Justices Bibek Chaudhuri, Dr. Anshuman set aside judgment of conviction by Special Judge (POCSO Act), Aurangabad, acquits accused in case of kidnapping and alleged rape in 2015 due to inconsistencies in victim's evidence, lack of corroborative medical evidence, fabricated allegations

In Deepak Kumar @ Sunny vs. State of Bihar (2026), Patna High Court's Division Bench of Justice Bibek Chaudhuri and Dr. Anshuman delivered a 23-page long judgement dated March 18, 2026, wherein, it concluded: "26. On careful appreciation of evidence, we can categorize the witnesses on behalf of the prosecution into three categories:(i) victim being the eye-witness of the incident, (ii) PW-2 to PW-5 as family members of the victim hearsay witnesses and, (iii) PW-7 to PW-9 expert witnesses.  27. Evidence of the hearsay witnesses is of little or no significance, as they did not even see the appellants forcibly taking away the victim on the night of 15.05.2015. The victim's evidence is not wholly reliable; rather, it is mostly unreliable, because there is no explanation as to why the victim remained silent regarding the alleged commission of rape by the appellants in the course of her statement recorded under Section 164 of the CrPC. Thus, the Court is at liberty to hold that the story of rape was subsequently manufactured by the victim. It is needles to say that when there are two views which the Court can arrive at upon assessment of evidence, the view that supports the innocence of the accused shall be accepted. 28. Thirdly, the expert opinion does not suggest any recent commission of rape within three days prior to the medical examination of the victim. On the contrary, the medical report indicates that the victim had prior sexual experience. 29. In view of above finding, we are of the firm opinion that the evidence on record is not sufficient to support the order of conviction and sentence of the appellants. Accordingly, the instant appeal is allowed. Consequently, the appellants are acquitted of the charges levelled against them and are set at liberty. They are discharged from the liabilities of their bail bonds. If they are in custody, they shall be released forthwith, unless required to be detained in connection with any other case." The case was filed in the High Court on August 1, 2018 and registered on August 8, 2018. It was heard along with Yogendra Singh & Anr. vs. The State of Bihar.It was heard by eight different judges during September 2018-February 2026. The arguments were concluded and judgement was reserved on February 25, 2026. 

Prior to the verdict, a Division Bench of Justices Ashutosh Kumar and Jitendra Kumar has passed a 6-page long order dated July 23, 2024, wherein, it had concluded:10. Considering the nature of allegation against the appellants, we are not inclined to suspend their sentence during the pendency of the appeal, notwithstanding the  fact that two other co-accused persons/coconvicts have been released on bail by a Coordinate Bench of this Court. We say so for the reason that the victim has not named those co-convicts in her deposition before the Trial Court and thus, their cases are different from the appellants. 11. The prayer for suspension of sentence of the appellants is rejected. 12. However, looking at the mandate of Section 374 (4) of the Cr.P.C., we deem it appropriate to direct the Registry for preparing the paper book of this case and getting this case listed for final hearing within first five case in the second week of November, 2024, commencing from 11th of November, 2024." Subsequently, Justices Ashutosh Kumar became the Chief Justice of Guwahati High Court. Therefore, Division Bench of Justice Bibek Chaudhuri and Dr. Anshuman heard and adjudicated the matter.    

Both the criminal appeals filed by the convicts had challenged the judgment of conviction dated May 3, 2018 and order of sentence dated May 10, 2018 passed by the  Special Judge (POCSO Act), Aurangabad in GR Case No. 864 of 2015/46 of 2015 arising out of Amba P.S. Case No. 40 of 2015.

The appellants had challenged their conviction under Section 366A of the IPC where they were sentenced to rigorous imprisonment for 7 years with fine of Rs. 10,000/- in default of payment of fine further imprisonment for three months and under Section 376D of the IPC sentencing the appellants to imprisonment for life with fine of Rs. 50,000/- as well as section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) awarded thereunder. The trial court directed that the sentences of imprisonment shall run concurrently. The principle grounds urged assailing the impugned judgment are misappreciation of evidence by the learned trial court, undue reliance on interested family witnesses, material contradictions between the victim's statement under Section 164 of the CrPC and her deposition in Court, absence of independent corroboration, lack of medical support for forcible gang rape and the Investigating Officer's finding that the case was unfounded against appellant Yogendra Singh.

Amba P.S. Case No. 40 of 2015 was registered on May 16, 2015 on the basis of a complaint lodged by the father of the victim, (hereinafter called as the 'informant'), alleging inter alia that in the night of 15/16 May 2015 at about 12:00 at midnight her minor girl (name of the victim girl is not disclosed and she is described as victim), then aged about 15/16 years, was kidnapped from her house situated at Village Balia within P.S. Amba in the District of Aurangabad. It was alleged by the informant that the covillagers, namely, Yogendra Singh, Deepak Kumar Singh @ Sunny, Rahul Kumar, Pradeep Singh and Sonal Kumar kidnapped her for the purpose of illicit intercourse or to marry her illegally. The trial court's record shows that the victim was rescued on May 18, 2015 near the Haat (market) situated by the side of a Shiva Temple in the same village in early morning. Her statement under Section 164 of the CrPC was recorded on May 20, 2015. The victim was medically examined on May 19, 2015 by a Medical Board. The accused persons were arrested. The I.O. examined available witnesses and recorded their statement under Section 161 of the CrPC and on conclusion of investigation, the I.O. submitted charge sheet against Deepak Kumar Singh and Rahul Kumar Singh while final report was submitted against the accused Yogendra Singh, Pradeep Singh and Sonal Kumar. On the basis of the said charge sheet, cognizance was taken against the charge-sheeted accused persons on January 5, 2016. Since the offence punishable under Section 366A/376D of the IPC and Section 4 of the POCSO Act are exclusively triable by the learned Court of Sessions, the case was committed to the learned Special Court under the POCSO Act for trial and disposal.

