In Ranjeet Sah vs. The State of Bihar (2025), Patna High Court's Division Bench of Justices Rajeev Ranjan Prasad and Ajit Kumar delivered a 41-page long judgement dated October 7, 2025, wherein, it set aside trial court's judgment and acquitted the appellant in a POCSO case. The judgement records that although ''the informant-victim has entered appearance by filing vakalatnama but no one appeared on her behalf to oppose the appeal.''
The judgment was authored by Justice Prasad. He concluded:''55. In result, we set aside the impugned judgment and order and acquit the appellant of the charges giving him benefit of doubt. 56. The appellant is said to be in custody, hence he is ordered to be released forthwith, if not wanted in any other case.''
The judgment was delivered after hearing the appeal preferred for setting aside the judgment of conviction dated January 5, 2023 and the order of sentence dated January 18, 2023 passed by Additional Sessions Judge-VI-cum-Special Judge (POCSO), Gopalganj in POCSO case of 2018. The trial court had convicted the appellant for the offences punishable under Sections 376(3) of the Indian Penal Code (IPC) and Section 5(m)/6, 9(m)/10 of the Protection of Children from Sexual Offences Act (POCSO Act). By the impugned order, he was ordered to undergo rigorous imprisonment for twenty years with a fine of Rs.50,000/- under Section 376(3) IPC. He had also been ordered to undergo five years rigorous imprisonment under Section 9(m)/10 of the POCSO Act with a fine of Rs. 20,000/. Both the sentences were to run concurrently.
The prosecution case was based on the fardbeyan of the mother of the victim, PW-1 recorded by S.I. Sarita Kumari, SHO, Mahila P.S. Gopalganj on September 9, 2018 at 15:30 Hours at the Mahila P.S. Gopalganj. In it she had stated that on September 8, 2018 at about 4 PM, her daughter came crying from ‘bathan’ which is situated near her house and after much asking, she fell asleep crying. On the next day i.e. September 9, 2018, her daughter told her that September 8, 2018 at 3 PM, when she was playing near the ‘bathan’, Ranjit Sah, the appellant came there and took her to his house to boil milk where he closed the door and threatened her to kill with a sword, thereafter, committed wrong act with her. The informant alleged that the appellant threatened her not to tell this to anyone otherwise he will kill her with sword. Because of this threat, her daughter did not tell her anything the night of September 8, 2018. The informant alleged that a boy of his village, namely, Raju when heard the crying of her daughter knocked the door of the appellant and when he opened the door, the victim somehow managed to escape. The informant alleged that this appellant committed wrong act with her daughter.
On the basis of this fardbeyan, Barauli P.S. Case No. 204 of 2018 dated September 9, 2018 was registered under Sections 376(2) IPC and Section 4/5(m)/6 of the POCSO Act against the appellant. After investigation, police submitted chargesheet dated November 17, 2018 under Section 376(2) IPC and Section 4/6/8/10 of the POCSO Act. Thereafter, by order dated December 17, 2018, trial court took cognizance of the offences under the mentioned Sections. The charges were read over and explained to the appellant in Hindi to which he pleaded not guilty and claimed to be tried, accordingly, vide order dated 02.01.2019, charges were framed under Section 376(2) IPC and Section 5(m)/6 and 9(m)(n)/10 of the POCSO Act. In course of trial, the prosecution has examined altogether seven witnesses and exhibited several documentary evidences. Thereafter, the statement of the appellant was recorded under Section 313 of the CrPC. He took a plea that he was innocent. No oral or documentary evidence was adduced on behalf of the Defence.
After arguments on several dates, one application was filed in the trial court on November 4, 2022 on behalf of the prosecution with a prayer for alteration of the charges. A request was made to alter the charge of Section 376(2) IPC to Section 376(3) IPC on the ground that on September 8, 2018 Section 376(3) was already there but due to a typographical error Section 376(2) IPC was mentioned. The said application was moved on December 2, 2022. On perusal of the order dated December 2, 2022, it is apparent that the defence side did not raise any objection and made a submission that if the charge was altered then the defence would not cross-examine the prosecution witnesses. The trial court noted that the date of occurrence was September 8, 2018, therefore, charge should be framed under Section 376(3) in place of Section 376(2) IPC. Accordingly, the charge was altered which the accused denied. The trial court recorded that because the defence does not want to cross-examine the wintesses on the alteration of charge, therefore, the record is fixed for argument.
