Patna High Court

MANISH KUMARversusTHE STATE OF BIHAR

Decided: 12 May 2026
Disposal: ALLOWED
Bench: ANIL KUMAR SINHA

Holding

The conviction under Section 376 IPC and Section 4 POCSO is unsustainable due to unreliable victim testimony, lack of medical corroboration, and failure to establish the victim’s minority, leading to the appellant’s acquittal.

Summary

The Patna High Court heard an appeal by Manish Kumar against his conviction for rape under Section 376 of the IPC and Section 4 of the POCSO Act. The prosecution alleged that the appellant lured a teenage girl with promises of marriage, forced sexual intercourse on several occasions, and threatened her. The victim’s testimony was found to contain material inconsistencies across the FIR, Section 164 statement, and trial testimony, and was not corroborated by medical evidence, which showed no signs of rape and placed the victim’s age between 18 and 19 years. The court also held that the victim’s minority was not established according to Section 94 of the Juvenile Justice Act, rendering the POCSO provision inapplicable. Applying the principle that a solitary victim’s testimony must be of "sterling" quality, the court concluded that the prosecution failed to prove the charge beyond reasonable doubt and set aside the conviction, acquitting the appellant.

Issues considered

The prosecution must prove the victim was a minor under the POCSO Act.
The victim’s testimony must be reliable and of sterling quality to sustain a conviction.
Whether the medical evidence and age‑determination procedures satisfy the statutory requirements.
Whether the offences under Section 376 IPC and Section 4 POCSO are substantially overlapping, warranting a single sentence.

Legislation cited

Criminal Procedure Code — s. 16, 164, 313
Indian Penal Code — s. 376
Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 94
Prevention of Children from Sexual Offences Act, 2012 — s. 4, 42

Subjects

rape
POCSO Act
minority of victim
age determination
medical evidence
sterling witness
benefit of doubt
overlapping offences
Section 376 IPC
Section 4 POCSO
Section 94 Juvenile Justice Act

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1051 of 2021
Arising Out of PS. Case No.-177 Year-2019 Thana- ARA NAGAR District- Bhojpur
======================================================
MANISH KUMAR Son of Kumar Mukesh Resident of Village Begampur,
P.S. Ara Town, District - Bhojpur.
... ... Appellant/s
Versus
THE STATE OF BIHAR
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur
Mr. Imteyaz Ahmad
Mr. Ritwaj Raman
Mr. Purushottam Kumar
For the Respondent/s : Mr. Binod Bihari Singh
======================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

JUDGMENT AND ORDER
C.A.V.

Date : 12-05-2026

1. The present appeal has been preferred against the

judgment of conviction, dated 14.12.2020, and the order of

sentence, dated 21.12.2020, passed by learned Additional Sessions

Judge–VI, Bhojpur, at Ara, in Special Case (POCSO) No. 18 of

2019, arising out of Ara Town Police Station Case No. 177 of

2019, whereby the appellant has been convicted for the offences

punishable under Section 376 of the Indian Penal Code and

Section 4 of the Prevention of Children from Sexual Offences Act,

2012. The appellant has been sentenced to undergo rigorous

imprisonment for ten years and fine of Rs. 30,000/-, and in default

of payment of fine, to undergo rigorous imprisonment for one year.
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In view of Section 42 of the Prevention of Children from Sexual

Offences Act, 2012, and considering that the punishment

prescribed under Section 376 of the Indian Penal Code and Section

4 of the Prevention of Children from Sexual Offences Act, 2012

are substantially overlapping, the sentence has been directed to be

imposed only under Section 4 of the Prevention of Children from

Sexual Offences Act, 2012.

2. The prosecution case, as per the First Information

Report lodged by the victim-informant, aged about 15 years, is that

the appellant had befriended her approximately two months earlier,

in February 2019. It is stated that on the pretext of marriage, the

appellant provided the informant one mobile phone, with SIM

card, having number 9507707606, for communicating with her. It

is alleged that on 08.02.2019, the appellant called the informant to

his residence and forcibly established physical relations with her,

while also threatening her not to disclose to anyone. Thereafter, on

about five to six occasions, the appellant is alleged to have

repeatedly established physical relations with the informant on the

pretext of marriage, despite her objections. Owing to such threats,

the informant did not disclose the incident to her family members.

The informant has further stated that on 29.03.2019, when she

went out of her house to purchase samosa, the appellant met her on
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the way and took her to his house, but the brother and sister of the

informant reached the house of the appellant in search of the

informant and with the assistance of neighbours, she was rescued.

Thereafter, the informant, along with her brother and sister, went

to the police station, where the appellant was also produced before

the police.

