Chief Justice Vipul M. Pancholi bench grants relief without examining the merits of case

In Dhananjay Kumar & Ors. vs. The State of Bihar through the Principal Secretary, Revenue and Land Reforms Department, Government of Bihar & Ors. (2025), Patna High Court's Division Bench of Chief Justice Vipul M. Pancholi and Justice Partha Sarthy delivered a 3-page long judgement dated July 24, 2025 granting relief to the appellants without examining the merits of case.

The appellants were the owners of the land in which, now, the respondent authorities had decided to construct Panchayat Sarkar Bhawan. The appellants had made representation before the respondent authorities.  Justice Rajesh Kumar Verm, the Single Judge had dismissed their petition mainly on the ground citing an order passed by a Division Bench of the High Court, wherein it was held that "it is for the authorities to decide where the Panchayat Sarkar Bhawan is to be constructed." 

The counsel for the appellants submitted before Justice Pancholi led bench that if the respondent authorities are directed to decide the representation filed by the appellants, then the appellants would be satisfied with the same. In his 4th judgement as Chief Justice, Justice Pancholi concluded: "If the appellants file the representation within a period of four weeks from today, respondent No. 6 shall decide the same in accordance with law within a period of twelve weeks from the date of receipt of such representation. 5. It is clarified that we have not examined the merits of the case of the appellants."

The appeal was filed under Clause-X of the Letters Patent of Patna High Court Rules against the 4-page long order dated February 17, 2025, passed by Justice Rajesh Kumar Verma, the Single Judge in Dhananjay Kumar & Ors. vs. The State of Bihar through the Principal Secretary, Revenue and Land Reforms Department, Government of Bihar & Ors. (2025) CWJC No. 2840 of 2025, whereby the Single Judge had dismissed the petition filed by the present appellants/petitioners. 

Justice Verma had relied on  order dated April 7, 2023 passed by High Court's Division Bench of Chief Justice K. Vinod Chandran and Madhuresh Prasad in Naveen Kumar Ram & Ors. vs. The State of Bihar through the Principal Secretary, Panchayati Raj Department, Government of Bihar & Ors. (2023), because not a single cheat of paper annexed by the petitioners suggested that construction was going on the land of the petitioners. The order was authored by Justice Prasad. He concluded: "8. No case is made out for interference by this Court."

Supreme Court to hear criminal appeal 35 years after Trial Court verdict, 13 years post High Court's verdict in a dowry death case from Muzaffarpur

In Chinta Devi vs. The State of Bihar (2025), which awaits final hearing, the Supreme Court's Division Bench of Justices J.B. Pardiwala and R. Mahadevan ordered on January 31, 2025 to list it after six weeks now that original records of the Patna High Court and Trial Court have been received by the Court. The criminal appeal was filed in the Supreme Court on July 23, 2013 and it was registered on May 13, 2014. The appeal arose from the judgement and order of Justices Aditya Kumar Trivedi and Mihir Kumar Jha of the High Court's Division Bench dated August 14, 2012. 

On October 4, 2013, the Supreme Court's Division Bench of Justices A. K. Patnai and J.S Khehar condoned the delay in their order and recorded that Nagendra Rai, senior counsel appearing for the petitioner submitted that at least the quantum of sentence should be reduced as the petitioner has been convicted for life under Section 304-B. The order reads: "Issue notice limited to the question of sentence under Section 304-B, IPC."

304B  of IPC deals with dowry death. It reads:(1) Where the death of a women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
21. Section 304B of the I.P.C. as quoted above has to be necessarily understood in the context of the amended provision of the Evidence Act as incorporated under Section 113B, which reads as follows:-
"113-B. Presumption as to dowry death. - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume
that such person had caused the dowry death." 

