CHANDAN KUMAR @ CHANDAN SINGH vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.797 of 2023
Arising Out of PS. Case No.-238 Year-2016 Thana- KOILWAR District- Bhojpur
======================================================
Chandan Kumar @ Chandan Singh Son Of Ajeet Singh Resident Of Village-
Udaybhanpur PS- Barhara (Krishnagarh), Distt- Bhojpur
... ... Appellant
Versus
1. The State of Bihar
2. Mr. 'X'
... ... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Surendra Kumar Singh, Advocate
For the Respondent/s : Mr. Sujit Kumar Singh, APP
For the Informant : None
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 28-08-2026

Heard learned counsel for the appellant and learned
Additional Public Prosecutor for the State. Despite service of
notice, no one has entered appearance on behalf of respondent
no.2.
2. This appeal has been preferred for setting aside the
judgment of conviction dated 01.07.2023 (hereinafter referred to as
the ‘impugned judgment’) and the order of sentence dated
10.07.2023 (hereinafter referred to as the ‘impugned order’)
passed by learned Additional District and Sessions Judge-VI-cum-
Special Judge, POCSO, Bhojpur (hereinafter referred to as the

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‘learned trial court’) in POCSO Case No. 25 of 2023 arising out of
Koilwar P.S. Case No. 238 of 2016.
3. By the impugned judgment, the appellant has been
convicted for the offences punishable under Section 376D of the
Indian Penal Code (in short ‘IPC’) and vide impugned order dated
10.07.2023, the appellant has been sentenced to undergo twenty
years rigorous imprisonment with a fine of Rs.50,000/- for the
offence punishable under Section 376D IPC and in default of
payment of fine, he has to further undergo rigorous imprisonment
for six months.
Prosecution Case
4. The prosecution case is based on the written
application of the informant (victim/PW-4) wherein she has
alleged that on 29.10.2016 at around 01:00 PM, she had come
from her house to Kayamnagar for getting her photograph taken.
After getting the photograph taken, the informant was returning to
her house when near the pond ahead of the Paper Mill situated at
Gidha, two boys riding on a bike came and coaxed her by saying
that they will drop her at her house. The informant fell into their
trap and sat with them on the vehicle and left, then those two boys
took her near a boring at Ram Shahar Bagicha (Barhara) and took
her inside the boring room and both boys started to commit

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forcible wrongful act, then one boy also came and he also started
trying to commit wrongful act with the informant. It is alleged that
the informant started shouting. On hearing the shouting, villagers
gathered. Seeing the crowd, all three boys started running away
taking one mobile, photo and Rs. 150 from the informant's purse.
After being chased by the villagers, one boy was apprehended who
disclosed his name as Chandan Kumar (the appellant), S/o Ajit
Singh and the two boys who succeeded in fleeing away were
named Govind Singh and Golu Singh. The villagers then informed
the Barhara Police, who brought the informant and Chandan
Kumar to the police station.
5. On the basis of the written application of the
informant (PW-4), Koilwar P.S. Case No. 238 of 2016 dated
29.10.2016 was registered under Sections 376D, 379 and 34 IPC
and Section 4 of the Protection of Children from Sexual Offences
(POCSO) Act against Chandan Kumar (the appellant), Govinda
Singh and Golu Singh. After investigation, the police submitted a
chargesheet bearing Chargesheet No. 37 of 2017 dated 19.04.2017
under Sections 376D, 379 and 34 IPC and Section 4 of the POCSO
Act against Chandan Kumar, Govinda Singh and Golu Singh.
6. The learned trial court vide order dated 02.05.2017
took cognizance of the offence punishable under Sections 376D,

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379 and 34 IPC and Section 4 of the POCSO Act against all the
three accused persons.
7. Charges were read over in Hindi and explained to the
accused persons to which they pleaded innocence and claimed to
be tried. Accordingly, vide order dated 23.06.2017, charges were
framed against all the accused persons under Sections 376D, 379
and 34 IPC and Section 4 of the POCSO Act.
8. It appears on perusal of the trial court’s records that
in this case PW-1 was examined on 16.08.2019. She was cross-
examined by the accused persons. Father of the victim (PW-2)
and uncle of the victim (PW-3) were examined and cross-
examined on 09.02.2023 and 10.02.2023 respectively. The victim
(PW-4) was examined and cross-examined by the accused
persons on 15.02.2023, but thereafter on 17.02.2023, when Dr.
Madhubala appeared for her deposition, this appellant remained
absent, therefore, his bail bond was cancelled. Later on, Dr.
Madhubala was examined as PW-1 under Section 299 CrPC in
absence of the accused Chandan Kumar who was, in fact,
declared absconder on 01.03.2023. The I.O. of this case was
examined as PW-2 under Section 299 CrPC in absence of the
accused Chandan Kumar on 20.03.2023. On 25.04.2023, the
appellant surrendered and he was sent to jail, whereafter the

