Patna High Court
DILIP RAM @ DILIP KUMARversusTHE STATE OF BIHAR
- Decided
- Disposal
- PARTLY ALLOWED (DISPOSAL)
Holding
The conviction under Section 4 of the POCSO Act is set aside, but the conviction under Section 376(2)(i) IPC is upheld.
Summary
The appellant, Dilip Kumar, was convicted by the trial court for offences under Section 4 of the POCSO Act and Section 376(2)(i) of the IPC for raping a girl allegedly aged 14. The appeal challenged the conviction on the ground that the victim's age was not properly proved, the school transfer certificate was not exhibited, and there were inconsistencies in the victim's statements. The High Court held that the prosecution failed to establish the victim as a "child" within the meaning of Section 2(d) of the POCSO Act, thereby setting aside the conviction and sentence under Section 4 of the POCSO Act. However, the Court found the evidence sufficient to sustain the conviction under Section 376(2)(i) IPC and imposed a sentence of twelve years rigorous imprisonment with a fine. The appeal was therefore partly allowed.
Issues considered
- Whether the victim was a child within the meaning of Section 2(d) of the POCSO Act.
- Whether the conviction under Section 4 of the POCSO Act can be sustained.
- Whether the conviction under Section 376(2)(i) of the IPC is valid in view of the 2018 amendment.
- Appropriate sentencing for the offence under Section 376(2)(i) IPC.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 164, 313
- Indian Penal Code — s. 323, 341, 376(2)(i), 504, 506
- Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 94
- Protection of Children from Sexual Offences Act, 2012 — s. 2(d), 4
Subjects
- POCSO
- child sexual abuse
- age of victim
- DNA evidence
- IPC 376
- conviction
- appellate court
- sentencing
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.625 of 2023
Arising Out of PS. Case No.-33 Year-2018 Thana- MAHILA P.S. District- Sheohar
======================================================
Dilip Ram @ Dilip Kumar, S/o Dinesh Ram, Resident of village-Chhatauni,
P.S.-Tariyani, Distt.-Sheohar.
... ... Appellant
Versus
1. The State of Bihar
2. Ms. X
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Mahendra Thakur, Advocate
Mr. Krishna Prabhat, Advocate
For the State : Mr. Binod Bihari Singh, 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 : 23-03-2026
Heard learned counsel for the appellant and learned
Additional Public Prosecutor for the State.
2. Despite service of notice on respondent no. 2/ victim,
the victim chose not to enter appearance to oppose this appeal.
3. The present appeal has been preferred for setting
aside the judgment of conviction dated 07.06.2023 (hereinafter
referred to as the ‘impugned judgment’) and the order of sentence
dated 12.06.2023 (hereinafter referred to as the ‘impugned
order’) passed by the learned 1st Additional Sessions Judge-cum-
Special Judge, Sheohar (hereinafter referred to as the ‘learned
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trial court’) in POCSO Case No. 33 of 2018 arising out of
Sheohar Mahila P.S. Case No. 33 of 2018. By the impugned
judgment, the appellant has been convicted for the offences
punishable under Section 4 of the Protection of Children from
Sexual Offences Act (in short ‘POCSO Act’) and Section 376(2)
(i) of the Indian Penal Code (in short ‘IPC’) and by the impugned
order, he has been ordered to undergo rigorous imprisonment for
twenty years with a fine of Rs.10,000/- under Section 4 of the
POCSO Act and in default of payment, he has to further undergo
simple imprisonment for twelve months.
Prosecution Case
4. The prosecution case is based on the written
application of the informant (PW-3). In her written application,
she has stated that this appellant committed rape eight months ago
on her minor daughter (PW-4) aged 14 years on the pretext of
marriage and when she became pregnant and told this fact to the
appellant, he started making distance. She has further alleged that
when she told this fact to the family of the appellant then the
father of the appellant and, his uncles, namely, Ravindra Ram,
Musafir Ram, Vishwanath Kumar got angry and the father of the
appellant asked the informant to leave and threatened her to kill
her family and her daughter, if she would tell this fact to anyone.
