Where Victim Is Last Seen With Accused and Dies Soon After, Burden Shifts on Accused Under Section 106 Evidence Act and Section 29 POCSO: Patna High Court

In a powerful judgment reinforcing the evidentiary presumptions under child protection law, the Patna High Court dismissed the criminal appeals of Bhushan Sada and Anjesh Sada, convicted for the gang rape and murder of a 10-year-old girl. A Division Bench of Justice Mohit Kumar Shah and Justice Shailendra Singh held that the prosecution had “established a complete chain of circumstances, incapable of any other conclusion except guilt” and further ruled that once the foundational facts were established, “the presumption under Section 29 of the POCSO Act and the evidentiary burden under Section 106 of the Evidence Act are triggered against the accused”.

“The Appellants Were Last Seen Taking the Child Away, Her Body Was Found Naked Hours Later, and They Gave No Explanation”: High Court Applies Section 106 Evidence Act

The core of the Court’s reasoning rested on a strong last-seen circumstance, which the Court found to be proven by credible, consistent, and corroborated testimonies from multiple prosecution witnesses. The mother of the deceased (PW-3), her younger sister (PW-4), and father (PW-5) all consistently narrated that the victim was taken away by the accused—Bhushan on a cycle, accompanied by Anjesh and another—shortly before she disappeared. Within a few hours, her lifeless, nude body was recovered from a nearby cornfield.

Referring to the settled principle under Section 106 of the Indian Evidence Act, the Bench held:

“In cases based on circumstantial evidence, where the accused is last seen with the victim and fails to offer a plausible and satisfactory explanation for how they parted ways, such failure forms an additional link in the chain of circumstances.”

The Court cited Sambhubhai Raisangbhai Padhiyar v. State of Gujarat (2025) and Pappu v. State of U.P. (2022), noting that the short time gap between the victim being last seen and the discovery of her body heightened the burden on the accused. “No explanation whatsoever has been offered by the appellants as to how and when they parted company with the deceased child,” the Court observed.

Statutory Presumption of Guilt Under Section 29 POCSO Act Applies Once Foundational Facts Are Proven

The High Court underscored that the case falls squarely within the purview of Section 29 of the POCSO Act, 2012, which presumes guilt once the prosecution proves foundational facts such as the identity of the accused and the basic elements of the offence.

“Once the prosecution established that the minor victim was last seen with the appellants, was subsequently found dead, and medical evidence confirmed rape and murder, the statutory presumption under Section 29 was clearly triggered. The burden shifted on the accused to rebut it, which they failed to do.”

The Court observed that no credible defence evidence was led, and no explanation was given by the appellants for either their conduct or the injuries found on their bodies.

Medical Evidence “Suggestive of Recent Sexual Intercourse” on Accused and Grievous Genital Injuries on Victim

The medical evidence played a vital corroborative role in strengthening the prosecution case. PW-7 (Dr. Purushottam Kumar Sinha), who examined the accused, found abrasions and congestions on their genitals, which he opined were “suggestive of recent sexual intercourse”. These injuries remained unexplained by the defence.

PW-8 (Dr. Ashok Prasad), who conducted the post-mortem on the victim, found:

“Tears in the posterior part of vagina, bleeding from vagina, anal swelling, fracture of cervical vertebrae, and neurogenic shock due to rape-related trauma”.

The Court found these medical findings to be “strong corroborative evidence which fortify the prosecution case and directly link the accused to the heinous act”.

Extra-Judicial Confession Before Villagers Found Credible and Admissible

Another significant piece of incriminating evidence was the extra-judicial confession of appellant Bhushan Sada before villagers, including PWs 1, 3, and 5. The Court, while acknowledging that such confessions are ordinarily weak evidence, held that in this case, it was corroborated by independent facts:

“When the accused was apprehended, he disclosed the location of the body and admitted the rape and murder. The confession led to recovery of the body, lending credibility to the statement and establishing its evidentiary worth.”

Thus, the Court found that even this extra-judicial confession formed part of the chain of circumstances that was “conclusive in nature and incapable of explanation on any hypothesis other than guilt.”

FIR Contradictions and Delay Found Non-Fatal to Prosecution Case

On the defence’s argument that the FIR and in-court testimony of the informant (PW-5) varied in material respects, and that there was delay in lodging the FIR, the Court held:

“FIR is not a substantive piece of evidence; contradictions can only be used if the witness is confronted with the document. In this case, no such confrontation was made. Hence, no benefit can be drawn by the defence.”

The Court further observed that the delay in FIR (registered next morning after the night incident) was “natural and justified in the context of rural setting, panic, and emotional trauma”. Relying on Alagarsamy v. State (2010) 12 SCC 427 and Chatra v. State of Rajasthan (2025), the Court held that such delay did not vitiate the prosecution case.

Child Witness Credible Despite Tutoring Allegation – “Tutored Parts Separable from Truth”

Punam Kumari (PW-4), the 8-year-old sister of the victim, was subjected to scrutiny for allegedly being tutored. However, the Court applied the settled legal principle that a child witness’s testimony can be partly relied upon if the untutored part inspires confidence.

“The core of PW-4’s deposition—that her sister was taken by Bhushan on a cycle and did not return—was corroborated by other witnesses and remained consistent. This part is natural and credible, and cannot be discarded merely because she admitted being taught certain portions.”

Relying on State of MP v. Ramesh (2011) and Balveer Singh (2025), the Court reiterated that “even tutored child witnesses can provide reliable evidence if the court separates the embellishments and retains the credible core.”

Chain of Circumstances Found Complete – No Alternative Hypothesis Possible

After exhaustively analysing all material, the Court concluded that the circumstances—last seen, medical injuries, recovery of the body, extra-judicial confession, failure to explain, and conduct of absconding—formed a complete chain.

“The circumstances are of a conclusive nature, exclude every other hypothesis, and establish beyond all reasonable doubt that the appellants committed the crimes of rape and murder. There is no missing link.”

Referring to Sharad Birdhi Chand Sarda v. State of Maharashtra (1984) and S.K. Yusuf v. State of West Bengal (2011), the Court reaffirmed the five cardinal principles for conviction based on circumstantial evidence and found each of them satisfied.

Conviction Upheld – Life Imprisonment for Remainder of Natural Life Affirmed

The High Court upheld the conviction under Sections 376(A), 376(D)/34, 302/34 IPC and Section 4 of the POCSO Act. The sentence of imprisonment for the remainder of natural life was also affirmed.

The appeals were dismissed with the following directions:

“The bail bonds of appellant Anjesh Sada, who was released during pendency of the appeal, stand cancelled. He is directed to surrender within four weeks. Appellant Bhushan Sada is already in custody and shall serve the remaining sentence.”

Date of Decision: 12 November 2025