Patna High Court
MD. IBRAN @ IMRANversusTHE STATE OF BIHAR
- Decided
- Disposal
- ALLOWED
- Bench
- SHAILENDRA SINGH
Holding
The conviction under IPC Section 376 and POCSO Act Section 4 is not sustainable and is set aside.
Summary
The appellant was convicted by a Special Judge under IPC Section 376 (rape) and POCSO Act Section 4 for allegedly raping his 16‑year‑old sister. The prosecution’s case relied on the sister’s written application, the victim’s prior statement recorded under CrPC Section 164, and medical evidence, while the trial court ignored inconsistencies in testimonies. On appeal, the High Court examined the credibility of the informant, the victim’s contradictory statements, and the medical assessment of the victim’s age, which could place her above 18. The Court found the prosecution failed to establish the offence beyond reasonable doubt and that the trial court erred in relying on the prior statement. Consequently, the convictions under IPC 376 and POCSO Section 4 were set aside and the appellant was ordered to be released.
Issues considered
- Whether the prosecution proved the offence of rape under IPC Section 376 beyond reasonable doubt.
- Whether the victim’s prior statement under CrPC Section 164 can be relied upon despite contradictory oral testimony.
- Whether the victim was a minor at the time of the alleged offence, considering medical age assessment.
- Whether the benefit under POCSO Act Sections 29 and 30 is applicable in the absence of a proven offence.
Legislation cited
- Code of Criminal Procedure — s. 161, 164, 313
- Indian Penal Code — s. 323, 341, 342, 376, 448, 506
- Protection of Children from Sexual Offences Act — s. 12, 29, 30, 4, 42
Subjects
- rape
- POCSO
- IPC 376
- conviction overturned
- age of victim
- evidentiary inconsistency
- prior statement
- appeal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.5263 of 2023
Arising Out of PS. Case No.-12 Year-2019 Thana- MAHILA P.S. District- Bhagalpur
======================================================
Md. Ibran @ Imran, Son of Md. Suddin Ali, Resident of Narayanpur, P.S.-
Bhawanipur (Bihpur), Distt - Bhagalpur
... ... Appellant/s
Versus
1. The State of Bihar
2. YYY W/O HHH, Resident of Vill.- Narayanpur, P.S.- , Bihpur
(Bhawanipur), Distt - Bhagalpur
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Rana Pratap Singh, Adv.
For the State : Mr. Ramchandra Singh, APP
For the Resp. No. 2 : Mr. Chandan Kumar Kashyap, Adv.
Mr. Mritunjay Kumar Singh, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 22-06-2026
Heard Mr. Rana Pratap Singh, learned counsel for
the appellant, Mr. Ramchandra Singh, learned APP for the
State and Mr. Chandan Kumar Kashyap, learned counsel for
the Respondent No. 2.
2. The instant appeal has been preferred against
the judgment of conviction dated 29.11.2022 and the
consequent order of sentence dated 30.11.2022 passed by the
learned Exclusive Special Judge (POCSO Act)-cum-7th
Additional District & Sessions Judge, Bhagalpur, in POCSO
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Case No. 45 of 2019 arising out of Naugachia Mahila P.S.
Case No. 12 of 2019, whereby and whereunder the appellant
has been convicted for the offences punishable under Section
376 of the Indian Penal Code (in short, ‘IPC’) and Section 4 of
the Protection of Children from Sexual Offences Act (in short,
‘POCSO Act’). The appellant has been sentenced to undergo
rigorous imprisonment for ten years with a fine of Rs. 10,000/-
(Rupees Ten Thousand) under Section 4 of the POCSO Act
and in default of payment of fine, he has been directed to
undergo simple imprisonment for three months. No separate
sentence has been awarded to the appellant for the offence
under Section 376 of the IPC considering the provision under
section 42 of the POCSO Act.
Prosecution story : -
3. The prosecution case, in brief, is that on
25.04.2019, the informant, YYY (PW-1), submitted a written
application before the Station House Officer, Naugachia
Mahila Police Station. In her application, she alleged that on
the intervening night of 24.04.2019, her younger sister
(victim), a minor girl aged about 16 years, was sleeping in the
courtyard of their house. It was alleged that during the night,
the accused, Md. Ibran, unlawfully entered the premises and
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by putting the victim in fear with a pistol, dragged her towards
a room (Kothli) situated near the house of one Md. Inlaan. The
informant chased them but Md. Ibran pointed the pistol at her
and threatened to kill her, whereupon she stopped out of fear.