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doctor (PW-1 under Section 299 CrPC) and the I.O. (PW-2 under
Section 299 Cr.P.C) were cross-examined by this appellant on
28.04.2023 and 03.05.2023. Under these circumstances, the
learned trial court vide its order dated 01.03.2023 directed to open
a separate file against the appellant Chandan Singh @ Chandan
Kumar showing him absconder. The description of the
prosecution witnesses and the list of documents exhibited on
behalf of the prosecution are provided hereunder for a ready
reference in tabular form:-
List of Prosecution Witnesses
Prosecution
Witness No.
Name of Witness Description
PW-1 Mother of the victim Mother of the victim
PW-2 Father of the victim Hostile witness
PW-3 Uncle of the victim Hearsay witness
PW-4 'X' Victim Informant
PW-1 under
Section 299 CrPC
Dr. Madhubala Sinha Medical witness
PW-2 under
Section 299 CrPC
Punam Kumari I.O.
List of Exhibits on behalf of Prosecution
Exhibit No. Description of the Exhibit Proved by/ Attested
by
‘1’ Certified copy of FIR
‘2’ Certified copy of chargesheet
‘3’ Certified copy of seizure list
‘4’ Certified copy of 164 CrPC
statement
‘5’ Certified copy of medical
report
PW-1 under Section
299 CrPC

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9. Thereafter, the statement of the accused was recorded
under Section 313 of the Code of Criminal Procedure (in short
‘CrPC’) in which he denied the allegations and pleaded innocence.
Findings of the Learned Trial Court
10. Learned trial court, after examining the oral as well
as documentary evidences available on the record, found that from
perusal of the evidence of the victim and the victim's mother, it is
clear that the incident of rape was committed by Govind Singh but
Golu Singh was trying to commit rape when there was hulla and
Chandan Kumar @ Chandan Singh had also come to commit rape
but by then he had identified the victim and there was a scuffle
among the three accused persons. Thus, according to the learned
trial court, the intention of all three accused was common and they
had gathered at the place of occurrence with the common intention
to commit sexual assault upon the victim.
11. The learned trial court has found that presence of the
accused Golu Singh at the place of occurrence was corroborated
by the testimony of defence witnesses. Chandan Kumar @
Chandan Singh was caught by the villagers and later along with
the victim, Chandan Kumar @ Chandan Singh was taken to the
police station.

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12. It has been further found by the learned trial court
that the victim is the sole witness of the incident and her evidence
clearly establishes that Govind Singh (absconder) committed rape
upon her, while Golu Singh attempted to commit rape and slapped
her due to which she raised hulla and people gathered. The learned
trial court has further found that while Govind Singh was
committing the act of rape, accused Golu Singh and Chandan
Kumar @ Chandan Singh were standing outside. The learned trial
court has found that this fact is also corroborated by the victim's
mother in her evidence.
13. Learned trial court, after considering all the facts and
circumstance of the case, came to the conclusion that the
prosecution has been able to prove it’s case beyond all reasonable
doubts against the appellant and Golu Singh. Accordingly, the
learned trial court convicted the appellant and Golu Singh under
Sections 376D IPC.
Submissions on behalf of the Appellant
14. Mr. Surendra Kumar Singh, learned counsel for the
appellant submits that Poonam Kumari, who is the I.O. of this
case and has been examined as PW-2 in absence of the accused
on 20.03.2023, was allowed to be cross-examined on 03.05.2023.
This Court has been shown the order dated 03.05.2023 passed by