3. On the basis of the aforesaid written application of the

victim-cum-informant, Ara Town Police Station Case No. 177 of

2019, dated 29.03.2019, was registered against the appellant for

the offences punishable under Section 376 of the Indian Penal

Code and Section 4 of the Prevention of Children from Sexual

Offences Act, 2012.

4. Upon completion of the investigation, charge sheet

was submitted by the police on 25.05.2019 against the appellant

under Section 376 of the Indian Penal Code and Section 4 of the

Prevention of Children from Sexual Offences Act, 2012.

Thereafter, on 13.06.2019, cognizance of the offences was taken

by the learned Special Court.

5. On 27.06.2019, the learned Trial Court framed

charges against the appellant under Section 376 of the Indian Penal

Code and Section 4 of the Prevention of Children from Sexual

Offences Act, 2012. The charges were read over and explained to
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the appellant in Hindi, to which he pleaded not guilty and claimed

to be tried.

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

examined as many as five witnesses and exhibited some

documents on its behalf. List of prosecution witnesses and exhibits

are being mentioned herein under:-

List of Prosecution Witnesses :

Prosecution Name of witness Description
witness no.
1. X Informant/ victim
2. Sahjadi Begum Sister of victim
3. Arshad Ali Brother of Victim
4. Laxmi Patel Investigating officer
5. Dr. Vijayata Prasad Medical Officer

List of Exhibits on behalf of the prosecution :

Exhibit No. Description of the Date/proved by
Exhibit
1 Signature of 11.07.19/PW 1
Victim(informant) in
Fardbayan dated
29.03.2019
2 Signature of Victim on 11.07.19/PW 1
her statement recorded
under section 164 of the
Code of Criminal
Procedure, 1973.
2/1 Signature of Sister of the PW 2
victim on the statement
recorded under Section
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164 of the Code of
Criminal Procedure,
1973.
3 Mobile CDR and CAF 05.09.2019
of the appellant
4 Charge sheet no. 139 of 05.09.2019
2019 dated 25.05.2019
in Ara Nagar(Town) PS
Case no. 177 of 2019
5 Medical report of the 09.09.2019-PW 5
informant-victim, dated
30.03.2019

7. The prosecution evidence was closed on 26.09.2019.

Thereafter, the statement of the appellant was recorded under

section 313 (1) (b) of the Code of Criminal Procedure, 1973 on

03.10.2019, in which the appellant denied all the incriminating

evidence brought against him.

8. The defence adduced seven witnesses on its behalf.

List of defence witnesses are being mentioned hereunder in

tabular form:-

List of Defence Witnesses :

Defence witness Name of witness Description
no.
1. Rajkishore Singh Neighbour
2. Kumar Mukesh Father of Appellant
3. Satyanarayan Singh Neighbour
4. Savita Devi Mohalla Person
5. Kanchan Devi Neighbour
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6. Sanjay Kumar Neighbour
7. Nikhil Kumar Neighbour

9. Learned Counsel for the appellant has, at the very

outset, submitted that the judgment of conviction is against the

weight of evidence and has been rendered on mere presumption of

guilt. It is contended that the prosecution has failed to prove its

case beyond reasonable doubt inasmuch as the testimonies of the

prosecution witnesses suffer from material contradictions and

inconsistencies.

10. It is further submitted that the version of the

informant, as reflected in the First Information Report, her

statement recorded under Section 164 of the Code of Criminal

Procedure, 1973, and her deposition before the learned Trial

Court, is replete with contradictions and material improvements at

every stage. Such variations, particularly with regard to the

manner and timing of the alleged occurrence, cast serious doubt

on the veracity of the prosecution case and would go to suggest

that the same is false, concocted, and engineered. In these

circumstances, the testimony of the prosecutrix becomes

unreliable, and it is, thus, argued that she cannot be treated as a

“sterling witness.”

11. It is further submitted that the medical evidence does

not support the allegation of rape. The examining doctor did not
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find any spermatozoa, either live or dead. The medical report also

indicates that the age of the victim was assessed to be between 17

to 19 years. During cross-examination, the doctor opined that the

victim could be above 18 years and below 19 years. The doctor

further noted the absence of any signs suggestive of sexual

intercourse or rape at the time of examination and indicated that

the victim might be habituated to sexual intercourse.

