Patna High Court

KRISHNA MUKHIYAversusTHE STATE OF BIHAR

Decided: 4 May 2026
Disposal: ALLOWED
Bench: RAJEEV RANJAN PRASAD SONI SHRIVASTAVA

Holding

The appellate court set aside the trial court's conviction and acquitted the appellants, granting them the benefit of doubt.

Summary

The appellants, three Mukhiya brothers, were convicted by the Additional Sessions Judge for rape, grievous hurt and related offences under Sections 376(D), 326, 324, 201/511 read with Section 34 of the IPC, based largely on the victim's testimony, a confessional statement of a co‑accused and forensic evidence that was not matched to the accused. On appeal, the High Court held that the confessional statements of the co‑accused were inadmissible under Section 25 of the Evidence Act, the victim – a deaf and dumb minor – was not a sterling witness and her testimony could not stand alone, the prosecution failed to prove the victim’s age under the POCSO Act, there was an unjustified delay in lodging the FIR and no forensic linkage of the accused to the crime. Consequently, the court set aside the conviction, acquitted the appellants and ordered their release, allowing the appeals.

Issues considered

The admissibility of confessional statements of a co‑accused under the Indian Evidence Act.
Whether a deaf and dumb victim can be a competent and reliable witness for conviction.
Whether the prosecution proved the victim was a minor for the applicability of the POCSO Act.
The impact of delay in filing the FIR and lack of forensic DNA/blood match on the conviction.
Whether the circumstantial and testimonial evidence was sufficient to sustain conviction under the IPC sections charged.

Legislation cited

Criminal Procedure Code — s. 164, 313
Indian Evidence Act, 1872 — s. 119, 25
Indian Penal Code — s. 201, 324, 326, 34, 376(D), 511
Protection of Children from Sexual Offences Act — s. 3, 4, 6

Subjects

rape
sexual assault
POCSO
confessional statement
evidence admissibility
deaf and dumb witness
acquittal
benefit of doubt
forensic evidence
delay in FIR

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.782 of 2023
Arising Out of PS. Case No.-17 Year-2021 Thana- HARLAKHI District- Madhubani
======================================================
Krishna Mukhiya, S/O Sri Kishori Mukhiya, R/O Village- Kauaha, P.S-
Harlakhi, Distt.- Madhubani. ... ... Appellant
Versus
1. The State of Bihar
2. Mr. 'X'
... ... Respondents
======================================================
with
CRIMINAL APPEAL (DB) No. 837 of 2023
Arising Out of PS. Case No.-17 Year-2021 Thana- HARLAKHI District- Madhubani
======================================================
Ramawatar Mukhiya, S/O Nirdhan Mukhiya, R/O Village- Mangarhatta Tole
Laxmipur, Ward No. 17, P.S.- Khirhar, Dist. Madhubani. ... ... Appellant
Versus
The State of Bihar ... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 782 of 2023)
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Mr. Imteyaz Ahmad, Advocate
Mr. Shivam, Advocate
Ms. Kiran Kumari, Advocate
Mr. Rituraj Raman, Advocate
Mr. Purushottam Kumar, Advocate
Mr. Mudit Meet, Advocate
For the State : Mr. Bipin Kumar, Addl.P.P.
For the Resp No. 2 : None
(In CRIMINAL APPEAL (DB) No. 837 of 2023)
For the Appellant/s : Mr. Shailendra Kumar Jha, Advocate
Mr. Abhijeet Kunal, Advocate
For the Respondent/s : Mr. Bipin Kumar, Addl.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Date : 04-05-2026

Heard Mr. Ajay Kumar Thakur, learned counsel for the

appellant in Cr. Appeal (DB) No.782 of 2023 and Mr. Shailendra

Kumar Jha, learned counsel for the appellant in Cr. Appeal (DB)
Patna High Court CR. APP (DB) No.782 of 2023 dt.04-05-2026
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No. 837 of 2023 as well as Mr. Bipin Kumar, learned Additional

Public Prosecutor for the State in both the appeals.

2. Though the informant-respondent no. 2 has entered

appearance by filing vakalatnama but no one appeared on his

behalf to oppose the appeal.

3. Both the appeals have been preferred for setting aside

the judgment of conviction dated 05.06.2023 (hereinafter referred

to as the ‘impugned judgment’) and order of sentence dated

13.06.2023 (hereinafter referred to as the ‘impugned order’)

passed by learned Additional Sessions Judge-VII-cum-Spl. Judge,

POCSO, Madhubani (hereinafter referred to as the ‘learned trial

court’) in Trial No.163 of 2023, POCSO G.R. Case No. 07 of 2021

arising out of Harlakhi P.S. Case No. 17 of 2021. By the impugned

judgment, both the appellants have been convicted for the offences

punishable under Sections 376(D), 326, 324, 201 and 511 read

with Section 34 of the Indian Penal Code (in short ‘IPC’). By the

impugned order, they have been sentenced to undergo rigorous

imprisonment for twenty (20) years with a fine of Rs. 15,000/-

each under Section 376D IPC and in default of payment of fine,

they shall further undergo simple imprisonment for six months.

