Patna High Court
ABHISHEK KUMARversusTHE STATE OF BIHAR
- Decided
- Disposal
- ALLOWED
Holding
The conviction and sentence were set aside because the prosecution failed to prove its case and the conviction under Section 376AB IPC was illegal.
Summary
The Patna High Court heard an appeal by Abhishek Kumar against his conviction for kidnapping, rape and offences under the POCSO Act. The trial court had sentenced him to 20 years for IPC Section 376AB and five years for other offences, all to run concurrently. The appellant argued that the victim’s testimony was inconsistent, the FIR was delayed, there was no medical evidence of sexual assault, and that he had married the minor, rendering the charge of rape untenable. The court found the victim’s evidence not credible, noted contradictions in the recovery narrative, and held that the prosecution failed to prove the foundational facts of kidnapping and sexual assault. It also observed that the conviction under Section 376AB was illegal as the charge was not framed. Consequently, the court set aside the conviction and sentence, acquitted the appellant, and ordered his immediate release.
Issues considered
- The legality of convicting the appellant under IPC Section 376AB when the charge was not framed.
- Whether the victim’s testimony qualifies as a sterling witness and is credible beyond reasonable doubt.
- Whether the prosecution established the essential elements of kidnapping and sexual assault under the POCSO Act.
- Whether a purported marriage to a minor can serve as a defence to offences under the POCSO Act.
- The effect of the two‑day delay in lodging the FIR on the prosecution’s case.
Legislation cited
- Indian Penal Code — s. 363, 365, 366, 376, 376AB
- Protection of Children from Sexual Offences Act, 2012 — s. 3(a) read with 4, 5(1)(m) read with 6
Subjects
- kidnapping
- child sexual abuse
- POCSO Act
- consent of minor
- credibility of witness
- conviction set aside
- appeal allowed
- IPC Section 376AB
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.309 of 2023
Arising Out of PS. Case No.-540 Year-2018 Thana- BIHAR District- Nalanda
======================================================
Abhishek Kumar, Son of Sahdeo Prasad Singh @ Sahdeo Prasad, R/O Village
- Gauragarh, P.S.- Bihar, District- Nalanda
... ... Appellant/s
Versus
1. The State of Bihar
2. Uday Kumar, S/o – Naresh Yadav, R/o vill – Gafur Bigha, P.S.- Ashthawan,
Dist.- Nalanda, Pin Code - 803107
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Asv.
Mrs. Vaishnavi Singh, Adv.
Mr. Shivam, Adv.
Mr. Mudit Meet, Adv.
Ms. Sushmita Mishra, Adv.
For the State : Mr. Dilip Kumar Sinha, APP
For the Resp. No. 2 : None.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SHAILENDRA SINGH)
Date : 08-01-2026
Mr. Ajay Kumar Thakur, assisted by Mrs. Vaishnavi
Singh, learned counsel for the appellant, and Mr. Dilip Kumar
Sinha, learned APP for the State, are present and have been
heard.
2. No one has appeared on behalf of Respondent No.
2 (informant) to oppose the appeal, despite valid service of
notice as per order dated 17.12.2025.
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3. The instant criminal appeal has been preferred
against the judgment of conviction dated 08.02.2023 and the
order of sentence dated 16.02.2023 & 17.02.2023, passed by the
learned Additional Sessions Judge-VI cum Special Judge,
POCSO Court, at Biharsharif, Nalanda, in POCSO/G.R. Case
No. 5318 of 2018, arising out of Bihar P.S. Case No. 540 of
2018. By the said judgment and order, the learned trial court
convicted the appellant for offences punishable under Sections
366 and 376AB of the Indian Penal Code, 1860 (in short,
‘IPC’), offences under Section 3(a) punishable under Section 4
of the Protection of Children from Sexual Offences Act, 2012
(in short, ‘POCSO Act’), and the offence under Section 5(1)(m)
punishable under Section 6 of the POCSO Act. The appellant
was sentenced to undergo rigorous imprisonment for 20 years
with a fine of Rs. 5,000/- (Rupees Five Thousand) for the
offence under Section 376AB of IPC, and to undergo rigorous
imprisonment for 5 years with a fine of Rs. 5,000/-, and in
default of payment of fine, to further undergo six months simple
imprisonment for each sentence. All sentences are directed to
run concurrently.