12. On this basis, it is contended that the finding of the

learned Trial Court regarding the age of the victim is wholly

unsustainable in law and has resulted in grave miscarriage of

justice. The conviction of the appellant, under the provisions of of

the Prevention of Children from Sexual Offences Act, 2012, is

entirely dependent upon the proof of the victim being a minor;

however, the prosecution has miserably failed to establish the

same in accordance with the established principles. It is further

argued that no proper age determination of the victim was carried

out in accordance with the mandate of Section 94 of the Juvenile

Justice (Care and Protection of Children) Act, 2015 and the

provisions of the of the Prevention of Children from Sexual

Offences Act, 2012 could only be invoked only after foundational

facts, including the minority of the victim, are duly established by

the prosecution. In the present case, as the age of the victim has
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not been proved in accordance with law, therefore, the provisions

of the Prevention of Children from Sexual Offences Act, 2012,

will not be attracted.

13. It is also submitted that the relationship between the

informant/victim and the appellant was consensual in nature,

which continued for over a year. There is no material on record to

indicate that any consent, if given, was obtained on the basis of

false promise of marriage or under any misconception of fact from

the very inception. In such circumstances, the essential ingredients

of the offence under Section 376 of the Indian Penal Code is

missing in the present case.

14. It is next submitted that the appellant and the

informant belong to different religious communities. In such

situations, it is not uncommon for social pressure and external

interference to play a significant role, which may lead to

escalation of disputes and subsequent criminal litigation.

15. In view of the aforesaid facts and circumstances, it is

submitted that the impugned judgment of conviction is fit to be set

aside as the prosecution has miserably failed to prove its case

beyond reasonable doubts.

16. In support of his submissions, learned Counsel for

the appellant has placed reliance on the decisions of this Court as
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well as the Supreme Court, in the cases of Nirmal Premkumar

and Another v. State Represented by Inspector of Police,

reported in 2024 INSC 193, Biswajyoti Chatterjee v. State of

W.B., reported in (2025) 5 SCC 749, Rajak Mohammad v. State

of H.P., reported in (2018) 9 SCC 248, Amol Bhagwan Nehul v.

The State of Mahrashtra and Another, reported in 2025 SCC

Online 1230, Prithivirajan v The State Rep. by The Inspector

of Police [SLP (Crl.) No.12663 of 2022], Sonu Keshri v. State of

Bihar, reported in 2025 SCC Online Pat 3497, Sukumar Jana v.

State Of Bihar, reported in 2023 SCC Online Pat 6183, Munna

Kumar v. State of Bihar 2023, reported in SCC Online Pat

7035, Ravindra Musahar v. State of Bihar and Others

[Criminal Appeal (DB) No. 694 Of 2021], Dinesh Malakar v.

State Of Bihar and Others [Criminal Appeal (DB) No. 255 Of

2023], Jarnail Singh v. State of Haryana, reported in (2013) 7

SCC 263, and P. Yuvaprakash v. The State represented by the

Inspector of Police, reported in (2024) 17 SCC 684.

17. On the other hand, learned Additional Public

Prosecutor submits that the learned Trial Court, after considering

the entire materials available on record, has rightly convicted the

appellant inasmuch as the prosecution witnesses examined have

duly supported its case. The deposition of the informant/victim is
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wholly credible and trustworthy and the sole testimony of the

victim, is sufficient to form the basis of conviction of the

appellant.

18. It is further submitted that the testimony of the

victim stands corroborated in material particulars by the

prosecution evidence. Any apparent contradictions or

inconsistencies in her evidence are minor and trivial in nature,

which, in no way, will affect the core of the prosecution case or

the overall credibility of the witness. Such discrepancies, it is

urged, are liable to be discarded in the interest of justice.

19. Learned Additional Public Prosecutor finally submits

that there is no illegality in the impugned judgment conviction,

warranting any interference of this Court. The appeal is devoid of

any merit and fit to be dismissed.

20. I have heard learned Counsel for the parties and have

perused the materials available on record.

21. It would be apposite to discuss the oral/documentary

evidence as available on record to re-appreciate the evidence for

just and proper decision of the present appeal.

22. PW 1 (the informant/victim), in her examination-in-

chief, has deposed that she had instituted the present case and

submitted a written application before the police. She stated that
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the contents of the said application were written by the brother of

a boy who had come with her, and that she had put her signature

thereon. The said written application has been marked as Exhibit–

1. She further deposed that on 08.02.2019, the appellant called her

over the phone and asked her to come to a samosa shop, and

thereafter requested her to accompany him to his house on the

pretext of introducing her to his parents. However, upon reaching

his house, she found that no one else was present in the house of

the appellant. She stated that the appellant then removed her

clothes and committed rape upon her, and on that very day, he

raped her six times on the false pretext of marriage. The witness

further stated that she was interrogated by the police, medically

examined by a doctor, and her statement was recorded under

Section 164 of the Code of Criminal Procedure, 1973, in the

presence of her sister. She asserted that the said statement was

made voluntarily and without any coercion. She identified her

signature on the said statement as well as that of her sister, which

have been marked as Exhibits 2 and 2/1 respectively.