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the learned trial court. It is submitted that due to some mistake in
putting the trial case number by the deposition writer, the learned
court had directed for presence of the I.O. once again, but from
the order dated 26.05.2023 of the learned trial court, it would
appear that on the said date the parties agreed that the I.O. had
already been examined on 20.03.2023 and cross-examined on
03.05.2023, which should be accepted. The trial court had
allowed this prayer of the parties.
15. It is submitted that during her cross-examination,
the I.O. admitted that she had started investigation of the case
without sending the FIR to the court. She admitted that the FIR
was sent to the court on 02.11.2016. She had not written about
getting medical examination of the arrested accused. The I.O. has
further stated that at the place of occurrence, she had not found
any bed, straw or dari lying there, there was no sign to show that
the occurrence had taken place. She had not found the bike
anywhere, therefore, she had not seized the same. She has clearly
stated that the witnesses whose statements she had recorded are
not eyewitnesses. She has further stated that no witness told her
that any accused or the victim was caught from the boring house
or was arrested, rather, they were caught while fleeing away.
Learned counsel, therefore, submits that on perusal of the trial

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court’s order, it would appear that on 02.11.2016, the FIR of
Koilwar Police Station No. 238 of 2016 was received in court and
the same was registered fixing 06.02.2016 awaiting the final
form. It nowhere talks of any production-cum-seizure list attached
with the FIR.
16. Learned counsel submits that on perusal of
production-cum-seizure lists (Exhibit ‘P/3’), it would appear that
the same is said to have been prepared on 30.10.2016 at 00:45 Hrs.
in Koilwar Police Station premises. The mother (PW-1) of the
victim had produced the same. There are only thumb impressions
against the column showing the signature of the witnesses. The
thumb impression has not been identified by any person. It is
further mentioned that the seizure list (Exhibit ‘P/3’) shows that at
the time of occurrence, the victim was wearing a red colour salwar,
but the victim (PW-4) has stated in paragraph ‘12’ of her
deposition, during cross-examination by this appellant, that at the
time of occurrence she was wearing a black colour trouser and she
had not given that cloth to Darogaji because he had not asked for
the same. She had not shown any such cloth to Darogaji. It is, thus,
submitted that the production-cum-seizure list (Exhibit ‘P/3’)
seems to have been manufactured at a belated stage.

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17. Learned counsel submits that the learned trial court
has rightly held that the charge under the POCSO Act could not be
established because the prosecution had failed to show that the
victim was below 18 years of age. Although, the victim was
studying in a school, her date of birth certificate from the school
first attended was not brought on the record and the medical
examination report (Exhibit ‘P/5’) , proved by doctor (PW-1 under
Section 299 CrPC) showed on the basis of X-rays of the elbow,
pelvis and wrist that she was aged between 17-19 years.
18. Learned counsel submits that the doctor (PW-1
under Section 299 CrPC) has stated that there was no injury
present in any part of the body. Hymen was ruptured, the rupture
is old one. The victim was found aged between 17 to 19 years.
The doctor opined that according to report, it is not clear whether
rape is done or not. The medical report has been marked Exhibit
‘5’. In course of her cross-examination, she has stated that hymen
may be ruptured due to running, jumping or riding bicycle.
19. Learned counsel further submits that in this case, the
place where the rape was committed allegedly has not been
proved. The I.O. (PW-2 under Section 299 CrPC) has stated that
the second place of occurrence is the boring room in the plot of
Mahesh Singh, which was locked. She has stated that she had not

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recorded the statement of the owner of the boring house. No
person has stated about apprehending the accused and the victim
from the boring house. The I.O. has further stated that in her 164
CrPC statement, the victim had not stated about the name of the
accused regarding his involvement. The I.O. (PW-2 under Section
299 CrPC) had not found any motorcycle accordingly she did not
seize any motorcycle. It is, thus, submitted that the case of the
prosecution that the victim was taken by two accused on a
motorcycle to the second place of occurrence has not been proved
by cogent evidences.
20. Learned counsel submits that the I.O. (PW-2 under
Section 299 CrPC) had not recorded in the case diary about her
visiting to the second place of occurrence. She had not prepared
any najri naksha and had not recorded as to in which direction the
second place of occurrence is from the first place of occurrence,
nor had she recorded the distance between the first and second
place of occurrence. In such circumstances, it is to be concluded
that the I.O. (PW-2 under Section 299 CrPC) had not gone to the
second place of occurrence.
21. Learned counsel further submits that the clothes of
the victim, as per the production-cum-seizure list (Exhibit 'P/3')
was sent to the FSL. In POCSO Case No. 39 of 2023, in which

