IN THE HIGH COURT OF JUDICATURE AT PATNA SPECIAL LEAVE APPLICATION No.22 of 2023 Arising Out of PS. Case No.-81 Year-2018 Thana- BEGUSARAI COMPLAINT CASE District- Begusarai ====================================================== Vijay Soni S/O Late Nageshwar Prasad Soni R/O- Baghi, Ward No. 25, Ps. Lohiyanagar O.P. (Nagar), Dist. Begusarai ... ... Appellant/s Versus 1. The State of Bihar 2. Sarita Devi @ Tunni Devi W/O Sujeet Kumar Sinha R/O Village- Baghi, Ward No. 25, Ps. Lohiyanagar O.P. (Nagar), Dist. Begusarai 3. Sujeet Kumar Sinha S/O Late Nawal Kishore Prasad R/O Village- Baghi, Ward No. 25, Ps. Lohiyanagar O.P. (Nagar), Dist. Begusarai 4. Saurabh Kumar S/O Sujeet Kumar Sinha R/O Village- Baghi, Ward No. 25, Ps. Lohiyanagar O.P. (Nagar), Dist. Begusarai 5. Prince Kumar S/O Sujeet Kumar Sinha R/O Village- Baghi, Ward No. 25, Ps. Lohiyanagar O.P. (Nagar), Dist. Begusarai ... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Saroj Kr. Sharma, Adv. Mr. Anupam Bahadur, Adv. Mr. Vikash Kumar, Adv. Mr. Sunny Kumar, Adv. Mr. Saurav Kr. Verma, Adv. Mr. Piyush Kumar, Adv. For the State : Mr. Mukeshwar Dayal, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI ORAL ORDER 7 06-08-2025 This is appeal against the acquittal filed by the complainant under the provisions of Section 378(4) of the Cr.P.C. 2. It appears from the record that leave to file the appeal was granted by this Court vide order, dated 17.01.2025. 3. This is an appeal against an order dated 17.05.2023 of acquittal passed by the learned Additional District Patna High Court SLA No.22 of 2023(7) dt.06-08-2025 2/13 and Sessions Judge-VI-cum- Special Judge POCSO Act, Begusarai in POCSO Case No. 81 of 2018. 4. One Vijay Soni lodged a complaint before the learned Special Judge under the POCSO Act which was registered as Complaint Case No. 81 of 2018 against the accused/opposite parties alleging, inter alia that on 11.09.2018 at about 8 P.M., the accused persons, named as opposite parties, came to the house of the complainant. Some of the accused were standing on the veranda of the house of the complainant, while accused Prince Kumar and Sujeet Kumar entered into the room of the complainant where his minor girl aged about 15 years, at the relevant point of time, was studying. The said two accused persons with bad intention caught hold of the minor daughter of the complainant and with a view to kidnapping her forcibly pulled her away. The daughter of the complainant tried to resist them but failed. When she was resisting, accused Prince Kumar caught hold of her waist from behind and forcibly tried to take her away. When the complainant raised hue and cry and protested, accused Saurabh Kumar brandished a pistol towards the complainant and threatened him to kill. The family members of the complainant tried hard to resist Prince and Sujeet. Hearing their hue and cry, local people assembled at the place of Patna High Court SLA No.22 of 2023(7) dt.06-08-2025 3/13 occurrence and on seeing them, the accused persons fled away from the spot. It is also stated by the complainant that accused Prince Kumar, and another person previously kidnapped the victim girl and on the basis of a complaint made by the complainant, Nagar P.S. Case No. 347 of 2018 under Section 366A/34 of the IPC and Sections 7 & 8 of the POCSO Act was registered against them. They were threatening the complainant and their family members continuously to withdraw the said case, and as the complainant did not withdraw the said case, the accused persons committed the offence on 11.09.2018. 5. The learned Special Judge took cognizance of offence against the accused persons on the basis of the averment made in the complaint as well as initial statement of the complainant and witnesses made before the learned Judge as well as on enquiry under Sections 323/341 of the IPC and Sections 7 & 8 of the POCSO Act. 6. Summons were sent against the accused persons. They surrendered before the Trial Court to face trial. The learned Special Judge vide order dated 15.07.2022 framed charge against the accused persons under Sections 323/341 of the IPC and 7& 8 of the POCSO Act. The charge so made was read over and explained to the accused persons to which they Patna High Court SLA No.22 of 2023(7) dt.06-08-2025 4/13 pleaded not guilty. Accordingly, the trial of the case commenced. In order to bring home the charge, the complainant examined as many as seven witnesses amongst them, PW-4 is the victim girl, PW-5 is the complainant and PW-3 is the wife of the complainant. PW-1, Shambhu Shah and PW-2, Monti Kumari are the local villagers. PW-6, Raj Kumar and PW-7, Sita Devi are also neighbors of the complainant. 