KAILASH SAW @ KAILASH SAHU @ KAILASH SAH vs The State of Bihar
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.609 of 2023
Arising Out of PS. Case No.-76 Year-2021 Thana- BHEJA District- Madhubani
======================================================
Kailash Saw @ Kailash Sahu @ Kailash Sah, Son of Pawan Sah @ Pawan
Sahu, Resident of Village- Parbalpur, PS- Bheja, Distt- Madhubani
... ... Appellant/s
Versus
1. The State of Bihar
2. XXXXX (Informant)
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Manoj Kumar Pandey, Advocate
Ms. Anjali Kumari, Advocate
For the Respondent/s : Mr. Bipin Kumar, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA)
Date : 13-07-2026
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 the
informant/victim.
2 . This criminal appeal has been preferred against the
judgment of conviction dated 01.05.2023 (hereinafter referred to
as the ‘impugned judgment’) and the order of sentence dated
08.05.2023 (hereinafter referred to as the ‘impugned order’)
passed by the learned Additional District & Sessions Judge-VII-
cum-Special Judge (POCSO), Madhubani (hereinafter referred
to as the ‘trial court’) in POCSO G.R. Case No. 86 of 2021
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arising out of Bheja P.S. Case No.76 of 2021. By the impugned
judgment and order, the learned trial court has convicted the
appellant for the offences punishable under Sections 376 and
307 of the Indian Penal Code, 1860 (in short ‘I.P.C.’) and
Sections 4 & 6 of the Protection of Children from Sexual
Offences Act, 2012 (in short ‘POCSO Act’) and sentenced him
to undergo rigorous imprisonment for life and to pay fine of
Rs.25,000/- and in default of payment of fine, he shall further
undergo simple imprisonment for six months for the offence
under Section 6 of the POCSO Act (read with Section 376 of the
I.P.C. as per provision of Section 42 of POCSO Act) and for the
offence under Section 307 of the I.P.C. to undergo rigorous
imprisonment for a period of ten years and fine of Rs.15,000/-
and in default of payment of fine, he shall further undergo
simple imprisonment for a period of three months. The sentence
shall run concurrently, on realization of fine, if any, the same be
given to the victim. The learned trial court also awarded a
compensation of Rs.7,00,000/- (Rupees seven lakh) in favour of
victim of rape to be paid by the State Government through
D.L.S.A., Madhubani in accordance with sub-section (4) of
Rule 9 of POCSO Rule, 2020.
3. The appellant has been acquitted by the learned
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trial Court from the charge under Section 3 (i)(r)/w(i) (ii) and
Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (in short SC/ST Act).
4 . 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
5 . The prosecution case is based on the fardbeyan of
informant-cum-victim (PW-2) recorded on 24.08.2021 at about
11:15 A.M. at Sadar Hospital, Madhubani by the A.S.I. of
Mahila P.S., Madhubani to the effect that on 22.08.2021 at about
8:30 P.M. the informant-cum-victim had gone to the Bandh
outside the house to defecate with her younger sister, when
younger sister (PW-6) was sitting for defecation then Kailash
Saw (appellant herein) came there and tied the mouth of
informant-cum-victim with a gamchha and made her
unconscious by rubbing her face in water stored pit thereafter
the appellant took her in unconscious condition to gachhi and
raped her whereafter left her in the said gachhi and went away.
It is further stated in her fardbeyan that her younger sister went
home and called her mother (PW-1) then the mother of the
victim came there and brought her home from the gachhi and
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administered medicine to her, then she regained consciousness
and thereafter she told her mother about the incident. It is
further alleged that her mother took her to the mukhiya-
sarpanch and subsequently, took her to Madhepur Hospital
where she was treated. There, she was referred to Madhubani
Hospital for better treatment. It was diagnosed that the
informant-cum-victim was bleeding and she was treated with
applying 6-7 stitches. However, she was further referred to
D.M.C.H., Darbhanga.
6 . After registration of the F.I.R., the investigation
commenced and after completion of investigation of the case,
the Investigating Officer submitted charge sheet bearing C.S.
No.54 of 2021 dated 24.10.2021 against the appellant under
Sections 376, 307 of I.P.C. and Sections 3(1)(r)(s)(w)(i)(ii), 3(2)
(v) of the SC/ST Act and Sections 4 & 6 of the POCSO Act.
Subsequently, the learned Special Judge, POCSO Act,
Madhubani took cognizance of the offences under the aforesaid
provisions vide order dated 01.12.2021. Thereafter, the learned
trial court framed charges on 28.06.2022 under Sections 376,
307 of I.P.C. and Sections 3(1)(r)(s)(w)(i)(ii), 3(2)(v) of SC/ST
Act and Sections 4 and 6 of the POCSO Act against the
appellant. The charges were explained to the accused in Hindi
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who denied the charges and claimed to be tried.
