Patna High Court

DEEPAK KUMARversusThe State of Bihar

Decided: 12 May 2026
Disposal: PARTLY ALLOWED (DISPOSAL)
Bench: ANIL KUMAR SINHA

Holding

The conviction under Section 6 of the Protection of Children from Sexual Offences Act, 2012 is set aside as the victim was not a minor, while the conviction under IPC Section 376 is upheld.

Summary

The appellant Deepak Kumar was convicted by the Special POCSO Court for offences under IPC Section 376 and POCSO Act Section 6, based on allegations that he had sexual relations with a girl who later became pregnant, claiming she was a minor. The trial court sentenced him to ten years rigorous imprisonment and a fine, relying on the victim's testimony, medical reports, and an age determination report presented late in the proceedings. On appeal, the appellant argued that the prosecution failed to prove the victim's minority, that the age verification report was inadmissible and not examined, and that procedural safeguards under Section 94 of the Juvenile Justice Act were not followed. The High Court examined the evidence, noting that the age report placed the victim’s upper age at 19, rendering her a major, and that the statutory presumption under POCSO could not be invoked without proof of minority. Consequently, the Court upheld the conviction under IPC Section 376 but set aside the conviction under POCSO Act Section 6, modifying the sentence accordingly. The appeal was therefore partly allowed, and the appellant was discharged from bail bond liabilities after serving over seven years in custody.

Issues considered

The prosecution failed to establish the victim's minority as required under the POCSO Act.
Whether the age determination report was admissible and complied with Section 94 of the Juvenile Justice Act.
Whether the statutory presumption under Section 29 of the POCSO Act applies without proof of minority.
Whether the conviction under IPC Section 376 stands despite the findings on age.
Whether procedural irregularities in recording the accused's statement affect the conviction.

Legislation cited

Code of Criminal Procedure — s. 281, 313
Indian Penal Code — s. 376, 493, 90
Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 94
Protection of Children from Sexual Offences Act, 2012 — s. 29, 6

Subjects

rape
POCSO
minority
age determination
consent
IPC 376
Section 6 POCSO
appeal
procedural irregularities

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1450 of 2022
Arising Out of PS. Case No.-386 Year-2014 Thana- KALYANPUR District- East Champaran
======================================================
DEEPAK KUMAR, SON OF SRICHANDRA PRASAD, R/O VILLAGE-
DEVPUR PARSA, P.S.- KALAYANPUR, DISTRICT- EAST CHAMPARAN
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Sanjeev Kumar
Mr. Sitesh Kashyap
Mr. Raushan Raj
For the Respondent/s : Mr.Zeyaul Hoda
======================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

JUDGMENT AND ORDER
C.A.V.

Date : 12-05-2026

1. The present appeal has been preferred by the

appellant against the judgement of conviction and the order of

sentence, dated 16.03.2022, passed by the learned Additional

Sessions Judge-VII -cum- Special Judge, POCSO, East

Champaran, at Motihari, in Trial No. No. 32 of 2020, arising out

of Kalyanpur Police Station Case No. 386 of 2014, whereby the

appellant has been convicted for the offences punishable under

Section 376 of the Indian Penal Code and under Section 6 of the

Protection of Children from Sexual Offences Act, 2012.

2. Though the appellant was convicted under Section

376 of the Indian Penal Code and under Section 6 of the Protection

of Children from Sexual Offences Act, 2012, the learned Trial
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Court, considering the fact that the maximum punishment is under

Section 6 of the Protection of Children from Sexual Offences Act,

2012, has awarded sentence only under Section Section 6 of the

Protection of Children from Sexual Offences Act, 2012.

3. The appellant was sentenced to undergo rigorous

imprisonment for a term of ten years and fine of Rs. 50,000/-, and

in default of payment of fine, the appellant has been further

directed to undergo simple imprisonment for six months.

4. The prosecution case, based on the written application

submitted by the informant to Kalyanpur Police Station on

23.11.2014, unfolds with the allegation that the informant/victim

had been residing in the house of her sister and brother-in-law in

Village Devpur Parsa for the past eight years. One year prior to the

lodging of the First Information Report, the sole appellant induced

the informant and established physical relations with her. This

relationship continued on the continuous assurance of the appellant

that he would marry the informant/victim. In the meantime, when

the informant-victim became pregnant, she began to pressurize the

appellant to solemnize marriage with her; however, despite

repeated assurances, the appellant ultimately refused to marry her.