23. In her cross-examination, the witness (PW 1)

deposed that on the date of occurrence, the appellant met her at a

samosa shop and thereafter the appellant took her to his house

despite her protest that she was not willing to go there. She further
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deposed that in her statement under Section 164 of the Code of

Criminal Procedure, 1973, she had not stated that she resisted

when the appellant took her to his house; rather, she did not resist

when the appellant was sexually assaulting her in his house. She

further deposed that her brother had forbidden her for going to the

house of the appellant. This witness (PW 1) further deposed that

she was not willing to go to the house of the appellant, but he

lured her on the promise of marriage and took her there. She

further deposed that her brother and sister are witnesses in this

case and no person from the locality has been made witness.

24. This witness (PW 1) further deposed that the clothes

worn by her at the time when she went to the house of the

appellant were neither seized by the police nor did she hand over

any clothes to the police. She deposed that she went to the police

station on the same day at about 5:45 PM to lodge the case

regarding the alleged incident. She stated that she went to the

police station on her own without consulting anyone, remained

there after lodging the case, and on the next day, she was

medically examined by the doctor and also her statement, under

Section 16 of the Code of Criminal Procedure, 1973 , was

recorded. She further deposed that on the date of the occurrence,

while she was present at the house of the appellant, her brother
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reached there and when the door was not opened, he along with

his companions entered the house by jumping over the boundary

wall and caught them. Thereafter, when the accused refused to

marry her, she went to the police station and lodged the present

case.

25. In reply to the Court question, the witness (PW 1)

stated that she and the appellant belong to different religions

inasmuch as she is a Muslim, whereas the appellant is a Hindu.

She further stated that her neighbour, Santosh Bhabhi, had

introduced her to the appellant, and that on the day he established

sexual relations with her, he had deceived her on the promise of

marriage. She stated that when the accused later refused to marry

her, she became upset and went to the police station to lodge the

case along with her brother. She further stated that she has not met

the appellant after lodging of the case.

26. It is pertinent to mention here that in her statement

recorded under Section 164 of the Code of Criminal Procedure,

1973, the informant has stated that the appellant used to visit the

house of her neighbour (bhabhi) adjacent to her residence, where

she first came into contact with him. She further stated that she

became acquainted with him in January, 2019. The appellant

insisted on giving her a mobile phone, which she initially refused
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to accept; however, upon his persuasion, she accepted it.

Thereafter, they began conversing regularly and she began to like

him. She further stated that when her family came to know about

their association, they subjected her to physical assault.

27. This witness (PW 1) further stated that on

08.02.2019, the appellant took her to his house on the pretext of

introducing her to his parents; however, no one was present there,

and he did something wrong to her. On that day, she did not

resist. She further stated that thereafter, on a Friday, when she had

gone to buy samosas, she again met him. He said to her, “Reshma,

why are you sad? Your brother has taken away your phone; I will

give you a new one.” She stated that she would follow her

brother’s advice and not talk to him, but ignoring her brother’s

words, she again went with him to his house. There, on that day,

he again tried to do something wrong to her; however, at that

moment, her elder sister’s daughter and her brother arrived. Her

brother was knocking on the door, but he did not allow it to be

opened and stated that if they came from the roof, they would

hang themselves. She stated that her brother then reached there,

and thereafter all of them went to the police station and brought

appellant along with themselves.
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28. This witness has further stated that on the said Friday

night, the appellant had taken her to his house on the pretext of

buying her a new mobile phone, and at that time, she had gone on

her own will. She also stated that even at present, if he is ready to

marry her, she is willing to marry him; however, after reaching the

police station, he started refusing the marriage.

29. Now, coming to the testimony of sister of the

informant (PW 2). This witness, in her examination-in-chief,

deposed that the victim is her sister, aged about 15 years and date

of incident is 29.03.2019. On the said day, while the witness was

staying at her in-laws’ house, the victim had gone to the market at

about 2:00 PM along with the PW 2’s daughter Tamanna to

purchase samosa. At the market, the appellant took the victim and

witness’s daughter to his house, from where he sent PW 2’s

daughter back from the doorstep and kept the victim inside. The

PW 2’s daughter informed this witness, who then directed her to

inform her uncle. Thereafter, the PW 2’s brother went to the house

of the appellant, along with Tamanna, and finding the door locked,

started knocking it and when the door was not opened, the PW 2’s

brother entered the house of the appellant through the terrace and

opened the main door from inside. Upon entering, it was found

that the appellant and victim were inside a room, which was
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locked, and they refused to open it. On the direction of one Munna

Mahto, the door was forcibly broke opened by the PW 2’s brother.

