Supreme Court reverses regular bail rejection order by Justice Sandeep Kumar

In Niraj Kumar @ Niraj Kumar Mandal vs. The State of Bihar (2026), Supreme Court's Division Bench of Justices J.K  Maheshwari and Atul S. Chandurkar passed a 4-page long order dated May 6, 2026, wherein, it concluded: "...considering all the attending circumstances, without expressing any opinion on the merits of the case, we deem it appropriate to release the petitioner on bail. (iv) Accordingly, we direct to release the petitioner on bail on furnishing the suitable bail bonds and sureties and on such other terms and conditions as may be deemed fit by the trial Court."

The court passed the order upon hearing the special leave petition filed against the order of rejection of regular bail by Justice Sandeep Kumar of Patna High Court and to seek bail. 

Supreme Court observed:"After hearing learned counsel for the parties and considering the facts and circumstances in which the victim was of 47 years of age at the date of incident and the allegation is not supported by the medical evidence. Learned counsel for the respondent-State oppose the prayer only on the ground that after rejection of the anticipatory bail in 2014, the accused surrendered in 2025."  

Earlier, in Niraj Kumar @ Niraj Kumar Mandal vs. The State of Bihar (2025), Justice Sandeep Kumar of Patna High Court passed a 2-page long order date December 18, 2025, wherein, he denied regular bail in the rape case. He concluded:"6. Considering the aforesaid facts and the gravity of the offence, this Court is not inclined to grant regular bail to the petitioner. 7. Accordingly, this application for regular bail stands rejected. If the trial is delayed by the prosecution, the petitioner may renew his prayer for bail."   

The petitioner sought regular bail in connection with Mahila (Sachivalaya) P.S. Case  of 2013 registered for the offence under Sections 376, 379/34 of the Indian Penal Code. As per the prosecution case, the allegation against the petitioner was that he along with others forcibly kidnapped the victim lady and committed rape with her. The counsel for the petitioner submitted that petitioner was innocent and had not committed any offence. The petitioner was in custody since June 16, 2025. He also submitted that the petitioner was named in the case on the basis of the confessional statement of one Ravi Kumar. 

Justices Bibek Chaudhuri, Dr. Anshuman set aside judgement, order in rape, murder case

In Shatrughan Ram @ Shatrudhan Das Vs. The State of Bihar (2026), Patna High Court's Division Bench of Justices Bibek Chaudhuri and Dr. Anshuman delivered a 16-page long judgement, wherein, it set aside the judgement of conviction and sentence passed by the Additional Sessions Judge, Fast Track, 2nd Court at Patna on February 16, 2019, whereby and whereunder, the Trial Judge had held the appellant guilty for committing offence under Sections 376/302 of the Indian Penal Code and convicted and sentenced him to suffer rigorous imprisonment for life for the offence punishable under Section 376 of the IPC and rigorous imprisonment for life till the end of his natural life for the offence punishable under Section 302 of the IPC. It directed the appellant to be released at once.

On the basis of an oral statement made by one Jawahar Kumar Ray of village Mohaddipur, which was reduced to writing by Sub-Inspector, K. N. Paswan on December 17, 2007, S.K. Puri P.S Case of 2007 for the offence punishable under Sections 376 and 302 of the Indian Penal Code was registered. It was alleged by the informant that at the relevant point when the alleged incident took place, he used to reside at New Punaichak, Jhuggi-Jhopadpatti by the side of the railway line within Police Station-S. K. Puri. On December 16, 2007 in the evening, the wife of the informant, namely, Kachan Devi sent her daughter, since deceased, aged about 8 years, to collect waste papers. At that place, the appellant was also present. His child also went to collect papers. When the informant returned at about 08:30 P.M. on December 16, 2006, after pulling rickshaw, he did not find his minor daughter at home. He and his wife conducted a search for their daughter at nearby area and asked the local people about her whereabouts but the local people failed to give any reply to them. Then they suspected that his daughter might be in the room of the appellant. He went to the house of the appellant to find out his daughter but found that the house 3/16 and the entrance gate of the appellant were locked and dark inside. 

On the following morning at about 07:00. A.M., the informant again conducted search of his daughter. 