The following case laws were referred:

    Chandraprakash Kewalchand Jain v. State of Maharashtra 1990 (1) SCC 550

    Ganesan v. State (2020) 10 SCC 573

    Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130

    Naresh Kumar v. State (NCT of Delhi) (2012) 7 SCC 171

    Nirmal Premkumar v. State Rep. by Inspector of Police 2024 INSC 193

    Rai Sandeep v. State (NCT of Delhi) (2012) 8 SCC 21

    Santosh Prasad v. State of Bihar (2020) 3 SCC 443

    State of Maharashtra v. Chandraprakash Kewalchand Jain [(1990) 1 SCC 550 : 1990 SCC (Cri) 210 : AIR 1990 SC 658]

    Vadivelu Thevar v. State of Madras AIR 1957 SC 614

    Vijay v. State of M.P., (2010) 8 SCC 191

       Evidence in Trial Court

    7. The victim girl was examined during trial as PW-1. She deposed in her evidence that on 15.05.2015 at night she was sleeping on the roof of their house with her mother and other family members. She woke up hearing some sounds coming from the ground floor. She thought that her grandfather was asking for water. She came down and found that someone was knocking at the entrance door of their house. She opened the door immediately, appellant Deepak Kumar Singh, Rahul Kumar and Sonal Kumar gagged and blind-folded her. She was forcibly taken in a four-wheeler to some distance and confined her to a dark room. PW-1 further deposed that the appellants repeatedly raped her one by one for three days. On 17.05.2015, Yogendra Singh and 2/4 other persons visited the said house where she was confined and the appellants discussed about either releasing her or committing her murder. The appellants also threatened her that she and her family members would be killed if she discloses the incident. One Pradeep Singh also threatened her. On the next day in the early morning she was again blind-folded and dropped at a place. The victim could understand that she was dropped in front of a Haat situated by the side of a Shiva Temple of their village. Then after 2/3 minutes of her release, police arrived at the spot and rescued her and took her to the local police station.

    8. During investigation of the case, she made statement under Section 164 of the CrPC. In her statement she identified all the accused persons and narrated the incident which had alleged been committed upon her by the appellants. In her crossexamination she denied that she was having any romantic relationship with any of the appellants or that she tried to implicate the appellants falsely. It is important to note at this stage that the deposition of PW-1 appears to be consistent with the evidence of other witnesses in relation to the charge of kidnapping, but lacks precision regarding the place where she was allegedly confined. It is important to note that the deposition of PW-1 is materially inconsistent with her previous statement under Section 164 of the CrPC which described only a story of kidnapping by three persons without any mention of rape by the appellants or giving threats to her. This omission goes to the root of the offence under Section 376D of the IPC and Section 4 of the POCSO Act.

    9. PW-2, is the mother of the victim. It is ascertained from her deposition that on 15.05.2015, she woke up from her sleep at about 02:00 am at night and found her daughter (victim herein) who was sleeping by her side missing. She also discovered that the main gate of the house was open. On her call, other family members of the house woke up and they conducted search for the victim in the village. It is also found from her deposition that she was previously threatened by appellants, namely, Deepak Kumar Singh, Rahul and Sonal not to make a fuss or the girl would be killed. On the following morning also, the family members of the victim vigorously searched to find out the girl. During such time, Yogendra Singh and Pradeep Singh threatened the husband of PW-2. thereafter, he lodged FIR in the local police station. The victim was recovered on 18.05.2015 in the morning. She narrated the entire incident to her parents and other family members. PW-2 came to know from her that she was taken to a dark room by a car and the appellants committed rape upon her. However, the medical officer did not find any external or internal injury on the person of the victim.

    10. PW-3, Baban Singh is the grandfather of the victim. In his deposition he stated on oath that he woke up from sleep at about 2:30 am on 15.05.2015 to learn that the victim was missing with the main gate of their house open. He also took part in conducting search in their village for the victim girl and received threats from Yogendra and Pradeep not to make a fuss or the victim would be killed. The evidence of all the witnesses on the prosecution is consistent about her recovery on 18.05.2015. The witness also stated that the victim was sexually assaulted by the appellants but the medical officer did not find any injury. PW-4 is the father of the victim on the basis of whose fard beyan, Amba P.S. Case No. 40 of 2015 was registered on 16.05.2015. It appears from the statement made in the FIR that in the dead hours of night of 15.05.2015, he woke up hearing the call of his wife and came to know that the victim was missing and entrance door of his house was open. He and other family members conducted search of the victim in the village and heard a rumour that the victim might be kidnapped by Rahul, Deepak @ Sunny and Sonal. He further deposed that he asked about the matter to Yogendra Singh, father of Depak but Yogendra Singh and one Pradeep threatened him seeing that his daughter would be killed. On the 18.05.2015 victim was recovered, then only he came to know that the appellants confined her in a room and committed rape on her for three days. It is pertinent to note that the informant did not state anything about receiving threats from Yogendra Singh and Pradeep in her FIR. No such statement was also made by him before the police.

    11. The evidence of PW-5, Amit Kumar is the same as that of the evidence of other witnesses.

    12. From the evidence of PW-6, S.I. Surrendra Prasad, conducted investigation of the case. It appears that after registration of Amba P.S. Case No. 40 of 2015 on 16.05.2015, he conducted raid to recover the victim girl and on 18.05.2015, she was recovered from a place in her village near the Haat in front of a Shiva Temple. The victim had no injury mark in person. Her medical examination was conducted on 19th May 2015 and statement of the victim under Section 164 of the CrPC was recorded on 20.05.2015.

    13. It is already recorded that in her statement under Section 164 of the CrPC the victim did not state anything about the commission of rape by the appellants and that Yogendra Singh and Pradeep Singh visited the room where she was confined and talked to the appellants either about her release or committing her murder. In her statement under Section 164 of the CrPC, the victim stated her age as 17 years.

    14. PW-7, Dr. Vikas Kumar Singh, PW-8, Dr. Bibhuti Prasana and PW-9, Dr. Rina Kumari where posted at Sadar Hospital Aurangabad. They constituted a Medical Board to examine the victim medically. From the evidence of PW-9, Dr. Rina Kumari, it appears that she examined the victim on 19.05.2015 at about 01:10 pm. She did not find any marks of violence on the body, back, breast, thigh or in and around the private part of the victim. She also found ruptured hymen and vagina admitting one finger easily. There was no abnormal discharge, bleeding, injury on her vulva, vagina, perineum, etc. The patient did not make any complaint of tenderness or bruising. The Medical Board opined that she had undergone sexual act. From the Radiological as well as Dental Report, PW-7 and PW-8 opined that the approximate age of the victim is between 15 and 16 years.