After entering, the victim disclosed that the appellant had done

wrong to her 4–5 times on the basis of false promise of marriage.

The police was then informed, and the victim was taken to the

police station where she submitted a written complaint. This

witness further stated that the accused persons attempted to induce

them into a compromise by offering ₹ 2,00,000, which they

refused, insisting instead that the accused marry the victim.

30. In her cross-examination, this witness (PW 2)

deposed that no person from the locality had seen the victim

accompanying the appellant from the shop to his house. She

further deposed that she had never visited the appellant’s house

prior to the alleged incident. This witness admitted that she did not

notice any stains, injuries, or blood marks on the victim’s clothes.

She further acknowledged that she had signed the written

complaint without reading its contents and was unaware of what

had been written therein or who had drafted it. She denied the

suggestion that no such incident had taken place, the case was

falsely instituted for the purpose of extortion or she had deposed

falsely before the Court.
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31. PW 3, the brother of the victim, has deposed that the

victim is his sister, aged about 17 years, and on the said date,

between 4:00 PM to 5:00 PM, he was present at his shop when his

sister had gone to a samosa shop along with his niece (sister’s

daughter). He further deposed that the appellant was already

present there and took his sister along with the niece towards his

house, whereafter his niece was driven away from outside the

house. He further deposed that the niece returned home and

narrated the occurrence, upon which he, along with his family

members, proceeded to the house of the appellant. Finding the

door closed and not being opened, they broke it open and

recovered his sister from inside, where a large number of persons

had already assembled. The victim informed him that the

appellant had done something wrong to her, following which the

police arrived and took the appellant to the police station.

Thereafter, the victim returned home and later in the evening went

to the police station, where the case was instituted, she put her

signature on the written report and this witness has also put his

thumb impression as a witness. He further deposed that prior to

the present occurrence, the accused had established physical

relations with his sister on the false promise of marriage.
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32. In cross-examination, this witness (PW 3) admitted

that he did not see the appellant taking the victim from the shop

and he is not an eye-witness to the occurrence. He further deposed

that he came to know about the incident from his niece and

thereafter proceeded to the place of occurrence. He further

deposed that upon reaching there, a crowd of about 60 persons had

already gathered; however, he did not enter the house of the

appellant where the alleged occurrence had taken place. He

deposed that the police arrived about 15 minutes later; however,

his statement was not recorded at the place of occurrence. He

further admitted that he had not given any prior statement to the

police and he is deposing before the Court for the first time. He

also deposed that although he had been informed that the appellant

had allegedly established physical relations with his sister, he is

unable to specify the dates of such incidents.

33. On a careful examination of the record, it emerges

that the version of the prosecutrix, as reflected in the First

Information Report, her statement recorded under Section 164 of

the Code of Criminal Procedure, 1973, and her deposition before

the learned Trial Court, is not consistent with each other on

material particulars.
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34. In the First Information Report, the victim has

alleged that on 08.02.2019, the appellant forcibly established

physical relations with her and threatened her not to disclose the

incident. It is further alleged that thereafter, on about five to six

occasions, the appellant repeatedly established physical relations

with her on the pretext of marriage despite her objection. It has

also been stated that on the subsequent date of occurrence, i.e.,

29.03.2019, the appellant again took her to his house, though no

untoward incident occurred on that day.

35. However, in her statement recorded under Section

164 of the Code of Criminal Procedure, 1973, the victim has given

a materially different version. She has stated that she had

developed acquaintance and regular contact with the appellant

through a mobile phone given by him, and used to like him. She

further stated that on 08.02.2019, when the appellant took her to

his house on the pretext of introducing her to his parents, no one

was present there and he did something wrong to her; however,

she has categorically stated that she did not resist on that occasion.

She has further expressed her willingness to marry the appellant,

if he agrees.

36. In her deposition before the learned Trial Court, the

prosecutrix (PW 1) has further improved her version by stating
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that the appellant committed rape upon her and on the very same

day, subjected her to sexual intercourse as many as six times.

However, in her cross-examination, she has admitted in paragraph

10 that she did not resist this act done by the appellant. She has

also admitted that the case was instituted only after the appellant

refused to marry her.

37. This clearly indicates that the First Information

Report was not a consequence of the alleged incident alone, but

was triggered by the subsequent refusal of marriage, thereby

casting doubt on the allegation that the consent, if any, was

vitiated from the inception. PW 1 has also admitted that she was in

a relationship with the appellant and came in contact with him

through a known person. She has further acknowledged that the

appellant belongs to a different religion.

