IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.1210 of 2023

Arising Out of PS. Case No.-66 Year-2018 Thana- Balthar District- West Champaran

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Islam Miyan Hajam @ Islam Miyan, aged about 35 years, Gender-Male, Son
of Kuresh Miyan @ Kuresh Miya, R/V- Lakhaura, P.S.- Balthar, District-
West Champaran
... ... Appellant
Versus

The State Of Bihar

... ... Respondent

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Appearance :

For the Appellant/s : Mr. Bimlesh Kumar Pandey, Advocate

For the State : Mr. Ramchandra Singh, APP
For the Informant : Mr. Naumaan Ahmad, Advocate

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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

11.01.2023 and 18.01.2023 respectively passed by Ld.

Additional District and Sessions Judge-VIIth-cum-Special Judge,

POCSO Act, West Champaran at Bettiah in POCSO Case No.

201 of 2018, S.G.R. No. 62 of 2018, arising out of Balthar P.S.

Case No. 66 of 2018, whereby the sole appellant has been found

guilty of offence punishable under Section 376(1) of the Indian

Penal Code and Section 4 of the POCSO Act and sentenced to

undergo R.I. for ten years under Section 376(1) of the Indian

Penal Code and R.I for 10 years under Section 4 of the POCSO
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Act. A fine of Rs. 20,000/- payable to the victim has also been

imposed upon the Appellant. In case of default to pay the fine,

the convict has been ordered to undergo additional S.I. of three

months. Ld. Trial Court has also directed the Secretary, District

Legal Services Authority, Bettiah, West Champaran to pay

Rs.3,00,000/- to the victim towards compensation.

2. The F.I.R. bearing Balthar P.S. Case No. 66 of 2018

has been registered on written report of the victim/informant

dated 28.05.2018 addressed to Officer-in-Charge, Balthar Police

Station under Section 376, 323, 504, 506, 341 read with Section

34 of the Indian Penal Code, Section 4 of POCSO Act and

Sections 66(E)/67 of Information Technology Act against four

Accussed persons, viz., Islam Miyan, Kuresh Miyan, Motaleek

Miyan and Guddu Miyan. The written report was lodged at 5:15

P.M.

3. The prosecution case, as emerging from the written

report of the informant is that at 6:00 AM on 20.05.2018, the

informant had gone out from her home near Qabristan to answer

the call of nature. At that time, her villager i.e. the Appellant

herein took her into his hold from back and pushed her on the

ground and having a country made pistol in his hand threatened

her not to raise hulla, otherwise he would kill her and,

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thereafter, he untied her Shalwar and pushed her down and

forcibly raped on her. When she told him that she would

disclose the occurrence to her villagers, the Appellant threatened

her with his gun and after opening her clothes and raising it,

clicked various photos of her in naked condition and threatened

that if she would disclose it anywhere, he would make these

photos viral on Mobile. Thereafter, he kept on doing it on

whatsapp on his Mobile. Thereafter, she went back to her home

and disclosed the occurrence to her mother. Thereafter, she

along with her mother, uncle Istekhar and villager Doha Hakim,

aged about 38 years, went to the house of the Appellant and

asked the Appellant and his father about the occurrence. Then

the Appellant, his father Kuresh Miyan, Motaleek Miyan,

Mosaheb Miyan and Guddu Miyan got angry and started

abusing them and slapped and after beating them, they made

them flee away and told to do what she can do and claimed that

she cannot harm them. Thereafter, Panchayatis were being held

in regard to the occurrence and that is why the written report

could be submitted late.

4. After lodging of the F.I.R., investigation

commenced and after investigation, charge sheet bearing No. 84

of 2018 dated 20.07.2018 was submitted against the sole

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accused who is Appellant herein, exonerating all other co-

accused named in the First Information Report, under Sections

376 & 506 of the Indian Penal Code, Section 4 of POCSO Act

and Sections 36(E)/37 of Information Technology Act.