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The informant also alleged that the accused persons assaulted
them.
5. On the basis of this written application, Sheohar
Mahilla P.S. Case No. 33 of 2018 dated 26.09.2018 was
registered under Section 4 of the POCSO Act and Sections 323,
341, 376(2)(i), 504 and 506 of the IPC against accused persons,
namely, (1) Dinesh Ram, (2) Ravindra Ram, (3) Musafir Ram, (4)
Vishwanath Kumar and (5) Dilip Kumar (this appellant). After
investigation police submitted charghesheet being Chargesheet
No. 01/19 dated 10.01.2019 against accused Dilip Kumar under
Sections 376(2)(i), 323, 504, 506 IPC and Section 4 of the
POCSO Act and against rest of the accused persons under
Sections 341, 323, 504, 506/34 IPC. Learned trial court vide order
dated 07.02.2019 took cognizance of the offences punishable
under Sections 376(2)(i), 323, 504, 506 IPC and Section 4 of the
POCSO Act against accused Dilip Kumar and against rest of the
accused under Sections 341, 323, 504, 506/34 IPC.
6. Charges were read over and explained to the accused
persons in Hindi to which they pleaded not guilty and claimed to
be tried. Accordingly, vide order dated 21.09.2019, charges were
framed against accused Dilip Ram under Sections 376(2)(i), 323,
504, 506 and Section 4 of the POCSO Act and against rest of the
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accused, namely, (1) Dinesh Ram, (2) Ravindra Ram, (3) Musafir
Ram and (4) Vishwanath Ram charges were framed under
Sections 341, 323, 504, 506/34 IPC.
7. In course of trial, the prosecution examined as many
as nine witnesses and exhibited several documentary evidences.
The names of the prosecution witnesses and the exhibits are being
shown hereunder in a tabular form:-
List of Prosecution Witnesses
PW-1 Aunt of the victim
PW-2 Uncle of the victim
PW-3 Mother of the victim
(Informant)
PW-4 Victim
PW-5 Dr. Ravindra Kumar
Singh
PW-6 Shanti Devi
PW-7 Dr. Anjana Prasad
PW-8 Dr. Birendra Kumar
PW-9 Anita Devi
List of Exhibits on behalf of Prosecution
Exhibit ‘1’ Signature of PW-4 on her 164 CrPC
Statement
Exhibit ‘2’ Medical Report
Exhibit ‘2/1’ Signature of Dr. Anjana Prasad on the
medical report
Exhibit ‘2/2’ Signature of Dr. Birendra Kumar on
the medical report
Exhibit ‘3’ Signature of Officer Incharge on FIR
Exhibit ‘3/1’ Endorsement of SHO on FIR
Exhibit ‘4’ Signature of the I.O. on the
Chargesheet
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8. Thereafter, the statements of the accused persons
were recorded under Section 313 of the CrPC. The appellant in
his 313 CrPC statement denied the allegations. The appellant also
stated that the victim had mentioned her date of birth by lowering
it.
Findings of the Learned Trial Court
9. Learned trial court after analysing the evidences
available on the record found that the victim (PW-4) in her
deposition stated that she suffered vomiting and prior to that Dilip
Ram did wrong act with her many times. Learned trial court
observed that the appellant committed penetrative sexual assault
upon the victim and as such, she became pregnant.
10. Learned trial court, on the point of age of the victim
found that the victim had in her 164 CrPC statement mentioned
her age as 14 years. The mother (PW-3) of the victim has
mentioned the date of birth of the victim as 05.02.2005. The
victim (PW-4) herself stated her date of birth as 02.02.2005.
There is no cross-examination on behalf of the defence to PW-3
and PW-4 regarding the date of birth of the victim. Learned trial
court found that the Doctors (PW-5) and (PW-7) have stated that
the Medical Board found the age of the victim about 16-18 years
on the date of her medical examination i.e. on 27.09.2018.