7. It is needless to say that in order to prove a charge under Sections 7 & 8 of the POCSO Act, the evidence of the victim girl is of utmost importance as in a case of sexual assault, the evidence of victim girl is required to be considered as evidence of an injured person. She is not an accomplice of offence but an injured witness upon whom assault was committed. Therefore, even uncorroborated evidence of victim girl, if satisfies the conscience of the Court, the Court can hold guilty for the offence. 8. Bearing the above principle in mind, let us now consider the evidence of PW-4 in her examination-in-chief. It is stated that on 11.09.2018 at about 8 P.M., when she was studying in her room, she heard some hulla. Hearing hue and cry, the victim girl, her mother, aunt and grandmother came out of the room and found five persons standing outside the room Patna High Court SLA No.22 of 2023(7) dt.06-08-2025 5/13 and four persons standing on the veranda of their house. Accused Sujeet Kumar caught hold of her hand and started to pull her away with bad intention and when she protested, accused Prince Kumar put his hand on her waist and tried to take her away. The victim resisted and somehow raised alarm. In the meantime, accused Saurabh Kumar brandished a pistol and threatened others to kill, if they would try to come forward. Hearing the hue and cry, the neighbors of the complainant and other villages rushed to the spot. On seeing them, the accused persons fled away. Almost same account of incident was stated by PW-1, Shambhu Shah, PW-2, Monti Kumari, PW-3, Savita Devi. PW-6, Raj Kumar and PW-7, Sita Devi. 9. PW-5 has also corroborated the evidence of the victim girl in his examination-in-chief. 10. In the complaint, the complainant also implicated one Sarita Devi @ Tunni Devi as an accused. However, the victim girl, who is the starting witness in the instant case, did not use even a single word stating involvement of Sarita Devi. 11. Now, the allegation against accused Prince Kumar and Sujeet Kumar is that Sujeet caught hold of the hand of the victim girl with bad intention (cqjh fu;r) and accused Patna High Court SLA No.22 of 2023(7) dt.06-08-2025 6/13 Prince Kumar pulled the victim girl holding her waist. 12. Section 7 of the Protection of Children from Sexual Offences Act, 2012 defines sexual assault in following words: - 7.) “Sexual assault-Whoever with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” Section 8 is the penal provision for sexual assault which prescribes punishment with imprisonment of either description for term which shall not be less than three years, but which may extent to five years and shall also be liable to fine. 13. Learned Advocate for the appellant submits that the second limb of sexual assault viz., commission of any other act with sexual intent which involves physical contact has been proved against accused Sujeet Kumar and Prince Kumar because the victim has stated on oath that they touched and pulled her with bad intention. 14. At this stage, the question that follows for adjudication is as to whether bad intention (cqjh fu;r) is synonyms to sexual intent or not. The accused persons, namely, Patna High Court SLA No.22 of 2023(7) dt.06-08-2025 7/13 Prince Kumar and Sujeet Kumar tried to take the victim girl away from her house. This may be for the reason of committing an offence of kidnapping or any other kind of offence without intention of sexual assault. In order to prove sexual intention of the accused persons, it is incumbent for the prosecution to prove the said fact with unequivocal terms. The Court cannot presume that whenever an accused touches the hand of a girl, such act is for sexuality. 