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PATNA HIGH COURT
Birendra Kumar, J.
Arjun Kumar @ Prince – Appellant
versus
State of Bihar – Respondent
Criminal Appeal (SJ) No.159 of 2018
Decided on 7.7.2021
Protection of Children from Sexual Offences Act, 2012 – Section 4 – Indian Penal Code, 1860 – Sections 363, 366A and 376 – Juvenile Justice (Care and Protection of Children) Rules, 2007 – Rule 12 – Kidnapping and rape of minor girl – Conviction and sentence – It is not prosecution case that consent of victim was obtained by fraud, or by putting her or anyone in whom she was interested in fear of death, or at the time of giving consent she was of unsound mind or under influence of intoxication, consequently unable to understand nature and consequence of that for which she gave consent – There is no difference as regards minority between child in conflict with law and child who is victim of crime – Rule 12 was applicable on the date of occurrence of this case – School document of age of victim was there which was deliberately not brought on record by prosecution – Even report of Ossification/Radiological test was not produced to have opportunity to defence to cross-examine experts regarding scientific method adopted by them while performing such examination – Evidence of exact date of birth of victim which was available with prosecution was not brought on record and evidence of approximate age cannot take place of proof of exact age – Once prosecution failed to prove that victim was below 18 years of age, evidence of her consent, assumes importance – Victim was in consensual relationship with appellant – As such, charge under Sections 376 IPC and 4 of POCSO Act fails – There is no prosecution case that a minor was induced to go for the purpose of illicit intercourse with another person – Conviction of appellant is illegal under Section 366A of IPC also – Prosecutrix was in consensual relationship with appellant and prosecution has failed to prove that victim was of age incapable of giving consent – Likewise, prosecution has failed to prove that victim was induced to go with appellant for the purpose of illicit intercourse with another person – Impugned judgment of conviction and order of sentence set aside – Appeal allowed. (Paras 7, 10 to 14)
Result: Appeal allowed.
JUDGMENT (C.A.V.)
Birendra Kumar, J.—The sole appellant Arjun Kumar @ Prince faced trial in POCSO Case No. 06 of 2016 arising out of Dumrao P.S. Case No. 396 of 2015 for offence under Sections 363, 366A and 376 of the Indian Penal Code as well as 4 of the POCSO Act. By the impugned judgment dated 13.11.2017, the learned trial Judged found guilty and convicted to the appellant for offences under Sections 366A and 376 of the Indian Penal Code and 4 of the POCSO Act. By the impugned order of sentence dated 17.11.2017, the appellant was directed to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 20,000/- for offence under Section 366A IPC. Three months imprisonment was ordered for non-payment of the fine aforesaid. For the offence under Section 376 IPC, the appellant was sentenced to undergo rigorous imprisonment of 10 years and to pay a fine of Rs. 20,000/-. In default of payment of fine, three months imprisonment was ordered. No separate sentence under Section 4 of the POCSO Act was passed considering the provisions of Section 42 of the POCSO Act.
2. The prosecution case as disclosed in the written report of Pushpa Devi (PW-3) the mother of the victim girl, is that on 29.11.2015 at about 10 a.m., her daughter aged about 13 years left the house for getting tuition. The youngest son Niku Kumar aged about 10 years reported that he had seen the victim girl going on an auto rickshaw towards the railway station. Soon thereafter the appellant, from the referred mobile, called to the informant and said that he is along with the victim girl and he is taking her to Patna for marrying with her. The informant alleges that her minor daughter was induced by the appellant for the purpose of marriage. On the written report aforesaid, Dumrao P.S. Case No. 396 of 2015 was registered on 29.11.2015 itself. On 03.12.2015, the victim girl was found at the railway station Dumrao by the police vide evidence of the investigating officer (PW-6) in Para-6. Medical examination of the victim was done on 04.12.2015 vide report at Ext.-2 and her statement under Section 164 Cr.P.C. was recorded on 04.12.2015 itself vide Ext.-1.
3. After investigation, the police submitted chargesheet and accordingly the appellant was put on trial. The prosecution examined altogether 10 witnesses.
4. PW-1 the victim girl consistent with her statement before the Magistrate under Section 164 Cr.P.C deposed that one year ago at 10 a.m., she was ready to go for tuition. Just then a mobile call came on the mobile of her mother. The victim received the call. The appellant said that he wants to meet her and called her at once and proposed that appellant wants to marry with her. She left her house along with her brother, but the appellant induced her to go with him. Thereafter the appellant was in physical relation with her for three days. Later on brought her to railway station Dumrao and left her there-at. Then the victim telephonically informed to her mother. Her mother came and she went to her house. She went to the police station and her statement was recorded before the Magistrate. She was medically examined by the doctor. In the cross-examination, the witness said that the appellant had met her at the railway station. The people were coming and going at the railway station. She had not disclosed anyone that the appellant had induced her to go with him. Then the appellant purchased ticket and both took a train. Neither at the time of boarding the train nor getting off the train, she made any alarm. She was kept in a house at Patna where no one was there. On all the three days, she had herself locked the room from inside. However whenever the appellant used to go outside he was locking the room from outside. After three days, both came at Patna railway station and from there they again returned to Dumrao railway station.
PW-2 Dr. Bharti Dwivedi had medically examined the victim vide report at Ext.-2. According to PW-2, there was no external injury on th
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