IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.497 of 2023

Arising Out of PS. Case No.-70 Year-2020 Thana- Nasriganj District- Rohtas
======================================================
Dilip Kumar, aged about 24 years old, Gender-Male, Son Of Satyendra Singh,
R/V- Pokhraha, P.S.- Nasriganj, District- Rohtas

... ... Appellant

Versus
1. The State Of Bihar
2. Ajay Kumar Singh, Son of Sri Munshi Singh Resident of Mauza, Pakharaha,
P.S.- Nasriganj, District- Rohtas

... ... Respondent/s

======================================================
Appearance :
For the Appellant/s : Mr. Ashok Kumar Chaudhary, Sr. Advocate
Mr. Anil Kumar Tiwari, Advocate
Mr. Raj Kumar Chaudhary, Advocate
For the State : Mr. Mukeshwar Dayal, APP
For the Informant : Mr. Amar Kumar, Advocate
Mr. Jai Prakash Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 26-07-2024

The present appeal has been preferred against the

impugned judgment of conviction and order of sentence dated

17.12.2022 and 22.12.2022, respectively passed by Ld.

Additional District and Sessions Judge-VIIth-cum-Exclusive

Special Judge (POCSO), Sasaram in POCSO Case No. 26 of

2020, arising out of Nasriganj P.S. Case No. 70 of 2020,

whereby the sole appellant has been found guilty of offence

punishable under Sections 376 and 341 of the Indian Penal Code

and Section 4 of the POCSO Act and sentenced to undergo R.I.

of 10 years and a fine of Rs.1,00,000/- payable to the victim and

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
2/25

in case of default to pay the fine, to undergo additional S.I. of

one year under Section 4 of the POCSO Act and pay a fine of

Rs.500/- payable to the victim and in case of default to pay the

fine, to undergo further S.I. for five days under Section 341 of

I.P.C. Learned Trial Court has also directed DLSA, Rohtas to

pay a compensation of Rs.4,00,000/- to the victim.

2. On the basis of the fardbeyan of the

Informant/Victim, the FIR bearing Nasriganj P.S Case No. 70 of

2020 was registered on 02.05.2020 at 12:50 O’clock against the

sole accused/appellant Dilip Kumar for the offence punishable

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

POCSO Act.

3. The prosecution case as emerging from the

fardebayan of the victim/informant is that she was 14 years old

at the time of occurrence. At 6:30 P.M. on 01.05.2020, when she

was cooking at her home, her co-villager Dilip Kumar, aged

about 22 years, came and closed her mouth and took her to the

field situated behind her home and committed rape upon her. She

started crying and weeping. Hearing the sound of weeping, her

father and mother and other villagers came over there. Seeing

them, the accused/appellant fled away. Due to lock down, she

could not go to police station. Next day on 02.05.2020 at 12:15

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
3/25

P.M., she went to Nasriganj Police Station and gave her

fardebayan.

4. After registration of the FIR, the investigation

commenced and charge-sheet bearing No. 82 of 2020 dated

30.06.2020 was filed against the Appellant, Dilip Kumar under

Sections 376 of the Indian Penal Code and Section 4 of POCSO

Act. Subsequently, cognizance was taken and charges were

framed against the accused under Section 376, 341 and 323 of

the Indian Penal Code and Section 4 of POCSO Act facing the

Trial. The charges were read over to the accused/appellant to

which he pleaded not guilty and claimed to be tried.

5. During trial, the following five witnesses were

examined on behalf of the prosecution:

(1) P.W.-1 – Father of the victim/informant

(2) P.W.-2 – Mother of the victim/informant
(3) P.W.-3 – Victim
(4) P.W.-4 – Jay Kishore Singh (I.O)
(5) P.W.-5 – Dr. Bina Rani (Doctor)
(6) P.W.-6 – Ajay Kumar (Assistant Director, FSL)
(7) P.W.-7 – Dr. Kameshwar Nath Tiwari (CS-cum-
CMO)

6. The prosecution also brought on record the

following documentary evidence:

(i) Ext. 1 – Signature of Ajay Kumar Singh on

fardebayan;
(ii) Ext. 1/1 – Signature of the victim on fardebayan;
(iii) Ext. 2 – Signature on the Statement of the victim
under Section 164 Cr,PC;
(iv)Ext. 1/2 – Signature of the Officer-In-charge on
fardebayan;
Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
4/25