Thereafter, he fled away from the place of occurrence. The
informant further stated that upon reaching the room, she
found the victim lying on the floor in an injured and distressed
condition. The victim disclosed to her that the accused had
committed rape upon her. It was also alleged that the accused
was a notorious criminal involved in the illegal liquor trade
and owing to his criminal antecedents and influence, no person
in the locality was willing to depose against him.
4. The informant recorded her fardbeyan on
25.04.2019 at about 10:00 A.M. at Naugachia Mahila Police
Station and detailed the above-mentioned incident. Upon that
basis, a formal FIR bearing Naugachia Mahila P.S. Case No. 12
of 2019 was registered for the offences punishable under
Sections 323, 341, 376 & 448 of the IPC and Sections 4 & 12 of
the POCSO Act, which set the criminal law in motion.
5. During the course of investigation, the statement
under section 164 of the Code of Criminal Procedure (in short,
‘Cr.P.C.’) of the victim was recorded before the Judicial
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Magistrate and the statement of the victim and other witnesses
under section 161 of the Cr.P.C. was also recorded by the
Mahila police officer.
6. After completion of the investigation, the
appellant was charge-sheeted for the offences punishable under
Sections 341, 342, 323, 376, 448 & 506 of the IPC and Sections
4 & 12 of the POCSO Act.
7. After cognizance of the alleged offences, the
learned Magistrate committed the case of the appellant to the
Court of Sessions, Bhagalpur, for trial. The appellant stood
charged for the offences under Sections 341, 342, 323, 376, 448
& 506 of the IPC and Sections 4 & 12 of the POCSO Act. The
said charges were read over and explained in Hindi to the
appellant by the trial court, to which he pleaded not guilty and
claimed to be tried.
8. During the trial, the prosecution examined
altogether eight witnesses who are as under :
Rank Name Nature of Evidence
PW-1 YYY Elder sister of the victim
PW-2 ZZZ Father of the victim
PW-3 Sweta Kumari ASI, Naugachia Mahila Police station (I.O.)
PW-4 XXX Victim
PW-5 AAA Mother of the victim
PW-6 Dr. Jyotsna Doctor
PW-7 Dr. Anand Kumar Radiologist
Murari
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PW-8 Dr. Beena Pani Poddar Medical officer
9. In addition to the above mentioned ocular
evidence, the prosecution proved and exhibited the following
documents in documentary evidence :-
Sr. Exhibit No. Description Proved
No by/Attested by
1. Ext.-P1 Signature on typed written PW-1
application
2. Ext.-P2/PW-3 Formal FIR PW-3
3. Ext.-P3/PW-3 Statement of the victim recorded PW-3
under section 161 of the Cr.P.C.
4. Ext.-P4/PW-3 Charge-sheet PW-3
5. Ext.-P3/1 /PW- Signature of the victim on her PW-4
4 statement recorded under section 161
of Cr.P.C.
6. Ext.-P5/PW-4 Signature of the victim on her PW-4
statement recorded under section 164
of Cr.P.C.
7. Ext.-P6/PW-6 Medical report PW-6
8. Ext.-P7/PW-7 Whole X-Ray report of radiologist PW-7
9. Ext.-P8/PW-8 Whole report of Clinical PW-8
Examination
10. After the completion of the prosecution
evidence, the statement of the appellant was recorded under
Section 313 of the Cr.P.C. by the trial court. The appellant
denied the material circumstances appearing against him in the
prosecution evidence and pleaded innocence.
11. The appellant did not produce any oral or
documentary evidence in support of his defence.
12. While convicting the appellant for the offences
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under Section 4 of the POCSO Act and Section 376 of the IPC,
the learned trial court mainly placed reliance upon the testimony
of the victim (PW-4).
Consideration and Analysis:
13. I have heard both sides and perused the
impugned judgment, the evidence adduced by the prosecution
and the statement of the accused/appellant.
14. The appellant has been convicted for the
offences under Section 376 of the IPC and Section 4 of the
POCSO Act. While convicting the appellant, the trial court
observed that the victim was below 18 years of age at the time
of commission of the offences and also placed reliance upon her
statement recorded under Section 164 of the Cr.P.C. to
corroborate the prosecution allegations made in the FIR. As per
the trial court, the prosecution succeeded in establishing the
foundation of the allegation and therefore, the onus shifted upon
the appellant to prove his innocence, which he failed to
discharge. Consequently, the appellant was convicted.
