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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

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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