    15. The FIR and relevant medical records were duly exhibited during trial. Defence case as disclosed from the crossexamination of the witnesses on behalf of the prosecution and examination of the accused persons under Section 313 of the CrPC appears to be complete denial of the allegation made out against them. The defence also examined two witnesses, One Ramashish Mahto was explained as DW-1. He is the resident of the same village. He deposed that as per his knowledge goes, no incident took place with the daughter of the informant on the night of 15.05.2015 and the appellants were falsely implicated in this case.

    16. PW-2, Sanyog Kumar Singh is the son-in-law of Pradeep Singh. It is ascertained from his evidence that he was present in Balia from 07.05.2015 to 18.05.2015. He denied that the victim was kidnapped by the appellants. According to him, the victim remained at home throughout and the entire prosecution's case is false.

    Decision by the Trial Court.

    17. This Court at the very beginning of the judgment has recorded that the trial court on appreciation of the evidence on record convicted the accused persons/appellants and sentenced them of various descriptions for the offence punishable under Section 366A of the IPC and Section 376D of the IPC read with Section 4 of the POCSO Act.

   Findings of the Division  Bench of the Hgh Court

    18. It is found from the evidence of PW-2 to PW-5 that their evidence is absolutely hearsay in nature. Except the victim, none of the above-mentioned witnesses are the eye-witness of the occurrence. They did not see the appellants knocking at door of the informant at dead hours of night on 15.05.2015. They did not see the victim girl opening the door or that three miscreants, namely, Rahul Kumar, Deepak Kumar Singh @ Sunny and Sonal gagged and blind-folded her and forcibly took her by a car and confined her in a dark room. They heard the incident from the victim girl after she was recovered on 18.05.2015 by the police.

    19. It is needless to say that in plethora of cases the Hon'ble Supreme Court held that in a case of sexual assault, the evidence of the victim is of utmost importance. The victim's evidence cannot be equated with the evidence of accomplice. She is a victim of crime. A victim does not generally make a false statement regarding commission of an offence at the cost of her virginity and womanhood. In Chandraprakash Kewalchand Jain v. State of Maharashtra reported in 1990(1) SCC 550, the Hon'ble Supreme Court summarized the position of law regarding appreciation of evidence of a prosecutrix in the following words:-

        "16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:

        "It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."

        With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation."

    20. In the instant case, the FIR was lodged by the father of the victim when she was missing. Therefore, he did not know whether the victim had been ravished or not. According to the prosecution's case and the statements of the witnesses, the family members of the victim came to know about the commission of sexual assault by the appellants only after she was recovered. It is already recorded that she was recovered on 18.05.2015. Her medical examination was done on 19.05.2015 and the victim made her first statement recorded judicially under Section 164 of the CrPC on 20.05.2015. Surprisingly enough, she did not make any allegation of the commission of rape by the appellants before the learned Magistrate. Except for the allegation of kidnapping, she did not utter a single word. This is where serious abnormalities lie between the prosecution's case, the initial statement of the victim under Section 164 of the CrPC, and her subsequent evidence on oath.

    21. The victim herself stated that she was about 17 years old at the relevant point of time. The Medical Board, by way of an ossification test and dental examination, found her approximate age to be between 15 and 16 years. From the report of PW-9, Dr. Rina Kumari, we find that the victim was welloriented, therefore, when a girl aged about 15-17 years was kidnapped and she was raped repeatedly by three appellants for three days, it is natural and probable that she would at least resist the perpetrators of offence from committing such heinous act. In her evidence, she stated the appellants committed rape upon her against her will forcibly, if there is a forcible physical relationship upon a girl by three persons for three days, there must be some injury marks on different parts of her body. But the medical officer (PW-9) did not find any mark of violence on her body. On the other hand, she found old rupture of hymen and the vagina easily admitting one finger meaning thereby the victim had previous experience of sexual intercourse.

    22. The Hon'ble Supreme Court in Vadivelu Thevar v. State of Madras reported in AIR 1957 SC 614, laid down "three categories" for appreciating the testimony of a single witness. When the evidence of witness in Court is inconsistent with her earlier statement under Section 164, witness false into the third category of neither wholly reliable nor wholly unreliable. In such cases, the Court must exercise caution and cannot convict an accused on that testimony alone. It must look for corroboration in material particulars from independent sources. The Hon'ble Supreme Court in the aforesaid decision categorized the witnesses into three categories. They are as (i) wholly reliable witness, (ii) wholly unreliable witness and, (iii) neither wholly reliable nor wholly unreliable. The Court can base its conviction on the basis of evidence of a single wholly reliable witness. No conviction is based on wholly unreliable witness. In case of neither wholly reliable nor wholly unreliable witness, Court must exercise caution and cannot convict on that testimony alone.

    23. The law on the point of appreciation of evidence of a particular witness has developed in course of time. In Rai Sandeep v. State (NCT of Delhi) reported in (2012) 8 SCC 21, the Hon'ble Supreme Court cautioned the term "sterling witness". The Hon'ble Apex Court further describes the nature and quality of sterling witness in the case of Rai Sandeep (supra) in paragraph no. 22 and held as under:-

        "22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

    24. In Ganesan v. State reported in (2020) 10 SCC 573, the issue which came up for consideration before the Hon'ble Supreme Court is as to whether in the case involving sexual harassment, molestation, etc., can there be conviction on sole evidence of the prosecutrix. The Hon'ble Supreme Court referred to the following paragraphs of Vijay v. State of M.P., reported in (2010) 8 SCC 191 :-

        "5. Shri. Anip Sachthey, learned counsel appearing for the appellant has submitted that the prosecutrix was a major and it was a case of consent. He has further submitted that conviction cannot be based on the sole deposition of the prosecutrix. There is no other evidence to corroborate her version. The prosecutrix's statement suffers from material discrepancies. On the date of examination of the prosecutrix no physical injury was found on her person or on her private parts. The prosecutrix had given the most improbable and unacceptable version of events that the appellant continued to rape her for about two hours. Then one another accused raped her for about an hour. Also, in spite of the fact that the appellant and others had been arrested on the next date of the incident, the investigating officer did not conduct the test identification parade. The prosecutrix was examined on the next day i.e. on 7-12-1988 by Dr. Rupa Lalwani, Medical Officer (PW 3), and the said medical officer referred her for a radiological test to determine her age, but the report of the said test has never been brought on record. Thus, an adverse inference is to be drawn against the prosecution. The appeal deserves to be allowed. The appellant had falsely been enroped in the crime.