7. To substantiate the charges levelled against the
accused/appellant, the prosecution has examined altogether
eleven 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 Mother of informant/victim
PW-2 Informant/victim
PW-3 Dr. Shaheda Farooque (Medical Officer)
PW-4 Ashish Anand (Second Investigating Officer)
PW-5 Grandmother of informant/victim
PW-6 Younger sister of informant/victim
PW-7 Manoj Kumar (First Investigating Officer)
PW-8 Dr. Swati (Medical Officer)
PW-9 Dr. Neeru Goel (Medical Officer)
PW-10 Minhaj Bano (Headmistress of New Primary
School, Durgahi)
PW-11 Dr. Pravirti Mishra (Medical Officer)
List of Exhibits
Exhibit-1 Signature of victim on the fardbeyan
Exhibit-2 Signature of victim on the statement recorded
under Section 164 of the Cr.P.C.
Exhibit-3 The medical examination report dated 23.09.2021
of the informant/victim (with objection)
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Exhibit-3/1 Signature of Dr. Shaheda Farooque (PW-3) on
medical examination report dated 23.09.2021 of
the informant/victim
Exhibit-3/2 Signature of Dr. Pravirti Mishra (PW-11) on
medical examination report dated 23.09.2021 of
the informant/victim
Exhibit-3/3 Signature of Dr. Sana Fatma on medical
examination report dated 23.09.2021 of the
informant/victim
Exhibit-3/4 Signature of Dr. D.S. Mishra on medical
examination report dated 23.09.2021 of the
informant/victim
Exhibit-4 Charge sheet bearing no.54 of 2021 dated
24.10.2021
Exhibit-4/1 Signature of the then S.H.O. of Bheja Police
Station, Sri Manoj Kumar on the charge sheet
Exhibit-5 Fardbeyan
Exhibit-5/1 Signature of the then S.H.O. of Bheja Police
Station, Sri Manoj Kumar on the fardbeyan
Exhibit-5/2 Endorsement along with signature of Sri Manoj
Kumar, the then S.H.O. of Bheja Police Station
regarding registering the police case number on
fardbeyan
Exhibit-6 Signature of Sri Manoj Kumar, the then S.H.O. of
Bheja P.S. on F.I.R.
Exhibit-7 Statement of victim recorded under Section 164
of Cr.P.C.
Exhibit-8 The injury report of victim issued by IGIMS,
Patna vide letter no.1966/ चच०अ० dated 13.09.2021
Exhibit-9 Serial no.11 of relevant page of original
enrollment register-cum-first attendance register
of year 2007 to 2015 of class 1 of Naya Prathmik
Vidyalaya, Durgahi
Exhibit-10 Serial No.10 of transfer certificate volume of year
2018 of Naya Prathmik Vadyalaya,Durgahi
Exhibit-11 The Bed Head Ticket in the name of victim dated
23.08.2021 of Sadar Hospital, Madhubani
Exhibit-12 Vaginal swab examination report of victim dated
23.08.2021
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Exhibit-13 Signature of Dr. Pravriti Mishra (PW-11) on Bed
Head Ticket in the name of victim dated
23.09.2021 of Sadar Hospital, Madhubani
Exhibit-13/1 Signature of Dr. Shaheda Farooque on Bed Head
Ticket in the name of victim dated 23.09.2021 of
Sadar Hospital, Madhubani
Exhibit-13/2 Signature of Dr. Sana Fatma on Bed Head Ticket
in the name of victim dated 23.09.2021 of Sadar
Hospital, Madhubani
8 . After recording of the prosecution evidences,
statements of the accused were recorded under Section 313 of
the Code of Criminal Procedure Code (in short ‘Cr.P.C.’). The
appellant denied the correctness of the incriminating
circumstances against him and came out with a plea that he is
innocent.
9 . The defence has also examined one witness in his
defence, namely, DW-1 Mahanthi Sahu.
Findings of the learned trial court
10 . The learned trial court found that the statement
made by the prosecutrix/victim (PW-2) is natural and consistent
with the case of the prosecution and her deposition is not only
safe to be relied upon but can be termed as of sterling quality.
Learned trial court further found that the circumstances
appearing on the record of the case discloses that the
prosecutrix/victim does not have a strong motive to falsely
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involve the person charged. The age of the victim at the time of
occurrence was found below 18 years and the evidence of
victim (PW-2) found to be reliable, corroborated by the
testimony of the victim’s sister, mother, and other witnesses like
doctors and Investigating Officer. The medical examination
report dated 23.09.2021 (Exhibit-3) and injury report of the
victim issued by I.G.I.M.S., Patna (Exhibit-8) also support the
evidence of the victim.
Analysing all the evidences available on record, the
learned trial court held the appellant guilty, accordingly,
convicted him under Sections 376, 307 of I.P.C. and under
Sections 4 & 6 of the POCSO Act and sentenced him as
aforesaid. Being aggrieved by the judgment of conviction and
order of sentence, the present appeal has been preferred by the
appellant.
