Case Background
This case arose from Jaynagar P.S. Case No.168 of 2016, District Madhubani. The informant, examined later as PW 7, alleged in his written report that his daughter, stated to be about 12 years old, had gone to the market on 09.07.2016 around 5 PM.
According to the report, she went with her elder sister Chanda Kumari (PW 3) and a friend Sarita Kumari (PW 2). Sarita and Chanda entered a shop, while the younger girl stayed outside on the road. At that time, the appellant allegedly arrived on a motorcycle, made her sit on the rear seat and took her away. The two girls raised alarm, but the appellant allegedly fled. The parents of the appellant were also blamed in the report as being involved in the kidnapping. The informant claimed that he kept requesting the appellant’s family to bring the girl back, and even called a panchayat, but nothing worked.
The written report was finally lodged on 23.07.2016, about two weeks after the alleged kidnapping. Later, the girl herself “suo motu” appeared before the Mahila Police Station, Madhubani. Her medical examination was conducted on 27.08.2016 and marked as Exhibit-5. Her statement under Section 164 Cr.P.C. was recorded on 29.08.2016 before the Magistrate and marked as Exhibit-1.
The case was tried by the Court of the learned Special Judge, Madhubani, in G.R. No.1548 of 2016. The trial court convicted the appellant under Sections 366A and 376 of the Indian Penal Code and Section 4 of the POCSO Act. On 24.09.2019, judgment of conviction was passed and, by order dated 25.09.2019, the appellant was sentenced 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 High Court closely examined the evidence, arguments from both sides, and the legal position on proving age and consent.
On behalf of the appellant, learned counsel Mr. Vikas Kumar Sharma argued that the prosecution case itself and especially the evidence of PW 1, the girl, showed that it was a love affair rather than kidnapping or forced sexual assault. Counsel stressed that throughout the journey and stay with the appellant, the girl never raised any alarm in public places or to any authority.
The defence highlighted that the girl stayed with the appellant in Nepal for about one month and then in Delhi for another month. During this period, she travelled by bus and train, lived in a room near other people, and yet made no complaint to anyone. According to the defence, this conduct was not consistent with a person kidnapped and forcibly raped.
The appellant’s counsel also pointed out that no independent public witness supported the alleged kidnapping, even though it allegedly took place in a marketplace. The only witnesses produced were related or interested witnesses. Further, the defence case was that the girl was in fact a major, and the prosecution intentionally did not bring her school documents to prove her exact date of birth.
PW 5 (mother) and PW 7 (father) were examined, but neither gave her actual date of birth. PW 3 stated that the girl was a student of Class VII, which indicated that school records must exist. However, no school certificate or admission register was produced.
Medical evidence through PW 8 Dr. Gargi Singh and PW 9 Dr. Rama Jha showed that the girl had well-developed secondary sexual characteristics, developed breasts, and pubic and axillary hair. The medical board opined that she was between 16 and 17 years old. The defence argued that this was only an approximate age based on radiological examination, that the radiological report was not placed on record, and that the radiologist himself was not examined. Hence, according to the defence, there was no reliable proof that she was a minor at the time of the incident.
The defence further submitted that the FIR was deliberately lodged after considerable delay and that there were contradictions in the informant’s explanation for this delay. In his written report, the informant blamed the delay on a panchayat that he had convened. But during cross-examination as PW 7, he denied ever convening any panchayat, casting doubt on his version. Reliance was also placed on a decision of this Court in Arjun Kumar @ Prince v. State of Bihar, 2021(4) BLJ 260.
On the other hand, learned Additional Public Prosecutor Mr. Sujit Kumar Singh argued that when a victim of sexual assault says she was ravished without consent, the Court should presume absence of consent, and the burden shifts to the accused to prove otherwise. He contended that the appellant failed to discharge this burden.
The prosecution pointed out that PW 2, PW 3, PW 4 Bechan Paswan, and PW 6 Dayaram Paswan all deposed that they had seen the appellant taking the girl away on a motorcycle. The victim herself consistently stated that she was ravished by the appellant. Witnesses who deposed that the girl was minor were not challenged in cross-examination on this point. Medical evidence also suggested that she was between 16 and 17 years. Therefore, the prosecution maintained that the trial court’s conviction was correct and required no interference.
The High Court began its analysis with the evidence of PW 1, the girl. She stated that she had gone to the market with her sister and friend, that they went inside the shop and she remained alone outside. She said the appellant came alone on a motorcycle, made her sit on the back seat by putting her in fear not to raise alarm, and took her to Nepal by bus, then to Delhi by train, and back to Madhubani by train. She admitted that there were other passengers during these journeys and people around on the platforms, but claimed she did not protest due to fear. She said the appellant stayed with her in Nepal and Delhi for about two months and “used to ravish her” despite her protest.
However, PW 2 stated that although she saw the appellant taking the girl away, she did not see the girl crying. PW 4 stated only that he saw the appellant seat the girl on the motorcycle.
On a close scrutiny of the evidence of PW 1 and the eye-witnesses, the Court concluded that the girl had gone with the appellant of her own free will. The Court noted that she freely sat as a pillion rider on the motorcycle when there was no one stopping her from jumping off or raising an alarm. PW 2 and PW 4 were present but did not raise any alarm either.
The Court emphasised that the girl travelled by bus and train and stayed with the appellant in Nepal and Delhi for about two months, yet made no attempt to complain to co-passengers, railway or bus staff, neighbours or any authority. She came forward with allegations only after the criminal case was instituted. From this, the Court inferred that she was in a consensual relationship with the appellant.
