The Patna High Court has held that the conviction of an accused under the POCSO (Protection of Children from Sexual Offences) Act cannot be sustained if the age of the victim is not established by the prosecution.

The Court noted that no effort was made by the prosecution to establish the age of the victim in accordance with the statutory provision and that it is necessary to evaluate, analyze and screen out the evidence of witnesses adduced before the Trial Court in the light of the offence punishable under Sections 366A, 376/34 of the IPC and Section 4 of POCSO Act.

A Single Bench of Justice Alok Kumar Pandey observed, “Apparently, no exercise was carried out by the prosecution to establish that the victim was minor as on the date of occurrence by following the procedure prescribed under the Act in the light of reasoning put forth by the Supreme Court in case of Jarnail Singh (Supra). Further, in case of Rajak Mohammad vs. State of H.P. reported in (2018) 9 SCC 248 the Hon’ble Supreme Court has noted that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed.”

The Bench further observed that the statement of the victim before the trial court did not support the story of the prosecution and that she was declared hostile.

“From perusal of statement under Section 164 of the Cr.P.C., it is crystal clear that her testimony during adducing evidence before the trial court is totally inconsistent with the statement recorded under Section 164 of the Cr.P.C.”, said the Court.

Advocate Bimlesh Kumar Pandey appeared for the appellant while APP Abha Singh appeared for the State.

Facts -

An appeal was preferred against the judgment of conviction passed by the Additional Sessions Judge, Special Judge, POCSO whereby the appellant was found guilty of the offences punishable under Sections 366A and 376 of the Indian Penal Code and under Section 4 of POCSO Act, and he was sentenced to undergo ten years imprisonment along with a fine of Rs. 20,000/-.

A written report submitted to S.H.O., Ramnagar Thana, Bagha, West Champaran under the thumb impression of the informant was the basis for registration of the FIR. The Trial Court convicted the appellant and sentenced him but the co-accused stood acquitted by the same judgment.

The High Court after hearing the contentions of both parties asserted, “In the present case, the prosecutrix was a literate girl as she has signed everywhere. Therefore, she must have been getting education somewhere. It is not the prosecution case or evidence that prosecutrix did not attend any school. The finding recorded by the doctor in the medical report which has determined the victim’s age to be 17-18 years based on radiological examination and opinion of the dentist is not available in the medical report and said finding in court opinion cannot be treated to be accurate for the purpose of applying the provision of POCSO Act.”

The Court said that the statement of the victim cannot be trustworthy in the light of the fact adduced during evidence before it as the same is quite inconsistent with the story of the prosecution and that her evidence does not inspire confidence.

“The contention of appellant in the light of Section 29 of POCSO Act is quite tenable in the light of fact that there was failure on the part of prosecution to establish the essential fundamental facts to attract the provision of POCSO Act. From all counts from the analysis of evidence adduced during trial, contention of learned counsel of the appellant it is crystal clear that offence under Section 366A, 376 of the IPC and 4 of POCSO Act have not been proved beyond reasonable doubt and benefit of doubt goes in favour of the appellant”, held the Court.

The Court concluded that the prosecution case suffers from several infirmities, which is not a fit case where a conviction could have been recorded and hence, the trial court fell in an error of law as well as an appreciation of facts of the case in view of settled criminal jurisprudence.

Accordingly, the Court allowed the appeal and set aside the conviction of the appellant.

Cause Title- Deepak Kumar v. The State of Bihar

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