Dr. Isteyak Ahmad Khan vs The State of Bihar & Anr.

(Per: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA)

Date : 25-08-2026 Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.

Despite sufficient opportunity given to learned counsel for the informant/O.P. No.2, he has not appeared to contest this appeal.

The present criminal appeal has been preferred against the judgment of conviction dated 18.03.2023 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 31.03.2023 (hereinafter referred to as the ‘impugned order’) passed by learned Additional Sessions Judge VI-cum-Special Judge, POCSO Act, Sitamarhi in Sessions Trial No.36 of 2019 arising out of Pupri P.S. Case No.269 of 2017 whereby the present appellant has been convicted for the offence punishable under Section 376-D and 366-A of I.P.C. and Sections 4, 6 and 10 of POCSO Act and sentenced him to undergo rigorous imprisonment for 20 years under Section 6 of POCSO Act and fine of Rs.5,000/-, rigorous imprisonment for 5 years and fine of Rs.5,000/- under Section 10 of POCSO Act with further direction that all the sentences shall run concurrently. In default of payment of fine, he has to undergo one year imprisonment under Section 6 of POCSO Act, three months under Section 10 of POCSO Act. It is directed that amount of fine shall be paid to the victim.

The learned trial court did not award sentence under Section 376-D of I.P.C. as per provision of Section 42 of POCSO Act. Compensation of Rs.7,00,000 (seven lakhs) recommended for victim.

The name of victim and her parents has been concealed in the present judgment for maintaining privacy of victim’s identity to protect her dignity.

The prosecution case, in brief, is that the informant/victim (PW-2) aged about 17 years recorded her fardbeyan recorded by S.I., Arunjay Kumar (PW-7) of Pupri P.S. on 07.09.2017 at about 2:00 p.m. at the residence-cum-clinic of appellant and Safia Khanan at the house of Abbass Ansari at Pupri. It is claimed by the victim that she had appeared in matriculation examination and she was residing at her maternal house in village Dhakapuri, Motihari where she met Md. Mumtaz (co-convict) who on the pretext of marriage took her away to Kolkata and other several places and lastly he brought her in the rented house-cum-clinic of appellant (Dr. Isteyak Ahmad Khan) where she was kept in a room for 20 days during which he made physical relation with her. It is further alleged that Md. Mumtaz and appellant had known to each other since earlier. The appellant and his younger brother co-accused Md. Ismail were also making physical relation with her in absence of each other.

On the basis of the aforesaid fardbeyan of victim, Pupri P.S. Case No.269 of 2007 was registered on 07.09.2017 under Section 376(g) of I.P.C. and under Sections 4, 8, 6, 10 of POCSO Act. After completion of investigation, police submitted charge sheet under Sections 366-A, 372/511, 376(g), 323/34 of I.P.C. and Sections 4, 6, 8, 10 of POCSO Act against all F.I.R. named accused persons. Subsequently, the learned trial court took cognizance of the offences under the aforesaid provisions vide order dated 29.05.2018. Thereafter, on 29.01.2019 the learned trial court framed charges under Sections 376D, 372/511, 323/34 of I.P.C. and under Sections 4, 6L and 10 of POCSO Act against the appellant and co-accused Md. Mumtaz. Further charge was also framed under Section 366-A of I.P.C. against co-accused Mumtaz. The charges were explained to the accused in Hindi who denied the charges and claimed to be tried.

The case record of accused Ismail was sent to Juvenile Justice Board, Sitamarhi.

To substantiate the charges levelled against the accused/appellant, the prosecution has examined altogether seven witnesses. The complete description of the prosecution witnesses whose oral testimonies have been recorded by the learned trial court and the documentary evidences proved on behalf of the prosecution are provided hereunder in tabular form for ready reference:-

Thereafter, the statement of appellant was recorded under Section 313 of the Cr.P.C. The appellant denied the correctness of the incriminating circumstances against him and came out with a plea that he is innocent.

The defence has not adduced any evidence either oral or documentary.

The learned trial court found that the evidence of victim is consistent, cogent and trustworthy and the evidence of PW-1, father of victim, is also in corroboration of evidence of victim. Learned trial court found that the evidence of doctors as PW-3, PW-4, PW-5 and Exhibit 2 i.e. medical report are corroborative to the evidence of PW-2 (victim) and PW-1 (father of victim). The age of the victim was verified by the I.O. from the school certificate, as per which the victim was found to be minor. There is no evidence on behalf of the defence and the testimony of prosecution witnesses has not been rebutted by the defence. So the provision of Section 29 of POCSO Act shall be applicable.

