Patna High Court

MD QUARBANversusThe State of Bihar

Decided: 6 April 2026
Disposal: ALLOWED
Bench: RAJEEV RANJAN PRASAD SONI SHRIVASTAVA

Holding

The conviction was set aside and the appellant was acquitted of all charges.

Summary

The appellant Md Quarban was convicted by a Special POCSO Court for kidnapping, rape and related offences against a girl alleged to be a minor. The prosecution relied chiefly on the victim’s testimony, a school registration card to prove minority, and a medical report showing pregnancy but no injuries. The victim gave multiple, inconsistent statements and no independent corroborative witnesses were produced. The Court held that the victim could not be classified as a "sterling witness" and that the age of the victim was not satisfactorily established under the Juvenile Justice Act, rendering the presumption under the POCSO Act inapplicable. Consequently, the prosecution failed to prove the charges beyond reasonable doubt, and the conviction was set aside, acquitting the appellant of all offences.

Issues considered

The victim’s testimony alone can sustain a conviction if she qualifies as a "sterling witness".
Whether the victim was a minor at the time of the alleged offence under the POCSO Act.
Whether the prosecution proved the offences beyond reasonable doubt.
Whether the presumption of minority under Sections 29 and 30 of the POCSO Act applies.

Legislation cited

Code of Criminal Procedure, 1973 — s. 164, 313
Indian Penal Code — s. 323, 341, 363, 365, 366A, 376, 427, 504, 506
Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 94
Protection of Children from Sexual Offences (POCSO) Act — s. 29, 30, 4, 8

Subjects

POCSO
minority
age determination
sterling witness
conviction
acquittal
evidentiary standards
IPC
sexual assault
kidnapping
presumption of innocence
burden of proof

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.632 of 2023
Arising Out of PS. Case No.-361 Year-2018 Thana- SABAUR District- Bhagalpur

======================================================
Md Quarban Son Of Md. Badruddin @ Baddo R/O Village- Soma Pranpur,
P.S- Bakhri, Distt.- Begusarai.

... ... Appellant/s
Versus
1. The State of Bihar
2. Arjun Harijan, C/O Pramod Harijan @ Parmanand Harijan R/O
Vill./Mauza- Arya Tola, P.S.- Sabour, Dist.- Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
For the Appellant : Md. Hussamuddin Azad, Advocate
For the State : Mr. Sujit Kumar Singh, APP
For the Respondent No.2: Md. Najmul Hodda, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
And
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
CAV JUDGMENT
(Per: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA)

Date : 06-04-2026
Heard Md. Hussamuddin Azad, learned counsel for

the appellant, Md. Najmul Hodda, learned counsel for the

respondent no.2 and Mr. Sujit Kumar Singh, learned Additional

Public Prosecutor for the State.

2. The present appeal has been preferred against the

judgment of conviction dated 18.03.2023 and the order of sentence

dated 22.03.2023 passed by the learned Additional District and

Sessions Judge-VI-cum-Special Judge, POCSO Act, Bhagalpur in
Patna High Court CR. APP (DB) No.632 of 2023 dt.06-04-2026
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POCSO Case No. 35 of 2020, arising out of Sabour P.S. Case No.

361 of 2018.

3. By the impugned judgment, the appellant has been

convicted and was sentenced for the offences punishable

hereunder:

Offence Sentences
u/s
363 IPC Rigorous Imprisonment for 7 years along with fine
of Rs. 50,000/-; in default of payment of fine-
simple imprisonment for three months
341 IPC Simple Imprisonment for 1 year or fine of Rs. 500/-;
in default of payment of fine- simple imprisonment
for one week.
323 IPC Simple Imprisonment for 1 year and fine of Rs.
1000/-; in default of payment of fine- simple
imprisonment for fifteen days.
504 IPC Rigorous Imprisonment for 2 years and fine of Rs.
1,000/-; in default of payment of fine- simple
imprisonment for one week.
4 POCSO Rigorous Imprisonment for 20 years along with fine
Act of Rs. 1 lakh; in default of payment of fine- simple
imprisonment for six months.

