Patna High Court
Anjali KumariversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
- Bench
- ALOK KUMAR PANDEY
Holding
The conviction under Section 363 IPC stands with the four‑year rigorous imprisonment sentence affirmed, and no conviction under Section 12 POCSO is made; the appeal is dismissed.
Summary
The appellant, a minor girl, was allegedly taken away by the respondent Jitendra Kumar (Kunkun) without parental consent. The trial court convicted the respondent under Section 363 of the IPC and sentenced him to four years’ rigorous imprisonment, acquitting him of other charges including Section 12 of the POCSO Act. On appeal, the victim sought enhancement of the sentence and addition of the POCSO charge, arguing that the respondent had sexually assaulted her. The High Court examined the credibility of witness statements, noting numerous inconsistencies and improvements in testimonies that were not recorded during investigation, and found the medical evidence did not support any sexual assault. It held that while the core kidnapping of a minor was proved, there was no material to sustain a conviction under Section 12 POCSO, and the victim could not appeal for a harsher sentence. Consequently, the court affirmed the conviction and sentence, dismissing the appeal.
Issues considered
- Whether the sentence awarded under Section 363 IPC should be enhanced.
- Whether the facts constitute an offence under Section 12 of the POCSO Act.
- Whether the victim has a right to appeal for enhancement of sentence under the Criminal Procedure Code.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 161, 164, 372, 377
- Indian Penal Code — s. 363, 366, 366A
- Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 94
- Protection of Children from Sexual Offences Act, 2012 — s. 12
Subjects
- kidnapping of minor
- Section 363 IPC
- POCSO Act
- sentence enhancement
- victim appeal rights
- age determination
- witness credibility
- medical evidence
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1724 of 2025
Arising Out of PS. Case No.-39 Year-2022 Thana- DIGHA District- Patna
======================================================
XXXXXXXXXXXXXX
... ... Appellant
Versus
1. The State of Bihar
2. Jitendra Kumar @ Kunkun S/o Shivjee Rai R/o Sadilopur, Mahanar Road,
Hajipur, P.s.- Jadua, Distt.- Vaishali
... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. Ajay Kumar, Advocate
Mr. Awadhesh Kumar, Advocate
For the State : Mr. Ramchandra Singh, A.P.P.
For the Respondent No.2: Mr. Ramji Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
CAV JUDGMENT
Date : 20-01-2026
Heard learned counsel for the appellant/victim,
learned Additional Public Prosecutor for the State and learned
counsel for the Respondent No. 2.
2. The name of the appellant/victim has not been
disclosed in the present judgment to protect her privacy, prestige
and dignity.
3. The present appeal is directed against the
judgment of conviction dated 20.01.2025 and order of sentence
dated 24.01.2025 passed by learned Additional Sessions Judge –
VIth cum Special Judge, POCSO Act, Patna in Special Sessions
Trial POCSO Case No. 75 of 2022, arising out of Digha P.S.
Case No. 39 of 2022 whereby and whereunder the respondent
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no. 2/ Jitendra Kumar @ Kunkun has been convicted for the
offences punishable under Section 363 of IPC and has been
sentenced to undergo rigorous imprisonment for four years
along with fine of Rs. 5,000/- under Section 363 of IPC and in
case of default of payment of fine, respondent no. 2 has to
further undergo simple imprisonment for two months and
further with a prayer that the sentence under Section 363 of IPC
may be enhanced and Section 12 of POCSO Act should be
added.
4. As per prosecution case, informant (PW-2)
who is mother of appellant/victim, has filed a written statement
before SHO, Digha that on 19.01.2022, appellant/victim aged
about 15 years left the house for coaching at around 9 AM but
she did not return home. It is alleged that the respondent no. 2 is
alleged to have taken away the appellant/victim who had been
residing at the house of informant since two years.
5. On the basis of written statement filed by the
informant, Digha P.S. Case No. 39 of 2022 was registered under
Sections 363/366A of the IPC. Routine investigation followed.
Statement of witnesses came to be recorded and on the
completion of investigation, charge sheet was submitted against
the respondent no. 2 under Sections 363, 366(A), 366 of the
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IPC. Thereafter, the learned trial court took cognizance. The
case was committed to the court of sessions after following due
procedure. The learned trial court framed charges against the
respondent no. 2 under Sections 363, 366(A), 366 of the IPC
and Section 12 of the POCSO Act, 2022. Charges were read
over and explained to the respondent no. 2 to which he pleaded
not guilty and claimed to be tried.
6. In order to bring home the guilt of the accused
person, prosecution has examined all together six witnesses.
PW-1 appellant/victim, PW-2 mother of appellant (informant),
PW-3 father of appellant, PW-4 maternal uncle of appellant,
PW-5 Rajeev Ranjan Kumar (Investigating Officer) and PW-6
Dr. Abhilasha Kumari (doctor).
7. Prosecution has relied upon following
documentary evidence on record:-
Ext. P-1/PW-1- Signature of
appellant/victim on statement
recorded under Section 164 of
Cr.P.C.
Ext. P-2/PW-2- Written application
submitted before the police
Ext. P-3/PW-5- Registration of case
on written application
Ext. P-4/PW-5- Formal FIR
Ext. P-5/PW-5- Memo of arrest
Ext. P-6/PW-5- Charge sheet
Ext. P-7/PW-6- Medical Report
Ext. P-8- Certificate of matric-
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cum- mark sheet
Ext. P-9- Statement of
appellant/victim recorded under
Section 164 of Cr.PC.
8. However, the defence of the respondent no. 2
as gathered from the line of cross examination of prosecution
witnesses as well as from the statement under Section 313 of the
Cr.P.C. is that of total denial.
9. After hearing the parties, the learned trial
court convicted the respondent no. 2 and sentenced him as
indicated in the opening paragraph of the judgment.