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Golu Singh has been tried, the FSL report has been marked
Exhibit 'P/7' on 23.06.2023. So far as POCSO Case No. 25 of
2023 relating to this appellant is concerned, in this case the order
dated 23.06.2023 of the trial court does not show that the FSL
report has been exhibited. Be that as it may, learned counsel
submits that in the FSL report, which is Exhibit 'P/7' in POCSO
Case No. 39 of 2023, the report clearly says that there was no
blood or semen on the torn red colour salwar .
22. Learned counsel submits that in the aforesaid
background of the materials collected in course of investigation,
when the ocular evidences are analysed, it would be found that the
mother of the victim (PW-1) has alleged that when her daughter
was going to Kayamnagar for getting photographed, on the way,
the accused Golu and Govind gagged her daughter by mouth and
forcibly took her on their vehicle and took her near Barhara. PW-1
has stated that both the accused persons had called Chandan Singh
for committing the wrong act but when Chandan Singh reached
there, then he identified her daughter and stated that she was from
his village and related to her, therefore, he questioned the accused
persons as to why they had brought her and asked them to open
her mouth. She has stated that thereafter a scuffle took place
between the two accused persons on the one hand and Chandan on

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the other hand. Thereafter, a lot of persons assembled there and
Barhara Police also came and took them to the police station.
PW-1 went to Barhara Police Station where her daughter told her
the story. She has stated that she knows Chandan. In her cross-
examination, she has stated that she was not aware of the place of
occurrence and the occurrence had not taken place in her presence.
23. It is submitted that as per the victim, the occurrence
took place when she was returning after getting photographed. She
has given a different manner of occurrence as according to her, she
was allured that she would be left at her house and she agreed
under that allurement and sat on the vehicle. It is submitted that
the evidence of PW-1 is not in consonance with the prosecution
case.
24. PW-2 is the father of the victim, who has not
supported the prosecution case, therefore, he has been declared
hostile.
25. Learned counsel submits that PW-3 is the uncle of
the victim, who has clearly stated that at the time of occurrence he
was not in his house and he did not know who committed the
occurrence with the victim.
26. It is submitted that the victim (PW-4) has stated that
she had studied up to Class-V, she was born in the year 2001 but

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did not remember the month and date of her birth. It is submitted
that in her examination-in-chief, she has not taken name of the
accused persons. She does not say that the accused persons, who
took her near the boring, had called any third boy. She has stated
that she did not know the person who had committed wrong act
with her, but she can identify on seeing. She has stated that while
Govind was committing wrong act with her, this appellant and
Golu Singh were standing outside the room and when Golu came
to do wrong act with her, the people assembled at the place of
occurrence then the accused persons fled away and this appellant
remained standing there and he was caught. It is submitted that in
her examination-in-chief, she does not say that the appellant had
committed wrong act with her.
27. In her cross-examination, the victim (PW-4) has
stated that the accused persons were not known to her. But this
statement of the victim is not believable for the reason that how
she could sit on the motorcycle with two boys who were not
known to her. This cannot be natural conduct of a victim who has
been found adult.
28. Learned counsel submits that in her examination-in-
chief, victim has stated that the boys were taking her on a different
route leaving the road. It is, thus, evident that the victim sat on the

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motorcycle with unknown persons and went to the second place of
occurrence without raising any hulla . She was suggested by the
defence that Chandan was known to her and she had old
relationship with him of visiting and moving around. The victim
denied this suggestion, but she has admitted in paragraph ‘35’ that
he is in the neighborhood of her house. It is submitted that the
victim tried her level best to deny her acquaintance with Chandan
in several paragraphs, but ultimately she admitted her
acquaintance with Chandan. It is, thus, submitted that the victim
has made vacillating statements and at one place, she has stated
that Govind had told her that he would drop her at her home. He
was driving the motorcycle in speed and was in drunken condition
and he had forcibly committed act with her. It is submitted that in
the present case, the victim cannot be put in the category of a
sterling witness. It is also pointed out that the vacillating statement
of the victim (PW-4) may be found from the fact that in her 164
CrPC statement, she has stated that five persons had taken her
away, but she did not know anyone earlier. Her 164 CrPC
statement has been marked Exhibit ‘P/4’.
29. Learned counsel submits that for convicting an
accused for the offence under Section 376D IPC, there must be
cogent and wholly reliable evidence before the court. The