38. Coming to the testimony of PW 2 (sister of the

victim), this Court finds that her evidence also suffers from

material inconsistencies and inherent improbabilities. In her

examination-in-chief, she has stated that the victim was about 15

years of age at the time of occurrence and the victim, along with

her daughter, had gone to purchase samosa, from where the

appellant allegedly took the victim to his house. However, in her

cross-examination, PW 2 has made certain admissions which
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materially affect the prosecution case. She has stated that she was

married in the year 2004, at which time the victim was a student

of Class II and studying in an Anganwadi school. This statement,

if taken at its face value, renders the prosecution version regarding

the minority of the victim highly doubtful. She has further

admitted that she had put her signature on the written complaint

without reading its contents and was unaware as to who had

drafted the same, thereby diminishing the evidentiary value of the

FIR as a reliable and voluntary account of the occurrence.

39. PW 3 (brother of the victim) has deposed in a

manner which materially contradicts the versions of both, PW 1

and PW 2. He has stated that the age of the victim was about 17

years and has mentioned the date of occurrence as 28.03.2019. In

his examination-in-chief, he has further deposed that the victim

first returned home and thereafter went to the police station in the

evening, which is inconsistent when compared with the version of

PW 1 that she had proceeded directly to the police station from the

house of the appellant. In his cross-examination, PW 3 has

admitted that he did not enter the house of the appellant and the

police had arrived at the place of occurrence in his presence. He

has also stated that although he had been informed that the

appellant had allegedly established physical relations with his
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sister on about six occasions, he is unable to specify the dates of

such incidents. Significantly, he has, for the first time before the

Court, stated that on 28.03.2019 at about 05:30 PM, his sister,

along with his niece, had gone to purchase samosas, which

introduces an improvement in his version and further undermines

its reliability.

40. The contradictions emerging from the testimonies of

PW 1, PW 2, and PW 3 with regard to the time, manner of

occurrence and the subsequent sequence of events are substantial

and strike at the root of the prosecution case. These are not mere

minor discrepancies attributable to lapse of memory, but material

inconsistencies which create a serious doubt about the veracity

and reliability of the prosecution story.

41. The medical evidence of the doctor (PW 5) also does

not lend support to the prosecution case. The doctor has

categorically stated that no spermatozoa, either live or dead, was

detected. Although the hymen was found ruptured, the doctor has

opined that there were no signs suggestive of rape at the time of

examination and that the victim appeared to be habituated to

sexual intercourse. In cross-examination, the doctor has further

assessed the age of the victim to be between 18 to 19 years. This

medical opinion not only weakens the allegation of forcible sexual
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assault, but also casts a serious doubt on the prosecution’s

assertion regarding the minority of the victim.

42. In view of the aforesaid inconsistencies,

contradictions, lack of medical corroboration, doubtful age

determination and falsification of the prosecution case by

documentary evidence, this Court finds that the prosecution has

failed to establish its case beyond reasonable doubt. The evidence

of the prosecutrix does not inspire confidence and cannot be

termed as of sterling quality so as to sustain conviction on its sole

basis.

43. The Supreme Court, in case of Krishan Kumar

Malik v. State of Haryana, reported in (2011) 7 SCC 130, has

held that although the victim’s solitary evidence in matters related

to sexual offences is generally deemed sufficient to hold an

accused guilty, the conviction cannot be sustained if the

prosecutrix’s testimony is found unreliable and insufficient due to

identified flaws and lacunae.

44. The Supreme Court, in paragraphs 31 and 32 of

Krishna Kumar Malik (supra), has held as under:

“31. No doubt, it is true that to hold an
accused guilty for commission of an offence of rape,
the solitary evidence of the prosecutrix is sufficient
provided the same inspires confidence and appears to
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be absolutely trustworthy, unblemished and should be
of sterling quality. But, in the case in hand, the
evidence of the prosecutrix, showing several lacunae,
which have already been projected hereinabove, would
go to show that her evidence does not fall in that
category and cannot be relied upon to hold the
appellants guilty of the said offences.
32. Indeed there are several significant
variations in material facts in her Section 164
statement, Section 161 statement (CrPC), FIR and
deposition in court. Thus, it was necessary to get her
evidence corroborated independently, which they could
have done either by examination of Ritu, her sister or
Bimla Devi, who were present in the house at the time
of her alleged abduction. The record shows that Bimla
Devi though cited as a witness was not examined and
later given up by the public prosecutor on the ground
that she has been won over by the appellants.”