They have been sentenced to undergo rigorous imprisonment for

ten (10) years with a fine of Rs.10,000/- under Section 326 read
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with Section 34 IPC and in default of payment of fine, they shall

further undergo simple imprisonment for three months. Further,

under Section 324 read with Section 34 IPC, they have been

sentenced to undergo rigorous imprisonment for two (2) years and

for the offence punishable under Section 201/511 read with

Section 34 IPC, they have been sentenced to undergo

imprisonment for one year with a fine of Rs.3,000/- and in default

of payment of fine, they shall further undergo simple

imprisonment for one month. All the sentences are to run

concurrently.

Prosecution Case

4. The prosecution case is based on the fardbeyan of

PW-5, who is the brother of the victim (PW-4), recorded by S.I.

Gopal Krishna, Town P.S. Madhubani on 12.01.2021 at 18.00 hrs

at Emergency ward, Sadar Hospital, Madhubani. In his fardbeyan,

he has stated that on 12.01.2021 at about 8.00 A.M. in the

morning, his sister (victim 'X') aged about 17 years, who is deaf

and dumb and talks only by signs, had gone towards west of the

river from the house at the dam (bandh) for fodder of the she-goat.

It is alleged that at about 9.00 AM, one girl from his

neighbourhood came running and informed that victim is lying in

badly injured condition at the dam (bandh) and she is crying out in
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pain. On this information, the informant and other family members

along with villagers rushed towards the place of occurrence and on

the way, saw that Lakshmi Mukhiya was coming from the site of

the place of occurrence in nervous condition and his pants, clothes

and face were smeared with blood who on seeing them ran

towards another direction. The informant along with villagers

reached near Manharpur in the wheat field and saw that his sister

was lying unconscious in the field in injured condition and her

eyes were damaged and blood was oozing out of them. The

paijamas were open to the body and blood was oozing out from

the internal part of the body. The wheat plant was crushed in the

wheat field. Thereafter, his sister was taken to Primary Health

Centre, Umgaon for her treatment from where she was referred to

Sadar Hospital, Madhubani for her better treatment. The informant

claimed that Lakshmi Mukhiya along with his other unknown

associates committed rape with his sister and damaged both of her

eyes.

5. On the basis of the aforesaid fardbeyan of the

informant, FIR being Harlakhi P.S. Case No. 17 of 2021 dated

12.01.2021 was registered under Sections 376, 376(A), 376(D)/34

IPC and Section 3/4 of the Protection of Children from Sexual

Offences Act (in short ‘POCSO Act’) against Lakshmi Mukhiya
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and others. Later on vide order dated 21.01.2021 Section 3/4 of the

POCSO Act was substituted with Section 4/6 of the POCSO Act.

Thereafter, vide order dated 07.01.2021, Section 201 IPC was also

added. After investigation, police submitted chargesheet bearing

Chargesheet No. 42 of 2021 dated 11.04.2021 against (1) Lakshmi

Mukhiya, (2) Krishna Mukhiya and (3) Ramavatar Mukhiya for the

offences punishable under Sections 376 (D), 324, 326, 307, 201/34

IPC and Section 4/6 of the POCSO Act.

6. Learned trial court vide order 12.07.2021 took

cognizance of the offences punishable under Sections 376(D), 324,

326, 307, 201/34 IPC and Section 4, 6 of the POCSO Act against

chargesheet named accused. Charges were read over and explained to

the accused in Hindi to which they denied the charges and claimed to

be tried. Accordingly, charges were framed vide order dated

29.06.2022 for the offences punishable under Sections 376(D), 324,

326, 307, 201/34 IPC and Section 4/6 of the POCSO Act.

7. In course of trial, the prosecution examined as many as

eleven witnesses and got exhibited certain documents. The list of

prosecution witnesses and the documents are given hereunder in

tabular form:-

List of Prosecution witnesses

Prosecution Name of the Witness Description of the
Witness No. Witness
PW-1 Mother of the victim Mother of the victim
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PW-2 Sister of the victim Sister of the Victim
PW-3 Father of the Victim Father of the Victim
PW-4 Victim Victim
PW-5 Informant Brother of the Victim
PW-6 Prem Lal Paswan Investigating Officer
PW-7 Dr. Murari Kumar Medical Officer
PW-8 Sanjay Kumar Verma Headmaster of
Rajkiya Muk Badhir
Vidyala, Darbhanga
PW-9 Dr. Sanjeev Kumar Medical Officer
PW-10 Binod Mukhiya Cousin of the
Informant
PW-11 Ram Dayal Mukhiya Neighbour