Analysing all the evidences available on record, the learned trial court held the appellant and co-accused Mumtaz guilty, accordingly, convicted them under Sections 376-D, 366-A of I.P.C. and under Sections 4, 6 and 10 of POCSO Act and sentenced them as aforesaid. Being aggrieved by the judgment of conviction and order of sentence, the present appeal has been preferred by the appellant Dr. Ishteyak Ahmad Khan.

Learned counsel appearing on behalf of the appellant assailing the impugned judgment and order of the learned trial court submits that the appellant has been falsely implicated in this case. It is submitted that the evidence of the victim is absolutely weak, full of contradictions and not reliable. Learned counsel has pointed out that the victim in her statement at paras 7 and 8 had deposed that she got down from bus near Pupri Police Station and she along with co-accused Md. Ismail (brother of appellant) visited Pupri Police Station where her statement was recorded on which Md. Ismail also put his signature but the said fardbeyan of the victim, bearing signature of co-accused Md. Ismail, has been withheld by the prosecution suppressing the first and original version of the occurrence. He submits that the fardbeyan of the victim indicates that it was recorded at the place of occurrence which contradicts the prosecution’s case. It is further submitted that as per the fardbeyan, Bharti Devi, who was also present along with the author of the fardbeyan, was not examined in this case. Learned counsel also submits that the manner of registration of F.I.R., the place where written petition/fardbeyan was recorded and non-examination of Bharti Devi has indeed prejudiced the case of appellant inasmuch as he has been deprived of putting questions to her on the manner and place of registration of the F.I.R. It is further submitted that the prosecution story is highly improbable as the victim in para 2 of her deposition has stated that she stayed at Kolkata with Md. Mumtaz for twenty days and during that period Md. Mumtaz kept her hostage and repeatedly raped her after administering medicine to her. However, in para 6 of her deposition her statement is completely different, she has stated that she had gone to river side for fun at Kolkata with Md. Mumtaz, who bought clothes and took her to restaurants. She further stated that she had no complaint with him at Kolkata. It is further pointed out by the learned counsel that in para 9 of her cross- examination, the victim admitted that she was saved from Mumtaz due to Md. Ismail. She further admitted that she was wise and educated, and had gone herself with Mumtaz to visit big cities.

Learned counsel for the appellant further submits that I.O. has violated the mandate of Section 164-A of Cr.P.C. as the victim was medically examined in the present case after an unjustified delay of six days which caused grave prejudice to the appellant. Moreover, there is also violation of the mandate contemplated under Section 53-A of the Cr.P.C., as the appellant was also not subjected to medical examination. It is submitted that so far as the deposition of PW-1 (father of victim) is concerned, it is at complete variance from deposition of his daughter. Contrary to his daughter, he stated that his daughter was abducted by five named persons including the appellant. PW-1 contradicted his daughter by stating that she remained missing for 10-15 days when the victim herself deposed that she remained at Kolkata and Pupri for around 35-40 days before being rescued from the custody of Md. Mumtaz. It is also submitted that the father of the victim (PW-1) did not lodge any F.I.R. anywhere after getting information of the occurrence without any cogent reason, which also creates doubt in the prosecution’s story.

Learned counsel for the appellant submits that the victim was not minor at the time of alleged occurrence. In the F.I.R., the victim stated that she had already appeared in the matric examination, however, in her deposition, it has come that she has studied only up to Class-V. The prosecution has miserably failed to prove the age of the victim which is a necessary pre-requisite to establish a charge under the POCSO Act. It is further submitted that even as per the medical report, the age of the victim has been assessed as 16-17 years, and in view of the law settled by the hon’ble Supreme Court in Jaya Mala v. Home Secretary, Government of Jammu & Kashmir and Ors., reported in (1982) 2 SCC 538 and other catena of cases, a variation of two years on either side cannot be ruled out. Hence, the rigors of POCSO Act is not attracted in the present circumstance. Reliance has been placed on the judgment of the Hon’ble Delhi High Court in the case of Court on its own Motion versus State of NCT of Delhi (Crl. Ref. 2/2024 judgment dated 02.07.2024) reported in 2024 SC OnLine Delhi 4484 which has been followed by this court in the case of Sartaj Alam @ Md. Sartaj Alam vs. The State of Bihar and Anr. reported in 2025 (5) BLJ 483.