Prosecution Case

4. The prosecution case based on the written report of

the informant unfolds with the allegation that the minor daughter

(aged about 14 years) of the informant had gone for her tuition

classes 15 days back, but did not return. He frantically searched
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for his daughter but did not get to know of her whereabouts. When

he could not find out anything even from his relatives, he gave the

present written application on 28-12-2018 before police.

5. On the basis of the aforesaid written application,

Sabour P.S. Case No. 361 of 2018, was registered against

unknown for the offences punishable under sections 363, 365 of

Indian Penal Code (hereinafter referred as IPC).

6. After investigation supplementary charge-sheet was

submitted against the present appellant under sections 366A, 376,

341, 323, 504, 506, 427/34 of the IPC and section 6/8 of POCSO

Act, whereafter cognizance was also taken under the

aforementioned provisions by the Special Court POCSO,

Bhagalpur.

7. Accordingly, the learned Trial Court on 10-08-2021,

framed the charges against the appellant under sections 341, 323,

376, 366 A, 427 of IPC and 4 & 8 of POCSO Act and the same

were explained to him to which he pleaded not guilty and claimed

to be tried.

8. The prosecution in order to substantiate its case, has

examined as many as five witnesses and exhibited some

documents on its behalf. The defence however has neither

examined any witness, nor exhibited any documents. List of
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prosecution witnesses and exhibits are being mentioned hereunder

in tabular form: -

List of Prosecution Witnesses :

Prosecution Name of Description
witness no. witness
1 Kiran Kumari Sister of
victim
2 Arjun Harijan Informant
3 ‘X’ Victim
4 Dr. Alpana Medical
Mitra Jurist
5 Suryadev Investigating
Paswan Officer

List of Exhibits on behalf of the prosecution :

Exhibit Description of the Proved
No. Exhibit by/attested by
1 Signature of the P.W.4
Doctor on Medical
Report.
2 Signature of the P.W. 5
S.H.O. Rajeev
Kumar on the Formal
First Information
Report (hereinafter
referred as “F.I.R.”)
3 Signature of the P.W.5
S.H.O. on
registration of the
case.
4 Registration P.W.3
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Certificate of Victim
issued by Bihar
School Examination
Board.
5 Signature of the P.W.3
victim on her
statement recorded
u/s 164 Cr.P.C.

9. The accused/appellant was examined under section

313 of the Code Of Criminal Procedure on 03-02-2023 wherein

the appellant denied all the allegations and took a plea that he is

innocent.

10. The defence did not adduce any oral or documentary

evidence.

Findings of the Learned Trial Court:

11. The learned Trial Court, at the outset, has decided

the primary issue relating to the minority of the victim and has

recorded the fact that while the victim’s age has been disclosed

as 14 years in both the FIR and the statement of the victim under

section 164 Cr.P.C, the learned Magistrate has assessed her age

as 15 years. The medical report (Ext. P1/PW4) indicates her age

to be between 16 to 18 years. The date of birth of the victim as

per her Registration Card in the Bihar School Examination Board

has been recorded as 25.01.2004 and the said Registration Card
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has been exhibited as Ext. P4/PW3. Learned Trial Court has, thus

reached the conclusion that the victim was undoubtedly a minor

on the basis of the aforementioned document which has been

regarded to be a concrete and tangible evidence, unless proved

otherwise.

12. Upon discussing the deposition of the prosecution

witnesses, the learned Trial Court has recorded the fact that the

victim (PW3) has completely supported the occurrence and has

named and identified the appellant in Court. The deposition of the

informant (PW2), who happens to be the father of the victim, has

also been considered as being in support of the evidence of the

victim. Further, the evidence of the doctor (PW4) who had

medically examined the victim and found that she was carrying a

pregnancy of 9-11 week, as per the learned Trial Court, corrborated

the prosecution case. The I.O. (PW5) also found the case true and

submitted charge-sheet.

13. The learned Trial Court has thus concluded that the

solitary evidence of the victim itself is sufficient for proving the

guilt of the accused and since there are no apparent contradictions

in the prosecution evidence to doubt the veracity of the same, the

prosecution has been able to prove its case beyond reasonable

doubts. However, while holding that the case has been proved
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under sections 323, 341, 376, 504 of the IPC along with section 4

of the POCSO Act and additionally finding the case to be proved

under section 363 IPC also (under which no charge was framed),

the accused/appellant has been acquitted of the charges under

Section 427, 506, 366 A of the IPC and Section 8 of the POCSO

Act as the same was held to be not proved beyond reasonable

doubt.