(v) Ext. 3- Seizure list

(vi) Ext. 4 – Medical report;
(vii) Ext. 5 – Signature of Suhani Jain on Serological
report;
(viii) Ext. 5/1 – Signature of Ajay Kumar on Serological
report;
(ix) Ext. 6 – Medical report;

7. After closure of the prosecution evidence, accused

was examined under Section 313 Cr.PC confronting him with

incriminating circumstances which came in the prosecution

evidence, so as to afford him opportunity to explain those

circumstances. During this examination he stated that he had

heard the evidence of the prosecution, but he did not explain any

circumstances. However, he denied the charges and claimed to

be innocent.

8. The accused/appellant, however, has not examined

any witness, nor has brought any documents on record in his

defence.

9. Learned Trial Court, after appreciating the

evidence on record and considering the submissions of the

parties, passed the impugned judgment of conviction and order

of sentence, finding that the victim was below 18 years of age at

the time of alleged occurrence. He also found that the

prosecution has proved its case against the appellant under

Section 376 and 341 of the Indian Penal Code and Section 4 of

the POCSO Act. Accordingly, the impugned judgment and order

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
5/25

were passed.

10. I have heard learned counsel for the appellant and

learned counsel for the State as well as learned counsel for the

Informant.

11. Learned counsel for the appellant has submitted

that the impugned judgment of conviction and the order of

sentence passed by learned Trial Court are not sustainable in the

eye of law or on facts. Learned Court below has not applied its

judicial mind. It has failed to properly appreciate the evidence on

record.

12. To substantiate his claim, he has submitted that

the prosecution has failed to prove that the alleged victim was

minor at the time of alleged occurrence. The prosecution has

also failed to prove its case beyond reasonable doubts against the

appellant. He has further submitted that no independent

witnesses have been examined and the private witnesses of the

prosecution are relative and interested witnesses and they cannot

be relied upon for conviction of the appellant. He has also

submitted that witnesses are not consistent in their statements.

There are various discrepancies and contradictions in their

statements. He has also submitted that as per the medical

evidence, no sign of any rape on the alleged victim was found.

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
6/25

13. Per contra, learned Additional Public Prosecutor

for the State and learned counsel for the informant have

defended the impugned judgment of conviction and order of

sentence submitting that the alleged victim was way below 18

years of age at the time of occurrence and the prosecution has

amply proved its case against the appellant as per law. There is

no illegality or infirmity in the impugned judgment and order of

sentence.

14. As the appellant has been found guilty under the

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 the presumption of the

innocence of the accused in any criminal trial. Sections 29 and

30 of the POCSO Act read as follows:-

"29. Presumption as to certain offences - Where a

person is prosecuted for committing or abetting or
attempting to commit any offence under sections 3, 5, 7
and section 9 of this Act, the Special Court shall presume,
that such person has committed or abetted or attempted to
commit the offence, as the case may be unless the contrary
is proved.
30. Presumption of culpable mental state -
(1) In any prosecution for any offence under this Act
which requires a culpable mental state on the part of the
accused, the Special Court shall presume the existence of
such mental state but it shall be a defence for the accused
to prove the fact that he had no such mental state with
respect to the act charged as an offence in that
prosecution.
(2) For the purposes of this section, a fact is said to
Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
7/25

be proved only when the Special Court believes it to exist

beyond reasonable doubt and not merely when its
existence is established by a preponderance of probability.
Explanation - In this section, "culpable mental
state" includes intention, motive, knowledge of a fact and
the belief in, or reason to believe, a fact."

15. From the reading of these Sections, it clearly

transpires that Section 29 provides for reverse burden on the

accused, facing prosecution under Sections 3, 5, 7 and 9 of the

Act, to prove his innocence. Section 30 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

presumptions raised against him.

16. Now the question is what would be the effect of

such presumptions. Do these Sections absolve the prosecution to

prove its case against the accused beyond all reasonable doubts

fastening the accused with burden to prove his innocence?