Learned counsel for the appellant submits that the I.O. has stated about the place of occurrence in para 3 of his deposition which shows that the victim was not kept at some isolated place rather she mostly stayed in the room attached to the verandah of the rented house-cum-clinic of the appellant. It does not inspire confidence the place which marks continued visit of patients would be used for commission of rape by several accused persons including the appellant. Thus, the description of place of occurrence exposes the falsity of the present case. It is further submitted that neither the landlord nor any of the neighbours came forward to support the prosecution case. Thus, there is no evidence at all that the victim was kept hostage and physically abused for over 20 days at the residence-cum-clinic of the appellant. Learned counsel submits that no injury, external or internal, including on the private parts was found on the person of the victim, and the doctor also opined in her medical report (Exhibit- 2) that it was very difficult to say whether rape had occurred or not, as such, the opinion of the examining doctor is also not consistent with the prosecution’s case. It is submitted that these material contradictions, omissions and admissions creates serious doubt about the veracity of the testimony of the victim, and the prosecution has failed to corroborate the case beyond reasonable doubt, thereby making the impugned judgment bad and unsustainable in the eyes of law.

Learned Additional Public Prosecutor for the State while opposing the appeal submits that the prosecution has successfully established the charges by leading consistent and reliable evidence, and the presumption under Section 29 of the POCSO Act operates against the appellant. He submits that the appellant has failed to discharge the burden to prove the contrary. Learned APP further submits that the learned trial court has properly analysed the evidences of the prosecution witnesses and rightly convicted the appellant for the offences. Learned Additional Public Prosecutor for the State submits that the impugned judgment needs no interference.

Having heard learned counsel for the appellant and learned Additional Public Prosecutor for the State as also on perusal of the trial court records, we have found that in this case the F.I.R. has been registered on the basis of fardbeyan of the victim who has been examined as PW-2. The fardbeyan of the victim was recorded on 07.09.2017 at about 2:00 p.m. at the residence-cum-clinic of appellant and Safia Khanam at the house of Abbass Ansari at Pupri. It is claimed by the victim that she had appeared in matriculation examination and she was residing at her maternal house in village Dhakapuri, Motihari where she met Md. Mumtaz (co-convict) who on the pretext of marriage took her away to Kolkata and other several places and lastly he brought her in the rented house-cum-clinic of appellant (Dr. Isteyak Ahmad Khan) where she was kept in a room for 20 days during which he made physical relation with her. It is further alleged that Md. Mumtaz and appellant had known to each other since earlier. The appellant and his younger brother co-accused Md. Ismail were also making physical relation with her in absence of each other.

To examine the correctness of the finding, we will first assess the testimonies adduced by the prosecution.

PW-1 is the father of the victim, PW-2 is the informant/victim, PW-3 is Dr. Arun Kumar Sharma, PW.4 is Dr. Sudha Jha, PW-5 is Dr. Shakeel Anjum, PW-6 is Meera Kumari (Sub Inspector) who recorded the statement of the victim under Section 161 of the Cr.P.C. and PW-7 is Arunjay Kumar (I.O.) of the case.

Firstly, we would like to consider the evidence of PW-2, who is the informant/victim of this case. She has deposed in her examination-in-chief that she had got a written application prepared and submitted to Bajpatti Police Station. After reading the written application and finding it correct, she put her signature on it which has been marked as Exhibit 1/1 on her identification. She also identified her signature on the statement recorded under Section 164 Cr.P.C. which has been marked as Exhibit 1/2. She deposed that the incident occurred two years ago. At the time of the incident, she was residing at Dhaka Motihari. Md. Mumtaz enticed her on the pretext of marriage and took her to Patna, and from there took her to Kolkata. She further deposed that she stayed in Kolkata for 20 days. Md. Mumtaz used to administer medicines to her, make her intoxicated/unconscious, and keep her confined. He also used to rape her repeatedly. The victim has deposed that after 20 days, Md. Mumtaz brought her back to Pupri. At Pupri, he kept her at the house of Abbas Ansari. There, Md. Mumtaz got her to meet Dr. R.A. Khan and Md. Ismail and at that place, Md. Mumtaz, Dr. A.R. Khan and Md. Ismail, all three, raped her. Thereafter, when the three of them started taking her to Nepal for the purpose of selling her, she somehow escaped and returned to Pupri. After that, she got a case written at Pupri Police Station and submitted the same to the Daroga (Sub-Inspector). The police registered her case and recorded her statement. She further deposed that her medical examination was conducted at Sitamarhi Sadar Hospital. Her statement under Section 164 Cr.P.C. was also recorded by the Court. This witness identified the accused persons Md. Mumtaz and Dr. R.A. Khan, who were present in the Court, upon seeing them.