        6. On the other hand, Shri. Siddhartha Dave along with Ms. Vibha Datta Makhija, learned counsel appearing for the State of M.P., vehemently opposed the appeal contending that the prosecutrix was a minor on the date of the incident. The non-production of the report of the radiological test and not holding the test identification parade would not discredit the investigation or the prosecution case. The non-existence of any injury on the person of the prosecutrix cannot be a ground to disbelieve her version. The prosecutrix had such a social background that she did not have any sense of time, duration, etc. and, thus, she was not able to give a precise account of each activity of the incident. She had lost her father; and was an uneducated, rustic villager, who came from a very poor family. The discrepancies in the statements of the witnesses or the prosecutrix are such that the same are not sufficient to demolish the prosecution's case. In a rape case, an accused can be convicted on the sole testimony of the prosecutrix. The appeal lacks merit and is liable to be dismissed.

        7. We have considered the rival submissions made by the learned counsel for the parties and perused the record.

        8. Before we proceed to examine the impugned judgments of the courts below and the facts of the case, it may be desirable to refer to the settled legal principles which have to be applied in the instant case.

        9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [(1990) 1 SCC 550 : 1990 SCC (Cri) 210 : AIR 1990 SC 658] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under : (SCC p. 559, para 16)

        "16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."

    25. Thus, it was held by the Hon'ble Apex Court not only in Ganeshan (supra) but also in Krishna Kumar Malik v. State of Haryana reported in (2011) 7 SCC 130 that to hold an accused guilty for commission of offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and of sterling quality. The said principle has subsequently being followed in Santosh Prasad v. State of Bihar reported in (2020) 3 SCC 443, Naresh Kumar v. State (NCT of Delhi) reported in (2012) 7 SCC 171 and Nirmal Premkumar v. State Rep. by Inspector of Police reported in 2024 INSC 193.

Advocate Dr. Gopal Krishna who is an amicus curiae in the special laws/courts matter observed: "The conviction was reversed due to material contradictions between the victim's Section 164 statement and deposition, alongside a lack of medical evidence and independent corroboration."

Justice Ritesh Kumar sets aside orders by Labour Resources Department, restores petitioner's pension to 100%, directs refund of 20% deducted pension

In Sudhanshu Shekhar Tripathi vs. The State of Bihar through the Chief Secretary & Ors. (2026), Justice Ritesh Kumar delivered a 37-page long judgment dated April 9, 2026, wherein, he concluded:"28. The respondent authorities are directed tor restore the pension of the petitioner to 100% and to refund/return the amount to the tune of 20%, which has been deducted from the pension of the petitioner till date, within a period of three months from the date of receipt/production of a copy of the order. The respondent authorities are further directed to make payment of the entire 100% of the pension/post-retiral dues which have not been paid to the petitioner on account of pendency of the departmental proceeding, within the period aforementioned. If the entire exercise will not be completed within a period of three months, then the petitioner would be entitled for interest @ 6% from the date of filing of the writ petition till the date of its actual payment. 29. The writ petition is allowed with the direction above mentioned."  

The other seven respondents were:  Principal Secretary, Department of Labour Resources, Government of Bihar, Deputy Secretary, Department of Labour Resources, Officer On Special Duty, Department of Labour Resources,  Director of Employment, Directorate of Empolyment and Training Department of Labour Resources, Accountant General (A and E) Bihar, Director of Provident Fund, Finance Department, and District Treasury Officer, Gaya, Bihar. 

The writ petition was filed with prayer calling upon the respondents to show cause why rule nisi in the nature of writ and/or in the nature of writ of certiorari be not issued upon the respondents and the order dated 15.05.2023 passed by the Officer on Special Duty, Department of Labour Resources, Government of Bihar be quashed and or cancelled; further for issuance of writ/order/directions upon the respondent(s) to quash the entire disciplinary proceedings under Memo No.2887 & 2888, both dated 31.10.2017 issued by the respondents upon the petitioner; further issue a writ of or in the nature of writ of mandamus commanding and/or directing the respondents to forthwith release the post-retirement benefits, withheld so far, with interest admissible to the petitioner.

The writ petition was filed because the petitioner having been allocated the Bihar Employment Service, gave his joining as a District Employment Officer on 02.04.1992. He was promoted to the post of Assistant Director of Employment on 02.04.2004 in the pay scale of Rs. 15600-39100/- with Grade Pay of Rs. 6600/-. Subsequently, the petitioner was granted promotion to the post of Deputy Director of Employment and thereafter superannuated from service on 31.10.2017. On 16.10.2017, the petitioner informed the Principal Secretary, Department of Labour Resources,  Government of Bihar, Patna about fake appointments on Class-III and Class-IV posts in the Department of Employment and the need to enquire into the matter. Pursuant to the Letter dated 16.10.2017, an enquiry was conducted and without any basis the department initiated departmental proceeding against the petitioner vide Resolution No. 2887 and 2888, both dated 31.10.2017, but the same was not served upon the petitioner, since on the same day he has superannuated. The said resolutions were not served upon the petitioner, since the same were said to have been sent to the previous place of posting of the petitioner i.e. Gaya Division, Gaya, therefore, the same was returned unserved. However, vide Memo Nos. 3112 and 3114 dated 16.11.2017 issued under the signature of the Deputy Secretary to the Government, Labour Resources Department, Government of Bihar, Patna a decision was taken to convert the departmental proceeding, initiated against the petitioner vide Memo No. 2888 dated 31.10.2017, in the proceeding under Rule, 43(b) of the Bihar Pension Rule, 1950. The petitioner was served with all the letters mentioned hereinabove i.e. Resolution Nos. 2887 and 2888 dated 31.10.2017 and Resolution Nos. 3112 and 3114 dated 16.11.2017, through registered post on 22.11.2017. Along with the letters, the charge of  Memo was also annexed, from where the petitioner came to know about the initiation of departmental proceeding against him. Subsequently vide Letter No. 3468 dated 04.12.2017 issued under the signature of the Deputy Secretary to the Government, Labour Resources Department, Government of Bihar, Patna the petitioner was informed that the entire gratuity has been kept withheld due to the pending enquiry against him and he was also informed that his pension has been reduced by 10%. 