17. This question is no longer res integra.

18. Hon’ble Supreme Court in Babu Vs. State of

Kerala, (2010) 9 SCC 189, has held that presumption of

innocence is a human right, though the exception may be

created by statutory provisions. But even such statutory

presumption of guilt of the accused under a particular statute

must meet the tests of reasonableness and liberty enshrined in

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
8/25

Articles 14 and 21 of the Constitution.

19. In Navin Dhaniram Baraiye Vs. State of

Maharashtra, 2018 SCC Online Bom 1281, Bombay High

Court has held that the presumption under Section 29 of the

POCSO Act operates against the accused only when the

prosecution proves the foundational facts against the accused in

the context of the allegation made against him under the

POCSO Act and the accused has 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.

20. Similar view has been taken by Kerala High Court

in Joy V. S. Vs. State of Kerala, (2019) SCC Online Ker 783

and Calcutta High Court in Sahid Hossain Biswas Vs. State of

West Bengal, 2017 SCC Online Cal 5023.

21. Allahabad High Court in Monish Vs. State of

U.P, Cri. Misc. Bail Application No. - 55026 of 2021 as decided

on 09.02.2023, has also held that the provision cannot be read to

mean that the accused shall be presumed to be guilty at the

lodgement of the F.I.R. or criminal complaint till proven

innocent at the trial. The presumption of innocence which is a

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
9/25

fundamental tenet of criminal jurisprudence cannot be turned on

its head by a faulty interpretation of the provision. The

prosecution has to establish primary facts after attaining the

required standards of evidence to trigger the presumption of

culpable intent.

22. Madras High Court in Marriappan Vs. The

Inspector of Police, (Crime No.27/2018) Crl.M.P.(MD)

No.1396 of 2023 as decided on 08.09.2023, has also held that

only after basic and foundational facts of the prosecution case

are laid by adducing legally admissible evidence, the burden

shifts on the accused to rebut it. The minority of the age of the

alleged victim and allegation of sexual assault by the accused

are foundational facts required to be proved by the prosecution

before the Court raises presumption against the accused.

23. Gauhati High in Latu Das Vs. State of Assam,

2019 SCC OnLine Gau 5947 has also held that the

presumption under Section 29 of the POCSO Act does not

absolve the prosecution of its usual burden to prove the guilt of

the accused beyond all reasonable doubts. It only lessens its

burden to some extent and put a corresponding burden on the

accused. Initial burden in a criminal case is always on the

prosecution to bring on record reasonable evidence and

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
10/25

materials to prove that the accusation against the accused is true.

Once such evidence or materials are brought on record, prima

facie, establishing the case of the prosecution, only then the

Court is obliged to raise presumption against the accused and

burden stands shifted on the accused to rebut the presumption

and if the accused fails to rebut the presumption, the Court is

justified to hold the accused guilty of offence under sections 3,

5, 7 and 9 of the POCSO Act.

24. Hence, it clearly emerges that despite statutory

provisions of Sections 29 and 30 of the POCSO Act, the

prosecution is not absolved of its burden to prove that the

alleged 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 doubts and once the presumption is raised against the

accused, the accused can rebut such presumption either by

cross-examination of the prosecution witnesses or by leading

evidence in his/her defence, on the touchstone of preponderance

of probability. The presumptions are bats in law. They fly in a

twilight, but vanish in the light of facts.

25. Now question is what is proof beyond reasonable

doubts. This issue is also well discussed by the Hon’ble

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
11/25

Supreme Court on several occasions. It is settled position of law

that the proof beyond reasonable doubts is not necessarily a

perfect proof to mathematical precision. All that it requires 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 are entitled to get benefit not of all doubts,

but only of reasonable doubts. Every hesitancy, hunch or doubt

are not reasonable doubts. The following Authorities may be

referred in this regard:

(i) Collector of Customs Vs. D. Bhoormal, (1972) 2SCC 544,

(ii) Kali Ram Vs State of HP; (1973) 2 SCC 808,
(iii) Dharm Das Wadhwani Vs. State of U.P. (1974)4 SCC 267,
(iv) Shivaji Sahabrao Bobade Vs. State of Maharashtra,
(1973) 2 SCC 793
(v) Dilavar Hussain Vs. State of Gujarat, (1991) 1SCC 253.]
(vi) Narender Kumar Vs. State (NCT of Delhi),
(2012) 7 SCC 171]

26. Now coming to the evidence on record, it is found

that the victim/informant of the case has been examined as

P.W.-3. In her examination-in-chief, she has supported the

prosecution case reiterating her statements as made in her

written report. In her cross-examination, she has deposed that

she studies in Class-8th. At the time of occurrence it was hindi

month of Jyestht. Onion crops were standing in the field. The

occurrence had taken place on the ridge of the field which was

about one feet wide. At the time of the occurrence, she was
Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
12/25

wearing Shameez-Shalwar. She was also wearing pant and Scarf.