During search, he peeped through the closed door of the room of the appellant and found that her daughter lying dead inside the room of the appellant. With the help of local people, the lock of the entrance gate and the door of the room were broken. The informant and others saw the dead body of her daughter having injuries and scratch marks all over her body. Her undergarment and pant were found open and blood was found near her buttock. He suspected that the appellant who was also residing at the relevant point of time at New Punaichak, Jhuggi-Jhopadpatti committed rape upon his daughter and thereafter murdered her by throttling.

The S.H.O., S.K. Puri, Police Station instructed S.I. K. N. Paswan to take up the investigation of the case. During investigation, he recovered the dead body of the daughter of the informant; held inquest over the dead body of the deceased at the place of occurrence; seized blood-stained earth from the place of occurrence; and one photocopy of voter identity card from the room of the appellant. He also examined available witnesses and recorded their statement under Section 161 of the Cr.P.C. Thereafter, he sent the dead body of the deceased for post-mortem examination to P.M.C.H. He also obtained forensic report of the seized blood- stained earth and wearing apparels of the victim.

On conclusion of investigation, he submitted a charge-sheet against the appellant under Sections 376 and 302 of the IPC before the learned C.J.M., Patna on October 29, 2011. The Sessions Judge, Patna received the case record after commitment on January 4, 2012 and transferred the case to the 10th Court of the Additional Sessions Judge at Patna.

The Additional Sessions, 10th Court at Patna, received the case records and framed charge against the accused/appellant on May 9, 2012, punishable under Section 376 of the IPC. When the charge, so framed, was written over and explained to the appellant, he pleaded not guilty. Accordingly trial of the case commenced.

Justice Chaudhuri observed:"10. At the outset, we like to record that after commencement of trial, no sessions trial case can be transferred from one Trial Court to another by issuing administrative order by the learned Principle Sessions Judge, Patna. However, the said procedural wrong was committed by the learned Principle Sessions Judge by issuing memo no. 3052-3054 dated 4th of March, 2017, directing the learned Additional Sessions Judge, 10th Court at Patna to transfer the case to the 2nd Fast Track Court at Patna. 11. However, when the trial of the case was concluded by the learned 2nd Fast Track Court at Patna by passing judgement of conviction and sentence, we treat the above-mentioned anomaly as procedural irregularity and proceed with the hearing of the instant appeal.

During trial, in order to bring home the charge against the accused, the prosecution examined as many as five witnesses. 

20. The Trial Court convicted the appellant on the sole ground of recovery of dead body from the house of the appellant on the basis of presumption that since the dead body of the victim girl was found in the room of the appellant, he had special knowledge about what had happened to the deceased after she left her home in the evening of 16th of December, 2007. It was held by the Trial Court that the incident that took place with the victim after she departed her home to bring waste papers was within the special knowledge of the appellant and he failed to discharge his burden as to how the deceased was ravished and subsequently murdered.

Notably, Section 106 of the Indian Evidence Act discusses the burden of proof on a person who has knowledge of a specific fact, such as being the last person known to have been with the victim.

Justice Chaudhary observed: "23. It is needless to say that in order to convict someone on the basis of circumstantial evidence invoking the last seen theory, the prosecution is under primary obligation to prove the circumstance beyond any shadow of doubt, the chain of which must lead to the inescapable conclusion of that person committing the crime. 24. In criminal cases, where direct evidences are hard to found, the entire case depends on the circumstantial evidence. The circumstantial evidences imply when all the evidences are clubbed together to form a complete chain of events in such a way that the accused may be convicted. The chain of events, so formed, must be without any reasonable doubt. Each circumstances and the evidences from which the chain is formed should be individually proved as direct evidences. The circumstantial evidence is always direct and primary which means the fact from which the existence of the fact in issue to be inferred must be proved by direct evidence. In case of circumstantial evidence, all the circumstances should be vested by absolute evidences and should form a complete chain to bring home the guilt of the accused without giving any alternative chance to any other hypothesis." 

He added:"25. In the instant case, there is absolutely no direct evidence against the appellant in support of the charge. Thus, the Trial Court bases its judgement of conviction on the basis of circumstantial evidence. 26. The only circumstance appearing against the appellant is that the dead body of the victim was found in his room in the morning of 17th of December, 2007. The victim was missing from the evening of 16th of December, 2007. Nobody saw the appellant enticing the victim to his house after her departure from her own house to bring some waste papers. 27. It is unfortunate to note that the incident took place on 16th of December, 2007. The appellant was arrested and produced before the learned Chief Judicial Magistrate on the strength of warrant of arrest on 7th of August, 2011. Charge- sheet was filed on 29th of October, 2011. Charge was framed against the accused on 9th of May, 2012...."

