the parties relating
to the subject out of which the libel arose, and forming
part of the correspondence in which it is contained, are
relevant facts, though they do not contain the libel itself.
(d) The question is, whether certain goods ordered from
B were delivered to A. The goods were delivered to
several intermediate persons successively. Each delivery
is a relevant fact.”

29. A bare reading of Section 6 would show that it talks

of the facts which, though not in issue, are so connected with a fact

in issue as to form part of the same transaction, such fact would be

relevant whether they occurred at the same time and place or at

different times and places. Illustrations would show that Section 6

would be attracted only when the fact is wholly connected with the

facts in issue.

30. In the case of Sukhar vs. State of U.P. reported in

(1999) 9 SCC 507, the Hon’ble Supreme Court had occasion to

consider Section 6 of the Indian Evidence Act. In paragraph ‘6’,

‘7’, ‘8’ and ‘9’, their Lordships have discussed the concept of res

gestae. We reproduce the above-mentioned paragraphs hereunder

for a ready reference:-
18. [Substituted by A.O. 1950, for "Queen".]
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6. Section 6 of the Evidence Act is an exception to
the general rule whereunder the hearsay evidence
becomes admissible. But for bringing such hearsay
evidence within the provisions of Section 6, what is
required to be established is that it must be almost
contemporaneous with the acts and there should not
be an interval which would allow fabrication. The
statements sought to be admitted, therefore, as
forming part of res gestae, must have been made
contemporaneously with the acts or immediately
thereafter. The aforesaid rule as it is stated in
Wigmore's Evidence Act reads thus:
“Under the present exception [to hearsay] and
utterance is by hypothesis, offered as an
assertion to evidence the fact asserted (for
example that a car brake was set or not set),
and the only condition is that it shall have been
made spontaneously, i.e. as the natural effusion
of a state of excitement. Now this state of
excitement may well continue to exist after the
exciting fact has ended. The declaration,
therefore, may be admissible even though
subsequent to the occurrence, provided it is
near enough in time to allow the assumption
that the exciting influence continued.”
7. Sarkar on Evidence (15th Edn.) summarises the
law relating to applicability of Section 6 of the
Evidence Act thus:
“1. The declarations (oral or written) must relate
to the act which is in issue or relevant thereto;
they are not admissible merely because they
accompany an act. Moreover the declarations
must relate to and explain the fact they
accompany, and not independent facts previous
or subsequent thereto unless such facts are part
of a transaction which is continuous.
2. The declarations must be substantially
contemporaneous with the fact and not merely
the narrative of a past.
3. The declaration and the act may be by the
same person, or they may be by different
persons, e.g., the declarations of the victim,
assailant and bystanders. In conspiracy, riot & c
the declarations of all concerned in the common
object are admissible.
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4. Though admissible to explain or corroborate,
or to understand the significance of the act,
declarations are not evidence of the truth of the
matters stated.”
8. This Court in Gentela Vijayavardhan Rao v. State
of A.P.1 considering the law embodied in Section 6
of the Evidence Act held thus: (SCC pp. 246-47,
para 15)
“15. The principle of law embodied in Section 6
of the Evidence Act is usually known as the rule
of res gestae recognised in English law. The
essence of the doctrine is that a fact which,
though not in issue, is so connected with the fact
in issue ‘as to form part of the same transaction’
that it becomes relevant by itself. This rule is,
roughly speaking, an exception to the general
rule that hearsay evidence is not admissible. The
rationale in making certain statement or fact
admissible under Section 6 of the Evidence Act
is on account of the spontaneity and immediacy
of such statement or fact in relation to the fact in
issue. But it is necessary that such fact or
statement must be a part of the same transaction.
In other words, such statement must have been
made contemporaneous with the acts which
constitute the offence or at least immediately
thereafter. But if there was an interval, however
slight it may be, which was sufficient enough for
fabrication then the statement is not part of res
gestae.”
9. In another recent judgment of this Court in Rattan
Singh v. State of H.P.2 this Court examined the
applicability of Section 6 of the Evidence Act to the
statement of the deceased and held thus: (SCC p.
167, para 16)
“[T]he aforesaid statement of Kanta Devi can be
admitted under Section 6 of the Evidence Act on
account of its proximity of time to the act of
murder. Illustration ‘A’ to Section 6 makes it
clear. It reads thus:
‘(a) A is accused of the murder of B by beating
him. Whatever was said or done by A or B or the
bystanders at the beating, or so shortly before or
after it as to form part of the transaction, is a
relevant fact.’
(emphasis supplied)
1. (1996) 6 SCC 241 : 1996 SCC (Cri) 1290
2. (1997) 4 SCC 161 : 1997 SCC (Cri) 525
Patna High Court CR. APP (DB) No.591 of 2023 dt.25-03-2026
20/22

