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IN THE HIGH COURT OF JUDICATURE AT PATNA
MOHIT KUMAR SHAH and SHAILENDRA SINGH, JJ.
Criminal Appeal (DB) No. 305 and 298 of 2017
(12.11.2025)
Bhushan Sada (in 305)
Anjesh Sada (in 298) ... Appellants
vs.
State of Bihar & Anr. ... Respondents
(in both)
Indian Penal Code, 1860 – Sections 302/34, 376(A) and 376(D)/34 [BNS, 2023 – Section 103(1), 66 & 70(1)] and Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012) – Section 4 – A girl of 10 years gang raped and murdered – Case primarily based on circumstantial evidence and if the accused fails to offer a reasonable explanation for not discharging the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him – Accused last seen with the deceased – No explanation whatsoever has been offered by the accused persons – In fact, Section 106 of the Indian Evidence Act, 1872 mandates that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him – Thus, it was incumbent upon the appellants to have discharged their burden of offering a reasonable explanation with regard to the last seen theory – Injuries found on the private parts of the accused persons including the appellants – It was incumbent upon the appellants to have offered explanation as to how they had sustained injuries on their private parts which have failed – The doctor doing the post mortem examination of the dead body of the victim girl opined that the death had been caused on account of neurogenic shock resulting from the injuries on private parts and that hemorrhage had occurred due to rape – Thus the postmortem report of the victim girl is also an additional link in the chain of circumstances, which has stood established – Admission by the appellant leading to the recovery of the dead body of the victim girl from the corn field in a nude condition with blood oozing out from the private parts – Those circumstances fully established the guilt of the accused. (Paras 45)
Indian Penal Code, 1860 – Sections 302/34, 376 (A) and 376 (D)/34 [BNS, 2023 – Sections 103 (1), 66 & 70 (1)] and POCSO Act, 2012 – Section 4 – Rape and murder of a girl of 10 years – Variance in the version of FIR/written and the evidence of the informant (P.W. 5), it is a well-settled law that FIR is not a substantive piece of evidence and it can only be used to either draw contradictions or for corroboration but then it has to be put to the witnesses to elicit their response, which has not been done in the present case – Thus, the variance in between the written report and the evidence of informant cannot lead to any prejudice to the prosecution – It is a well-settled law that merely because the F.I.R. is found to be full of discrepancies and doubtful, the whole prosecution case and the evidence of the eye-witnesses/witnesses, as a rule, cannot be thrown out – Convictions and sentences upheld. (Paras 51 to 56)
Mohit Kumar Shah, J.—The aforesaid appeals preferred under Section 374 (1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.”) arise out of the same judgment of conviction and order of sentence dated 10.1.2017 and 17.1.2017 respectively, hence the aforesaid appeals have been heard together and are being disposed off by the present common judgment. By the said judgment dated 10.1.2017, passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Khagaria (hereinafter referred to as “the Ld. Trial Judge”) in Protection of Children from Sexual Offences Act Case No. 3 of 2016 (arising out of Morkahi P. S. Case No. 6 of 2016), the appellants have been convicted under Sections 302/34, 376(A) and 376(D)/34 of the Indian Penal Code (hereafter referred to as “the I.P.C.”) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act, 2012”). By the aforesaid order of sentence dt. 17.01.2017, the appellants have been directed to undergo rigorous imprisonment for life under Section 376 (A) of the IPC and rigorous imprisonment for life under Section 376 (D) of the IPC with fine of Rs. 25,000/- each and in default of payment of fine, they have been further directed to undergo one-year rigorous imprisonment each. The learned Trial Judge has further clarified that the sentence of imprisonment for life shall mean imprisonment for the remainder of the appellants’ natural life. No separate sentence has been awarded under Section 302, considering the fact that Section 376(A) of the I.P.C. is a joint form of Section 302 and 376 I.P.C. The appellants have also been sentenced to undergo rigorous imprisonment for life under Section 4 of the POCSO Act, 2012 with fine of Rs. 25,000/- each & in default of payment of the fine, they have been further directed to undergo one-year rigorous imprisonment each.
2. The short facts of the case are that a written report was submitted by the informant, namely Ganeshi Sada (P.W.-5) on 17.01.2016 before the Officer-in-Charge, Morkahi Police Station (Khagaria), wherein he has stated that on 16.01.2016 at about 6:00 pm in the evening while he was feeding his cattle at the basa (cattle house) along with his daughter (hereinafter referred to as “the victim girl”), aged about 10 years, his co-villagers, namely Bhushan Sada, Gholat Sada and Anjesh Sada had arrived there, whereafter they had forcibly held the hand of her daughter and dragged her away, whereupon the informant had objected to the same leading to the said accused persons having shown country made pistol and after threatening him they had forcibly taken away the daughter of the informant and upon hearing hulla (alarm), the co-villagers had assembled there. The informant with the aid of the villagers had engaged in search and during the course of search, they found the dead body of the victim girl in the corn field of Dhaneshwar Singh in a semi-nude condition with blood oozing out of her private parts. The informant has further stated that he has reasons to believe that his daughter (victim girl) was forcibly taken away by the aforesaid three accused persons, who had raped and killed her. On the basis of the aforesaid written report of the informant, Morkahi P.S. Case No. 6 of 2016 was registered on 17.01.2016 at about 11:00 am under Sections 302/ 376(G)/34 of the I.P.C. and Section 3/4 of the POCSO Act, 2012.
3. The police had then investigated the matter and having found the occurrence to be true, had filed the charge-sheet on 31.03.2016 under Sections 302/376(G)/34 of the I.P.C. and Section 3/ 4 of the POCSO Act, 2012. The learned Trial Judge had then taken cognizance against the appellants and one another under Sections 302, 376(D)/201 of the I.P.C. and Section 3/ 4 of the POCSO Act, 2012. Thereafter, the learned Trial Judge had framed charges vide order dated 09.05.2016, 18.07.2016 and 14.09.2016 respectively against the appellants and one another under Section
The sufficiency of circumstantial evidence and the need for a complete chain of evidence to establish guilt beyond reasonable doubt.
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Circumstantial evidence must establish a conclusive chain consistent with the accused's guilt; suspicion cannot replace proof beyond reasonable doubt in criminal convictions.
It is well settled that a prosecutrix complaining of having been a victim of offence of rape is not an accomplice after crime.
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