The Court concluded: "29. After hearing the appeal, we are unfortunately note that the appellant was convicted and sentenced to suffer imprisonment for life on consideration of inadmissible evidence. The prosecution hopelessly failed to bring home the circumstances which were necessarily established beyond any shadow of doubt in order to come to a finding in support of hypothesis of guilt against the appellant. 30. This is a case where the appellant remained in custody for about 15 years though prosecution failed to produce any kind of evidence whatsoever against him during trial. However, we do not find any alternative but to lament for the unfortunate state of justice delivery system in our country and pray that timely justice shall be delivered both to the prosecution and defence in future. 31. In view of the above discussions, the instant Criminal Appeal is allowed on contest. 32. However, there shall be no order as to costs."

The transferee Court had received the record on March 10, 2017 and continued with the trial which was commenced before the 10th Court of the Additional Sessions Judge at Patna. From the date of arrest/production before the Court till date, he was in custody. The Trial Court delivered the impugned judgement on February 16, 2019. 

The appeal was filed before the High Court on May 22, 2019. The appeal was admitted for hearing by a Coordinate Bench of the High Court after a lapse of six years on March 28, 2025. Thereafter, date was fixed for production of lower court records on August 1, 2025. 28. Subsequently, a Coordinate Bench passed an order for substitute service of notice upon Respondent/informant by paper publication. The Coordinate Bench vide order, dated December 19, 2025 had refused the prayer for suspension of sentence and bail. 

Justice Shailendra Singh upholds judgement by Ad hoc Additional District & Sessions Judge-I, Patna in a Sessions Trial of 2012

In Atendra Thakur vs. The State of Bihar  (2026), Patna High Court's Justice Shailendra Singh delivered a 20-page long judgement dated February 3, 2026 concluded:"... this Court finds the trial court’s approach in framing the charge under section 376 read with section 511 of the IPC against the appellant and convicting him for the same, to be correct. Accordingly, this Court finds no illegality in the impugned judgment of conviction and order of sentence and there is no merit in this appeal, so, it stands dismissed. 20. The appellant is on bail, so, his bail bonds are cancelled and he is directed to surrender before the trial court within fifteen days from the date of receipt of this Judgment’s copy by the trial court and serve the remaining part of the sentence awarded upon him by the trial court. If the appellant does not surrender within the fixed period then the trial court shall take all necessary legal steps to get him in custody and put him in jail so that he can serve the remaining part of his sentence. 21. Let the judgment’s copy along with the trial court’s record be sent immediately to the trial court for needful compliance."

The criminal appeal was preferred by the appellant, Atendra Kumar, against the judgment of conviction dated April 16, 2014 and the order of sentence dated April 23,2014 passed by the Court of Ad hoc Additional District & Sessions Judge-I, Patna, in a Sessions Trial of 2012 arose out of Parsa Bazar P.S. case 2012, G.R. of 2012, whereby and whereunder the appellant was  convicted for the offence under Section 376 read with Section 511 of the Indian Penal Code, and he was sentenced to undergo rigorous imprisonment for five years with a fine of Rs. 10,000/. 

Justice Singh examined the applicability of the offence punishable under section 376 read with section 511 of the IPC in the present matter. As per the story narrated by the victim in her fardbeyan, the accused firstly followed her and thereafter ran behind her in a field and pushed her to the ground and climbed onto her body and started opening her pant but during that course when the victim cried, the appellant tried to escape upon seeing the people who ran to the place of occurrence after hearing the cry of the victim. The victim deposed almost similar story before the trial court in her examination-in-chief and remained firm to her stand in the cross-examination also. By these acts of the appellant as alleged by the victim, it can be deemed that he had crossed the stage of preparation and entered into the stage of attempting to commit the offence of rape. As the appellant’s acts clearly demonstrate the execution of his mens rea to rape the victim and his preparation had come to an end on that very moment when he pushed the victim to the ground on a wheat field and climbed onto her body and tried to open her pant. Though he could not succeed in committing sexual penetration, however, the appellant was about to commit rape upon the victim but could not succeed on account of raising an alarm by the victim and owing to the arrival of nearby people. 