Submissions on behalf of the appellant
11. Learned counsel appearing on behalf of the
appellant assailing the impugned judgment and order of the
learned trial court has submitted that the appellant has been
falsely implicated in this case. It is submitted that the
prosecution has produced altogether eleven witnesses in this
case but in fact there are inconsistency in their evidence and
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they have not supported the case of prosecution. It is further
submitted that PW-1 and PW-5 are not the eyewitnesses to the
actual physical assault and their testimony is merely hearsay and
PW-2 (victim) was major on the alleged date of occurrence so
offence under POCSO Act is not attracted in this case. There is
delay of two days in lodging of the F.I.R. which creates doubt in
prosecution case. The learned trial court has not considered that
the clothes of the victim were neither seized nor produced,
though the victim has deposed that the sperm of the appellant
was present on her leggings. From the alleged place of
occurrence, no sign of violence or mark of wet mud or
tampering mark was found. The prosecution has also failed to
establish the place of occurrence. There is no independent
witness to corroborate the alleged occurrence. The appellant has
been falsely implicated in this case due to demanding of dues
from the victim by the appellant. Learned counsel also submits
that the conviction under Section 307 I.P.C. is unsustainable as
there was no intent to cause death of the victim.
12. It is further submitted that the Investigating
Officer failed to recover the clothes and innerwear with blood
and sperm stains belonging to the accused during the course of
investigation. It is further stated that local doctor named Arun
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Yadav, who was called for initial treatment after the victim was
brought home by PW-1, was not examined who was vital
witness. According to the fardbeyan, the victim accompanied by
her mother (PW-1), who went to meet the Sarpanch-Mukhiya
after the initial treatment, was not examined. PW-5 in her
evidence during cross-examination in paragraph 7, states that
the victim was brought by both PW-1 and her aunt, Sunita Devi
and the victim was unconscious but Sunita Devi was not
examined by the prosecution during the trial. PW-6, during her
cross-examination in paragraph 4, asserts that victim was fully
conscious and brought home by her mother by walking. These
facts raise substantial doubt regarding the credibility of the
testimonies provided by the examined witness.
13. He further submits that the medico-legal report
prepared is incomplete and lacks essential details like non-
mentioning of age of wound found on the victim’s body.
Although the report states that the hymen is torn, it fails to
specify whether it is an older or new tear. The absence of such
crucial information casts serious doubt on the prosecution case.
Despite availability of independent witnesses, the prosecution
has chosen not to examine them, raises doubts regarding
completeness and reliability of the evidence presented by the
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prosecution.
Submission on behalf of the State
14 . The appeal has been opposed by learned
Additional Public Prosecutor for the State by submitting that the
victim, who is under 18 years of age, is a sterling witness whose
testimony is of such consistency and truthfulness that it requires
no further corroboration. It is submitted that all the prosecution
witnesses are consistent in their statements and have fully
supported the prosecution case. It is further submitted that the
immediate information of the younger sister of the victim to her
mother that the accused was doing wrong things with her sister
is highly relevant and admissible. There was no time gap for
fabrication or afterthought by the prosecution party. The
immediate arrival of the mother of the victim and others at the
place of occurrence where victim was in unconscious state,
directly corroborates the prosecution case. Learned Additional
Public Prosecutor submits that the learned trial court has rightly
appreciated the entire evidence on the record and no fault may
be found with the same.
Consideration
15. We have perused the impugned judgment and the
materials available on record, including the trial court records
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and given thoughtful consideration to the rival contentions made
on behalf of the parties.
16. From perusal of the impugned judgment, it is
clear that the learned trial court convicted the appellant holding
that victim is a minor i.e. below the age of 18 years at the time
of occurrence, who has supported the factum of rape/penetrative
sexual assault committed by the appellant in gachhi on
22.08.2021 at about 8:30 P.M. and the defence witness does not
falsify/disprove the prosecution case.
17 . To examine the correctness of the finding we will
first assess the testimonies adduced by both parties.
PW-2 is the informant and PW-1, PW-5 and PW-6 are
mother, grandmother and sister of informant respectively. PW-3,
PW-8, PW-9 and PW-11 are doctors of hospitals at Madhubani,
Darbhanga and Patna respectively where the victim was treated
after the occurrence. PW-4 and PW-7 are Investigating Officers.
PW-10 is Headmistress of School where the victim had taken
admission in Class I.
18. First, we would like to consider the evidence of
PW-2 who is the victim and informant of this case. She has
deposed in her examination-in-chief that occurrence took place
prior to one year at 8:30 P.M. when she with her sister (PW-6)
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had gone out to defecate. When her sister started defecating and
she was standing, the accused Kailash Saw (appellant) hold her
mouth, pressed and rubbed her face in water collected in the
roadside ditch due to which she fainted. She further stated that
she was not fully fainted, the appellant had committed rape
upon her and fled away by pushing her in water. Her sister went
to tell their mother who came there and took her to the house.
She told the whole incident to her mother. She further stated that
she went to Madhepur for treatment from where she was
referred to Madhubani where she was treated and then referred
to Darbhanga and thereafter went for treatment at Patna where
her treatment is going on. Due to rape committed by the
appellant, her anal tract and urinary tract are seriously injured,
treatment of which is continued. Her statement was recorded in
Sadar Hospital, Madhubani. She identified her signature on
fardbeyan (Exhibit-1). She further stated that she was taken to
Madhubani Court and she identified her signature on her
statement under Section 164 Cr.P.C. as Exhibit-2. She identified
the appellant in the Court. Her medical examination was
conducted. She stated her age 12 years at the time of incident.