List of Exhibits on behalf of Prosecution

Exhibit No. Description of the Exhibit Proved by/
Attested by
‘1’ Signature of PW-5 on the PW-5
Fardbeyan
‘2’ Seizure list dated 12.01.2021 of PW-6
seized bamboo karchi and a a
piece of jamun wood and bottle
of Nepali Liquor
‘2/1’ Seizure list dated 12.01.2021 of PW-6
seized clothes of the victim
‘2/2’ Seizure list dated 13.01.2021 of PW-6
seized clothes of accused
Lakshmi Mukhiya
‘2/3’ Signature of the witness (PW- PW-10
10) on seizure list dated
12.01.2021 of seized clothes of
the victim
‘2/4’ Signature of the witness (PW- PW-10
10) on seizure list dated
13.01.2021 of seized clothes of
accused Lakshmi Mukhiya
‘3’ FIR of Harlakhi Police Station PW-6
No. 17 of 2021
‘4’ Confessional Statement of PW-6
accused Lakshmi Mukhiya
‘4/1’ Confessional statement of PW-6
accused Krishna Mukhiya
‘4/2’ Confessional statement of PW-6
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accused Ramavtar Mukhiya
‘5’ The entire report R.F.S.L. No.
219/21 dated 24.02.2021 of
Forensic Science Laboratory,
Muzaffarpur
‘6’ Chargesheet bearing No. 42 of PW-6
2021 dated 11.04.2021
‘7’ Medical Examination Report of PW-7
the victim dated 12.01.2021
issued by the Medical Board
‘7/1’ Signature of PW-7(Dr. Murari PW-7
Kumar) on Medical
Examination Report of the
victim dated 12.01.2021 issued
by the Medical Board.
‘7/2’ Signature of Dr. Sanjeev Kumar PW-7
on Medical Examination Report
of the Victim dated 12.01.2021
issued by the Medical Board
‘7/3’ Signature of Dr. Pravirti Mishra PW-7
on Medical Examination Report
of the Victim dated 12.01.2021
issued by the Medical Board.
‘7/4’ Signature of Dr. Bhawana PW-7
Grung on Medical Examination
Report of the Victim dated
12.01.2021 issued by the
Medical Board
‘8’ Signature of PW-8 (Sanjay PW-8
Kumar Verma) on the statement
of the victim recorded under
Section 164 CrPC
‘8/1’ Statement of Victim recorded
under Section 164 CrPC
‘9’ Injury report of the victim dated PW-9
10.04.2021 related to her eye
issued by the Sadar Hospital,
Madhubani.

8. Thereafter, the statements of the accused persons,

namely, Laxmi Mukhiya, Krishna Mukhiya and Ramavtar

Mukhiya were recorded under Section 313 of the CrPC. Accused

Laxmi Mukhiya in his 313 CrPC statement stated that he is
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innocent. He stated that he is in relationship with the victim for

three years and when the brother of the victim got to know about

the relationship, brother of the victim assaulted him and falsely

implicated in this case. Accused Krishna Mukhiya in his 313

CrPC statement stated that he is innocent and he was not

involved in the occurrence. He has also stated that he was

catching fish. Accused Ramavtar Mukhiya in his 313 CrPC

statement stated that he is innocent and he was cooking food at

Vasuki Vihar on the date and time of the occurrence.

9. The defence has produced five witnesses on behalf of

accused, Krishna Mukhiya and Ramavtar Mukhiya which is

being mentioned hereunder in tabular form:-

List of Defence witnesses

Defence Name of the Witness Description of the
Witness No. Witness
DW-1 Kishori Mukhiya Friend of Ramavtar
Mukhiya
DW-2 Rama Shankar Relative of DW-1
Mukhiya
DW-3 Apachh Safi Neighbour of Krishna
Mukhiya
DW-4 Manjay Kumar Yadav Co-worker of Krishna
Mukhiya
DW-5 Pramod Mukhiya Friend of Ramavtar
Mukhiya

10. The accused, Lakshmi Mukhiya did not adduce any

evidence. The defence did not produce any documentary evidence.
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Findings of the Learned Trial Court

11. Learned trial court after analysing the evidences

available on the record found that the victim girl identified all the

three accused persons by gestures and demeanor. Learned trial

court found that the victim was deaf and dumb and her statement

under Section 164 CrPC was recorded by learned Magistrate with

the help of interpreter Sri Sanjay Kumar Verma (PW-8) and in her

statement, victim told about the wrongdoing by the three accused

with gesture and also told by gesture that they had gouged her eyes

with stick. Learned trial court observed that the victim has been

found to be a competent witness and her testimony inspires

confidence to reach to the conclusion that all the three accused

were present at the place of occurrence and committed rape on the

victim.

12. Learned trial court found that Dr. Murari Kumar

(PW-7) in his evidence stated that during medical examination,

Medical Board found injury over her eyes and on examination

lacerated wound by sharp object on upper lid of both the eyes was

found. Learned trial court from reading the evidence of the

Investigating Officer (PW-6) found that blood-stained piece of

Jamun wood and bamboo karchi with which the victim’s eyes was

gouged were seized by the I.O. The I.O. sent it to RFSL,
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Muzaffarpur and the report shows presence of blood on bamboo

karchi and wooden piece of Jamun. Hence, RFSL report also

corroborates the fact that the victim got injury on her eyes.

13. Accordingly, learned trial court after taking into

account all the facts and circumstances of the case and the

materials present on the record held guilty and convicted Lakshmi

Mukhiya, Ramavtar Mukhiya and Krishna Mukhiya for the

offences punishable under Sections 376(D), 326, 324, 201/511

read with Section 34 IPC. Learned trial court, however, acquitted

accused Laxmi Mukhiya, Ramavtar Mukhiya and Krishna

Mukhiya for the offences punishable under Sections 4 and 6 of the

POCSO Act and Section 307 of the IPC.