On the date of lodging of the First information Report, the

informant-victim was carrying pregnancy of about 7–8 months.
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5. On the basis of aforesaid written application,

Kalyanpur Police Station Case No. 386 of 2024, dated

24.11.20214, was registered against the appellant for the offences

punishable under Sections 376/493 of the Indian Penal.

6. After completion of investigation, charge-sheet was

submitted on 20.02.2015 against the appellant under Sections 376

and 493 of the Indian penal Code, whereafter cognizance of the

offences was taken on 08.01.2016 under the aforementioned

provisions by the Special Court, POCSO.

7. Thereafter, on 03.03.2016, the learned Trial Court

framed charges against the appellant under Sections 376 and 493

of the Indian penal Code and Section 6 of the Protection of

Children from Sexual Offences Act, 2012. The charges were read

over and explained to the appellant in Hindi, to which he pleaded

not guilty and claimed to be tried.

8. The prosecution, in order to substantiate its case, has

examined as many as five witnesses and exhibited some

documents on its behalf. List of prosecution witnesses and exhibits

are being mentioned hereunder in tabular form:-

List of Prosecution Witnesses :

Prosecution Name of witness Description
Witness No.
1. X Informant/ victim
2. Rita Devi Sister of victim
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3. Rajesh Prasad Independent Witness
4. Dr. Nutan Sinha Doctor
5. Narendra Kuamr Singh Investigating officer

List of Exhibits on behalf of the prosecution :

Exhibit Description of the Exhibit Date
No.
1 Signature of victim (informant) on 30.03.2016
the fardbayan
2 Signature of victim (informant) on 30.03.2016
medical report
3 Medical Report of the victim 15.12.2016
(informant)
4 Age determination Report 07.02.2022

9. The appellant was examined under section 313 of the

Code of Criminal Procedure on 07.03.2018.

10. The defence adduced three witnesses and exhibited

one document on its behalf. List of prosecution witnesses and

exhibits are being mentioned hereunder in tabular form:-

List of Defence Witnesses :

Defence Name of witness Description
Witness No.
1. Shri Chandra Prasad Father of the Appellant
2. Deepak Kumar Appellant
3. Dharmdev Prasad witness of the sale deed

List of Exhibit on behalf of the defence :

Exhibit No. Description of the Exhibit Date/attested by
A Signature of witness 24.03.2021/DW 3
Dharmdev Prasad on the
sale deed
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11. It is pertinent to mention here that after the

examination of the appellant under Section 313 of the Code of

Criminal Procedure on 07.03.2018 and after closing of the defence

witness, the learned Trial Court noticed the order, dated

08.03.2017, passed by this Court, in Criminal Misc. No. 9164 of

2017, in which it was the confession of the appellant before this

Court that the victim-informant is his wife and he is the father of

the child. The appellant has also wrote a letter addressed to the

learned Trial Court on 29.04.2016, when he was under judicial

custody that the victim-informant is his wife and he is the father of

the child. When the learned Trial Court noticed the above

mentioned order and letter, the statement of the appellant was

again recorded under Section 313 of the Code of Criminal

Procedure on 01.09.2021.

12. Learned Counsel appearing on behalf of the

appellant has submitted, at the very outset, that the judgment of

conviction is against the weight of evidence and has been passed

upon presumption of guilt. It is contended that the finding of the

learned Trial Court with regard to the age of the victim is wholly

unsustainable in the eyes of law and has resulted in grave

miscarriage of justice. The conviction of the appellant under

Section 6 of the Protection of Children from Sexual Offences Act,
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2012 is entirely dependent upon proof of the victim being a minor;

however, the prosecution has miserably failed to establish the same

in accordance with the established principles.

13. It is further argued that no proper age determination

of the victim was carried out in accordance with the mandate of

Section 94 of the Juvenile Justice (Care and Protection of

Children) Act, 2015 and the provisions of the of the Prevention of

Children from Sexual Offences Act, 2012 could only be invoked

only after foundational facts, including the minority of the victim,

are duly established by the prosecution. In the present case, as the

age of the victim has not been proved in accordance with law,

therefore, the provisions of the Prevention of Children from Sexual

Offences Act, 2012, will not be attracted.