In her cross-examination, the victim (PW-2) has
stated that she cannot tell the date of incident but she has stated
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that it happened a year ago. She has further stated that she did
not faint completely, she can explain everything that happened
to her. The accused (appellant) had done bad thing with her, her
frock and leggings were torn. The victim in her cross-
examination has stated that her leggings were stained with blood
and semen. She further deposed that she had two wounds on her
body below the waist, her urinary tract and anal tract became
one because of the wound. The victim (PW-2) has denied the
suggestion that Kailash Saw (appellant) has not done any wrong
things with her and while saying this, the victim started crying.
She also denied the suggestion that she got injury due to fall.
19. Before proceeding further, the statement of the
victim under Section 164 of Cr.P.C. requires to be taken into
consideration. It is pertinent to note that during the course of
investigation, the police took the victim before the learned
Magistrate where her statement under Section 164 of the Cr.P.C.
was recorded. The learned Magistrate tested her competence to
depose and on being satisfied, he recorded her statement in
which she claimed that on 22.08.2021 at about 8:30 P.M. she
had gone to the Bandh with her younger sister, who was aged
about 6 years, then Kailash Saw came there and caught her from
behind and made her unconscious in water. Her hand and mouth
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were tied and thereafter he did wrong, taking her to gachhi and
threw her in water in unconscious state and fled away. Kailash
Saw raped with her. Her statement was brought in evidence
wherein she has identified her signature (Exhibit-2). The
comparison of her deposition before the trial court and her
statement under Section 164 Cr.P.C. before learned Magistrate
are materially same, although they were recorded after length of
time.
20 . The mother of the victim i.e., PW-1, has
supported the prosecution story and deposed that the victim had
gone to the Bandh with her sister to defecate. The accused tied
her daughter’s mouth from behind and threw her into the ditch
and dragged the victim to the gachhi where he raped her. She
further deposed that her another daughter told about the incident
thereafter she went there and took the victim to the courtyard.
After that, she got treated the victim in Madhepur Hospital from
where she was referred to Madhubani for treatment. Thereafter
the victim was referred from Madhubani to Darbhanga and then
to Patna. She deposed that the victim was 16 years old at the
time of incident.
In her cross-examination, she deposed that she did
not see the incident with her own eyes. She denied the
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suggestion of defence that appellant has not committed any
occurrence and has been falsely implicated due to village
rivalry.
21. The grandmother of the victim i.e., PW-5 has
deposed that the victim is of 12-13 years of age. Her grand-
daughter (victim) along with her sister had gone to the Bandh to
defecate. Kailash Saw (appellant herein) caught hold of her
(victim), slammed her, raped her and threw her into water when
she became unconscious. PW-5 deposed that her grand-
daughter’s mouth was tied with a towel. She further deposed
that younger sister of the victim came home to say that Kailash
Saw raped her sister and threw her in water. Thereafter they
went there and took out her grand-daughter (victim) from the
water. She further deposed that her grand-daughter was treated
in Madhepur, Madhubani, Darbhanga and Patna.
In her cross-examination, she deposed that the
victim’s sister told her about the incident and had not seen the
occurrence.
22. The sister of the victim i.e., PW-6, who is a child
witness, has also supported the prosecution’s case and deposed
that she had accompanied her elder sister (victim) towards the
Bandh to defecate. She further deposed that when she was
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defecating, the accused Kailash Saw came from behind and
pressed her elder sister’s mouth and did wrong things with her
and threw her into water. Thereafter, she ran to her home and
told the incident to her mother, then her mother went there and
pulled her sister out of water. Her sister was treated and
operated and currently her treatment is going on at Patna. She
further deposed that she recognizes the accused-appellant in the
court.
In her cross-examination, she deposed that when the
accused-appellant pressed her sister’s mouth and caught her, she
got up from defecation and did not make hue and cry because
she was scared and went home to call her mother. She denied
the suggestion of defence that a false case has been filed due to
demanding of dues.
23. On the value of the evidence of a prosecutrix,
the Hon’ble Supreme Court in case of, Manak Chand alias
Mani v. State of Haryana, reported in (2023) SCC OnLine SC
1397 held that the evidence of prosecutrix in a case of rape is of
the same value as that of an injured witness. It is now well
settled that if the evidence of a prosecutrix is reliable, no
corroboration is necessary. The broad principle is that an injured
witness was present when the incident happened and that
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ordinarily such a witness would not tell a lie as to the actual
assailants. The Court can rely on the victim as a sterling witness
without further corroboration, but the quality and credibility
must be exceptionally high. The statement of prosecutrix ought
to be consistent from the beginning to end (except minor
inconsistencies) i.e. from the initial statement to the oral
testimony, without creating any doubt qua the prosecution case.
24. In the present case, the deposition of the victim
(PW-2) recorded before the Court corroborates in all material
particulars, the fardbeyan and her statement recorded under
Section 164 Cr.P.C. except minor inconsistency. It is well settled
that minor contradictions or insignificant discrepancies should
not be ground for throwing out an otherwise reliable prosecution
case. A victim complaining of having been a victim of the
offence of rape is not an accomplice after the crime. The
discrepancies do not strike at the core of the matter or
undermine the fundamental version of the witnesses. On
evaluating the deposition of PW-2 (victim), we are of the
opinion that the testimony of PW-2 (victim) is absolutely
trustworthy and unblemished and her evidence is of sterling
quality.
