# Sushil Kumar Tiwari v. Hare Ram Sah & Ors

- **Citation:** 2025 INSC 1061
- **Court:** Supreme Court of India
- **Decided:** 2025-09-01
- **Case number:** Criminal Appeal No. 3813 of 2025
- **Bench:** Sanjay Kumar, Satish Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sushil-kumar-tiwari-v-hare-ram-sah-ors-38697
- **Pages:** 25

## Headnote

Allegation against the respondent nos.1 and 2 that they raped a
minor girl. It is admitted that they never committed the acts together
and always acted separately. In light of the controversy involved in
the instant case, the two question arise for consideration: i) whether
the High Court fell in a grave error in acquitting the respondent
nos.1 and 2 by holding that the prosecution failed to discharge its
evidentiary burden as the evidence led by the prosecution was full
of inconsistencies and contradictions; ii) whether the High Court
erred in its finding that the trial was carried out in violation of s.223
Cr.PC and non-adherence to the same had caused prejudice to the
respondent nos.1 and 2, thereby leading to miscarriage of justice.
Headnotes†
Penal Code, 1860 - s.376(2) - Protection of Children from
Sexual Offences Act, 2012 - ss.4 and 6 - Code of Criminal
Procedure, 1973 - s.223 - Prosecution case that respondent
nos.1 and 2 raped a minor girl, though separately - Girl became
pregnant - Upon questioning, she disclosed names of the
respondent nos.1 and 2 - Trial Court convicted respondent
nos.1 and 2 u/s.376(2) of IPC and ss.4 and 6 of POCSO Act,
2012 - However, the High court held that the prosecution
did not succeed in proving the case against the respondent
nos.1 and 2 - The High Court outlined a few specific issues
in the case i.e. victim's age, date and time of incident, proof
of pregnancy and abortion, and delay in lodging the FIR -
Correctness:
Held: 1. In the instant case, a fairly consistent and creditworthy
case of the prosecution has been discarded on what could only be
termed as misapplication of procedure - No culprit should manage
* Author
[2025] 9 S.C.R.
259
Sushil Kumar Tiwari v. Hare Ram Sah & Ors.
an acquittal on basis of unreasonable doubts - The impugned
judgment of the High Court is set aside being unsustainable - The
view taken by the Trial Court was correct and there is no infirmity
in the same - The judgment of the Trial Court stands restored,
both on conviction and sentence. [Paras 36, 37, 38]
2. It cannot be denied that there are slight variations in the age of the
victim at the relevant point of time, as discernible from the oral and
documentary evidence - However, it cannot be said that age was
not proved during the trial - The oral testimonies of PW-3, PW-5 and
PW6 are consistent inter-se as well as with the Transfer Certificate
issued by the government school - The age of the victim appears
to be within the range of 12-13 years at the relevant point of time -
Also, age was not challenged during the cross-examination of any
witnesses - As long as the age conclusively appears to be under
18 years, the special protections carved out in favour of children
cannot be diluted by insisting upon a rigid determination of the
age - As regards the issue regarding date and time of the incident,
the main witness pertaining to the commission of the offence is the
victim herself, examined as PW-2 - She has expressed the entire
chain in a consistent manner and her version is also consistent
with other PWs - She has deposed that the offence took place in
the days following the festival of Holi and the same is corroborated
by the medical report dated 01.07.2016, which indicates that she
was 3-4 months pregnant as on 01.07.2016 - The medical report
corroborates the time frame stated by the victim - The testimony
of the victim is fairly consistent and there is no reasonable ground
to doubt the same - As far as proof of pregnancy and abortion
is concerned, the medical report dated 01.07.2016 categorically
indicated that at the time of ultrasound, the victim was 15 weeks
pregnant - Further, the Trial Court has noted that the letter dated
28.07.2016 bearing Letter No. 60/BSLSA/AccT/2472 issued by
the Bihar State Legal Services Authority indicated that the victim's
father had sought permission for her abortion - That abortion was
conducted after the constitution of medical board by the Executive
Chairman, BSLSA, Pat

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[2025] 9 S.C.R. 258 : 2025 INSC 1061
Sushil Kumar Tiwari
v.
Hare Ram Sah & Ors.
(Criminal Appeal No. 3813 of 2025)
01 September 2025
[Sanjay Kumar and Satish Chandra Sharma,* JJ.]
Issue for Consideration
Allegation against the respondent nos.1 and 2 that they raped a
minor girl. It is admitted that they never committed the acts together
and always acted separately. In light of the controversy involved in
the instant case, the two question arise for consideration: i) whether
the High Court fell in a grave error in acquitting the respondent
nos.1 and 2 by holding that the prosecution failed to discharge its
evidentiary burden as the evidence led by the prosecution was full
of inconsistencies and contradictions; ii) whether the High Court
erred in its finding that the trial was carried out in violation of s.223
Cr.PC and non-adherence to the same had caused prejudice to the
respondent nos.1 and 2, thereby leading to miscarriage of justice.
