Tuntun Sah Vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) No.104 of 2025

Arising Out of PS. Case No.-46 Year-2019 Thana- MAHILA P.S. District- Samastipur

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Luv Kumar @ Chhotu Son of Garnu Sah @ Garabhu Sahu @ Garbu Sah R/o Village- Mangalgarh, P.S.- Hasanpur, District- Samastipur

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... ... Appellant

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Versus

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The State of Bihar 2. Reeta Devi W/o- Rambalak Sada Village- Mangalgarh PS-Hasanpur DisttSamastipur

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... ... Respondents

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with CRIMINAL APPEAL (DB) No. 3 of 2025 Arising Out of PS. Case No.-46 Year-2019 Thana- MAHILA P.S. District- Samastipur ====================================================== Tuntun Sah S/o- Late Mangal Sah Village- Deodha PS-Hasanpur DisttSamastipur ... ... Appellant Versus 1. The State of Bihar 2. Reeta Devi W/o- Rambalak Sada Village- Mangalgarh PS-Hasanpur DisttSamastipur ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 75 of 2025 Arising Out of PS. Case No.-46 Year-2019 Thana- MAHILA P.S. District- Samastipur ====================================================== Ajay Kumar Yadav @ Ajay Yadav @ Jhulwa S/O Shiv Yadav @ Shibu Yadav Village- Mangal Garh, P.S.- Hasanpur, District- Samastipur

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... ... Appellant Versus

... ... Respondent

... ... Appellant

Versus

The State of Bihar

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Rita Devi @ Manju Devi W/o Ram Balak Sada Village- Mangal Garh, P.S.Hasanpur, District- Samastipur ... ... Respondent

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====================================================== with

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CRIMINAL APPEAL (DB) No. 150 of 2025

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... ... Respondent

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Arising Out of PS. Case No.-46 Year-2019 Thana- MAHILA P.S. District- Samastipur

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Patna High Court CR. APP (DB) No.104 of 2025 dt.19-03-2026 2/22

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Sonu Singh @ Sonu Kumar Singh S/o Ajit Prasad Singh R/o Village- Devdha, P.S.-Hasanpur, District-Samastipur

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... ... Appellant

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Versus

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The State of Bihar

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Rita Devi @ Manju Devi W/o Ram Balak Sada Village- Mangal Garh, P.S.Hasanpur, District- Samastipur

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... ... Respondents

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with

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CRIMINAL APPEAL (DB) No. 192 of 2025

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Arising Out of PS. Case No.-46 Year-2019 Thana- MAHILA P.S. District- Samastipur

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Amit Kumar @ Santji @ Amit Kumar Khan S/o- Late Manikant khan VillageDeodha PS- Hasanpur, Dist- Samastipur

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... ... Appellant

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Versus

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The State of Bihar

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Rita Devi W/o- Rambalak Sada Village- Mangalgarh PS- Hasanpur DistSamastipur

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... ... Respondent

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====================================================== Appearance : (In CRIMINAL APPEAL (DB) No. 104 of 2025) For the Appellant : Mr. Ramakant Akela, Advocate For the State : Ms. Shashi Bala Verma, APP For the Resp No. 2 : None (In CRIMINAL APPEAL (DB) No. 3 of 2025) For the Appellant : Mr. Jitendra Narain Sinha, Advocate : Ms. Khushi Awadh, Advocate For the State : Mr. Sadanand Paswan, Advocate : Mr. Dilip Kumar Sinha, APP For the Resp No. 2 : None (In CRIMINAL APPEAL (DB) No. 75 of 2025) For the Appellant : Mr. Ramakant Sharma, Sr. Advocate : Mr. Rakesh Kumar Sharma, Advocate : Mr. Sarbottam Kumar Sarkar, Advocate For the State : Mr. Dilip Kumar Sinha, APP For the Resp No. 2 : None (In CRIMINAL APPEAL (DB) No. 150 of 2025 For the Appellant : Mr. Sanjay Kumar Singh, Advocate For the State : Mr. Binod Bihari Singh, APP For the Resp No. 2 : None (In CRIMINAL APPEAL (DB) No. 192 of 2025) For the Appellant : Mr. Rabindra Kumar Priyadarshi, Advocate : Mr. Dheeraj Kumar, Advocate For the State : Mr. Binod Bihari Singh, APP For the Resp No. 2 : None ======================================================

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Patna High Court CR. APP (DB) No.104 of 2025 dt.19-03-2026 3/22

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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD and HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

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Date : 19-03-2026

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Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State.