Submission of the Appellant

14. Md. Hussamuddin Azad, the learned counsel

appearing on behalf of the appellant has submitted at the outset that

the judgment of conviction is against the weight of evidence and

has been passed upon presumption of guilt. It has been argued that

the FIR itself was lodged 15 days after the victim went missing, as

such, there is an inordinate delay in lodging of the FIR leading to

the inference that the same has been lodged by the father of the

victim (PW2) after due thought and deliberation. The statement of

the victim which is the sole basis of conviction of appellant, is not

worth believing as she has been changing her statement with regard

to the manner of the occurrence right from her statement recorded

under Section 161 and 164 Cr.P.C. (Ext.P5) to her deposition

before the Trial Court in course of trial.
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15. It has further been submitted by the learned counsel

for the appellant that there was no proper age determination of the

victim done in accordance with Section 94 of Juvenile Justice Act,

2015 as the document (Exhibit P4) is merely a Registration Card

issued by the Bihar School Examination Board, Patna and a

presumption of minority was drawn only on the basis of the said

card which was exhibited by the victim (PW3) herself. The

Investigating Officer has conducted no investigation upon the

authenticity of the same nor any other witness competent to prove

the contents thereof was examined, thereby making the finding of

minority of the victim unsustainable. Learned counsel has also

submitted that no independent witness has been examined on

behalf of the prosecution either on the point of kidnapping of the

victim or her recovery and the evidence of PW1 and PW2, who are

the sister and father of the victim respectively, are in the nature of

hearsay evidence and are of no consequence.

16. With regard to the medical evidence, the learned

counsel has pointed out that in the opinion of the doctor (PW4), her

age was assessed between 16 and 18 years and did not find any

evidence of recent sexual assault.

17. Thus, on the basis of the aforementioned grounds, it

has been submitted that the impugned judgment of conviction is fit
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to be set aside as the prosecution has miserably failed to prove its

case beyond reasonable doubts. Consequent to the setting aside of

the impugned judgment, the impugned order of sentence shall also

go.

Submission on behalf of the Respondents

18. The learned Counsel for the State and learned

Counsel for the informant, have jointly argued before this court that

the witnesses produced on behalf of the prosecution, have

supported its case, including the victim (PW2) whose testimony

is of credible nature, as such, the statement of the victim (PW2)

itself can form the sole basis of conviction of the appellant

/accused.

19. The learned counsel(s) have further argued that the

victim is a minor aged about 15 to 16 years and in support of the

same, a Registration Card issued by the Bihar School Examination

Board, Patna, (Exhibit P4) has been brought on record and thus the

presumption of Section 29 & 30 of POCSO Act would also operate

against the appellant/accused, reversing the standard burden of

proof.

20. The learned counsels have lastly pointed out the fact

that the medical evidence indicates pregnancy of the victim and
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thus it cannot be denied that the victim has not been subjected to

sexual assault. It has thus been submitted that there is no illegality

in the impugned judgment and order of conviction, as such, do not

warrant any interference. The appeal is devoid of any merit and fit

to be dismissed.

Analysis and Consideration

21. Having heard learned counsel for the parties,

considering the evidence led at the trial as well as upon perusal of

the records, this court finds that out of five witnesses examined on

behalf of the prosecution, PW4 and PW5 are the doctor (Medical

Officer) and Investigating Officer respectively. While PW1, PW2

& PW3 are private witnesses, PW3 is the victim herself whereas

PW1 & PW2 are her sister and father (informant) respectively. It is

noticed that so far as PW1 & PW2 are concerned, their evidence is

of no consequence, inasmuch as, while PW1 has only stated that

she was told about occurrence by her father (PW2) and has no idea

whatsoever about the perpetrator of the alleged offence, PW2

(Informant) has deposed during trial in his cross examination vide

paragraph 5 that his statement was never recorded before the

police. He stated that he had only given a written application and it

is not in his memory as to what had been written in the said
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application and that he had got it written from a ward member of a

different village. Thus, it appears that for the first time, his

statement has been recorded by the Trial Court and the evidentiary

value of his deposition thus gets greatly diminished.

