Patna High Court

Jitendra Kumar @ KunkunversusThe State of Bihar

Decided: 20 January 2026
Disposal: DISMISSED
Bench: ALOK KUMAR PANDEY

Holding

The appellate court affirmed the conviction under Section 363 IPC, finding that the appellant had taken away a minor without consent, and dismissed the appeal.

Summary

The appellant Jitendra Kumar was convicted by the trial court for kidnapping a 15‑year‑old girl, a minor, under Section 363 of the Indian Penal Code and sentenced to four years’ rigorous imprisonment with a fine. On appeal, the defence argued that the victim’s and witnesses’ statements were inconsistent, that there was no medical evidence of sexual assault, and that the POCSO provisions were not attracted. The High Court examined the statements of the victim, her parents and the investigating officer, noting that while ancillary allegations were not corroborated, the core fact that the appellant took away a minor without the guardians’ consent was established and the victim’s age was proved by school records and medical ossification tests. Consequently, the court affirmed the conviction under Section 363 IPC and dismissed the appeal. The court also held that the POCSO charge under Section 12 could not be sustained as the victim denied any sexual wrongdoing.

Issues considered

Whether the facts satisfy the essential ingredients of an offence under Section 363 IPC.
Whether the prosecution proved the offence under Section 12 of the POCSO Act.
Whether the inconsistencies in the statements of the victim and other witnesses affect the conviction.
Whether the age of the victim was correctly determined under the Juvenile Justice Act.

Legislation cited

Code of Criminal Procedure, 1973 — s. 161, 164, 313
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
minor
Section 363 IPC
POCSO
age determination
witness credibility
appeal
conviction
criminal law

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.802 of 2025
Arising Out of PS. Case No.-39 Year-2022 Thana- DIGHA District- Patna
======================================================
Jitendra Kumar @ Kunkun Son of Shivji Rai Resident of Village- Sadilopur
@Suhadullapur, Chandani, Mahnar Road, Hazirpur,P.S.- Jahua(Ganga
Bridge), Distt.- Vaisali(Bihar)
... ... Appellant/s
Versus
1. The State of Bihar Bihar
2. XXXXXXXXXXXX
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ramji Kumar, Advocate
For the State : Mr. Ramchandra Singh, A.P.P.
For the Respondent No.2: Mr. Ajay Kumar, Advocate
Mr. Raj Shekhar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
CAV JUDGMENT
Date : 20-01-2026
Heard learned counsel for the appellant, learned

counsel for the Respondent No. 2 and learned Additional

Public Prosecutor for the State.

2. The name of the 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
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appellant/ 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, appellant has to further

undergo simple imprisonment for two months.

4. As per prosecution case, informant (PW-2)

who is mother of victim, has filed a written statement before

SHO, Digha that on 19.01.2022, 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 appellant is alleged to have

taken away the 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 appellant under Sections 363, 366(A), 366 of the

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
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appellant 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 appellant 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 altogether six

witnesses. PW-1 victim, PW-2 mother of victim(informant),

PW-3 father of victim, PW-4 maternal uncle of victim, 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 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-
cum- mark sheet
Ext. P-9- Statement of victim
recorded under Section 164 of
Cr.PC.
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8. However, the defence of the appellant 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 appellant 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:-

11. The learned counsel for the appellant

submits that the statement of 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 victim) regarding

providing chips and cold drinks to the victim, and she was

given intoxicated materials and victim was forced by the

appellant to commit wrongful act, is totally inconsistent with

the statement of the PW-5 who is the Investigating Officer of

the case. PW-3 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 that how the father of the victim has

improved his earlier statement recorded under Section 161 of
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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 that

how the mother of the 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 that

how the statement of victim has been improved at the time of

adducing evidence. He further submits that how the statement

of victim’s father has been improved though it was clearly

absent when the statement was recorded by Investigating

Officer and the victim’s mother who is the informant of the

case 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. In this way,

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.