Headnotes†
Penal Code, 1860 - s.376(2) - Protection of Children from
Sexual Offences Act, 2012 - ss.4 and 6 - Code of Criminal
Procedure, 1973 - s.223 - Prosecution case that respondent
nos.1 and 2 raped a minor girl, though separately - Girl became
pregnant - Upon questioning, she disclosed names of the
respondent nos.1 and 2 - Trial Court convicted respondent
nos.1 and 2 u/s.376(2) of IPC and ss.4 and 6 of POCSO Act,
2012 - However, the High court held that the prosecution
did not succeed in proving the case against the respondent
nos.1 and 2 - The High Court outlined a few specific issues
in the case i.e. victim's age, date and time of incident, proof
of pregnancy and abortion, and delay in lodging the FIR -
Correctness:
Held: 1. In the instant case, a fairly consistent and creditworthy
case of the prosecution has been discarded on what could only be
termed as misapplication of procedure - No culprit should manage
* Author
[2025] 9 S.C.R.
259
Sushil Kumar Tiwari v. Hare Ram Sah & Ors.
an acquittal on basis of unreasonable doubts - The impugned
judgment of the High Court is set aside being unsustainable - The
view taken by the Trial Court was correct and there is no infirmity
in the same - The judgment of the Trial Court stands restored,
both on conviction and sentence. [Paras 36, 37, 38]
2. It cannot be denied that there are slight variations in the age of the
victim at the relevant point of time, as discernible from the oral and
documentary evidence - However, it cannot be said that age was
not proved during the trial - The oral testimonies of PW-3, PW-5 and
PW6 are consistent inter-se as well as with the Transfer Certificate
issued by the government school - The age of the victim appears
to be within the range of 12-13 years at the relevant point of time -
Also, age was not challenged during the cross-examination of any
witnesses - As long as the age conclusively appears to be under
18 years, the special protections carved out in favour of children
cannot be diluted by insisting upon a rigid determination of the
age - As regards the issue regarding date and time of the incident,
the main witness pertaining to the commission of the offence is the
victim herself, examined as PW-2 - She has expressed the entire
chain in a consistent manner and her version is also consistent
with other PWs - She has deposed that the offence took place in
the days following the festival of Holi and the same is corroborated
by the medical report dated 01.07.2016, which indicates that she
was 3-4 months pregnant as on 01.07.2016 - The medical report
corroborates the time frame stated by the victim - The testimony
of the victim is fairly consistent and there is no reasonable ground
to doubt the same - As far as proof of pregnancy and abortion
is concerned, the medical report dated 01.07.2016 categorically
indicated that at the time of ultrasound, the victim was 15 weeks
pregnant - Further, the Trial Court has noted that the letter dated
28.07.2016 bearing Letter No. 60/BSLSA/AccT/2472 issued by
the Bihar State Legal Services Authority indicated that the victim's
father had sought permission for her abortion - That abortion was
conducted after the constitution of medical board by the Executive
Chairman, BSLSA, Patna High Court, a fact which has not been
disputed - There is ample documentary and oral evidence to
prove these elements and the High Court has overlooked relevant
evidence in arriving at its finding - As regards the delay in lodging
the FIR, the incident came to light only after the ultrasound
conducted on 01.07.2016 and the FIR was lodged on the very next
day - Before the discovery of offence, the delay of 3-4 months
260
[2025] 9 S.C.R.
Supreme Court Reports
was a consequence of the intimidation made by the respondent
nos.1 and 2, which prevented the victim from opening up before
her parents - So, the victim could be faulted in any manner on
account of delay. [Paras 17, 19, 20, 21]
Penal Code, 1860 - s.376(2) - Protection of Children from
Sexual Offences Act, 2012 - ss.4 and 6 - Code of Criminal
Procedure, 1973 - s.223 - Trial Court convicted respondent
nos.1 and 2 u/s.376(2) of IPC and ss.4 and 6 of POCSO Act,
2012 for raping a minor girl - Respondents never committed
the acts together and always acted separately - The High
Court emphasized the non-compliance of s.223 Cr.PC:
Held: The victim and the respondent nos.1 and 2 were residing
in the same village, the house of respondent no.2 was situated
one house away from that of the victim, respondent no.1 was
running a coaching center adjacent to his house and in the same
vicinity, and both the respondents threatened the victim of similar
consequences if she dared to disclose their acts to anyone -
Evidently, the nature of acts committed by the respondent nos.1
and 2 herein and subsequent intimidation to keep the victim silent
were of a similar design - Further, there was a certain proximity of
time and place as the incidents were committed within a continuous
time-frame and at different places in the same village - However,
it is also admitted that they never committed the acts together and
always acted separately - Therefore, there is no direct evidence
of commission of offences in the same transaction, however, an
inference may be drawn - For, even if the conclusion of the High
Court, that the joint trial was conducted in violation of s.223 Cr.PC,
is accepted, the respondent nos.1 and 2 would still have to further
show that the joint trial had caused prejudice to them and had
occasioned a failure of justice - Mere irregular conduct of a joint or
separate trial does not vitiate the trial as a whole and the proof of
failure of justice is sine qua non for holding the trial as invalid - In
the High Court's reasoning, there is no finding of actual prejudice
or failure of justice as a result of the joint trial, as necessitated by
law - Mere non-compliance of the procedure contemplated u/s.223
does not ipso facto render the trial as invalid, and the same cannot
form the basis of returning a finding of prejudice and failure of
justice - The said conclusion must emanate from the facts of the
case, after a thorough examination of the facts and evidence on
record. [Paras 31, 34]
[2025] 9 S.C.R.
