Patna High Court
Md. Alam vs The State Of Bihar on 20 April, 2026
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.672 of 2023
Arising Out of PS. Case No.-162 Year-2021 Thana- MAHUA District- Vaishali
======================================================
Md. Alam, Son of Md. Akhtar, Resident of Village- Rampur Singhara, PS-
Mahua, Distt- Vaishali.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. Krishna Prasad Singh, Sr. Advocate
Mrs. Meena Singh, Advocate
For the State : Mr. Ajay Mishra, Addl.PP
For the Informant : Mr. Dharmendra Kumar Paswan, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 20-04-2026
Heard learned Senior Counsel for the appellant, learned
counsel for the informant and learned Additional Public Prosecutor
for the State.
2. This appeal has been preferred for setting aside the
judgment of conviction dated 25.04.2023 (hereinafter referred to as
the 'impugned judgment') and order of sentence dated 15.05.2023
(hereinafter referred to as the 'impugned order') passed by learned
Additional Sessions Judge-VI-cum-Spl. Judge, POCSO, Vaishali at
Hajipur (hereinafter referred to as the 'learned trial court') in POCSO
Gr. No. 09 of 2021 arising out of Mahua P.S. Case No. 162 of 2021.
By the impugned judgment, the appellant has been convicted for the
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offences punishable under Sections 377/34 of the Indian Penal Code
(in short 'IPC') and Section 6 of the Protection of Children from
Sexual Offences Act (in short 'POCSO Act'). By the impugned order,
he has been sentenced to undergo rigorous imprisonment for twenty
(20) years with a fine of Rs. 20,000/- under Section 6 of the POCSO
Act and in default of payment of fine, he shall further undergo
rigorous imprisonment for one year. He has also been sentenced to
undergo rigorous imprisonment for ten (10) years with a fine of Rs.
10,000/- under Section 377/34 IPC and in default of payment fine,
he shall further undergo rigorous imprisonment for six months. Both
the sentences are to run concurrently.
3. The prosecution case is based on the written information
dated 26.02.2021 submitted by the informant/ victim boy (PW-1). In
his written information, he has stated that on 24.02.2021 at about
06:30 AM in the morning, when he was sitting at the shop of Sunny
Kumar and Golu Patel situated near Sahara India Office at Mahua
Bazar, Samastipur Road, two persons came there and enquired from
Sunny Kumar about the victim boy. On which Sunny Kumar told
them that he is a good-mannered boy and is in search of some work
due to his poor financial condition. Thereafter, these two persons told
the victim to accompany them, they will provide him money, food
and good clothes. They also said that he has to discharge their
household work and assured him that he will be given opportunity
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for further study. Thereafter, Golu Patel told the victim boy to
accompany them as they were known to Golu Patel.
Those two accused persons were Ranjeet Patel and Md. Alam
(this appellant). The victim boy along with two accused persons
came at the house of Md. Alam on their motorcycle. Both of them
told him to have food and go to sleep. He was trying to sleep,
however, was not able to sleep. In the meantime, he saw that both of
them started sipping alcohol from a bottle after pouring in glass and
thereafter, he fell asleep. In the late night, he felt that somebody has
opened his pants and trying to insert something through his anus
which was painful. Thereafter, he woke up and saw that both the
accused persons were naked and were doing unnatural sexual offence
with him. He tried to prevent them but they threatened him to kill if
he raised the alarm. These two accused persons committed unnatural
sexual offence with the victim boy one by one by pressing his mouth.
Thereafter, they put their clothes on and also told him to wear his
clothes and threatened him not to disclose this to anyone, otherwise
he will be killed.
Thereafter, in the morning of 25.02.2021 at about 09:30AM,
both the accused persons left him on their motorcycle at the shop of
Golu Patel. He felt the pain for the whole day but in the evening
when he could not bear the pain, he disclosed about the said incident
to his nearby neighbours and members of his family. He was taken to
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Mahua Sub-Divisional Hospital for treatment. Later on, he was
referred to Sadar Hospital, Hajipur for better treatment. He was told
to inform the concerned police station.