45. In the case of Rai Sandeep v. State (NCT of Delhi),

reported in (2012) 8 SCC 21, the Supreme Court found totally

conflicting versions of the prosecutrix, from what was stated in

the FIR and what was deposed before Court, resulting in material

inconsistencies. Reversing the conviction and holding that the

prosecutrix cannot be held to be a ‘sterling witness’, the Court

opined as under:

“22. In our considered opinion, the ‘sterling
witness’ should be of a very high quality and calibre
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whose version should, therefore, be unassailable. The
court considering the version of such witness should be
in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant
would be the consistency of the statement right from the
starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately
before the court. It should be natural and consistent
with the case of the prosecution qua the accused. There
should not be any prevarication in the version of such a
witness. The witness should be in a position to
withstand the cross-examination of any length and
howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well
as the sequence of it. Such a version should have co-
relation with each and every one of other supporting
material such as the recoveries made, the weapons
used, the manner of offence committed, the scientific
evidence and the expert opinion. The said version
should consistently match with the version of every
other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in
the chain of circumstances to hold the accused guilty of
the offence alleged against him. Only if the version of
such a witness qualifies the above test as well as all
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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 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.”

46. The Supreme Court, in the case of Ganesan v. State,

reported in (2020) 10 SCC 573, held that the sole testimony of the

victim, if found reliable and trustworthy, requires no corroboration

and may be sufficient to invite conviction of the accused.

47. The aforesaid decisions indicate that where witnesses

are found to be neither completely trustworthy nor entirely

unreliable, the Court must make a careful effort to ascertain the

true origin of the incident. A victim may be treated as a “sterling

witness” and her testimony can be relied upon without additional

corroboration, provided its quality and credibility are of an

exceptionally high standard. The statement of the prosecutrix

should remain consistent throughout, from the initial version to

the oral evidence, barring minor discrepancies, and should not
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give rise to any doubt regarding the prosecution’s case. Although,

in cases of sexual offences, the testimony of the victim is

generally sufficient, a version that is unreliable or inadequate,

suffering from evident shortcomings and gaps, may render it

difficult to sustain a conviction.

48. In the present case, even the medical evidence fails

to support the prosecution version creating a serious doubt about

the occurrence. When the medical expert clearly states that there is

no clinical indication suggestive of rape, the Court is required to

examine the prosecutrix’s testimony with greater caution. The

inconsistencies between the ocular and medical evidence create

uncertainty which goes to the root of the prosecution case.

49. In the case Sadashiv Ramrao Hadbe v. State of

Maharashtra, reported in (2006) 10 SCC 92, the Supreme Court

held that when the version of the prosecutrix is not of sterling

quality and is inconsistent with the medical evidence, and when

the surrounding circumstances render the prosecution story

doubtful, the accused is entitled to the benefit of doubt. The Court

further held that conviction cannot be sustained where the

prosecution has failed to prove its case beyond reasonable doubt.

50. Applying the aforesaid legal principles to the facts of

the present case and in light of the settled principle of law that
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conflicting versions of the prosecutrix, from what was stated in

the First Information Report and what was deposed before Court

and statement recorded under Section 164 of the Code of Criminal

Procedure, 1973, results in material inconsistencies and cannot be

relied upon and also considering the unequivocal medical

evidence of PW 5 indicating absence of injuries or signs of sexual

assault, also do not corroborate with the versions of the

prosecutrix, I am of the view that the prosecution has failed to

establish the charge beyond reasonable doubt. Consequently, the

appellant is entitled to be accorded, at least benefit of doubt.

51. The age determination of the victim was not done in

accordance with the procedure laid down under Section 94 of the

Juvenile Justice (Care and Protection of Children) Act, 2015.

52. In the case of Jarnial Singh (supra), the Supreme

Court has held that the procedure provided for determination of

age of a juvenile in conflict with law should be adopted for

determination of the age of the victim of a crime also, because

there is hardly any difference, in so far as issue of minority is

concerned, between the child in conflict with law and the child

who is the victim of a crime.

53. Similar view has been expressed by the Supreme

Court, in a recent decision, in the case of P. Yuvaprakash (supra)
Patna High Court CR. APP (SJ) No.1051 of 2021 dt.12-05-2026
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referring to Section 34 of the Prevention of Children from Sexual

Offences Act, 2012 and Section 94 of the Juvenile Justice (Care

and Protection of Children) Act, 2015.

