In Birju @ Raja vs. The State of Bihar Bihar (2026), Patna High Court's Division Bench of Justices Bibek Chaudhuri and Chandra Shekhar Jha delivered a 31-page long judgment dated April 10, 2026, wherein, it concluded:"....we modify the order of conviction and sentence passed against the appellant. 54. The appellant, namely, Birju @ Raja, is convicted under Section 235(1) of the Cr.P.C. for the offence punishable under Section 366 and Section 376 of the I.P.C. In respect of other offences, charged, the appellant is acquitted.55. For the offence punishable under Section 366 of the I.P.C., the appellant is liable to be sentenced to suffer imprisonment of either description, for a term which may extend to 10 year and shall also be liable to fine. 56. For the offence punishable under Section 376 of the I.P.C., he shall also be punished with imprisonment of either description, which shall not be less than 10 years, but which may extend to imprisonment for life and shall also be liable to fine." Justice Chaudhuri authored the judgement.
The offences Sections 366 and 376 of the IPC are serious and non-bailable offences of sexual violence. Section 366 deals with kidnapping, abducting, or inducing a woman to compel marriage or force illicit intercourse. Section 376 defines the punishment for rape.
The judgement added: "57. We have considered the fact that the appellant is a young man. No previous offence was proved against him. Undoubtedly, he committed a heinous offence but considering the age of the appellant and the fact that his entire life is left, when he can live a life of a responsible citizen, we propose to pass the following order of sentence: -(a) The appellant, Birju @ Raja, is sentenced to suffer rigorous imprisonment for a period of 10 years with fine of Rs. 20,000/-, in default to suffer further imprisonment of six months for the offence punishable under Section 366 of the I.P.C. (b) The appellant is also sentenced to suffer rigorous imprisonment for 10 years and also to pay fine of Rs. 20,000/-, in default to suffer further imprisonment for six months for the offence punishable under Section 376 of the I.P.C. (c) Substantive sentence of imprisonment shall run concurrently. However, sentence for non-payment of fine shall run separately. (d) If the fine amount is realized, 80 per cent of the said fine amount be paid to the victim no. 1 as compensation. 58. The appellant is acquitted of the remaining charges."
Justice Chaudhuri observed:"....we would like to observe at the outset that every accused is presumed to be innocent unless proved guilty. The presumption of innocence is a human right. However, subject to statutory exceptions, the said principle forms the bedrock of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and its gravity must be taken into consideration. The Courts must remain vigilant to ensure that the application of such presumption does not result in injustice or mistaken conviction. Under the Prevention of Children from Sexual Offences Act, the concept of reverse burden has been introduced, as in certain other serious offences under enactments such as the NDPS Act, Negotiable Instrument Act, Prevention of Corruption Act and Terrorist and Disruptive Activities (Prevention) Act, etc. The provisions contained in the aforesaid enactments and particularly in Sections 29 and 30 of the POCSO Act, 2012, are in the nature of an exception to the general principle that the burden of proof always lies upon the prosecution. In the instant case, since we are concerned with the principle of reverse burden contained in Section 29 and 30 of the POCSO Act, we propose to deal with the law relating to reverse burden POCSO Act."
The judgement drew on the decision in Sachin Baliram Kakde vs. State of Maharashtra, reported in 2015 SCC OnLine Bom 8972, the Supreme Court in the context of presumption under Section 29 of the POCSO Act, 2012, held as follows: - “18. Thus, when a person is prosecuted for commission of the offence specified in the said section, the Court is required to presume that he said person has committed the said offence unless the contrary is proved. 19. The presumption, however, cannot be said to be irrebuttable. Infact, no presumption is irrebuttable in law, as this cannot be equated with conclusive proof. The provisions of section 29 of the POCSO Act mandates the Court to draw the presumption unless contrary is proved. 20. One has to keep in mind, as expressed by an eminent jurist that presumptions are bats in law, they fly in a twilight but vanish in the light of facts.” 30. It is no longer res integra that the presumption under Section 29 of the POCSO Act is not absolute. It is the duty of the prosecution to prove the foundational fact of the case, and only thereafter can the presumption under Section 29 and 39 be invoked. The statutory presumption stands activated only upon proof of the foundational facts by the prosecution. Even once such presumption is activated, the burden upon the accused is not to rebut the same beyond reasonable doubt. It is sufficient if the accused is able to create a serious doubt regarding the veracity of the prosecution case or brings on record material, rendering the prosecution version highly improbable. 31. Bearing this principle in mind, this Court shall now appreciate the evidence on record in order to come to a definite finding and the final conclusion in the instant appeal."