Prosecution Story :-
4. The case of the prosecution, in a nutshell, is that the
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informant, father of the victim, alleged that on 24.11.2018,
while he was outside his house performing his duty and his wife
was at her shop, the appellant came to his house and kidnapped
his minor daughter, aged about ten years. Thereafter, the
appellant took his daughter to a secluded place and established a
physical relationship with her ten to fifteen times. After
becoming aware of the incident, when he (informant) contacted
the appellant on his mobile number 9135808814, the appellant
assured him that he would return the victim. Relying on this
assurance, he (informant) waited for the victim until 25.11.2018;
however, she did not return. Consequently, he (informant)
lodged the case on 26.11.2018 at Bihar Police Station. The
informant further alleged that the appellant is his landlord’s son
and that the appellant’s family members assisted him in taking
away the victim. Moreover, when he and his wife went to the
house of the accused persons to lodge a protest, they were
abused and assaulted by the appellant’s family members.
5. The informant filed his written application (Exhibit
P-6) to lodge the FIR. On that basis, a formal FIR was registered
for offences under Sections 363 and 365 read with Section 34 of
IPC against the appellant and others vide Bihar P.S. Case No.
540/2018 dated 26.11.2018, and investigation commenced. After
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completion of the investigation, the appellant and others were
chargesheeted for offences under Sections 363, 365, and 376 of
IPC, and Section 4 of the POCSO Act. The appellant was
charged for offences under Sections 363, 366A, and 376 of IPC,
as well as offence under Section 4 read with Section 3 of the
POCSO Act, and offence under Section 6 read with Section 5 of
the POCSO Act.
6. During the trial, the prosecution produced and
examined the following witnesses :-
Rank Name Nature of Evidence
PW-1 Father of the victim-cum- Chargesheet Witnesss
informant of the case
PW-2 Victim ‘X’ Eye Witness
PW-3 Mother of the victim Chargesheet Witness
PW-4 Dr. Kumkum Kumari Medical Witness
PW-5 Dr. Ram Kumar Prasad Medical Witness
PW-6 Sultan Nadaf Investigating officer
PW-7 Mukesh Kumar Formal Witness
PW-8 Dipti Singh Investigating officer
PW-9 Lal Babu Mishra Investigating officer
7. In documentary evidence, the prosecution exhibited
and proved the following documents:-
Sr. No. Exhibit Number Description
1. Ext. P-1/PW 1 Entire written report
2. Ext. P-2/PW 2 Signature of the victim on the
medico-legal report
3. Ext. P-2/1/PW 2 Signature of the victim on the
statement recorded u/s 164 of the
Cr.P.C.
4. Ext. P-3/PW 5 Medico legal report
5. Ext. P-4 State of the victim u/s 164 Cr.P.C.
6. Ext. P-5/PW 6 Endorsement on the written report
7. Ext. P-6/PW 6 Formal F.I.R.
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8. Ext. P-7/PW 7 Admission Register of victim
8. After the completion of the prosecution evidence,
the statement of the appellant was recorded under Section 313
of the Cr.P.C., wherein all incriminating evidences were put to
him. He denied the same and claimed himself to be innocent.
Although the appellant did not raise any specific defence in his
statement.
8.1. The appellant examined the following four
witnesses in support of his defence:
DW 1 Pramod Ravidas
DW 2 Sanjay Ravidas
DW 3 Mantoo Kumar
DW 4 Nagina Ravidas
9. In documentary evidence, the appellant proved and
exhibited one document, marked as D-1, which is a notary
affidavit claimed to have been executed by the appellant and the
informant’s daughter.
