DR. ISTEYAK AHMAD KHAN vs The State of Bihar
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.840 of 2023
Arising Out of PS. Case No.-269 Year-2017 Thana- PUPRI District- Sitamarhi
======================================================
Dr. Isteyak Ahmad Khan S/O Atik Ahmad @ Md. Atique Ahmad, Village-
Rudauli PS- Bajpatti Dist- Sitamarhi
... ... Appellant/s
Versus
1. The State of Bihar
2. XXXXXXXXXX (Informant)
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ashhar Mustafa, Advocate
Mrs. Chitrangada Mustafa, Advocate
Ms. Anita Kumari, Advocate
Mr. Kumar Shubham, Advocate
For the State : Mr. Dilip Kumar Sinha,, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA)
Date : 25-08-2026
Heard learned counsel for the appellant and learned
Additional Public Prosecutor for the State.
2. Despite sufficient opportunity given to learned
counsel for the informant/O.P. No.2, he has not appeared to
contest this appeal.
3. The present criminal appeal has been preferred
against the judgment of conviction dated 18.03.2023
(hereinafter referred to as the ‘impugned judgment’) and the
order of sentence dated 31.03.2023 (hereinafter referred to as
the ‘impugned order’) passed by learned Additional Sessions
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Judge VI-cum-Special Judge, POCSO Act, Sitamarhi in
Sessions Trial No.36 of 2019 arising out of Pupri P.S. Case
No.269 of 2017 whereby the present appellant has been
convicted for the offence punishable under Section 376-D and
366-A of I.P.C. and Sections 4, 6 and 10 of POCSO Act and
sentenced him to undergo rigorous imprisonment for 20 years
under Section 6 of POCSO Act and fine of Rs.5,000/-, rigorous
imprisonment for 5 years and fine of Rs.5,000/- under Section
10 of POCSO Act with further direction that all the sentences
shall run concurrently. In default of payment of fine, he has to
undergo one year imprisonment under Section 6 of POCSO Act,
three months under Section 10 of POCSO Act. It is directed that
amount of fine shall be paid to the victim.
4. The learned trial court did not award sentence
under Section 376-D of I.P.C. as per provision of Section 42 of
POCSO Act. Compensation of Rs.7,00,000 (seven lakhs)
recommended for victim.
5. The name of victim and her parents has been
concealed in the present judgment for maintaining privacy of
victim’s identity to protect her dignity.
Prosecution story
6. The prosecution case, in brief, is that the
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informant/victim (PW-2) aged about 17 years recorded her
fardbeyan recorded by S.I., Arunjay Kumar (PW-7) of Pupri P.S.
on 07.09.2017 at about 2:00 p.m. at the residence-cum-clinic of
appellant and Safia Khanan at the house of Abbass Ansari at
Pupri. It is claimed by the victim that she had appeared in
matriculation examination and she was residing at her maternal
house in village Dhakapuri, Motihari where she met Md.
Mumtaz (co-convict) who on the pretext of marriage took her
away to Kolkata and other several places and lastly he brought
her in the rented house-cum-clinic of appellant (Dr. Isteyak
Ahmad Khan) where she was kept in a room for 20 days during
which he made physical relation with her. It is further alleged
that Md. Mumtaz and appellant had known to each other since
earlier. The appellant and his younger brother co-accused Md.
Ismail were also making physical relation with her in absence of
each other.
7. On the basis of the aforesaid fardbeyan of
victim, Pupri P.S. Case No.269 of 2007 was registered on
07.09.2017 under Section 376(g) of I.P.C. and under Sections 4,
8, 6, 10 of POCSO Act. After completion of investigation,
police submitted charge sheet under Sections 366-A, 372/511,
376(g), 323/34 of I.P.C. and Sections 4, 6, 8, 10 of POCSO Act
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against all F.I.R. named accused persons. Subsequently, the
learned trial court took cognizance of the offences under the
aforesaid provisions vide order dated 29.05.2018. Thereafter, on
29.01.2019 the learned trial court framed charges under Sections
376D, 372/511, 323/34 of I.P.C. and under Sections 4, 6L and 10
of POCSO Act against the appellant and co-accused Md.
Mumtaz. Further charge was also framed under Section 366-A
of I.P.C. against co-accused Mumtaz. The charges were
explained to the accused in Hindi who denied the charges and
claimed to be tried.
8. The case record of accused Ismail was sent to
Juvenile Justice Board, Sitamarhi.