10. The following submissions have been made
on behalf of learned counsel for the appellant/victim :-
11. The learned counsel for the appellant/victim
submits that he is aggrieved that the sentence awarded to
respondent no. 2 by the learned trial court is inadequate and the
quantum of sentence should be maximized. He further submits
that respondent no. 2 is neither convicted under Section 12 of
the POCSO Act nor sentence has been awarded to him under
the said Section. He further submits that the age of the
appellant/victim has already been proved in accordance with the
statutory provisions by the concerned court. It has been
submitted that the age of appellant/victim is not in dispute in
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present case as no objection was raised at this point on behalf of
the defence counsel and the concerned court, after an elaborate
discussion of the relevant statutory provisions, has given a
finding that appellant/victim was found to be minor. From the
perusal of statement of appellant/victim recorded under Section
164 of Cr.P.C and her statement while adducing evidence before
Court, it is crystal clear that on the point of taking away the
appellant/victim, the statement was quite consistent that
appellant/victim was taken away by the respondent no. 2 and the
appellant/victim is a minor and appellant/victim was taken
without taking consent of the lawful guardian. It has been
submitted that though PW-2 and 3 are guardians, they have
already admitted that appellant/victim has been taken away. On
the point of taking consent, PW-2 and PW-3 have already put
their grievances. Informant has already admitted that she has
lodged FIR against the respondent no. 2 regarding taking away
of her minor child. It has been submitted that PW 3 (father of
appellant/victim) has also asserted the same statement on the
point of taking away the appellant/victim. The statements of PW
5 (Investigating Officer) are consistent and at last
appellant/victim was recovered from Bairgania Border. In this
way, there is no reason to differ from the finding of the
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concerned court that the appellant/victim was minor and no
consent was taken from the lawful guardian who have already
adduced their evidences before the Court that appellant/victim
has been taken away by the respondent no. 2. It has been
submitted that appellant/victim has also asserted the same
statement that she was being taken away by the respondent no.
2. Learned counsel further submits that the learned trial court
has erred in not awarding the maximum punishment under
Section- 363 of IPC and not convicting the respondent No. 2
under Section-12 of POCSO Act. Hence, learned counsel for the
appellant/victim prays to enhance the sentence under Section-
363 of IPC and convict the respondent No. 2 under Section 12
of the POCSO Act.
12. Learned counsel for the Respondent No. 2
submits that the statement of appellant/victim has been
improved from the earlier statement recorded under Section 164
of the Cr.P.C. and the statement of PW-3 (father of the
appellant/victim) regarding providing chips and cold drinks to
the appellant/victim, and she was given intoxicated materials
and appellant/victim was forced by the respondent no. 2 to
commit wrongful act, is totally inconsistent with the statement
of the PW-5 who is the Investigating Officer of the case. PW-3
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has improved his statement from earlier statement which was
recorded by the Investigating Officer (PW-5) and the same is
evident from the cross-examination of Investigating Officer as
to how the father of the appellant/victim has improved his
earlier statement recorded under Section 161 of Cr.P.C. He
further submits that PW-2, who is the informant of the case, has
improved her version at the time of adducing evidence which
was not recorded when she made her statement before the
Investigating Officer (PW-5). He further submits that the
statement of Investigating Officer is quite evident as to how the
mother of the appellant/victim has changed her earlier statement
at the time of adducing evidence before the court. The statement
of Investigating Officer (PW-5) is quite evident as to how the
statement of appellant/victim has been improved at the time of
adducing evidence. He further submits as to how the statement
of father of appellant/victim has been improved though it was
clearly absent when the statement was recorded by Investigating
Officer and the mother of appellant/victim, who is the informant
of the case, as to how she has changed her earlier statement at
the time of adducing evidence. In this way, their statements are
full of inconsistencies, discrepancies and infirmities. Thus,
learned counsel for the respondent no. 2 submits that
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prosecution has failed to prove the case beyond the reasonable
doubt and the concerned court has also recorded the reasoning
as to how the prosecution has failed to prove the case under
Section 12 of the POCSO Act. In this way, the prosecution has
failed to prove the case under Section 363 of IPC and Section-
12 of POCSO Act.
13. The learned counsel for the State submits
that the judgment of conviction and order of sentence passed by
the learned trial court are justified and legal as the same have
been passed on the basis of material available on record.
Hence, no interference is needed.
14. The question which arises for consideration
is:-
"Whether the sentence awarded under
Section-363 of IPC requires to be enhanced and
whether offence under Section 12 of POCSO Act is
made out against respondent No.2 in the light of given
facts and circumstances of the case or not ?"
15. I have perused the impugned judgment,
order of trial court and trial court records. I have given my
thoughtful consideration to the rival contention made on behalf
of the parties as noted above.
16. It is necessary to evaluate, analyze and
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screen out the evidences of witnesses adduced before the trial
court.
17. It is necessary to discuss the evidence of
appellant/victim who is said to have been taken away by the
respondent no. 2 and her statement is recorded under Section
164 of Cr.P.C. which is as follows:-
“On 19.01.2022 at about 9 AM, she proceeded
for coaching and she has stated that Respondent No. 2 -Jitendra
Kumar was working under his papa and in the way, the
respondent no. 2 made an offer for tour when the
appellant/victim replied regarding permission from house upon
which the respondent no. 2 replied that he had taken permission
from appellant/victim’s father and the appellant/victim sat on
cab with respondent no. 2 by relying on the said version of
respondent no. 2 and both went to Hajipur station and thereafter
they went to Delhi and from Delhi to Gurgaon and finally went
to Kathmandu, Nepal for touring purpose. The appellant/victim
requested for returning to her house upon which Kunkun/
respondent no. 2 denied on one or another pretext. In para 6,
appellant/victim has stated that she saw the facebook post of her
mother and the respondent no. 2 made arrangement to
communicate with appellant/victim’s mother and
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appellant/victim’s mother was weeping and the respondent no. 2
dropped the appellant/victim on India-Nepal border at the behest
of appellant/victim and the appellant/victim’s mother took her to
Patna and she has stated in para 7 that respondent no. 2 has not
committed any wrong with her. She has stated that she came
with her parents and she desired to go with them.”