The informant, who was the victim herself alleged that on April 14, 2012 at about 4:10 P.M., she went to the coaching centre run by one Gunjan Master, situated at village- Palanga Bagicha. After attending the coaching, she was returning alone to her home, when she saw the appellant coming from behind on a bicycle. Thereafter, when she reached near a ridge leading to her village, she left the road and chose a shortcut way to reach the village. After that the appellant started following her after leaving his bicycle in a field. The victim further alleged that when the appellant started following her, she, on account of being alone, started running, but the appellant chased and caught hold of her, closed her mouth by placing his hand, and pushed her to the ground of a wheat field with an intention to rape her. The victim further alleged that during the course of committing the occurrence, the appellant fell upon her body and tried to open her pant, but when she cried, some people started arriving at that place.

Thereafter, the appellant tried to flee, but he was caught by those persons. The appellant was assaulted by the people, and thereafter, the police were informed through mobile communication. After that the Station House Officer (SHO) and other police officials arrived there. As per the victim, she recorded her fardbeyan at 06:45 P.M. before the Assistant Sub Inspector (ASI), namely Din Bandhu Ram, of Parsa Bazar Police Station. On that basis, the formal FIR was registered baring Parsa Bazar P.S. Case No. 39 of 2012 for the offence under Section 376 read with Section 511 of IPC, that set the criminal law in motion.

Justice Rajesh Kumar Verma's bail order in a rape case challenged in Supreme Court, notice issued

In Shiv Shankar Kumar @ Shiv Shankar Singh vs. The State of Bihar & Anr. (2024), Patna High Court's Justice Rajesh Kumar Verma had passed a 4-page long order dated August 21, 2024 saying, "let the petitioner, above named, in the event of arrest or surrender before the court below within a period of thirty days from the date of receipt of the order, be released on bail on furnishing bail bond of Rs. 25,000/-(Twenty Five Thousand) with two sureties of the like amount each to the satisfaction of the learned Judicial Magistrate 1st Class, Patna in connection with Complaint Case No. 1862(C) of 2023, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure and with other...". This order was passed because the petitioner had clean antecedent and the police had submitted final form in favour of the petitioner. The petitioner had approached the High Court apprehending his arrest in view of the F.I.R. dated October 9, 2017 for the offences punishable under Sections 376, 354C, 506 read with Section 34 of the Indian Penal Code (IPC). Rimpi Srivastava, the opposite party No. 2 had filed the present Complaint Case No. 1862(C) of 2023 against the petitioner in which cognizance has been taken against the petitioner vide order dated November 30, 2023.

According to the prosecution, all the accused persons including the petitioner had committed rape upon the complainant and also made a video of the same and threatened her for dire consequences. It was alleged that one of the co-accused, namely, Pintu Singh stolen her ornaments after marrying her and fled away and when the complainant inquired about him, she found that the said Pintu Singh was already married and he had five children. It has been alleged that police has connived with the petitioner. 

Now the case has reached Supreme Court. On April 29, 2025, Court's Division Bench of Justices Vikram Nath and Sandeep Mehta passed an order in XXX vs.The State of Bihar & Anr. (2025) to condone the delay and issued notice.

Granting relief to Syed Shahnawaz Hussain in a rape case, Delhi High Court's Justice Neena Bansal Krishna says, “protecting” will always weigh more than “punishing”

Brother of Syed Shahnawaz Hussain is married to the complainant 

In P (Complainant) vs. State of NCT of Delhi and Syed Shahnawaz Hussain (2024), Justice Neena Bansal Krishna of of Delhi High Court observed: "“Innocent until proven guilty” coupled with the rigorous standard of "establishing guilt beyond a reasonable doubt,” forms the foundational tenet of our criminal justice administration. The acquittal of guilty individuals, while regrettable, is a lesser evil compared to the horror of condemning the blameless. When the delicate scales of justice are tipped with utmost care, “protecting” will always weigh more than “punishing”" in a case pertaining to offences under Sections 376/328/506 of Indian Penal Code 1860, against Syed Shahnawaz Hussain, the respondent no. 2, the former Member of Parliament. The judgement was delivered on August 2, 2024.