Submissions on behalf of the Appellants

14. Learned counsel for the appellants submits that these

appellants are not named in the First Information Report. Their

names transpired in the confessional statement of the co-accused

Lakshmi Mukhiya made before police. However, the confessional

statement recorded by police is an inadmissible document which

cannot be admitted in evidence. The learned trial court has grossly

erred in allowing the confessional statement of the accused to be

admitted and relied upon.
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15. Learned counsel submits that in this case, the

occurrence is said to have taken place at the other side of the river

around 9:00 AM and one girl from the neighborhood is said to

have informed the mother of the victim (PW-1) that her daughter is

lying in injured condition and bleeding through eyes but neither in

course of investigation nor in course of trial, PW-1 was able to

disclose the name of the girl and her whereabouts, except that at a

belated stage in trial, PW-1 claimed that she is natni of one Kishori

Mukhiya and resides at a distance of three kosh (six miles) away

from the village of the victim.

16. Learned counsel submits that as regards the age of

the victim, the prosecution claimed that she was minor but the

learned trial court has noticed that the prosecution had not brought

on record any piece of evidence in form of school certificate,

municipal body’s certificate or the medical opinion to prove that

the victim was below 18 years of age. Therefore, the charges under

the POCSO Act failed.

17. Learned counsel submits that PW-11, who is the

bhaisur of PW-1, claimed that he had seen from the other side of

the river current that the victim was weeping, she was in naked

condition, he had brought the victim to the opposite side of the

river. The prosecution witnesses like mother, father and sister of
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the victim claimed that they had gone to the place of occurrence,

but the fact is that the place of occurrence is on the other side of

the river from where the victim had already been shifted to the

opposite side by PW-11, therefore, in this case, the prosecution

witnesses had no occasion to see the actual place of occurrence.

There are material contradictions in the statement of the victim

(PW-4), her mother (PW-1), younger sister (PW-2) and her father

(PW-3). The accused persons-appellants were arrested on the same

day, their blood samples were taken, but no matching of the blood

samples have been done. The clothes of these appellants were not

seized by police, hence, there is no scientific evidence to connect

these appellants with the occurrence.

18. Learned counsel submits that the informant is cousin

brother of the victim who has clearly stated in his fardbeyan

recorded after about nine hours of the occurrence that her sister

had crossed over to the other side of the river for grazing the she-

goats. According to him, after getting information from a girl that

his sister was badly injured and was crying in pain, he and other

family members and mohalla people were going to the said place,

on way, they saw Lakshmi Mukhiya, aged about 20 years, fleeing

away. He claimed that he, along with his family members and

mohalla people, crossed over the river and went to the wheat plot
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of Manharpur where her sister was lying unconscious after getting

badly injured. This statement of the informant gets contradicted

from the evidence of PW-11, who is the first person said to have

seen the victim. Even the mother of the victim (PW-1) claimed that

when she reached the place of occurrence, her bhaisur (PW-11)

was already present there. PW-11 has stated that he had brought

the victim in naked condition from the other side of the river,

therefore, there is no question for the informant to cross over the

river and go to the place of occurrence because the victim had

already been shifted away to the other side of the river.

19. Learned counsel submits that even as regards the

condition of the victim, while PW-1 claimed in her examination-

in-chief that she was in naked condition, in her cross-examination

she has stated that at that time the victim was wearing sameej and

jacket.

20. Learned counsel submits that while PW-1 claimed

that she had taken the victim to Umgaon Hospital directly from the

place of occurrence, PW-11 has stated that the victim was first

brought to her house from where she was taken to the hospital on a

tempo.

21. It is submitted that there is no witness at all to say

that these two appellants were either seen at the place of
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occurrence or near the place of occurrence at any point of time

immediately before or after the occurrence.

22. It is submitted that the victim (PW-4) in this case is

not a sterling witness. She avoided most of the questions put to her

during her cross-examination. According to PW-2, the victim had

studied up to Class-VIII, but the victim has stated that she can

write only her name, therefore, there is a material contradiction

affecting the veracity of the statement of the victim as regards her

capability to read and write. The victim had never been medically

examined to certify that she was deaf and dumb. Moreover, while

recording her evidence in course of trial, the learned trial court has

not followed the judgment of the Hon’ble Supreme Court in the

case of State of Rajasthan vs. Darshan Singh @ Darshan Lal

reported in (2012) 5 SCC 789 wherein the Hon’ble Supreme Court

has held that the requirements as to how to record the deposition of

a person who is not in a position to speak.

23. It is lastly submitted that the presumption of

innocence is not lost. The prosecution has failed to lay down

sufficient foundation to raise presumption of guilt and the

appellants are able to demonstrate that there may be a miscarriage

of justice if the conviction of the appellants are sustained on the

sole testimony of the victim who is not a sterling witness.
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Submissions on behalf of the State

24. Learned Additional Public Prosecutor for the State

has opposed the submissions of learned counsel for the appellants.