9. To substantiate the charges levelled against the
accused/appellant, the prosecution has examined altogether
seven witnesses. The complete description of the prosecution
witnesses whose oral testimonies have been recorded by the
learned trial court and the documentary evidences proved on
behalf of the prosecution are provided hereunder in tabular form
for ready reference:-
List of prosecution witnesses
PW-1 Father of informant/victim
PW-2 Informant/victim
PW-3 Dr. Arun Kumar Sharma (Member of Medical
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Board)
PW-4 Dr. Sudha Jha (Member of Medical Board)
PW-5 Dr. Shakeel Anjum (Member of Medical
Board)
PW-6 Meera Kumari (Sub Inspector, who recorded
the statement of victim u/s 161 Cr.P.C.)
PW-7 S.I. Arunjay Kumar (I.O.)
List of Exhibits
Exhibit-1 Signature of victim’s father (PW-1) on statement
u/s 164 Cr.P.C.
Exhibit-1/1 Signature of informant/victim (PW-2) on the
fardbeyan
Exhibit-1/2 Signature of informant/victim (PW-2) on
statement recorded u/s 164 Cr.P.C.
Exhibit-2 Medical Report of the informant/victim
Exhibit-2/1 Signature of Dr. Arun Kumar Sharma (PW-3) on
medical report of the informant/victim
Exhibit-2/2 Signature of Dr. S. Anjum (PW-5) on medical
report of the informant/victim
Exhibit-2/3 Signature of Dr. Sudha Jha (PW-4) on medical
report of the informant/victim
Exhibit-3 Endorsement of the I.O. (PW-7) on fardbeyan
10. Thereafter, the statement of appellant was
recorded under Section 313 of the Cr.P.C. The appellant denied
the correctness of the incriminating circumstances against him
and came out with a plea that he is innocent.
11. The defence has not adduced any evidence
either oral or documentary.
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Findings of the learned trial court
12. The learned trial court found that the evidence of
victim is consistent, cogent and trustworthy and the evidence of
PW-1, father of victim, is also in corroboration of evidence of
victim. Learned trial court found that the evidence of doctors as
PW-3, PW-4, PW-5 and Exhibit 2 i.e. medical report are
corroborative to the evidence of PW-2 (victim) and PW-1
(father of victim). The age of the victim was verified by the I.O.
from the school certificate, as per which the victim was found to
be minor. There is no evidence on behalf of the defence and the
testimony of prosecution witnesses has not been rebutted by the
defence. So the provision of Section 29 of POCSO Act shall be
applicable.
13. Analysing all the evidences available on record,
the learned trial court held the appellant and co-accused
Mumtaz guilty, accordingly, convicted them under Sections 376-
D, 366-A of I.P.C. and under Sections 4, 6 and 10 of POCSO
Act and sentenced them as aforesaid. Being aggrieved by the
judgment of conviction and order of sentence, the present appeal
has been preferred by the appellant Dr. Ishteyak Ahmad Khan.
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Submissions on behalf of the appellant
14. Learned counsel appearing on behalf of the
appellant assailing the impugned judgment and order of the
learned trial court submits that the appellant has been falsely
implicated in this case. It is submitted that the evidence of the
victim is absolutely weak, full of contradictions and not reliable.
Learned counsel has pointed out that the victim in her statement
at paras 7 and 8 had deposed that she got down from bus near
Pupri Police Station and she along with co-accused Md. Ismail
(brother of appellant) visited Pupri Police Station where her
statement was recorded on which Md. Ismail also put his
signature but the said fardbeyan of the victim, bearing signature
of co-accused Md. Ismail, has been withheld by the prosecution
suppressing the first and original version of the occurrence. He
submits that the fardbeyan of the victim indicates that it was
recorded at the place of occurrence which contradicts the
prosecution’s case. It is further submitted that as per the
fardbeyan , Bharti Devi, who was also present along with the
author of the fardbeyan , was not examined in this case. Learned
counsel also submits that the manner of registration of F.I.R.,
the place where written petition/ fardbeyan was recorded and
non-examination of Bharti Devi has indeed prejudiced the case
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of appellant inasmuch as he has been deprived of putting
questions to her on the manner and place of registration of the
F.I.R. It is further submitted that the prosecution story is highly
improbable as the victim in para 2 of her deposition has stated
that she stayed at Kolkata with Md. Mumtaz for twenty days
and during that period Md. Mumtaz kept her hostage and
repeatedly raped her after administering medicine to her.
However, in para 6 of her deposition her statement is completely
different, she has stated that she had gone to river side for fun at
Kolkata with Md. Mumtaz, who bought clothes and took her to
restaurants. She further stated that she had no complaint with
him at Kolkata. It is further pointed out by the learned counsel
that in para 9 of her cross- examination, the victim admitted that
she was saved from Mumtaz due to Md. Ismail. She further
admitted that she was wise and educated, and had gone herself
with Mumtaz to visit big cities.