Section 376 deals with punishment for sexual assault. The relevant part of the section reads: "1 (a) whoever, except in the cases provided for by sub-section (2) commits sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to 10 years and shall also be liable to fine. (b) If the sexual assault is committed by a person in a position of trust or authority towards the complainant or by a near relative of the complainant, he/she shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to life imprisonment and shall also be liable to fine."

Section 328 deals with the offence of causing hurt by means of poison, etc., with intent to commit and offence" It reads: "Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

Section 506 deals with the punishment for criminal intimidation. It reads: "Whoever commits, the offence of criminal intimidation shall be punished with imprison­ment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprison­ment of either description for a term which may extend to seven years, or with fine, or with both."

It was alleged by the lady complainant that on April 12, 2018 during the BJP dharna in Delhi, the lady received a call from Syed Shahnawaz Hussain to meet him at Roshan Tent House, New Khanna Market, Lodhi Colony, New Delhi at about 06:00 P.M., to accompany him to his Farmhouse in Chhatarpur where his brother and his brother‟s wife, Mrs. Lama Hussain would also be present, to sort out the ongoing difference/issues between her and his brother Shri Syed Shabbaz Hussain. Allegedly, when she reached the Farmhouse along with Hussain, she was asked by him to switch off her mobile phone. Thereafter, Hussain gave her some eatables and cold drinks, on consumption of which she lost her consciousness. Taking advantage of the situation, he raped her till late night. He then threatened to tarnish her image by circulating her explicit/sexual videos recorded by him and even threatened to kill her and her family members. The complainant reported the incident through the complaint dated April 22, 2018 to Station House Officer, Police Station Mehrauli, New Delhi and the Deputy Commissioner of Police, South Delhi as well as Complaint dated April 26, 2018 to Commissioner of Police, whereby she sought registration of an FIR under Section 376/328/506 of IPC 1860, against Hussain.

Despite several calls on Number 100 and Number 112 to Delhi Police and being called to the Police Station several times, no FIR was registered against Hussain. All her complaints to Police (Vigilance Department) at Barakhamba Road, Delhi and also to Deputy Commissioner of Police, Commissioner, did not result in any action either against Hussain or against the Police Officers involved in protecting him. 

Subsequently, a Complaint was filed under Section 156 (3) Criminal Procedure Code (Cr.P.C.), 1973 read with Section 200 Cr.P.C. before the Metropolitan Magistrate, Saket Court, Delhi. After consideration of the allegations made by the complainant, the Metropolitan Magistrate finding that the allegations in the Complaint disclosed commission of cognizable offence, following the decision of the Supreme Court in the case of Lalita Kumari vs. Government of U.P. & Ors (2008), directed the registration of FIR vide order dated July 7, 2018. The Metropolitan Magistrate directed the recording of statement under Section 164 of Cr.P.C and for the medical examination of victim/complainant and Hussain, the accused. Despite the order, no FIR was registered by the Station House Officer, Police Station, Mehrauli. The police continued to protect the accused, who was also able to commit theft of documents from the Saket Court, in connivance with the police officials.

Hussain challenged the order dated July 7, 2018 before the Session Court, Saket Court, Delhi on July 9, 2018 through his revision petition. The Court of Special Judge (PC Act), CBI-01 (South), Saket Courts, New Delhi dismissed the Revision Petition by order dated July 12, 2018. He approached the High Court by filing a quashing petition under Section 482 Cr.P.C. but was dismissed on August 17, 2022 by Justice Asha Menon in CRLMC No. 3456/2018. This case was filed and registered on August 18, 2022 in the Supreme Court and verified on August 20, 2022. It was decided by Justices S. Ravindra Bhat and Dipankar Datta. The apex Court was not inclined to interfere with the order and judgment passed by the High Court. It dismissed special leave petition of  Syed Shahnawaz Hussain by its order dated January 16, 2023. The order dated July 7, 2018 of Metropolitan Magistrate, Saket Court directing registration of FIR was upheld.