In her cross-examination, she deposed that she stayed in Pupri for 20 days with Md. Mumtaz. She had first met Md. Mumtaz at Motihari at her aunt's place. She used to live at her aunt's place at Chhatauni Chowk. She was introduced to Md. Mumtaz by her aunt. Md. Mumtaz was living as a tenant in her aunt's house. Md. Mumtaz used to talk to her. She deposed that she had no complaint regarding Md. Mumtaz talking to her. In para 4 of her cross-examination, she deposed that in Calcutta, she went for a walk with him along the riverside. Md. Mumtaz also bought her clothes there, and they also ate food at a hotel. She had no complaint against him there. In her cross-examination, she further deposed that she was going from bus to Nepal. There were other passengers in the bus. She got down from the bus near Pupri Police Station. She had gone to Pupri Police Station with Md. Ismail. Md. Ismail is Mumtaz's brother. She was taken to the police station. Her statement was recorded at the police station itself. Md. Ismail had also put his signature on her statement. Ismail went to the police station with her. She further deposed that her statement was read over to her in the presence of the Investigating Officer then she had put her signature on it. In her cross-examination, she deposed that on account of Md. Ismail, she escaped from Md. Mumtaz’s clutches.

PW-1 (father of the victim) has deposed that the incident occurred one and a half years ago. He received information from his in-laws in Motihari, Dhaka about kidnapping of his daughter aged about 14 years by Md. Mumtaz, Isteyak, Ismail, Ibrahim and Mahboob. When he arrived his matrimonial house at Dhaka, he enquired there and from his neighbour came to know that his daughter was kidnapped by Md. Ibrahim. After 10-15 days, he came to know that his daughter was kept at Pupri in Md. Abbas’s house by all five accused persons and they all used to commit rape with her. When he reached to the house of accused Abbas at Pupri and requested Ashia Khatoon wife of accused Isteyak Ahmad to return his daughter, all accused persons assaulted him and drove him away and did not return his daughter. Thereafter PW-1 returned to his village Bhakurahar. At about 5 p.m., when he received information from Bairgania Police Station that his daughter had been recovered from Pupri, he went Pupri Police Station where he identified his daughter. Then again he was called by Bairgania Police Station after 3-4 days and his statement was recorded under Section 164 of Cr.P.C. and he put his signature on it which was marked as Exhibit 1 on his identification and the victim’s statement was also recorded under Section 164 of Cr.P.C.

In his cross-examination, he has admitted that he did not give information about his daughter’s disappearance to any police station or to the S.P. In para 9, he has stated that his daughter had remained missing for 10–15 days. His daughter studied up to 5^th Class. The victim is presently 19 years old. She studied at the upper primary school at Bhakurahar. Moreover, in para 12 he stated that he did not remember the date of receiving information about kidnapping of his daughter. He has further stated that he got information about recovery of his daughter after 10-15 days of returning from Dhaka but he did not remember the name of the person who informed him.