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2. Despite valid service of notice on Respondent No. 2, no one has entered appearance on her behalf to oppose the appeals.

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3. The appellants in these cases are seeking setting aside of the judgment of conviction dated 27.11.2024 (hereinafter referred to as ‘impugned judgment’) and the order of sentence dated 02.12.2024 ( hereinafter referred to as ‘impugned order’), passed by the learned Additional District and Sessions Judge-cumSpecial Judge, SC/ST Act, Samastipur (hereinafter referred to as the ‘learned trial court’) in T.R. No.978/2024 (Reg No.1416/2019) + T.R. No.1091/2024 ( Reg. No.87/2019), arising out of Mahila P.S. Case No. 46 of 2019, under Section 376D of Indian Penal Code (in short ‘IPC’).

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4. By the impugned judgment, the learned trial court has been pleased to convict the appellants for the offences under Section 376D of IPC. Having convicted the appellants under this provision, the learned trial Court has sentenced the appellants to undergo rigorous imprisonment for 20 years and to pay a total fine

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of Rs. 1,25,000/- (which comes out to be Rs.25,000/- per convict) for the offence under Section 376-D of IPC. In default of payment of fine, the appellants shall undergo simple imprisonment for six months.

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Prosecution story

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5. The prosecution case is that on 09.07.2019, the informant (victim), who was a resident of village-Mangalgarh, was going alone to meet her Nanad in village-Ghardas and on the way about 12:00 Noon, accused Ajay Yadav @ Jhulwa forcibly took her to a Litchi Semal orchard of Ramchandra Pandit, where the accused persons, namely Luv Kumar @ Chhotu, Amit Kumar @ Santji, Tuntun Sah, Chhotu Prasad Singh and Sonu Kumar Singh were present from before and one by one all of them committed rape upon the informant, also prepared a video and made the video viral. Thereafter, the informant gave this information to her husband who resided outside and after the husband of the informant came on 22.07.2019, then the informant along with her husband went to Mahila P.S. and lodged this FIR against all the accused persons.

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6. On the basis of written complaint of the informant (victim), Mahila P.S. Case No.46/2019 dated 22.07.2019 was registered for the offence punishable Section 376(D) of the IPC,

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Sections 67, 67(A) of Information Technology Act, 2000 (hereinafter referred to as ‘I.T. Act’) and Section 3(2)(v) of the the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘SC/ST Act’) against the appellants, namely Ajay Yadav @ Jhulwa, Love Kumar @ Chhotu, Amit Kumar @ Sant Jee, Tuntun Sah, Sonu Kumar Singh and Chhotu Prasad Singh (not appellant herein).

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7. After investigation charge-sheet bearing Chargesheet No. 52 of 2019 dated 30.09.2019, against accused persons, namely, Luv Kumar @ Chhotu, Amit Kumar @ Sanjit and Tuntun Sah was filed keeping investigation pending against others. Thereafter, learned Trial Court took cognizance for the offence under Section 376(D) of the IPC, Section 67 of IT Act and Section 3(2)(v) of the SC/ST Act. The charges were explained to the appellants, namely Luv Kumar @ Chhotu, Amit Kumar @ Sanjit and Tuntun Sah in Hindi which they denied and claimed to be tried. Thereafter, the learned trial court framed the charges under Section 376(2)(G) of IPC, 67 of I.T. Act and Section 3(2)(v) of the SC/ST Act vide order dated 03.01.2020.

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8. A plea of juvenility was taken on behalf of accused Chhotu Prasad Singh @ Gaurav Prasad Singh on which vide order dated 10.02.2020, learned trial court sent the records of the FIR

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named accused Chhotu Prasad Singh @ Gaurav Prasad Singh to the Juvenile Justice Board, Samastipur for further proceeding.

