Case Background
This case arose out of Jaynagar P.S. Case No. 168 of 2016, District Madhubani. The informant, examined as PW 7, alleged in his written report that his minor daughter had been kidnapped and sexually assaulted.
According to the written report, on 09.07.2016 at about 5:00 PM, the informant’s daughter, said to be about 12 years old, went to the market with her elder sister (PW 3) and a friend (PW 2). PW 2 and PW 3 went inside a shop, while the younger girl remained alone on the road outside.
It was alleged that the appellant arrived on a motorcycle, made the girl sit on the pillion seat, and took her away. PW 2 and PW 3 claimed to raise an alarm, but the appellant allegedly left the place with the girl. The parents of the appellant were also alleged in the written report to be involved in the kidnapping.
The informant claimed that he kept persuading the appellant’s family to return the girl and even convened a panchayat, but without any result. After this, he lodged a written report on 23.07.2016, leading to registration of the FIR.
The girl later appeared on her own before Mahila P.S., Madhubani. Her medical examination was done on 27.08.2016 (Exhibit 5). Her statement under Section 164 Cr.P.C. was recorded before the Magistrate on 29.08.2016 (Exhibit 1).
After investigation, charges were framed under Sections 366A and 376 of the Indian Penal Code and Section 4 of the POCSO Act. The learned Special Judge, Madhubani, in G.R. No. 1548 of 2016, convicted the appellant on 24.09.2019. On 25.09.2019, the trial court sentenced him to ten years rigorous imprisonment and a fine of Rs. 10,000 for each of the three offences, with sentences to run concurrently.
The appellant challenged this conviction before the Patna High Court in Criminal Appeal (SJ) No. 5420 of 2019.
What the Court Examined and Decided
The appeal was heard by Hon’ble Mr. Justice Birendra Kumar. The Court closely examined the evidence of the prosecutrix, the other eyewitnesses, the medical evidence, and the conduct of the parties, as well as the manner in which the prosecution attempted to prove the age of the girl.
On behalf of the appellant, it was argued that the entire case was, in reality, a matter of an affair between the appellant and the girl. The defence contended that the girl had voluntarily accompanied the appellant and remained with him at different places, without protest and without any attempt to seek help, even when she had opportunities to do so in public.
The defence highlighted the testimony of PW 1, the girl herself. She stated that on the date of occurrence, her sister and friend had gone inside the shop and she was alone on the road. The appellant came on a motorcycle and, according to her, made her sit on the back after putting her in fear not to raise alarm.
PW 1 stated that the appellant took her from Madhubani to Nepal by bus. She admitted that there were other passengers in the bus, and later in the train when they travelled from Madhubani to Delhi. She further stated that she stayed with the appellant for about one month in Nepal and one month in Delhi, and that the appellant purchased their tickets. She also accepted that many people were present at the bus stand, on the bus, on the railway platform and on the train, yet she did not raise any alarm, saying it was due to fear.
According to her evidence, the appellant “ravished” her repeatedly during this period. Ultimately, the appellant brought her back to Madhubani by train and allegedly left her near the police station before going away.
PW 2 stated that she saw the appellant taking the girl on the motorcycle but did not see the girl crying. PW 4 also stated that he had seen the appellant making the girl sit on the pillion seat.
The High Court conducted a “close scrutiny” of this evidence. It found that the circumstances strongly suggested that the girl had gone with the appellant of her own free will. She sat as pillion rider on the motorcycle in a public place. No one was shown to have physically prevented her from getting down or raising alarm.
The Court noted that although other eyewitnesses were present, they did not take effective steps to stop the motorcycle or rescue the girl. Further, the girl remained with the appellant for about two months at different places, travelling by bus and train and staying in a room where others were in the vicinity, yet she did not complain to anyone or try to escape.
The Court observed that the girl levelled allegations against the appellant only after the criminal case was instituted. From this conduct, the Court inferred that she had been in a consensual relationship with the appellant. Therefore, the key question became whether she was a minor on the date of occurrence. If she was a minor, consent would not matter under law. If she was not proved to be a minor, her consent would become crucial.
On the issue of age, the prosecution case was that she was about 12 years old. However, the Court noted significant weaknesses in the evidence.
PW 3 admitted in cross-examination that the girl was a student of Class VII. Despite this, the prosecution did not produce any school record, such as a school admission register or school certificate, to prove her exact date of birth.
The parents of the girl, PW 5 and PW 7, were examined but neither of them stated her exact date of birth.
Instead, the prosecution relied on medical opinion. PW 8 and PW 9, Dr. Gargi Singh and Dr. Rama Jha, were members of the medical board. They found that secondary sexual characters were well developed, both breasts were developed, and auxiliary and pubic hair were present. On radiological examination, the medical board opined that the girl was between 16 to 17 years old.
The High Court pointed out that this was only an approximate opinion and that the prosecution had not produced the radiological report itself. The expert who conducted the radiological examination was also not examined in court. The opinion, therefore, remained unsupported by primary material.
The Court relied on several Supreme Court decisions about proof of age. In Sunil v. State of Haryana (AIR 2010 SC 392), the Supreme Court had held that non-production of the radiologist and original records was a serious lapse and that school admission forms or similar documents are primary evidence of age.
In State of Madhya Pradesh v. Munna @ Shambhoo Nath ((2016) 1 SCC 696), the Supreme Court, following Sunil, held that approximate age is not sufficient to conclude the exact age of the victim.
The Patna High Court also referred to Jarnail Singh v. State of Haryana (2013 Cri. L.J. 3976), where the Supreme Court directed that age of a victim of rape should be determined in the manner laid down under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, and that there is no difference between a child in conflict with law and a child victim, so far as minority is concerned.