Section 376 (3) of IPC reads: ''Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine:” Its proviso reads: ''Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim.''
The provision makes it clear that if a person is convicted for offence punishable under Section 376 (3) of IPC, he would have to suffer minimum sentence of rigorous imprisonment for not less than 20 years. Sections 216 and 217 of Cr.P.C are relevant in this regard.
Section 216 of Cr.P.C. provides that any court may alter or to add any charge at any time before judgment is pronounced. Section 216 reads:-
“216. Court may alter charge. (1)Any Court may alter or add to any charge at any time before judgment is pronounced.
(2)Every such alteration or addition shall be read and explained to the accused.
(3)If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4)If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or
adjourn the trial for such period as may be necessary.
(5)If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
Section 217 of Cr.P.C. reads:. Recall of witnesses when charge altered. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed—(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material.”
Justice Prasad recollected in para 9, 10 and 11 the decision in R. Rachaiah vs. Home Secretary, Bangalore (2016) 12 SCC 172. In para 9, it held that the conviction under Section 302 IPC was clearly vitiated as the same was in violation of the mandatory procedure prescribed under Sections 216 and 217 of the Code. Paragraph ‘10’ and ‘11’ of the judgment reads as under:-
“10. The bare reading of Section 216 reveals that though it is permissible for any court to alter or add to any charge at any time before judgment is pronounced, certain safeguards, looking into the interest of the accused person who is charged with the additional charge or with the alteration of the additional charge, are also provided specifically under sub-sections (3) and (4) of Section 216 of the Code. Sub-section (3), in no uncertain term, stipulates that with the alteration or addition to a charge if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it altered or added the original charge by terming the additional or alternative charge as original charge. The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. This position becomes further clear from the bare reading of sub-section (4) of Section 216 of the Code which empowers the Court, in such a situation, to either direct a new trial or adjourn the trial for such period as may be necessary. A new trial is insisted if the charge is altogether different and distinct.
11. Even if the charge may be of same species, the provision for adjourning the trial is made to give sufficient opportunity to the accused to prepare and defend himself. It is, in the same process, Section 217 of the Code provides that whenever a charge is altered or added by the court after the commencement of the trial, the prosecutor as well as the accused shall be allowed to recall or resummon or examine any witnesses who have already been examined with reference to such alteration or addition. In such circumstances, the court is to even allow any further witness which the court thinks to be material in regard to the altered or additional charge.”
Justice Prasad also recollected Supreme Court's decision in Sabbi Mallesu and others vs. State of A.P. (2006) 10 SCC 543, as regards the alteration of charge, the Court observed in paragraph ‘18’ and ‘19’ as
under:-
“18. Having considered the materials on record and keeping in view the submissions made at the Bar, we are of the opinion that not only no case has, thus, been made out to interfere with the judgment of acquittal passed as against the respondents in Criminal Appeal arising out of SLP(Crl.) No. 4438/2004 but also the judgment of conviction and sentence passed against the appellants Nos. 3 and 4 in Crl. Appeal No. 784/2004 herein are not sustainable as they are entitled to be given benefit of doubt as no overt act had been attributed as against them. We submissions made by the learned counsel appearing on behalf of the State that the trial Court in a case of this nature was entitled to alter the charges under Section 246 of the Criminal Procedure Code.
19. The power of the Court to alter the charges is neither in doubt nor in dispute but in terms of sub-section (2) of Section 246, Criminal Procedure Code, it was obligatory on the part of the learned Sessions Judge to bring it to the notice of the accused and explain the same to the accused. The same having not been done, it cannot be said that the requirements of Section 246 of the Criminal Procedure Code stood complied with. It must also be borne in mind that all accused were acquitted for commission of an offence under Section 147 of the Indian Penal Code.”
High Court's Division Bench observed: ''We have perused the trial court records and have noticed that there is one page application on behalf of the prosecution signed by Spl.P.P. on 04.11.2022 in which prayer has been made to alter the charge to one under Section 376(3) IPC in lieu of 376(2) IPC on the ground that by mistake of typist 376(2) has been typed in lieu of 376(3) IPC. The application has, however, not been acknowledged/shown received by the learned defence counsel. There is no endorsement that the defence counsel had no objection to the same. It is also evident that after alteration of charge the accused-appellant was not given any further opportunity under Section 313 Cr.P.C. Despite all this, since the order dated 02.12.2022 of the trial court specifically records that the defence did not want to examine the witnesses on recall, we would not rest our judgment on this ground."
