Chandra Shekhar Jha, J.—At the outset, it is important to mention that this appeal was taken on board under the caption “For Orders” where initially prayer of bail and suspension of sentence under Section 389(1) of the Code of Criminal Procedure (for short ‘Cr.P.C’). on behalf of appellant no.1, namely, Sonu Kumar @ Abhishek Kumar was raised through memo of appeal itself, where learned counsel for the appellant after short argument submitted as not to press the prayer of bail and suspension of sentence, accordingly, same stands dismissed for the present. However, learned counsel for the appellants requested for final hearing of the appeal, which was not objected by learned APP for the State and learned counsel for the informant and, therefore, this appeal was finally heard under aforesaid caption in view of Section 374(4) of the Cr.P.C., as the appellant no.1 convicted under Section 4 of the Protection of Children from Sexual Offences Act (for short ‘POCSO Act’) along with Section 376 of the Indian Penal Code (for short ‘I.P.C.’).

2. This appeal has been preferred by the appellant/convict under Section 374(2) of the Cr.P.C. challenging the impugned judgment of conviction dated 04.07.2024 and order of sentence dated 10.07.2024 passed by learned Exclusive Special Court (POCSO Act)-cum-7th Additional District and Sessions Judge, Bhagalpur in POCSO Case No.29 of 2019 arising out of Ishipur Barahat P.S. Case No.29 of 2019, whereby the concerned Trial Court has convicted the appellant no.1 for the offences punishable under Section 376 of the I.P.C. and Section 4 of the POCSO Act and sentenced to undergo rigorous imprisonment for seven years with fine of Rs.20,000/- and in default of payment of fine, to further undergo simple imprisonment for one year under Section 4 of the POCSO Act. Appellant nos. 2 to 4 have been sentenced to undergo rigorous imprisonment for three years with fine of Rs.10,000/- and in default of payment of fine, to further undergo simple imprisonment for six months under Section 366-A read with 34 of the I.P.C.

3. Brief case of prosecution, as per written report of informant/PW-1, namely, Ajay Kumar Mahto that on 26.03.2019 at 09.00 hours, his daughter/PW-3 had gone to doctor for taking medicine but, she did not return upto 11.00 hours. Thereafter, the informant along with his family members started search but, she was not traced out. In the evening, when the informant returned home, he came to know that Bhanja and his neighbour, namely, Sanjay, Arbind, Monu Kumar @ Abhishek Kumar, son of Bindeshwari Singh were absconding for some time. The informant further stated that he suspected that Monu with his associates has kidnapped his minor daughter for some wrong purpose. When he enquired from Sanjay and Arbind then, both told to give one hour, they will hand over the boy and victim girl but, after passing of time, his daughter was not returned. It is further stated that on 27.03.2019 his mother, namely, Sarita Devi and father Bindeshwari Singh came in morning and told not to lodge the case, they will return his daughter today but, till date, the daughter of informant has not returned and told him that his daughter has fled away and they are not responsible. The informant has suspected the hands of appellants/accused in kidnapping of his daughter for wrong purpose.

4. On the basis of aforesaid written report of the informant, a formal FIR, being Ishipur Barahat P.S. Case No.29 of 2019 dated 01.04.2019 was registered under Section 366-A of the I.P.C. and Section 8 of the POCSO Act against the appellants and others.

5. After completion of investigation and on the basis of materials collected thereof, the Investigating Officer of this case has submitted Final Form No.28 of 2019 dated 05.06.2019 for the offence punishable under Section 366-A of the I.P.C. and Section 8 of the POCSO Act by mentioning ‘mistake of facts’.

6. Learned Special Court/trial court after differing with the opinion given by Investigation Office of this