15. Learned counsel for the appellant further submits
that I.O. has violated the mandate of Section 164-A of Cr.P.C. as
the victim was medically examined in the present case after an
unjustified delay of six days which caused grave prejudice to the
appellant. Moreover, there is also violation of the mandate
contemplated under Section 53-A of the Cr.P.C., as the appellant
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was also not subjected to medical examination. It is submitted
that so far as the deposition of PW-1 (father of victim) is
concerned, it is at complete variance from deposition of his
daughter. Contrary to his daughter, he stated that his daughter
was abducted by five named persons including the appellant.
PW-1 contradicted his daughter by stating that she remained
missing for 10-15 days when the victim herself deposed that she
remained at Kolkata and Pupri for around 35-40 days before
being rescued from the custody of Md. Mumtaz. It is also
submitted that the father of the victim (PW-1) did not lodge any
F.I.R. anywhere after getting information of the occurrence
without any cogent reason, which also creates doubt in the
prosecution’s story.
16. Learned counsel for the appellant submits that the
victim was not minor at the time of alleged occurrence. In the
F.I.R., the victim stated that she had already appeared in the
matric examination, however, in her deposition, it has come that
she has studied only up to Class-V. The prosecution has
miserably failed to prove the age of the victim which is a
necessary pre-requisite to establish a charge under the POCSO
Act. It is further submitted that even as per the medical report,
the age of the victim has been assessed as 16-17 years, and in
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view of the law settled by the hon’ble Supreme Court in Jaya
Mala v. Home Secretary, Government of Jammu & Kashmir
and Ors. , reported in (1982) 2 SCC 538 and other catena of
cases, a variation of two years on either side cannot be ruled out.
Hence, the rigors of POCSO Act is not attracted in the present
circumstance. Reliance has been placed on the judgment of the
Hon’ble Delhi High Court in the case of Court on its own
Motion versus State of NCT of Delhi (Crl. Ref. 2/2024
judgment dated 02.07.2024) reported in 2024 SC OnLine
Delhi 4484 which has been followed by this court in the case of
Sartaj Alam @ Md. Sartaj Alam vs. The State of Bihar and
Anr. reported in 2025 (5) BLJ 483 .
17. Learned counsel for the appellant submits that the
I.O. has stated about the place of occurrence in para 3 of his
deposition which shows that the victim was not kept at some
isolated place rather she mostly stayed in the room attached to
the verandah of the rented house-cum-clinic of the appellant. It
does not inspire confidence the place which marks continued
visit of patients would be used for commission of rape by
several accused persons including the appellant. Thus, the
description of place of occurrence exposes the falsity of the
present case. It is further submitted that neither the landlord
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nor any of the neighbours came forward to support the
prosecution case. Thus, there is no evidence at all that the victim
was kept hostage and physically abused for over 20 days at the
residence-cum-clinic of the appellant. Learned counsel submits
that no injury, external or internal, including on the private parts
was found on the person of the victim, and the doctor also
opined in her medical report (Exhibit- 2) that it was very
difficult to say whether rape had occurred or not, as such, the
opinion of the examining doctor is also not consistent with the
prosecution’s case. It is submitted that these material
contradictions, omissions and admissions creates serious doubt
about the veracity of the testimony of the victim, and the
prosecution has failed to corroborate the case beyond reasonable
doubt, thereby making the impugned judgment bad and
unsustainable in the eyes of law.
Submission on behalf of the State
18. Learned Additional Public Prosecutor for the
State while opposing the appeal submits that the prosecution has
successfully established the charges by leading consistent and
reliable evidence, and the presumption under Section 29 of the
POCSO Act operates against the appellant. He submits that the
appellant has failed to discharge the burden to prove the
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contrary. Learned APP further submits that the learned trial
court has properly analysed the evidences of the prosecution
witnesses and rightly convicted the appellant for the offences.
Learned Additional Public Prosecutor for the State submits that
the impugned judgment needs no interference.
Consideration
19. Having heard learned counsel for the appellant
and learned Additional Public Prosecutor for the State as also
on perusal of the trial court records, we have found that in this
case the F.I.R. has been registered on the basis of fardbeyan of
the victim who has been examined as PW-2. The fardbeyan of
the victim was recorded on 07.09.2017 at about 2:00 p.m. at the
residence-cum-clinic of appellant and Safia Khanam at the
house of Abbass Ansari at Pupri. It is claimed by the victim that
she had appeared in matriculation examination and she was
residing at her maternal house in village Dhakapuri, Motihari
where she met Md. Mumtaz (co-convict) who on the pretext of
marriage took her away to Kolkata and other several places and
lastly he brought her in the rented house-cum-clinic of appellant
(Dr. Isteyak Ahmad Khan) where she was kept in a room for 20
days during which he made physical relation with her. It is
further alleged that Md. Mumtaz and appellant had known to
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each other since earlier. The appellant and his younger brother
co-accused Md. Ismail were also making physical relation with
her in absence of each other.