22. The case of the prosecution, as such, hinges on the

solitary statement of the victim (PW3). The determinative factor or

the central issue would thus be as to whether her evidence inspires

complete confidence and whether she can be brought within the

ambit of ‘sterling witness’. Law is well settled that the witnesses

can be classified into three categories: i. wholly reliable ii. wholly

unreliable iii. Neither wholly reliable nor wholly unreliable. A

conclusion thus has to be arrived at that as to whether the victim is

a witness who can be classified as a wholly reliable witness. But if

she falls in the third category, the Court has to be extremely

circumspect to look for corroboration of her testimony which is the

requirement of the rule of prudence, in order to reach a just and

equitable decision.

23. Upon perusal of the entire records, it has come to

the notice of this Court that the victim (PW3) has been giving

vacillating statements at different stages of investigation and trial.

It appears from the evidence of the Investigating Officer (PW5-

para 11) that the victim, in her statement before police had stated
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that she and her sister were all alone in the house when a girl came

and knocked at the door and called her out of the house on the

pretext that the victim’s father was calling her but when she went

outside, the appellant, who was on motorcycle, took her along

forcibly. This has been recorded in paragraph 43 of case diary

according to the I.O. (PW5).

24. Further, such manner of occurrence has also been

disclosed in the victim’s statement under Section 164 Cr.P.C.

(Exhibit P5) before the Magistrate with further additional facts that

the family members of the appellant coerced her to marry the

appellant, whereafter she was ill-treated and confined in the

house.

25. As against such statement, the victim during trial has

revealed a different manner of occurrence stating that while she

was going to the tuition with a neighbourhood girl, who was her

friend, she took her to some place on the pretext that her teacher

was calling her and when she reached the said place, she was taken

away forcibly on the motorcycle by the appellant. In her further

cross-examination, she has stated the name of the girl who had

taken her along as Muskan and has given reason for not making

any attempt to flee away as she was sitting on motorcycle and was
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scared, although she has also stated that there were many shops in

the vicinity and the shops were open.

26. The evidence of the victim (PW3) as discussed

above needs to be analysed in the backdrop of other factors which

would have a direct bearing on the case of the prosecution. It is

evident from the deposition of victim read conjointly with the

evidence of the I.O. (PW5) that she has been changing the narration

of the manner of occurrence during investigation and trial, leading

to the inference thereby that she has been giving totally

inconsistent and conflicting versions of the occurrence. Further, a

vital witness who is the neighbourhood girl, has been withheld by

the prosecution for reasons not explained.

27. The story as revealed by the victim of making her

forcibly sit on the motorcycle and being taken away to the house of

the appellant, with several shops open and yet the victim not

raising any alarm, renders the same highly suspicious. The victim’s

inability to name the teacher at the tuition also makes her story of

going to the tuition doubtful. No witness from her centre for tuition

or any other witness on the point of she being possibly taken away

on a motorcycle by the appellant, has been brought forward by the

prosecution to lend support to the story of the victim. Even the

sister of the victim who has been examined as PW1, who,
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according to the victim, had opened the door and was in the house

along with her, has not mentioned such facts in her examination-in-

chief and has rather stated in her cross-examination that no

occurrence had taken place in her presence. The I.O. (PW5) has

admitted in his deposition in paragraph 17 that he did not record

the statement of any independent witness during the entire

investigation neither did he indicate the place in the case diary from

where the victim was recovered.

28. After having analysed the trend of evidence as

disclosed by the victim (PW3), it would be difficult to place her in

the category of ‘sterling witness’ whose evidence would be

complete and sufficient in itself to base a conviction, as such, the

evidence of victim (PW3) must undergo a strict scrutiny through

the well-settled legal principles as established by law in a catena of

decisions. The concept of a sterling witness has been succinctly

discussed in the case of Rai Sandeep alias Deepu Vs. State (NCT

of Delhi) reported in (2012) 8 SCC 21 and para 22 of the said

judgment of the Hon’ble Apex Court is being reproduced as

hereunder: -

“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
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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 “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
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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. This view was further reiterated by a three judges

bench of the Hon’ble Apex Court in the case of Nirmal Prem

Kumar & Anr. Vs State represented by Inspector of Police,

(2024 INSC 193) Cr. Appeal No. 1098 of 2024 disposed off on

11.03.2024.