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presumption of innocence is not lost in the present case. In a case
where the victim is not consistent, she is not disclosing the name
of the accused even though she is known to him and then she is
making statements to the effect that five persons had taken her
away but she did not know anyone, the incoherent and materially
inconsistent statement of the victim would not be fit to be relied
upon for the purpose of conviction.
Submissions on behalf of the State
30. The appeal has been opposed by learned Additional
Public Prosecutor for the State.
31. Learned Additional Public Prosecutor submits that
the victim (PW-4) is a wholly reliable witness. There may be some
minor inconsistencies in the statement of PW-4, but that would not
make her wholly unreliable.
32. It is submitted that the learned trial court has
concluded that it was Govind Singh who had committed rape upon
the victim. Golu Singh (the appellant) also wanted to do the same,
but in the meantime, a hulla took place. The learned trial court also
concluded that Chandan Singh had also come there with an
intention to commit rape, but he identified the victim, whereafter
there was a scuffle among three accused persons. The trial court
concluded that all three had assembled there with common

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intention. Chandan Kumar was caught by the villagers and was
taken to the police station with the victim.
Consideration
33. Having heard learned counsel for the appellant and
learned Additional Public Prosecutor for the State, as also on
perusal of the records of the learned trial court, we have found that
in the present case, the first place of occurrence is said to be a
lonely place. The victim had gone to get her photographed on
29.10.2016 at 10:00 o'clock during day hour and after getting
photographed, she was returning to her home. In her written
information, she has stated that when she reached near the pond,
then two boys came riding on a bike and they allured her to come
with them. They told her that they would leave her at her house.
The victim says that she came in their allurement and sat on the
vehicle. This is the first place of occurrence. We find the conduct
of the victim quite unnatural. It is not believable that the victim,
who has been found adult, would sit on a bike with two boys who
were not known to her. She would go to a lonely place where the
boys would come with the bike is another fact which creates doubt
in the prosecution story.
34. The written information was submitted to the SHO
of Koilwar Police Station, whereas the victim alleged that she was

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taken to Ramsahar orchard (Barhara) near a boring. At this place,
one more boy came and he was also trying to commit wrong act
with her. On this, she raised hulla and people assembled there.
Then the boys started fleeing away, but one boy was caught by the
villagers, who disclosed his name as Chandan Kumar and
disclosed the name of those two boys, who had fled away, as
Govind Singh and Golu Singh.
35. From the written information, it would appear that
Chandan Kumar is a resident of village Udaybhanpur in
Krishnanagar Police Station in the district of Bhojpur, whereas
Govind Singh and Golu Singh are residents of village Deorath
under Barhara Police Station. The villagers had given information
to Barhara Police and it was Barhara Police who had come and
taken away Chandan and the victim to the police station. There is
nothing on the record to show that statements were made by the
victim before Barhara Police. It has been withheld by the
prosecution. The written information has been signed on
29.10.2016, the occurrence took place at 13:00 Hrs., but the FIR
has been registered in Koilwar Police Station at 23:00 Hrs., i.e.
after 10 hours of the occurrence. The formal FIR does not show
the date of dispatch of the FIR to the learned jurisdictional court,
but from the endorsement made at the top of the written

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information “seen” by the learned Special Judge, it would appear
that it was seen by the learned Judge on 02.11.2016, i.e. after
almost five days of the occurrence. This is an inordinate delay in
sending the copy of the First Information Report to the learned
jurisdictional court. On this point, the judgment of the Hon’ble
Supreme Court in the case of Meharaj Singh (L/Nk.) vs. State of
U.P. reported in (1994) 5 SCC 188 and Chotkau vs. State of U.P.
reported in (2023) 6 SCC 742 would be important to take note of.
We reproduce the relevant paragraph from the judgment in the
case of Meharaj Singh (supra) hereunder:-
“ 12. FIR in a criminal case and particularly in a murder
case is a vital and valuable piece of evidence for the
purpose of appreciating the evidence led at the trial.
The object of insisting upon prompt lodging of the FIR
is to obtain the earliest information regarding the
circumstance in which the crime was committed,
including the names of the actual culprits and the parts
played by them, the weapons, if any, used, as also the
names of the eyewitnesses, if any. Delay in lodging the
FIR often results in embellishment, which is a creature
of an afterthought. On account of delay, the FIR not
only gets bereft of the advantage of spontaneity, danger
also creeps in of the introduction of a coloured version
or exaggerated story. With a view to determine whether
the FIR was lodged at the time it is alleged to have been
recorded, the courts generally look for certain external
checks. One of the checks is the receipt of the copy of
the FIR, called a special report in a murder case, by the
local Magistrate. If this report is received by the