14. Learned Counsel further submits that the alleged Age

Determination Report, marked as Exhibit-4, was exhibited on

07.02.2022, i.e., at a highly belated stage, long after the twice

examination of the accused under Section 313 of the Code of

Criminal Procedure had already been concluded. Since, the said

age verification report was brought on record after closing of the

prosecution and defence witness and after recording of the

statement of the appellant under Section 313 of the Code of

Criminal Procedure, the incriminating circumstance arising
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therefrom was never put to the appellant and the appellant was

deprived of a valuable opportunity to explain or challenge the

alleged determination of age, causing serious prejudice to him.

15. Learned Counsel further submits that the Age

Determination Report (Exhibit-4) has not been exhibited in

accordance with law. Neither PW 4 (the doctor) nor PW 5 (the

Investigating Officer) have deposed anything regarding the

preparation, basis, or methodology of the said age verification

report. The Investigating Officer (PW 5) has neither conducted any

investigation into the authenticity of the age verification report nor

any competent witness was examined to prove its contents. As

such, the conclusion of the learned Trial Court regarding the

minority of the victim is wholly unsustainable.

16. The purported age determination is based solely on

Exhibit-4, which is not only unproved, but also suffers from

serious procedural irregularities. It is a cardinal principle of

criminal law that the prosecution must prove its case beyond

reasonable doubt, and in the absence of reliable and admissible

evidence regarding the age of the victim, the benefit of doubt must

necessarily be given to the appellant.

17. Learned Counsel further submitted that the statutory

presumption under Section 29 of the Protection of Children from
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Sexual Offences Act, 2012 can be invoked only after foundational

facts, including the minority of the victim, are duly established by

the prosecution. In the present case, as the age of the victim has

not been proved in accordance with law, the said presumption is

not attracted.

18. It is also relevant to submit that the appellant has

consistently taken the stand that the informant/victim is his wife

and their relationship was consensual in nature. In the absence of

proof of minority, such relationship cannot be brought within the

ambit of the offence of rape.

19. The second limb of argument of learned Counsel for

the appellant was that the incriminating material regarding the age

of the victim-informant was never put to him while recording his

statement under Section 313 of the Code of Criminal Procedure;

rather the question regarding the minority of the victim was put to

him while recording his statement under Section 281 of the Code

of Criminal Procedure, and due to non-placement of the

incriminating question, the appellant has been prejudiced.

20. Learned Counsel has concluded his argument by

submitting that the impugned judgment of conviction is fit to be

set aside as the prosecution has miserably failed to prove its case

beyond reasonable doubts.
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21. In support of his submissions, learned Counsel has

placed reliance upon the decisions of the Supreme Court, in the

cases of Naresh Kumar v. State of Delhi (AIR 2024 SC 3233),

Ramji Prasad Jaiswal @ Ramjee Prasad Jaiswal and others v.

The State of Bihar (AIR Online 2025 SC 1073), Lalu Yadav vs

State of UP (AIR 2024 SC 5194), Jaya Mala v. Home Secretary,

Government of J & k and Others (AIR 1982 SC 1297) and

Kunal Chatterjee vs The State of west Bengal and Others,

passed in SLP (CRL.) No. 7004 of 2025.

22. On the other hand, learned Counsel for the State

argued that the evidence adduced on behalf of the prosecution,

have supported the prosecution case. The deposition of PW 1 (the

victim-informant) is of credible nature, as such, the deposition of

the victim (PW 1) itself can form the sole basis of conviction of

the appellant.

23. On the age verification report of the victim-

informant, learned Counsel submits that on the application of the

prosecution, dated 03.02.2022, there is endorsement of learned

Counsel for the appellant that he has no objection if the age

verification report is exhibited at this belated stage and on the

ground of no objection by the either parties, the learned Trial

Court, by order, dated 07.02.2022, has directed for exhibiting this
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document, which was prepared on the date of lodging of the First

Information Report itself. After giving no objection for exhibiting

the age verification report, the appellant cannot, at the appellate

stage, take a plea that the age verification report has not been

proved properly.

24. Learned Counsel further submitted that the medical

evidence indicates that the victim-informant carried pregnancy of

7-8 months and thus it cannot be denied that the victim has been

subjected to sexual assault. It has also been submitted that if any, a

consent is given by a minor, that consent is a nullity in the eyes of

law and the same amounts to rape.

25. On the point of non-placement of the age of the

victim-informant in the statement of the appellant recorded by the

learned Trial Court, on 07.03.2018, it has been submitted by

learned Counsel for the State that all the incriminating questions

were put to the appellant on 07.03.2018, though the same has been

recorded on a format meant for examination of accused persons

under Section 281 of the Code of Criminal Procedure, but on

going through the contents of the statement and order, dated

07.03.2018, it is crystal clear that the statement of the appellant

was recorded under Section 313 of the Code of Criminal
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Procedure. and mere recording the statement on a wrong format

would not vitiated the entire trial.