18. PW-1 (X) is the appellant/victim of the
present case and her statement during the course of adducing
evidence is totally different from what she has asserted in her
statement under Section 164 of Cr.P.C. as in her statement
under Section 164 of Cr.P.C. she has stated that when she was
going to her coaching, the respondent no. 2 met her and offered
her for tour, but while adducing her evidence before the Court
she has improved her version and has stated that Jitendra
Kumar/respondent no. 2 was present with vehicle on the way
and he prevented the appellant/victim from going to the
coaching and he stated that on the said date coaching was closed
and her father had asked him to bring the appellant/victim back.
Believing his statement, appellant/victim sat in the said cab and
respondent no. 2 gave lays and Thums Up and after that she did
not remember anything. When she regained consciousness, she
heard the sound of train and after that when she opened her eyes
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she found herself at the lonely place at a room and the room was
closed. After calling repeatedly, the respondent no. 2 came and
he gave food to the appellant/victim. She always asked the
respondent no. 2 to take her home but respondent no. 2 did not
take her to her home. In para 3, she has stated that about after 14
days, respondent no. 2 stated to drop the appellant/victim at her
house. She has stated that she had been residing with the
respondent no. 2 for five months. She has stated that first of all
the respondent no. 2 brought her in Delhi, thereafter, Motihari
then took away to Nepal. During the said period, the respondent
no. 2 gave threatening to appellant/victim that he would kill the
father and brother of appellant/victim. In para 5, she has stated
that respondent no. 2 has tortured the appellant/victim mentally
and emotionally. In this way, the said version of the
appellant/victim is inconsistent with her statement recorded
under Section 164 of Cr.P.C. Further, in examination-in-chief,
she has stated that respondent no. 2 touched her and did
indecent behavior against her whereas in cross-examination, she
has stated that respondent no. 2 did not commit any wrong act,
prior to 19.01.2022. She has stated that police had got her
statement recorded under Section 164 of Cr.P.C. before the
learned Magistrate upon which she put her signature which is
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marked as Exhibit P/1-PW1. She has stated that after many days
of returning home, she told her mother about the incident. The
statement of appellant/victim with regard to giving Thums up
and Lays was totally inconsistent with the statement recorded
under Section 164 of Cr.PC. During the course of statement
recorded under Section 164 of Cr.P.C., in para 7 she has stated
that respondent no. 2 has not committed anything wrong against
her and she has admitted that respondent no. 2 left her at India-
Nepal border at the behest of the appellant/victim but during the
course of adducing evidence before the Court, appellant/victim
has improved her statement that respondent no. 2 parked the
vehicle in the way and he was standing there and stopped the
appellant/victim and told her that her coaching was closed on
that day. The said version was totally inconsistent with the
version recorded by the appellant/victim under Section 164 of
Cr.P.C.
19. PW-2 :- She is the mother of the
appellant/victim and informant of the present case. In para 2,
she has stated that her daughter (appellant/victim) had gone to
coaching at 8 AM. At 1:06 PM, she received a message from the
respondent no. 2 stating that he was taking the appellant/victim
away and that she (PW2) should not search for them. She
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further stated that the respondent no. 2 was taking the
appellant/victim away from her (PW-2) and that respondent no.
2 had been in love with the appellant/victim for the past
eighteen months. The statement of PW-2, who is informant of
the case, is quite inconsistent with the version of Investigating
Officer (PW-5). PW-2 has supported the initial version of
prosecution story that the appellant/victim went to coaching in
the morning but she has improved her version by stating that she
received one message from respondent no. 2 that he took
informant’s/PW-2 daughter and it was told that respondent no. 2
was in love with informant’s daughter since eighteen months.
She has made effort to search her daughter and in para 9, she
has stated that her daughter (appellant/victim) was found sitting
under a tree near Bairgania border and she was frightened and
after that she came to civil court with her
daughter(appellant/victim). In para 13, PW-2 has stated that
appellant/victim has stated all things to her that had happened
against her. She has stated that appellant/victim has pointed out
that respondent no. 2 used to assault and behaved indecently
with the appellant/victim and respondent no. 2 did not provide
food and keep the door closed and tried to persuade to make
physical relationship. She has stated that age of appellant/victim
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at the time of occurrence is 15 years and 3 months and the date
birth of appellant/victim on school certificate is mentioned as
15.09.2006. During the course of cross-examination, she has
stated that respondent no. 2 took away her daughter and on the
point of taking away her daughter, statement of PW-2 is quite
intact and there is no reason to disbelief the statement of
informant who has stated in the initial version of prosecution
story that respondent no. 2 is said to have taken away her
daughter and during her deposition before the Court that
informant’s daughter has been taken way by the respondent no.
2 and age of appellant/victim has been pointed out on the basis
of certificate issued by school.
20. PW-3 is father of the appellant/victim and
he has also stated that appellant/victim went to coaching and he
received a call from his wife who informed him that respondent
no. 2- Jitendra Kumar @ Kunkun sent a message on her mobile
that respondent no. 2 had taken away appellant/victim. On the
basis of message of his wife received on mobile, PW-3 has
stated that he made contact with the mother and father of
respondent no. 2 and both of them started abusing PW-3. Then,
PW-3 went to the house of respondent no. 2 and the family
members of respondent no. 2 started abusing him and stated that
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respondent no. 2 would marry the appellant/victim. PW-3
returned back and the PW-3 has stated that in para 6, after about
four months, the appellant/victim called her mother through
unknown mobile number and told her mother that
appellant/victim was at Bairgania Border, Nepal and on the
basis of said information, wife of PW-3 went to Bairgania
border and appellant/victim was brought to Patna and statement
of appellant/victim under Section 164 of Cr.P.C. was recorded
before the Magistrate. He has stated that appellant/victim was
nervous and after 10 to 15 days appellant/victim told her mother
regarding the incident which had happened against her. He has
stated in para 8 that appellant/victim has stated to her mother
that respondent no. 2 used to assault and made indecent
behavior and used to administer medicine to develop the body
of appellant/victim as adult so that respondent no. 2 could marry
the appellant/victim. He further stated in para 9 that
appellant/victim has stated that cold drink was given by the
respondent no. 2 and chips were also provided and after taking
the said drink and chips she became unconscious and after
gaining consciousness she found herself in Delhi. He has stated
that appellant/victim was in Delhi and she was placed in a room
where one woman resided. He has stated that the respondent no.