It is submitted that the impugned judgment and order have been

passed by the learned trial court after analysing the evidences

available on the record. There is no infirmity in the matter of

appreciation of evidences by the learned trial court. In such

circumstance, no interference with the impugned judgment and

order is required.

Consideration

25. We have heard learned counsel for the appellants and

learned Additional Public Prosecutor for the State as also perused

the trial court’s records.

26. It is evident on going through the records that these

two appellants are not named in the fardbeyan of the informant

(PW-5). According to the informant, his sister who is the victim

(X) aged about 17 years is deaf and dumb who can understand the

things by indications. She had left her house on 12.01.2021 at

08:00 AM to bring fodder for the she-goats towards western side

crossing over the river. At about 09:00 AM, a girl from

neighbourhood came shouting and informed that his sister (X) is

badly injured and is crying in pain. On getting this information, the
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informant along with his other relatives and neighbours in the

mohalla were going towards the said place, on way, he saw

Lakshmi Mukhiya (not before this Court) aged about 20 years, was

fleeing away in nervous condition and his clothes, pant and face

were having blood, he fled away on seeing the informant side.

The informant has further stated that he along with his family

members crossed over the river and went to the wheat field in

Manharpur where he found that his sister (X) was lying in a badly

injured condition and was unconscious, her both eyes were

damaged and bleeding, her trouser was open and blood was

coming from the internal part of the body, the wheat plants in the

field were trampled and crushed. The informant has stated that in

such condition, he took his sister to the Primary Health Center,

Umgaon and got her treated. Her sister’s condition was serious,

therefore, she was referred to Sadar Hospital, Madhubani where

his sister was getting treatment. The informant alleged that

Lakshmi Mukhiya and his other unknown associates have

committed rape on his sister and damaged her both eyes. The

fardbeyan has been recorded on 12.01.2021 at 18:00 Hours in the

Sadar Hospital, Madhubani. It bears the left thumb impression of

PW-3.
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27. This Court finds that as per fardbeyan, the victim

girl had crossed over the river and is said to have gone to collect

fodder but she was found in the wheat plots where wheat plants

were present. The I.O. (PW-6) has stated in paragraph ‘22’ of his

deposition that he had recorded a sanha on 12.01.2021 at 04:00

PM, thereafter, he had started from the police station. The place of

occurrence is situated at a distance of 5 kilometers from the police

station. In paragraph ‘24’ of his deposition, the I.O. has stated that

he had not recorded in the case diary that who informed him about

the place of occurrence, further in the margin of the case diary, he

had not recorded the date and time of reaching the place of

occurrence. In paragraph ‘25’ of his deposition, the I.O. has stated

that in the case diary, he had not recorded the length and breadth of

the wheat field and had not recorded that to what extent the wheat

crops were standing. While giving the description of the place of

occurrence, the I.O. (PW-6) has stated that when he reached the

place of occurrence, he found that the wheat field was trampled

and crushed. Beside the place of occurrence, he found a ten inch

long bamboo stick which was having blood mark, he found one

more piece of wood of twelve inch. He has stated that dry bamboo

stick having seven inch thickness with blood and hair was found.

He had also found one dry jamun wood piece of eight inch length
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and half inch thick which was having blood from both sides, he

had also found plastic empty bottle of nepali countrymade liquor.

He had prepared the seizure list in presence of Kishori Mukhiya

and Raushan Yadav. This Court finds that while Raushan Yadav

has not been produced by the prosecution, Kishori Mukhiya has

deposed as DW-1. Although the I.O. has proved the seizure list as

Exhibit ‘2/1’, it is found that he has not given any plausible

explanation for not producing the seizure list witnesses on behalf

of the prosecution.

28. This Court further finds that the I.O. (PW-6) had

arrested Lakshmi Mukhiya on the date of occurrence itself. He had

extracted confessional statement of Lakshmi Mukhiya in which

said Lakshmi Mukhiya is said to have confessed his guilt and

named these two appellants as his associates who were involved in

commission of rape. The I.O. has stated in paragraph ‘5’ that the

confessional statement is recorded in his writing and the same

bears his signature as also the signature of Ramavtar Mukhiya. At

his instance, the confessional statement of Lakshmi Mukhiya has

been marked Exhibit ‘4’. He had arrested these two appellants and

recorded their confessional statements also in his own pen which

he has proved as Exhibit ‘4/1’ and Exhibit ‘4/2’ respectively. The

I.O. (PW-6) had seized a white colour jeans pant of Lakshmi
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Mukhiya which was having blood mark and a blue colour janghiya