The accused took 2-4 minutes to commit the crime. She had got

injury below her leg. At the time of occurrence, her both hands

were on the ground. The grasses were grown on the ridge where

occurrence took place. She also received abrasion on her waist.

Even blood had come out. Her clothes also got stains of blood.

At the time of her medico-legal examination, her whole body

was seen by the doctor. The doctor and police had also seen her

clothes, which she had worn at the time of the occurrence and

the same was seized by the police. She denied the suggestion

that no offence was committed by the accused/appellant against

her. She also denied that she was not a minor.

27. P.W.-1 is father of the victim. In his

examination-in-chief, he has supported the prosecution case. He

has also deposed that the victim was 14 years of age at the time

of occurrence. In his cross-examination, he has deposed that the

clothes of the victim which were born by her at the time of the

occurrence was seized by the police. The clothes had stains of

semen. The clothes were also having blood stains.

28. P.W.-2 is mother of the victim. In her

examination-in-chief, she has supported the prosecution case.

She has deposed that victim was 14 years of age on the date of
Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
13/25

occurrence. In her examination-in-chief, she has deposed that

her first husband was Mantu Singh and she lived with him for 7

years. The victim child was born out of that wedlock and she

was born within two years of the marriage with Mantu Singh.

Presently she is wife of Ajay Singh for 7-8 years. Ajay Singh

married her after death of his first wife. After separating from

Mantu Singh, she lived alone for 5-6 years. She could not

remember the year of the birth of the victim. She was born at

home, but she had no birth certificate. The victim is studying at

Pokhraha Government School. She denied the suggestion that

the age of the victim was above 18 years at the time of the

alleged occurrence.

29. P.W.-4 is Jay Kishore Singh, who is

Investigating Officer of the case. In his examination-in-chief,

he has deposed that the clothes worn by the victim at the time of

the occurrence was seized as per law. The seized clothes

comprised black Pajama, grey Salwar, black top, pink Ganji and

orange Dupatta. He identified the seizure list also. The seized

material were sent to Forensic Science Laboratory, Patna. The

report was also received and same has been exhibited as Ext.-1.

He has further deposed that the place of occurrence was situated

at village- Pokhraha in the Nasriganj Police Station. It was a

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
14/25

ridge situated between the house of the informant and fallow

field of Permanand Singh. It is surrounded by fallow field of

Permanand Singh to the North, house of the informant to the

South, field of Arvind Mahto to the East and fallow field of

Shivmangal Singh to the West. In his cross-examination, he had

deposed that he had not seized any material from the place of the

occurrence. Medical examination of the victim was conducted

on 04.05.2020. He denied the suggestion that investigation done

by him was defective.

30. P.W.-5 is Doctor Bina Rani who conducted

medico legal examination of the victim on 04.05.2020 at 21:50

P.M. As per medical examination, the following findings were

recorded by her:-

“(2) Auxiliary hair present. Breast developed. Pubic

hair present.
(3) L.M.P.-(10-14 days back from the day of
examination)
(4) Per abdominal examination-Nothing abnormal
found.
(5) Vaginal orifice admit one finger with difficulty.
(6) No injury is found anywhere over body or private
part.
(7) Mark of identification cut mark near lateral
bordering right eye.
Opinion was reserved till the pathological reports
were available. The pathological report as provided
by Dr. Ajay Kumar Singh has following findings:-
(i) Spermatozoa not found either dead or alive.
(ii) Epithelial cells 2-3/HPC
(iii) Urine Pregnancy Test Report- Negative
(8) Final opinion- from above finds it is very difficult
Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
15/25

to say whether rape has been committed or not.”