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2 took away the appellant/victim from Delhi to Nepal and he
has stated that respondent no. 2 had made some indecent
behavior and used to feed intoxicated medicine. In para 4 of the
examination in chief of PW-3, PW-3 has stated that he went to
the house of respondent no. 2 where all the family members of
the respondent no. 2 started abusing him and all the family
members told P.W-3 that the accused would marry the
appellant/victim but the IO (PW-5) during the course of cross-
examination, in para 20, has stated that PW-3 had not stated
before him that when PW-3 went to the house of respondent no.
2, all the family members started abusing and made indecent
behavior with PW-3 but the said version of PW-3 is quite
inconsistent with the version of PW-5 who is the Investigating
Officer (PW-5) as mentioned in para 20. The statement
regarding providing the cold drinks and chips to the
appellant/victim was not stated before the Investigating Officer
by PW-3. The statement of taking appellant/victim from Delhi
to Nepal was also not stated by this witness to Investigating
Officer (PW-5). PW-3 who has stated in para 11 that respondent
no. 2 used to talk his brother, father, mother, brother-in-law and
cousin through phone and internet but the appellant/victim was
not allowed to talk to anyone but during the course of cross-
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examination of PW-5 (Investigating Officer), it has been
clarified in para 27 that PW-3 had not made any statement
before him as he had stated in para 11 while adducing evidence
during the course of examination in chief.
21. From the deposition of father of
appellant/victim (PW-3), it is evident that despite being
embellishment and improvisation in the version of PW-3, it is
clear that respondent no. 2 has taken away the appellant/victim
without consent of the father of the appellant/victim (PW-3) and
the said statement is quite intact with the statements of other
prosecution witness, appellant/victim as well as
appellant/victim’s mother (PW-2).
22. PW-4 is the maternal uncle of the
appellant/victim. He has stated that appellant/victim’s mother
(PW 2) is informant of the case, is also his sister, called him
around 2 PM that respondent no. 2 had fled with the
appellant/victim. He further stated that he went to
appellant/victim’s home and his sister told him that respondent
no. 2 had taken him away. In para 3, he has stated that the
appellant/victim’s mother went to thana for lodging the FIR. In
para 4, he has stated that on 22.05.2022, appellant/victim’s
mother called and informed him that the appellant/victim had
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been found and was at the Nepal border. He further stated that
he went to appellant/victim’s house and then, went to the Nepal
border with the appellant/victim's mother. In para 6, he has
stated that he did not know about as to how many days
appellant/victim lived with the respondent no. 2. In para 7, PW-
4 has stated that appellant/victim did not tell about the incident
to him. He further stated that appellant/victim told her mother
about the incident. During the course of cross-examination, in
para 26 he has stated that appellant/victim has not stated
anything regarding the occurrence till today.
23. PW- 5 (Rajeev Ranjan Kumar) is the
investigating officer of the present case and he got the charge of
investigation of Digha P.S. Case No. 39 of 2022. In para 4, he
has stated that after getting charge of investigation, he recorded
the statement of informant and inspected the place of occurrence
which is the house of informant situated in Ramjichak Mohalla
under Digha Police Station. In para 7, PW-5 has stated that he
has also recorded the statement of father of appellant/victim
and maternal uncle of the appellant/victim. In para 9, he has
stated that on 20.01.2022, he verified the age of appellant/victim
and her date of birth, according to her school certificate, was
found to be 15.09.2006. During the course of cross-examination,
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in para 19, PW-5 has stated that PW-3 has not stated before him
that PW-3 had made a phone call to the mother of respondent
no. 2 to inform her about the incident, then, mother of
respondent no. 2 told that her son was not of such a nature who
could take away the appellant/victim. In para 20, PW-5 has
stated that PW-3 has not stated before him that when PW-3 had
gone to the house of respondent no. 2, the entire family of
respondent no. 2 began abusing PW-3 and they claimed that the
accused would marry the daughter of PW-3. Thereafter, PW-3
left. In para 21, PW-5 has stated that PW-3 has not stated before
him that PW-3 repeatedly visited police station to report the
incident. It is also not pointed out before PW-5 that during that
period, the respondent no. 2 had changed thirty mobile SIM
cards and four email IDs. In para 22, PW-5 has stated that PW-3
has not stated before him that after about four months, the
appellant/victim called her mother through an unknown mobile
number and told her mother that she was at the Bargania border
in Nepal and upon this information, wife of PW-3 went to the
Bargania border to get the appellant/victim back and brought her
to Patna. It is also not pointed out before PW-5 that after
arriving Patna, appellant/victim was brought to the Civil Court,
Patna and the Investigating Officer of the Digha Police Station
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was informed about the appellant/victim. In para 23, PW-5 has
stated that PW-3 has not stated before him that the
appellant/victim was very nervous and thereafter about ten to
fifteen days later, the appellant/victim gradually told her mother
(PW-2) everything about the incident. In para 24, PW-5 has
stated that PW-3 has not stated before him that the
appellant/victim told her mother that the respondent no. 2 had
repeatedly beaten her and sexually assaulted her and the
respondent no. 2 had also confined the appellant/victim to a
room and administered a medicine to develop the body of
appellant/victim as adult so that the respondent no. 2 could
marry the appellant/victim. In para 25, PW-5 has stated that PW-
3 has not stated before him that the appellant/victim told PW-3
that respondent no. 2 had provided her cold drink and chips in
Patna, after which she had become unconscious. It is also not
pointed out before PW-5 that when appellant/victim regained
consciousness, she was in Delhi and in Delhi, a woman also
lived in the room where the appellant/victim was kept. It is not