On September 5, 2014, the Division Bench of Justices Fakkir Mohamed Ibrahim Kalifulla and Shiv Kirti Singh passed an order which reads:"We are not inclined to grant bail to the appellant at this stage. Application for bail is rejected. However, liberty is granted to the appellant to renew her bail application after six months." It rejected the bail application on May 13, 2015 as well. But on July 22, 2016, the Division Bench of Justices Pinaki Chandra Ghose and Amitava Roy heard the senior counsel for the appellant and the counsel for the respondent-State of Bihar and passed an order which reads:"For the reasons stated in the application for bail and having regard to the fact that the appellant is of 75 years of age and detained in jail custody for more than 6 years and 8 months, she is directed to be released on bail, subject to the satisfaction of the trial Court." The appellant in question is Chinta Devi, the mother-in-law who was convicted for causing the death of her dauther-in-law Indu Devi on May 22, 1987.

In its 32-page long judgement in Chinta Devi and Kukum Kumari vs. The State of Bihar Criminal Appeal (DB) No.309 of 1990, the High Court's Division Bench set aside the conviction and sentence of the appellants under Section 302/34 of the Indian Penal Code but affirmed the conviction and sentence for offences under Section 304B/34 and Section 498A/34 of the IPC and Section 4 of the Dowry Prohibition Act as awarded by the trial court in the impugned judgment, subject to the observations and direction made in the case of appellant Kumkum Kumari. The appeal was heard along with Dilip Kumar Sharma vs. The State of Bihar Criminal Appeal (DB) No. 312 of 1990. In the High Court, the appellants, the residents of Purshottampur, Maniyari, Muzaffarpur were represented by Shailendra Kumar Jha, Amicus Curiae and the respondent was represented by Sashi Bala Verma, APP. The latter had submitted that Indu Devi, the deceased was burnt to death by causing fire after tying her hands and feet. The alibi of the husband, appellant Dilip Kumar Sharma showing himself to be present for his treatment at Jamshedpur, was fit to be rejected. The issue relating to the appellant Kumkum Kumari being either juvenile or minor should have been gone into and enquired into had there been a prayer made by the appellant in the trial court but in absence thereof, now this matter cannot be examined much less reopened by the High Court in view of the prima facie material on record. The judgement was authored by Justice Mihir Kumar Jha. 

Both these appeals arose out of the common judgment dated June 12, 1990 in a Sessions Trial whereunder, the 4th Additional Sessions Judge, Muzaffarpur had convicted the three appellants for offence under Section 302/34 of the IPC as well as for offence under Section 304B/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. They ere sentenced to under rigorous imprisonment for life for both offences under Section 302/34 as well as Section 304B/34 of the Indian Penal Code and additionally they have also been convicted for rigorous imprisonment for two years and a fine of Rs. 2,000/- each for the offence under Section 498A/34 of the IPC and in default of fine to undergo rigorous imprisonment for six months. They were further sentenced to undergo one year rigorous imprisonment for offence under Section 4 of the Dowry Prohibition Act as well as a fine of Rs. 1,000/- each and in default thereof to undergo rigorous imprisonment of three months.

The High Court observed: "Law also stands well settled that in order to prove the charge of Section 304B of the I.P.C., the following essential ingredients have to be proven:-
(i) the death of a woman should be caused by burns or bodily injury or otherwise than under normal
circumstances,
(ii) such a death should have occurred within seven years of her marriage,
(iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband,
(iv) such cruelty or harassment should be for, or in connection with, demand for dowry and'
(v) such cruelty or harassment is shown to have been meted out to the women soon before her death."
It relied on the Supreme Court's decision Kunhiabdulla & Anr. vs. State of Kerala reported in 2004(4)SCC 23 wherein ingredients to prove the charge of Section 304B of the I.P.C. have been enumerated. The High Court analyzed the evidence on record in the light of these requirements of Section 304B of the I.P.C., to infer that "there is no dearth of material to establish the death of the deceased had taken place on account of injuries caused by burn and the fact that her such burn injuries were clubbed with a mark of tying of her hands and feet by rope would automatically lead to an conclusion that her death was caused in otherwise than under normal circumstances. There is also no dispute that the marriage of the deceased with the appellant Dilip Kumar Sharma had taken place in the year 1984 and the occurrence in question had taken place on 22.5.1987 and thus, within seven years of the marriage. The third and fourth requirement of the deceased being subjected to cruelty or harassment by her husband or relatives of the husband is also fully satisfied in this case, inasmuch as, there are four witnesses on the point of demand of dowry and cruelty being inflicted on the decease".