261
Sushil Kumar Tiwari v. Hare Ram Sah & Ors.
Evidence - Standard of reasonable doubt:
Held: One of the foremost principles of appreciation of evidence
is that natural variations, errors and inconsistencies are not to be
elevated to the standard of a reasonable doubt or to hold that the
prosecution has failed - There is nothing like perfect evidence in
a Court and in fact, perfection is often suggestive of tutoring and
manufacturing of evidence - The availability of evidence as well
as the quality of evidence are not open to judgment on any predetermined parameters - For, these aspects not only depend upon
the quality of investigation but also upon the societal circumstances
prevalent in the area of crime - They also depend upon the level of
awareness, not only of the persons involved in the case but also of the
members of the locality who often appear as witnesses - Therefore,
the Courts must be alive to the state of affairs on the ground and in
that backdrop, it must examine whether the inconsistencies and gaps
have been properly explained or not - If so, such inconsistencies
and gaps may not affect the case of the prosecution - However, if
the prosecution fails to explain the inconsistencies in its case, an
adverse inference may be drawn against it. [Para 22]
Code of Criminal Procedure, 1973 - s.464 - Whether mere
discovery of an error, irregularity or omission in the framing of
charge ipso facto render the decision of the Court as invalid:
Held: Mere discovery of an error, irregularity or omission in the
framing of charge does not ipso facto render the decision of the
Court as invalid - In fact, even a case of non-framing of charge is
not liable to be discarded on that ground alone - In order to vitiate
the decision, what is necessary is the failure of justice as a result
of such error or omission or irregularity - Thus, the quintessential
issue that requires an answer is whether the defect in the framing
of charge in the instant matter has occasioned a failure of justice
for the respondent nos.1 and 2. [Para 26]
Case Law Cited
Nasib Singh v. State of Punjab and Another, 2021 INSC 642 :
[2021] 13 SCR 566 - relied on.
Krishan Kumar Malik v. State of Haryana [2011] 8 SCR 774 :
(2011) 7 SCC 130 - held inapplicable.
Soundarajan v. State (Represented by the Inspector of Police,
Vigilance Anti-Corruption, Dindigul) [2023] 4 SCR 133 : (2023) 16
262
[2025] 9 S.C.R.
Supreme Court Reports
SCC 141; State of Andhra Pradesh v. Cheemalapati Ganeswara
Rao and Another [1964] 3 SCR 297 : AIR 1963 SC 1850 -
referred to.
List of Acts
Penal Code, 1860; Protection of Children from Sexual Offences
(POCSO) Act, 2012; Code of Criminal Procedure, 1973; Juvenile
Justice (Care & Protection) Act, 2015.
List of Keywords
Rape; Minor girl; Framing of charge; Irregularity; Evidence; Standard
of reasonable doubt; Natural variations; Perfect evidence; Quality
of evidence; Section 223 of CrPC; Non-compliance of s.223 Cr.PC;
Victim's age; Date and time of incident; Proof of pregnancy; Abortion;
Delay in lodging the FIR.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
3813 of 2025
From the Judgment and Order dated 26.09.2024 of the High Court
of Judicature at Patna in CRADB No. 1124 of 2019
Appearances for Parties
Advs. for the Appellant:
Daksha Kumar, Ms. Tanishq Mehta, Aftab Ali Khan, Ms. Ankita
Baluni, Deepak Kumar, Ms. Sonakshi Monga.
Advs. for the Respondents:
Talib Mustafa, Ms. Raksha Agrawal, Lzafeer Ahmad B. F., Manish
Kumar, Shashwat Pratyush.
Judgment / Order of the Supreme Court
Judgment
Satish Chandra Sharma, J.
1.
Leave granted.
2.
The struggle for sensitivity towards offences against women, children
and other marginalized groups passes through various phases of
[2025] 9 S.C.R.