31. She has also deposed that she had not assessed the

age of the victim. For this purpose, the victim was referred to

Sadar Hospital, Sasaram. She has further deposed that she had

not found any injury on the person of the victim.

32. P.W.-7 is Doctor Kameshwar Nath Tiwari, who

was Chairman of the Medical Board which assessed the age of

the victim between 17 and 18 years on the basis of the medical

tests. In his cross-examination, he has deposed that on the basis

of the X-ray report the age of the victim fluctuates only by one

or two years. He has denied the suggestion that report was not

scientific and proper and the age of the victim was about 20

years.

33. P.W.-6 is Ajay Kumar. In his examination-in-

chief, he has deposed that on 24.11.2020 he was posted as

Scientist Assistant Director in the F.S.L., Patna. He has also

deposed that Salwar cuttings of the victim was marked as Ext.-1

for serological test and as per the serological test, semen has

been detected in the Ext.-1. The stain of semen was of human

origin and its blood was “O”. This report was prepared in his

presence by Shyam Sunder Pandit, Typist. Human sperm can

survive for 72 hours without preservation.

34. Now the first and foremost question is whether

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
16/25

the prosecution has proved that the alleged victim was child i.e.

below 18 years of age on the date of occurrence in terms of

Section 2(1)(d) of the POCSO Act. It is one of the foundational

facts to be proved by the prosecution, as it is a prerequisite for

application of the POCSO Act against the Appellant.

35. No procedure has been provided in the POCSO

Act for determination of the age of the victim. Section 34 (2) of

the Act only provides that if any question arises whether a

person is a child or not, such question is required to be

determined by the Special Court after satisfying itself about the

age of such person and to record in writing its reason for such

determination.

36. However in landmark judgment of Jarnail Singh

Vs. State of Haryana, (2013) 7 SCC 263, which is still holding

the field and being followed by all Courts, Hon’ble Apex Court

has held that procedure provided for determination of age of a

juvenile in conflict with law should be adopted for

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

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

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

who is the victim of a crime.

37. Similar view has been taken by Hon’ble Apex

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
17/25

Court in recent case of P. Yuvaprakash Vs. State, 2023 SCC

onLine SC 846 referring to Section 34 of the POCSO Act and

Section 94 of the J.J. Act, 2015.

38. Section 94 of the J.J. Act, 2015, which deals with

presumption and determination of age, reads as follows:

“94. Presumption and determination of age.-

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

39. Hon’ble Apex Court in P. Yuvaprakash Case

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
18/25

(supra), has held as follows:

“13. It is evident from conjoint reading of the

above provisions that wherever the dispute with respect to
the age of a person arises in the context of her or him
being a victim under the POCSO Act, the courts have to
take recourse to the steps indicated in Section 94 of the JJ
Act. The three documents in order of which the Juvenile
Justice Act requires consideration is that the concerned
court has to determine the age by considering the
following documents:
“(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence
thereof;
(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”.
(Emphasis supplied)
40. As such, the age of the victim is determined on

the basis of birth certificate from the school or matriculation or

equivalent certificate, if available. In other words, if the victim

was a student of school, the aforesaid certificates have

precedence over other mode of proof regarding the age. In the

absence of such certificate, birth certificate given by Municipal

Authorities or Panchayat is required to be considered for

determination of the age of the victim. In the absence of the

aforesaid certificates, the age of the victim is required to be

determined by ossification test or any other latest medical test.

Any other proof is impliedly excluded from consideration for

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
19/25

age determination of the victim.

41. However, it is settled position of law that the

ossification test gives only a broad assessment of the age. It

cannot give an exact age. There is always possibility of errors of

one to two years on higher as well as lower side. Hence, it is

required to be considered along with the attending

circumstances. It is also settled principle of law that benefit of

doubt always goes to the accused. The following authorities

may be referred to in this regard:

(i) Karan @ Fatiya Vs. State of M.P. (2023) 5 SCC 504

(ii) Rishipal Singh Solanki Vs. State of U.P., (2022) 8 SCC 602
(iii) Rajak Mohammed Vs. State of H.P. 2018 SCC Online
SC 1222
(iv) Mukarrab Vs. State of U.P., (2017) 2 SCC 210
(v) State of M.P. Vs. Anoop Singh, (2015) 7 SCC 773
(vi) Abuzar Hossain Vs. State of W.B., (2012) 10 SCC 489