Justice Prasad observed: ''In the cases under POCSO Act the principle that presumption must prove the guilt beyond all reasonable doubt is not done away with. The trial court relied upon it without considering the objection. In our opinion, it would not be safe to attach any evidentiary value to these pages of so-called admission register (court exhibit no.01). It does not fall within the scheme of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 which is required to be followed in the matter of age assessment of a victim or a child in conflict with law.'' He referred to Delhi High Court's decision in Court on its own Motion vs. State of NCT of Delhi vs. State of NCT of Delhi (Crl. Ref.2/2024 judgment dated 02.04.2024) 2024 SC OnLine Delhi 4484, as regards the assessment of age of a victim in a POCSO case, wherein, the Court held:-
“46.As an upshot of our foregoing discussion, the Reference is answered as under:-
(i) Whether in POCSO cases, the Court is required to consider the lower side of the age estimation report, or the upper side of the age estimation report of a victim in cases where the age of the victim is proved through bone age ossification test?
Ans: In such cases of sexual assault, wherever, the court is called upon to determine the age of victim based on ‘bone age ossification report’, the upper age given in ‘reference range’ be considered as age of the victim.
(ii) Whether the principle of ‘margin of error’ is to be applicable or not in cases under the POCSO Act where the age of a victim is to be proved through bone age ossification test.
Ans: Yes. The margin of error of two years is further required to be applied.”
Justice Prasad led Division Bench has recorded that the victim had made her statement under Section 164 Cr.P.C. The said statement was recorded on September 10, 2018. In her statement, she has stated that she and Isha were playing and thereafter she has stated that the accused had caught hold of her, opened her pant and he opened his own lungi and slammed her down on the chowki and touched her lower part, caught her and came over her, when Isha came then he did not open the door then she brought Raju Mama (PW-3), she claimed that he got the door opened and got her out. In course of trial, PW-2 has not stated that Isha had called Raju Mama and he got the door opened rather she said that when she was weeping and crying then one boy namely, Raju from the village got the door opened whereafter she ran away to her house weeping and crying. Isha was not examined in course of trial. In course of trial, PW-2 stated that Isha had also gone inside the house of the accused-appellant but she was sent to a shop to bring gutka. Isha was a material witness in this case but has been withheld by the prosecution. The I.O. categorically stated in his deposition that the witness Raju Kumar, Isha Kumari and Ranju Devi, none of them had made statement before him that the accused had committed rape with the victim.
It also recorded in its judgement that in her cross-examination, Dr. Supriya Suman, PW-5 clearly stated that there was no mark of sexual violence on the private part of the victim, there was no tear or laceration in the component of the vagina. It was, thus, evident that so far as the medical examination of the victim was concerned, the doctor did not found any sign of recent sexual act, though the victim was habitual to sexual intercourse. It was also found that the appellant in this case was arrested immediately on the next day i.e. on September 10, 2018 but he was not taken for medical examination. The I.O. stated that during the investigation he had not seized the clothes worn by the victim at the time of occurrence because the informant side had not produced the clothes.
Justice Prasad concluded: ''53. In the kind of the evidences on the record, this Court finds that the prosecution has not been able to prove that there was any penetrative sexual act by the appellant with the victim (X). We have also noticed that while in her examination-in-chief the victim has stated that the appellant lifted his lungi and committed wrong act with her, in her own cross-examination, the victim has stated in paragraph ‘34’ that the accused was wearing a towel. The defence has suggested all the prosecution witnesses that it is a case of false implication because of land dispute as the prosecution side was trying to usurp the land of the accused which is adjacent to his house and for this reason a false case has been concocted in connivance between PW-2 and PW-3. 54. On overall analysis of the evidences on the record, we are of the considered opinion that in this case neither the age of the victim girl has been properly assessed by the learned trial court nor the ocular and documentary evidences on the record have been duly appreciated. The testimony of the victim does not inspire confidence, PW-3 claims that when he pushed opened the door of the appellant, the victim told her that the appellant had committed rape on her, still his conduct in not informing this occurrence to the family of the victim and then not going with them to the police station even on the next day would compel this Court to take a view that he has been introduced in this case with an afterthought. The witnesses being untrustworthy, the delay of more than 24 hours in a case where PW-3 claims herself a witness of the circumstances at place of occurrence would further go against the prosecution. In these materials, it would not be safe to sustain the findings of the learned trial court.'' PW-2 is the victim and PW-3 is Raju Kumar.
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