12. Learned counsel for the Respondent No. 2
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submitted that the age of the victim has already been proved in

accordance with the statutory provisions by the concerned

court. It has been submitted that the age of victim is not in

dispute in 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 victim was found to be minor. From the

perusal of statement of 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

victim, the statement was quite consistent that victim was taken

away by the appellant and the victim is a minor and 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 victim has already 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 regarding taking away of her minor child against

the appellant. It has been submitted that PW 3 (father of victim)

has also asserted the same statement on the point of taking

away the victim. The statement of PW 5 are consistent and at

last victim was recovered from Bairgania Border. In this way,
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there is no reason to differ from the finding of the concerned

court that the victim was minor and no consent was taken from

the lawful guardian who have already adduced their evidences

before the Court that victim has been taken away by the

appellant. It has been submitted that victim has also asserted

the same statement that she was being taken away by the

appellant. However, learned counsel for the respondent no. 2

submits that the sentence awarded to the appellant by the

learned trial court is inadequate and the quantum of sentence

should be maximized. Learned counsel for the respondent no.

2 further submits that there are sufficient material to convict the

appellant under Section 12 of the POCSO Act and for the said

purpose, victim/respondent no. 2 has also filed Cr. Appeal (SJ)

No. 1724 of 2025.

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 offence under Section 363
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of IPC is made out 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

screen out the evidences of witnesses adduced before the trial

court.

17. It is necessary to discuss the evidence of

victim who is said to have been taken away by the appellant

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 Jitendra Kumar was

working under his papa and in the way, the appellant made an

offer for tour when the victim replied regarding permission

from house upon which the appellant replied that he had taken

permission from victim’s father and the victim sat on cab with

appellant by relying on the said version of appellant and both

went to Hajipur station and thereafter they went to Delhi and

from Delhi to Gurgaon and finally went to Kathmandu, Nepal
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for touring purpose. The victim requested for returning to her

house upon which Kunkun/ appellant denied on one or another

pretext. In para 6, victim has stated that she saw the facebook

post of her mother and the appellant made arrangement to

communicate with victim’s mother and victim’s mother was

weeping and the appellant dropped the victim on India-Nepal

border at the behest of victim and the victim’s mother took her

to Patna and she has stated in para 7 that appellant 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 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 appellant 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/appellant was

present with vehicle on the way and he prevented the 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

victim back. Believing his statement, victim sat in the said cab
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and appellant 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 she found herself at the lonely place at a room and the

room was closed. After calling repeatedly, the appellant came

and he gave food to the victim. She always asked the appellant

to take her home but appellant did not take her to her home. In

para 3, she has stated that about after 14 days, appellant stated

to drop the victim at her house. She has stated that she had

been residing with the appellant for five months. She has stated

that first of all the appellant brought her in Delhi, thereafter,

Motihari then took away to Nepal. During the said period, the

appellant gave threatening to victim that he would kill the

father and brother of victim. In para 5, she has stated that

appellant has tortured the victim mentally and emotionally. In

this way, the said version of the victim is inconsistent with her

statement recorded under Section 164 of Cr.P.C. Further, in

examination-in-chief, she has stated that appellant touched her

and did indecent behavior against her whereas in cross-

examination, she has stated that appellant 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
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the learned Magistrate upon which she put her signature which

is 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 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

appellant has not committed anything wrong against her and

she has admitted that appellant left her at India-Nepal border at

the behest of the victim but during the course of adducing

evidence before the Court, victim has improved her statement

that appellant parked the vehicle in the way and he was

standing there and stopped the victim and told her that her

coaching was closed on that day. The said version was totally

inconsistent with the version recorded by the victim under

Section 164 of Cr.P.C.

19. PW-2 :- She is the mother of the victim and

informant of the present case. In para 2, she has stated that her

daughter/victim had gone to coaching at 8 AM. At 1:06 PM,

she received a message from the appellant stating that he was

taking the victim away and that she (PW2) should not search for

them. She further stated that the appellant was taking the victim
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away from her (PW-2) and that appellant had been in love with

the 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 victim went to

coaching in the morning but she has improved her version by

stating that she received one message from appellant that he

took informant’s/PW-2 daughter and it was told that appellant

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 (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/victim. In para 13,

PW-2 has stated that victim has stated all things to her that had

happened against her. She has stated that victim has pointed out

that appellant used to assault and behaved indecently with the

victim and appellant did not provide food and keep the door

closed and tried to persuade to make physical relationship. She

has stated that age of victim at the time of occurrence is 15

years and 3 months and the date birth of victim on school

certificate is mentioned as 15.09.2006. During the course of

cross-examination, she has stated that appellant took away her
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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 appellant 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 appellant

and age of victim has been pointed out on the basis of

certificate issued by school.