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Sushil Kumar Tiwari v. Hare Ram Sah & Ors.
evolution. Whereas, the end goal is most desirable, the journey is not
always a pleasant one. At times, the victims find themselves pitched
against a system full of insensitive stakeholders and at other times,
the victims find themselves in conflict with the procedural intricacies
of the laws in place. Despite the importance of procedural sanctity,
it is always a matter of utter failure for the system as a whole when
a culprit, that too of a heinous sexual offence, manages to walk free
by entangling the victim in misapplication of procedural rules, without
the knowledge of the victim and without any control of the victim.
The present case presents one such illustration from a place called
Piro, District Bhojpur, Bihar.
3.
In 2016, a few months after the festival of Holi, the victim - the
appellant's daughter - started feeling unwell. Upon finding that her
health was constantly deteriorating, the appellant's wife took their
daughter to her native place in Ballia, Uttar Pradesh for treatment.
There, she was taken to Zila Mahila Chikitsalaya on 01.07.2016 and
upon examination, the victim was found to be 3 months pregnant.
Upon questioning, she disclosed that she was raped by the
respondents, namely, Hare Ram Sah and Manish Tiwari about 3-4
months ago, sometime after the festival of Holi. On the strength of
this disclosure, the appellant lodged a complaint at PS Piro, District
Bhojpur, Bihar on 02.07.2016, which culminated into FIR/Criminal
Case No. 209/2016. Investigation commenced and chargesheet was
filed in the concerned Court.
4.
After trial, Learned Additional District & Sessions Judge-cum-Special
Judge, POCSO Act, Bhojpur at Ara found the Respondent Nos. 1
and 2 guilty for the commission of offences under Sections 376(2)
of Indian Penal Code, 18601, and Sections 4 & 6 of Protection
of Children from Sexual Offences (POCSO) Act, 20122. For the
commission of the offence under Section 376 IPC, the Respondent
Nos. 1 and 2 were sentenced to undergo rigorous life imprisonment
along with a fine of Rs. 50,000/- each. In default of payment of fine,
additional sentence of imprisonment for one year was imposed. For
the commission of the offence under Section 6 of POCSO Act, the
Respondent Nos. 1 and 2 were sentenced to undergo rigorous life
1
Hereinafter referred as "IPC"
2
Hereinafter referred as "POCSO Act"
264
[2025] 9 S.C.R.
Supreme Court Reports
imprisonment along with a fine of Rs. 25,000/- each. In default of
payment of fine, additional sentence of imprisonment for one year
was imposed. For the commission of the offence under Section
4 of POCSO Act, the Respondent Nos. 1 and 2 were sentenced
to undergo rigorous imprisonment of 7 years along with a fine of
Rs. 10,000/- each. In default of payment of fine, additional sentence
of imprisonment for three months was imposed. The sentences were
directed to run concurrently.
IMPUGNED JUDGMENT
5.
In appeal, the High Court examined the entire evidence on record
and came to the conclusion that the prosecution did not succeed
in proving the case against the Respondent Nos. 1 and 2. In doing
so, the High Court primarily found the following infirmities in the
prosecution case:
i.
The date and time of the alleged incident were not proved;
ii.
The determination of age of the victim was not carried out;
iii.
No proof of abortion of the victim was placed on record;
iv.
The charge was not framed properly as it recorded the date as
02.07.2016, whereas the incident was reported on 01.07.2016
and offence was committed 3-4 months prior to its reporting;
v.
The Trial Court committed an error in conducting the joint trial
of the Respondent Nos. 1 and 2, despite the case not falling
within the conditions stipulated in Section 223 of the Code of
Criminal Procedure, 19733 for conducting joint trial. The High
Court observed that the trial was bad in law, as the Respondent
Nos. 1 and 2 were accused of committing different offences
committed at different points of time, and the joinder of trial had
caused grave prejudice to them and led to miscarriage of justice.
6.
The High Court emphasized that in addition to the procedural infirmities
that resulted from the non-compliance of Section 223 Cr.P.C., there
were major inconsistencies in the deposition of prosecution witnesses.
However, it clarified that the conviction was not set aside solely due
to procedural lapses. The relevant para reads thus:
3
Hereinafter referred as "Cr.P.C."
[2025] 9 S.C.R.
265
Sushil Kumar Tiwari v. Hare Ram Sah & Ors.
"42. As per the principles laid down by the Hon'ble
Supreme Court, and the two pronged test satisfies this
case that the joint trial conducted has prejudiced the
defence of the accused and has successfully proven to
cause a miscarriage of justice. In view of the aforesaid
facts and circumstances of the present case, we are
of the view that the prosecution has failed to prove the
case on various grounds. The conviction of the present
appellants is not being set aside on the mere ground that
the procedure of Section 223 of the Code has not been
adhered to but there are numerous laches on the part of
the prosecution in proving the case beyond reasonable
doubt. The learned Trial Court has also failed to consider
the fact that Section 223 was applicable in this matter,
but the same has not been considered in this case and
the appellants have been tried jointly, causing prejudice
to the appellants, despite which, the learned Trial Court
has recorded the impugned judgment of conviction and
the order of sentence. As such, the same are required to
be quashed and set aside."