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9. A supplementary charge-sheet bearing no.28 of 2020 dated 31.03.2020 against the accused persons, namely Ajay Yadav @ Jhulwa, Sonu Kumar Singh and Chhotu Prasad Singh was filed upon which learned trial court, vide order dated 06.05.2020 took cognizance for the offence under Sections 67 of I.T. Act, Section 376(D) of IPC and Section 3(2)(v) of the SC/ST Act. After securing attendance of the accused, namely Ajay Yadav @ Jhulwa, Sonu Kumar Singh, the charges were explained to them in Hindi to which they denied and claimed to be tried. Thereafter, the learned trial court framed the charges under Section 376D of IPC, 67 of I.T. Act and Section 3(2)(v) of the SC/ST Act.

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10. In course of trial of accused appellants the prosecution has examined three witnesses and exhibited some documents which are in table form hereinbelow:

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List of Prosecution Witnesses

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PW-1 Informant PW-2 Nilima Kumari (I.O.) PW-3 Dr. Kranti Kumari

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List of Exhibits:-

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Exhibit Endorsement of S.H.O. Mahila P.S. Case on ‘P1/PW-2’ the FIR of Mahila P.S. Case No.46/2019 Exhibit Signature of S.H.O. on formal FIR of Mahila

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‘P2/PW-2’	P.S. Case No.46/2019
Exhibit	Requisition for conducting medical
‘P3/PW-2’	examination of victim
Exhibit	Medial examination report of the victim
‘P4/PW-3’
Exhibit ‘P5’	Statement u/s 164 Cr.P.C. of the victim

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11. Thereafter, the statement of the accused persons was recorded under Section 313 Cr.P.C. in which they took a plea that they are innocent and have been falsely implicated under village politics. Appellant Amit Kumar took a plea that he was working at the motorcycle stand in Delhi. Appellant Sonu Kumar Singh took a plea that on the date of occurrence, he had gone to Khagaria with other villagers from where he had gone to Deoghar. He stated that his co-villager has falsely implicated him in this case due to previous dispute.

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12 The defence did not adduce any oral or documentary

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evidence.

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Findings of the learned Trial Court

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1 3. Learned Trial court after examining the evidences on record found that the victim/informant has supported her case that when she was going to her nanad's house then the accused, Ajay Yadav forcibly made her to sit in his car and took her to Semal orchard, where all accused persons committed gang rape with her and made a video of the said act and also made the said video viral

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on facebook. Learned trial court found that the informant/victim remained intact in her evidence and in her statement under Section 164 of the Cr.P.C. and thereby proved the date and time of occurrence and also established the place of occurrence.

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1 4. Learned trial court opined that since the victim is a married woman, no marks of violence was found on her private part. Learned trial court found that the informant/victim stated in her deposition that the accused persons committed rape on her one by one forcefully without her consent which establishes that all the accused persons facing trial constituted a group, acting in furtherance of common intention and committed gang rape. Accordingly, learned trial court opined that the prosecution has successfully established its case beyond all reasonable doubts that the accused persons committed gang rape on the victim. Accordingly, held the appellants guilty under Section 376-D of the IPC.

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Submission on behalf of appellants

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15. Learned counsel for the appellants while assailing the impugned judgment and order submits that the learned trial court committed grave error in convicting the appellants without properly appreciating the evidences available on the record.

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16. Learned counsel submits that the occurrence took place on 09.07.2019 and the FIR was lodged on 22.07.2019, hence, there is an inordinate delay of thirteen days in lodging of the FIR which remains unexplained with cogent reasons by the prosecution.

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17. Learned counsel for the appellants submits that the prosecutrix did not identify any of the accused persons, who were present in the court rather said that she had not seen them earlier and further, she said that she had no physical relationship with anybody else expect her husband. Learned counsel for the appellants submits that these statements of the prosecutrix has damaged the whole prosecution case and created a huge doubt over the prosecution story. Hence, the prosecutrix (PW-1) cannot be put in the category of a sterling witness.

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18. Learned counsel for the appellants submits that in this case, the husband of the prosecutrix has not come to the Court, even as he is one of the charge-sheet witnesses and he could have been a material witness as to certain circumstances before and after the occurrence but has been withheld by the prosecution without any explanation.

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19. Learned counsel for the appellants submits that the Doctor (PW-3) has clearly opined in her medical examination

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report that it cannot be decided whether rape has been committed or not. The Doctor has not found any mark of violence either over the private part or other parts of the body of the victim.