The Investigating Officer, namely, PW-7, Arunjay Kumar, and the officer who recorded the statement of the victim under Section 161 of the Cr.P.C., namely, PW-6, Meera Kumari have been examined on behalf of the prosecution. PW-7, Arunjay Kumar, Investigating Officer, deposed in his examination-in-chief that on 07.09.2017, he was posted as Police Sub-Inspector at Pupri Police Station and on the basis of the fardbeyan, Pupri P.S. Case No.269 of 2017 dated 07.09.2017 was registered under Section 376-G of the IPC and Sections 4, 6, 8 and 10 of the POCSO Act, and he himself took up the investigation. He identified the page of the fardbeyan bearing his handwriting and signature, which was marked as Exhibit-3. After taking over the investigation, he deposed that the three named accused, namely, Mohammad Mumtaz, Dr. Isteyak Ahmad Khan (appellant herein) and Mohammad Ismail, were duly arrested following the prescribed procedure. Thereafter, he proceeded to the place of occurrence and inspected the same. He stated that the place of occurrence was situated within Pupri Police Station, in the ground-floor veranda-like clinic premises of the one-storied pucca house of Mohammad Abbas Ansari. There was a room and a camera installed at the corner of the premises. He further stated that according to the victim, the F.I.R.-named accused had committed rape upon her while she was sleeping on the bed in the said room and, sometimes, on the iron cot/bed placed in the veranda. The occurrence was stated to have taken place mostly during the night and sometimes during the day. The main entrance of the house was a west-facing grill door. He deposed that thereafter, he recorded the statements of witnesses. Before being taken to the court, the statement of the victim under Section 161 Cr.P.C. was recorded at the Women Police Station by Women Police Sub-Inspector Meera Kumari (PW-6). He next deposed that the victim was taken to Alpaawas Grih, Sheohar. The statement of victim under Section 164 Cr.P.C. was recorded. Thereafter, the victim was taken to Sadar Hospital, Sitamarhi, for her medical examination. He further stated that the birth-related documents of the victim was obtained from the concerned primary school along with her Transfer Certificate, wherein her date of birth was recorded as 15.05.2006. PW-7 deposed that keeping further investigation pending in respect of F.I.R.-named accused Dr. Safia Khanam, he stated that, finding the allegations to be true against the F.I.R.-named accused, namely, (1) Mohammad Mumtaz, (2) Dr. Isteyak Ahmad Khan and (3) Mohammad Ismail, charge-sheet No. 250 of 2017 dated 30.11.2017 was submitted under Sections 366(1), 372/511, 376(2) and 373/34 of the Indian Penal Code and Sections 4, 6, 8 and 10 of the POCSO Act.

In his cross-examination, PW-7 admitted that during investigation he did not verify the ownership/title of the house of Mohammad Abbas Ansari, where the place of occurrence was situated, nor did he mention in the case diary any verification regarding the tenancy. He also admitted that he did not record the statements of the persons named in the boundaries of the place of occurrence, stating that no other witness was present there at that time. He further admitted that the clothes worn by the victim were not taken into possession by him or by his superior officer for examination. No clothes or bedding were seized from the place of occurrence. He also admitted that he had not mentioned in the case diary the manner in which the birth-related documents/Transfer Certificate of the victim had been obtained. He denied the suggestion that his investigation was defective or that the investigation conducted by him was not in accordance with law.

PW-6, Meera Kumari, Sub-Inspector, narrated the statement of the victim recorded by her under Section 161 of the Cr.P.C.

PW-4, Dr. Sudha Jha, deposed in her examination-in-chief that on 12.09.2017, she was posted as Medical Officer at Sadar Hospital, Sitamarhi. On the said date, a Medical Board was constituted by the Civil Surgeon, Sadar Hospital, Sitamarhi, comprising herself, Dr. S. Anjum (PW-5) and Dr. Arun Kumar Sharma (PW-3), for examination of the victim girl. She stated that the victim was examined at 10:30 A.M. on 13.09.2017 and found following findings:

In her cross-examination, PW-4 stated that throughout the report no bodily or internal injury of any kind was found and there was also no internal injury in the private parts.

PW-3, Dr. Arun Kumar Sharma and PW-5, Dr.

Shakeel Anjum, who were posted as Medical Officer at Sadar Hospital, Sitamarhi, deposed that they were the members of the Medical Board for medical examination of the victim girl and preparation of her medical report.

Before considering the effect of the statutory presumption under Section 29 of the POCSO Act, it is necessary to examine whether the prosecution has succeeded in establishing the foundational facts constituting the alleged offence against the appellant. Section 29 of the POCSO Act does not dispense with the initial burden of the prosecution to establish the basic facts constituting the offence. It is pertinent to mention that foundational facts in a POCSO case includes the proof that the victim is a child, that the alleged incident has taken place, that the accused has committed the offence and when physical injury is caused, to establish it with medical evidence. The presumption contemplated under the provision comes into operation only after the prosecution has established the foundational facts in the context of the particular allegation against the accused. If the basic and foundational facts of the prosecution’s case is laid by adducing legally admissible evidence then the burden get shifted to the accused to rebut it by establishing from the evidence on record that he has not committed the offence or that no such incident was occurred or that the victim is not a minor. Thus, the statutory presumption cannot be invoked merely because the accused has been charged under the POCSO Act.

In the present case, the prosecution was required, in the first instance, to establish by reliable and cogent evidence that the victim was a child and, more importantly, that the appellant was the person who had committed the penetrative sexual assault alleged against him. Unless these foundational facts are established, the burden cannot be shifted upon the appellant by invoking Section 29 of the POCSO Act.