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Learned trial court also found that the school transfer certificate
of the victim is on the record showing her date of birth as
02.02.2005. Therefore, learned trial court opined that the victim
was minor and her age was about 14 years and below 16 years.
11. Learned trial court held that in the present case, the
evidence of the victim (PW-4) is clinching in nature and inspires
confidence and there is nothing on the record to believe that the
evidence of PW-4 is not trustworthy as also the ‘DNA’ report
shows that the Appellant is the biological father of the child born
to the victim.
12. Learned trial court after considering all the facts and
circumstances of the case held that the prosecution has succeeded
in proving the charges punishable under Section 4 of the POCSO
Act and Section 376(2)(i) IPC against accused Dilip Ram @ Dilip
Kumar beyond all reasonable doubts, therefore, he is convicted
and sentenced accordingly. However, the prosecution has failed to
prove the charges under Sections 323, 341, 504 and 506 IPC
against all other accused persons and they have been acquitted of
these charges.
Submissions on behalf of the Appellant
13. Learned counsel for the appellant while assailing
the impugned judgment and order submits that the learned trial
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court has committed error in convicting the appellant under
Section 4 of the POCSO Act and Section 376(2)(i) IPC.
14. Learned counsel for the appellant submits the
school leaving certificate of the victim shows her date of birth as
02.02.2005. The school leaving certificate is on the record but has
not been exhibited. Learned counsel further submits that the
school transfer certificate in itself is not a proof of date of birth
within the scheme of Section 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (hereinafter referred to as ‘the
J.J. Act’).
15. Learned counsel for the appellant submits that there
are contradictions in 164 CrPC statement of the victim and her
deposition in course of trial, particularly, with regard to the
manner of occurrence.
Submissions of the State
16. Learned Additional Public Prosecutor the State has
defended the impugned judgment and order. Learned Additional
Public Prosecutor for the State submits that the evidence of the
victim is clinching in nature and inspires confidence and there is
no reason to disbelieve her.
17. Learned Additional Public Prosecutor submits that
the DNA report shows that the appellant is the biological father of
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the child born to the victim who is minor aged about 14 years.
Learned APP further submits that the defence did not cross-
examined the victim or the informant regarding the age of the
victim.
Consideration
18. We have heard learned counsel for the appellant and
learned Additional Public Prosecutor for the State as also perused
the trial court’s records. The first and foremost question which
arises in this case is as to whether the prosecution has been able to
establish that the victim is falling within the definition of word
‘child’ as envisaged under Section 2(d) of POCSO Act. It appears
on going through the impugned judgment that the learned trial
court relied upon a school transfer certificate of the victim which
is said to be on the record showing her date of birth as
02.02.2005. The school transfer certificate has not been exhibited
in evidence. We are afraid that in absence of the school transfer
certificate having been exhibited through a competent witness, the
same could not have been taken into consideration. Moreover, we
are also of the opinion that school transfer certificate in itself is
not a proof of date of birth within the scheme of Section 94 of the
J.J. Act.
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19. The above opinion of this Court leads to a further
examination of material on the record with regard to the age of
the victim which is in form of the medical examination report of
the victim. The Doctor (PW-5) has proved the medical
examination report (Exhibit ‘2’). As per the opinion of the
Medical Board, the victim was aged between 16 and 18 years and
she was carrying thirty weeks pregnancy at the time of medical
examination. If this age opinion by the Medical Board is related
back to a period of eight months, the radiological age of the
victim may be between 15-17 years at the time when the appellant
had established physical relationship with her. At this stage, when
we apply the plus/ minus two years rule in view of the judicial
pronouncements of the Hon’ble Supreme Court in the case of
Rajak Mohammad v. State of H.P. reported in (2018) 9 SCC
248 and the judgment of the Hon’ble Delhi High Court in the
case of Court on its own Motion vs. NCT of Delhi reported in
2024 SCC Online Delhi 4484 and take the upper extremity of
age, we would conclude that the prosecution is not able to
establish by adducing cogent evidence that the victim was a
‘child’ within the meaning of Section 2(d) of the POCSO Act. The
upper extremity of the age in that circumstance would go to 17-19
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years. We are, therefore, of the considered opinion that the charge
framed under Section 4 of the POCSO Act would not succeed.