Submissions on behalf of the appellant :-
10. Learned counsel for the appellant has argued that
the informant’s daughter, the victim, is not a sterling witness of
the prosecution, as she has not remained consistent with the
prosecution’s allegations. Further, the place of her recovery as
shown by the prosecution is completely doubtful in view of the
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contradictions. There is a delay of two days in lodging the FIR
without any plausible explanation by the informant. The victim
was medically examined immediately after her recovery, but the
medical expert found no evidence on her person suggesting
sexual assault. In fact, there was a love affair between the
appellant and the informant’s daughter, and admittedly, the
informant was a tenant of the appellant’s father, living in the
same building in which the appellant’s family were also living.
There was a dispute over the payment of rent between the
informant and the appellant’s father. The trial court erred in
convicting the appellant for the offence punishable under
Section 376AB of the IPC, as the appellant had not been
charged for the said offence, and without altering the charges,
the conviction under Section 376AB of IPC was recorded by the
trial court, which is wholly illegal.
11. Learned counsel further submits that, on account
of the adolescent love affair between the informant’s daughter
and the appellant, the victim voluntarily went with the appellant,
and they solemnized their marriage in a temple at Mani Baba
Akhara on 19.11.2018. Thereafter, on 12.05.2019, both sworn in
a joint affidavit before a Notary public showing their love as
well as matrimonial relationship, which was proved by the
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appellant during the course of trial by adducing it as
documentary evidence (Exhibit D-1) and through the oral
testimony of material witnesses.
12. Learned counsel for the appellant has further
argued that the second part of the prosecution story described in
the FIR was disbelieved by the trial court and consequently
other co-accused persons were acquitted, which also casts a
serious doubt on the first part of the prosecution’s story. The
prosecution remained unsuccessful in establishing even the
foundational facts of the alleged occurrence.
Submissions on behalf of the State :-
13. Learned APP for the State has argued that the
victim’s own evidence is sufficient to prove the alleged charged
offences against the appellant. The victim remained consistent
in her allegations before the trial court as well as before the
Judicial Magistrate while recording her statement. The victim
was only 10 years old when the alleged occurrence of
kidnapping and rape was committed by the appellant. The
appellant’s defence is not believable, rather, it supports the
prosecution case if it is accepted, as the appellant admitted the
physical relationship between him and the victim by claiming
that they had entered into a matrimonial relationship. The
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appellant cannot justify and legalise his actions even by entering
into a matrimonial relationship with the victim, as the victim’s
consent had no legal significance due to her minority.
Consideration, analysis and conclusion :-
14. We have heard both the sides, perused the
judgment impugned and the evidences adduced by both the
sides before the trial court and the statement of the appellant. As
per the prosecution story, the alleged act of the appellant as to
taking the informant’s daughter with him had come in the
knowledge of the informant on 24.11.2018 but the FIR was
lodged by the informant on 26.11.2018 by filing a written
application. The said delay of two days on the part of the
informant goes against him. Though, in the FIR the informant
revealed that he was waiting whole day for returning back of his
daughter on 24.11.2018 upon believing the appellant’s assurance
but the appellant came back to his house in the evening at 7
P.M. without his daughter and the appellant repeatedly did not
fulfill his assurance, and only then the informant went to the
police station to lodge the FIR. The said explanation does not
seem to be believable as when the appellant failed to produce
the informant’s daughter (victim) despite giving assurance on
24.11.2018 then an immediate step for lodging the FIR ought to
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have been taken by the informant but he remained silent till
26.11.2018.
15. So far as the credibility of the evidence of the
victim with regard to the commission of the alleged offence is
concerned, there are three circumstances which go against the
prosecution. The victim, who was examined as PW-2, deposed
before the trial court in the paragraph No. 7 of her cross-
examination that she was taken by the appellant on a
motorcycle but she did not raise any alarm at that time. She
further stated that during the course of travelling for one hour
on the said motorcycle, she cried several times but no one
could hear her cry on account of fast speed of the appellant’s
motorcycle. Before the Judicial Magistrate, during the course
of investigation while recording the statement under section
164 of Cr.P.C., the victim did not say anything about her said
resistance of raising an alarm while she was being taken by the
appellant on a motorcycle. She simply stated that she was
enticed away by the appellant and taken by him to a secluded
place on a motorcycle.