In the present case, the learned trial court has found that out of seven witnesses examined on behalf of the prosecution, PW-1 and PW-2 are material witnesses. PW-2 is the victim/informant and PW-1 is her father. The law is well settled that even the sole testimony of the victim is sufficient for holding the accused guilty if the evidence of the victim is trustworthy and creates confidence in the mind of the Court. For solely basing the judgment on the evidence of the victim, the nature of the evidence of the victim must be of a sterling quality. The Hon’ble Supreme Court has explained the term “sterling witness” in the case of Rai Sandeep v. State (NCT of Delhi), reported in (2012) 8 SCC 21, which is being reproduced below for ready reference :-

On examination of the evidence of PW-2, who is the victim and the principal witness, it appears that her testimony does not inspire such degree of confidence as would establish the foundational facts against the appellant. The version given by her before the learned trial court contains material particulars which are conspicuously absent from her earlier version, including her statement recorded under Section 164 of he Cr.P.C. and the Investigating Officer (PW-7) himself admitted in cross-examination that the fardbeyan recorded by him did not contain the allegation that Md. Mumtaz had first taken her to Patna, nor did it contain the allegation that he had administered medicines to her, kept her confined and thereafter subjected her to repeated rape. These omissions assume significance because they relate to the manner in which the prosecution alleges that the victim was taken away and kept under control. Her deposition also contains circumstances which require cautious scrutiny, particularly her statement that in Kolkata she went for a walk with Md. Mumtaz along the riverside, that he purchased clothes for her and that they ate food at a hotel and that she had no complaint against him there. She further stated that she travelled in a bus towards Nepal with other passengers, got down near Pupri Police Station and came to the police station with Md. Ismail. These aspects, particularly when read with material omissions proved through the Investigating Officer (PW-7), create a substantial doubt regarding the consistency and reliability of her version. Thus, although PW-2 is the victim and her evidence deserves due consideration, her testimony in the present case does not attain the degree of consistency, coherence and intrinsic reliability required to characterize it as evidence of sterling quality so a to safely sustain the conviction of the present appellant in the absence dependable corroborative circumstances. Therefore, these circumstances, coupled with the material omissions admitted by the Investigating Officer (PW-7), render the prosecution version insufficiently consistent to constitute the foundational facts necessary for attracting Section 29 against the appellant.

Moreover, the evidence of PW-1, the father of the victim, does also not materially cure the aforesaid deficiencies. He was not an eyewitness to the alleged sexual assault and his knowledge regarding the alleged kidnapping and subsequent events was derived from information received from his matrimonial house and other persons. He admitted that, despite learning about his daughter’s disappearance, he did not initially report the matter. He further admitted that when he went to the house of Abbas at Pupri in search of his daughter, he did not find her there. Thus, his evidence cannot constitute independent proof of the alleged acts of sexual assault by the appellant.

The medical evidence also does not provide the necessary corroborative foundation for invoking the statutory presumption. PW-4, Dr. Sudha Jha, found no external injury and specifically stated in her cross-examination that no bodily or internal injury was found and that there was no internal injury in the private parts of the victim. Although the hymen was found ruptured, the pregnancy test was negative, the vaginal swab disclosed no spermatozoa and, significantly, the Medical Board concluded that, on consideration of the entire material, it was very difficult to say whether rape had occurred or not. PW-5 merely expressed his agreement with the findings of the Board, while PW-3 stated that although he was a member of the Medical Board, he had not given any independent opinion and had merely put his signature on the report. Consequently, the medical evidence does not affirmatively establish the occurrence of rape or penetrative sexual assault by the appellant.

Now, it is significant to mention that in a case pertaining to the POCSO Act, it needs no reiteration that it is imperative to establish the age of the victim and thereby her minority. The age of victim has an extremely crucial bearing in such cases. The age of victim has to be determined on the basis of settled statutory criteria. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short, ‘J.J. Act’) provides for determination of the age of the child in conflict with law and child in need of care and protection. The law is well settled that method to determine the age of juvenile is also applicable to the determination of the age of the victim. [See: Jarnail Singh v. State of Haryana reported in (2013) 7 SCC 263]. The aim of the Court of facts is to come to a firm conclusion about the minority of the victim. Like all other issues, the determination of the age of victim must necessarily proved by cogent evidence needed in a criminal trial.