54. Section 94 of the Juvenile Justice (Care and

Protection of Children) Act, 2015, deals with presumption and

determination of age, and reads as follows:

“94. Presumption and determination of age.-
(1) Where, it is obvious to the Committee or
the Board, based on the appearance of the person
brought before it under any of the provisions of this Act
(other than for the purpose of giving evidence) that the
said person is a child, the Committee or the Board shall
record such observation stating the age of the child as
nearly as may be and proceed with the inquiry under
section 14 or section 36, as the case may be, without
waiting for further confirmation of the age.
(2) In case, the Committee or the Board has
reasonable grounds for doubt regarding whether the
person brought before it is a child or not, the
Committee or the Board, as the case may be, shall
undertake the process of age determination, by seeking
evidence by obtaining—
(i) the date of birth certificate from the school,
or the matriculation or equivalent certificate from the
concerned examination Board, if available; and in the
absence thereof;
(ii) the birth certificate given by a corporation
or a municipal authority or a panchayat;
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(iii) and only in the absence of (i) and (ii)
above, age shall be determined by an ossification test or
any other latest medical age determination test
conducted on the orders of the Committee or the Board:
Provided such age determination test
conducted on the order of the Committee or the Board
shall be completed within fifteen days from the date of
such order.
(3) The age recorded by the Committee or the
Board to be the age of person so brought before it shall,
for the purpose of this Act, be deemed to be the true age
of that person.”

55. The Supreme Court, in P. Yuvaprakash (supra), has

held as follows:

“13. It is evident from conjoint reading of the
above provisions that wherever the dispute with respect
to the age of a person arises in the context of her or him
being a victim under the POCSO Act, the courts have to
take recourse to the steps indicated in Section 94 of the
JJ Act. The three documents in order of which the
Juvenile Justice Act requires consideration is that the
concerned court has to determine the age by
considering the following documents:
“(i) the date of birth certificate from the
school, or the matriculation or equivalent certificate
from the concerned examination Board, if available;
and in the absence thereof;
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(ii) the birth certificate given by a corporation
or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii)
above, age shall be determined by an ossification test or
any other latest medical age determination test
conducted on the orders of the Committee or the
Board”.

56. With regard to the minority of the victim, no

document was brought on record by the prosecution, i.e. school/

matriculation certificate and/or the date of birth certificate, duly

issued by the Municipality or the Panchayat. The victim has been

directly medically examined, in which the doctor has assessed her

age between 18 and 19 years.

57. The Supreme Court has in many cases have taken the

view that radiological examination for the purpose of age

determination is not very reliable and there is always a possibility

of an error of plus and minus two years.

58. Reliance may be placed on the decisions of the

Supreme Court in the case of Ram Suresh Singh v. Prabhat

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

Prakash v. the State of Rajasthan and Another, reported in

(2012) 5 SCC 201. Further, in the case of Rajak Mohammad v.

H.P, reported in (2018) 9 SCC 248, it has also been laid down

that the age determination on the basis of radiological examination
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may not be accurate determination and thus sufficient margin on

either side has to be allowed.

59. Paragraph 9 of the Rajak Mohammad (supra) is

being quoted herein below:

“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.”

60. In the case of Court on its Own Motion Vs. NCT of

Delhi, reported in 2024 SCC OnLine Delhi 4484, the 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:—
(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
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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.”

61. Applying such principle laid down by the Supreme

Court and the Delhi High Court, the upper age of the victim is

raised to 21 years and thus the victim can be safely considered to

be major, thereby excluding the applicability of the provisions of

the Prevention of Children from Sexual Offences Act, 2012.

62. Since this court arrived at the conclusion that PW 1,

i.e. the victim, cannot be treated as a sterling witness, however, the

case of the prosecution is that the appellant established physical

relations with the victim on the pretext or false promise of

marriage is also not supported by any cogent or reliable evidence

inasmuch as the prosecution, right from the beginning, failed to

establish that from the very inception intention of the appellant

was not to marry with the victim. It is an admitted position that the

appellant and the victim belonged to different religions, and even

if a consensual relationship existed between them, the subsequent

failure of the relationship to culminate into marriage may have
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been on account of social and religious differences between them.

Mere failure to marry, in such circumstances, cannot ipso facto

lead to the conclusion that the consent was obtained by

misconception of fact so as to attract the offence under Section

376 of the Indian Penal Code. Hence, the conviction of the

appellant under Section 376 of the Indian Penal Code is

unsustainable in the eyes of law.

63. In the result, and for the reasons discussed above,

this appeal succeeds. The impugned conviction of the appellant by

the judgment, under appeal, and the consequential sentence,

passed under the impugned order, are hereby set aside. The

appellant is held not guilty of the offence, for which he stood

convicted, and is acquitted of the same under benefit of doubt.

64. The appellant is already on bail. The bail bonds of

the appellant are hereby cancelled and his sureties shall stand

discharged.

65. The Registry is directed to return the Lower Court’s

Record forthwith along with a copy of this judgment.

(Anil Kumar Sinha, J.)
Prabhakar Anand/-

AFR/NAFR AFR
CAV DATE 09-04-2026
Uploading Date 12-05-2026
Transmission Date 12-05-2026

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