4. On the basis of this written information, FIR being
Mahua P.S. Case No. 162 of 2021 dated 05.03.2021 was registered
under Section 377 IPC amd Section 4/8 of the POCSO Act against
(1) Sunny Kumar, (2) Golu Patel, (3) Ranjeet Patel and (4) Md. Alam
(this appellant). After investigation, police submitted chargesheet
bearing Chargesheet No. 817 of 2021 dated 10.12.2021 against Md.
Alam for the offences punishable under Section 377/34 IPC and
Section 4/8 of the POCSO Act keeping investigation pending against
other accused persons.
5. Learned trial court vide order 16.12.2021 took
cognizance of the offences punishable under Section 377/34 IPC and
Section 4/8 of the POCSO Act against Md. Alam. Charges were read
over and explained to the appellant in Hindi to which he denied the
charges and claimed to be tried. Accordingly, charges were framed
vide order dated 24.01.2022 for the offences punishable under
Section 377/34 IPC and Section 6 of the POCSO Act.
6. In course of trial, the prosecution examined as many as
five witnesses and got exhibited certain documents. The list of
prosecution witnesses and the documents are given hereunder in
tabular form:-
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List of Prosecution witnesses
Prosecution Name of the Witness Description of the
Witness No. Witness
PW-1 Victim Victim/ Informant
PW-2 Dr. Rakesh Kumar Medical Officer
PW-3 Mother of the Victim Mother of the Victim
PW-4 Santosh Kumar Pankaj I.O. of the Case
PW-5 Vishnudev Dubey Sub-Inspector of
Mahua Police Station
List of Exhibits on behalf of Prosecution
Exhibit No. Description of the Exhibit Proved by/
Attested by
'1' Written application PW-1
'2' Statement of 164 CrPC PW-1
'3' Signature of the Victim of the PW-1
Forwarding letter from Mahua
Hospital for treatment in the
Sadar Hospital
'4' Medical Report of the Victim PW-2
'5' Supplementary Test report of PW-2
the Victim
'6' Chargesheet PW-4
'7' Arrest Memo PW-4
'8' Formal FIR PW-5
7. Thereafter, the statement of the appellant was
recorded under Section 313 of the CrPC. In this 313 CrPC
statement, he pleaded innocence and stated that Prem Shankar
and Uday Shankar had already registered case against me and
they again implicated him in the present case. The Defence has
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produced three witnesses and exhibited some documentary
evidences which are being mentioned hereunder in tabular form:-
List of Defence witnesses
Defence Name of the Witness Description of the
Witness No. Witness
DW-1 Md. Alam Accused of the case
(appellant herein)
DW-2 Shahnaj Khatoon Other witness
DW-3 Ram Shankar Ray Other witness
List of Exhibits on behalf of Defence
Exhibit No. Description of the Exhibit Proved by/
Attested by
'A' Certificate of Gram Panchayat DW-2
Singhara
'D1' Certified Copy of FIR of Mahua
P.S. 591/19
'E' Photocopy of FIR of P.S.
Rajapakar 32/2020
'F' Photocopy of FIR of P.S. Case
Mahua 99/2021
'F1' Photocopy of written application
of Mahua P.S. Case 99/2021
'G' Photocopy of written application
of Mahua P.S. 706/2020
'H' Photocopy of FIR of Mahua P.S.
18/2020
Findings of the Learned Trial Court
8. The learned trial court having examined the entire
prosecution evidences found that the emphasis of defence
regarding false implication due to previous enmity cannot be a
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ground to discard the witnesses' evidence if such evidence is found
to be reliable while upholding conviction of an accused.
9. On the point of alibi taken by the defence, learned trial
court took note of the argument of the defence counsel that at the
time of occurrence, the accused being an Advocate was busy in
court for preparing the filing of the bail bond and on the other
hand, the learned counsel submitted that the accused was at the
Hon'ble High Court, Patna at Mazar to join the tajposhi from 2:00
pm to 4:00 pm. Learned trial court observed that it is highly
unbelievable that a person who is an Advocate is present at three
places of surroundings of 20-30 kms at the same time.