30. The veracity of the prosecution story also needs to be

viewed and tested in the backdrop of the FIR itself being lodged

after an inordinate delay of 15 days. This fact compels this court to

take a view that there is something more in this case that meets the

eye, as no father whose daughter went missing or was kidnapped

would wait for fifteen days for lodging an FIR. Further, the medical

examination of the victim conducted by the medical officer (PW4)

reveals that there was no physical or chemical injury on her body

including her private parts and upon pathological investigation no

spermatozoa was detected in the vaginal swab, however the urine

pregnancy test was found positive.

31. Her age was assessed between 16 to 18 years but no

evidence of any recent sexual assault has been noted by the doctor,
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thereby making it abundantly clear that even the medical report

(Ext. P1)does not stand in support of the contentions of the victim.

Merely because the pregnancy test was found to be positive, it

would not lead us to the irresistible conclusion that the entire

prosecution story narrated against the appellant has an element of

truth and there could be other reasons, including one of consensual

sexual relation, leading to the pregnancy of the victim.

32. The issue of a consensual sexual relation brings us to

the crucial question as to whether the victim was actually a minor

and whether her age determination was done in consonance with

the procedure laid down under Section 94 of Juvenile Justice Act,

2015. With regard to the minority of the victim, the only document

which has been brought on record is the Registration Card

(Exhibit- P4) issued by the Bihar School Examination Board,

wherein her date of birth is recorded as 25.01.2004. This document

has been proved and marked as Exhibit P4 by the victim herself

and no other evidence has been adduced in support of the said

document. Neither the school admission register has been produced

nor the headmaster of the concerned school has been brought

forward for examination in order to lend support to the case of the

victim that she was a minor at the relevant period. Further, the fact

that all the witnesses including the I.O., have maintained a curious
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and suspicious silence on the aspect of age of the alleged rape

victim, is very intriguing and raises considerable doubt in the mind

of this court with regard to the minority of the victim. None of the

victim’s family members i.e. her sister or her father, have

mentioned a word about the age of the victim in their deposition

made in the Court. The victim too has remained effectively silent

on the said aspect and only on recall for recording further

examination-in-chief after about 10 months of her cross-

examination, she produced the above-mentioned Registration Card

which was marked as Exhibit-P4. Such evidence may be

admissible but its evidentiary value, in the entire scenario, gets lost,

especially in absence of any supporting evidence and non-

examination of the maker of the said document to vouchsafe of the

contents thereof. Exhibit-4 did not form part of the charge-sheet

and the police papers supplied to the accused.

33. Since the determination of age has not been done in

accordance with law and there is no other evidence, much less

clinching, to establish the minority of the victim, this court would

go on to consider the medical evidence whereby the doctor has

assessed her age to be between 16 and 18 years. The Hon’ble Apex

Court has in many cases taken a view that radiological examination

for purpose of age determination is not very reliable and there is
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always a possibility of an error of plus and minus two years.

Reliance may be placed on the judgments of the Hon’ble Supreme

Court in the case of Ram Suresh Singh versus Prabhat Singh

and Another, reported in (2009) 6 SCC 681 and Om Prakash

versus the State of Rajasthan and Another, reported in (2012) 5

SCC 201. Further, in the case of Rajak Mohammad Vs. H.P,

reported in (2018) 9 SCC 248 it has also been laid down that the

age determination on the basis of radiological examination may not

be accurate determination and thus sufficient margin on either side

has to be allowed. Paragraph 9 of the said judgment is being quoted

hereunder, for ready reference:

“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.”
34. In the case of Court on its Own Motion Vs. NCT of

Delhi reported in 2024 SCC OnLine Delhi 4484, the Hon’ble

Division Bench of Delhi High Court framed two questions and

answered the same as under:-

“46. As an upshot of our foregoing discussion, the Reference
is answered as under:—
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(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.”