25 . Mother of victim (PW-1), grandmother of
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victim (PW-5) and sister of victim (PW-6) have also
corroborated the statement of the victim on material fact.
Although there are certain contradictions and omission in the
testimony of PW-1, PW-5 and PW-6, but such omission and
contradictions are minor and on material aspects the evidence of
these witnesses are consistent. Some contradictions, observance,
memory and narration of chain of events may not be precise.
26. Both the Investigating Officers i.e. PW.4 and PW-
7 have been examined on behalf of the prosecution. The
evidence of the Investigating Officer, Manoj Kumar (PW-7), is
to the effect that on 24.08.021 he was posted at Bheja Police
Station, Madhubani as S.H.O. On that date, he received
information that a girl had been subjected to penetrative sexual
assault and was being treated at Sadar Hospital, Madhubani and
to verify the same, he along with Manju Devi, A.S.I., Mahila
Police Station reached at Sadar Hospital, Madhubani. The
statement ( fardbeyan) of the victim was recorded on which the
victim signed her name and the victim’s mother put her mark.
He recognizes the handwriting and signature of Manju Devi on
the fardbeyan marked as Exhibit-5. He also signed the
fardbeyan and his signature was marked as Exhibit-5/1. On the
basis of fardbeyan, the case was registered. The endorsement
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and forwarding on the fardbeyan with signature is marked as
Exhibit-5/2. His signature is also on the formal F.I.R. which he
recognized is marked as Exhibit-6.
27 . PW-7 (Investigating Officer) further deposed that
after taking charge of investigation, he went to the place of
occurrence, inspected the place and prepared site map. The first
site of incident is Pradhan Mantri Rural Road going to Asma in
village Parwalpur from where the accused is said to have tied
the victim’s mouth and taken her to garden ( gachhi ). He further
deposed that statements of witnesses were taken. He also
deposed that on 10.09.2021 the school transfer certificate was
obtained related to the birth of the victim in which the date of
birth of victim is mentioned as 29.12.2006. This witness has
deposed that after the orders of Superintendent of Police on
07.09.2021, the investigation charge of the case was handed
over to the Sub-Divisional Police Officer, Jhanjharpur.
In his cross-examination, he deposed that he had not
recovered any objectionable materials or tampering mark from
the place of occurrence. He further deposed that the witness
(PW-1), mother of the victim, has not said in her statement
before him that the accused threw her daughter (victim) into the
ditch by tying her face from behind. He further deposed that the
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victim in her statement did not say before him that accused fled
away after pushing her into water.
28 . Another Investigating Officer, Ashish Anand
(PW-4) has deposed that he was posted as Sub-Divisional Police
Officer, Jhanjharpur on 07.09.2021. After taking charge of
investigation, he first inspected the incident site on 08.09.021.
The actual site of incident is about 300-400 yards south-west of
victim’s house. The second incident site is about 10-15 yards
west of the first incident site. He recorded the statement of the
witnesses and collected medical reports of victim from Sadar
Hospital, Madhubani and I.G.I.M.S., Patna. On 12.10.2021 a
certified copy of the victim’s school transfer certificate was
obtained from the Principal of Primary School, Durgahi in
which the victim’s date of birth is mentioned as 29.12.2006.
After completion of investigation, as per order of senior officer,
charge sheet was submitted in the court against the accused. He
recognizes his handwriting and signature on the charge sheet
which is marked as Exhibit-4. He recognizes the signature of the
then SHO, Manoj Kumar on the charge sheet which is marked
as Exhibit-4/1.
In his cross-examination, he deposed that the name of
witness who told him the first and second place of occurrence,
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has not been mentioned in the case diary. He has not recovered
any objectionable materials from the spot. He further deposed
that the statements of some witnesses were taken by earlier
Investigating Officer. He also took their statements again. He
further deposed that the mother of the victim has not said in her
statement before him that accused threw her daughter (victim)
into the ditch by tying her face from behind.
29 . On scrutiny of the evidence of the Investigating
Officers, this Court noticed that they have fairly investigated the
case. The fardbeyan of the victim was recorded by the police
officials, the Investigating Officers visited the place of
occurrence, recorded the statement of witnesses, took the victim
to the court for recording of her statement under Section 164 of
Cr.P.C. before the learned Magistrate, collected age certificate of
victim from the concerned school as proof of age of victim,
medical examination of victim was conducted from Medical
board and after completion of investigation and finding
sufficient material against the appellant submitted charge sheet
against him.
Medical Evidence:
30. The evidence of Dr. Shaheda Farooque (PW-3) is
to the effect that on on 23.09.2021, she was posted at Sadar
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Hospital, Madhubani as Medical Officer. On that day, the victim
was brought by Manoj Kumar, S.H.O. of Bheja Police Station
for medical examination. Then, a medical board was constituted
under the chairmanship of Dr. D.S. Mishra, Superintendent of
Sadar Hospital, Madhubani with members including herself, Dr.
