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IN THE HIGH COURT OF JUDICATURE AT PATNA
ALOK KUMAR PANDEY, J.
Md. Sadre Alam S/o Md. Kalam @ Md Kalamuddin – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (SJ) No. 3149 of 2025
Decided On : 30-10-2025
Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 – Juvenile Justice (Care and Protection of Children) Rules, 2007 – Rule 12 – Bharatiya Nyaya Sanhita, 2023 – Section 137(2) – Determination of juvenility – Conviction for offence of kidnapping from lawful guardianship – Minor victim – No documentary proof has been produced by prosecution side with regard to age of victim though copy of school leaving certificate has been produced which is neither a piece of authenticated document nor same has been exhibited – Even the person who has issued said document has not been examined – Age of victim has not been determined by Ossification Test or any other latest medical age determination test conducted on orders of Committee or Board which is also mandatory requirement under Section 94 of J.J. Act – No piece of paper has been adduced by prosecution side to prove age of victim under mandatory provision of law and victim is star witness who has stated during statement under Section 183 BNSS that appellant has not committed any wrong against her and same is corroborated while adducing evidence before Court – Victim has joined company of appellant and forced him to take away her – Age of victim has not been determined and it has not been proved that she is minor – Prosecution has failed to prove charge under Section 137(2) of BNS beyond reasonable doubt – It was not a fit case where conviction could have been recorded – Impugned judgment of conviction and order of sentence set aside – Appeal allowed. (Paras 26, 27 and 28)
| Table of Content |
|---|
| 1. conviction basis and procedural details. (Para 4 , 6 , 7 , 8) |
| 2. defense claims and arguments. (Para 10 , 12 , 13) |
| 3. court's review of conviction. (Para 11 , 14 , 15) |
| 4. procedures for determining age in law. (Para 16 , 17 , 18) |
| 5. legal distinction between taking and accompanying a minor. (Para 19 , 25) |
| 6. outcomes of the appeal decision. (Para 27 , 28) |
JUDGMENT :
ALOK KUMAR PANDEY, J.
1. Heard learned counsel for the appellant and learned APP for the State.
2. At the very outset, learned counsel for the appellant seeks permission to make necessary correction in memo of appeal regarding P.S. Case number during course of the day.
3. Permission, as prayed for, is granted.
4. The present appeal has been directed against the judgment of conviction dated 18.06.2025 and order of sentence dated 23.06.2025 passed by learned District and Additional Sessions Judge-VI cum Special Judge, POCSO (I), Muzaffarpur in connection with POCSO G.R. No. 36 of 2025, arising out of Mushahari P.S. Case No. 305 of 2024 whereby the appellant has been convicted for the offence punishable under Section 137 (2) of B.N.S. and has been sentenced to undergo rigorous imprisonment for four years alongwith fine of Rs. 5,000/- (five thousand) for the said offence and in default of payment of fine, appellant has to suffer six months rigorous imprisonment.
5. The name of victim has not been disclosed in the present judgment to protect her prestige and dignity.
6. A written report submitted to S.H.O., Musahri Police Station in the district of Muzaffarpur under the signature of informant is the basis for registration of First Information Report (hereinafter referred to as FIR).
7. According to written report of informant (PW-1), the occurrence is of 21.11.2024 for which information was given on 09.12.2024 and immediately whereafter FIR was registered. The prosecution case, in brief, is that on 21.11.2024, the appellant is said to have called the victim and induced her and took away the victim. It is further alleged that when informant proceeded to ask about the victim, co-accused Md. Kalam and Md. Islam became aggressive and raised question as to why the informant came here and they also made an attempt to assault the informant by means of lathi and danda but she anyhow escape from there.
8. On the basis of written report of informant, Mushahari P.S. Case No. 305 of 2024 dated 09.12.2024 was registered under Sections 137 (2), 96, 3(5) of B.N.S. Routine investigation followed. Statement of witnesses came to be recorded and on completion of investigation, charge sheet has been submitted against the appellant under Section 137 (2), 96 of BNS and Section 8 /10 of POCSO Act and cognizance was taken accordingly under the aforesaid sections. The learned trial court framed charges under Sections 137 (2), 96 of and , 10 of POCSO Act. The charges were read over and explained to the appellant to which he pleaded not guilty and claimed to be tried.
9. In order to bring home guilt of the accused (appellant/convict), prosecution has examined altogether four witnesses. PW-1 is informant, PW-2 is victim, PW-3 is father of the victim and PW-4/ Deepak Kumar is Investigating Officer of the case. Following documentary evidence came to be exhibited on behalf of the prosecution:-
Exhibit-P/1- Signature of the informant on fardbeyan.
Exhibit-P/2- Signature of victim on her statement under Section 183 BNSS.
Exhibit-P/3- Signature of SHO on fardbeyan.
Exhibit-P/4- Signature of SHO on formal FIR.
Exhibit-P/5- Signature of I.O. on charge sheet.
10. Defence has neither produced any witness nor any documentary evidence in support of his case. Defence of the appellant as gathered from the line of cross examination of prosecution witnesses as well as from statement under Section 313 of the Cr.P.C. is that offence has not been committed by the appellant and claimed to be innocence.
11. After hearing the parties, the learned trial court convicted the appellant and sentenced him as indicated in th
The prosecution must clearly prove a victim's minority in POCSO cases, requiring authenticated age documentation; mere reliance on school records is insufficient.
Conviction and sentencing for sexual offences under the POCSO Act upheld, establishing that the defense's failure to challenge the victim's age and credibility supported the prosecution's case.
The court ruled that the prosecution failed to prove the minor status of the victim beyond a reasonable doubt, undermining the conviction under the POCSO Act.
The prosecution failed to establish the victim's age as a child under the POCSO Act, leading to the quashing of the conviction due to insufficient evidence and credibility issues.
Point of Law : There was failure on the part of the prosecution to establish the essential foundational facts to attract the provision of POCSO Act.
Penetrative sexual assault upon minor girl – It is incumbent upon prosecution to establish beyond all reasonable doubts that victim was below 18 years as on date of occurrence to attract provisions o....
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