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Magistrate late it can give rise to an inference that the
FIR was not lodged at the time it is alleged to have been
recorded, unless, of course the prosecution can offer a
satisfactory explanation for the delay in despatching or
receipt of the copy of the FIR by the local Magistrate.
Prosecution has led no evidence at all in this behalf. The
second external check equally important is the sending
of the copy of the FIR along with the dead body and its
reference in the inquest report. Even though the inquest
report, prepared under Section 174 CrPC, is aimed at
serving a statutory function, to lend credence to the
prosecution case, the details of the FIR and the gist of
statements recorded during inquest proceedings get
reflected in the report. The absence of those details is
indicative of the fact that the prosecution story was still
in an embryo state and had not been given any shape
and that the FIR came to be recorded later on after due
deliberations and consultations and was then ante-timed
to give it the colour of a promptly lodged FIR. In our
opinion, on account of the infirmities as noticed above,
the FIR has lost its value and authenticity and it appears
to us that the same has been ante-timed and had not
been recorded till the inquest proceedings were over at
the spot by PW-8.
”
Further, in the case of Chotkau (supra), the Hon’ble Supreme
Court has held in paragraph ‘69’ as under:-
“69. On the question of compliance of Section
157(1) along with logical reasoning for doing so,
the following passage from the decision in
8
Jafarudheen v. State of Kerala may be usefully
quoted as under : (SCC p. 462, paras 28-29)
8. (2022) 8 SCC 440 : (2022) 3 SCC (Cri) 436

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“ 28 . The jurisdictional Magistrate plays a pivotal
role during the investigation process. It is meant to
make the investigation just and fair. The
investigating officer is to keep the Magistrate in
the loop of his ongoing investigation. The object
is to avoid a possible foul play. The Magistrate has
a role to play under Section 159CrPC.
29 . The first information report in a criminal case
starts the process of investigation by letting the
criminal law into motion. It is certainly a vital and
valuable aspect of evidence to corroborate the oral
evidence. Therefore, it is imperative that such an
information is expected to reach the jurisdictional
Magistrate at the earliest point of time to avoid
any possible ante-dating or ante-timing leading to
the insertion of materials meant to convict the
accused contrary to the truth and on account of
such a delay may also not only get bereft of the
advantage of spontaneity, there is also a danger
creeping in by the introduction of a coloured
version, exaggerated account or concocted story
as a result of deliberation and consultation.
However, a mere delay by itself cannot be a sole
factor in rejecting the prosecution's case arrived at
after due investigation. Ultimately, it is for the
court concerned to take a call. Such a view is
expected to be taken after considering the relevant
materials. ”
36. The statement of the victim was recorded under
Section 164 CrPC on 09.11.2016. The same has been marked
Exhibit ‘4’. A perusal of the same would show that in her 164
CrPC statement, the victim did not mention the name of any of the

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accused persons. She made a statement that public had informed
the police, whereafter police had come and taken her to the police
station. She was sent to Mahila Thana from Koilwar Police
Station. The learned SDJM who recorded the statement asked her
as to how many persons were involved? The victim (PW-4) has
stated that five persons had taken her away, but she did not know
anyone out of them. It is evident that in her written information,
she says about two boys coming on a bike and taking her away on
a false pretext, but in her 164 CrPC statement, she says that five
persons were involved who had taken her away. This cannot be
said to be a minor discrepancy in the statement of the victim, as it
has potential to take away her credibility.
37. This Court finds that in course of trial, the learned
trial court found that the prosecution had not proved the age of the
victim being below 18 years, therefore, the charges framed under
the POCSO Act failed. The I.O. (PW-2 under Section 299 CrPC)
has named Shiv Kumar Rai and Kamlesh Paswan as independent
witnesses of this case, but the prosecution neither produced them
nor explained any reason for not producing them on behalf of the
prosecution.
38. It is further evident from the testimony of the victim
(PW-4) that at the police station, thana people had written the case