The High Court concluded: The appellants who are on bail, their bail bonds are cancelled and appellant Chinta Devi and appellant Dilip Kumar Sharma are directed to surrender before the court below for serving out the rest of their sentence. The appellant Kumkum Kumari must appear before the trial court for establishing her claim of being a child/juvenile on the date of occurrence.  

Kumkum Kumari, the appellant had raised the specific plea that on the date of occurrence i.e. on May 22, 1987, she was a minor. She had adduced the evidence of Dr. Preeti Bala, the D.W.5 who had examined her as per the direction of the court on February 19, 1988 and had ascertained her age around eighteen years on the date of such examination. But the Trial Court assessed the age of Kumkum Kumari on January 30, 1989 as twenty years despite the claim of the appellant Kumkum Kumari that on January 30, 1989 when her statement was being recorded under Section 313 Cr.P.C., was only 15 years of age, and reject Kumkum Kumari 's claim of being a minor on the ground that the evidence of Dr. Preeti Bala, the D.W.5 was based upon certain radiological reports and records which were not proved by the defence in accordance with Evidence Act. 

The High Court observed: "This Court would find such reasons given by the trial court to be only unacceptable, inasmuch as, whenever such question of age relating to minority/juvenility would arise, there has to be necessarily an enquiry by the court itself but from the records it is evident that no such enquiry was conducted by the trial court. At the relevant point of time in the year 1989, when such an issue had arisen in the case of the appellant Kumkum Kumari, the provision of Children Act had to be followed in letter and spirit which also envisages an enquiry for ascertaining and fixing the age. Section 8 of the Bihar Children Act, 1982 which was then in vogue had prescribed for holding an enquiry for recording opinion as with regard to age for declaration of children. Similarly, provision of Section 20 of the 1982 Act also prescribes enquiry by Children's Court regarding delinquent children and Section 24 had laid down no joint trial of a child and a person of not being a child could be held. Thus the mandate of law of an enquiry by the court concerned having been not undergone by the trial court, this Court would find the sentence of Kumkum Kumari to be bad."

The Court further observed: "In this connection, we, while exercising out appellate power keeping in mind the provision of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, would hold that there has to be a fresh enquiry as with regard to the determination of the claim of the appellant Kumkum Kumari of her being a child in terms of the Bihar Children Act, 1982 read with her being a juvenile in terms of the Juvenile Justice (Care and Protection of Children) Act, 2000. Such age of the appellant Kumkum Kumari must be determined children/juvenile in terms of Bihar Children Act, 1982 and the Juvenile Justice (Care and Protection of Children Act, 2000, her sentence would be determined afresh in keeping with the provision of the Bihar Children Act, 1982. If however, she is not found to be a child on the date of occurrence or her juvenile in terms of the 2000 Act on the date of occurrence, her sentence, as recorded by the trial court in the impugned judgment shall remain undisturbed."

Rajeshwar Prasad Singh (P.W.6) father of Indu Devi set out the prosecution case stated that his daughter Indu Devi was married to the appellant Dilip Kumar Sharma in the year 1984. The informant also stated that his daughter had remained in her Sasural for a period of one year whereafter she had returned to her 'maika' i.e. the house of the informant. He has alleged that the appellant Kumkum Kumari sister of his son-in-law and Chinta Devi mother of his son-in-law had always been taunting and demanding dowry in the form of television, tape recorder, scooter and cash etc. In the year 1986, his daughter had returned back to her Sasural when his son-in-law the appellant Dilip Kumar Sharma after Ruksadi (second marriage) had taken the deceased Indu Devi to his house. The informant alleged that even after the second marriage of his daughter, the demand of dowry by the appellant was continued and when the same was not fulfilled, all the three appellants had kept on threatening his daughter (deceased) that if the goods demanded in dowry were not given, she (Indu Devi) would be done to death whereafter the appellant Dilip Kumar Sharma would solemnize another marriage. The informant had also specifically alleged that some four to five days prior to his recording of Fardbeyan, his daughter was assaulted and on coming to know of this assault on her, when he had gone to the house of the appellant and had requested them to send his daughter back with him to his house (informant's house) as she was his daughter. But his such request was turned down by the appellants who had stated that unless all the goods of dowry such as television, tape recorder, scooter and cash were given to them, the girl (Indu Devi) would not be allowed to go back to her house. 