The petitioner's senior counsel submitted that being aggrieved with the decision of the State Government the petitioner preferred C.W.J.C. No. 720 of 2018 before the Hig Court, wherein a Co-ordinate Bench of this Court vide its order dated 15.01.2018, while directing the respondent authorities to file counter affidavit, stayed further proceeding in the matter. The writ petition filed by the petitioner was finally heard by a Co-ordinate Bench of the High Court and vide order dated 05.09.2018, the same was partly allowed by quashing the departmental proceeding in relation to Letter Nos. 2887 and 2890 dated 31.10.2017 and further directed that the proceeding related to Letter Nos. 2887 and 2888 dated 31.10.2017 will continue, subject to the observations made in  the order dated 05.09.2018. The petitioner also filed C.W.J.C. No. 16529 of 2017 and the same was disposed of vide order dated 19.04.2019 passed by a Co-ordinate Bench of the High Court with a direction to the respondent to release the withheld retiral dues and 90% gratuity amount in favour of the petitioner.

The petitioner's senior counsel submitted that in view of the observations made by the Single Judge vide his order dated 05.09.2018, passed in C.W.J.C. No. 720 of 2018, the Joint Labour Commissioner, Bihar vide Memo No. 2010 dated 08.05.2019 directed the Enquiry Officer to produce the letters/documents mentioned therein, in the enquiry, so that decision can be taken that whether the departmental proceeding under Rule 43 (b) of the Bihar Pension Rules has been initiated in violation of the provision contained therein or not, but even then no such documents were provided to the petitioner or produced before the authorities concerned. The petitioner filed an appeal before this Court against the order dated 05.09.2018 passed in C.W.J.C. No. 720 of 2018. The appeal filed by the petitioner was numbered as L.P.A. No. 1553 of 2018. 

The petitioner's counsel also submitted that vide Letter dated 23.08.2021 the petitioner again requested the Conducting Officer to provide evidences with regard to proof of service of the charge-sheet upon the petitioner, before his date of retirement i.e. 31.10.2017, but no response was received by the petitioner, then he was constrained to again write a Letter dated 17.09.2021 to the Conducting Officer, wherein the petitioner again asked for the proof/evidence about the claim of serving notice/charge-sheet upon him before the date of retirement. Along with in the letter dated 17.09.2021, the petitioner also requested the Conducting Officer to call certain witnesses for their examination and cross-examination, to prove/disprove the charges against the petitioner, but no such document was ever provided to the petitioner.

The senior counsel for the petitioner submitted that the Enquiry/Conducting Officer vide his Letter No. 354 dated 04.02.2022 proceeded to submit his enquiry report before the disciplinary authority, wherein he came to the conclusion that since the delinquent has not appeared and denied the charges levelled against him, therefore, the Letter No. 1262 dated 27.08.2007 of the District Magistrate, Vaishali, which is the evidence of the charge-sheet, on the basis of the said letter the charges are found to be proved. Subsequently, vide Letter No. 691 dated 24.03.2022 issued under the signature of the Officer on Special duty, Labour Resource Department, Government of Bihar, Patna, second show cause notice was issued to the petitioner and the petitioner was directed to submits his reply within fifteen days, that why punishment be not imposed against the petitioner. In compliance thereof, the petitioner submitted his reply on 07.04.2022, wherein he took a defense that initiation of the departmental proceeding itself was in complete violation of the provisions contained in Rule 43 (b) of the Bihar Pension Rule, 1950 and other statutory Rules, as well as in violation of the principles of natural justice, in violation of Rule, 17 (3) and 17 (6) (iv) of the Bihar CCA Rule of 2005. The enquiry report was submitted without appreciation of any evidence. 

The counsel for the petitioner submitted that a second supplementary counter affidavit was filed by the respondent-State on 13.08.2022 in LPA No. 1553 of 2018, filed by the petitioner, wherein the extract of the dispatch register was produced, which goes to show that the resolution letter (along with charge Memo Nos. 2887 and 2888) dated 31.10.2017 were dispatched for the first time through registered on 02.11.2017 i.e. after the retirement of the petitioner. The  appeal preferred by the petitioner i.e. L.P.A. No. 1553 of 2018 was disposed of by the Division Bench of this Court vide judgment dated 31.08.2022 with a direction to the State-respondent to issue show cause notice to the petitioner in furnishing necessary materials with the Memo dated 31.10.2017 has been served upon the petitioner and on receipt of such notice and material, the petitioner was directed to file his explanation along with material information, if any and thereafter the disciplinary authority was directed to analyze the material fact and explanation to be submitted by the petitioner and take a decision within a period three months from the date of receipt of the order. The petitioner was directed to co-operate in deciding the issue with the disciplinary authority. It was further directed that till the decision is taken by the disciplinary authority, further action pursuant to the Memo dated 31.10.2017 shall be kept in abeyance, until decision is taken by the disciplinary authority.

Being aggrieved with the judgment dated 31.08.2022 passed in L.P.A. No. 1553 of 2018, the petitioner preferred SLP (Civil) No. 20131 of 2022. In the meantime the respondent-State, in compliance of order dated 31.08.2022 passed in L.P.A. No. 1553 of 2018, issued fresh show cause  notice to the petitioner, without providing any acknowledgment or any certificate mandated under Section 65 (B) of the Indian Evidence Act and in violation of the directions given by the Division Bench in L.P.A. No. 1553 of 2018. In compliance thereof the petitioner filed his reply on 25.11.2022 to the fresh show cause notice dated 10.11.2022, wherein he explained that the proceeding initiated vide Memo Nos. 2887 and 2888 dated 31.10.2017 i.e. on the date of his retirement, are illegal, invalid and ultra virus, as the respondent authorities have failed to prove the service of the said notice/charge Memo upon the petitioner, during his service period and nor did they submit acknowledgment or certificate required under Section 65 (b) of the Indian Evidence Act, to make any electronic document admissible as evidence. The SLP preferred by the petitioner was disposed of on 06.12.2022 by the Supreme Court of India, in view of the fresh show cause notice issued by the State-respondent, with a direction to the petitioner to participate in the proceeding before the disciplinary authority and it was observed that it goes without saying that all the defences which may be available to the petitioner are kept open to be considered by the disciplinary authority in accordance with law and on its own merits.

The senior counsel of the petitioner relied on Supreme Court's decisions in State of Uttar Pradesh & Ors. vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772, Roop Singh Negi vs. The Punjab National Bank & Ors. reported in (2009) 2 SCC 570, Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors. reported in (2020) 7 SCC 1 and Mohd. Idrish Ansari vs. State of Bihar & Ors. reported in AIR (1995) SC 1853.  