The Court then reproduced Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which lays down the order of preference for determining age: first, school or matriculation certificate; if not available, birth certificate from municipal or panchayat authorities; and only in their absence, medical tests such as ossification.
Applying these principles, the Court held that the prosecution had failed to prove the exact age of the girl. The best evidence—the school record and reliable parental testimony—was available but not produced. The medical opinion, being approximate and unsupported by radiological records or expert testimony, could not safely establish that she was below 18 on the date of occurrence.
Another significant factor examined by the Court was the delay in lodging the FIR. The occurrence allegedly took place on 09.07.2016, whereas the written report was lodged on 23.07.2016. In the written report, the informant stated that the delay was due to the panchayat being held regarding the incident. However, when examined as PW 7, he denied in cross-examination that he had convened any panchayat.
The Court referred to Tulshidas Kanolkar v. State of Goa (AIR 2004 SC 978), where the Supreme Court held that delay in lodging an FIR in sexual assault cases does not automatically discredit the prosecution but calls for a satisfactory explanation. If the explanation is not convincing and there is possibility of embellishment or exaggeration, the delay becomes a relevant factor.
In the present case, the High Court found that the informant’s explanation for delay was inconsistent with his oral evidence. Moreover, when other witnesses claimed to have seen the appellant taking the girl away, there was no justification to wait for a panchayat because such cognizable offences cannot legally be settled by panchayat.
From this conduct, the Court inferred that the informant was probably aware that the girl had left home due to prior affairs with the appellant. Only when the family could not secure her return did they lodge the FIR.
Summarising, the Court held that:
- The delay in approaching the police was not satisfactorily explained.
- The conduct of the girl before, during, and after the alleged kidnapping indicated that she had voluntarily accompanied the appellant and remained with him without protest, even though she had sufficient opportunity to seek help in public places.
- The prosecution failed to prove, with reliable evidence, that the girl was a minor on the date of occurrence.
In light of these serious infirmities, the High Court concluded that the prosecution had “miserably failed” to establish any of the charges under Sections 366A, 376 IPC and Section 4 of the POCSO Act.
Accordingly, the conviction and sentence passed by the Special Judge, Madhubani, were set aside. The appellant was directed to be set free at once.
Why This Judgment Matters
This judgment of the Patna High Court is important for both accused persons and complainants in sexual offence and POCSO cases in Bihar and beyond.
First, it underscores that in cases involving alleged minor victims, the prosecution must bring the best available evidence of age. School records and birth certificates are treated as primary proof. Mere medical opinion about approximate age, without supporting radiological records and expert testimony, may not be enough.
Second, the decision shows that courts carefully examine the conduct of the alleged victim and other witnesses. When a person travels for long periods with the accused, uses public transport, and stays in public places without making any complaint, courts may infer that the relationship was consensual, unless minority is firmly proved.
Third, the judgment stresses that unexplained or poorly explained delay in lodging an FIR, especially where serious cognizable offences are alleged, can weaken the prosecution case. A false or inconsistent explanation for delay creates doubt about the genuineness of the accusation.
For families, this case illustrates that if a child truly goes missing or is kidnapped, immediate reporting and consistent statements are vital. For accused persons, it shows that convictions can be overturned when prosecution ignores legal requirements on proof of age and when the overall evidence suggests consensual conduct.
Legal Issues and Answers
Issue: Whether the prosecution proved beyond reasonable doubt that the girl was a minor on the date of the occurrence, so that her consent would be legally irrelevant under IPC and POCSO.
Answer: No. The Patna High Court held that the prosecution relied only on approximate medical opinion. It failed to produce school records, birth certificates, or reliable parental testimony as required under Jarnail Singh and Section 94 of the Juvenile Justice Act, 2015. Therefore, minority was not proved.
Issue: Whether the evidence established that the appellant had kidnapped and sexually assaulted the girl without her consent.
Answer: No. On a close scrutiny of the testimonies, the Court found that the girl travelled and stayed with the appellant for about two months without raising alarm despite many opportunities in public places. This indicated a consensual relationship, and in the absence of proof of minority, the ingredients of kidnapping and rape were not made out.
Issue: Whether delay in lodging the FIR was satisfactorily explained and could be ignored.
Answer: No. The Court found contradictions between the written report and PW 7’s oral evidence regarding the alleged panchayat. The delay of nearly two weeks was not convincingly explained and, following Tulshidas Kanolkar, this became a factor creating serious doubt about the prosecution version.
Cases Cited by the Court
- Arjun Kumar @ Prince v. State of Bihar, 2021 (4) BLJ 260 (referred by defence counsel).
- Sunil v. State of Haryana, AIR 2010 SC 392.
- State of Madhya Pradesh v. Munna @ Shambhoo Nath, (2016) 1 SCC 696.
- Jarnail Singh v. State of Haryana, 2013 Cri. L.J. 3976.
- Tulshidas Kanolkar v. State of Goa, AIR 2004 SC 978.
Case Details
Case Number: Criminal Appeal (SJ) No. 5420 of 2019; arising out of Jaynagar P.S. Case No. 168 of 2016, G.R. No. 1548 of 2016, District Madhubani.
Case Title: Shonu Kumar Paswan v. State of Bihar.
Citation: 2022 (4) PLJR 170.
Coram: Hon’ble Mr. Justice Birendra Kumar.
Judgment Reserved (CAV Date): 26.11.2021.
Date of Judgment: 01.12.2021.
Advocates:
- For the Appellant: Mr. Vikas Kumar Sharma, Advocate; Mr. Subhash Kumar Jha, Advocate.
- For the State/Respondent: Mr. Sujit Kumar Singh, APP.
Nature of the Case: Criminal appeal (single judge) challenging conviction under Sections 366A and 376 IPC and Section 4 of the POCSO Act.
Link to Judgment: Full text of judgment on Patna High Court website
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