20. PW-3 is father of the victim and he has also

stated that victim went to coaching and he received a call from

his wife who informed him that accused Jitendra Kumar @

Kunkun sent a message on her mobile that Jitendra Kumar @

Kunkun had taken away 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 appellant and both of them

started abusing PW-3. Then, PW-3 went to the house of

appellant and the family members of appellant started abusing

him and stated that appellant would marry the victim. PW-3

returned back and the PW-3 has stated that in para 6, after

about four months, the victim called her mother through

unknown mobile number and told her mother that victim was at

Bairgania Border, Nepal and on the basis of said information,
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wife of PW-3 went to Bairgania border and victim was brought

to Patna and statement of victim under Section 164 of Cr.P.C.

was recorded before the Magistrate. He has stated that victim

was nervous and after 10 to 15 days victim told her mother

regarding the incident which had happened against her. He has

stated in para 8 that victim has stated to her mother that

appellant used to assault and made indecent behavior and used

to administer medicine to develop the body of victim as adult

so that appellant could marry the victim. He further stated in

para 9 that victim has stated that cold drink was given by the

appellant 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

victim was in Delhi and she was placed in a room where one

woman resided. He has stated that the appellant took away the

victim from Delhi to Nepal and he has stated that appellant 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 appellant where all the

family members of the appellant started abusing him and all the

family members told P.W-3 that the accused would marry the

victim but the IO (PW-5) during the course of cross-
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examination, in para 20, has stated that PW-3 had not stated

before him that when PW-3 went to the house of appellant, 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 victim was

not stated before the Investigating Officer by PW-3. The

statement of taking 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 appellant used to talk his brother,

father, mother, brother-in-law and cousin through phone and

internet but the victim was not allowed to talk to anyone but

during the course of cross-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 victim

(PW-3), it is evident that despite being embellishment and

improvisation in the version of PW-3, it is clear that appellant

has taken away the victim without consent of the father of the
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victim (PW-3) and the said statement is quite intact with the

statements of other prosecution witness, victim as well as

victim’s mother (PW-2).

22. PW-4 is the maternal uncle of the victim.

He has stated that victim’s mother (PW 2) is informant of the

case, is also his sister, called him around 2 PM that appellant

had fled with the victim. He further stated that he went to

victim’s home and his sister told him that appellant had taken

him away. In para 3, he has stated that the victim’s mother went

to thana for lodging the FIR. In para 4, he has stated that on

22.05.2022, victim’s mother called and informed him that the

victim had been found and was at the Nepal border. He further

stated that he went to victim’s house and then, went to the

Nepal border with the victim's mother. In para 6, he has stated

that he did not know about as to how many days victim lived

with the appellant. In para 7, PW-4 has stated that victim did

not tell about the incident to him. He further stated that victim

told her mother about the incident. During the course of cross-

examination, in para 26 he has stated that 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
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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 victim and maternal uncle of the victim. In para 9, he has

stated that on 20.01.2022, he verified the age of victim and her

date of birth, according to her school certificate, was found to

be 15.09.2006. During the course of cross-examination, 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 appellant to

inform her about the incident, then, mother of appellant told

that her son was not of such a nature who could take away the

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 appellant,

the entire family of appellant 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 appellant had changed thirty
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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 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 victim back and

brought her to Patna. It is also not pointed out before PW-5 that

after arriving Patna, victim was brought to the Civil Court,

Patna and the Investigating Officer of the Digha Police Station

was informed about the victim. In para 23, PW-5 has stated that

PW-3 has not stated before him that the victim was very

nervous and thereafter about ten to fifteen days later, the 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 victim told her mother that the appellant