35. Applying such principle laid down by the Hon’ble

Apex Court, the upper extremity of the age of the victim is rather

raised to 20 years and thus the victim can be safely considered to

be major, thereby excluding the applicability of the POCSO Act.

36. It is however made clear at this juncture that the

theory of presumption under the POCSO Act would only come into

play once the foundational facts are established and it is also a fact

that the presumption of innocence of accused is not completely lost

in POCSO cases. The degree of rebuttal by the defence in POCSO

cases cannot be said to be at par with proving of a case by the

prosecution beyond reasonable doubts. Reference in this regard is

made to the judgment of the Hon’ble Supreme Court in the case of

Ramanand vs. State of U.P. reported in AIR 2022 Supreme
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Court 5273. The relevant paragraphs '99' and '101' read as

under:-

“99. It is sufficient if the accused person succeeds
inproving a preponderance of probability in favour of his
case. It is not necessary for the accused person to prove his
case beyond a reasonable doubt or in default to incur a
verdict of guilty. The onus of proof lying upon the accused
person is to prove his case by a preponderance of
probability. In American Jurisprudence, 2 nd Edn., Vol. 30,
the expression “preponderance of evidence” has been
defined in Article 1164. In America the term means “the
weight, credit and value of the aggregate evidence on
either side, and is usually considered to be synonymous
with the term greater weight of the evidence”, or “greater
weight of the credible evidence”. It is a phrase which, in
the last analysis, means probability of the truth. To be
satisfied, certain, or convinced is a much higher test than
the test of “preponderance of evidence”. The phrase
“preponderance of probability” appears to have been taken
from Charles R. Cooper v. F.W. Slade Charles R. Cooper v.
F.W. Slade, (1857-59) 6 HLC 746. The observations made
therein make it clear that what “preponderance of
probability” means “more probable and rational view of
the case”, not necessarily as certain as the pleading should
be.
101. The inalienable interface of presumption of innocence
and the burden of proof in a criminal case on the
prosecution has been succinctly expounded in the
following passage from the treatise The Law of Evidence,
5 th Edn. by Ian Dennis at p. 445:
“The presumption of innocence states that a person is
presumed to be innocent until proven guilty. In one
sense this simply restates in different language the
rule that the burden of proof in a criminal case is on
Patna High Court CR. APP (DB) No.632 of 2023 dt.06-04-2026
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the prosecution to prove the defendant’s guilt. As
explained above, the burden of proof rule has a
number of functions, one of which is to provide a rule
of decision for the fact-finder in a situation of
uncertainty. Another function is to allocate the risk of
mis-decision in criminal trials. Because the outcome
of wrongful conviction is regarded as a significantly
worse harm than wrongful acquittal the rule is
constructed so as to minimise the risk of the former.
The burden of overcoming a presumption that the
defendant is innocent therefore requires the State to
prove the defendant's guilt.”
[Emphasis supplied]

37. After having closely considered, analysed and

scrutinised the evidence on record, we find that the determination

of guilt cannot be based on vague estimations. The evidence

adduced on behalf of the prosecution with regard to age of the

victim was not sufficient to arrive at a finding of minority of the

victim as the said evidence was totally uncorroborated and

unsupported by any other evidence. Considering the age of the

victim to be pivotal factor, it would not be safe or fair to place any

reliance on such an uncorroborated and not sufficiently proved

piece of evidence.

38. So far as the allegation of forcibly taking away of

the victim and subjecting her to rape is concerned, undoubtedly

conviction can be sustained on the sole testimony of the victim,

provided that she can be covered within the ambit of a ‘sterling
Patna High Court CR. APP (DB) No.632 of 2023 dt.06-04-2026
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witness’ inspiring confidence. In this regard, reference be made to

a recent judgment of the Hon’ble Supreme Court in the case of

Birka Shiva Vs. State of Telangana reported in 2025 SCC

OnLine SC 1454 and para 18 thereof, is being quoted hereunder:-

18. The prosecution has sought conviction of the appellant
under Section 376 IPC, asserting that he had committed
forcible sexual intercourse with the victim. It is trite law
that a conviction for rape can be sustained solely on the
testimony of the prosecutrix/victim, provided that her
evidence inspires confidence in the mind of the Court and
appears to be natural and truthful. However, if the version
given by the prosecutrix is inconsistent, unsupported by
any medical evidence, or the whole surrounding
circumstances are highly improbable and believable in the
case set up by the prosecutrix, the Court shall not act on
the solitary evidence of the prosecutrix.
39. A further reference is being made to the case of