The High Court's order records that the complainant was pressurized her to compromise with the accused. The police persons had also threatened and pressurized the witnesses of complainant. Several witnesses were also beaten mercilessly by the Police. This is supported by Sangeeta Singh, the witness who has filed a criminal complaint against the Mehrauli Police/SHO/Investigating Officer and other accused persons which is pending in the Saket Court, Delhi. It also recorded that the Investigating Officer/SHO Police Station Mehrauli, under the undue influence of the Hussain, tried to save him from this case and filed the false Report/Cancellation Report dated April 25, 2023 in the FIR No. 85/2023 before the Metropolitan Magistrate, Saket Court, Delhi.

A Protest Petition was filed by the complainant against the Cancellation Report dated April 25, 2023 before the Additional Chief Metropolitan Magistrate, Rouse Avenue Court, Delhi. The Court through its order dated October 10, 2023 allowed the protest petition filed by the complainant and rejected the Cancellation Report filed by the Investigating Agency. Additional Chief Metropolitan Magistrate cognizance took cognizance under Sections 376/328/506 of IPC, 1860 thereby summoning the accused person to face trial for the offences. Notably, Additional Chief Metropolitan Magistrate referred to the judgments in the case of Phool Singh vs. The State of M.P., decided vide Crl. Appeal No. 1520/2021 by the Apex Court vide Judgment dated 01.12.2021, Santhosh Moolya & Anr. vs. State of Karnataka, Criminal Appeal No. 479/2009 and Ganesan vs. State (Represented by its Inspector of Police), Criminal Appeal No. 680/2020, wherein it has been observed that the sole testimony of the victim or prosecutrix, if reliable, is sufficient to convict an accused and it requires no corroboration.

The order of the Additional Chief Metropolitan Magistrate was challenged by Hussain in a Criminal Revision Petition the Session Court, Rouse Avenue Court, New Delhi. The Additional Sessions Judge, Special Judge, Rouse Avenue Courts set aside the Summoning Order dated October 10, 2023 of Additional Chief Metropolitan Magistrate through its order dated December 16, 2023. Additional Sessions Judge observed that there is no quarrel with the proposition of law that the sole testimony of the prosecutrix, if reliable, can be sufficient to convict the accused, but the entire focus of all the judgments of the Apex Court is on the reliability of the testimony.

The lady petitioner, the complainant challenged this order in the High Court. She contended that the Hussain has concealed material facts and did not place on record the orders of the High Court and Supreme Court because through those Orders, his petitions, which were essentially on the same grounds, had already been dismissed. She further averred that it is a settled law that in the rape case, the conviction can be done on the basis of medical evidence and also the statement under Section 164 Cr.P.C. The Additional Sessions Judge, Special Judge, Rouse Avenue Courts, failed to appreciate that the statement of the victim under Section 164 Cr.P.C. and medical report of the victim which support the prosecution case and make it a fit case for summoning the accused and to proceed with the trial for offences made out. The present Revision Petition was filed to challenge the legality, correctness and propriety of the order dated December 16, 2023 passed by the Additional Sessions Judge in accepting the Cancellation Report.

In its judgement the High Court has recorded that "the alleged incident was of 12.04 2018 while the complaint has been made on 22.04.2018 i.e., after about ten days" after she could gather courage to make the complaint despite this "the FIR got registered only by the intervention of the Court right upto the Apex Court" when Hussain did not find any favour. The FIR No. 85/2023 was eventually registered "after about five years" in regard to the alleged incident of April 12, 2018.  

The High Court observed that the "sole testimony of the prosecutrix can be the basis of conviction but has a caveat that it must be of sterling quality and absolutely reliable. To ascertain the credibility and reliability of the testimony of the prosecutrix, the surrounding circumstances as deciphered during investigation, also require equal consideration." It grappled with the question as to "whether the evidence collected by the Investigating Officer shakes the credibility of the testimony and creates a grave suspicion that the alleged offences could not possibly have occurred."

The judgment concluded:"the overwhelming independent ocular, documentary and scientific evidence collected during the investigations, whereby the presence of the respondent no.2 and complainant on the date of the alleged incident at the place of alleged incident i.e. Sharma Farmhouse is completely ruled out, the possibility of the commission of alleged offence is rendered zilch. Hence, conclusion of the learned Additional Sessions Judge in accepting the Cancellation Report has to be upheld. In view of the foregoing discussions, there is no infirmity in the impugned Order dated 16.12.2023 and the Revision Petition is hereby dismissed."

Unanswered India Gate Question

"India Gate" is mentioned on five occasions in the judgment.   

