Case Background
The case arose from a written application given by the stepmother of a girl (referred to as the victim) at the Aurangabad Mahila Police Station on 22.07.2021. In this application, she alleged that her stepdaughter, described as about ten years old, was living in village Bantara with her maternal uncle, the appellant.
The informant claimed that this maternal uncle had been sexually exploiting the girl for several months. According to her, the girl did not speak earlier due to fear. When the informant’s own daughter informed her about this alleged exploitation, she went to the police station along with the victim and submitted the written application.
Based on this written information, Aurangabad (Mahila) P.S. Case No. 25 of 2021 was registered on 22.07.2021 under Sections 376(AB) and 506 of the Indian Penal Code and Section 4 of the POCSO Act against the appellant. After investigation, the police submitted a chargesheet under these sections.
The Special POCSO Court at Aurangabad took cognizance on 29.09.2021. On 17.11.2021, charges under Sections 376 and 506 IPC and Section 4 of the POCSO Act were framed against the appellant. He pleaded not guilty and faced trial.
During the trial, the prosecution examined six witnesses, including the victim, her stepmother, two maternal uncles, the doctor, and the investigating officer. Several documents were exhibited, such as the written application, FIR, and medical report. The defence side examined two witnesses but produced no documentary evidence.
On 17.11.2022, the trial court convicted the appellant under Section 376AB IPC and Section 4 of the POCSO Act. By order dated 21.11.2022, the court sentenced him to rigorous imprisonment for twenty years and a fine of Rs. 10,000/-, with a default sentence of twelve months’ simple imprisonment.
Aggrieved by this conviction and sentence, the appellant filed Criminal Appeal (DB) No. 23 of 2023 before the Patna High Court. Notice was served on the informant, but she did not appear through any advocate. The appeal was heard by a Division Bench.
What the Court Examined and Decided
The Patna High Court closely reviewed the FIR, the evidence of the prosecution and defence witnesses, and the medical report. It also examined whether the basic conditions for applying the POCSO Act were fulfilled, especially proof of the victim’s age.
The starting point was the prosecution story in the written application (Exhibit 2). There, the stepmother (PW-2) stated that the victim was about ten years old and was being sexually exploited by the appellant, her maternal uncle, for several months. She also mentioned threats issued by the appellant to her and her daughter.
The Court noted that Exhibit 2 was written by PW-3, the husband of PW-2’s elder sister. It clearly described the victim’s age as ten years. However, when the victim (PW-1) later deposed, she said she was studying in Class V but did not know her date of birth, nor the age recorded in the school. The investigating officer (PW-6) also had not collected any document regarding age, such as a school record or birth certificate.
In this situation, the only material on age was the medical examination report (Exhibits 3 and 3/1), proved by Dr. Anshu Priya (PW-5). A medical board examined the victim and, on dental examination (28 teeth present), assessed her age at about 16–17 years. PW-5 also stated in cross-examination that 28 teeth may be found in persons aged 19–20 years.
The Court referred to the settled principle from higher courts that a margin of plus/minus two years must be given to the age assessed by doctors. If this margin is applied, the upper limit of the victim’s age could be around 19 years. The defence had specifically suggested in cross-examination that she could be about 19 years old.
On this basis, the High Court held that the prosecution had failed to prove that the victim was a child as required under the POCSO Act. Without reliable proof of the victim being below 18 years, the basic foundation for invoking POCSO was missing. The Court clearly recorded that, considering the medical evidence with the judicial pronouncements on age determination, the victim would be treated as a major.
The Court then examined inconsistencies regarding the place of occurrence. In the written application (Exhibit 2), no specific place was mentioned. In her statement under Section 164 CrPC, the victim said she was taken to a gaushala (cowshed) and sometimes to an orchard for the alleged acts and that she was given small amounts of money after the acts. She also said she had been taken to Gaya and kept there in a house for one night.
However, in her evidence before the trial court, the victim stated that while she was trying to pluck mangoes in the orchard, the “wrong act” was committed with her. She did not say in her examination-in-chief that any incident took place either in the gaushala or in the appellant’s house. In cross-examination, she said the appellant committed wrong acts with her every day only in the orchard in the afternoon.
PW-2, the informant, gave yet another version: she stated that the appellant used to commit wrong acts with the victim in his gaushala. But when the investigating officer (PW-6) inspected the place of occurrence, she stated in her evidence that the place of occurrence was the appellant’s house.
Thus, there were three different versions of the place of occurrence: orchard, gaushala, and house. The written application had none. The Court found that this vacillation and inconsistency on such a basic fact severely weakened the prosecution case.
The Court then turned to the manner in which the victim’s testimony was recorded. The victim was shown as ten years old in the deposition. However, the trial court did not conduct any preliminary test of her competence as a child witness. The Patna High Court referred to the Supreme Court decision in P. Ramesh v. State represented by Inspector of Police, which stresses that before recording a child witness’s evidence, the judge must test whether the child understands questions and can give rational answers.
The Supreme Court has highlighted that the trial judge must be satisfied about the child’s capacity and understanding, and that such satisfaction must reflect in the record. In this case, the trial court did not conduct or record any such test.