THE CHALLENGE
7.
Taking exception to the impugned judgment, Learned Counsel on
behalf of the appellant submits that the High Court fell in a grave
error in concluding that prejudice was caused to the Respondent
Nos. 1 and 2 due to non-compliance of Section 223 Cr.P.C. He
submits that the ground qua non-compliance of Section 223 was
never taken by the Respondent Nos. 1 and 2 and the High Court
examined the same on its own. To buttress the submission, it is
submitted that even if Section 223 was not complied, it did not
cause any prejudice to the Respondent Nos. 1 and 2 and they
had sufficient opportunity to participate and defend themselves
during the trial.
8.
It is further submitted that the age of the victim was established to
be under 18 years without any doubt, on the strength of the school
transfer certificate, statement of the victim under Section 164 Cr.P.C.
and the medical report dated 01.07.2016. It is further submitted
that there was no reason to doubt the testimony of the victim and
in a case of this nature, the testimony of the victim could form the
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sole basis of conviction. It is further submitted that the aspects of
pregnancy and abortion were duly proved in the case on the basis
of the medical reports and abortion papers.
9.
It is further submitted that there was no enmity between the victim
and the Respondent Nos. 1 and 2 and thus, there was no motive
to implicate the Respondent Nos. 1 and 2. It is further submitted
that even if the High Court had found any procedural irregularity,
it ought to have remanded the matter back for fresh adjudication
instead of acquitting the Respondent Nos. 1 and 2. To buttress, it is
submitted that the impugned decision completely disregarded the
rights of the victim.
10. Per contra, the respondents advanced submissions in support of
the impugned decision. On their behalf, it is submitted that the
investigation was carried out in a completely casual and negligent
manner and the same cause prejudice to the Respondent Nos.
1 and 2. The submissions draw attention to the aspects of age
determination, absence of proof of pregnancy and abortion, lack of
investigation qua the date, time and place of the incidents, etc. It is
further submitted that the charges framed by the Trial Court were
defective and the entire trial was conducted on the basis of defective
charges, thereby disentitling the Respondent Nos. 1 and 2 from a
fair participation.
11. It is further submitted that the Trial Court conducted a joint trial
of the Respondent Nos. 1 and 2 in utter violation of Section 223
Cr.P.C. and without fulfilment of the conditions contemplated
thereunder. It is further submitted that even at the stage of Section
313 Cr.P.C., the incriminating evidence was not put properly to
the Respondent Nos. 1 and 2 and consequently, the Respondent
Nos. 1 and 2 were prevented from explaining the evidence against
them in a proper manner. Further, it is submitted that the version
of the prosecution witnesses, especially that of the victim, was
not consistent and the Trial Court committed an error in placing
reliance upon their testimonies. It is further submitted that the
defence witnesses presented a valid defence and the same out to
have been considered.
12. Both the parties have filed written submissions and compilation of
judgments in support of their case. We have considered the same.
[2025] 9 S.C.R.
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Sushil Kumar Tiwari v. Hare Ram Sah & Ors.
DISCUSSION
13. We have carefully considered the contentions advanced by the parties,
impugned judgment, judgment of the Trial Court and the decisions
relied upon by the parties. In light of the controversy involved in the
matter, the following two issues arise for our consideration:
i.
Whether the High Court fell in a grave error in acquitting the
Respondent Nos. 1 and 2 by holding that the prosecution failed
to discharge its evidentiary burden as the evidence led by the
prosecution was full of inconsistencies and contradictions?
ii.
Whether the High Court erred in its finding that the trial was
carried out in violation of Section 223 Cr.P.C. and non-adherence
to the same had caused prejudice to the Respondent Nos. 1
and 2, thereby leading to miscarriage of justice?
14. We may first consider the issue regarding inconsistencies and
contradictions in the prosecution evidence, which would require some
degree of examination of the evidence on record. At the outset, it
needs to be noted that the High Court has outlined a few specific
issues in the case i.e. victim's age, date and time of the incident,
proof of pregnancy and abortion, and delay in lodging the FIR.
15. Before appreciation of evidence led on these aspects, we may first
traverse through the testimony of the victim, examined before the
Trial Court as PW-2, in order to understand the precise allegations.
After the discovery of pregnancy, PW-2 deposed that the incident
took place in 2016, a few days after the festival of Holi. She deposed
that one afternoon, her mother and father were not at home and
she was sleeping alone in the house. Respondent No. 2 Manish
Tiwari entered the house and raped her, and before leaving, he
threatened her saying that should she tell anyone about it, she would
be killed. Two or three days after this incident, the victim went near
Shivala in the evening hours to look for her brother Himanshu. On
the way, she passed respondent No. 1 Hare Ram Sah's room and
inquired if he had seen her brother. The said respondent pointed
towards an inner room (used as coaching center) and suggested to
the victim that her brother had gone in that direction. She went to
check inside the room and found no one there. At the same time,
Hare Ram Sah came from behind and grabbed her. She deposed
that he took her inside and raped her. He also threatened her by
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saying that should she tell anyone about it, she would be killed. The
victim further deposed that she got scared and told no one about
it. The story does not end here. She further deposed that after this
incident, for two-three successive months, the Respondent Nos.