stated before PW-5 that before arriving the said place, accused
had sent money to the woman’s bank account, of which
appellant/victim had proof. In para 26, PW-5 has stated that PW-
3 has not stated before him that the respondent no. 2 took the
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appellant/victim from Delhi to Nepal and respondent no. 2 kept
the appellant/victim in a room in an unknown house in Motihari
for approximately 14-15 days, where appellant/victim was
subjected to sexual misconduct and administered intoxicated
medicines. In para 27, PW-5 has stated that PW-3 has not stated
before him that the respondent no. 2 spoke daily with his
brother, father, mother, brother-in-law and cousin through phone
and internet and the respondent no. 2 did not allow the
appellant/victim to speak to anyone. In para 28, he has stated
that PW-3 has not stated before him that when the
appellant/victim used to ask for the mobile phone from the
respondent no. 2, the respondent no. 2 did not give the mobile
phone to her and used to assault the appellant/victim. During the
course of cross-examination in para 32, PW-5 has stated that
appellant/victim has not stated before him that respondent no. 2
used to threaten the appellant/victim to kill her father and
brother. During the course of cross-examination in para 33, PW-
5 has stated that appellant/victim has not stated before him as to
what happened with her and appellant/victim has also not stated
as to how many places the respondent no. 2 had taken her and
appellant/victim has also not pointed out regarding the treatment
meted out to her by the respondent no. 2. appellant/victim has
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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also not pointed out before PW-5 as to how the respondent no. 2
kept her and she has also not pointed out that she was
threatened. In para 34, PW-5 has stated that informant (PW-2)
has not stated before him that informant’s daughter was being
taken away to distant place from her. It is also not pointed out
before PW-5 that respondent no. 2 was in love with the
informant’s daughter for eighteen months and respondent no. 2
would never return informant’s daughter. In para 35, PW-5 has
stated that informant of the case has not stated before him that
when informant read the message, she made phone call to
respondent no. 2’s mother to which respondent no. 2’s mother
did not give any direct reply and started making excuses. In para
36, PW-5 has stated that informant of the case has not stated
before him that she made phone call to father, brother and
brother-in-law of respondent no. 2 but no one gave satisfactory
reply. In para 37, PW-5 has stated that informant of the case has
not stated before him that she continuously searched her
daughter and she went to the house of respondent no. 2 but
family members of respondent no. 2 replied that
appellant/victim was not of good nature and she went away with
the respondent no. 2 due to love affair. In para 39, PW-5 further
stated that informant (PW-2) has not stated before him that
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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informant proceeded for Bairgania border where she found her
daughter under a tree who was frightened and was weeping. In
para 40, PW-5 further stated that informant has not stated before
him that the appellant/victim was not feeling well and it took
her fifteen days to recover from illness. In para 41, PW-5 has
stated that informant of the case has not stated before him that
respondent no. 2 used to assault the appellant/victim and used to
make indecent behavior with her and respondent no. 2 did not
provide food and put her behind the closed room and asked her
to establish physical relationship. It is also not pointed out
before PW-5 by the informant (PW-2) that respondent no. 2
used to talk with his father, brother, brother-in-law but did not
allow the appellant/victim to talk with anyone. In para 43, PW-5
has stated that neither the mother of appellant/victim nor the
appellant/victim gave any statement before him after fifteen
days of the appellant/victim’s recovery. In para 53, PW-5 has
stated that appellant/victim did not give any statement before
him that she was not fit mentally and physically so that her
statement could be recorded.
24. During the course of cross-examination of
Investigating Officer (PW-5), it is clarified by him that the
statement of father of appellant/victim i.e. from paragraph 19 to
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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28, is not corroborated on the point of nervousness of the
appellant/victim, visiting the house of respondent no. 2,
providing cold drinks and feeding chips, administering
intoxicated medicines, taking away the appellant/victim from
Delhi to Nepal, talking of respondent no. 2 to his father, mother,
brother and brother-in-law through internet and on the point of
assaulting the appellant/victim. In this way, statement of PW-3
is of no significance in the light of the improved statements as
adduced during the trial.
25. During the course of cross-examination of
PW-5, it is also found that statement of mother of
appellant/victim (PW-2) is quite contradictory on the point of
manner of occurrence, nervousness of the appellant/victim,
visiting the house of respondent no. 2, talking of respondent no.
2 to his father, mother, brother and brother-in-law through
internet, assaulting the appellant/victim, recovery of
appellant/victim and on the point of the treatment meted out to
the appellant/victim. In this way, statement of PW-2 is also of no
significance in the light of the improved statements as adduced
during the trial.
26. During the course of cross-examination of
PW-5, it is also found that statement of appellant/victim (PW-1)
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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is quite contradictory on the point of the threatening the
appellant/victim to kill her father and brother and on the point of
treatment meted out to the appellant/victim by the respondent
no. 2. In this way, statement of PW-1 is also of no significance
in the light of the improved statements as adduced during the
trial.
27. PW-6 is Dr. Abhilasha Kumari. She stated
that on 22.05.2022 she was posted at Sub Divisional Hospital,
Danapur as medical officer and on the same day she examined
the appellant/victim (PW-1) and made following observations:-
External Examination:-
No sign of external injury all over the
body and private part.
Abdomen was found soft
non-tender within normal limit.