20. To examine the correctness of the finding, we
will first assess the testimonies adduced by the prosecution.
PW-1 is the father of the victim, PW-2 is the
informant/victim, PW-3 is Dr. Arun Kumar Sharma, PW.4 is Dr.
Sudha Jha, PW-5 is Dr. Shakeel Anjum, PW-6 is Meera Kumari
(Sub Inspector) who recorded the statement of the victim under
Section 161 of the Cr.P.C. and PW-7 is Arunjay Kumar (I.O.) of
the case.
21. Firstly, we would like to consider the evidence
of PW-2, who is the informant/victim of this case. She has
deposed in her examination-in-chief that she had got a written
application prepared and submitted to Bajpatti Police Station.
After reading the written application and finding it correct, she
put her signature on it which has been marked as Exhibit 1/1 on
her identification. She also identified her signature on the
statement recorded under Section 164 Cr.P.C. which has been
marked as Exhibit 1/2. She deposed that the incident occurred
two years ago. At the time of the incident, she was residing at
Dhaka Motihari. Md. Mumtaz enticed her on the pretext of
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marriage and took her to Patna, and from there took her to
Kolkata. She further deposed that she stayed in Kolkata for 20
days. Md. Mumtaz used to administer medicines to her, make
her intoxicated/unconscious, and keep her confined. He also
used to rape her repeatedly. The victim has deposed that after 20
days, Md. Mumtaz brought her back to Pupri. At Pupri, he kept
her at the house of Abbas Ansari. There, Md. Mumtaz got her to
meet Dr. R.A. Khan and Md. Ismail and at that place, Md.
Mumtaz, Dr. A.R. Khan and Md. Ismail, all three, raped her.
Thereafter, when the three of them started taking her to Nepal
for the purpose of selling her, she somehow escaped and
returned to Pupri. After that, she got a case written at Pupri
Police Station and submitted the same to the Daroga (Sub-
Inspector). The police registered her case and recorded her
statement. She further deposed that her medical examination
was conducted at Sitamarhi Sadar Hospital. Her statement under
Section 164 Cr.P.C. was also recorded by the Court. This
witness identified the accused persons Md. Mumtaz and Dr.
R.A. Khan, who were present in the Court, upon seeing them.
In her cross-examination, she deposed that she stayed in
Pupri for 20 days with Md. Mumtaz. She had first met Md.
Mumtaz at Motihari at her aunt's place. She used to live at her
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aunt's place at Chhatauni Chowk. She was introduced to Md.
Mumtaz by her aunt. Md. Mumtaz was living as a tenant in her
aunt's house. Md. Mumtaz used to talk to her. She deposed that
she had no complaint regarding Md. Mumtaz talking to her. In
para 4 of her cross-examination, she deposed that in Calcutta,
she went for a walk with him along the riverside. Md. Mumtaz
also bought her clothes there, and they also ate food at a hotel.
She had no complaint against him there. In her cross-
examination, she further deposed that she was going from bus to
Nepal. There were other passengers in the bus. She got down
from the bus near Pupri Police Station. She had gone to Pupri
Police Station with Md. Ismail. Md. Ismail is Mumtaz's brother.
She was taken to the police station. Her statement was recorded
at the police station itself. Md. Ismail had also put his signature
on her statement. Ismail went to the police station with her. She
further deposed that her statement was read over to her in the
presence of the Investigating Officer then she had put her
signature on it. In her cross-examination, she deposed that on
account of Md. Ismail, she escaped from Md. Mumtaz’s
clutches.
22. PW-1 (father of the victim) has deposed that the
incident occurred one and a half years ago. He received
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information from his in-laws in Motihari, Dhaka about
kidnapping of his daughter aged about 14 years by Md.
Mumtaz, Isteyak, Ismail, Ibrahim and Mahboob. When he
arrived his matrimonial house at Dhaka, he enquired there and
from his neighbour came to know that his daughter was
kidnapped by Md. Ibrahim. After 10-15 days, he came to know
that his daughter was kept at Pupri in Md. Abbas’s house by all
five accused persons and they all used to commit rape with her.
When he reached to the house of accused Abbas at Pupri and
requested Ashia Khatoon wife of accused Isteyak Ahmad to
return his daughter, all accused persons assaulted him and drove
him away and did not return his daughter. Thereafter PW-1
returned to his village Bhakurahar. At about 5 p.m., when he
received information from Bairgania Police Station that his
daughter had been recovered from Pupri, he went Pupri Police
Station where he identified his daughter. Then again he was
called by Bairgania Police Station after 3-4 days and his
statement was recorded under Section 164 of Cr.P.C. and he put
his signature on it which was marked as Exhibit 1 on his
identification and the victim’s statement was also recorded
under Section 164 of Cr.P.C.
