[Cites 12, Cited by 0]
Patna High Court
Jitendra Kumar @ Kunkun vs The State Of Bihar on 20 January, 2026
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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
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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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
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
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
Patna High Court CR. APP (SJ) No.802 of 2025 dt.20-01-2026
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
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
(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
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
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
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
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
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
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
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