Res integra refers to legal issues that remain unresolved or untouched by precedent, affording judges the discretion to decide.
The judgement reads:"41. We are not unmindful to note that in every case of rape, there must be physical injury around the private part and other parts of the body of the victim where there is complete subjugation out of fear and the victim found that any resistance against such act of the accused would be futile effort. Absence of injury does not support a case of consensual sex. 42. On the question as to whether the physical relationship between the appellant and the victim no. 1 was consensual or she was forced to commit sexual intercourse, the evidence of victim as well as circumstances leading to such activity are relevant. In Premkumar (supra), the Hon'ble Supreme Court held that physical relationship between the victim and the accused was consensual because of the fact that it appeared in evidence that the victim and the accused had love relationship for long. In the instant case, on the contrary, it is specifically denied by the victim no. 1 that she had love relationship with the appellant. In the F.I.R. also, the informant, being the uncle of the victim no. 1, stated that the appellant and two other boys used to disturb the victims for quite some time. Therefore, there is absolutely no evidence that the victim had love relationship with the appellant." It referred to the decision in Nirmal Premkumar v. State, reported in 2024 SCC OnLine SC 260, which was cited by the counsel of the appellant.
The criminal appeal had challenged the judgement, dated September 26, 2018, whereby and whereunder, the appellant was convicted under Section 235(1) of the Cr.P.C. for committing an offence punishable under Sections 363/376(2)(i) of the Indian Penal Code and Section 4/6/10 of the POCSO Act, 2012. By an order dated October 5, 2018, the Additional Sessions Judge-cum-Special Judge, Vaishali at HM Hjipur sentenced the appellant to undergo rigorous imprisonment for 10 years with fine of Rs. 20,000/- for the offence under Section 363 read with Section 34 of the I.P.C. He was also sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 20,000/- for the offence punishable under Section 366A read with Section 34 of the I.P.C. The appellant was further sentenced to suffer imprisonment for 12 years and fine of Rs. 25000/- for the offence punishable under Section 376 (2)(i) read with Section 34 of the I.P.C. Further sentence of rigorous imprisonment of 12 years with fine of Rs. 25,000/- for the offence punishable under Section 4 of the POCSO Act, 2012. Further sentence of rigorous imprisonment for 10 years with fine of Rs. 20,000/-. Further sentence of rigorous imprisonment for 12 years and fine of Rs. 25000/- for the offence punishable under Section 6 of the POCSO Act, 2012 and further sentence of rigorous imprisonment for 7 years and fine of Rs. 10,000/- for the offence punishable under Section 10 of the POCSO Act, 2012. It was also directed that the appellant shall suffer simple imprisonment for 5 months each for non-payment of fine amount on each count. All the sentences of rigorous imprisonment were directed to run concurrently.
In the appeal, the appellant had challenged the judgement of conviction and sentence on the following grounds:(a) Prosecution failed to bring home the charge against the accused; (b) No eye-witness to support the case of kidnapping of the minor girl of the informant, and her friend could be examined by the prosecution; (c) The Investigating Officer failed to ascertain the registration no. and identity of the Scorpio Car, with the help of which the victims were kidnapped. (d) The prosecution failed to prove the place of illegal confinement of the victims; (e) Prosecution also failed to prove involvement of three accused persons in the offence as alleged; (f) The prosecution case is full of contradiction with the evidence; and (g) The learned Trial Judge held the appellant guilty for the offence only on the basis of statement of the victim under Section 164 of the Cr.P.C. without considering the fact that such statement is only corroborative in nature."