15. The learned Advocate on behalf of the appellant refers to Section 29 of the POCSO Act which speaks about statutory presumption. The Section 29 reads thus: - 29.) “Presumption of certain offences-Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. Thus, it is argued by the learned Advocate for the appellant that by virtue of Section 29, it is open for the Court to take statutory presumption that the accused persons caught hold of the minor girl to commit sexual assault and onus to prove the contrary is upon the accused. The accused failed to prove the contrary and therefore, at least, Sujeet Kumar and Prince Kumar ought to Patna High Court SLA No.22 of 2023(7) dt.06-08-2025 8/13 have been held guilty for committing offence under Section 7 of the POCSO Act punishable under Section 8 of the POCSO Act. The principle that is enunciated in Section 29 of the POCSO Act is generally stated as “reverse burden”. The issue relating to “reverse burden” was first discussed in connection with a case under the NDPS Act by the Hon’ble Supreme Court in Noor Aga Khan v The State of Punjab & Anr. 2008 AIR SCW 5964. While discussing about the applicability of reverse burden, the Hon’ble Supreme Court held that foundational fact of the prosecution case must first be proved by the prosecution, then only the question of reverse burden shall come into operation. Only on the basis of Section 29, an accused cannot be convicted holding, inter alia, that the accused persons or two of them touched the body of the victim girl with sexuality. When this foundational fact is proved by the prosecution, presumption of Section 29 is available. Relying on the principle in Noor Aga Khan (supra), the Division Bench of the Calcutta High Court in connection with Section 29 and Section 30 of the POCSO Act held in Subrata Biswas and Another v State, 2019 SCC online Cal 1815 that unless and until foundational fact is proved by the prosecution, Sections 29 & 30 will have no manner of application to hold the accused guilty under the POCSO Act. Patna High Court SLA No.22 of 2023(7) dt.06-08-2025 9/13 16. It is rightly submitted by the learned Advocate for the appellant that the finding of the Trial Court is erroneous and cannot be a ground for acquittal of the accused persons. In support of his contention, he refers to Paragraph 22 to 24 of the impugned judgment. Relevant portion of the impugned judgment runs thus:- ^^22- mijksDr lHkh rF;ksa ,oa ifjfLFkfr;ksa dk voyksdu ls izrhr gksrk gS fd vfHk;qDrx.k ds }kjk lwpd ,oa mlds ifjokj ds lnL;ksa ij dbZ eqdnek fd;k x;k gSA ;gkW rd fd vfHk;qDr ds iq=h dk Hkh vigj.k djus dk eqdnek lwpd ,oa mlds ifjokj ds lnL;ksa ij lcqr dzekad &D1/1 }kjk fd;k x;k gSA ;gkW ;g Hkh mYys[kuh; gS fd bl rjg dh ?kVuk dk laKku iqfyl }kjk u ysuk fo”oljuh; ugha izrhr gksrk gSA bl rjg ifjoknh us vius }kjk yxkus x;s vkjksiksa dks lkfcr djus gsrq fo”oluh; uhao dk fu/kkZj.k ugha fd;kA 23- mijksDr ifjfLFkfr esa ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e 2012 dh /kkjk&29 ,oa 30 esa miyC/k mi/kkj.kk dk ikyu djrs gq, lcqr dk Hkkj vfHk;qDrksa ds mij Mkyuk U;kf;d :i ls mfpr ugha gksxkA 24- mijksDr rF;ksa ,oa ifjfLFkfr;ksa esa ;g U;k;ky; bl fu’d’kZ esa igqWprk gS fd ifjoknh us vius }kjk yxk;s x;s vkjksiksa dks lkfcr djus esa lQyrk izkIr ugha dh gSA ^^ 17. The learned Special Judge POCSO Act, Begusarai refused to believe the case of the complainant Patna High Court SLA No.22 of 2023(7) dt.06-08-2025 10/13 because of the fact that the police did not accept the F.I.R. over such incident and it is not believable that the police refused to accept the F.I.R. in a case under the POCSO Act. It seems to this Court that the learned Trial Judge is unaware of police’ inaction prevalent not only in the State of Bihar but all over the country. Non-acceptance of F.I.R. by the S.H.O. or on duty police officer is spreading like carcinoma and without any reason the police regularly refused to accept the F.I.R. Due to non-acceptance of F.I.R., a complaint case cannot be said to be false