In his cross-examination, he has admitted that he did not
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give information about his daughter’s disappearance to any
police station or to the S.P. In para 9, he has stated that his
daughter had remained missing for 10–15 days. His daughter
th
studied up to 5 Class. The victim is presently 19 years old. She
studied at the upper primary school at Bhakurahar. Moreover, in
para 12 he stated that he did not remember the date of receiving
information about kidnapping of his daughter. He has further
stated that he got information about recovery of his daughter
after 10-15 days of returning from Dhaka but he did not
remember the name of the person who informed him.
23. The Investigating Officer, namely, PW-7,
Arunjay Kumar, and the officer who recorded the statement of
the victim under Section 161 of the Cr.P.C., namely, PW-6,
Meera Kumari have been examined on behalf of the
prosecution. PW-7, Arunjay Kumar, Investigating Officer,
deposed in his examination-in-chief that on 07.09.2017, he was
posted as Police Sub-Inspector at Pupri Police Station and on
the basis of the fardbeyan , Pupri P.S. Case No.269 of 2017 dated
07.09.2017 was registered under Section 376-G of the IPC and
Sections 4, 6, 8 and 10 of the POCSO Act, and he himself took
up the investigation. He identified the page of the fardbeyan
bearing his handwriting and signature, which was marked as
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Exhibit-3. After taking over the investigation, he deposed that
the three named accused, namely, Mohammad Mumtaz, Dr.
Isteyak Ahmad Khan (appellant herein) and Mohammad Ismail,
were duly arrested following the prescribed procedure.
Thereafter, he proceeded to the place of occurrence and
inspected the same. He stated that the place of occurrence was
situated within Pupri Police Station, in the ground-floor
veranda -like clinic premises of the one-storied pucca house of
Mohammad Abbas Ansari. There was a room and a camera
installed at the corner of the premises. He further stated that
according to the victim, the F.I.R.-named accused had
committed rape upon her while she was sleeping on the bed in
the said room and, sometimes, on the iron cot/bed placed in the
veranda . The occurrence was stated to have taken place mostly
during the night and sometimes during the day. The main
entrance of the house was a west-facing grill door. He deposed
that thereafter, he recorded the statements of witnesses. Before
being taken to the court, the statement of the victim under
Section 161 Cr.P.C. was recorded at the Women Police Station
by Women Police Sub-Inspector Meera Kumari (PW-6). He next
deposed that the victim was taken to Alpaawas Grih , Sheohar.
The statement of victim under Section 164 Cr.P.C. was
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recorded. Thereafter, the victim was taken to Sadar Hospital,
Sitamarhi, for her medical examination. He further stated that
the birth-related documents of the victim was obtained from the
concerned primary school along with her Transfer Certificate,
wherein her date of birth was recorded as 15.05.2006. PW-7
deposed that keeping further investigation pending in respect of
F.I.R.-named accused Dr. Safia Khanam, he stated that, finding
the allegations to be true against the F.I.R.-named accused,
namely, (1) Mohammad Mumtaz, (2) Dr. Isteyak Ahmad Khan
and (3) Mohammad Ismail, charge-sheet No. 250 of 2017 dated
30.11.2017 was submitted under Sections 366(1), 372/511,
376(2) and 373/34 of the Indian Penal Code and Sections 4, 6, 8
and 10 of the POCSO Act.
In his cross-examination, PW-7 admitted that during
investigation he did not verify the ownership/title of the house
of Mohammad Abbas Ansari, where the place of occurrence was
situated, nor did he mention in the case diary any verification
regarding the tenancy. He also admitted that he did not record
the statements of the persons named in the boundaries of the
place of occurrence, stating that no other witness was present
there at that time. He further admitted that the clothes worn by
the victim were not taken into possession by him or by his
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superior officer for examination. No clothes or bedding were
seized from the place of occurrence. He also admitted that he
had not mentioned in the case diary the manner in which the
birth-related documents/Transfer Certificate of the victim had
been obtained. He denied the suggestion that his investigation
was defective or that the investigation conducted by him was
not in accordance with law.
24. PW-6, Meera Kumari, Sub-Inspector, narrated
the statement of the victim recorded by her under Section 161 of
the Cr.P.C.