The case was that one Sonu Kumar of village-Ajmatpur within the Police Station-Rajapakar in the district of Vaishali lodged a written complaint on July 3, 2016, stating, that on July 3, 2016 at about 07.00 a.m., her niece Soni Kumari, daughter of Binay Kumar Sharma, aged about 14 years along with one Savita Kumari, a minor girl aged about 13 years went to Ghora Chowk, which was stated to be at a distance of about 1 k.m. away to purchase some biscuits. However, they did not return even after considerable period of time. The informant came to know from the parents of his niece that three young men of village Baranti, namely, Birju @ Raja, Chhotu Kumar and Ranjan Singh, used to eve-tease and disturb them for some period of time. The informant made a complaint against them to their respective parents and they assured that their respective sons would not further commit such wrong in future. As the victim girls did not return to their respective homes, the informant suspected that had been kidnapped for some illicit purpose and lodged the complaint so that no harm might be caused to the said minor girls. On the basis of the said complaint, police registered a case, dated July 4, 2016, under Section 363/366A.
Upon completion of investigation, the police submitted a charge-sheet against all three accused persons under Section 363/366A/376(2)(i) of the I.P.C. and Section 4/6/8/10 of the POCSO Act, 2012. Since the charge-sheet was submitted under the POCSO Act, 2012, the case was committed to the Court of the Special Judge, POCSO Court, Vaishali at Hajipur for trial and disposal. During trial, the prosecution examined 10 witnesses. On the basis of the evidence on record, both the oral and documentary, the trial judge convicted the accused//appellant and sentenced him to suffer rigorous imprisonment on different heads of charges.
The judgement was challenged in the High Court. The counsel for the appellant submitted that nobody saw the appellant or his associates to elope the victim girls from Ghora Chowk. It is the case of the prosecution that the victim girls were taken to Kolkata by the appellant and his associates but the Investigating Agency could not identify the space where the victims were allegedly confined. As per the prosecution case, they were allegedly kidnapped on July 3, 2016. The victim no. 1 was recovered from the side of the high road near her village in the early morning of July 22, 2016. After recovery, she was taken to the Police Station. Thereafter, her medical examination was done. Victim’s statement under Section 164 Cr.P.C. was recorded on the date of her recovery, i.e., on July 22, 2016. Victim No. 2 was also confined in the same room along with victim no. 1. According to her, she stayed with the accused persons for three days. Thereafter, she somehow fled away and informed the incident to an Auto Driver. The Auto Driver handed her over to the police of Kolkata. She was sent to a Home run by Childline for about two months. Thereafter, in the month of September, she was recovered by the Investigating Officer. It was also submitted that there is absolutely no witness examined by the prosecution during trial, who corroborated the prosecution case regarding involvement of the appellant.
Justice Chaudhuri observed:"We also find that though the victim claimed that sh.e was aged about 15 years at the relevant point of time, the radiologist opined after conducting ossification test that the victim was aged between 17 and 19 years. If we consider the margin of errors to two years, then the approximate age of the victim at the relevant point of time was either 17 years or 21 years. It is needless to say that the margin of error shall be taken into consideration on the higher side to the benefit of the appellant. 50. The Investigating Officer did not take any attempts to seize:- (i) Date of birth certificate of the school or the matriculation or equivalent certificate from the concerned Examination Board, if available and in the absence thereof; (ii) Birth certificate given by a corporation or a municipality authority or a Panchayat; and (iii) only in absence of (i) and (ii) above, age shall be determined by an ossification test or any other medical age determination test. 51. In the absence of any birth certificate from the school or birth certificate given by the corporation, we have no other alternative but to rely on the ossification test of the victim, on perusal of which it is very uncertain to note that the victim was a minor on the date of commission of offence. 52. Even assuming that the victim was a major and she was subjected to rape by the appellant and for commission of such offence, she was abducted and forcibly confined in a room, the appellant is liable to be convicted under Section 366 for forcing the victim to illicit intercourse and Section 376 of the I.P.C."
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