The informant stated that on May 22, 1987 while he was when in village Khabra, in the house of his brother-in-law Ram Japu Ojha, he came to know that his daughter had been done to death after being burnt by her husband appellant Dilip Kumar Sharma, her sister-in-law, Kumkum Kumari and her mother-in-law Chinta Devi and on receipt of such information, he had rushed to the place of his son-in-law appellant Dilip Kumar Sharma and there he could come to know from the neighbours that at about 1.30 PM on the same day i.e. May 22, 1987, his daughter Indu Devi was burnt to death after sprinkling kerosene oil over her body and when the villagers had gone to save her (Indu Devi), they were also prevented from doing so. 

The informant had categorically alleged that the death of Indu Devi, the daughter of the informant had taken place on account of concerted overt acts on the part of the three appellants. On the basis of the Fardbeyan of the informant, the father of the victim girl Indu Devi, Maniyari P.S. Case No. 27 of 1987 was recorded for offence under Section 302/34 and 498A of IPC and Section 4 of the Dowry Prohibition Act. The police after investigation had submitted the charge-sheet whereafter the case being triable by court of sessions was committed by an order dated November 17, 1987. The trial court, framed charges for offence under Section 302/34 of IPC, Section 304/34 of the IPC and Section 4 of the Dowry Prohibition Act, had conducted the trial which, ended with the impugned judgment of conviction and sentence of all the appellants.

Supreme Court is likely to hear the appeal of Chinta Devi, the convict who is out on bail since July 2016 in March 2025. The current fate of Dilip Kumar Sharma, the husband and Kumkum Kumari, the sister-in-law who were also complicit in the death of Indu Devi for dowry is not known. 

Sri Ramanand Ram S.D.J.M, Dalsingsarai, Hanuman Prasad Tiwari, Additional Sessions Judge, IIIrd Court, Samastipur must compensate the petitioner: Patna High Court

In Sunil Pandit Vs. State of Bihar, Patna High Court concluded: "As the petitioner was made to suffer a criminal trial which is not maintainable against him and he was compelled to be confined in the correctional home at different points of time. This Court is of the opinion that the petitioner should be compensated since the petitioner was made to suffer the agony and trauma of a criminal trial as well as detention in custody for taking cognizance against him by the learned Magistrate and putting him in trial in a case which is not maintainable against him, the petitioner is entitled to get compensation at the rate of Rs. 100/- each payable by the learned Judicial Magistrate, namely, Sri Ramanand Ram, S.D.J.M, Dalsingsarai- Samastipur and Hanuman Prasad Tiwari, Additional Sessions Judge, IIIrd Court, Samastipur, on 28th June 2016." 

The penultimate para of the judgement reads: Since the accused/petitioner cannot be booked for committing offence under Sections 498A and Section 4 of the Dowry Prohibition Act, he is acquitted from the charge, set at liberty and released from the liability of bail bond."

In his judgment, Justice Bibek Chaudhuri observed: "I am consciously issued the order for payment of compensation directing the concerned Judicial Officers to pay a token amount because in the instant case compensation is not assessed on the basis of the mental agony and trauma and social ignominy suffered by the petitioner due to seer lackadaisical approach of both the courts below. The amount of compensation is fixed as a token to remind the concerned Judicial Officers that before taking cognizance and also during judicial inquiry and trial, it is the bounden and obligatory duty of all the courts to go through the complaint carefully and then to take cognizance and proceed against the accused persons in accordance with law."

The criminal revision was directed against the judgment and order of affirmation passed by the Additional Sessions Judge IIIrd Court at Samastipur on 28th June 2016, in Criminal Appeal No. 46 of 2011, whereby and whereunder the appellate Court maintained the order passed by the trial court, of conviction for the offence punishable under Sections 498A of the IPC and Section 4 of the Dowry Prohibition Act and sentence of the petitioner to suffer imprisonment for three years and also to pay fine of Rs. 1,000/- with default clause for the offence under Section 498A of the IPC and rigorous imprisonment for one year with fine and default clause for the offence punishable under Section 4 of the Dowry Prohibition Act.