Here the act of the assailant intruding into the
courtyard during dead of the night, victim's
identification of the assailant, her pronouncement
that appellant was standing with a gun and his firing
the gun at her, are all circumstances so intertwined
with each other by proximity of time and space that
the statement of the deceased became part of the
same transaction. Hence it is admissible under
Section 6 of the Evidence Act.”
31. In the present case, the occurrence is said to have

taken place in the night between 11-12 PM on 29.06.2020. The

victim could have made a telephone call immediately to her parents

(PW-1 and PW-2) but she did not inform her parents immediately in

the night. In normal circumstance, a victim of crime of this nature

would cry and seek help from their parents but the victim did not

inform her brother who was sleeping in the house and according to

DW-1, her brother was sleeping in the room itself on a separate cot

but he has not been brought as witness in this case, in these

circumstances, particularly the claim of the victim that she made a

call to her parents next day in the morning i.e. on 30.06.2020 at

6:00 AM cannot be said to be a fact so connected with a fact in

issue as to form part of the same transaction. The Hon’ble Supreme

Court has observed that the hearsay evidence within the provisions

of Section 6 must be almost contemporaneous with the acts and

there should not be an interval which would allow fabrication. In

the present case, the prosecution has not even brought any evidence

on the record by way of a call detail report of the mobile phones of
Patna High Court CR. APP (DB) No.591 of 2023 dt.25-03-2026
21/22

the victim and that of her parents to establish that the victim had

given any call to her parents in the morning. In our considered

opinion, the learned trial court has grossly erred in taking a view

that the information given by the victim to her parents over

telephone on the next day of the occurrence at 6:00 AM could be

part of the same transaction and it would in the nature of res gestae.

We do not approve this view of the learned trial court.

32. The understanding of the learned trial court that

what was told by the victim to her parents next day in the morning at

06:00 AM would be forming part of the same transaction is a

complete misreading of Section 6 of the Indian Evidence Act (since

repealed, now Section 4 of the Bharatiya Sakshya Adhiniyam, 2023).

Section 6 would come into play in the kind of circumstances which

are enumerated in illustration and we have taken note of them

hereinabove. By no stretch of imagination, Section 6 of the Indian

Evidence Act would be attracted in the present case.

33. Having discussed the facts and circumstances which

are appearing from the evidences available on the record, we are of

the considered opinion that on the face of the evidence of the

grandfather of the victim (DW-1), there being a delay of three days

in lodging of the first information report, the contradictory stand of

the prosecution witnesses with regard to the delay in lodging of the

FIR and non-examination of material witness such as the brother
Patna High Court CR. APP (DB) No.591 of 2023 dt.25-03-2026
22/22

of the victim are some things which would not allow this Court to

treat the victim a sterling witness. In the opinion of this Court, the

conviction based on the sole testimony of this victim would not be

sufficient. As held in the case of Ramanand Vs. State of UP

reported in (2023) 16 SCC 510, the principle of presumption of

innocence is not lost and in the present case, we find that the

accused-appellant has been able to demonstrate to the extent

required that he would be entitled for the benefit of doubt.

34. In result, we set aside the impugned judgment and

order. The appellant is acquitted of the charges under Section 4 of

the POCSO Act as well as under Section 376 IPC giving him the

benefit of doubt.

35. The appellant is said to be in custody. He shall be

released forthwith, if not wanted in any other case.

36. This appeal is allowed.

37. Let a copy of this judgment together with the trial

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

(Rajeev Ranjan Prasad, J)

(Soni Shrivastava, J)
lekhi/-
AFR/NAFR AFR
CAV DATE
Uploading Date 31.03.2026
Transmission Date 31.03.2026

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