having a mark like semen. This seizure list has been exhibited as

Exhibit ‘2/2’ at the instance of PW-6. This Court finds that while

these two appellants were also arrested on the same day and their

blood samples were taken but the clothes of these two appellants

were not seized by the I.O. The clothes of victim were sent to the

Forensic Science Laboratory (FSL) where those were marked as

Exhibit ‘1/a’ and Exhibit ‘1/b’ respectively. On Exhibit ‘1/a’, blood

in two small quantities was found which was not sufficient for

serological test. The blood present on the clothes of the victim was

not matched with the blood samples of these appellants which

were Exhibit ‘5/y’ and ‘5/z’ respectively. The bamboo sticks were

also sent to the FSL which were marked Exhibit ‘3/A’ and Exhibit

‘3/B’. Blood were present on those bamboo sticks and the small

wooden piece but there is no matching of the said blood with the

blood samples of these appellants. The blood sample of victim was

also taken and sent to FSL for examination where the same was

marked Exhibit ‘6’ but even this blood sample of the victim has

not been matched with the blood found on the bamboo stick and

the small wooden pieces. On clothes of the victim, semen was not

found, though on the clothes of Lakshmi Mukhiya (not before this

Court) which was marked Exhibit ‘2/X’ and Exhibit ‘2/Y’, semen
Patna High Court CR. APP (DB) No.782 of 2023 dt.04-05-2026
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and blood respectively were found. We are presently not concerned

with Exhibit ‘2/x’ and Exhibit ‘2/y’.

29. This Court has found that in paragraph ‘28’ of his

deposition, PW-6 has stated that he reached the house of the victim

in village Barhi which is at a distance of half to quarter of one

kilometer in the east side from the police station. He met the sister

(PW-2) and other family members of the victim on 12.01.2021 at

17 Hours (05:00 PM). He had recorded their statements but he had

not mentioned the date and time of recording of their statements in

the case diary. He had not recorded the statement of Kishori

Mukhiya (DW-1) in the case diary. It is, thus, evident that before

recording of the fardbeyan of the informant (PW-5), the I.O. had

already recorded the statement of the sister and other family

members of the victim but the FIR was not lodged on the basis of

the statement of the sister and other family members of the victim

girl. In this case, the occurrence has taken place at around 09:00

AM and immediately after the occurrence, the informant and his

family members reached the place of occurrence and brought the

victim to the Primary Health Center, Umgaon where she was

treated but the police station was not informed about the

occurrence. It gains importance because the ‘Barhi’ village is

situated at a distance of only half or quarter to one kilometre from
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the place of occurrence. Therefore, the informant must have

reached the place of occurrence within 10-15 minutes. House of

Krishna Mukhiya is at a distance of 1- 1½ kilometer and house of

Ramawatar Mukhiya is at a distance of 3 kilometer from the place

of occurrence. There is no witness to say that they were seen going

towards the place of occurrence.

30. The I.O. had not recorded the statement of the

Doctor who firstly treated the victim in Umgaon Primary Health

Center. No document showing treatment of the victim in Umgaon

Primary Health Center has been produced in course of trial. Thus,

the delay in lodging of the FIR is of about nine hours. If this delay

is considered together with the fact that the I.O. had already

recorded the statement of the sister and other family members at

the house of the victim at about 05:00 PM but that has not been

made basis of the FIR, the prosecution would be liable to explain

the delay in lodging of the FIR. The first version of the prosecution

case came through the statement of the sister of the victim but that

has not been made basis of lodging the FIR. This aspect is to be

considered further keeping in view that in his fardbeyan, the

informant (PW-5) has stated that he had seen Lakshmi Mukhiya

fleeing away towards the eastern side. He had not mentioned name

of these two appellants in his fardbeyan even as these two
Patna High Court CR. APP (DB) No.782 of 2023 dt.04-05-2026
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appellants have been involved in this case on the basis of a

confessional statement (Exhibit ‘4’) which would be an

inadmissible document, hit by Section 25 of the Indian Evidence

Act. The trial court has grossly erred in placing reliance upon the

confessional statement of the co-accused and then the confessional

statement extracted from these two appellants in police custody.

31. This Court further finds that in this case, even as the

victim (PW-4) is said to have made statement under Section 164

CrPC after a month from the date of arrest of the accused, on a

bare perusal of the statement (Exhibit ‘8/1’), it would appear that it

is the mother of the victim whose statement has been recorded.

The interpreter who was engaged to interpret the sign/indications

of the victim deposing was not administered oath. In the case of

State of Rajasthan vs. Darshan Singh (supra), the Hon’ble

Supreme Court has dealt with the requirements as to how to record

the deposition of a person who is not in a position to speak. The

relevant paragraphs from the said judgment are being reproduced

hereunder for a ready reference:-

“27. In Meesala Ramakrishan v. State of A.P.4, this
Court has considered the evidentiary value of a
dying declaration recorded by means of signs and
nods of a person who is not in a position to speak
for any reason and held that the same amounts
to a verbal statement and, thus, is relevant and