On perusal of the petition of complaint, on the basis of which, Complaint Case No. 172 of 2004 was registered, the Court found that the petitioner was not a relative of the husband of the complainant as provided in Section 498A of the IPC. It is clearly stated by the complainant in page 04 of the complaint that the present petitioner who was arrayed as accused no. 4 was an advisor of other accused persons.

The judgement reads: "Let a copy of this order be sent to the Registrar General, High Court at Patna for information and necessary action intimating the concerned Judicial Officers to comply with this order within three weeks from the date of communication." The Court's direction reads: "The concerned judicial officers are directed to deposit the fine amount in the Criminal Cash Section of the Chief Judicial Magistrate, Samastipur within three weeks from the date of this order." The judgement was delivered on April 18, 2024.

 

Kerala represents the cause of all the States, States' right to borrow referred to Constitution Bench

On April 1, 2024, in State of Kerala v. Union of India, Justices Surya Kant & K.V. Viswanathan bench of Supreme Court observed that "The main case be placed before Hon’ble the Chief Justice of India for constitution of an appropriate Bench." The original suit was filed on December 8, 2023. It was registered on January 6. 2024. The arguments were heard and the order was reserved on March 22, 2024. 

The State of Kerala had instituted the original suit under Article 131 of the Constitution of India against the Union of India. It has challenged amended Section 4 of the Fiscal Responsibility and Budget Management Act, 2003, whereby the Central Government is obligated to ensure that the aggregate debt of the Central Government and the State Governments does not exceed sixty percent of the gross domestic product by the end of Financial Year 2024-25. It challenged Union government's letter dated March 27, 2023 imposing a ‘Net Borrowing Ceiling’ on the State of Kerala, to restrict the maximum possible borrowing the State could make under law. It also challenged Union government's letter dated August 11, 2023 providing its consent to the State of Kerala to raise open market borrowing of Rs 1,330 crores underlining that the total open market borrowing allowed to the Plaintiff for the Financial Year 2023-24 was Rs 21,852 crores.

Under Chapter II, Part XII, Article 293 (1) of the Constitution which deals with "Borrowing by States", the Union of India does not have the power to regulate all the borrowings of a State and conditions can be imposed only on the loans sought from the Union Government. It reads: "293. Borrowing by States- 1) Subject to the provisions of this article, the executive power of a State extends to borrowing within the territory of India upon the security of the Consolidated Fund of the State within such limits, if any, as may from time to time be fixed by the Legislature of such State by law and to the giving of guarantees within such limits, if any, as may be so fixed." It is apparent that Union government has violated this provision of the Constitution by preventing Kerala to pursue its governmental duty under the four corners of Article 293 (1) of the Constitution of India. 

Kerala's cause is the cause of all the States. Meanwhile, Union had agreed to allow borrowing of Rs 13,608 crores if State withdrew its suit. This kind of approach amounts to blackmailing of States by the Union government. Why did Union of India, the defendant put a condition for withdrawal of the suit? Supreme Court rightly disapproved of the condition. There was a logical compulsion for Justices Surya Kant and K.V. Viswanathan to grant interim relief to Kerala against Union of India challenging limits imposed on State's borrowing capacities. In its 24 page long judgement, the Court records:"The Defendant has already made an offer to allow additional borrowing. In a meeting dated 15.02.2024, the Defendant first offered consent for INR 13,608 crores, out of which INR 11,731 crore was subject to the pre-requisite of withdrawal of the suit, a condition that we disapproved of. Subsequently, in a meeting dated 08.03.2024, the Union offered a consent for INR 5,000 crores. Further, vide circulars dated 08.03.2024 and 19.03.2024, the Union has accorded consent for INR 8,742 crores and INR 4,866 crores respectively, which comes to a sum total of INR 13,608 crores. Even if we assume that the financial hardship of the Plaintiff is partly a result of the Defendant’s Regulations, during the course of hearing this interim application, the concern has been assuaged by the Defendant – Union of India to some extent so as to bail out the Plaintiff – State from the current crisis. The Plaintiff thus has secured substantial relief during the pendency of this interim application." The State could secure "substantial relief" because Kerala, the plaintiff is on strong grounds.

