LexSUSHIL KUMAR TIWARI versus HARE RAM SAH & ORS.
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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 lodgin
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