26. It has lastly been submitted that there is no illegality

in the impugned judgment and order of conviction, as such, the

appeal is devoid of any merit and fit to be dismissed.

27. I have heard learned Counsel for the appellant and

learned Counsel for the State and have also gone through the entire

materials available on record.

28. In order to give my conclusive finding, it is

necessary to analyze and discuss the evidence of prosecution

witnesses and the other documents, which were exhibited.

29. In order to appreciate the evidence adduced by the

prosecution against the appellant, I would like to first take note of

the evidence of the PW 1, the informant of this case and the sole

victim also.

30. PW 1, in her examination-in-chief, has stated that the

informant came in contact with the appellant while she was

residing with her elder sister and brother-in-law in their house. The

appellant used to say that he would marry her and did wrongful

acts with her. The appellant used to say that if she will disclose, he

will kill her. The appellant did not marry her and she got pregnant.

A panchayat was also conducted, but the appellant’s father did not
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turn up in the panchayati. When her brother-in-law went to ask,

they assaulted him with lathi five times. The Panch told her

brother-in-law to go and file a case. The informant went to the

police station with her brother-in-law. This witness has proved her

signature on the fardbayan, which has been marked as Exhibit

-1.This witness has further deposed that her treatment had taken

place in Muzaffarpur, but her examination was done at Motihari

and she has put her signature on it. This witness has identified her

signature on the medical report, which has been marked as

Exhibit-2. I identify the accused Deepak Kumar.

31. In her cross-examination, this witness (PW 1) has

deposed that she did not remember her date of birth as the same

was not disclosed by her parents. After the last rites of my father,

who died 8-9 years ago, this witness came to her sister's place.

This witness further deposed that only the appellant used to come

in the house and nobody else come there. The appellant contacted

the informant (PW 1) on the pretext of marriage, but she did not

tell about this to her sister and brother-in-law, because her sister

and her brother-in-law did not like the appellant visiting their

house. This witness has further disclosed that she used to go to

market with the appellant but they did not go together. This

witness further deposed that the appellant established physical
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relationship with her on the pretext of marriage, but she used to

resist the physical relationship and always used to tell the appellant

to marry her and in the last the appellant refused to marry with her.

32. This witnesses (PW 1) has denied the suggestion of

the defense that there were many people on visiting terms in the

house of her sister and she has illicit relations with many people.

She has also denied that the appellant is not the father of the child

she gave birth to and had filed this false case to pressurize the

appellant to become her husband.

33. Now, coming to the deposition of the PW 2, Reeta

Devi, the elder sister of the informant (PW 1), she has stated in her

examination-in-chief that the informant is her sister and she has

been living at her house since childhood. The appellant used to

come to the house and had done wrong with the informant and the

appellant has told about marrying the informant. When this witness

went to the house of the appellant to tell about it, his parents

attacked us. A panchayat was conducted. The appellant accepted in

the panchayati that he would marry, but his parents did not accept.

One child was born. This witness claimed to identify the appellant,

who was present.

34. In the cross-examination, PW 2 has stated that the

informant is 16 years old and the appellant told her that he had
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illicit relations with the informant, but the informant never

disclosed this fact. When the appellant told her, she had scolded

and beaten the informant. This witness has further deposed that

nobody, except the appellant, used to come to the house. When the

child was born, the appellant was pressurized, who told to marry

the informant.

35. This witness (PW 2) has denied the suggestion

advanced on behalf of the defense that the appellant had no illicit

relationship with the victim-informant and it is not true that the

child is not of the appellant and this false case has been filed to

pressurize the appellant.

36. PW3, an independent witness, in his examination-in-

chief, has stated that he did not know much about the incident and

he heard that the informant was pregnant with the appellant, upon

which a panchayati was conducted, in which the appellant and his

parents accepted the fact of marriage, but they refused the

marriage. When the informant gave birth to the appellant’s child,

she was 17-18 years old. This witness had identified the appellant,

who was present.

37. In his cross-examination, PW 3 has deposed that he

had heard about the incident and did not see the incident taking

place.
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38. This witness (PW 3) has denied the suggestion of

behalf of the defense that he had given false statement at the

behest of the informant.