Chief Justice Dr. D.Y. Chandrachud is likely to constitute a Constitution Bench of appropriate strength before July to affirm the recognized rights of the States. The rights of Union of India and States of India are limited by Constitution of India and the principles of constitutionalism.

Order of Additional Sessions Judge, 7th cum Special Judge, Protection of Children from Sexual Offences (POCSO) Act, Bettiah set aside: Justice Alok Kumar Pandey

The name of informant and victim have been concealed in the present judgment to protect their prestige and dignity.

Patna High Court's Justice Alok Kumar Pandey observed, "The learned trial court fell in error of law as well as appreciation of facts of the case in view of settled criminal jurisprudence. Hence, impugned judgment and order of sentence are hereby set aside and this appeal stands allowed. The appellant is in custody. Let him be released forthwith, if he is not warranted in any other case" in Deepak Kumar v. State of Bihar on March 29, 2024. The criminal appeal arose out of PS. Case No.-121 of 2015 Thana- Ramnagar, West Champaran. The analysis of evidence adduced during trial and submissions of counsel of the appellant made it crystal clear that offence under Section 366A, 376 of the IPC and 4 of POCSO Act have not been proved beyond reasonable doubt and benefit of doubt must go in favour of the appellant.

The appeal was filed against the judgment of conviction dated February 7, 2022 and order of sentence dated February 8, 2022 passed by Additional Sessions Judge, 7th cum Special Judge, Protection of Children from Sexual Offences Act (hereinafter referred to as POCSO), Bettiah whereby and whereunder the trial court has found the appellant guilty for the offences punishable under Sections 366A and 376 of the Indian Penal Code (hereinafter referred to as IPC) and under Section 4 of POCSO Act and sentenced him to undergo ten years imprisonment for the offence punishable under Section 366A of the IPC, to undergo seven years rigorous imprisonment for the offence punishable under Section 376 of the IPC and to undergo ten years rigorous imprisonment along with fine of Rs. 20,000/-for the offence punishable under Section 4 of POCSO Act and in default of payment of fine he has to suffer two months additional imprisonment. All the sentences were ordered to run concurrently.

According to written report of informant, the occurrence is of June 8, 2015 at about 7:00 PM for which information was given on June 10, 2015 at 17 hours and immediately whereafter FIR was registered. The prosecution case in brief was that victim, the daughter of the informant aged about 14 years was  kidnapped by the appellant with intention of marriage. It was claimed that appellant was present at his house till morning of June 9, 2015. It was claimed on the basis of communication held between informant and appellant that informant’s daughter would reach at her house. It is further stated that mobile number as mentioned in the FIR was available with daughter of informant.

After hearing the parties, the trial court convicted the appellant-accused and sentenced him. But the co-
accused Imran Ali stood acquitted by the trial court by the same judgment.

The appellant's counsel submitted that the prosecution completely failed to discharge its onus of proving beyond all reasonable doubt that the victim was minor on the date of occurrence. On the said point he further submitted that victim claimed herself that her age is 20 years while adducing evidence as PW-3 on 10.11.2016. The learned trial court has also recorded the age of the victim as 20 years while taking the evidence of PW-3 (victim). The prosecution has not challenged or even suggested the victim (PW-3) on the point of her age as she has claimed herself to be 20 years old. The informant (PW-9) has not stated the date of birth of victim even on specific question being raised. He further submitted that Medical Board suggested the age of the victim between 17-18 years showing variation would not be sufficient to come to any conclusion about the exact age. On the point of age variation the learned counsel for the appellant relied upon judgment of Hasmuddin and others vs. The State of Bihar (2018) and specifically referred para 17 of the said judgment in which it has been mentioned that victim has been found in between 17 years to 19 years, which is subject to variance of two years and the age befitting with the defence case is to be accepted. Learned counsel submitted that in light of said observation, variation in age as opined by medical evidence should go in favour of the appellant. 