Subsequently, cognizance of the offence against the sole

accused, who is Appellant herein, was taken by the Ld. POCSO

Court and charge under Sections 376, 506 of the Indian Penal

Code, Section 6 of POCSO Act and Section 66E, 67 of I.T. Act

were framed against the Appellant and the same were read over

and explained to the Accused/Appellant, 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 – Anguri Khatoon (bua of the victim)

(2) P.W.-2 – Shabana Khatoon (Mother of the victim)
(3) P.W.-3 – Victim
(4) P.W.-4 – Dr. Akanksha (who conducted medical
examination of the victim)

6. The prosecution brought on record the following

documentary evidences also:

(i) Ext. 1 – Thumb impression of Anguri Khatoon

on the written report;
(ii) Ext. 2 – written report;
(iii) Ext. 2/a – Signature of the victim on written
report;
(iv) Ext. 3 – Statement of the victim under Section
164 Cr.PC;
(v) Ext. 3/a- Signature of the victim on Statement
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of 164 Cr.PC;
(vi) Ext. 4 – Medical report;
(vii) Ext. 4/a – Signature of doctor on the medical
report;
(viii) Ext. 5 – application filed by the I.O for the
medical examination

7. After closure of the prosecution evidence, the

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 examination he has stated that he

heard the evidence of the Prosecution but he did not explain any

circumstances. He has denied the charge and claimed to be

innocent.

8. Ld. Trial Court after appreciating the evidence on

record and considering the submission of the parties passed the

impugned judgment and order of sentence. He found that on the

alleged date of occurrence, the victim was 17 years of age and

Prosecution has proved his case against the Accused/Appellant

under Section 376(1) of the Indian Penal Code and Section 4 of

POCSO Act. However, he acquitted the Appellant of all other

charges. Accordingly, the impugned judgment of conviction and

order of sentence were passed.

9. We have heard Ld. Counsel for the Appellant and

Ld. APP for the State as well as Ld. Counsel for the informant.
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10. Ld. Counsel for the Appellant has submitted that

the impugned judgment of conviction and order of sentence

passed by the Ld. Trial Court are not sustainable in the eye of

law or on facts. Ld. Court below has not applied its judicial mind

and has failed to properly appreciate the evidence on record.

11. To substantiate his claims, he has submitted that

the prosecution has failed to prove that the alleged victim was

below 18 years of age at the time of the alleged occurrence. He

has further submitted that the alleged victim had studied in

Bairagya State Upgraded Middle School but the Prosecution has

withheld the documentary proof in regard to her age, whereas as

per Section 94 of the J.J. Act, 2015, the first preference for

determination of the age of the victim is her school certificate.

The Prosecution has brought on record only Medical test in

regard to the age of the victim and as per it, she has been

assessed to be 17-19 years of age. He has further submitted that

the Appellant, by way of defence, has brought on record that the

date of birth of the victim as per school admission register is

29.05.1997 and as per which the age of the alleged victim on the

date of alleged occurrence i.e. on 20.05.2018, comes to 20 years,

11 months and 21 days. Hence, the provisions of POCSO Act do

not get attracted in the alleged facts and circumstances.

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12. He has further submitted that the allegation of

rape is also not supported by medical evidence. It makes the

prosecution case highly improbable.

13. He has further submitted that there are material

contradictions in the statement of the prosecutrix making the

prosecutrix untrustworthy witness. To substantiate the claim, he

has submitted that in her fardebayan, the prosecutrix had stated

that the Appellant after taking her in his hold, she was pushed to

the ground and ravished her. But in testimony before the Court,

she deposed that the Appellant after taking her in hold, took her

to the nearby sugarcane field where he ravished her.

14. He has further submitted that as per medical

examination, the doctor has not found even abrasion on the

person of the victim, whereas, as per the alleged occurrence, she

was bound to receive injury as well as abrasion. As per the

allegation, the victim was taken into sugarcane field where crops

of 4-5 feet height were standing and it is common knowledge

that leaves of sugarcane are so sharp edged that entry into

sugarcane field is bound to cause abrasion on uncovered part of

the body. But, in the case on hand, admittedly, the victim has not

got any abrasion let alone any injury, despite the allegation that

she was taken into sugarcane field where she was thrown on the
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ground and ravished. Such facts and circumstances make the

Prosecution case highly improbable making the Appellant

entitled to the benefit of doubt.

15. He has also submitted that there is inordinate

delay of 8 days to submit the written report, which affords

opportunity to the informant to think over and lodge a concocted

allegations to the Police. He has also submitted that there is

enmity between the family of the informant and that of the

appellant, in regard to land and both the families are neighbors.

16. However, Ld. APP for the State and Ld. Counsel

for the informant defend the impugned judgment of conviction

and order of sentence submitting that the victim was 16 years of

age on the alleged date of occurrence and prosecution has proved

its case as per law against the appellant.

17. 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
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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
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."

18. 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.

19. 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?

20. This question is no longer res integra.

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21. 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

Articles 14 and 21 of the Constitution.

22. 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.

23. 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.