Sana Fatma, Dr. Pravriti Mishra and Dr. D.S. Mishra for the
examination of the victim and medical board examined the
victim on 23.09.2021 at 12:15 P.M. and found the following
injuries on the victim:-
General Body Injury
Abrasion present over face:
(i) 1.5 cm linear abrasion 1cm below right eye
near nose
(ii) 0.5 x 1 cm Irregular abrasion 2 cm below right
eye near nose.
Injury to private part:
(i) Hymen torned. Mid-line complete perineal tear
present.
(ii) Anal wall tear about 2 cm communicating with
Vagina present.
Pathological examination of vaginal swab was
done by Dr. Kunal Kaushal, Medical Officer of
Sadar Hospital, Madhubani and according to
pathological report, no spermatozoa found in
vaginal smear.
For the age determination report given by same
medical board, x-ray was done on Brij Health
Services India Pvt. Ltd., Sadar Hospital,
Madhubani and X-ray finding shows that:
1. X-ray of both wrist AP view shows metacarpal
not fused. Distal radius and ulna not fused.
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2. X-ray of both elbow AP view shows all
metacarpal fused.
3. X-ray pelvis AP view shows illiac crest appeared
but not developed. Ischial tubrocity sean.
According to radiological findings given by
medical board, the age of victim is between 15 to
16 years.
Conclusion of Medical Board:
According to current physical & pathological
examination, it can be concluded that there was
sexual assault on the victim. The age of victim is
in between 15 to 16 years.
31 . Dr. Shaheda Farooque (PW-3) recognizes the
medical report dated 23.09.2021 and put her signature on it,
marked as Exhibits-3 (with objection of defence) and 3/1
respectively. She also recognizes the signatures of Dr. Pravriti
Mishra, Dr. Sana Fatma and Dr. D.S. Mishra on the medical
examination report which are marked as Exhibits-3/2, 3/3 and
3/4 respectively.
In her cross-examination, she has deposed that the
scratch mark found on the face could be done due to falling on
hard blunt object. Hymen can be ruptured even due to playing.
No live or dead spermatozoa have been found in vaginal smear
by the medical board. She further deposed that she found marks
of sexual assault on the victim’s body. Abrasion on victim’s
face, hymen torn, midline complete perineal tear present. Anal
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wall tore about 2 cm communicating with vagina was also
found. The said wound cannot be caused by any substance by
the victim herself.
32. Dr. Swati (PW-8) deposed in her evidence that on
26.08.2021 she was posted as Assistant Professor at I.G.I.M.S.,
Patna. On that day, she examined the victim who was referred
from D.M.C.H., Darbhanga to I.G.I.M.S., Patna. She further
deposed that during the course of treatment, the victim told that
when she had gone out of the house for defecation at around
8:30 PM on 22.08.2021, she was sexually assaulted. The victim
was taken to PHC, Madhepur for first aid. The next day she was
referred to Sadar Hospital, Madhubani. She was referred to
D.M.C.H., Darbhanga from Sadar Hospital, Madhubani and
then referred from D.M.C.H., Darbhanga to I.G.I.M.S., Patna on
25.08.2021.
She further deposed that the victim was admitted to
Gynecology OPD in I.G.I.M.S., Patna on the same day and after
examination, following findings were recorded:
On right side of nose scratch mark was
present. No injury marks could be found on breast,
abdomen, back and all four limbs.
As per abdomen examination, soft, non
tender abdomen was found without any
organomegaly. Perineum was soiled with faeces.
Mons pubis was normal with stage III (Tanner)
pubic hairs. Clitoris was normal.
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Right Labia Majora and Minora were
lacerated (approximately 6 cm x 3 cm). Margin
were edematous.
Left Labia Majora and Minora were
lacerated (approximately 3 cm x 3 cm). Urethra
was normal with Foley’s catheter in situ.
Mid peri-urethral abrasions were present.
Hymen was completely torn.
In Vagina: abrasions were present in
anterior vaginal wall; right vaginal was torn-7 cm
long, 1 to 1.5 cm deep; no active bleeding was
present; abrasions were present in left vaginal
wall; posterior vaginal wall was completely torn (7
cm long)-complete perineal tear.
Internal and External Anal Sphincter were
torn. Rectal mucosa was torn up to 7 to 8 cm; Anal
opening was pulled away due to tear
(approximately 5 cm). All the margins of tear and
laceration were unhealthy and edematous. No
foreign body found in vagina and rectum.
33. She further deposed that after proximal loop
sigmoid, colostomy was done by Dr. Z. Hassan, Additional
Professor and Dr. Asjad, Sr. Resident, Department of Pediatric
Surgery on 27.08.2021. She further deposed that post-operative
care was given in Gynecology Department and patient was
discharged on 03.09.2021. She further deposed that patient was
called for regular check-up. Again she was admitted on
07.04.2022 by the department of Gynecology. Repair of
complete perineal tear was done on 12.04.2022 by Dr. Z.