and shrouded by disbelief. The Trial Court did not believe the prosecution case because of the fact that the case was instituted on complaint. He also wrongly used the principle of reverse burden contained in Sections 29 and 30 without any discussion as to whether foundational fact has been proved or not. 18. In view of the above background, this Court now considers the charge framed against the accused persons. It is found from the record that against all the accused persons, charge was framed under Section 323/341 of the IPC and Sections 7 & 8 of the POCSO Act. This Court has already found that there is absolutely no evidence against Sarita Devi @ Tunni Devi and the Trial Court did not commit any error in recording acquittal of Sarita Devi @ Tunni Devi. The specific act of Patna High Court SLA No.22 of 2023(7) dt.06-08-2025 11/13 accused Prince Kumar and Sujeet Kumar suggests that on 11.09.2018 at about 8 P.M., they committed offence not only under Section 323 of the IPC but also under Section 350 of the IPC punishable under Section 352 of the IPC. It is needless to say that this Court can pass a sentence under Section 352 of the IPC as Section 352 is a lesser offence than Section 323. 19. This Court also finds that the complainant failed to bring home any charge against the accused Saurabh Kumar. Therefore, this Court finds that accused Sarita Devi @ Tunni Devi and accused Saurabh were rightly acquitted and there is no reason for interference against the order of acquittal passed in favour of accused Sarita Devi and Saurabh Kumar. 20. The prosecution case has been proved satisfactorily on the basis of evidence on record in respect of the charge under Section 323 and Section 352 of the IPC. Accused Prince Kumar and Sujeet Kumar are convicted accordingly for the offence under Sections 323 and 352 of the IPC. 21. For the offence punishable under Section 323 of the IPC, the above-named convicts shall be punished with imprisonment of either description or return which may extend to one year or with fine which may extend to Rs. 1,000 or with both and for the offence under Section 352 of the IPC, the Patna High Court SLA No.22 of 2023(7) dt.06-08-2025 12/13 convicts shall be punished with imprisonment of either description for return which may extend to three months or with fine which may extend to Rs. 500/- or with both. 22. The incident took place in the year 2018 and now we are in the year 2025, The above-named convicts suffered lots of mental agony and trauma during the pendency of the case in the Trial Court as well as before this Court. 23. Considering such circumstances, this Court is of the view that simple imprisonment for a period of three months each for committing offence under Sections 323 and 352 of the IPC with some amount of fine shall be just and proper punishment for the accused Prince Kumar and Sujeet Kumar. 24. As a result, the judgment of acquittal, passed by the learned Special Judge POCSO Court, Begusarai is partly set aside. The accused Prince Kumar and Sujeet Kumar are sentenced to suffer simple imprisonment for three months with fine of Rs. 500/- each, in default, to suffer further imprisonment for 15 days each for the offence punishable under Section 323 of the IPC. 25. The accused Prince Kumar and Sujeet Kumar are also sentenced to suffer imprisonment for three months with fine of Rs. 500/-, in default, to suffer further imprisonment of 15 Patna High Court SLA No.22 of 2023(7) dt.06-08-2025 13/13 days for the offence punishable under Section 352 of the IPC. 26. Both the substantive sentence of imprisonment shall run concurrently. However, the imprisonment on account of failure to pay fine shall run separately. 27. The instant appeal is accordingly disposed of. 28. The convicts are directed to surrender before the learned Trial Court within fifteen days from the date of communication of this order to suffer sentence, failing which, the Trial Court shall issue warrant of arrest against the convicts for compelling their appearance. 29. Lower Court Record be returned along with copy of this order. Jyoti Kumari/- (Bibek Chaudhuri, J.) U T