39. PW 4 (the doctor), Dr. Nutan Sinha, had examined

the victim-informant on 24.11.2014. She has deposed that at the

time of examination, the size of the uterus was 36 to 38 weeks and

she had identified her signature on the medical examination report,

which has been marked as Exhibit-3.

40. Though this witness (PW 4) has been cross-

examined by the defense, but nothing relevant came out of it.

41. The last witness examined on behalf of the

prosecution is the Investigating Officer (PW 5) of this case. This

witness has deposed that on 24.11.2014, he was posted as Assistant

Sub-Inspector of Police, in Kalyanpur Police Station and after

registration of the case, he was given the charge of investigation by

the Station House Officer. This witness took over the charge of

investigation and during investigation, he recorded the statements

of the informant, Rita Devi, Rajesh Prasad and one another person.

This witness further deposed that the medical examination of the

informant was conducted at Motihari Sadar. After completion of

investigation, he has submitted charge sheet against the appellant
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on 20.02.2015, under Sections 493 and 376 of the Indian Penal

Code.

42. This witness (PW 5) was cross-examined and in his

cross-examination, he has deposed that except the informant, none

of the witnesses had seen the incident with their own eyes and they

are hearsay witnesses. This witness had not submitted charge sheet

under the penal sections of the Protection of Children from Sexual

Offences Act, 2012. The informant was six months pregnant

during the medical examination. The informant and the appellant

were not living as husband and wife. PW. 2 and the brother-in-law

of the informant did not know about the physical relationship

before the pregnancy of the informant. This witness has further

deposed that he was not aware as to whether the sample of blood

of the informant was taken or not at the time of medical

examination and he did not investigate the case on point of the

informant having physical relations with other person also. than

the appellant. During investigation, the defense statement of the

appellant was not recorded.

43. After the examination of prosecution witness was

over, three witnesses from the side of the defense were examined,

who are, (i) father of the appellant, (ii) the appellant himself and

(iii) one Dharmdeo Prasad, and all of them have deposed in their
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deposition that this false case has been lodged by the informant

because he lived with her brother-in-law, Dev Kumar Prasad,

whose father, Amir Bhagat, had sold land to the grandfather of the

appellant and he was demanding his land back on the same rate on

which it was sold to the grandfather of the appellant.

44. From the evidence discussed above, it is evident that

the appellant had established physical relationship with the

informant on the pretext of marriage right from the very beginning

and the child given birth by the informant is of the appellant. This

finds strength by the answer given by the appellant under Section

313 (1) (b) of the Code of Criminal Procedure, 1973, that in the

order, dated 08.03.2017, passed by this Court, in Criminal Misc.

No. 9164 of 2017, it was the confession of the appellant before this

Court that the victim-informant is his wife and he is the father of

the child. This factum is also supported by the letter of the

appellant addressed to the learned Trial Court on 29.04.2016, when

he was under judicial custody that the victim-informant is his wife

and he is the father of the child.

45. At one place, i.e. at the time of cross-examination of

the informant (PW 1) on 30.03.2016, the defense was adamant to

prove that the informant had illicit relations with many persons

and the same version changed at the time of recording his
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statement under Section 313 (1) (b) of the Code of Criminal

Procedure, 1973, wherein he confessed that the informant is his

wife and he is the father of the child. The defence has also tried to

give this case a colour of land dispute.

46. The issue of consensual sexual relationship leads to

be question as to whether the victim was actually a minor and

whether her age determination was done in accordance with the

procedure laid down under Section 94 of the Juvenile Justice (Care

and Protection of Children) Act, 2015.

47. With regard to the minority of the victim, no

document was brought on record by the prosecution, i.e. school/

matriculation certificate and/or the date of birth certificate, duly

issued by the Municipality or the Panchayat. The victim has been

directly medically examined, in which the doctor has assessed her

age between 16 and 17 years.

48. The Supreme Court has in many cases have taken the

view that radiological examination for the purpose of age

determination is not very reliable and there is always a possibility

of an error of plus and minus two years.

49. Reliance may be placed on the decisions of the

Supreme Court in the case of Ram Suresh Singh v. Prabhat

Singh and Another, reported in (2009) 6 SCC 681 and Om
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Prakash v. the State of Rajasthan and Another, reported in

(2012) 5 SCC 201. Further, in the case of Rajak Mohammad v.

H.P, reported in (2018) 9 SCC 248, it has also been laid down

that the age determination on the basis of radiological examination

may not be accurate determination and thus sufficient margin on

either side has to be allowed.