15.1. Secondly, the victim deposed that when her mother
revealed her intention to lodge the FIR then the appellant
brought her to Bihar railway station and left her there and fled
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away. She further deposed that from the railway station, she
informed her father about her location by using mobile phone
of a woman, then her father came to the railway station and
then the incident was narrated by her to her parents. Thereafter,
the police came to her house, and before that her father had
already lodged the case and the police came to her house and
took her to the police station. But the investigating officer, who
was examined as PW-8, deposed in his examination-in-chief
that upon a secret information, he went to Biharsharif railway
station and found the victim roaming alone and upon asking,
she revealed her name as daughter of the informant. While as
per the victim’s own evidence, she herself informed her father
about her location, after which her father brought her from the
railway station to his residence, from where she was taken to
the police station. The said contradictory statements regarding
the place of recovery of the victim goes against the prosecution
and makes the victim’s evidence less credible. Her mother
(PW-3) has stated that on 26.11.2018 her husband lodged a
case in Bihar police station then Chunnu Kumar told her that
the victim has been brought and left at Railway Station,
Biharsharif. Her daughter gave her a call from mobile of a
passerby, then she went to bring her. After return of the victim
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she informed police. It is, therefore evident that PW-1, PW-3
and PW-8 have given three different version which are
contradicting each other. It is also evident that prior to making
her statement to the investigating officer (PW-8), she was in
company of her parents at her home. In his evidence, the
investigating officer (PW-8) has admitted that he had not
mentioned at what time he had got secret information and that
at what time he had recovered the victim. He had not recorded
statement of any independent witness at the place of recovery.
15.2. Thirdly, as per the evidence of the victim, the
appellant raped her 10 to 15 times during her captivity period.
But on the person of the victim, no sign of physical violence
suggesting such sexual assault with her for 10 to 15 times was
found by the medical expert despite the victim having been
examined on the same day of her recovery. This circumstance
also goes against the prosecution.
16. In view of above discussed circumstances, the
informant’s daughter, the victim, does not appear to be a
sterling witness and her evidence is not credible and not
inspiring the confidence of this Court.
17. On the other hand, for substantiating the
aforesaid defence of the appellant, three witnesses were
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examined by the appellant in his defence who are independent
persons and all of them deposed that there was love affair
between the appellant and the informant’s daughter and the
same was in the knowledge of the victim’s parents and both
solemnized their marriage on 19.11.2018 at a temple in Mani
Baba Akhara. The DW-3 (Mantoo Kumar) stated that before
him the appellant and informant’s daughter made a document
showing and proving their matrimonial relationship and at that
time the victim revealed her age as 19 years. He further
submitted that an affidavit was sworn by the victim and the
appellant jointly with their photographs and he made his own
signature as a witness on the said affidavit. The witness proved
his signature upon the said affidavit, which was marked as
Ext.- D-1.
17.1. Though in view of informant’s daughter’s minority,
the appellant’s above discussed defence cannot be made a ground
for exonerating him from entering into sexual relationship with
the victim in the name of marriage but with regard to the alleged
offences pertaining to the prosecution story, the prosecution is
bound to prove the prosecution story at least its foundational
facts. The prosecution has measurably failed to establish its
prosecution story as to the victim being forcibly taken by the
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appellant on a motorcycle and establishing sexual relationship
with her by the appellant several times and further, the trial court
erred in convicting the appellant for the offence under section
376AB of IPC without altering the charges upon him.
Accordingly, we are of the considered view that the impugned
judgment and order convicting and sentencing the appellant for
the alleged offences are not sustainable in the eye of law, so, both
are hereby set aside and the instant appeal stands allowed. The
appellant is acquitted of the charges giving him benefit of doubt.
18. The appellant is in jail, so, he is directed to be
released at once in the present matter if his custody is not
required in any other matter.
19. Let the trial court’s records be sent back to the trial
court concerned forthwith.
20. Let the judgment's copy be sent to the trial court as
well as jail authority concerned for needful.
(Rajeev Ranjan Prasad, J)
(Shailendra Singh, J)
annu/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 17.01.2026
Transmission Date 17.01.2026
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