20. The learned trial court has held the appellant guilty
of the charge under Section 376(2)(i) IPC. Learned counsel for
the appellant has shown to this Court that clause (i) under Sub-
Section (2) of Section 376 IPC was omitted by the Act 22 of 2018
vide Section 4 with retrospective effect from 21.04.2018. In this
case, the date of occurrence is beyond 21.04.2018, therefore, the
case would not be covered under this provision. We would not
agree with this submission of learned counsel for the appellant for
the reason that as per the prosecution evidence the victim had
suffered vomiting in the month of September, 2018 and her
medical examination was conducted on 27.09.2018 when it was
found that she was carrying a pregnancy of thirty weeks. This
thirty weeks period would relate back to a date prior to
21.04.2018, therefore, on the date of occurrence, the provision
was very much in existence.
21. We have perused the evidences available on the
record. In the present case, the victim has been examined as PW-
4. She has stated that the appellant had forcefully established
physical relationship with her. Learned counsel for the appellant
has tried to impress upon this Court by showing 164 CrPC
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statement of the victim and taking a plea that there are some
contradictions in the statement with regard to the manner of
occurrence, particularly, about the threat given to the victim,
however, we are not impressed with this submission because any
minor deviation from the statement made under Section 164 CrPC
by the victim would not take away the whole prosecution case.
We find that while in her 164 CrPC statement, she has stated that
the appellant had entered into her house and he had on the
allurement of marrying her asked her to do whatever he says and
thereafter, he had established physical relationship with her. In
course of trial, the victim has stated that the appellant had
committed rape on her by showing a knife. This is the only
deviation from her statement, at best it may be an improvement
but this would not take away the prosecution case because the
defence has not come out with a plea that it was a consented
relationship. Nowhere in the pattern of cross-examination of the
prosecution witnesses or in the statement under Section 313
CrPC, the appellant has come out with a plea that the victim was
major and the physical relationship was consented. In fact, the
appellant straightaway denied the allegations of having
established physical relationship with the victim and took a plea
of alibi that at the time of occurrence, he was engaged in studies
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at her Bua’s place. In our considered opinion, the victim in this
case would stand as a sterling witness and there is no reason to
disbelieve her testimony.
22. In ultimate analysis of the entire evidences available
on the record, we are of the considered opinion that the charge
under Section 376(2)(i) of the IPC stands established.
23. So far as the award of sentence to the appellant is
concerned, the learned trial court has awarded a sentence of
twenty years rigorous imprisonment under Section 4 of the
POCSO Act with a fine of Rs.10,000/- and in case of default of
payment of fine a simple imprisonment for twelve months but no
separate sentence has been awarded under Section 376(2)(i) IPC.
Since the charge under Section 4 of the POCSO Act has not been
found proved and the appellant is being acquitted giving benefit
of doubt under the said charge, the sentences imposed under the
said provision would automatically go.
24. This Court has heard learned counsel for the
appellant and the learned Additional Public Prosecutor for the
State also on the point of sentence under Section 376(2)(i) IPC.
Keeping in view the materials available on the record and the
sentence provided under Section 376 IPC, we award a sentence of
twelve (12) years rigorous imprisonment with a fine of
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Rs.25,000/-, in default of payment of fine, the appellant shall
undergo simple imprisonment for a period of six months.
25. The District Legal Services Authority, Sheohar shall
pay the compensation amount to the victim in terms of the
judgment of the learned trial court as early as possible preferably
within a period of three months from the date of receipt/
production of a copy of this judgment.
26. This appeal is partly allowed.
27. Let a copy of this judgment along with the trial
court’s records be sent down to learned trial court.
(Rajeev Ranjan Prasad, J)
( Soni Shrivastava, J)
SUSHMA2/-
AFR/NAFR
CAV DATE
Uploading Date 25.03.2026
Transmission Date 25.03.2026
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