Medical Evidence
25. PW-4, Dr. Sudha Jha, deposed in her
examination-in-chief that on 12.09.2017, she was posted as
Medical Officer at Sadar Hospital, Sitamarhi. On the said date, a
Medical Board was constituted by the Civil Surgeon, Sadar
Hospital, Sitamarhi, comprising herself, Dr. S. Anjum (PW-5)
and Dr. Arun Kumar Sharma (PW-3), for examination of the
victim girl. She stated that the victim was examined at 10:30
A.M. on 13.09.2017 and found following findings:
“ Height 4 feet 8 inches, weight 42 kg, teeth 14 by
14 with space
M.I.-
1. Two til of chest right side.
Clothes- Intact
Patient conscious, cooperative well oriented to
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time and place. No external injury. Axillary hair
present. Breasts developed, patient carry lady
constable Rinki No. 305, Mahila Thana. LMP 4
days back. Her age of menarche- 3 years back as
told by patient.
Examination of private part-
Pubic hair present, Hymen Ruptured.
Vagina-Admit two finger easily no foreign material
abnormal secretion found not in or around Private
parts. Uterus Normal size.
Pregnancy test- Negative.
USG- lower abdomen show normal uterus dated
18.09.2017.
Vagina Swab, Report as given by Pathologist Dr. S.
Anjum show Epithelial Cells a few others nil
Spermatozoa Absent.
X-ray reports as given by radiologist Sadar
Hospital, Sitamarhi
X-ray plat no. 783 done on 13.09.2017 shows:-
1. X-ray plevis- both iliac, crest appeared
but not fused.
2. X-ray wrist- distal end of radius and ulna
almost fused.
3. X-ray elbow- both epicondyles of
humerus, olecranon of ulna and head of radius
fused.
Concluding all above facts her age is between 16-
17 years and it is very difficult to say whether rape
has occurred or not.
All report is prepared by me and Dr. Sakeel Anjum
and Sign by all the members of medical
board(Exhibit-2). ”
In her cross-examination, PW-4 stated that throughout the
report no bodily or internal injury of any kind was found and
there was also no internal injury in the private parts.
26. PW-3, Dr. Arun Kumar Sharma and PW-5, Dr.
Shakeel Anjum, who were posted as Medical Officer at Sadar
Patna High Court CR. APP (DB) No.840 of 2023 dt.25-08-2026
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Hospital, Sitamarhi, deposed that they were the members of the
Medical Board for medical examination of the victim girl and
preparation of her medical report.
27. Before considering the effect of the statutory
presumption under Section 29 of the POCSO Act, it is necessary
to examine whether the prosecution has succeeded in
establishing the foundational facts constituting the alleged
offence against the appellant. Section 29 of the POCSO Act
does not dispense with the initial burden of the prosecution to
establish the basic facts constituting the offence. It is pertinent
to mention that foundational facts in a POCSO case includes the
proof that the victim is a child, that the alleged incident has
taken place, that the accused has committed the offence and
when physical injury is caused, to establish it with medical
evidence. The presumption contemplated under the provision
comes into operation only after the prosecution has established
the foundational facts in the context of the particular allegation
against the accused. If the basic and foundational facts of the
prosecution’s case is laid by adducing legally admissible
evidence then the burden get shifted to the accused to rebut it by
establishing from the evidence on record that he has not
committed the offence or that no such incident was occurred or
Patna High Court CR. APP (DB) No.840 of 2023 dt.25-08-2026
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that the victim is not a minor. Thus, the statutory presumption
cannot be invoked merely because the accused has been charged
under the POCSO Act.
28. In the present case, the prosecution was
required, in the first instance, to establish by reliable and cogent
evidence that the victim was a child and, more importantly, that
the appellant was the person who had committed the penetrative
sexual assault alleged against him. Unless these foundational
facts are established, the burden cannot be shifted upon the
appellant by invoking Section 29 of the POCSO Act.
29. In the present case, the learned trial court has
found that out of seven witnesses examined on behalf of the
prosecution, PW-1 and PW-2 are material witnesses. PW-2 is
the victim/informant and PW-1 is her father. The law is well
settled that even the sole testimony of the victim is sufficient for
holding the accused guilty if the evidence of the victim is
trustworthy and creates confidence in the mind of the Court. For
solely basing the judgment on the evidence of the victim, the
nature of the evidence of the victim must be of a sterling quality.