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24. Allahabad High Court in Monish Vs. State of

U.P, Crim. 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

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.

25. 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.

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

2019 SCC OnLine Gau 5947 has also held that the
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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

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.

27. 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

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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.

28. Now question is what is proof beyond reasonable

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

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) 2 SCC 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) 1 SCC 253
(vi) Narender Kumar Vs. State (NCT of Delhi),
(2012) 7 SCC 171
29. Now coming to the evidence on record, I find

that the victim has been examined as P.W.-3. In her

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

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reiterating her statement as made in her written report. However,

it is worth noting that in her written report, she had stated that

the appellant after taking her in his hold from back, he had

pushed her on the ground and raped upon her. However, in her

examination-in-chief, she has deposed that appellant after taking

her in his hold from the back, he took into the nearby sugarcane

field where he pushed her down on the ground and raped her.

She has also deposed that she was 17 years old at the time of

occurrence. She has also identified her statement under Section

164 Cr.PC which has been exhibited as Ext.-3. During her cross-

examination, she has deposed that the sugarcane were of the

height of five feet standing in the field. She has also deposed that

she did not get any scratch or abrasion when the appellant

pushed her down on the ground and committed rape upon her.

She has also deposed that at the time of the occurrence her

clothes did not get any stain of blood. She has deposed that she

has never studied at Bairagiya School. She has denied the

suggestion that she had studied at Bairagiya School upto 8 th

class. She has also denied the suggestion that at the time of the

occurrence she was not minor. She has also denied the

suggestion that she has falsely implicated the appellant on

account of land dispute between her family and that of the

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appellant.

30. Mother of the victim has been examined as P.W.-

2. She is not an eye-witness to the occurrence because as per her

deposition, the victim was alone at the time of occurrence, she

was not with her. However after the occurrence, she had gone

with the victim to the home of the appellant to complain about

the occurrence and thereafter she had taken the victim to the

police station. In her cross-examination, she has deposed that

her house and that of the appellant are situated at the adjacent to

each other. However she has denied that there is any dispute

regarding land and any litigation is going on between her family

and that of the appellant. She has also deposed that at the time of

the occurrence the victim was wearing green Salwar and pink

Samij. Salwar was torn on the front side. However she has

deposed that Salwar and Samij were not having any blood stain

and the clothes were handed over to the police. She has also

deposed that there was no scratch or abrasion on the person of

the victim. She has also deposed that the victim was no

examined by doctor. She has also deposed that no naked photo

of her daughter had come on her mobile.

31. Bua of the victim has been examined as P.W.-1.

She is also not an eye-witness to the occurrence. However, in her

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cross-examination, she has deposed that the victim was a student

of Bairagiya Urdu School but much prior to the occurrence, she

had left the school. She had denied the suggestion that there was

any land dispute between the family of the victim and that of the

appellant. She has also deposed that at the place of the

occurrence sugarcane were broken in the area of five hands. She

has also deposed that string of the pajama was broken and

Salwar was torn. She has denied the suggestion that no

occurrence has taken place to the prosecutrix nor was any naked

photo taken by the appellant.

32. P.W.-4 is Dr. Ankasha who had examined the

victim on 30.05.2018. She had found hymen of the victim

ruptured and old tag present but no injury was found on her

private part internally or externally. She had also referred to

Pathologist Department for vaginal swab and as per the

pathologist, no spermatozoa was seen. She had also referred the

victim to Radiologist Department for X-ray and as per the

medical test, her age was found to be 17 to 19 years. She has

also deposed that as per the medical examination, there was no

sign of recent sexual assault was found. She has also not found

any sign of violence on the person of the victim.

33. The Appellant has also examined one witness

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namely Khushbun Nisha as DW-1. She in her examination-in-

chief has deposed that she is working as Pradhan Shikshak

(Principal teacher) in Vairagya State Upgraded Middle School.

She had come to the Court along with Admission register on the

order of the Court and as per Sl.No. 42, the victim was admitted

to Class-III on 25.05.2008 to her school and as per the admission

register, her date of birth is 29.05.1997 and the entry has been

made in the writing and signature of the then Headmaster Md.

Samiullah. In her cross-examination she has deposed that she is

not Headmaster but Pradhan Shikshak (Principal teacher).

Presently there is no Headmaster in the School. She has been

posted in the school since 2005. However, she does not

remember when Samiullah was posted there. She has denied the

suggestion that she has neither posted as Principal teacher in the

school nor is she ware about Md. Samiullah and his writing and

she has deposed in connivance with the accused.