Given this conclusion, the Court held that the question of age became crucial, because if she was a minor on the date of occurrence, her consent would be legally irrelevant under POCSO and Section 376 IPC. But if she was major, the element of consent could defeat the prosecution case.
On age, the Court found that the prosecution had relied only on approximate medical opinion. No school document was produced and the parents did not give the exact date of birth despite being examined. The medical board’s opinion that the girl was between 16 and 17 years was based on radiological examination, but neither the radiological report nor the radiologist’s testimony was brought on record. The Court viewed this as a serious gap.
The Court then referred to several Supreme Court decisions. In Sunil v. State of Haryana, AIR 2010 SC 392, the Supreme Court had held that non-production of the radiologist was a serious lapse and that school admission forms are primary evidence for age. In State of Madhya Pradesh v. Munna @ Shambhoo Nath, (2016) 1 SCC 696, the Supreme Court held that mere evidence of approximate age is not enough to conclude exact age. In Jarnail Singh v. State of Haryana, 2013 Cri. L.J. 3976, the Supreme Court ruled that the age of a rape victim has to be determined in the manner laid down for juveniles, now reflected in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
The High Court reproduced Section 94 JJ Act, which sets the order of preference: school or matriculation certificate, then birth certificate from municipal authority or panchayat, and only in their absence, ossification test or other medical age determination.
Applying these principles, the Court held that the prosecution had failed to prove the exact age of the girl. The mere opinion that she was between 16 and 17 years could not, in absence of proper documentary or radiological evidence, be treated as reliable proof of minority.
The Court also examined the delay in lodge of the FIR. Referring to Tulshidas Kanolkar v. State of Goa, AIR 2004 SC 978, the Court acknowledged that delay by itself does not destroy a rape case but requires a satisfactory explanation. In this case, the informant’s written report claimed the delay was due to a panchayat, but as PW 7 he denied convening any panchayat. Further, if witnesses had actually seen a clear kidnapping, there was no scope for panchayat because cognizable offences cannot be settled there. The Court inferred that the family likely knew that the girl had left due to a prior affair and lodged the FIR only when they could not secure her return.
Summarising, the Court held that the prosecution suffered from serious infirmities: (i) unexplained and doubtful delay in FIR, (ii) conduct of the girl indicating consensual relationship, and (iii) failure to prove that she was a minor on the date of occurrence.
Consequently, the Court held that the prosecution had “miserably failed” to prove any of the charges. The conviction and sentence were set aside and the appellant was directed to be set free at once.
Why This Judgment Matters
This Patna High Court decision is important for criminal cases involving allegations of kidnapping and sexual assault, especially where the age of the girl is disputed.
First, it shows that courts will not simply rely on approximate medical opinion to treat a person as minor. The prosecution must bring the best available documentary evidence like school records or birth certificates. Where such records exist but are not produced, the benefit of doubt may go to the accused.
Second, the judgment highlights that the conduct of the alleged victim is closely examined. If a person travels and lives with the accused for a long period without protest, particularly in public places where help is available, courts may see it as a sign of consent, unless strong evidence suggests otherwise.
Third, the decision underlines the importance of prompt reporting to the police. When there is substantial delay and contradictory explanations for that delay, courts become cautious about accepting the prosecution story, especially in serious offences like rape and kidnapping.
For families, complainants and police, the judgment reinforces the need to file FIRs quickly, give consistent statements, and preserve and produce proper age-related documents. For accused persons, it shows that higher courts will carefully examine whether trial courts overlooked key weaknesses in the prosecution evidence.
Legal Issues and Answers
Issue: Whether the prosecution proved that the girl was a minor on the date of the incident, so that her consent would be legally irrelevant under IPC and POCSO.
Answer: No. The Patna High Court held that only an approximate medical opinion was produced, without school or birth records or radiological report, so minority was not proved.
Issue: Whether the evidence established that the girl was kidnapped and sexually assaulted without her consent.
Answer: No. Based on her conduct of travelling and staying with the appellant for two months without any protest or complaint, the Court inferred a consensual relationship and found that force or lack of consent was not proved.
Issue: Whether the conviction could stand despite delay in lodging the FIR and contradictions about the reason for delay.
Answer: No. The unexplained and contradictory explanation for delay, combined with other infirmities, created serious doubt about the prosecution case, leading to acquittal.
Cases Cited by the Court
- 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
- Arjun Kumar @ Prince v. State of Bihar, 2021(4) BLJ 260 (relied upon by defence)
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. The State of Bihar
Citation: 2022 (4) PLJR 170
Coram: Hon’ble Mr. Justice Birendra Kumar
Advocates: Mr. Vikas Kumar Sharma, Advocate and Mr. Subhash Kumar Jha, Advocate for the appellant; Mr. Sujit Kumar Singh, Additional Public Prosecutor (APP) for the State.
Nature of the Case: Criminal appeal (against conviction under Sections 366A and 376 IPC and Section 4 of the POCSO Act).
Date of High Court Judgment: 01.12.2021 (C.A.V. judgment; CAV date 26.11.2021)
Outcome: Conviction and sentence set aside; appellant directed to be released.
Link to Judgment: https://patnahighcourt.gov.in/viewjudgment/MjQjNTQyMCMyMDE5IzEjTg==-4Bp–am1–kxnZUkI=
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