The appellant's counsel submitted that neither victim nor any witness has given evidence of physical relation of victim with the appellant and no evidence to the effect that appellant had induced the minor girl with intention or knowledge that she will be forced or seduced to illicit intercourse with any other person, hence, there is no question for conviction under Sections 376, 366(A) of the IPC and Section 4 of POCSO Act. Learned counsel of the appellant further submitted that PW-1, PW-2, PW-3(victim), PW-4, PW-5 and PW-7 have not supported the case of the prosecution and they have been declared hostile. PW-3 victim has not supported the charge levelled against the appellant in her deposition. Md. Saheb who was the witness on the written report has not been examined nor any explanation for his non examination was given by the prosecution side. The Investigating Officer has not been examined which has seriously caused prejudice to the defence since defence has got no proper opportunity to contradict the evidence of witnesses. No evidence has been deposed regarding sexual intercourse. PW-6 is a hearsay witness whose evidence cannot be basis for conviction and PW-9 (informant) who has proved his thumb impression as Ext-1 and he has deposed that he is not aware as to what has been written in the initial version of the story of the prosecution. Learned counsel of the appellant further submitted that in the present case appellant is not guilty for taking away the victim as there is no averment made by the victim in her deposition that appellant is responsible for taking away the victim rather she went to Bettiah with her own volition. 

To buttress the said submission counsel of the appellant relied upon the case of S. Varadarajan vs. State of Madras (1965) and referred paragraphs no. 7 and 9 of the said judgment in which at para 7 it has been clarified that “when the victim willingly accompanied the appellant, law did not caste upon him duty of taking her back to her father’s house or even of telling her not to accompany him as she was on the verge of attaining majority and she was capable of knowing what was good and what was bad for her.”

The appellant's counsel submitted that at para 9 of the said judgment it is clarified that “there is a distinction between taking and allowing a minor to accompany a person. In order to prove taking away from the keeping of lawful guardian something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of intention of the minor to leave the house of the guardian.”

It was pointed out that the court below has not ascertained the age of the victim as per statutory provision and there is no finding with regard to age of the victim in judgment under challenge. He further submitted that statement under Section 164 of the Cr.P.C. is required to be specifically put to contradict the witnesses and the said statement is not substantive piece of evidence rather it can be used to corroborate and contradict the witnesses and on the said point learned counsel for the appellant relied upon a decision of State of Delhi vs Shri Ram Lohia (1960). 

He further submitted that presumption under Section 29 of POCSO Act is rebuttable in law and for the same he has relied upon judgment of Navin Dhaniram Baraiye vs. The State of Maharashtra (2018) in which it has been held that “statutory presumption would stand activated only if prosecution proves the foundational facts and then, even if the statutory provision is activated, the burden of accused is not to rebut the presumption beyond reasonable doubt.”

The appellant's counsel submitted that the prosecution did not place the contents of statement of victim recorded under Section 164 of the Cr.P.C. while cross examining the victim. He further submitted that in the present case audio/video footage with regard to recording of statement of victim has not been done which would be proved fatal for the prosecution in view of Section 26(4) of the POCSO Act. 

The High Court found substance in submission made of the  appellant that the prosecution failed to prove, beyond all reasonable doubts, the fact that the victim was minor as on the date of occurrence. 

It relied on Supreme Court's decision in case of Jarnail Singh v. State of Haryana (2013) wherein it held that “though Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 have been framed under the provisions of Juvenile Justice (Care and Protection of Children) Act, 200...is applicable to determine the age of child in conflict with law, the aforesaid provision should be the basis for determination of age even of a child who is a victim of crime. The Court remarked that there was hardly any difference insofar as the issue of minority was concerned, between a child in conflict with law, and a child who is a victim of crime. Paragraph 22 and 23 of the said decision in case of Jarnail Singh (supra) can be usefully referred to for clarity:-
“22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as “the 2007 Rules”). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:
“12. Procedure to be followed in determination of age- (1) in every case concerning a child or a juvenile
in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of
physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by
obtaining—(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case
shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board
after examining and obtaining the certificate or any other documentary proof referred to in sub-
rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.”

The Court observed that "Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age  conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision,
the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent  lause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, onthe basis of medical opinion.”