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20. Learned counsel for the appellants submits that conviction of the appellants based on the sole testimony of the prosecutrix in this case, who doesn’t fall in the category of a sterling witness is not safe. Learned counsel submits that the presumption of innocence in this case is not lost only because of the allegation of commission of rape by the prosecutrix. A wholly unreliable evidence of the prosecutrix cannot lay down even the foundational facts and hence, for all these reasons, impugned judgment of conviction and order of sentence are liable to be set aside.

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Submission on behalf of State

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21. Learned Additional Public Prosecutor for the State has opposed the appeals. Learned Additional Public Prosecutor for the State submits that evidence of the informant (PW-1) is consistent and there is no reason to disbelieve her testimony. Learned Additional Public Prosecutor submits that the learned trial court has rightly convicted the appellants by carefully considering the evidences available on the record.

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Consideration

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22. We have heard learned counsel for the appellants and learned Additional Public Prosecutors for the State in all these appeals as also perused the trial court records. It is evident from the records that in the present case, the police submitted first charge-sheet against the accused, namely Luv Kumar @ Chhotu, Amit Kumar Khan @ Santiji and Tuntun Shah, vide charge-sheet No. 52 of 2019 dated 30.09.2019. The learned Special judge took cognizance of the offences on 18.10.2019 and explained the charges to the three accused persons on 03.01.2020. They denied the charges and claimed to be tried, whereafter T.R. no. 1123 of 2020 was registered. On 14.01.2020, the prosecutrix (PW-1) was examined in presence of three accused only.

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23. It is a matter of record that subsequently on 31.03.2020, a supplementary charge sheet bearing No. 28 of 2020, dated 31.03.2020 was filed against three accused, namely, Ajay Yadav @ Jhulwa, Sonu Kumar Singh and Chhotu Prasad Singh @ Gaurav Prasad Singh. At this stage, the case of Chhotu @ Gaurav Pd. Singh was separated and his records were sent to the Juvenile Justice Board. The original Trial No. 1123 of 2020 was later on renumbered as Trial No. 978 of 2024. Against Ajay Yadav @

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Jhulwa and Tuntun Shah, charges were framed on 28.03.2022 and Trial No. 1216 of 2022 was registered, which was later on renumbered as Trial No. 1091 of 2024. The prosecutrix (PW-1) was again examined in this trial on 02.08.2022. She was crossexamined on behalf of accused Ajay Yadav and Sonu Kumar Singh. The record would show that the other two witnesses, namely Nilima Kumari (PW-2), who is the Investigating Officer of the case and the Dr. Kranti Kumari (PW-3), were examined on the same date in both the trials. In fact, their depositions in both the trials are verbatimly the same and one. It has only changed with respect to the trial number in the deposition form.

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24. We have noticed that the accused persons, who were facing the charges in the two trials, were examined under Section 313 Cr.P.C and, thereafter, the defence did not adduce any evidence, hence, the records were kept for hearing. At this stage of hearing, the defence moved an application for amalgamation of both the trials, which was not objected to by the prosecution. The learned trial court has vide order dated 27.09.2024 allowed the prayer after recording that both the records are pending for hearing.

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25. On going through the written (typed) information furnished by the prosecutrix (PW-1), it would appear that there is a

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thumb impression and the said thumb impression has been circled and besides that it is recorded; सहीननशान रीतादवी े ; but who had

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written it and who identified the thumb impression of the prosecutrix (PW-1), is not mentioned. In the written information, it is not mentioned that who has typed the application, addressed to the Station House Officer, Mahila Thana, Samastipur. The prosecutrix has stated in the application that she had come to the Mahila Thana with her husband and was submitting the application for legal action against the culprits, but her husband has not witnessed the thumb impression of the prosecutrix (PW-1).

