“Section 53A CrPC Is A Forgotten Provision in Bihar”: Patna High Court Pulls Up Police For Failing To Medically Examine POCSO Accused

While reiterating that a conviction can rest on the sole testimony of a prosecutrix if it is reliable and trustworthy, the High Court held that the evidence in the present case did not satisfy the standard of a “sterling witness” as required by law. The Court noted material inconsistencies between the First Information Report, the victim’s statement recorded under Section 164 of the Code of Criminal Procedure, and her testimony before the Trial Court, particularly regarding the place, timing, and manner of the alleged offences.

Accordingly, the bench overturned the conviction and life sentence imposed on the accused under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Indian Penal Code, holding that the prosecution failed to prove the foundational facts required to sustain a conviction.

Justice Bibek Chaudhuri, and Justice Ansul thus observed, “It is needless to say that the provision contained in 53A is a forgotten provision in the State of Bihar because this Court had dealt with number of criminal appeals and found that not in a single appeal, the Investigating Officer took resort of Section 53A” .

“Let us give an example, if in a case of sexual atrocity, where the accused is not examined medically and during trial, takes a plea of impotence, the Court will have no other alternative but to accept such contention in the absence of any report under Section 53A. Moreover, when Section 53A has been specially provided in the statute during trial or in the course of appeal, if in such appeal plea is taken by the accused, the Court probably cannot direct fresh medical examination of the accused because in that case such action by the Court will be in the nature of fishing out of evidence. Time has come to sensitize the police department directing them to have medical examination of the accused immediately after arrest”, the bench further noted.

Advocate Madhav Raj appeared for the appellant and Abhimanyu Sharma, APP appeared for the respondent.

In the present matter, according to the prosecution, the minor victim was taken away from her home and sexually assaulted on multiple occasions, resulting in pregnancy. The prosecution examined the victim, her father, the investigating officer, and the medical officer during trial.

The Trial Court had sentenced the accused to life imprisonment, primarily relying on the testimony of the prosecutrix and medical evidence indicating pregnancy.

However, after considering the facts and circumstances of the matter, the High Court was of the opinion that the investigating officer failed to visit the alleged place of occurrence outside the district and did not subject the accused to medical examination under Section 53A CrPC, lapses which it described as serious deficiencies in investigation.

The Bench also noted that another individual named in the FIR as a co-accused was later completely exonerated without any explanation, casting doubt on the prosecution’s version. 

The High Court emphasised that the statutory presumption under Sections 29 and 30 of the POCSO Act does not dispense with the prosecution’s obligation to first establish foundational facts beyond reasonable doubt. In the absence of such proof, the reverse burden could not be applied to the accused.

Holding that the conviction was based on misappreciation of evidence and procedural lapses, the Court set aside the judgment of the Trial Court and directed that the appellant be released forthwith, if not required in any other case.

Cause Title: X v. State of Bihar CRIMINAL APPEAL (DB) No.14 of 2019

Appearances:

Appellant: Madhav Raj, Vikash Kumar Jha, Abhinav Kumar, Kumar Ashish, Advocates.

Respondent: Abhimanyu Sharma, APP.

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