Iy has recorded that identical provision is thereunder 94 of Juvenile Justice Care and Protection of Children Act, 2015 which came into effect from 15.01.2016. In the present case, date of occurrence is June 8, 2015. However, in the present case Rule 12 of Rules 2007 was applicable.

The Court has noted that "no exercise was carried out by the prosecution to establish that the victim was minor as on the date of occurrence by following the procedure prescribed under the Act in the light of reasoning put forth by the Supreme Court in case of Jarnail Singh (Supra)." 

In the case of Rajak Mohammad vs. State of H.P. (2018)  the Supreme Court has noted that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed. The Supreme Court, taking into account the facts and circumstances of that case opined in the said case that the report of radiological examination left room for ample doubt with regard to the correct age of prosecutrix. In such case, the benefit of aforesaid doubt, naturally, must go in favour of the accused. In the case of Sunil v. the State of Haryana (2010), the Supreme Court observed that conviction cannot be based on an approximate age of the victim. 

In State of Madhya Pradesh vs. Munna @Shambhoo Nath (2016), the Supreme Court held that the evidence of approximate age of the victim would not be sufficient to any conclusion about the exact age of the victim.

The Court has recorded  that in the present case, the prosecutrix was a literate girl as she has signed everywhere. Therefore, she must have been getting education somewhere. It is not the prosecution case or
evidence that prosecutrix did not attend any school. The finding recorded by the doctor in the medical report which has determined the victim’s age to be 17-18 years based on radiological examination and opinion of the dentist is not available in the medical report and said finding in court opinion cannot be treated to be accurate for the purpose of applying the provision of POCSO Act. As a matter of fact, no effort was made by the prosecution to establish the age of the victim in accordance with statutory provision. It is necessary to evaluate, analyze and screen out the evidences of witnesses adduced before the trial court in the light of the offence punishable under Section 366A, 376/34 of the IPC and 4 of POCSO Act.

The Court observed, "From perusal of statement under Section 164 of the Cr.P.C., it is crystal clear that her testimony during adducing evidence before the trial court is totally inconsistent with the statement recorded under Section 164 of the Cr.P.C. The statement of victim before the trial court has not supported story of prosecution and she has been declared hostile.  It is well settled law that evidence given in court on oath coupled with opportunity of cross examination to the accused has great sanctity and that is why same is called substantive evidence. It is well settled by catena of judicial pronouncement that statement under Section 154 Cr.P.C. or under 161 Cr.P.C. or under 164 Cr.P.C. can be used for corroboration and contradiction only. 

In R. Shaji vs. State of Kerala (2013), the Supreme Court said that a proposition to the effect that if statement of a witness is recorded under Section 164 of the Cr.P.C., his evidence in court should be discarded, is not at all warranted. As the defence had no opportunity to cross examine the witness whose statement was recorded under Section 164 Cr.P.C. or under Section 161 Cr.P.C., such statements cannot be
treated as substantive evidence.

The Court observed that "Statement of victim cannot be trustworthy in the light of the fact adduced during evidence before the court is quite inconsistent with the story of prosecution. Her evidence does not inspire confidence and such evidence cannot be trustworthy. The statement of victim which was adduced before the trial court is quite inconsistent with the statement under Section 164 Cr.P.C. which does not inspire confidence. 

The Court referred to Section 53 A of the Cr.P.C., which ordains that when a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner, as mentioned in the said provision. Section 53 A of the Cr.PC., read as under:-

53-A. Examination of person accused of rape by medical practitioner-(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine
such person and prepare a report of his examination giving the following particulars, namely:-
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be noted in the
report.
(5) The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

The Court underlined that while it is true that said provision is not mandatory in character, the said provision enables the prosecution to conduct the examination of victim in a manner as to substantially establish a charge of committing an offence of rape.

The Court relied on the judgment of Supreme Court in case of Chotkau v. State of Uttar Pradesh (2022) whereby it has been observed that failure of the prosecution to subject the appellant to medical examination was certainly fatal to the prosecution’s case especially when the ocular evidence was found to be not trustworthy. The High Court found that there was failure on the part of prosecution to establish the essential fundamental facts to attract the provision of POCSO Act.