4. Per Vaginal
Examination- No injury over vulva
vagina and monspubis, hymen not intact,
no any bleeding or semen discharge
around vagina, U.P.T. not done. No
undergarments with appellant/victim, no
signs of blood over cloth, High vaginal
soft taken, slides taken to P.M.C.H. for
determination of spermatozoa. Patient
sent to P.M.C.H. Patna for U.S.G. lower
abdomen for internal injury.
5. Received report from
P.M.C.H. Report of P.M.C.H.-High
Vaginal swab no. 68 dated 26.05.2020,
reference no. 744 al 25.05.2022 and
reference no. 105 dated 26.05.2022 and
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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it shows spermatozoa not found.
6. Report of P.M.C.H.-
Lower U.S.G. Abdomen- U.S. 22 dated
26.05.2022 showed normal size uterus
and measure 7.2x2.8 cm. No evidence of
gestational sac, no free fluid in P.O.D.
According to U.S.G. No evidence of
pregnancy.
7- Report of P.M.C.H.
Radiology- X-ray of both elbow A.P. view
complete fusion of epiphyses of the
medial epichondyle of humerus.
Complete fusion of epiphyses of head of
radius on both sides. In females
epiphyses of the medial epichondyle of
humerus and epiphyses of head of radius
on both sides fuses at the age of 14 years.
8- X-ray both wrist (A.P.
view)- Incomplete fusion of distal ulnar
epiphyses on both sides. Incomplete
fusion of distal radial epiphyses on both
sides. In females the distal ulnar
epiphyses fuse at the age of 17 years.
Female distal radial epiphyses fuses at
the age of 16.5 years.
9- X-ray Pelvis (A.P.
view) Non fusion of the epiphyses of the
iliac crest on both sides. In females the
iliac crest epiphyses appear at the age of
14 years fuses at the age of 17-19 years.
10. X-ray :- There is non
fusion of the medial and ephysises of the
clavicle on both sides. In females, the
ephysises of the medical end of clavicle
appears at the age of 14-16 years and
fuse at the age of 20 years.
Conclusion:-
Age of
appellant/victim :- 14-16 years.
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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As there is no sign of
external or internal injury all over the
body or private part. No spermatozoa
found in High Vaginal Swab slide. It is
difficult to say whether rape has
occurred or not.
28. On the basis of medical evidence, it is
crystal clear that no sexual offence has been committed by the
respondent no. 2 against the appellant/victim.
29. The date of occurrence in the present case
is 19.01.2022. It is pertinent to note that Act of 2007 has been
repealed by the Juvenile Justice (Care and Protection of
Children) Act, 2015, (‘The Act of 2015’ for short). Section 94 of
the Act of 2015 lays down the procedure for determining
juvenility. Relevant part of sub-section (2) of Section 94, which
provides substantially similar procedure as was prescribed under
2007 Rules, reads as under:-
“(i) the date of birth
certificate from the school, or the
matriculation or equivalent
certificate from the concerned
examination Board, if available;
and in the absence thereof;
(ii) the birth certificate
given by a corporation or a
municipal authority or a
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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panchayat;
(iii) and only in the
absence of (i) and (ii) above, age
shall be determined by an
ossification test or any other latest
medical age determination test
conducted on the orders of the
Committee or the Board:
Provided such age
determination test conducted on
the order of the Committee or the
Board shall be completed within
fifteen days from the date of such
order.”
30. In the present case, in para 14 of the
examination in chief, PW-2 has specifically pointed out that the
age of appellant/victim at the time of occurrence is 15 years and
3 months and she has also disclosed that the date of birth of
appellant/victim i.e. 15.09.2006 has been recorded on the basis
of school certificate. PW-3 (father of appellant/victim) has also
pointed out in para 13 that the date of birth of appellant/victim is
15.09.2006 and he has also stated that the age of
appellant/victim is 15 years and 3 months at the time of
occurrence and the same was verified by PW-5 (Investigating
Officer).
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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31. Apparently, nothing was disputed by the
defence regarding the Exhibit P-8 and the learned trial court
while determining the age of appellant/victim, had discussed the
statutory provisions and it has been determined as 15 years 4
months and 4 days and the appellant/victim was found to be
minor.
32. From the perusal of statements of all the
prosecution witnesses, it is crystal clear that appellant/victim
has been taken away by the respondent no. 2 and
appellant/victim is minor and there is no reason to disbelieve the
said fact but other allegations which were added and the
statements that have been improved by all the other prosecution
witness cannot be taken into account as the Investigating Officer
(PW-5) of the case has clearly stated that during the course of
cross-examination neither the appellant/victim nor PWs-2 and 3
have made such statements before the Investigating Officer
which was first time made before the Court.
33. In order to attract the offence committed
under Section 363 of IPC, following are the essential
ingredients that must be satisfied:-
(i) taking or enticing a minor
(ii) from the lawful guardianship of
appellant/victim parents or guardians;
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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(iii) without their consent.
34. The statement of appellant/victim is that
respondent no. 2 persuaded her to sit on cab without permission
of lawful guardian, in that situation, at the very juncture, the
respondent no. 2 committed the offence under Section 363 of
IPC as there is nothing on record to show that respondent no. 2
has taken permission from lawful guardian and without having
permission from guardian, the appellant/victim was being
deprived from lawful guardian. At that juncture, the respondent
no. 2 has committed the offence under Section 363 of IPC. The
very statement of regaining consciousness was not found in the
early statement regarding under Section 164 of Cr.P.C. From the
version of appellant/victim, it is crystal clear that respondent no.
2 and appellant/victim both left house and respondent no. 2
being major without consent of lawful guardian took away the
appellant/victim and appellant/victim is minor.
35. The statement of appellant/victim cannot be
disbelieved but in order to constitute the offence under Section
363 of IPC the appellant/victim must be minor and she must be
taken away without consent of guardian.