Hassan, Additional Professor. Post-operative period was
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uneventful and she was discharged on 24.04.2022 and again she
was called for regular check-up. She further deposed that after
approximately 4 months, the victim was re-admitted on
19.08.2022 by the Department of Pediatric Surgery for
colostomy-loop-closure which was done on 23.08.2022. She
further deposed that the patient developed sepsis in post-
operative period and shifted to I.C.U. She later recovered and
was discharged on 07.09.2022.
34. Dr. Swati (PW-8) further deposed that the nature
of injury was grievous which could have led to loss of life due
to bleeding and sepsis. She further deposed that the victim had
to undergo three surgeries because of this injury and she
suffered from complications and was admitted in I.C.U. also. It
is further deposed that if the victim had not received the
treatment at Medical college, she could have been incontinent
for life long. Even after treatment, they do not know the effects
of this event on her future fertility as well as her emotional and
mental trauma.
35. PW-8 further deposed that the medical report has
been typed by Dr. Neeru Goyal, Dr. Ranjana, Dr. Jyotsna and
she was also present at the time of typing the report. The
medical report was signed by Dr. Krishna Gopal, Medical
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Superintendent, I.G.I.M.S., Patna which she recognizes and is
marked as Exhibit-8.
In her cross-examination, she deposed that falling on
a dry substance can also cause the scratch on nose. She further
deposed that Right Labia Majora and Minora is soft tissue, these
are external genitalia of female. Injury on Labia Majora and
Minora may be due to falling on a hard object but tear cannot be
on both sides. If a woman’s leg is open and falling on rough
material alternately on both right and left side then lacerations
may occur on Labia Majora and Minora. It is very unlikely that
the girl will fall and her Hymen breaks.
36 . PW-9, Dr. Neeru Goel, deposed in her evidence
that on 26.08.2021 she was posted as H.O.D. of Gynecology, at
I.G.I.M.S., Patna. She further deposed that she has typed the
victim’s injury report on which Dr. Krishna Gopal, Medical
Superintendent has made his signature which this witness
recognizes and the same is marked as Exhibit-8.
37. PW-11 is Dr. Pravriti Mishra, who has also
deposed the same in her evidence as that of PW-3 Dr. Shaheda
Farooque. She has deposed that on 23.08.2021 the victim was
referred from PHC, Madhepur to Sadar Hospital, Madhubani
she was admitted in emergency ward from where the victim was
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referred to Gyneocology Department of Sadar Hospital,
Madhubani by Dr. Vinod Kumar. This witness recognizes the
signature of Dr. Vinod Kumar on Bed Head Ticket dated
23.08.202 and on her deposition which is marked as Exhibit-11.
In her cross-examination, she deposed that PHC,
Madhepur did not give any finding at the time of referring. She
did not find any type of live or dead spermatozoa. She further
deposed that the abrasion can be caused by falling on a rough
surface. During examination, semen was not found on the thigh
or cloths of the victim, spermatozoa was not found on pubic
hair. In case of sexual assault, presence of spermatozoa is not
necessary.
38 . PW-10 is Minhaj Bano, who has deposed in her
evidence that she is the Headmistress of Naya Primary School,
Durgahi since 2017. She has deposed that the name of the
victim is recorded in original student enrollment register of year
2013 at serial no.11 in which the date of birth of the victim is
29.12.2006. The original admission register of the year 2013 is
marked as Exhibit-9.
39. Medical evidence (ocular and documentary) has
fully corroborated and established rape of the minor innocent
girl (PW-2) whose testimony in this case is clear, descriptive,
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cogent and elaborative and leaves no manner of doubt.
40. During course of trial, the defence has examined
only one witness i.e., DW-1 Mahanthi Sahu, who has deposed
that the accused has a wood shop and victim used to buy wood
from him and when accused asked for his dues of Rs. 1,500 on
15.08.2021, the victim had said that if he does not give the
wood, then he will have to face the bad consequences and after
seven days, she falsely implicated in this rape case.
41. The accused in his statement under Section 313
Cr.P.C has not stated any specific defence that the victim owed
money to him and there was any dispute between them
regarding this. The defence witness has not apprised the said
defence to the Investigating Officers but he has stated before the
Court first time. The learned trial court has rightly not accepted
his version in absence of reliable evidence.
42. As the appellant has been found guilty under
POCSO Act also, it is required to take note of Sections 29 and
30 of the POCSO Act which provide for mandatory
presumptions against the accused. Such presumptions are
exceptions to the general rule of presumption of innocence of
the accused in any criminal trial. Section 29 provides for reverse
burden on the accused to prove his innocence. Section 30
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stipulates that if mens rea on the part of the accused is required
for his prosecution under the Act, the Court is required to
presume such mens rea . The accused has been, however, given
right to rebut the presumption raised against him.
43 . It is well settled that the presumption under
Section 29 of the POCSO Act operates against the accused only
when the prosecution proves the foundational facts against him
in the context of the allegation under the POCSO Act and the
accused has a right to rebut the presumption, either by
discrediting prosecution witnesses through cross-examination or
by leading evidence to prove his defence. Rebuttal of the
presumption would be on the touchstone of preponderance of
probability. The prosecution has to prove that the victim is a
child i.e. below 18 years of age and he/she has been subjected to
sexual assault by the accused and such foundational facts have
to be proved by the prosecution beyond reasonable doubt. The
proof beyond reasonable doubts is not necessarily a perfect
proof to mathematical precision. All that is required is the
establishment of such a degree of probability that a prudent man
may on its basis believe in the existence of the facts in issue.