Justice Kumar observed:"...this Court finds that the department had not produced any witness in the enquiry, even though the charges levelled against the petitioner, were denied by him. Therefore, the enquiry itself stood vitiated. This fact finds support from a recent judgment of the Hon’ble Supreme Court of India in a case bearing civil Appeal no. 4130 of 2026 (Arising out of SLP (C) No. 2900 of (Jai Prakash Saini Vs. Managing Director, U.P. Cooperative Federation Ltd. & Ors).....". 

The Supreme Court held as follows:- “17. From the decisions of this Court in Sur Enamel (supra) and Kharak Singh (supra), followed in Chamoli District Cooperative (supra), which deals with similar service rules as are applicable here, it is now settled that unless the charged employee accepts his guilt in clear terms, an enquiry on the charges drawn against him would have to be held. In the enquiry, the employer/department would have to take steps first to lead evidence against the workmen / delinquent charged and give an opportunity to him to cross examine those witnesses. Only thereafter, the workmen / delinquent shall be asked whether he wants to lead any evidence and/or submit an explanation about the evidence led against him. Even in a case based solely on documentary evidence, unless the relied upon documents are admitted by the charged employee, a witness would have to be examined to prove those documents and when so examined, the witness would have to be tendered for cross-examination. 18. In the instant case, we find that the department had not produced any witness in the enquiry even though the charges levelled upon the appellant were denied by him. Therefore, in our view, the enquiry stood vitiated. Once the enquiry stood vitiated, the consequential order of punishment/ recovery cannot be sustained. We therefore allow this appeal. The impugned judgment and order of the High Court is set aside. The writ petition of the appellant stands allowed to the extent indicated below. The order of dismissal and consequential recovery is set aside. The Federation is, however, at liberty to hold a de novo enquiry, if it so desires, within a period of six months from the date of this order. If the Federation does not hold de novo enquiry as permitted above, the appellant shall be entitled to reinstatement with benefit of continuity in service including arrears of salary after adjusting suspension allowance, if any, paid already. In case the Federation chooses to hold an enquiry, it shall reinstate the appellant and place him under suspension till completion of the enquiry and during this period pay suspension allowance as may be payable in accordance with law. In case de novo enquiry is held, other service benefits including arrears of salary as well as benefits of continuity in service shall depend on the outcome of the enquiry.”

The High Court's judgement records that "No evidence has been brought on record by the respondent authorities to suggest that the disciplinary authority had ever directed for service of notice upon the petitioner through electronic mode and even if the same was sent to the petitioner, the same was sent by a sub-ordinate employee, by using his private computer, which is not permissible in law. Further, there is no valid proof of service of the said notice through electronic mode, upon the petitioner, since the required certificate in terms of section 65(b) (4) of the Evidence Act, by a Competent Officer was not brought on record by the respondent authorities and the office clerk, whose letter was brought on record, was neither authorized to grant certificate nor was the In-charge of the computer and he used his personal computer for the same, without any valid authorization. Further, even during course of the departmental enquiry there are discrepancies with regard to the email I.D, on which the said memo of charge dated 31.10.2017 is said to have been sent/dispatched, since different email IDs were mentioned, upon which the which the same was said to have been sent. Even the charges which were levelled against the petitioner were for the period, more than four years prior to his retirement and no proceeding in terms of the Rule 43 (b) of the Bihar Pension Rule, 1950 could have been initiated/conducted against the petitioner, after his retirement on 31.10.2017." 

Justice Kumar observed:"The Enquiry Officer or the disciplinary authority did not bothered to take into account the directions given by a Co-ordinate Bench of this Court in C.W.J.C. 720 of 2018, Hon’ble Division Bench in L.P.A. 1553 of 2018 and even the Hon’ble Supreme Court of India in SLP (Civil No. 20131 of 2022), which was preferred by the petitioner against the judgment dated 31.08.2022 passed in L.P.A. No. 1553 of 2018. 26. Accordingly from the considerations made above, this Court has got no option, but to set aside the Letter no. 1216 dated 15.05.2023 issued by the Officer on Special duty, Department of Labour Resources, Government of Bihar, Patna, resolution contained in memo no. 3480 dated 16.11.2023, issued under the signature of the Under Secretary to the Government, Labour Resources Department, Government of Bihar, Patna, letter no. 425 dated 02.02.2024 issued under the signature of the officer on special duty, Labour Resources Department, Government of Bihar, Patna and memo no. 848 dated 07.03.2024 issued under the signature of the Joint Secretary, Labour Resources Department, Government of Bihar, Patna." 

Justice Kumar relied on the High Court's judgment dated February 25, 2026 passed in Nutan Kumar Prabahat vs. The State of Bihar and Ors.), wherein, the Court held as follows:-“25. The High Court under Article 226/227 is entitled to interfere when the finding of fact is based on no evidence and if in every case where no valid evidence is laid at the enquiry proceeding, there is a remand made, it would be offering a premium to the negligence of the management/disciplinary authority and condoning the levity with which the departmental enquiry was conducted. It is the disciplinary authority, who appoints the Enquiry Officer and the Presenting Officer and it is expected that the Presenting Officer would be well versed in the procedures and also be informed in the manner in which evidence has to be laid before the Enquiry Officer, to prove the misconduct, alleged against a delinquent employee. In a disciplinary enquiry proceeding, it is also the trite principle that the standard of proof is preponderance of probability as distinguished from proof beyond reasonable doubt, as would be required in a criminal prosecution. However, if there is no evidence laid at the enquiry, there is no question of any preponderance of probability being drawn to find the allegations proved nor can the delinquent be penalised on the basis of peremptory finding without any valid evidence. The disciplinary authority had an opportunity in a properly constituted enquiry proceeding and if in such a proceeding no evidence was laid,the punishment of dismissal has to be found to be imposed on no valid evidence.”

Justice Jitendra Kumar endorses order of Principal Judge, Family Court, Bhagalpur for maintenance of wife, daughter

In Avadh Kishore Sah @ Awadhesh Sah vs. The State of Bihar & Ors. (2025), Patna High Court's Justice Jitendra Kumar concluded:"I do not find any perversity of finding of any fact, or error of law, requiring any interference in the impugned order" dated January 14, 2020 passed by Principal Judge, Family Court, Bhagalpur. Justice Kumar clarified in his 32-page long judgement that the finding of the High Court regarding validity of the marriage between the parties and paternity of the child is tentative in nature, subject to any contrary finding of competent Civil Court or Family Court.