42. In the case on hand, it is found that the

prosecution has withheld birth certificate from school despite

availability of such certificate. As per the evidence on record,

the victim was studying at Pokhraha Government School. It

gives rise to adverse inference against the prosecution in regard

to the age of the victim. Hence, benefit of doubt regarding the

age of the victim would go to the accused. As per the

ossification test, age of the victim has been assessed between 17

and 18 years. In view of the adverse inference and possibility of

error of two years even on higher side, the age of the victim is
Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
20/25

assessed to be 18 years plus two years, i.e 20 years.

43. Hence, it is found that the victim was not a child

at the time of alleged occurrence. Hence, the POCSO Act does

not get applied in the case on hand.

44. Now only question is whether the prosecution has

proved the charge framed under Section 376 and 341 of the

Indian Penal Code.

45. From the perusal of the prosecution evidence on

record, it is found that the prosecution witnesses are natural and

consistent in their statements. They appear to be trustworthy.

There is no major discrepancy or contradiction in their

testimony. There is no reason to implicate the Appellant falsely.

No suggestion of any enmity or any other reason was given by

the Defence for false implication. It is true that in the medical

examination done after three days of the occurrence, no injury

or spermatozoa has been found on the private part of the victim.

However, such findings are not fatal to the prosecution case.

Injury or semen are not always found on the private parts of the

victims, particularly when she was medically examined after

three days of the occurrence. Moreover, semen of human origin

and blood have been detected on the salwar cuttings of the

victim as per the FSL report.

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
21/25

46. Hence, the prosecution has successfully proved its

case against the Appellant under Section 376(1) and Section 341

of the Indian Penal Code beyond all reasonable doubts.

However, no charge under the POCSO Act has been proved.

47. In view of the facts and circumstances of the case,

the minimum sentence of R.I. for ten years as provided under

Section 376(1) of the Indian Penal Code would meet the ends of

justice. The applicant is also liable to pay fine of Rs. 500/-

under Section 341 of the Indian Penal Code and in case of

default to pay the fine, to undergo additional Simple

Imprisonment of five days.

48. The Appellant is accordingly convicted and

sentenced modifying the Impugned judgment of conviction and

the order of sentence.

49. The informant is no doubt victim in terms of

section 2(wa) of the Cr.PC, 1973. Hence, she is entitled to

compensation under Section 357 and 357A of Cr.PC, 1973.

50. As the appellant has been found guilty under

Section 376(1) of the Indian Penal Code, and fine has not been

imposed by this Court, he is directed to pay rupees one lac to the

victim under Section 357(3) of the Cr.PC within 90 days, failing

which he would be liable to undergo additional Simple

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
22/25

Imprisonment of six months. Hon’ble Supreme Court in Hari

Singh Vs. Sukhbir Singh (1988) 4 SCC 551 has held that

Court may enforce order of compensation by imposing sentence

in default.

51. The compensation of rupees one lac payable by

the Appellant to the victim is no doubt insufficient to

rehabilitate her. Hence, she is also entitled to compensation

under part-II of the Bihar Victim Compensation Scheme, 2014

as framed under Section 357A Cr. PC., 1973.

52. Hence, Bihar State Legal Services Authority is

recommended to pay compensation to the victim as per part-II

of the Bihar Victim Compensation Scheme, 2014 within two

months of the receipt of this order, if not already paid to the

victim as per direction of learned Trial Court or pay additional

compensation if the amount of the compensation paid is less

than her entitlement under part-II of the Compensation Scheme.

53. Here, it would be apposite to refer to Sunil

Kumar Jha Vs. State of Bihar (2024 SCC Online Pat 960) as

decided by Division Bench of this Court after referring to

relevant statutory provisions and various case laws. Para Nos.