The accused is entitled to get benefit of doubts, but only of
reasonable doubts. Every hesitancy, hunch and doubt are not
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reasonable doubt.
44. It is pertinent to mention here that foundation
facts in a POCSO case include the proof that victim is a child,
that the alleged incident has taken place, that the accused has
committed the offence and whenever physical injury is caused,
to establish it with medical evidence.
45 . Accordingly, in the present case, it is to see
whether the prosecution has proved that victim is a minor. The
age of the prosecutrix has an extremely crucial bearing in the
case to attract POCSO Act.
46. In the present case, the natural mother of the
victim who has been examined as PW-1 clearly stated that at the
time of incident the victim was 16 years old. The duly
constituted Medical Board examined the victim assessed the age
of victim between 15 to 16 years at the time of her examination
i.e. on 23.09.2021 on the basis of physical and radiological
findings. PW-3 and PW-6, both Medical Officers, deposed that
the age of victim is 15-16 years. PW-10, the Headmistress of
Naya Primary School, Durgahi also deposed that the victim had
taken admission in class-I in that school on 16.05.2013 and as
per Admission Register (Exhibit-9), she also deposed that she
has issued the transfer certificate of the victim on 27.04.2018 on
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the basis of Admission Register, the victim was studying in Vth
class. As per the T.C. Volume, the date of birth of the victim is
also 29.12.2006. On the basis of the aforesaid evidence, the
learned trial Court rightly held that the victim was below 18
years of age at the time of the alleged incident.
47. On the point of delay in filing F.I.R., it is well
settled that the delay in lodging an F.I.R. by itself cannot be
regarded as the sufficient ground to draw an adverse inference
against the prosecution case, nor it be treated as fatal to the case
of prosecution. The court has to ascertain the causes for the
delay, having regard to the facts and circumstances of the case.
The normal rule that prosecution has to always explain the delay
does not apply to rape cases. The Courts cannot ignore the
social reality that if a sexual offence is committed constituting
an offence punishable under the provisions of POCSO Act, there
is normal and natural tendency of the victim’s family to conceal
that occurrence to safeguard interest of the family prestige,
avoid vilification and in the interest of the future of the victim as
well. In the present case, the incident took place on 22.08.2021
at about 8:30 P.M. and admittedly victim was firstly treated after
the occurrence at P.H.C. and on the next date was referred to
Sadar Hospital, Madhubani, where on information the S.H.O. of
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the Bheja Police Station came on 24.08.2021 and the fardbeyan
of the victim at hospital was recorded. In this background, it
cannot be said that delay in lodging F.I.R. is not explained.
Moreover, F.I.R. being only a corroborative piece of evidence
and not a substantive piece of evidence, mere delay in
registering the F.I.R. could not be held to be a ground adverse to
the case of prosecution.
48. As discussed hereinabove, we have carefully
scrutinized the medical findings and the depositions of the
prosecution witnesses especially the deposition of the victim
(PW-2), who has supported the occurrence of rape/aggravated
penetrative sexual assault in her testimony, which is reliable,
natural and of sterling quality. In the present case, the victim
girl, who is under 18 years of age, gave a vivid, consistent
evidence before the police and also before the learned trial court
despite her mental and physical harm. The act of the younger
sister of the victim (PW-6) by fleeing away from the place of
occurrence and telling about the incident to her mother and
immediately arrival of the mother to the place of occurrence
where the victim was lying unconscious, corroborates the
prosecution case. The sexual assault resulting in injuries to the
victim girl who has undergone three surgeries and suffered
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complications and treatment at Sadar Hospital, Madhubani,
Darbhanga and I.G.I.M.S., Patna requiring immediate
hospitalization clearly demonstrates that the accused-appellant
acted with knowledge that his actions were likely to cause death
of the victim and learned trial court has rightly convicted the
appellant also under Section 307 of the I.P.C.
49. In our considered opinion, the learned trial
court has not committed any error in appreciation of the
evidences available on the record and comprehensively and
extensively dealt with each of the issues in well reasoned
judgment reaching the conclusion with regard to the guilt of the
appellant. In view of overwhelming ocular and documentary
evidence which does not seem to be tainted by any ulterior
consideration coupled with the injuries suffered by the child, the
discrepancies raised by the appellant’s counsel are trivial having
no consequences. The presumptions under Sections 29 and 30 of
the POCSO Act are fully attracted in this case which the
appellant is unable to rebut. The allegations against the
appellant which are proved are very serious, which cannot be
permitted in the civilized society. Therefore, considering the
object and purpose of the POCSO Act and considering the
evidence on record, the learned trial court has rightly convicted
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and sentenced the accused/appellant. In the result, we find no
reason to interfere with the impugned judgment and order of the
learned trial court.
50. This appeal has no merit. It is dismissed
accordingly.
51. 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)
harish/-
AFR/NAFR NAFR
CAV DATE
Uploading Date 24.07.2026
Transmission Date 24.07.2026