10. Learned trial court negated the submission of learned
defence counsel regarding contradiction on the point of age of the
victim boy by referring the fact that no documentary evidence has
been brought on record regarding the education of the victim boy
as the victim boy is from very poor family and is not a school
going student and his mother is rustic. Learned trial court took
note of injury report of the victim which suggested that the victim
boy was minor and concerned medical expert being PW-2 found
the case of sexual assault. Learned trial court found that since the
accused facing trial is accused in another case also, there is no
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reason of false implication of the accused by another person of
poor and from a Scheduled Caste family of the vicinity.
11. Learned trial court observed that on the ground of
minor contradictions, the evidences of prosecution witnesses
cannot be ignored, the version of the occurrence as alleged and the
medical examination with the opinion of suspected case of sexual
assault cannot be put outside on the ground of minor
contradictions or on the ground of previous enmity. Accordingly,
learned trial court found that the prosecution has successfully
proved the case against the accused under Sections 377/34 IPC and
Section 6 of the POCSO Act.
Submissions on behalf of the Appellant
12. Mr. Krishna Prasad Singh, learned Senior Counsel,
assisted by Mrs. Meena Singh, learned Advocate, has assailed the
impugned judgment and order on various grounds. It is submitted
that in this case, there is a delay of nine days in lodging the First
Information Report. The victim boy ('X') claimed that one person
met him in the Sadar Hospital at Hajipur, to whom he explained
the occurrence, he wrote the written information, which the victim
dropped in the post office. The victim could not give the identity
of the person who wrote the written application, which is the basis
of the present FIR. The Sub-Inspector of Police Krishnanand Jha,
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who had drawn the formal FIR (Exhibit '8'), has not been
examined.
13. Learned Senior Counsel submits that contrary to the
claim of the victim that he had dropped the written information in
the post office, his mother (PW-3) has stated that her son had
informed her about the occurrence on the next day of the
occurrence in the morning, whereafter she took her son to
Government Hospital, Manjhaul for treatment, where he was
treated, the doctor had given her the treatment papers, whereafter
she returned home and thereafter she went to Mahua Thana with
the victim boy and lodged the case. It is submitted that the very
lodgment of the FIR in this case is under shadow of cloud. The
mother of the victim has categorically stated in paragraph '5' of
her deposition that she had told Darogaji about the occurrence as
disclosed to her by her son and it was Darogaji who had written
the application.
14. Learned Senior Counsel submits that in this case, in
the written application (Exhibit '01'), the age of the victim has
been disclosed as 12 years, but in course of his statement under
Section 164 CrPC, as also in course of trial, the victim boy has not
disclosed his age. In the prescribed proforma, the age of the victim
is recorded as 12 years and he is said to be a student of Class VIII.
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His section 164 CrPC statement was recorded on 15 th April, 2021
i.e. after more than a month from the date of lodgment of the FIR
and more than one and a half month from the date of occurrence.
In course of trial, the victim boy has stated that he had studied up
to Class IV. His statement has been recorded in course of trial on
2nd February, 2022. The I.O. has not made any investigation and
verification as to the age of the victim boy. The date of birth of the
boy mentioned in his school admission register has not been
brought on record and there is no ossification and dental test of the
victim boy to assess his age medically. The defence has questioned
the age of the victim boy in course of trial by suggesting the I.O.
(PW-5) that the age of the victim as disclosed in the FIR and that
of the affidavit filed by his father in his affidavit are different and
that the victim boy looks like 18 years old. The I.O. (PW-5) has
stated that he had not conducted any verification as to age of the
victim. It is, thus, submitted that in absence of age determination
of the victim boy in accordance with the scheme of the Juvenile
Justice (Care and Protection of Children) Act, 2015 (hereinafter
referred to as the 'Act of 2015'), the charge under Section 6 of the
POCSO Act is liable to fail.
15. Learned Senior Counsel further submits that in this
case the second place of occurrence is said to be the house of the
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appellant in village Rampur, Singhara which is at a distance of 12-
13 kilometer from the first place of occurrence i.e. the gumti of
Sunny Patel from where the victim boy was picked up. The I.O.