had repeatedly beaten her and sexually assaulted her and the

appellant had also confined the victim to a room and

administered a medicine to develop the body of victim as adult

so that the appellant could marry the victim. In para 25, PW-5

has stated that PW-3 has not stated before him that the victim

told PW-3 that appellant had provided her cold drink and chips

in Patna, after which she had become unconscious. It is also not
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pointed out before PW-5 that when victim regained

consciousness, she was in Delhi and in Delhi, a woman also

lived in the room where the 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 victim had

proof. In para 26, PW-5 has stated that PW-3 has not stated

before him that the appellant took the victim from Delhi to

Nepal and appellant kept the victim in a room in an unknown

house in Motihari for approximately 14-15 days, where 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 appellant spoke daily with his

brother, father, mother, brother-in-law and cousin through

phone and internet and the appellant did not allow the victim to

speak to anyone. In para 28, he has stated that PW-3 has not

stated before him that when the victim used to ask for the

mobile phone from the appellant, the appellant did not give the

mobile phone to her and used to assault the victim. During the

course of cross-examination in para 32, PW-5 has stated that

victim has not stated before him that appellant used to threaten

the victim to kill her father and brother. During the course of

cross-examination in para 33, PW-5 has stated that victim has
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not stated before him as to what happened with her and victim

has also not stated as to how many places the appellant had

taken her and victim has also not pointed out regarding the

treatment meted out to her by the appellant. Victim has also not

pointed out before PW-5 as to how the appellant 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

appellant was in love with the informant’s daughter for

eighteen months and appellant 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 appellant’s mother to which

appellant’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 appellant 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 appellant

but family members of appellant replied that victim was not of
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good nature and she went away with the appellant due to love

affair. In para 39, PW-5 further stated that informant (PW-2)

has not stated before him that 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 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 appellant used to assault the

victim and used to make indecent behavior with her and

appellant 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

appellant used to talk with his father, brother, brother-in-law

but did not allow the victim to talk with anyone. In para 43,

PW-5 has stated that neither the mother of victim nor the victim

gave any statement before him after fifteen days of the victim’s

recovery. In para 53, PW-5 has stated that 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
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statement of father of victim i.e. from paragraph 19 to 28, is not

corroborated on the point of nervousness of the victim, visiting

the house of appellant, providing cold drinks and feeding chips,

administering intoxicated medicines, taking away the victim

from Delhi to Nepal, talking of appellant to his father, mother,

brother and brother-in-law through internet and on the point of

assaulting the 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 victim (PW-

2) is quite contradictory on the point of manner of occurrence,

nervousness of the victim, visiting the house of appellant,

talking of appellant to his father, mother, brother and brother-

in-law through internet, assaulting the victim, recovery of

victim and on the point of the treatment meted out to the

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 victim (PW-1) is quite

contradictory on the point of the threatening the victim to kill
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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her father and brother and on the point of treatment meted out

to the victim by the appellant. 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 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 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
it shows spermatozoa not found.
6. Report of P.M.C.H.-
Lower U.S.G. Abdomen- U.S. 22 dated
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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 victim :- 14-16
years.
As there is no sign of
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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

appellant against the 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 panchayat;
(iii) and only in the
absence of (i) and (ii) above, age
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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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 victim at the time of occurrence is 15 years and 3

months and she has also disclosed that the date of birth of

victim i.e. 15.09.2006 has been recorded on the basis of school

certificate. PW-3 (father of victim) has also pointed out in para

13 that the date of birth of victim is 15.09.2006 and he has also

stated that the age of victim is 15 years and 3 months at the

time of occurrence and the same was verified by PW-5

(Investigating Officer).

31. Apparently, nothing was disputed by the

defence regarding the Exhibit P-8 and the learned trial court

while determining the age of victim, had discussed the statutory

provisions and it has been determined as 15 years 4 months and

4 days and the victim was found to be minor.
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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32. From the perusal of statements of all the

prosecution witnesses, it is crystal clear that victim has been

taken away by the appellant and 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 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 victim
parents or guardians;
(iii) without their consent.
34. The statement of victim is that appellant

persuaded her to sit on cab without permission of lawful

guardian, in that situation, at the very juncture, the appellant

committed the offence under Section 363 of IPC as there is

nothing on record to show that appellant has taken permission
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from lawful guardian and without having permission from

guardian, the victim was being deprived from lawful guardian.