1 and 2 took turns and raped her multiple times. Thereafter, she
fell sick and started experiencing stomach pain and vomiting. She
informed her mother and her mother firstly took her to a doctor in
Ara. Despite administration of medicines, her health did not improve.
Thereafter, the victim was taken to her maternal uncle's house in
Ballia, Uttar Pradesh, where an ultrasound was conducted and the
pregnancy was discovered. It is noteworthy that the statement of the
victim recorded by the police, statement recorded by the concerned
Magistrate under Section 164 Cr.P.C. and the deposition recorded
in the Court, are fairly consistent. There appears to be no variance
insofar as the material aspects of the offence are concerned.
16. As regards the first issue concerning the age of the victim, it is quite
understandable that for an offence under the POCSO Act, the victim
must be aged under 18 years. In order to prove so, the prosecution has
relied upon both oral and documentary evidence. The oral testimony
of the mother of the victim, examined before the Trial Court as PW3, reveals that the victim was 12 years old at the time of incident.
Further, the statement of victim under Section 164 Cr.P.C. also bears
an endorsement regarding her age. The concerned ACJM, examined
as PW-4, has recorded her age as 13 years. The father of the victim,
examined as PW-5, has deposed that the victim's age at the time
of incident was 12 years. Insofar as the documentary evidence is
concerned, the Transfer Certificate (Annexure P-10) issued by the
government school attended by the victim records her date of birth as
03.10.2004, thereby meaning that during the concerned time-frame
of the year 2016, the victim was around 12 years old. The medical
report dated 01.07.2016 (Annexure P-1) is also relevant on this aspect.
The said medical report pertains to the ultrasound examination of the
victim and records her age as 15 years.
17. It cannot be denied that there are slight variations in the age of
the victim at the relevant point of time, as discernible from the oral
and documentary evidence. However, we do not find ourselves in
agreement with the High Court that the age was not proved during
trial. The oral testimonies of PW-3, PW-5 and PW-6 are consistent
inter-se as well as with the Transfer Certificate issued by the
[2025] 9 S.C.R.
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Sushil Kumar Tiwari v. Hare Ram Sah & Ors.
government school. The age of the victim appears to be within the
range of 12-13 years at the relevant point of time. The medical
report records the age as 15 years. However, we cannot lose sight
of the fact that the age of the victim was not challenged during
cross-examination of any of the witnesses mentioned above. Their
testimonies, on the point of age, have largely remained unrebutted,
thereby meaning that the Respondent Nos. 1 and 2 had no claim that
she was not a minor at the relevant point. We do not mean to say in
cases involving POCSO Act or Juvenile Justice (Care & Protection)
Act, 2015, the determination of age is not required. Most certainly,
the determination of minority is essential to extend the protection of
these legislations, however, as long as the age conclusively appears
to be under 18 years, the special protections carved out in favour of
children cannot be diluted by insisting upon a rigid determination of
the age, that too when it was not even questioned at the right time.
In the present case, even if it is believed that the age of the victim
was not determined to the hilt, the Trial Court had concluded that
the victim was aged between 12 to 15 years at the relevant point
of time and thus, was a minor. Thus, it could not be stated that the
Trial Court had not determined the minority of the victim. It was done
and, in our opinion, rightly so, on the basis of the unrebutted oral
and documentary evidence.
18. Interestingly, the Respondent Nos. 1 and 2 neither claimed that the
victim was not a minor at any point of time nor led any evidence to
that effect. We find that the High Court has erred in raising a doubt
where none existed, even inter-se the parties to the case. We are
also of the opinion that once the minority of the victim was beyond
doubt, the special protection of POCSO Act ought not to have been
diluted by raising a fictious doubt regarding the precise age of the
victim. For, the Courts must remain alive to the socio-economic
circumstances of the victims, especially those who are based in
remoter regions of the country. In rural regions, discrepancies in
the educational and identification documents are not unknown and,
in such circumstances, the Courts must be sensitive to the ground
realities of the society, so as to ensure that the intent of the law is
not suppressed and protections created by the legislature reach the
intended persons in their right spirit.
19. As regards the issue regarding date and time of the incident, the
High Court has observed that the prosecution had failed to prove
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the date and time of the offence. In order to examine this aspect,
we must appreciate the circumstances in which the offence was
committed and discovered. The main witness pertaining to the
commission of the offence is the victim herself, examined as PW-2.