(PW-5) has stated that he had gone to the second place of
occurrence but that is the house of one Siraj Ahmed. I.O. (PW-5)
has not recorded that in which direction of the said house of Siraj
Ahmed, the house of this appellant is situated. Siraj was found
handicapped and he was living with his wife in his house. The I.O.
(PW-5) has stated that father of the victim has come to police
station and submitted an affidavit saying that the occurrence as
alleged is false and concocted.
16. Learned Senior Counsel further submits that the
victim boy has stated that he had gone to Mahua Sub-divisional
Hospital on his own where he was treated and from where he was
referred to Sadar Hospital, Hajipur. He claimed that he had gone to
Hajipur but he could not get any treatment there as he was told that
he should call his family members only then he may be treated. He
said that from Mahua he had alone gone in a bus to Hajipur.
Contrary to his claim, his mother (PW-3) has stated in her
examination-in-chief that on the next day of the occurrence, her
son had disclosed her about the occurrence in the morning and
thereafter she had taken the victim boy to Government Hospital,
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Manjhaul where he was treated and the doctor had given her the
treatment paper. Prosecution has not produced any treatment paper
of Manjhaul Government Hospital. PW-3 has not stated that her
victim son had gone to Mahua Hospital. She denied the suggestion
of the defence that in course of investigation, she had not made
any statement before police that she had taken her son to Manjhaul
Hospital for treatment.
17. In complete conflict with the statements of PW-1
and PW-3, who differ with each other, the doctor of Mahua
Hospital namely Dr. Rakesh Kumar (PW-2) has deposed that on
25.02.2021
, he was posted as Medical Officer in SDH Mahua,
Vaishali. He had found blood stain around perennial region which
was fresh in nature. Patient was referred to Sadar Hospital, Hajipur
for detailed examination and further treatment. The doctor
assessed the time of injury as within 6 hours. PW-2 reserved his
opinion on the nature of injury awaiting detailed report from Sadar
Hospital, Hajipur. He has proved the medical examination report
as Exhibit ‘4’ and the supplementary report dated 28.07.2021 as
Exhibit ‘5’. In his supplementary report, he wrote that patient give
history of sexual assault, his parents were not with him. The
patient did not go for examination and treatment in Sadar Hospital,
this time PW-2 opined that it is a suspected case of sexual assault.
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18. In his cross-examination, the doctor has opined that
he had not found any bruise around the anus and for further
treatment, consent of the parents was required. It is submitted that
in paragraph ’12’ of his deposition, PW-2 has stated that parents of
the victim were not with him and those who were with him were
not ready to give consent. In paragraph ’14’, PW-2 has stated that
when the victim boy left, there were 6-7 persons with him. PW-2
has further disclosed that the persons who did not give consent
said that they were neighbours and they cannot give consent. In
paragraph ’18’ of his cross-examination, PW-2 has stated that he
had not given any statement before police. The I.O. had given
application to him in which it was stated that the victim was not
treated in Sadar Hospital, Hajipur, therefore, he should give his
report. PW-2 has further stated that he had given supplementary
report saying that it is a case of suspected sexual assault only on
the basis of blood stain. He had not examined the source of the
blood stain.
19. Referring to the deposition of doctor (PW-2), learned
Senior Counsel submits that in fact PW-2 was not examined by the
I.O. and he has clearly stated that the duration of injury was within
6 hours, if the victim was examined by the doctor on 25.02.2021 at
7.25 pm and the occurrence had taken place in the night of
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24.02.2021/25.02.2021, the time lapsed would be of at least 18-19
hours and in such circumstance, fresh blood would not have been
present. Moreover, the doctor has himself stated that he has not
examined the source of the blood stain. In such circumstance, the
submission is that the learned trial court has grossly erred in
concluding that it is a case of sexual assault upon the victim. The
father of the victim had not come to support the prosecution case.