36. The learned trial court while deciding the
age of appellant/victim on the basis of Marks Statement cum
Certificate, Secondary School Examination, 2021 issued by
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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Central Board of Secondary Education which is marked as Ext-
P/8 where the date of birth is indicated as 15-09-2006, has given
the finding on the basis of statutory requirement and the learned
trial court has recorded in para 19 of the impugned judgment
that the appellant/victim was minor on the alleged date of
occurrence on the basis of certificate issued by Central Board of
Secondary Education on the alleged date of occurrence which is
exhibited as Exhibit P-8. Hence, there is no reason to differ from
the finding given by the concerned court.
37. A careful scrutiny of the evidence of PW-1
(appellant/victim), PW-2 (informant-mother) and PW-3 (father),
when tested against the testimony of PW-5, the Investigating
Officer, reveals that several material facts deposed for the first
time before the Court were never stated to the Investigating
Officer under Section 161 Cr.P.C. These omissions are not
minor but strike at the root of credibility, as they relate to the
manner of occurrence, alleged intoxication, sexual misconduct,
threats, confinement, recovery and subsequent conduct of the
accused.
38. The Investigating Officer has categorically
stated during cross-examination that none of the following
allegations were disclosed to him:
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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(i) That the appellant/victim was forcibly
stopped on the way, misled by a false assertion that coaching
was closed, or induced by stating that permission had been
obtained from her father.
(ii) That the appellant/victim was administered
cold drinks, chips or any intoxicating substance, resulting in loss
of consciousness.
(iii) That the appellant/victim was subjected to
sexual assault, indecent behaviour, confinement, or forced
physical relations, or that medicines were administered to make
her "adult".
(iv) That the appellant/victim was threatened
with harm to her father or brother.
(v) That the appellant/victim was taken to
multiple places including Delhi, Motihari and Nepal, or
confined at any particular place for a prolonged duration.
(vi) That the respondent no. 2 restricted the
appellant/victim's communication while respondent no. 2 freely
communicating with his family members.
(vii) That the family members of respondent no.
2 abused PW-3, claimed that the respondent no. 2 would marry
the appellant/victim, or obstructed recovery.
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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(viii) That the appellant/victim was recovered in
a frightened or ill condition, required prolonged recovery, or
was mentally unfit to make a statement immediately.
(ix) That repeated visits were made to the police
station or that extensive search efforts were undertaken beyond
the initial complaint.
39. PW-5 has consistently deposed that none of
these allegations were stated either by the appellant/victim or by
PW-2 and PW-3 at the stage of investigation, and that these
assertions surfaced for the first time during deposition before
the Court.
40. Such omissions amount to material
contradictions and improvements, rather than mere elaborations,
particularly as they introduce new incriminating circumstances
which were wholly absent from the earliest version of the
prosecution case. The medical evidence further fails to support
allegations of assault or intoxication.
41. Accordingly, while the core fact of the
appellant/victim being taken away stands established, the
subsequent narrative relating to intoxication, sexual misconduct,
threats, confinement and recovery is clearly an afterthought,
unsupported by contemporaneous statements and contradicted
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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by the Investigating Officer.
42. From the perusal of statement recorded
under 164 of Cr.P.C of PW-1 (appellant/victim), it is clear that
the respondent no. 2 has taken away appellant/victim and
appellant/victim is minor and the informant has already stated
that her daughter was taken away by the respondent no. 2, as per
the version of prosecution story. On the core aspect of
prosecution story, in order to constitute the offence under
Section 363 of IPC, it is quite evident that appellant/victim is
minor and the statement of appellant/victim is quite consistent
that respondent no. 2 is said to have taken away her without
permission of her lawful guardians. The statement of
appellant/victim recorded under Section 164 of Cr.P.C. as well
as evidence adduced by appellant/victim in court, one thing is
quite clear that no consent was taken and appellant/victim was
being deprived of her legal guardianship and on the basis of said
aspect, the statements of appellant/victim/PW-1 as well as other
prosecution witnesses (PW-2 and PW-3) are quite consistent.
But on the point of administering intoxicated medicine to
appellant/victim and wrong act committed with the
appellant/victim and that she was assaulted by respondent no. 2,
on all the said aspects, her statement is totally negated by PW-5
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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(Investigating Officer). On the point of fainted condition of
appellant/victim as stated by appellant/victim's father,
appellant/victim was provided cold drinks and intoxicated
materials and the said statements were not stated by
appellant/victim’s father before the Investigating Officer (PW-5)
and the said statements are denied by Investigating Officer (PW-
5). In the cross-examination of PW-5, even appellant/victim’s
mother has not stated in clear terms that the respondent no. 2
committed sexual assault with the appellant/victim and in
statement recorded under Section 164 of Cr.P.C.,
appellant/victim herself stated that no wrong act was committed
by the respondent no. 2 against her. In this way, the allegation
that respondent no. 2 has committed any wrong act against the
appellant/victim was not proved.
43. The learned trial court has well discussed
the reasoning as to why POCSO Act is not attracted against the
respondent no. 2. From the statement of appellant/victim
recorded under Section 164 of Cr.P.C., it is crystal clear that
respondent no. 2 has not committed any wrong against the
appellant/victim but the said statement has been improved
during the course of adducing the evidence before the Court.
The appellant/victim has stated in the statement recorded under
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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Section 164 that the respondent no. 2 met the appellant/victim in
the way and offered for tour and appellant/victim has made
query regarding the permission of her father. From the perusal
of the statement of appellant/victim recorded under Section 164
of Cr.P.C. as well as her statement while adducing evidence
before Court, it is crystal clear that she has been taken away by
the respondent no. 2 without permission of her guardian and the
same is supported by initial version of prosecution story and
coupled with material available on record, the respondent no. 2
is said to have taken away the appellant/victim without
permission and to that extent the concerned court has also
recorded the finding and the respondent no. 2 has been held
guilty under Section 363 of IPC and there is no reason to differ
from the finding of the concerned court. There was no material
for proving the accusation under Section 12 of the POCSO Act
as appellant/victim has already denied under Section 164 of
Cr.P.C. that any wrong act was committed against the
appellant/victim (PW-1) by the respondent no. 2. It is further
stated by the appellant/victim that no intoxicated material was
administered to her and she had not lost her consciousness at
any point of time and the statement of PW-2 and PW-3 have
been improved which was earlier not stated by them before the
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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Investigating Officer and it is crystal clear from the statement of
Investigating Officer (PW-5) that on the point of other
accusations there was no material except taking away of the
appellant/victim by the respondent no. 2.