Notably, the complainant's submission stating that "IO/Police SHO Police Station Mehrauli, has intentionally not produced the CDR Report/CCTV footage of India Gate which is important evidence to prosecute respondent No. 2" which  Special Judge has failed to appreciate is recorded in paragraph 21 of the judgement, has not been disputed.  At paragraph 72 of the judgement which provides details about the "Additional Contentions of the Petitioner", it is recorded that "The complainant in the Petition has raised a ground that the IO/SHO Police Station Mehrauli has not produced the CDR report/CCTV Footage of India Gate which is important evidence to corroborate that after the incident, she was abandoned at India Gate, in the middle of the night after the incident."  

The judgement of Justice Neena Bansal Krishna reproduces the response of the I.O. at paragraph 73-74 without engaging with it. 

The text with regard to I.O's submission reads: "The I.O. in the Cancellation Report has explained this aspect by stating that the CDR records of her mobile phone, which was with her, clearly reflect that her presence at India Gate has not been confirmed by the location charts. She was seen to be present at various places in Dwarka on the date of the incident and at even the alleged time of incident which is 10:00 PM to 10:30 P.M., her Cell-ID location is of Sector 22, Dwarka at 22:31:42 hrs. In light of the above discussion, when it is evident that the complainant was at different places in Dwarka throughout the day and when the mobile number has not been denied by the complainant, there arises no question that the CDR of the mobile phone would incorrectly reflect her location, since a person cannot be present at two locations at one time, the CCTV footage of India Gate would not be of any assistance in the present case. Further, even if the CCTV would have reflected her presence at India Gate, it could not have provided any assistance in proving the alleged incident of rape or commission of the alleged offence." 

This does not seem to answer the India Gate question by any stretch of imagination. Will this question be examined when there is an appeal against the High Court's judgement?  

Influence of High Court's observation on Sayed Sahahbaz Hussain and his wife on pending case before Additional Sessions Judge, Patiala House Courts, Delhi

In paragraph 65-70 of the judgement records that it was also the claim of the petitioner that Sayed Sahahbaz Hussain, brother of Syed Shahnawaz Hussain had also raped her in the year 2013 in regard to which she had met the Syed Shahnawaz Hussain, who was a Member of Parliament at that time. The complainant/prosecutrix even approached the Delhi Commission for Women in the year 2016 with the above allegation of rape by the brother of Syed Shahnawaz Hussain, the respondent No. 2 and she had also alleged that she was forcibly made to convert her religion by signing papers of conversion and even a fake Nikahnama in the name of complainant/prosecutrix and Syed Shahbaz Hussain, was prepared. She stated by her that in regard to the said incident involving the brother of the respondent No. 2, she had made a complaint under Section 156(3) of Cr.P.C. for registration of an FIR, though it was dismissed by the learned Metropolitan Magistrate. It was subsequently allowed by the Additional Sessions Judge in revision, but since the same was done with issuing notice to Syed Shahnawaz Hussain, respondent No. 2, the High Court set the order aside and remanded it back which is pending adjudication before Additional Sessions Judge, Patiala House Courts, Delhi.

The judgement also records that Syed Shahbaz Hussain, disclosed that the complainant/petitioner had sought his help for some NGO work which he had given her and she had visited his house on few occasions, but suddenly she started posting some objectionable posts on social media about him and blackmailing him for money and fraud and also extended threats to implicate him in false rape case. She even started pressuring him to divorce his wife and to marry her. When he refused to accede to her illegal demands, she made a complaint in Women Commission, Delhi making false allegations of rape against him on the pretext of marriage and forcible conversion etc. He denied having any relationship with the complainant/petitioner. He also disclosed to the Investigating Officer that under the pressure and threats and on a promise made by the complainant/prosecutrix to withdraw her complaints against him, he agreed to marry her and they both got married on January 10, 2017, but she continued to blackmail and threaten him and even visited his house on various occasions and created scene, resulting in filing of different complaints in the local Police Station and registration of some FIRs against her at Police Station Sarita Vihar and Jamia Nagar. He also stated about continuous extension of threats and the cross complaints given or filed by them against each other to different authorities. The statement of Lama Hussain, wife of the respondent No. 2 also deposed and gave the statement on similar lines.