34. Now the first and foremost question is whether

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.

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35. Now question is what is the procedure to

determine the age of the alleged victim. In the POCSO Act,

there is no such procedure. Section 34 (2) of the POCSO 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

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.-

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(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

(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
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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

age determination of the victim.

41. Coming to the case on hand, it is found in regard

to the age of the victim that the victim was a student of

Bairagiya Urdu School as per P.W.-1. However, the prosecution

has not filed any school certificate in regard to age of the victim.

Withholding such documentary proof regarding age of the victim

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by the prosecution gives rise to adverse inference against the

prosecution in regard to age of the victim. The initial burden of

proof regarding the age of the victim lies on the prosecution

despite Section 29 of the POCSO Act because it is foundational

fact to be proved by the prosecution for application of the

POCSO Act and raising presumption against the

accused/Appellant. On the other hand, the prosecution has

examined D.W.-1 Khushbun Nisha who was Principal teacher

of Bairagiya State Urdu upgraded middle school. On summons

from the Trial Court she had come to the Court with admission

register and as per serial no. 42 in the register, victim was

admitted to class three on 25.05.2008 to her school and as per

the admission register, her date of birth is 29.05.1997. As such,

the age of the victim on the date of occurrence i.e. 20.05.2018

comes to 21 days 11 months and 20 years.

42. As such, it is found that the victim was above 18

years of age on the date of occurrence and hence, the provisions

of POCSO Act do not apply against the appellant.

43. Now, only question is whether the prosecution

has proved the charge framed under Section 376 of IPC against

the Appellant.

44. From the perusal of the evidence on record it

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emerges that as per the fardebayan when the victim had gone to

answer the call of nature in the early morning, she was taken into

hold by the Appellant from the back all of a sudden. She was

pushed to the ground and raped upon. However, in her

Examination-in-chief she has deposed that after taking into his

hold, the Appellant took her into nearby sugarcane field where

she was pushed to the ground and raped upon. As per the

evidence of the prosecution, sugarcane crops of the height of 5

feet were standing in the field, but admittedly no scratch or

abrasion or any injury on the person of the victim was caused,

whereas the sharp-edged leaves of sugarcane are bound to cause

abrasion on uncovered part of the body like hands and even face.

More so when someone is pushed down on the ground in a

sugarcane field, it is bound to cause scratch or abrasion on the

back or other part of the body. However, as per the prosecution

evidence, there was no scratch or abrasion on the person of the

victim. Moreover, the allegation of rape is also not corroborated

by medical evidence. No injury was found on private part of the

victim. Though, hymen of the victim was found to be ruptured, it

is not conclusive proof of rape. There may be various reasons for

rupture of hymen.

45. The Court is conscious of the law that on the sole

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testimony of prosecutrix, accused may be convicted without

corroboration of her testimony because she is not an accomplice

and stands on the footing of an injured witness. But for such

conviction, the prosecutrix is required to be trustworthy,

inspiring confidence of the Court. She must be sterling witness.

But in the case on hand, it is found that the prosecutrix does not

appear to be truthful and trustworthy. She has lied regarding her

having studied at Bairagiya School. She had deposed that she

had never studied at any school, whereas it has been proved by

D.W.-1 that she was a student at Bairagiya School. She has also

improved her statement in Court regarding place of occurrence.

In the fardebayan, he had stated that she was pushed to the

ground by the Appellant after taking her into his hold, whereas,

in her testimony in the Court, she has deposed that she was taken

into sugarcane field where she was pushed to the ground and

raped upon. It is also highly improbable that she was raped in a

sugarcane field and she would not get any scratch or abrasion by

sharp edged leaves of sugarcane..

46. In view of the aforesaid facts and circumstances,

reasonable doubts are created in the prosecution case against the

Appellant. The Appellant, therefore, deserves to be acquitted

giving benefit of doubts. Accordingly, the impugned judgment

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of conviction and order of sentence against the appellant are not

sustainable in the eyes of law.

47. The appeal is allowed. The appellant stands

acquitted of the charges levelled against him.

48. Since the appellant/Islam Miyan Hajam @ Islam

Miyan is in jail, he is directed to be released forthwith, if he is

not required in any other case.

49. Let a copy of this judgment be dispatched to the

Superintendent of the concerned Jail forthwith for compliance

and record.

50. The records of the case be returned to the Trial

Court forthwith.

51. Interlocutory application/s, if any, also stand

disposed of accordingly.

(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