44. It is relevant to quote Section 372 of Cr.P.C.
which reads as under:-
"372. No appeal to lie unless otherwise
provided.
- No appeal shall lie from any judgment or order
of a Criminal Court except as provided for by this Code or by
any other law for the time being in force:
Provided that the victim shall have a right to
prefer an appeal against any order passed by the Court
acquitting the accused or convicting for a lesser offence or
imposing inadequate compensation, and such appeal shall lie to
the Court to which an appeal ordinarily lies against the order of
conviction of such Court."
45. A reading of the proviso makes it clear that
so far as the vicitm’s right of the appeal is concerned, same is
restricted to three eventualities, namely, acquittal of the accused;
conviction of the accused for lesser offence; or for imposing
inadequate compensation. While the victim is given opportunity
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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to prefer appeal in the event of imposing inadequate
compensation, but at the same time there is no provision for
appeal by the victim for questioning the order of sentence as
inadequate, whereas Section 377 Cr.PC gives the power to the
State Government to prefer appeal for enhancement of sentence.
While it is open for the State Government to prefer appeal for
inadequate sentence under Section 377, Cr.PC but similarly no
appeal can be maintained by victim under Section 372, Cr.PC on
the ground of inadequate sentence.
46. In view of the above, the submission of
learned counsel for the appellant/victim that the sentence
awarded under Section-363 of I.P.C. should be maximized is
not maintainable as it has already been decided by the Hon’ble
Supreme Court in catena of judgments including in the case of
National Commission for Women Vs. State of Delhi & Anr.
reported in (2010) 12 SCC 599. Another contention of the
appellant/victim’s counsel is that Section 12 of the POCSO
should be added for the purpose of conviction and sentence and
he has submitted that the prosecution has proved the case under
Section 12 of the POCSO Act, but, in view of the discussion
made above, so far as the evidence of Investigating Officer is
concerned, it has been clearly negated that any wrong act was
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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committed against the appellant/victim by the respondent No. 2.
47. Upon an overall appreciation of the
evidence on record, the testimony of PW-1 (appellant/victim),
PW-2 (informant-mother) and PW-3 (father), to the extent it
relates to the core occurrence, inspires confidence and remains
unshaken by cross-examination. The following aspects of their
evidence are consistent, corroborative and legally reliable:
(i) All three witnesses are ad idem that on
19.01.2022, the appellant/victim, a minor girl, left her parental
home in the morning for the purpose of attending coaching
classes and did not return thereafter.
(ii) The evidence of PW-1 clearly establishes
that she accompanied the respondent no. 2 and remained away
from her parents for a considerable period. PW-2 and PW-3
have consistently asserted that their minor daughter was taken
away by the respondent no. 2, and this fact forms the gravamen
of the FIR and the earliest version of the prosecution case.
(iii) PW-2 and PW-3 have unequivocally
deposed that no consent was ever given to the respondent no. 2
to take their minor daughter away from their lawful
guardianship. This assertion has remained intact throughout the
trial and has not been contradicted by the Investigating Officer.
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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(iv) The minority of the appellant/victim on the
date of occurrence stands conclusively proved through the
school certificate (Ext. P-8), corroborated by the oral testimony
of PW-2 and PW-3 and verified by PW-5. The age of the
appellant/victim was not disputed by the defence at any stage.
(v) The factum of recovery and return of the
appellant/victim to her parents is admitted by PW-1, PW-2 and
PW-3 and is duly supported by the investigation. There is no
dispute with regard to the identity of the appellant/victim or her
eventual restoration to parental custody.
(vi) The prompt lodging of the FIR by PW-2
alleging the taking away of a minor girl lends credence to the
prosecution version and rules out any possibility of false
implication or subsequent fabrication on the core aspect of the
case.
48. To the aforesaid extent, the testimonies of
PW-1, PW-2 and PW-3 are natural, probable and mutually
corroborative, and are further supported by documentary and
investigative evidence. These aspects collectively satisfy the
essential ingredients of Section 363 IPC, namely, that a minor
was taken away from the lawful guardianship of her parents
without their consent.
Patna High Court CR. APP (SJ) No.1724 of 2025 dt. 20-01-2026
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49. On all counts, from the aforesaid analysis,
I find that while passing the order of sentence awarded by the
concerned court, it is found that there is no criminal antecedent
of the respondent no. 2 and he is not habitual offender as there is
nothing on record that he is a criminal offender. While passing
the order of sentence, the concerned court has awarded four
years rigorous imprisonment under Section 363 of IPC and
under other Sections accused/respondent No.2 has been
acquitted and the reason as assigned by the learned trial court is
quite relevant with the facts and circumstances of the case and
on the basis of material available on record.
50. Accordingly, I find no reason to differ with
the findings given by the learned trial court. Accordingly, the
impugned judgment of conviction and order of sentence passed
by the learned trial court is hereby affirmed.
51. In the result, the present appeal stands
dismissed at the stage of admission itself.
52. Pending Interlocutory Application(s), if any,
shall stand disposed of.
53. Let a copy of this judgment be transmitted
to the Superintendent of the concerned jail for compliance and
for record.
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54. The records of this case be also returned to
the concerned trial court forthwith.
(Alok Kumar Pandey, J)
alok/-
AFR/NAFR AFR
CAV DATE 27.11.2025
Uploading Date 20.01.2026
Transmission Date 20.01.2026
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