She has expressed the entire chain in a consistent manner and her
version is also consistent with other PWs. She has deposed that
the offence took place in the days following the festival of Holi and
the same is corroborated by the medical report dated 01.07.2016,
which indicates that she was 3-4 months pregnant as on 01.07.2016.
The medical report corroborates the time frame stated by the victim.
Further, as regards the time, the victim has deposed that the first
incident took place during the afternoon and the second incident
took place in the evening. Importantly, it is not a case wherein the
victim reported the offence immediately after its commission. The
victim was scared to report the incident to anyone as she was
threatened by the Respondent Nos. 1 and 2 and probably, if not
for the pregnancy and deterioration of health, she would not have
reported either. Therefore, the inability of the victim, a minor girl,
to recollect the precise time and date of the offence is completely
natural. Furthermore, the victim has specified the places used for
the commission of the alleged offence, including her house and
coaching center of Respondent No. 1-Hare Ram Sah, and has also
correctly identified both the respondent Nos. 1 and 2. during trial.
Therefore, the victim has deposed in a completely natural manner
and her inability to depose about some facts in precise terms is not
only natural, but is also inconsequential as the medical report has
corroborated the time-frame of the offence. The testimony of the
victim is fairly consistent and there is no reasonable ground to doubt
the same. Moreover, this deficiency has not caused any prejudice
to the Respondent Nos. 1 and 2.
20. As regards the proof of pregnancy and abortion, we find that the High
Court has fell in a grave error by failing to acknowledge the evidence
on record. The medical report dated 01.07.2016 categorically indicates
that at the time of ultrasound, the victim was 15 weeks pregnant. In
the subsequent examination conducted on 02.07.2016 at Ara, the
victim was again found to be 16 weeks pregnant and in support of
the same, PW-7 has deposed before the Trial Court. No infirmity has
been pointed out in the examination of PW-7. The factum of abortion
has been proved on the basis of the medical documents/Discharge
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271
Sushil Kumar Tiwari v. Hare Ram Sah & Ors.
Ticket dated 30.07.2016 issued by Sadar Hospital, Ara. Further, the
Trial Court has noted that the letter dated 28.07.2016 bearing Letter
No. 60/BSLSA/AccT/2472 issued by the Bihar State Legal Services
Authority indicated that the victim's father had sought permission for
her abortion. The said letter is Annexure P-4 and it aligns with the
observation of the Trial Court. It is also averred that abortion was
conducted after the constitution of medical board by the Executive
Chairman, BSLSA, Patna High Court, a fact which has not been
disputed. Thus, it appears preposterous to hold that the prosecution
could not prove the elements of pregnancy and abortion. There is
ample documentary and oral evidence to prove these elements
and we feel that the High Court has overlooked relevant evidence
in arriving at its finding. This fact was duly proved in the common
course of natural events, but the natural events were overlooked.
21. As regards the delay in lodging the FIR, we feel that the same has
been appropriately explained. The incident came to light only after
the ultrasound conducted on 01.07.2016 and the FIR was lodged
on the very next day. Before the discovery of offence, the delay of
3-4 months was a consequence of the intimidation made by the
Respondent Nos. 1 and 2, which prevented the victim from opening
up before her parents. It is completely natural and understandable.
We do not find that the victim could be faulted in any manner on
account of delay.
22. On an examination of the concerns, which formed the basis of the
impugned decision, we are of the view that undue emphasis has
been laid on these aspects by the High Court. One of the foremost
principles of appreciation of evidence is that natural variations,
errors and inconsistencies are not to be elevated to the standard of
a reasonable doubt or to hold that the prosecution has failed. There
is nothing like perfect evidence in a Court and in fact, perfection is
often suggestive of tutoring and manufacturing of evidence. The
availability of evidence as well as the quality of evidence are not
open to judgment on any pre-determined parameters. For, these
aspects not only depend upon the quality of investigation but also
upon the societal circumstances prevalent in the area of crime. They
also depend upon the level of awareness, not only of the persons
involved in the case but also of the members of the locality who
often appear as witnesses. Therefore, the Courts must be alive
to the state of affairs on the ground and in that backdrop, it must
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examine whether the inconsistencies and gaps have been properly
explained or not. If so, such inconsistencies and gaps may not
affect the case of the prosecution. However, if the prosecution fails
to explain the inconsistencies in its case, an adverse inference may
be drawn against it.
23. Be that as it may, the present case does not fall in such category,
as the prosecution witnesses have invariably deposed in support of
the version put across by the victim. The medical reports and other
documentary evidence have corroborated the oral statement of the
victim. Moreover, the oral statement of the victim has remained
fairly consistent at all levels of the proceeding, including before the
Magistrate who recorded her statement under Section 164 Cr.P.C.
and the Trial Court where she was subjected to cross examination.
The version of the victim has remained completely natural and
consistent with the chain of circumstances of the case. Despite crossexamination, there is nothing to suggest that she is not creditworthy
as a witness.