Delhi High Court's observation on Sayed Sahahbaz Hussain and his wife, the complainant is germane to the case pending before Additional Sessions Judge, Patiala House Courts, Delhi. 

Link between property dispute and allegations of sexual assault?

The reference to property dispute in the context of allegations of sexual assault by the lady complainant finds passing reference in the judgement. The relationship between the possibility of property dispute and allegations of the assault has not be examined at any stage of the judicial process.        

Judgement of Additional Sessions Judge, Araria set aside, the appellants accused of the offence of attempt to rape, acquitted

In Laxhmi Yadav Vs. State of Bihar (2024), the appeal was preferred by the appellants on being aggrieved and dissatisfied with the judgment of conviction passed by the Additional Sessions Judge, Araria, whereby and whereunder the appellants/ convicts were convicted under Sections 376/511 of the Indian Penal Code (IPC).  

Section 376 of IPC elaborates the punishment for rape . The word "rape" is defined under Section 375 of IPC. The punishment for committing rape is rigorous imprisonment for ten years which may extend to life imprisonment. Section 376 elaborates three sub-sections and five sub-parts. Section 376 (1) mentions the punishment for rape. Section 376 (2) states that if the persons in authority commit rape, they will also be liable to the same punishment. Section 376 (3) states that if any person rapes a woman under the age of 16 years , he will be liable to be punished for twenty years. The offence under Section 376 is a non-bailable and cognisable offence, which means that the accused can't avail bail as a matter of right. The bail to the accused would be granted at the court's discretion. 

Section 511 of the IPC deals with the punishment for attempting to commit offences that are not specifically covered under other sections. Section 511 reads: “Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.”

This section underscores the principle that an attempt to commit a crime is, in itself, a punishable act. It highlights the importance of intent and action towards the commission of a crime, even if the crime is not completed. By penalizing attempts, Section 511 aims to curb criminal activities at their inception, thereby enhancing the overall safety and security of society.

The counsel for the appellants, Vipul Sinha, the Amicus Curiae submitted that admittedly, all the material prosecution witnesses are closely related to the informant and are highly interested. During the course of investigation, not a single independent witness has come forward to claim himself/herself to be the eye witness to the occurrence of attempt to rape on September 15, 2000 at 6 A.M. but a complaint was filed on the next day. This created doubt over the authenticy of the prosecution version. The parties were on litigating terms from before as the proceedings under Sections 107 and 144 Cr.P.C were also initiated against them from before. Hence, to settle the personal vendetta with the accused appellants, this false case was registered against them. He pointed out that the recovered clothes were not sent for any chemical examination neither from bare perusal of the records, it appears that the victim/complainant was medically examined. 

The Court's order noted that "all the prosecution witnesses are highly interested witnesses. The offence relates to attempt of rape which comes within the purview of cognizable offence and for the cognizable offence, it is prerequisites that F.I.R should be registered. But in the instant case, instead of registering an F.I.R, a complaint was filed by taking a plea that Officer-in-charge had not the registered the F.I.R. Section 154(3) of the Cr.P.C facilitates that any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information under cognizable offence, he/she may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. Hence, this Court finds lacuna for not lodging the F.I.R in this case."

The Court's judgement records that according to the evidence of the victim, the appellants Laxmi Yadav and Bidhyanand Yadav caught hold her and torn her blouse but the said blouse has not been exhibited as material exhibit. From perusal of the prosecution evidence, it is also apparent that the victim sustained injuries on her person at the time of occurrence but there is no medical evidence on record to support and corroborate the prosecution case in respect of the fact that the victim has sustained injuries on her person.

The judgement concluded that there was an inordinate delay of one day in registering a case without explaining the delay. The prosecution has failed to establish its case beyond the shadow of all reasonable doubts with respect to the manner and motive of the occurrence. There is contradiction in the evidences of the prosecution witnesses and most of the witnesses are highly interested witnesses. Hence, the appellants are entitled to get the benefits of doubt.

In his judgment dated June 19, 2024, Justice Sunil Kumar Panwar set aside the judgement of conviction dated August 24, 2006 and order of sentence dated August 25, 2006 passed by the 1st Additional Sessions Judge, Araria, in Sessions Trial No. 643/2001 and 92/2001 and acquitted all the appellants of all the charges after getting the benefits of doubt.

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.