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26. This Court finds that the occurrence is said to have taken place on 09.07.2019 at about 12:00 Noon, when Ajay Yadav @ Jhulwa, a resident of village-Mangalgarh, forcibly took her to the orchard of Ramchandra Pandit, where it is alleged that five boys, who are the other accused in this case, were already present. As per the written information, all the accused persons took their turn one after another and also prepared the video and made it viral. Here, it is important to note that even as the charges were framed under Section 67 of the I.T. Act, the learned trial court has held that the said charge could not be proved by the prosecution and for that reason, the accused persons have been acquitted of the charge under Section 67 of the IT Act. Charge under Section 3(2)

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(v) of the SC/ST Act, has also not been proved and therefore, the accused have been acquitted of this charge also. It is evident that in course of investigation, no video showing the commission of rape on the victim by these appellants could be found by the Investigating Officer, therefore, in absence of evidence on the record, the trial court has acquitted all the accused persons from the charge under the IT Act.

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27. Coming to the deposition of the prosecutrix in the first trial, this court finds that in her examination-in-chief, the prosecutrix has come out with some improvements as regards the manner of occurrence. In examination-in-chief, she states that Ajay Yadav of Devdha asked her as to where she was going, then she informed him that she was going in emergency to her nanad and that two boys were after her, whereafter he asked as to why those boys were after her and offered to take her to destination, then the prosecutrix refused to go, but she was forcibly made to sit in a car and was taken to a Semal orchard where five boys were already sitting and thereafter they committed rape on her. She has stated that she had informed her family ( gharwala ). She claimed that her husband lives outside ( pradesh me ). She has stated that her husband came whereafter she gave information to the police station and the case was registered on which she had put her thumb

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impression. We have noticed that in course of cross-examination, the prosecutrix has stated that her husband lives in Delhi and she has further stated that her husband and her son both live outside. She has further stated that on that day she was alone. She claimed that she was not keeping any phone and the phone call of nanad had come on the mobile of the gothni . This Court has noticed that PW-1 could not say the mobile number from which the call had come and the mobile number on which the call had come. She could not say the date on which telephone call of her nanad had come. She has stated that ‘Devdha’ village is at a far distance place and she had no occasion earlier to visit Devdha or Sakardiha. She has stated that on the date of occurrence, she did not go to Ghardaha and returned Mangalgarh from Sakardiha and in course of going and coming back, she had not met anyone. She had reached her home at 7:00 p.m. that day. In paragraph no.24 of her deposition, PW-1 has stated that her husband lives outside, she had no mobile and her husband has a mobile but she did not know his number.

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28. It is important to take note of the statement of the prosecutrix (P.W.1) in paragraphs-25, 26, 27, 28, 29, 30 and 31 of her evidence. To this Court, it appears that these paragraphs of the cross-examination of PW-1 would completely take away the

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prosecution case as by no stretch of imagination, the prosecutrix (PW-1) can be put in the category of even partly reliable witness. She has stated in paragraph- 25 that on the date of occurrence itself, she had got informed her husband about the occurrence and her husband had reached next day of the occurrence, then after two days of the occurrence, she went to the Mahila Police Station, where her statement was taken and her statement was recorded by the police in the Thana itself which was read over to her and on the said written information, she had put her thumb impression and on the said application, her husband had also put his signature as a witness. This Court finds that the occurrence is of 09.07.2019, whereas the typed copy of the written information was submitted in the police station on 22.07.2019 i.e., after 13 days of the occurrence. This written information is not a recorded statement in form of fardbeyan of the informant. Further, this Court finds that there is no signature of the husband of the prosecutrix on the typed copy of the written information. Thus, it is evident that the prosecution has suppressed the first version of the prosecution case and the written application, which forms basis of the present FIR is a belatedly introduced application and that would take away the very credence of the prosecution case. The Hon’ble Supreme Court has time and again considered the effect of inordinate delay

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in lodgment of the case, particularly, in the serious and heinous offence. We rely upon the judgments of the Hon’ble Supreme Court in the case of Meharaj Singh (L/Nk.) versus State of U.P., reported in (1994) 5 SCC 188 and in the case of Chotkau vs. State of UP, reported in (2023) 6 SCC 742 . Paragraph ‘12’ of the judgment of Meharaj (supra) reads as under:-

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“12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-

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timed and had not been recorded till the inquest proceedings were over at the spot by PW 8.”