At that juncture, the appellant 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 victim, it is

crystal clear that appellant and victim both left house and

appellant being major without consent of lawful guardian took

away the victim and victim is minor.

35. The statement of victim cannot be

disbelieved but in order to constitute the offence under Section

363 of IPC the victim must be minor and she must be taken

away without consent of guardian.

36. The learned trial court while deciding the

age of victim on the basis of Marks Statement cum Certificate,

Secondary School Examination, 2021 issued by 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

victim was minor on the alleged date of occurrence on the basis

of certificate issued by Central Board of Secondary Education
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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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

(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:

(i) That the 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 victim was administered cold

drinks, chips or any intoxicating substance, resulting in loss of

consciousness.
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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(iii) That the 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 victim was threatened with harm

to her father or brother.

(v) That the victim was taken to multiple places

including Delhi, Motihari and Nepal, or confined at any

particular place for a prolonged duration.

(vi) That the appellant restricted the victim's

communication while himself freely communicating with his

family members.

(vii) That the appellant's family members

abused PW-3, claimed that the appellant would marry the

victim, or obstructed recovery.

(viii) That the 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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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these allegations were stated either by the 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

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

by the Investigating Officer.

42. From the perusal of statement recorded

under 164 of Cr.P.C of PW-1 (victim), it is clear that the

appellant has taken away victim and victim is minor and the

informant has already stated that her daughter was taken away

by the appellant, 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 victim
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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is minor and the statement of victim is quite consistent that

appellant is said to have taken away her without permission of

her lawful guardians. The statement of victim recorded under

Section 164 of Cr.P.C. as well as evidence adduced by victim in

court, one thing is quite clear that no consent was taken and

victim was being deprived of her legal guardianship and on the

basis of said aspect, the statements of 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 victim and wrong act committed with the victim

and that she was assaulted by appellant, on all the said aspects,

her statement is totally negated by PW-5 (Investigating

Officer). On the point of fainted condition of victim as stated

by victim's father, victim was provided cold drinks and

intoxicated materials and the said statements were not stated by

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 victim’s mother has not

stated in clear terms that the appellant committed sexual assault

with the victim and in statement recorded under Section 164 of

Cr.P.C., victim herself stated that no wrong act was committed

by the appellant against her. In this way, the allegation that
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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appellant has committed any wrong act against the victim was

not proved.

43. The learned trial court has well discussed

the reasoning as to why POCSO Act is not attracted against the

appellant. From the statement of victim recorded under Section

164 of Cr.P.C., it is crystal clear that appellant has not

committed any wrong against the victim but the said statement

has been improved during the course of adducing the evidence

before the Court. The victim has stated in the statement

recorded under Section 164 that the appellant met the victim in

the way and offered for tour and victim has made query

regarding the permission of her father. From the perusal of the

statement of 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 appellant

without permission of her guardian and the same is supported

by initial version of prosecution story and coupled with

material available on record, the appellant is said to have taken

away the victim without permission and to that extent the

concerned court has also recorded the finding and the appellant

has been held guilty under Section 363 of IPC and there is no

reason to differ from the finding of the concerned court. There
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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was no material for proving the accusation under Section 12 of

the POCSO Act as victim has already denied under Section 164

of Cr.P.C. that any wrong act was committed against the victim

(PW-1) by the appellant. It is further stated by the 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 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 victim by the appellant.

44. Upon an overall appreciation of the

evidence on record, the testimony of PW-1 (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 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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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that she accompanied the appellant 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 appellant, 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 appellant 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.

(iv) The minority of the 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 victim

was not disputed by the defence at any stage.

(v) The factum of recovery and return of the

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 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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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prosecution version and rules out any possibility of false

implication or subsequent fabrication on the core aspect of the

case.

45. 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.

46. In the light of discussions made above, 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.

47. In the result, the present appeal stands

dismissed at the stage of admission itself.

48. Pending Interlocutory Application(s), if

any, shall stand disposed of.

49. Let a copy of this judgment be transmitted

to the Superintendent of the concerned jail for compliance and

for record.
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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50. 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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