20. Learned Senior Counsel submits that in this case, the
appellant has himself deposed as DW-1. He has explained the
reason for his false implication. He has stated that he is an
Advocate and he is fighting on behalf of the wife of Uday Shankar
Kumar, Prem Shankar Kumar @ Raja Rai and Md. Raji Ansari in
Title Suit No. 1317/2015 pending in the court of Sub-Judge-IV and
another Title Suit No. 56/2020 against Gopal Shah and Uday
Shankar Kumar. The informant Suraj Singh in POCSO Case No.
Rajapakar 32 of 2020 is his client which is pending in the court.
His client Suraj Singh had called for information under the Right
to Information Act as regards the Krishna Hospital, Mahua and his
degree. In this hospital, the informant and his mother are working.
Civil Surgeon’s report has come saying that the doctor has no
degree and the hospital is running on contract basis. This case has
been lodged because of enmity and in the past two cases, namely
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Mahua P.S. Case No. 591 of 2019 and 684 of 2019, were lodged
against him and his family members.
21. The other two defence witnesses have also deposed
in favour of the appellant. DW-2 is the Sarpanch of the Panchayat
who has stated that police had gone to the house of Md. Siraj and
not to the house of Md. Alam.
22. On the aforementioned grounds, learned Senior
Counsel for the appellant submits that in this case, the presumption
under Section 29 and 30 of the POCSO Act would not be attracted.
The presumption of innocence of the accused-appellant would not
be lost in a case prosecuted under the provisions of the POCSO
Act. The victim boy (PW-1) is not a sterling witness. There are
huge contradictions in the statements of prosecution witnesses,
therefore, on these grounds, as stated above, the impugned
judgment and order are liable to be set aside.
Submissions on behalf of the State and the Informant
23. The appeal has been contested by learned Additional
Public Prosecutor for the State and learned counsel for the
informant. It is submitted that some trivial contradictions in the
statement of the prosecution witnesses would not create doubt over
the prosecution case. It is their submission that the victim comes
from a poor strata of family and he has stated that his father has
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gone in collusion with the accused persons. It is submitted that
there is some delay in lodging of the FIR, but the written
application (Exhibit ’01’) is dated 26.02.2021, which shows that
the written application was dispatched to the police station on
26.02.2021. As regards the age of the victim, learned counsel
submits that there are some contradictions on the point of age but
the learned trial court has rejected minor contradictions in the
evidences of the prosecution witnesses and has held that the victim
boy was below 18 years. It is submitted that the learned trial court
has rightly relied upon the evidence of the prosecution witnesses
and upon finding that there was no reason for false implication of
the accused, the learned trial court has passed the judgment of
conviction and order of sentence.
Analysis and Consideration
24. Having heard learned Senior Counsel for the
appellant, learned Additional Public Prosecutor for the State and
learned counsel for the informant as also on perusal of the trial
court’s records, this Court finds that in this case there is a delay of
9 days in lodging of the FIR. The application (Exhibit ’01’) giving
rise to the present FIR has been signed by the victim boy, but it is
his admission that the said application was written by a person
who met him in the Sadar Hospital at Hajipur and to whom he had
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explained the whole occurrence. According to the victim boy, the
said person was a general person and he could not give the name
of the person who wrote the application. A perusal of the
deposition of the victim boy (PW-1) would show that he claims to
have posted the application (Exhibit ’01’) in the post office, but in
paragraph ’26’ of his deposition, PW-1 has claimed that he had
complained in the police station on 26th. In paragraph ’21’, he
claims that he had alone gone to the police station. This statement
of PW-1 creates doubt as to who wrote the written application
(Exhibit ’01’). The doubt goes deeper when this Court finds that
his mother (PW-3) claims that she had taken her victim boy to the
police station at Mahua and she further says that the application
was written by Darogaji. She has also stated that Darogaji had
recorded her statement 8 days after lodgment of the case. If the
statement of PW-3 is examined, it is found that she claims to have
come to know about the occurrence from her son on the next day
of the occurrence in the morning, but the victim (PW-1) has stated
that on 25.02.2021, he had alone gone to Mahua hospital. PW-2
has recorded the time of examination of PW-1 as 7.25 pm. His
parents were not with him, therefore, the statement of PW-3 that
she had come to know about the occurrence on the next day in the
morning is not a reliable statement. PW-3 has stated that she had
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taken the victim boy to Government Hospital, Manjhaul, whereas
the victim boy says that he had alone gone to Sub-Divisional
Hospital, Mahua. In our opinion, the evidence of PW-1 and PW-3
are not only contradicting each other, they are contradicting
themselves also on various aspects.