The High Court further noted that PW-2 herself stated that the victim was mentally weak. The trial court, in paragraph 31 of the victim’s deposition, also recorded that the victim used to laugh like a child and sometimes do acts that were not normal. In such a situation, it was even more necessary for the prosecution to have the victim’s mental condition medically evaluated before recording her evidence. This was not done.
The Court also examined the sequence of lodging the complaint. PW-2 admitted that she first went to Devkund Police Station with her real brother PW-4 and that an application was written and signed there by both. From Devkund, she was taken by a lady constable to the Mahila Police Station. At Mahila Police Station, another application (Exhibit 2) was written by PW-3.
PW-2 stated that the first application from Devkund P.S. could be produced, but during trial it was never brought on record. The defence suggested that in this first application the appellant’s name and allegations of rape were not mentioned, and for that reason it was withheld. The High Court observed that suppression of this first version was fatal. It held that such withholding affected the authenticity and genuineness of the FIR and cast serious doubt on the prosecution story.
The defence evidence was also considered. DW-1, the eldest son of the appellant, deposed about a monetary transaction of Rs. 30,000/- given by the youngest son of the appellant to the informant’s son for his studies. He stated that when this amount was demanded back, the informant lodged this case. He also spoke of a dispute over the informant’s claimed share in ancestral land. DW-2, a former Mukhiya, supported this version.
The High Court remarked that the trial court had largely ignored these defence witnesses. Looking at the entire evidence, the Division Bench concluded that:
• The prosecution failed to prove that the victim was a minor, so the POCSO presumption under Section 29 could not be validly invoked.
• There were material contradictions about the place of occurrence and manner of the alleged acts.
• The victim’s competence as a child and mentally weak witness had not been properly tested or addressed.
• The first application at Devkund Police Station was suppressed, undermining the first version of the case.
• The defence had presented a plausible defence about monetary and land disputes, supported by witnesses.
In these circumstances, the High Court held that the prosecution had failed to prove its case beyond reasonable doubt and that the presumption of innocence remained with the accused, even in a POCSO case.
Accordingly, the Court set aside the conviction and sentence, acquitted the appellant by giving him the benefit of doubt, and directed that he be released forthwith if not wanted in any other case.
Why This Judgment Matters
This judgment is important for anyone facing or contesting serious charges under the POCSO Act and Section 376 IPC. It shows that even in sensitive cases of alleged sexual assault on a child, the prosecution must still strictly prove basic facts, especially the age of the victim.
The Patna High Court has made it clear that:
• The child’s age cannot be assumed on the basis of a bare statement in the FIR. It must be supported by school records, birth certificates, or properly interpreted medical evidence.
• If the age remains doubtful after applying the accepted medical margin, the accused cannot be punished under POCSO.
The judgment also underlines that changing stories about where and how the crime happened weaken the case. If the first complaint made to the police is not produced, the court may see it as suppression of the true early version, which harms the prosecution. For families and lawyers, this decision highlights the need for complete and consistent documentation from the very first report.
Finally, the Court has stressed that trial courts must be careful while recording the testimony of child and mentally weak witnesses. The judge must test and record their ability to understand questions and give meaningful answers. This protects both the victim and the accused, and helps ensure that the final decision rests on reliable evidence.
Legal Issues and Answers
- Issue: Did the prosecution prove that the victim was a minor so as to validly invoke the POCSO Act and sustain conviction under Section 4 POCSO and Section 376AB IPC?
Answer: No. The only age proof was a medical estimate of 16–17 years, and after applying the accepted margin, the Court held the victim could be major. The basic foundation for POCSO was not proved. - Issue: Was the prosecution case proved beyond reasonable doubt in view of the contradictions, missing first application, and defence evidence?
Answer: No. The Court found serious inconsistencies about the place of occurrence, suppression of the first application, lack of proper examination of the victim as a child and mentally weak witness, and credible defence regarding monetary and land disputes. The conviction was therefore set aside and the appellant acquitted.
Cases Cited by the Court
- P. Ramesh v. State represented by Inspector of Police, (2019) 20 SCC 593 (on testing competence of child witnesses).
- Court on its own Motion v. State of NCT of Delhi, Crl. Ref. 2/2024, judgment dated 02.04.2024, 2024 SCC OnLine Delhi 4484 (on medical age determination and margin of error).
- Rajak Mohammad v. State of H.P., (2018) 9 SCC 248 (on age determination through medical evidence and permissible margin).
Case Details
Case Number: Criminal Appeal (DB) No. 23 of 2023; arising out of Aurangabad Mahila P.S. Case No. 25 of 2021
Case Title: Farid Khan v. The State of Bihar & Anr.
Citation: 2025 (4) PLJR 620
Coram: Hon’ble Mr. Justice Rajeev Ranjan Prasad; Hon’ble Mr. Justice Sourendra Pandey
Date of Judgment: 07.10.2025
Advocates: For the appellant – Mr. Ajay Kumar Thakur, Advocate; Mr. Prince Kumar Mishra, Advocate; Ms. Priyanka Kumari, Advocate. For the State – Mr. Abhimanyu Sharma, Additional Public Prosecutor.
Nature of the Case: Criminal appeal (Division Bench) against conviction and sentence in a POCSO and rape case.
Link to Full Judgment: Patna High Court Judgment – Criminal Appeal (DB) No. 23 of 2023
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