The Hon’ble Supreme Court has explained the term “sterling
witness” in the case of Rai Sandeep v. State (NCT of Delhi),
reported in (2012) 8 SCC 21, which is being reproduced below
Patna High Court CR. APP (DB) No.840 of 2023 dt.25-08-2026
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for 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 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
Patna High Court CR. APP (DB) No.840 of 2023 dt.25-08-2026
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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. ”
30. On examination of the evidence of PW-2, who
is the victim and the principal witness, it appears that her
testimony does not inspire such degree of confidence as would
establish the foundational facts against the appellant. The
version given by her before the learned trial court contains
material particulars which are conspicuously absent from her
earlier version, including her statement recorded under Section
164 of he Cr.P.C. and the Investigating Officer (PW-7) himself
admitted in cross-examination that the fardbeyan recorded by
him did not contain the allegation that Md. Mumtaz had first
taken her to Patna, nor did it contain the allegation that he had
administered medicines to her, kept her confined and thereafter
subjected her to repeated rape. These omissions assume
significance because they relate to the manner in which the
prosecution alleges that the victim was taken away and kept
under control. Her deposition also contains circumstances which
Patna High Court CR. APP (DB) No.840 of 2023 dt.25-08-2026
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require cautious scrutiny, particularly her statement that in
Kolkata she went for a walk with Md. Mumtaz along the
riverside, that he purchased clothes for her and that they ate
food at a hotel and that she had no complaint against him there.
She further stated that she travelled in a bus towards Nepal with
other passengers, got down near Pupri Police Station and came
to the police station with Md. Ismail. These aspects, particularly
when read with material omissions proved through the
Investigating Officer (PW-7), create a substantial doubt
regarding the consistency and reliability of her version. Thus,
although PW-2 is the victim and her evidence deserves due
consideration, her testimony in the present case does not attain
the degree of consistency, coherence and intrinsic reliability
required to characterize it as evidence of sterling quality so a to
safely sustain the conviction of the present appellant in the
absence dependable corroborative circumstances. Therefore,
these circumstances, coupled with the material omissions
admitted by the Investigating Officer (PW-7), render the
prosecution version insufficiently consistent to constitute the
foundational facts necessary for attracting Section 29 against the
appellant.
31. Moreover, the evidence of PW-1, the father of
Patna High Court CR. APP (DB) No.840 of 2023 dt.25-08-2026
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the victim, does also not materially cure the aforesaid
deficiencies. He was not an eyewitness to the alleged sexual
assault and his knowledge regarding the alleged kidnapping and
subsequent events was derived from information received from
his matrimonial house and other persons. He admitted that,
despite learning about his daughter’s disappearance, he did not
initially report the matter. He further admitted that when he
went to the house of Abbas at Pupri in search of his daughter, he
did not find her there. Thus, his evidence cannot constitute
independent proof of the alleged acts of sexual assault by the
appellant.
32. The medical evidence also does not provide the
necessary corroborative foundation for invoking the statutory
presumption. PW-4, Dr. Sudha Jha, found no external injury and
specifically stated in her cross-examination that no bodily or
internal injury was found and that there was no internal injury in
the private parts of the victim. Although the hymen was found
ruptured, the pregnancy test was negative, the vaginal swab
disclosed no spermatozoa and, significantly, the Medical Board
concluded that, on consideration of the entire material, it was
very difficult to say whether rape had occurred or not. PW-5
merely expressed his agreement with the findings of the Board,
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while PW-3 stated that although he was a member of the
Medical Board, he had not given any independent opinion and
had merely put his signature on the report. Consequently, the
medical evidence does not affirmatively establish the occurrence
of rape or penetrative sexual assault by the appellant.
33. Now, it is significant to mention that in a case
pertaining to the POCSO Act, it needs no reiteration that it is
imperative to establish the age of the victim and thereby her
minority. The age of victim has an extremely crucial bearing in
such cases. The age of victim has to be determined on the basis
of settled statutory criteria. Section 94 of the Juvenile Justice
(Care and Protection of Children) Act, 2015 (in short, ‘J.J. Act’)
provides for determination of the age of the child in conflict
with law and child in need of care and protection. The law is
well settled that method to determine the age of juvenile is also
applicable to the determination of the age of the victim. [ See :
Jarnail Singh v. State of Haryana reported in (2013) 7 SCC
263 ]. The aim of the Court of facts is to come to a firm
conclusion about the minority of the victim. Like all other
issues, the determination of the age of victim must necessarily
proved by cogent evidence needed in a criminal trial.
34. The age of victim has to be ascertained keeping
Patna High Court CR. APP (DB) No.840 of 2023 dt.25-08-2026
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in view the scheme of Section 94 of the J.J. Act. We reproduce
Section 94 of the J.J. Act hereunder :
“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;
(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
Patna High Court CR. APP (DB) No.840 of 2023 dt.25-08-2026
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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. ”
35. From bare perusal of the above provisions it is
clear that following are the documents of age determination :
(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;
(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.