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and had got her signature thereon. She has admitted that there is no
witness to say that Chandan Kumar was seen taking her to the
boring. She has stated in paragraph ‘18’ of her deposition that she
had gone for photography to Kayamnagar, but she had not got her
photograph. This statement of the victim is in complete conflict
with her case in the fardbeyan . She did not disclose the name of
the studio where she had gone for photography. She could not
disclose the motorcycle number. She has stated that it takes half an
hour from Kayamnagar Market to reach her village, but she did not
know the direction in which it is situated. She has stated that she
had left for Kayamnagar Market at 11:00 AM and went to the
house of her friend and stayed there till 1:00 o’clock. She was
returning without getting photographed because the shop was
closed, but there was no one with her. She disclosed the name of
her friend with whom she stayed at her house and also disclosed
the name of the village of her friend, i.e. Birampur. It is evident
that the victim (PW-4) had left Birampur village for Kayamnagar,
but then she claimed to have stayed with her friend at Birampur
itself upto 01:00 o’clock. If it is so, then her statement in the
written information that she had reached Kayamnagar at 1:00
o’clock and after getting the photograph, she was returning home,
then the first occurrence took place, cannot be believed.

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39. This Court finds that the defence suggested this
witness (victim) that she was known to Chandan and she was
moving with him. The victim denied this suggestion. In paragraph
‘34’, she made a statement that she had not seen Chandan prior to
the occurrence, but in paragraph ‘35’ of her deposition, she has
stated that Chandan is not from the village of her maternal uncle,
he was in the neighborhood of her house. She has stated in
paragraph ‘41’ that only Govind had committed wrong act with
her, Golu had come and was about to force her, but he could not do
it because the villagers had come.
40. We have noticed that the doctor (PW-1 under Section
299 CrPC) has proved the medical report (Exhibit ‘P/5’). She has
stated that she had not found any external or internal injury on the
victim. According to the report, it was not clear whether rape is
done or not.
41. We have further noticed from the deposition of the
I.O. (PW-2 under Section 299 CrPC) that the I.O. has admitted
the delay in sending the FIR to the jurisdictional court. She has
admitted that she had not written for medical examination of the
accused after his arrest. She had not found any bed, straw or dari
lying at the place of occurrence. There was nothing
messy/scattered giving an impression that any occurrence had

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taken place. She has stated that she did not find any bike,
therefore, she had not seized the same. In paragraph ‘21’, she has
stated that she had sent the seized clothes to FSL, but she had
submitted the chargesheet without receiving the FSL report. She
had seen the clothes which were torn, there was no mark of semen
or blood. She has also stated that the witnesses whose statements
she had recorded were not eyewitnesses. She had copied the
statement of the victim under Section 164 Cr.P.C. in the case
diary. In her statement, the victim had not taken name of any of
the accused persons and their involvement in the occurrence. She
had not done any verification with regard to the age of the victim,
and the victim had not produced any document with regard to her
age. It is evident from the deposition of the I.O. that, in fact, she
had not collected any substantive piece of evidence connecting
the accused-appellant in the commission of crime.
42. So far as PW-1, who is mother of the victim, is
concerned, her testimony is based on the information said to have
been given by the victim to her mother. The father of the victim
has not supported the prosecution case, as he was in Chandigarh at
the time of occurrence, he has been declared hostile. Similarly, the
uncle (PW-3) of the victim did not know anything about the
occurrence. Thus, the whole prosecution case depends upon the

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sole testimony of the victim (PW-4), which has to be analysed
keeping in view the testimony of the doctor (PW-1 under Section
299 CrPC) and the I.O. (PW-2 under Section 299 CrPC). It is well
settled that the quality of the evidence matters, not the quantity.
Conviction may take place even on the basis of a sole testimony of
the victim, provided he/she falls in the category of a sterling
witness and is found wholly reliable. Who will be a sterling
witness has been discussed by Hon’ble Supreme Court in the case
of Rai Sandeep @ Deepu vs. State (NCT of Delhi) reported in
(2012) 8 SCC 21 . The relevant paragraph no. ‘22’ is quoted
hereunder for a ready reference:-
“22. In our considered opinion, The "sterling witness" should be
of a very high quality and caliber 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