15. The case of the prosecution, as disclosed in the
FIR, is based on the statement (Exhibit P-2) of the informant,
who is the elder sister of the victim. The informant alleged in
the prosecution story that on the intervening night of
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24.04.2019, her minor sister (the victim) was asleep in the
courtyard of their house. In the morning at about 5:00 A.M., the
appellant entered the courtyard of the house where the victim
was sleeping. Thereafter, the appellant forcibly dragged the
victim, who resisted and started crying. However, the appellant
took her in a dragging condition to an isolated house belonging
to one Md. Inlaan. The informant further alleged that she chased
the appellant while crying, but the appellant threatened to kill
her by showing a pistol, due to which she stopped. At that time,
no other person came forward to save her sister.
15.1. As per the prosecution story mentioned in the
FIR, the appellant was involved in illicit trafficking of liquor
and was a notorious person, due to which no villager dared to
say anything against him. According to her, after some time, the
accused came out of the kothli (room) of the alleged isolated
house and fled towards the village. Thereafter, she went inside
the kothli and found her sister in an agonized condition. Upon
inquiry, the victim disclosed that she had been raped by the
appellant.
16. Now, it is to be examined whether the aforesaid
prosecution story, as set out in the FIR, finds support from the
evidence of the prosecution witnesses or not. The informant was
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examined as PW-1. She deposed that she did not know about the
incident, and thereafter stated that the incident had taken place
two years ago, however, she again stated that she did not know
about the incident. These statements show that the informant did
not remain consistent with the prosecution version given by her
in the FIR, though she identified her signature on the FIR. Her
evidence is completely contrary to the prosecution story
narrated in the FIR.
16.1. In her cross-examination, PW-1 further
deposed that at present her sister (the victim) is residing with the
appellant as his wife. The father (PW-2) and the mother (PW-5)
of the victim did not support the prosecution case in their
testimony, rather, they admitted the existence of a love affair
between the appellant and the victim and also acknowledged
their matrimonial relationship.
16.2. Now, coming to the evidence of the victim,
who is the most important witness of the prosecution. She was
examined as PW-4 and she deposed in her examination-in-chief
that the alleged incident had taken place about three years ago,
and that she had a love affair with the appellant. She further
stated that they later got married and they have a son from their
conjugal relationship, and she is presently residing in her
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sasural with the appellant. Though this witness admitted her
signature on her previous statement recorded under Section 164
Cr.P.C. before the learned Judicial Magistrate but the statements
made by her in court are completely contradictory to her earlier
statement.
17. While convicting the appellant for the offences
under Section 376 of the IPC and Section 4 of the POCSO Act,
the learned trial court mainly relied upon the victim’s statement
recorded under Section 164 of the Cr.P.C. as corroborative of
the prosecution case; however, the said statement stands
contradicted by her testimony before the trial court. Therefore,
the prosecution is not entitled to derive benefit solely on the
basis of the victim’s earlier statement.
18. As regards the prosecution story as narrated in
the FIR, though the victim’s statement recorded under Section
164 of the Cr.P.C. supports the prosecution version, the FIR
itself does not contain the statement of the victim, but rather that
of her sister (PW-1), whose testimony before the court is also
inconsistent with both the victim’s Section 164 statement and
the prosecution case narrated in the FIR.
19. So far as the age of the victim on the date of
occurrence is concerned, as per medical expert’s opinion, her
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age was assessed to be between 17 and 19 years at that time. It
is a settled proposition of law that there is always a possibility
of an error of margin of two years on the lower as well as upper
side in the age assessed by medical experts. If a two-year
margin is added on the higher side, the age of the victim comes
to about 21 years at the time of the alleged occurrence.
Conclusion:
20. After having analysed the evidence of the
prosecution witnesses and other evidences, this Court is of the
considered opinion that the approach adopted by the trial court
in convicting the appellant for the aforesaid offences was not
proper. The prosecution remained fail to establish the foundation
of the allegation, and therefore, it is not entitled to the benefit
under Section 29/30 of the POCSO Act. The conviction of the
appellant under Section 376 of the IPC and Section 4 of the
POCSO Act is not sustainable in the eye of law. Accordingly,
the impugned judgment and order convicting and sentencing the
appellant for the charged offences are set aside and the appeal is
allowed.
21. The appellant is in custody, so, he is directed
to be released forthwith if his custody is not required in any
other case.
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22. Let the records of the trial court, along with a
copy of this judgment, be transmitted forthwith to the trial court
for needful and necessary compliance.
(Shailendra Singh, J)
annu/-
AFR/NAFR
CAV DATE NA
Uploading Date 29.06.2026
Transmission Date 29.06.2026
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