25. This Court further finds that the learned trial court
has itself recorded in its finding that “if the submissions of learned
defence counsel is evaluated, the evidences on the point of age of
the victim boy is contradictory….” Despite this, the learned trial
court did not think it just and proper to determine the age of the
victim in accordance with the scheme of Section 94 of the Act of
2015.
26. We have noticed hereinabove in the submissions of
learned Senior Counsel for the appellant that how the age of the
victim boy has not been disclosed by the prosecution in course of
trial and the I.O. (PW-5) himself stated that he had not conducted
any verification on the age of the victim. In section 164 CrPC
Statement, the victim is said to be studying in Class VIII but in
course of trial, he has stated that he has studied up to Class IV. The
prosecution has not disclosed the date of birth of the victim boy
recorded in his first school admission register. No ossification and
dental test of the victim has been conducted to assess his age. We
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are, therefore, of the considered opinion that in this case, the
prosecution has miserably failed to prove that the victim would
come within the definition of the word “child” as envisaged under
Section 2(d) of the POCSO Act.
27. This Court further finds that the victim had gone to
Mahua Hospital with 6-7 persons. PW-2 has stated so but the
victim claims that he had gone alone. It is, thus, evident that the
victim has been tutored not to disclose names of those 6-7 persons
who were with him in the Mahua Hospital. Those 6-7 persons had
said to PW-2 that they were from the neighbourhood of the victim
and they cannot give consent. This makes the whole case
suspicious.
28. PW-2 has stated that he had not examined the source
of the blood stain. He had referred the victim boy to Sadar
Hospital, Hajipur but the victim had not received treatment in
Sadar Hospital, Hajipur. The age of injury has been mentioned as
within 6 hours and the doctor has noticed fresh blood but in course
of his cross-examination, PW-2 has clearly stated that the blood
would clot if the injury is on the upper part, within 3-4 minutes, he
had not found any bruise around the anus. PW-2 has clearly stated
that he had not made any statement before police. He had not
examined the source of the blood stain, therefore, in our opinion,
Patna High Court CR. APP (DB) No.672 of 2023 dt.20-04-2026
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Exhibit ‘4’ and Exhibit ‘5’ issued by PW-2 are not a conclusive
proof of the fact that anal intercourse was done with the victim
boy.
29. This Court further finds that in this case, the second
place of occurrence is said to be the house of Md. Alam (the
appellant) but the I.O. (PW-5) claims that he was shown the
second place of occurrence which was the house of Md. Siraj who
was a handicapped person living in his house with his wife. He
was not examined. DW-2, who is Sarpanch of the Panchayat, has
stated that police had not gone to the house of the appellant.
30. We have further noticed that in this case, the police
officer Krishnanand Jha, who had drawn the formal FIR, has not
been examined. In our considered opinion, the presumption
contained under Sections 29 and 30 of the POCSO Act would not
be attracted. PW-1 cannot be put in the category of a sterling
witness for the obvious reasons showing huge contradiction in his
statement. In a case under the POCSO Act, the presumption of
innocence is not lost.
31. For the aforesaid reasons, we set aside the impugned
judgment and order of the learned trial court.
32. The appellant is acquitted of the charges giving him
benefit of doubt.
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33. The appellant is said to be in custody. He shall be
released forthwith, if not wanted in any other case.
34. This appeal is allowed.
35. Let a copy of this judgment together with the trial
court’s records be sent down to the learned trial court
(Rajeev Ranjan Prasad, J)
( Soni Shrivastava, J)
SUSHMA2/-
AFR/NAFR CAV DATE 06.04.2026 Uploading Date 20.04.2026 Transmission Date 20.04.2026
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