24. Having said so, we do agree that better investigation could have been
conducted in the present matter on certain aspects. For instance,
the accused persons ought to have been tested for DNA analysis as
it could have enabled more fool-proofing of the prosecution's case.
This argument has been taken by the Respondent Nos. 1 and 2
in the written submissions and reliance has been placed upon the
decision of this Court in Krishan Kumar Malik v. State of Haryana4.
We have carefully considered this aspect and are of the opinion that
despite this error, the case of the Respondent Nos. 1 and 2 cannot
be advanced as it does not give rise to any reasonable doubt. It is
so because the factual matrix of the present case is substantially
distinct from that in Krishan Kumar Malik. In the said case, the
version of the prosecutrix was found to be doubtful as she had failed
to disclose the name of the accused in the FIR, despite admitting
that she knew his name. She had also failed to explain the identity
of the accused in an accurate manner and in fact, stated that the
accused was a short-structured person, which was found to be
contrary to his appearance. The prosecutrix had also concealed and
falsely presented certain material aspects of the case. Thus, in this
backdrop, the Court had observed that the prosecution had failed
4
(2011) 7 SCC 130
[2025] 9 S.C.R.
273
Sushil Kumar Tiwari v. Hare Ram Sah & Ors.
to prove the identity of the accused therein and DNA test ought to
have been carried out to obtain scientific evidence of identification.
However, in the present case, the victim has correctly named and
identified both the Respondent Nos. 1 and 2 right from the beginning
of the case. In the Trial Court as well, she had correctly identified
them and no doubt qua identity was raised at that stage. On the point
of identity, the victim has not even been rebutted at any stage. The
Respondent Nos. 1 and 2 have not shown any circumstance which
could enable this Court to raise a question on the identification of
the Respondent Nos. 1 and 2 by the victim. Perhaps, there is none.
Therefore, merely on account of non-availability of DNA analysis, the
case of the prosecution cannot be discarded, especially because the
purpose of identification has been fulfilled on the strength of other
credible evidence. The reliance placed on Krishan Kumar Malik
(supra) is, thus, wholly misplaced.
25. Another important aspect that has weighed with the High Court is
the manner of framing of charge by the Trial Court. On this aspect,
the High Court has noted thus:
"25. The Code lays down various provisions with regard
to the framing of charges against an accused. On perusal
of charge sheet dated 06.12.2017, it is mentioned that the
date of occurrence of the incident was on 02.07.2016, but
the ferdbeyan dated 02.07.2016, states that the daughter of
the informant was pregnant for three months and few days
as according to the treatment of the victim which was done
on 01.07.2016. Further, on perusal of the F.I.R and case
diary, the statement of the victim which is in para-3 of the
case diary dated 02.07.2016, she has stated that the first
incident, where Manish Tiwary (appellant no. 2) raped her
three to four months back during the time of Holi and after
a few days, the victim stated that Hare Ram Sah (appellant
no. 1) raped her while she was searching for her brother.
It is factually impossible that the incident was reported on
01.07.2016 and the charge was framed for the occurrence
of incident dated 02.07.2016, but the ferdbeyan and the
statement of the victim itself states that the incident had
occurred three to four months before the F.I.R was filed.
26. Thus, it is clear to us that the charges framed are not
in accordance with law and, thus, causing prejudice to the
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accused persons / appellants as mentioned in the trial court
record. The framing of charge is the most basic step of
the process of initiation of a trial in a criminal proceeding.
Utmost care must be taken while the charges are being
framed as wrong framing may lead to denial of justice.
Therefore, one should abstain from wrongful framing and
joinder of charges as such an inefficiency would vitiate the
very basic essence of a fair trial."
26. A perusal of the charge framed by the Trial Court in this matter reveals
that the charge stated to the Respondent Nos. 1 and 2 pertained to
the commission of offences "on or about the 2nd day of July 2016". It
is an admitted position that the date of offence was a few days after
the festival of Holi and 3-4 months prior to the date of discovery of
the offence i.e. 01.07.2016. In fact, 2nd July, 2016 was the date of
registration of FIR and the same has been put to the Respondent
Nos. 1 and 2 as the date of commission of the offences. We have
no doubt in observing that the charge stated to the Respondent
Nos. 1 and 2 was not free from defects. Even if the exact date of
commission of the offence was not known, the charge ought to have
stated that the offences was committed before 2nd July 2016 and a
few days after the festival of Holi, so as to correctly state the time
frame. The Trial Court clearly fell in error in not doing so. However,
the consequence of error or defect in charge is to be determined
in a nuanced manner. Section 464 Cr.P.C. is of instructive value
in this regard and it provides that no finding, sentence or order of
any Court shall be deemed invalid merely on account of any error,
omission or irregularity in the framing of charge, unless the same
has occasioned any failure of justice. Sub-section (1) of Section 464
Cr.P.C. reads thus:
"464.