The Principal Judge had directed the petitioner to pay Rs.3,000/- per month to his wife and Rs.2,000/- per month to his daughter. The maintenance to the daughter is payable till her marriage as per the impugned order and arrears of the maintenance amount was directed to be paid in three installments within six months. The two other respondents are: Soni Devi, wife of Awadhesh Sah and Gudiya Kumari, daughter of Awadhesh Sah from Kalapganj, Mirjanhat, Mojahidpur, Bhagalpur who had filed a case under Section 125 Cr.PC for their maintenance against the petitioner and his parents on July 26, 2012. The petitioner was in government job and his income from cultivation and business was Rs.24,000/- per month.The marriage between the petitioner and Soni Devi was solemnized on march 18, 2010 and out of the wedlock, Gudiya Kumari was born. She had alleged that her husband, the petitioner was having illicit relationship with Khushbu Kumari and wanted to marry her to get handsome dowry.

The petitioner stated that his marriage was forcibly solemnized with Soni Devi at Bababudha Nath Temple, Bhagalpur. He also disputed the paternity of Gudiya Kumari, the daughter of Soni Devi. He stated that Gudiya Kumari was born to Soni Devi on August 8, 2010, whereas his marriage with Soni Devi was solemnized on March 18, 2010. Gudiya Kumari was born just after about 4 and ½ months of his marriage with Soni Devi. Awadhesh Sah claimed that his wife/Soni Devi was having illicit relationship with Vishnudeo Sah, her brother-in-law and she was not interested to continue her matrimonial life with him.  

The High Court recorded that as per Section 125 Cr.PC, wife was entitled to get maintenance from her husband, if she is living separately from her husband with sufficient reason, but not living in adultery, and she has no means to maintain herself and the husband, despite having sufficient means, neglects or refuses to maintain her. As per case laws, here wife means only a legally wedded wife.

As per Section 125(1)(b) Cr.PC, any legitimate or illegitimate minor child whether married or not but unable to maintain himself/herself is entitled to get maintenance from his/her father. 

The Court observed: "It is also settled principle of law that proceeding under Section 125 Cr.PC is summary in nature and meant to prevent the vagrancy and destitution of wife and children and provide a speedy remedy for the supply of food, clothing and shelter to them. Hence, strict standard of proof is not required in proceeding under Section 125 Cr.PC unlike in matrimonial proceedings, where strict proof of marriage or paternity is essential."

The High Court referred to Supreme Court's decision in Kamala vs. M.R. Mohan Kumar, (2019) 11 SCC 491. The relevant para of the judgment reads:
“15. Unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under Section 125 CrPC, such strict standard of proof is not necessary as it is summary in nature meant to prevent vagrancy. This Court has held that when the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance of wife under Section 125 CrPC. Applying the well-settled principles, in the case in hand, Appellant 1 and the respondent were living together as husband and wife and had also begotten two children. Appellant 1 being the wife of the respondent, she and the children, Appellants 2 and 3 would be entitled to maintenance under Section 125 CrPC.”

In Santosh vs. Naresh Pal, (1998) 8 SCC 447, Supreme Court has held that "...In a proceeding for maintenance under Section 125 CrPC the learned Magistrate was expected to pass appropriate orders after being prima facie satisfied about the marital status of parties. It is obvious that the said decision will be a tentative decision subject to final order in any civil proceedings, if the parties are so advised to adopt."

It emerges from Section 7, 8 and 20 of the Family Courts Act, 1984 that if the Civil Court or the Family Court passes any decree in regard to the validity of the marriage or paternity of the child not in consonance with the finding of the High Court in the proceeding under Section 125 Cr.PC, "the decree of the Civil Court/Family Court would prevail and the party concerned would be at liberty to modify the order passed under Section 125 Cr.PC, by moving application under Section 127 Cr.PC, which provides for alteration or modification of the order in changed circumstances."

The High Court observed: "It is also settled principle of law that in revisional jurisdiction, the High Court has no power to reassess evidence and substitute its own finding in regard to positive finding regarding validity of the marriage or paternity of the child, unless there is patent perversity of finding of the fact or error of jurisdiction or that of law. But in case of negative finding of Court in regard to validity of marriage or paternity of child, the High Court is required even in revisional jurisdiction to re- evaluate the evidence and come to a conclusion whether the findings or conclusions reached by the Family Court are legally sustainable or not, because on account of negative finding, the child is bastardized and wife is branded as unchaste woman."

The Court referred to Supreme Court's decision in Pravati Rani Sahoo vs. Bishnupada Sahoo, (2002) 10 SCC 510. It reads: “5.... Section 125 CrPC is intended to curtail destitution and also to ameliorate orphancy. The High Courts should be slow to interfere with a positive finding in favour of marriage and paternity of a child. Hence in such instances this Court has pointed out that High Courts shall not interfere with such fact findings. But that principle cannot be imported in the present case where a child happened to be bastardised as a consequence of the order passed by the Magistrate and the claimant was in effect found to be a woman of unvirtuous morality. In such a situation the High Court should have entertained revision and re-evaluated the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not. While maintaining the difference in the overall approach between an appeal and a revision, the jurisdiction of the court has to be exercised by the High Court in revision."

The High Court has recorded that "the petitioner has not proved that his wife-Soni Devi was living in adultery."

The petitioner's claimed that Gudiya Kumari is not his legitimate daughter and she being born out of illicit relationship of Soni Devi with someone else, is illegitimate child of other man and hence, he is not liable to pay any maintenance to her.

The High Court pointed out that as per Section 112 of Evidence Act that a child born during continuation of a valid marriage between his/her mother and any man, the child is held to be legitimate son/daughter of that man, unless it is shown by that man that he had no access to his wife at any time when the child could have been conceived. Section 112 of the Evidence Act, 1872 reads as follows :-
“112. Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

The High Court relied on Supreme Court's decision in Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia, as reported in (2024) 7 SCC 773, has observed that Section 112 embodies the rule of law that the birth of a child during the continuance of a valid marriage or within 280 days (i.e., within the period of gestation) after its dissolution shall be “conclusive proof” that the child is legitimate unless it is established by evidence that the husband and wife did not or could not have any access to each other at any time when the child could have been conceived. The object of this provision is to attach unimpeachable legitimacy to children born out of a valid marriage. When a child is born during the subsistence of lawful wedlock, it would mean that the parents had access to each other. Therefore, the Section speaks of “conclusive proof” of the legitimate birth of a child during the period of lawful wedlock.