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chain of circumstances to old the accused guilty of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other such similar tests to
be applied, can it be held that such a witness can be called as a
"sterling witness" whose version can be accepted by the court
without any corroboration and based on which the guilty can be
punished. To be more precise, the version of the said witness
on the core spectrum of 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. ”
43. We have analysed the evidence of the victim (PW-4)
hereinabove and come to the conclusion that in the kind of
evidence adduced in this case, the victim being highly inconsistent
to the extent of contradicting her own statements, she cannot be
put in the category of a sterling witness. It would, thus, not be safe
to convict the appellant on the sole testimony of the victim (PW-4)
in the present case.
44. Presumption of innocence is a human right, though
the exception may be created by statutory provisions. But even
such statutory presumption of guilt of the accused under a
particular statute must meet the tests of reasonableness and liberty
enshrined in Articles 14 and 21 of the Constitution. Reference in
this regard may be made to the judgment of Hon’ble Supreme
Court in the case of Babu Vs. State of Kerala reported in (2010)
9 SCC 189 .
45. While dealing with a case under Section 29 of the
POCSO Act, the Hon’ble Gauhati High Court in Latu Das Vs.

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State of Assam reported in 2019 SCC OnLine Gau 5947 has also
held that the presumption does not absolve the prosecution of its
usual burden to prove the guilt of the accused beyond all
reasonable doubts. It only lessens its burden to some extent and
put a corresponding burden on the accused. Initial burden in a
criminal case is always on the prosecution to bring on record
reasonable evidence and materials to prove that the accusation
against the accused is true.
46. In the case of Ramanand vs. State of U.P. reported
in AIR 2022 (SC) 5273 , the Hon’ble Supreme Court has held that
presumption of innocence is not lost in case of serious offences.
The relevant paragraph of the judgment in the case of Ramanand
(supra) is quoted hereunder for a ready reference:-
“ 99 . It is sufficient if the accused person succeeds in
proving a preponderance of probability in favour of his
case. It is not necessary for the accused person to prove his
case beyond a reasonable doubt or in default to incur a
verdict of guilty. The onus of proof lying upon the accused
person is to prove his case by a preponderance of
nd
probability. In American Jurisprudence, 2 Edn., Vol. 30,
the expression “preponderance of evidence” has been
defined in Article 1164. In America the term means “the
weight, credit and value of the aggregate evidence on either
side, and is usually considered to be synonymous with the
term greater weight of the evidence”, or “greater weight of
the credible evidence”. It is a phrase which, in the last
analysis, means probability of the truth. To be satisfied,
certain, or convinced is a much higher test than the test of
“preponderance of evidence”. The phrase “preponderance
of probability” appears to have been taken from Charles R.
Cooper v. F.W. Slade Charles R. Cooper v. F.W. Slade,
(1857-59) 6 HLC 746. The observations made therein make
it clear that what “preponderance of probability” means

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“more probable and rational view of the case”, not
necessarily as certain as the pleading should be.
101 . The inalienable interface of presumption of innocence
and the burden of proof in a criminal case on the
prosecution has been succinctly expounded in the following
th
passage from the treatise The Law of Evidence, 5 Edn. by
Ian Dennis at p. 445:
“The presumption of innocence states that a person is
presumed to be innocent until proven guilty. In one sense
this simply restates in different language the rule that the
burden of proof in a criminal case is on the prosecution to
prove the defendant’s guilt. As explained above, the burden
of proof rule has a number of functions, one of which is to
provide a rule of decision for the fact-finder in a situation of
uncertainty. Another function is to allocate the risk of mis-
decision in criminal trials. Because the outcome of
wrongful conviction is regarded as a significantly worse
harm than wrongful acquittal the rule is constructed so as to
minimise the risk of the former. The burden of overcoming
a presumption that the defendant is innocent therefore
requires the State to prove the defendant's guilt.”
47. In result, the impugned judgment and order of the
learned trial court are set aside. The appellant is acquitted of the
charges giving benefit of doubt. The appellant is in jail, he shall be
released forthwith if not wanted in any other case.
48. Let a copy of the judgment together with the trial
court records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
(Sunil Dutta Mishra, J)
Rishi/-
AFR/NAFR
CAV DATE
Uploading Date 02.09.2026
Transmission Date 02.09..2026