105 to 108 of this case read as follows:

“105. It clearly emerges from the aforesaid

statutory provisions and case laws that the Court
conducting a criminal trial is duty bound to pass reasoned
Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
23/25

order, on the conclusion of the trial, regarding

compensation to victims as per Section 357 and Section
357 A Cr.PC, irrespective of conviction, acquittal or
discharge. Such order has to be passed by the Trial Court
even when the victim has not filed an application for
compensation. In such order, the Court is required to give
finding whether the alleged offence has been committed or
not, and if committed who is victim of the committed
offence, and if there is any victim in terms of Section 2
(wa) Cr.PC, whether victim is entitled to compensation
under Section 357 and Section 357 A Cr.PC and if yes,
how much and from whom.
106. The Appellate and Revisional Court are
equally duty bound to pass such order regarding
compensation to the victims in their final judgments even
if the appeals/revisions have been filed by a party other
than the victim, only condition being that appeal or
revision or any other proceeding arising out of the crime
is pending before the Court.
107. Moreover, victims are entitled to benefits
under State Victim Compensation Scheme made under
Section 357A Cr.PC even when the concerned offence has
been committed prior to the scheme coming into force if
the trial, appeal or revision are pending on or after the
scheme came into force.
108. In case of conviction of the Accused,
compensation payable to the victim may be imposed upon
the convict as per his paying capacity either by way of
fine or otherwise under Section 357 Cr.PC and if the
compensation directed to be paid under Section 357 Cr.PC
is not sufficient to rehabilitate the victim, the Court is
empowered to recommend the Legal Services Authority to
pay the compensation to the victim from the State fund
created under Victim Compensation Scheme made under
Section 357A Cr.PC. In case of acquittal of the Accused-
Appellant, the Court is duty bound to resort to Section
357A Cr.PC to recommend Legal Services Authorities to
pay compensation to the victim as per Victim
Compensation Scheme of the State as made under Section
357A Cr.PC.”
(Emphasis supplied)

54. Here, it would be also relevant to refer to Dev

Narayan Yadav Vs. State of Bihar (2024 SCC Online Pat

3010) as decided by Division Bench of this Court dealing with

Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
24/25

compensation to rape victims who are not covered under the

POCSO Act. The relevant para of this case reads as follows:

“59. Here, it would be pertinent to mention that Bihar

Victim Compensation Scheme, 2014 was made under
Section 357A Cr. PC providing for compensation to
victims from State fund named as “Victim Compensation
Fund”. The schedule annexed to the Scheme describes the
offence/injuries or loss for which compensation is to be
paid. Such offences include offences against women also.
It also specifies the minimum and maximum amount of
compensation provided for specific offences or injuries.
The discretion to decide the quantum of compensation has
been left with State/District Legal Services Authority as
per the Scheme. The Scheme was amended in 2018
enhancing the amount of compensation payable to the
victim. In 2019, by way of Bihar Victim Compensation
(Amendment) Scheme, 2019, the compensation scheme
for women victims/survivors of sexual assault/other
crimes, 2019 was added in the Bihar Victim
Compensation Scheme, 2014 as its part-II in view of the
direction of Hon’ble Apex Court in Civil Writ No.
565/2012 titled “Nipun Saxena and Ors. Vs. Union of
Indian and Ors.” and approval of “the compensation
scheme for women victims/survivors of sexual
assault/other crimes-2018 prepared by NALSA.”
……………………………………………………
61. It is also relevant to mention that part-I of the Scheme
of 2014 and newly added part-II of the Scheme, at times,
overlap because Part-I of the Scheme also deals with
offences against women, but the quantum of the
compensation provided in part-I is less than what has been
provided in part-II. Hence, after addition of part-II,
specifically dealing with compensation to women victims,
part-I of the Scheme has become redundant to the extent
the offence is covered by Part-II and the State is duty
bound to apply part-II of the Scheme in case payment of
compensation to women victims is covered by both parts
of the scheme.”
(Emphasis supplied)

55. The appeal is accordingly disposed of, modifying

the impugned judgment of conviction and order of sentence, and

recommending Bihar State Legal Services Authority to pay

 Patna High Court CR. APP (SJ) No.497 of 2023 dt.26-07-2024
25/25

compensation as per the above-noted direction.

56. Office is directed to send a copy of this order to

Secretary of Bihar State Legal Services Authority for

information and needful.

(Jitendra Kumar, J.)

S.Ali/Shoaib/
Chandan-
AFR/NAFR AFR
CAV DATE 12.07.2024
Uploading Date 26.07.2024
Transmission Date 26.07.2024