50. Paragraph 9 of the Rajak Mohammad (supra) is

being quoted herein below:

“9. While it is correct that the age determined
on the basis of a radiological examination may not be
an accurate determination and sufficient margin either
way has to be allowed, yet the totality of the facts stated
above read with the report of the radiological
examination leaves room for ample doubt with regard
to the correct age of the prosecutrix. The benefit of the
aforesaid doubt, naturally, must go in favour of the
accused.”

51. In the case of Court on its Own Motion Vs. NCT of

Delhi, reported in 2024 SCC OnLine Delhi 4484, the Division

Bench of Delhi High Court framed two questions and answered

the same as under:

“46. As an upshot of our foregoing discussion,
the Reference is answered as under:—
(i) Whether in POCSO cases, the Court is
required to consider the lower side of the age estimation
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report, or the upper side of the age estimation report of
a victim in cases where the age of the victim is proved
through bone age ossification test? Ans : In such cases
of sexual assault, wherever, the court is called upon to
determine the age of victim based on ‘bone age
ossification report’, the upper age given in ‘reference
range’ be considered as age of the victim.
(ii) Whether the principle of ‘margin of error’
is to be applicable or not in cases under the POCSO Act
where the age of a victim is to be proved through bone
age ossification test.
Ans : Yes. The margin of error of two years is
further required to be applied.”

52. Applying such principle laid down by the Supreme

Court and the Delhi High Court, the upper age of the victim is

raised to 19 years and thus the victim can be safely considered to

be major, thereby excluding the applicability of the provisions of

the Prevention of Children from Sexual Offences Act, 2012.

53. So far as the last objection raised by the appellant

with regard to non-placing the incriminating material regarding the

minority of the victim-informant while recording his statement

under Section 313 of the Code of Criminal Procedure is

concerned; from perusal of the statement of the appellant recorded

on 07.03.2018, it would be evident that the question regarding the

age of the informant-victim was placed before him. Though the
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format of examination was under Section 281 of the Code of

Criminal Procedure, but from going through the contents, I find

that the contents are same as of recorded the statement of the

accused under Section 313 of the Code of Criminal Procedure and

mere change in format will of no help to the appellant.

54. In the backdrop of what have been discussed and

pointed out above, I am firmly of the view that the prosecution has

failed to establish the charge under Section 6 of the Prevention of

Children from Sexual Offences Act, 2012, inasmuch as the

informant-victim was major at the time of occurrence.

55. From the consistent case of the prosecution,

specially the deposition of the prosecutrix (informant-victim, PW

1) herself, duly supported by the confession of the appellant before

this Court in the bail application and also before the Trial Court

(through a letter and also in the second statement recorded under

Section 313 of the Code of Criminal Procedure), the prosecution

has established that the appellant established physical relationship

with her on the pretext of marriage right from the very beginning

and there is no lacunae in the recording of the statement of the

appellant under Section 313 of the Code of Criminal Procedure.

56. Section 90 of the Indian Penal Code deals with the

consent and is quoted herein below:
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“90. Consent known to be given under fear
or misconception.—A consent is not such a consent as
is intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception; or
Consent of insane person.—if the consent is
given by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and
consequence of that to which he gives his consent; or
Consent of child.—unless the contrary
appears from the context, if the consent is given by a
person who is under twelve years of age.”

57. In the present case, the consent allegedly obtained by

the appellant by the victim is under misconception of fact, i.e.

under the promise of marriage and as such the consent of the

victim is not a consent under Section 90 of the Indian Penal Code.

58. While this Court maintains the conviction of the

appellant under Section 376 of the Indian Penal Code, I set aside

his conviction under Section 6 of the Prevention of Children from

Sexual Offences Act, 2012.

59. The appellant, having remained in jail custody for

more than seven years one month, as of now, as such, the period
Patna High Court CR. APP (SJ) No.1450 of 2022 dt.12-05-2026
23/23

already undergone by him would suffice the ends of justice and he

is directed to be discharged from the liabilities of his bail bonds.

60. With the modification in conviction and sentence

aforesaid, this appeal is partly allowed.

61. The Registry is directed to return the Lower Court’s

Record forthwith, along with a copy of this judgment.

(Anil Kumar Sinha, J.)
Prabhakar Anand/-

AFR/NAFR AFR
CAV DATE 07-04-2026
Uploading Date 12-05-2026
Transmission Date 12-05-2026

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