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29. In paragraph-28 of her deposition, PW-1 has refused

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to identify the accused persons and she has stated that she was seeing the accused persons for the first time in the court, prior to this she had not seen them. Further, she has stated in paragraph-29 that her physical relationship was not made with any other person except than that of her husband. In paragraph-30 she has stated that the application on the basis of which case has been lodged, was not got written by her rather her husband had got the same written and on that basis the case was registered. When the application was being written, she was sitting beside him and after that she was called to put her thumb impression.

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30. To this Court, it is evident that the prosecutrix having failed to identify the accused persons, who were present in the Court, saying that she had not seen them earlier and further, by saying that she had no physical relationship with anybody else expect her husband, has only damaged the whole prosecution case and has created a huge doubt over the prosecution story. It is difficult to understand that at 12:00 Noon in the day hours she was subjected to rape by these accused persons, whose names she has disclosed in the written typed information submitted before police, but she has not identified them in the dock. In our considered

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opinion, the prosecutrix (PW-1) is not a sterling witness in this case and conviction based on her sole testimony would not be safe.

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31. We have once again examined the evidence of PW-1 in Sessions Trial No. 1216 of 2022 (T.R. No. 1091 of 2024). In her deposition, PW-1 has stated that her husband was living in Guwahati but on the date of occurrence he was in Muzaffarpur. She has also stated that her first statement was made before police after two months of the occurrence and the case was registered on the basis of the said statement. She has stated that she had given a call to her husband when she reached Devdha Chowk, where there was no one of the village and there was no shopkeeper. She has stated that she came to Samastipur Mahila Police Station with her husband and got an application typed in the police station through Computer Typist, her husband had got written the application and she had put her thumb impression thereon. From paragraph-9 of her deposition, it appears that her husband had submitted the written application taking the same to the Mahila Police Station. Her husband had informed her that what were recorded in the application. She has further stated that she had deposed only those things which were told by her husband in the application. This Court, therefore, finds that PW-1, though, claimed that her husband is in Guwahati but she admits that on the date of

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occurrence, he was in Muzaffarpur and she has stated that he had come back at 9:00 A.M. whereafter, she had gone to the police station but the present FIR was lodged after thirteen days of the occurrence. We further fail to understand as to how the prosecutrix could make a phone call to her husband when it is her own statement that she didn’t have a mobile and she did not remember the mobile number of her husband.

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32. This Court finds that in this case, the husband of the prosecutrix has not come to the Court, even as he is one of the charge-sheet witnesses. He could have been a material witness as to certain circumstances but has been withheld by the prosecution without any explanation.

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33. This Court further finds that the I.O. (PW-2) has stated in her evidence that she has not made the nazari-naksha of the place of occurrence and had not recorded as to the distance at which any village or house is situated from the place of occurrence. She had not recorded the statement of anybody else except the statement of the husband of the victim. She had not recorded the statement of the doctor, who had examined the victim and she had not examined the CDR or Mobile Tower location of the accused persons.

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34. The Doctor (PW-3) had examined the victim and she has proved the medical examination in Court which has been marked Exhibit –P4/PW-3. The doctor has clearly opined that on the basis of the physical and investigation report it cannot be decided whether rape has been committed or not. She has not found any mark of violence either over private part or other part of the body.

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35. Having regard to the entire evidences available on the record, we are of the considered opinion that the learned Trial Court has grossly erred in appreciation of the evidences available on record. Conviction of the appellants based on the sole testimony of the prosecutrix in this case, who doesn’t fall in the category of a sterling witness, would be highly unsafe. The presumption of innocence in this case is not lost only because of the allegation of commission of rape by the prosecutrix. A wholly unreliable evidence of the prosecutrix cannot lay down even the foundational facts and we are of the considered opinion that for all these reasons, impugned judgment of conviction and order of sentence are liable to be set aside. Those are accordingly set aside.

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36. The appellants, namely, Luv Kumar @ Chhotu, Tuntun Sah, Ajay Kumar Yadav @ Ajay Yadav @ Jhulwa, Sonu

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Patna High Court CR. APP (DB) No.104 of 2025 dt.19-03-2026 22/22

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Singh @ Sonu Kumar Singh and Amit Kumar @ Santji @ Amit Kumar Khan are acquitted of the charges.

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37. Since the appellants have been acquitted, we direct

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that the appellants shall be released forthwith if not wanted in any other case.

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38. These appeals are allowed.