4. (1994) 4 SCC 182 : 1994 SCC (Cri) 838
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admissible. The Court further clarified that “verbal”
statement does not amount to “oral” statement. In
view of the provisions of Section 119 of the
Evidence Act, the only requirement is that the
witness may give his evidence in any manner in
which he can make it intelligible, as by writing or
by signs and such evidence can be deemed to be
oral evidence within the meaning of Section 3 of the
Evidence Act. Signs and gestures made by nods or
head are admissible and such nods and gestures are
not only admissible but possess evidentiary value.
28. Language is much more than words. Like all
other languages, communication by way of signs
has some inherent limitations, since it may be
difficult to comprehend what the user is attempting
to convey. But a dumb person need not be prevented
from being a credible and reliable witness merely
due to his/her physical disability. Such a person
though unable to speak may convey himself through
writing, if literate or through signs and gestures, if
he is unable to read and write. A case in point is the
silent movies which were understood widely
because they were able to communicate ideas to
people through novel signs and gestures.
Emphasised body language and facial expression
enabled the audience to comprehend the intended
message.
29. To sum up, a deaf and dumb person is a
competent witness. If in the opinion of the court,
oath can be administered to him/her, it should be so
done. Such a witness, if able to read and write, it is
desirable to record his statement giving him
questions in writing and seeking answers in writing.
In case the witness is not able to read and write, his
statement can be recorded in sign language with the
Patna High Court CR. APP (DB) No.782 of 2023 dt.04-05-2026
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aid of interpreter, if found necessary. In case the
interpreter is provided, he should be a person of the
same surrounding but should not have any interest
in the case and he should be administered oath.”

32. Keeping in view the judgment of the Hon’ble

Supreme Court, as above, when this Court goes through the

evidence of the victim, it is found that in this case, one Sanjay

Kumar Verma, Assistant Headmaster, Rajkiya Muk Badhir

Vidyalaya, Darbhanga was engaged to take help in interpreting the

sign of the victim. The Court has not recorded its opinion as to

whether the victim is able to read and write. PW-2, who is the

younger sister of the victim, has stated in paragraph ‘5’ of her

deposition that her sister (victim) has studied upto Class-VIII. No

question in writing was given to the victim seeking his answers in

writing. The person who was engaged as Interpreter has not been

administered oath. Similar position was there at the time of

recording of her statement under Section 164 CrPC. In fact, on a

bare perusal of her 164 CrPC statement, it would appear that the

victim has put her signature in Hindi. In course of deposition also,

she has put her signature on the deposition sheet. While examining

the evidence of the victim (PW-4), we have noticed that she told

that she can only write her name even as her sister (PW-2) has

stated that her didi (victim) had studied up to Class-VIII. Thus, it
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is evident that she could have answered the questions in writing

but the learned trial court has not done it.

33. This Court has further found that according to the

informant and the mother of the victim, a girl from the

neighbourhood had come shouting and informed them that the

victim girl was badly injured and was lying in pain in injured

condition but in course of trial or investigation, the name of the

said girl was not disclosed either by the informant or any other

prosecution witnesses. On this point, the prosecution witnesses

seem totally unaware. PW-1, who is the mother of the victim, has

stated in her examination-in-chief that one girl had come to tell her

that bleeding was taking place from the eyes of her daughter. PW-1

has stated that her daughter was in naked condition, therefore, after

putting a shawl (chadar) on her, she was put on a tempo and was

taken to Umgaon Hospital. She has stated at a belated stage that

the girl was natini of one Kishori Mukhiya and she resides at a

distance of two kosh. In course of investigation, the said girl has

not been examined. She is not a charge-sheet witness. Therefore,

the prosecution story that one girl had come shouting and informed

that the victim was lying in pain in injured condition has not been

substantiated.
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34. In her cross-examination (paragraph ‘8’), PW-1 has

stated that when she reached near her daughter, Ramdayal

Mukhiya (PW-11) was already present there. He was in lungi and

ganji. Her daughter was lying on the earth and she was bleeding

from her eyes, she was wearing sameej and jacket at that time.

This Court, therefore, finds contradiction in the statement of PW-1

as regards the condition of the victim at the place of occurrence.

According to PW-1, the victim was taken to Umgaon Hospital

from the place of occurrence itself, but Ramdayal Mukhiya (PW-

11) has stated that when he went towards the bandh (ridge) at

about 10:00 AM, he found the victim weeping at the other side of

the river current. He brought the victim to this side. At that time

she was naked, clothes were put on her, she was bleeding from her

eyes, thereafter, she was brought to the village by a tempo and

then she was taken to the hospital. About the occurrence, he is a

hearsay witness, but he claims himself an eyewitness of the

circumstances immediately existing at the place of occurrence. He

is a witness to the condition of the victim immediately after the

occurrence. His statements in this regard are full of contradictions.

He has not named any of the accused. He claims that he had

brought the victim to this side from the other side and she was in
Patna High Court CR. APP (DB) No.782 of 2023 dt.04-05-2026
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naked condition, but the victim (PW-4) has not stated so during her

examination in course of trial.

35. This Court further finds that on the one hand, the

informant (PW-5) claims that when he reached the place of

occurrence, he found the victim lying unconscious but PW-11,

who is a chance witness in the neighbourhood of the informant,

has stated that the victim was weeping at the time she was being

put in the tempo at her house. This witness had seen the victim

from some distance when she was being taken to the hospital. This

witness has clearly stated that he had not seen the occurrence and

was deposing on the basis of hearsay, he did not know the persons

involved in commission of rape. The evidence of PW-11 creates

doubt over the statement in the fardbeyan that the victim was lying

unconscious at the place of occurrence.