The age of victim has to be ascertained keeping in view the scheme of Section 94 of the J.J. Act. We reproduce Section 94 of the J.J. Act hereunder :

From bare perusal of the above provisions it is clear that following are the documents of age determination :

We also find that in the case of Rajak Mohammad v. State of Himachal Pradesh, reported in (2018) 9 SCC 248, the Hon’ble Supreme Court has observed in paragraph ‘9’ as under:-

As regards to the age of the victim, the prosecution has not brought any evidence on the record. In her fardbeyan, the victim stated that she was 17 years old and had appeared in matriculation examination, however, in her deposition she has stated that she had studied till class-V. PW-2, father of the victim, whose statement was recorded after 1 ½ years of the occurrence, in para 9 of his cross-examination admitted that the victim had studied till class V and her present age is 19 years, i.e., she was of 17 ½ years at the time of the occurrence. As per the medical examination of the victim, her age was opined to be between 16 to 17 years. Although the I.O. (PW-7) in his deposition stated that he had obtained the Transfer Certificate of the victim from the concerned Primary School, but the same has not been produced before the learned trial court.

The views of the Hon’ble Delhi High Court in the case of Court on its own Motion (supra) has been agreed to and followed by this Court in the case of Sartaj Alam (supra).

Based on the above discussion, we are of the opinion that in the present case, the prosecution has not succeeded in conclusively proving that the victim was a minor on the date of the alleged occurrence.

Moreover, bearing the other material facts in mind, the deficiencies in the investigation further assume significance in assessing whether the prosecution succeeded in establishing the foundational facts. PW-7 admitted that he did not verify the ownership of the house of Mohammad Abbas Ansari, stated to be the place of occurrence, nor did he verify the alleged tenancy in his house by appellant for the purpose of residence cum clinic. He did not record the statements of the persons named in the boundaries of the place of occurrence. No clothes of the victim or bedding from the alleged place of occurrence were seized. He also admitted that the manner in which the victim’s birth-related documents/Transfer Certificate were obtained was not mentioned in the case diary. These lapses, considered individually, may not necessarily be fatal to the prosecution, but when examined cumulatively with the material inconsistencies and omissions in the testimony of the principal witness and the inconclusive medical evidence, they assume considerable significance.

It is, therefore, not a case where the prosecution has first established the foundational facts and thereafter the appellant has failed to rebut the statutory presumption. Rather, the difficulty arises at the threshold itself. The prosecution evidence does not establish with the requisite degree of certainty the foundational facts constituting the offence against the appellant. Consequently, the statutory presumption under Section 29 of the POCSO Act cannot be mechanically invoked to fill the gaps in the prosecution evidence. The presumption is a rule concerning the burden arising after the foundational facts have been established; it is not a substitute for proof of those foundational facts. The settled position is that the prosecution is not relieved of its initial burden merely because Section 29 is attracted to the offence charged.

In the present case, therefore, the question of requiring the appellant to rebut the presumption under Section 29 of the POCSO Act does not arise. The prosecution has failed to cross the threshold necessary for activation of the statutory presumption. The evidence led by the prosecution, viewed as a whole, gives rise at best to circumstances creating suspicion regarding the alleged occurrence, but suspicion, however strong, cannot substitute proof beyond reasonable doubt. The material omissions in the victim’s earlier version, the evidence of PW-1 being substantially hearsay, the limited evidentiary value of PW-6, the inconclusive medical evidence and the deficiencies admitted by the Investigating Officer cumulatively create a reasonable doubt regarding the prosecution case against the appellant. The benefit of such doubt must necessarily go to the appellant.

On overall analysis of the entire evidence on the record, we find that in this case, the prosecution has not only failed to prove the basis foundational facts to attract Section 29 of the POCSO Act, the accused has been able to demonstrate the contradictions and material inconsistencies in the prosecution evidence as also by bringing defence evidence on the record that the prosecution case cannot be said to be beyond all reasonable doubts. The presumption of innocence still remains even in the case cases under the POCSO Act and we are of the opinion that the learned trial court has committed grave error in convicting the appellant on the strength of the materials on the record.

In the result, we set aside the impugned judgment and order of the learned trial court and acquit the appellant, giving him benefit of doubt.

The appellant is said to be in custody, hence, he is ordered to be released forthwith, if not wanted in any other case.

The appeal is allowed.

Let a copy of the judgment along with the trial court records be sent down to the learned trial court.