36. We also find that in the case of Rajak
Mohammad v. State of Himachal Pradesh , reported in (2018)
9 SCC 248 , the Hon’ble Supreme Court has observed in
paragraph ‘9’ as under:-
“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. ”
37. As regards to the age of the victim, the
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prosecution has not brought any evidence on the record. In her
fardbeyan , the victim stated that she was 17 years old and had
appeared in matriculation examination, however, in her
deposition she has stated that she had studied till class-V. PW-
2, father of the victim, whose statement was recorded after 1 ½
years of the occurrence, in para 9 of his cross-examination
admitted that the victim had studied till class V and her present
age is 19 years, i.e., she was of 17 ½ years at the time of the
occurrence. As per the medical examination of the victim, her
age was opined to be between 16 to 17 years. Although the I.O.
(PW-7) in his deposition stated that he had obtained the
Transfer Certificate of the victim from the concerned Primary
School, but the same has not been produced before the learned
trial court.
38. The views of the Hon’ble Delhi High Court in
the case of Court on its own Motion (supra) has been agreed to
and followed by this Court in the case of Sartaj Alam (supra).
39. Based on the above discussion, we are of the
opinion that in the present case, the prosecution has not
succeeded in conclusively proving that the victim was a minor
on the date of the alleged occurrence.
40. Moreover, bearing the other material facts in
mind, the deficiencies in the investigation further assume
Patna High Court CR. APP (DB) No.840 of 2023 dt.25-08-2026
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significance in assessing whether the prosecution succeeded in
establishing the foundational facts. PW-7 admitted that he did not
verify the ownership of the house of Mohammad Abbas Ansari,
stated to be the place of occurrence, nor did he verify the alleged
tenancy in his house by appellant for the purpose of residence cum
clinic. He did not record the statements of the persons named in
the boundaries of the place of occurrence. No clothes of the victim
or bedding from the alleged place of occurrence were seized. He
also admitted that the manner in which the victim’s birth-related
documents/Transfer Certificate were obtained was not mentioned
in the case diary. These lapses, considered individually, may not
necessarily be fatal to the prosecution, but when examined
cumulatively with the material inconsistencies and omissions in
the testimony of the principal witness and the inconclusive
medical evidence, they assume considerable significance.
41. It is, therefore, not a case where the prosecution
has first established the foundational facts and thereafter the
appellant has failed to rebut the statutory presumption. Rather,
the difficulty arises at the threshold itself. The prosecution
evidence does not establish with the requisite degree of certainty
the foundational facts constituting the offence against the
appellant. Consequently, the statutory presumption under
Section 29 of the POCSO Act cannot be mechanically invoked
Patna High Court CR. APP (DB) No.840 of 2023 dt.25-08-2026
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to fill the gaps in the prosecution evidence. The presumption is a
rule concerning the burden arising after the foundational facts
have been established; it is not a substitute for proof of those
foundational facts. The settled position is that the prosecution is
not relieved of its initial burden merely because Section 29 is
attracted to the offence charged.
42. In the present case, therefore, the question of
requiring the appellant to rebut the presumption under Section 29 of
the POCSO Act does not arise. The prosecution has failed to cross
the threshold necessary for activation of the statutory presumption.
The evidence led by the prosecution, viewed as a whole, gives rise at
best to circumstances creating suspicion regarding the alleged
occurrence, but suspicion, however strong, cannot substitute proof
beyond reasonable doubt. The material omissions in the victim’s
earlier version, the evidence of PW-1 being substantially hearsay, the
limited evidentiary value of PW-6, the inconclusive medical evidence
and the deficiencies admitted by the Investigating Officer
cumulatively create a reasonable doubt regarding the prosecution
case against the appellant. The benefit of such doubt must necessarily
go to the appellant.
43. On overall analysis of the entire evidence on the
record, we find that in this case, the prosecution has not only failed to
prove the basis foundational facts to attract Section 29 of the POCSO
Act, the accused has been able to demonstrate the contradictions and
Patna High Court CR. APP (DB) No.840 of 2023 dt.25-08-2026
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material inconsistencies in the prosecution evidence as also by
bringing defence evidence on the record that the prosecution case
cannot be said to be beyond all reasonable doubts. The presumption
of innocence still remains even in the case cases under the POCSO
Act and we are of the opinion that the learned trial court has
committed grave error in convicting the appellant on the strength of
the materials on the record.
44. In the result, we set aside the impugned judgment
and order of the learned trial court and acquit the appellant, giving
him benefit of doubt.
45. The appellant is said to be in custody, hence, he is
ordered to be released forthwith, if not wanted in any other case.
46. The appeal is allowed.
47. Let a copy of the judgment along with the trial
court records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
(Sunil Dutta Mishra, J)
Harish/-
AFR/NAFR
CAV DATE
Uploading Date 01.09.2026
Transmission Date 01.09.2026