Santosh Prasad Vs. State of Bihar reported in (2020) 3 SCC 443

wherein the Hon’ble Apex Court has clearly held that solitary

version of prosecutrix in a case under Section 376 of the IPC, is

not to be taken as gospel truth in absence of any other supporting

or corroborative evidence. The Hon’ble Supreme Court had also

considered the factum of delay in lodging of the First Information

Report as also the fact that the medical report of the victim did not

support the allegations made by her and considering all these facts

cumulatively, the accused was acquitted giving him the benefit of

doubt.

40. Similarly, in the present case in view of the fact

that the victim has been giving vacillating statements with regard
Patna High Court CR. APP (DB) No.632 of 2023 dt.06-04-2026
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to the manner of occurrence and these inconsistencies in the

prosecution’s narrative significantly undermines the credibility of

the prosecution version and takes away the veracity of the

evidence of the victim. We also take into consideration the fact

that there is total want of evidence on record to corroborate the

case of the victim and it appears that for the reasons best known to

the prosecution, material witnesses who could have shed some

light on correct facts have also been withheld.

41. The cloud of doubt upon the entire prosecution

case starts form the very inception as the informant (PW2) did not

lodge an FIR upto fifteen days of her daughter being allegedly

kidnapped which is not a normal phenomenon. Moving further, the

factum of non-raising of alarm by victim while being forcibly

taken away on a motorcycle points towards a probability of a

consensual act with no resistance offered at the end of the victim.

The age of the appellant at the relevant period being about 19

years i.e., of the same age group as the victim, further contributes

to such a probability. The evidence of both the father and the sister

of the victim during trial failed to lend support to the case of the

prosecution. PW1, the sister of the victim, rather stands out as she

has deposed no incident happened in her presence which is

absolutely contradictory to the story as propounded by the victim.
Patna High Court CR. APP (DB) No.632 of 2023 dt.06-04-2026
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42. All these inconsistencies and conflicting versions

of the prosecution case which is apparent from the deposition of

the prosecution witness render the prosecution case considerably

doubtful. The failure of the prosecution to prove the foundational

facts with regard to age and sexual assault makes the entire edifice

of the prosecution crumble against the weight of evidence.

43. In view of the aforesaid facts and circumstances

and on account of all the foregoing reasons, including the

consideration of several missing links and loopholes in the case of

the prosecution, we come to a clear finding that the circumstances

and evidence on which the conclusion of guilt has to be drawn, has

not been fully established and the appellant is entitled to be

extended benefit of doubt, inasmuch as, the prosecution has

miserably failed to prove its case by adducing credible and

trustworthy evidence.

44. Thus, in the totality of the facts and

circumstances and also taking into account the overall perspective

and the entire conspectus, it would be extremely unsafe to sustain

the conviction of the appellant, as such, the finding of conviction

recorded by the learned Trial Court is not sustainable and requires

interference. Accordingly, the impugned judgment of conviction

dated 18.03.2023 and the order of sentence dated 22.03.2023
Patna High Court CR. APP (DB) No.632 of 2023 dt.06-04-2026
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passed by the learned Additional District and Sessions Judge-VI-

cum-Special Judge, POCSO Act, Bhagalpur in POCSO Case

No.35 of 2020, arising out of Sabour P.S. Case No.361 of 2018, is

hereby set aside and the appellant is acquitted of all the charges

levelled against him.

45. The appellant, who is said to be in custody, is

directed to be released forthwith, if not required in any other case.

46. Accordingly, the present appeal stands allowed.

47. Let a copy of the judgment along with the Trial

Court’s records be sent down to the learned Trial Court.

(Soni Shrivastava, J.)

I agree.
(Rajeev Ranjan Prasad, J.)

Trivedi/- (Rajeev Ranjan Prasad, J.)
AFR/NAFR AFR
CAV DATE 24.03.2026
Uploading Date 06.04.2026
Transmission Date 06.04.2026

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