The Supreme Court has further observed that “access” or “non-access” does not mean actual cohabitation but means the “existence” or “non-existence” of opportunities for sexual relationship. Section 112 refers to point of time of birth as the crucial aspect and not to the time of conception. The time of conception is relevant only to see whether the husband had or did not have access to the wife. Thus, birth during the continuance of marriage is “conclusive proof” of legitimacy unless “non-access” of the party who questions the paternity of the child at the time the child could have been begotten is proved by the said party.

In Goutam Kundu Vs. State of West Bengal & Anr. as reported in (1993) 3 SCC 418, the Supreme Court recalled the well- known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality. The High Court relied on this decision.

 

Justice Vipul Pancholi led bench sets aside judgement of Additional Sessions Judge, Rosera (Samastipur) in murder case

In Kanchan Kumari v. State of Bihar, the bench of Justices Vipul M. Pancholi and Chandra Shekhar Jha set aside the judgement of Additional Sessions Judge, Rosera (Samastipur) which convicted the appellants Ravindra Kumar @ Lalo and Kanchan Kumari for the offences punishable under Sections 302/34 and 302/120B of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in default of payment of fine, the appellants Ravindra Kumar @ Lalo and Kanchan Kumari have to undergo RI for four months. The appellants were also convicted for the offences punishable under Sections 201/34 of the IPC and sentenced to undergo RI for four years and to pay a fine of Rs.2000/- each and in default of payment of fine, the appellants have to undergo RI for one month. All the sentences were to run concurrently. The judgement of the division bench of the High Court was authored by Justice Pancholi was delivered on April 19, 2024.

The informant Binod Kumar gave a written complaint wherein Manoj Kumar (younger brother of the informant) and Mukesh Kumar (brother-in-law of Manoj Kumar) had been living at his house since long. On September 17, 2016, Mukesh Kumar (deceased) received a phone call and went outside. As a dance programme was organized on the occasion of Vishwakarma Puja at Basauna Chowk, the informant did not pay attention as to where he had gone. The informant got information through phone that dead body of Mukesh Kumar is lying in the water beside the road ahead of Utkramit Madhya Vidyalaya, Pakahi. The dead body was brought to Shahpur Chowk.

The written complaint given by the informant had given the names of four accused and also pointed out the motive for committing murder of deceased Mukesh Kumar. 

The judgement of the Patna High Court recorded that it was surprising that after preliminary investigation the investigating agency exonerated the said four persons who were named in the FIR and only on the basis of secret information given by the informer, all the present appellants have been implicated. 

Admittedly, there was no eye witness to the occurrence in question. The case of the prosecution rested on circumstantial evidence. 

Notably, none of the prosecution witnesses deposed against the appellants-accused except the Investigating Officer. None of the prosecution witnesses had seen the appellants lastly in company with the deceased. Even the weapon, i.e., the knife, which was recovered from the house of one of the appellants, was not sent for necessary analysis to FSL. The said aspect is admitted by the Investigating Officer.

The Trial Court had convicted the appellants only relying upon the deposition given by the Investigating Officer. The prosecution failed to complete the chain of circumstance from which it can be established that the appellants have killed the deceased despite which the Trial Court has passed the impugned judgment of conviction and order of sentence. 

The case of the prosecution was that as the deceased Mukesh Kumar was having love affair with one of the appellant Kanchan Kumari, with the help of the other two co-accused the deceased Mukesh Kumar has been killed. However, the prosecution has failed to prove by leading cogent evidence before the Court that Kanchan Kumari, the  appellant was having relation with the deceased. The said aspect has been admitted by the Investigating Officer.

The High Court re-appreciated the entire evidence led by the prosecution before the Trial Court. It would emerge from the record that there is no eye witness to the occurrence in question and case of the prosecution rests on circumstantial evidence. It noted that as per the deposition given by the Investigating Officer, on the basis of secret information given by the informer of the police, it was revealed that the deceased Mukesh Kumar was having love affair with Kanchan Kumari, one of the appellants and all the appellants in connivance with each other killed the deceased. 

The prosecution failed to examine the witness with a view to prove that deceased Mukesh Kumar was
having love affair with Kanchan Kumari, one of the appellants. It emerges that the prosecution failed to prove the motive on the part of the accused to commit the alleged offences. 

Admittedly it is a case of circumstantial evidence. It is well settled that in case of circumstantial evidence, it is the duty of the prosecution to complete the chain of circumstance from which it can be established before the Court that the appellants/accused have committed the alleged offences. 

The he doctor who had conducted post-mortem on the dead body of the deceased found seven injuries out of which six are sharp cut wound. He opined that death was due to hemorrhage and shock caused by above mentioned injuries. He stated that if the knife blow is given, there would be a penetrating wound and he did not find any penetrating wound on the dead body of the deceased. 

The Court observed: "though the Investigating Officer collected the CDR of the concerned mobile phones and produced before the Court, the certification under Section 65B of Evidence Act was not produced before the Court." 

It also observed that "in the case of circumstantial evidence, motive assumes importance. In the present case, as discussed hereinabove, the prosecution has failed to prove the motive on the part of the appellants to kill the deceased by leading cogent evidence before the Trial Court. The medical evidence also does not support the case of the prosecution. Thus, from the aforesaid evidence, it can be said that only on the basis of the confessional statement of the accused and the CDR of the mobile phones, the appellants have been convicted by the Trial Court."

The judgement concluded: "we are of the view that the prosecution has failed to prove the case against the appellants beyond reasonable doubt despite which the Trial Court has passed the impugned judgment of conviction and order of sentence against the appellants. Hence, the same is required to be quashed and set aside." 

The direction of the Court reads: Since appellants, namely, Ravindra Singh @Ravindra Kumar @ Lalo and Kanchan Kumari in Criminal Appeal (DB) No.98 of 2019 and Criminal Appeal (DB) No.291 of 2019 respectively are in jail, they are directed to be released from custody forthwith, if their presence is not required in any other case." It also directed that Bipin Prasad Singh @ Bipin Singh, the appellant, in Criminal Appeal (DB) No.1480 of 2018 who is on bail, is discharged from the liabilities of his bail bonds.