36. In this case, Dr. Murari Kumar (PW-7) is the

Medical Officer who was posted at Sadar Hospital, Madhubani on

12.01.2021. He was one of the members of the Medical

Examination Board who examined the victim on 12.01.2021 at

4:30 PM. On the deposition of this witness, medical report

(Exhibit ‘7’) and his signature on the medical report (Exhibit ‘7/1’)

as also signature of Dr. Sanjeev Kumar, Dr. Pravriti Mishra and Dr.

Bhawana Grung on the medical report have been marked Exhibit
Patna High Court CR. APP (DB) No.782 of 2023 dt.04-05-2026
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‘7/2’, ‘7/3’ and ‘7/4’ respectively. The opinion of the Medical

Board as recorded in paragraph ‘2’, ‘3’ and ‘4’ of the deposition

are as under:-

“2. Medical board examined victim with consent of
her father on dated 12-01-2021 at 04:30 PM and
found the following:-
Secondary sexual character well developed. Injury
present over her private part – Tear present at
fourchette (0.3cm x 0.3cm) Recent tear of hymen
present. Vaginal swab was stained with blood.
Injury over eye – Vitim found uncooperative to
vision and on examination. Lacerated wound by
sharp object medially upper lid of both eye. Cornea
clear both eye and conjectval conjestion seen in both
eye. Details of posterior segment evaluation is under
process. So, no definite opinion about eye injury can
be given presently.
3. Pathological examination of vaginal swab done by
Dr. K. Kaushal, M.O., Sadar Hospital, Madhubani.
According to pathological report shows- No
spermatozoa found in vaginal smear, WBC 0 to 2
HPF, RBC-Nil, E-Cell 3 to 4 HPF, Other-Nothing.
4. Opinion of Medical Board – the above injuries
might be indicative of sexual assault.”

37. In his cross-examination, PW-7 has stated that he is

not an eye specialist and has not examined the eyes of the victim.

In paragraph ‘14’ of his deposition, he has stated that the board

members are not definite as to whether sexual assault has been

committed or not. It is evident from the medical report that the

medical examination was conducted at 4:30 PM itself. It is not
Patna High Court CR. APP (DB) No.782 of 2023 dt.04-05-2026
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stated that who brought the victim to the hospital but one thing is

clear that till that time, police had not arrived and the victim was

examined with the consent of her father. There is no statement that

before the Medical Board, the victim’s father alleged any sexual

assault on the victim.

38. The victim disclosed her age as about 17 years, but

from the evidence of her mother (PW-1), it is evident from

paragraph ‘3’ that she had three daughters and one son. The eldest

daughter is aged about 35 years, she has two sons. The victim girl

(X) is two years younger to the eldest daughter and the third

daughter (PW-2) is two years younger to the victim. This Court

finds that while examining the applicability of the charges under

the POCSO Act, the learned trial court has noticed the evidences

on the point of age of the victim in paragraph ‘114’ of the

impugned judgment. It is the finding of the learned trial court that

the prosecution had not brought school certificate or other

document of proof of birth and there is no medical opinion

regarding age of the victim. The prosecution had not been able to

prove the fact that the victim was under 18 years of age at the time

of incident, therefore, the charges under the POCSO Act failed.

39. We have found that during her cross-examination,

PW-4 avoided answering the questions put to her. In answer to all
Patna High Court CR. APP (DB) No.782 of 2023 dt.04-05-2026
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the questions put to her in the cross-examination, the interpreter

said that the victim was unable to answer. In these circumstances,

this Court is of the considered opinion that a conviction on the

basis of sole testimony of the victim (PW-4) would not be safe.

40. The defence has also adduced evidences by bringing

five witnesses, we are not going into those evidence of the defence

for the reason that we are of the opinion that the prosecution has

failed to stand on its own leg. The presumption of innocence of the

accused is not lost. Once the accused has been able to demonstrate

suppression of the first version of the prosecution, delay in lodging

of FIR and the prosecution witnesses are making contradictory

statements, even as the victim (X) cannot be put in the category of

a 'sterling witness', the accused are able to make an inroad to

impress upon this Court as to their possible false implication at a

belated stage.

41. The statement of the accused persons recorded under

Section 313 CrPC would show that these two appellants have

denied their involvement in the occurrence and pleaded innocence.

It is important to note that Lakshmi Mukhiya (not before this

Court) has stated in his statement under Section 313 CrPC that he

was in love with the victim for three years, which came to the
Patna High Court CR. APP (DB) No.782 of 2023 dt.04-05-2026
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notice of the brother of the victim girl who assaulted him and

lodged a case making false allegations.

42. In ultimate analysis, we are of the considered

opinion that the impugned judgment and order of the learned trial

court are liable to be set aside. Accordingly, we set aside the

impugned judgment and order of the learned trial court and acquit

the appellants of the charges, giving them benefit of doubt.

43. The appellants are in custody. They shall be released

forthwith if not wanted in any other case.

44. These appeals are allowed.

45. 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)
arvind/Rishi-
AFR/NAFR
CAV DATE
Uploading Date 14.05.2026
Transmission Date 14.05.2026

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