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PATNA HIGH COURT
Alok Kumar Pandey, J.
Md. Suhail – Appellant
versus
State of Bihar – Respondent
Criminal Appeal (SJ) No.4329 of 2022
Decided on 12.4.2023
(A) Protection of Children from Sexual Offences Act, 2012 – Section 6 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94(2) – Indian Evidence Act, 1872 – Section 118 – Penetrative sexual assault on girl child – Conviction and sentence – Statement of victim is quite contradictory in nature with statement of informant – Neither medical examination of victim was conducted nor her clothes were seized – No exercise was carried out by prosecution to establish that victim was minor as on date of occurrence by following procedure prescribed under Juvenile Justice Act – Evidence of approximate age of victim would not be sufficient to any conclusion about exact age of victim – Prosecutrix was a literate girl – No effort was made by prosecution to establish age of victim in accordance with statutory provision – Statement of victim recorded under Section 164, Cr.P.C. is merely a tutored version – Victim has never stated that appellant committed wrong against her – Prosecution case suffers from several infirmities and it was not a fit case where conviction could have been recorded – Trial judge who has a child witness before him should preserve on record question and answer which could help higher courts or courts of appeal, to come to conclusion whether trial court Judge decision of competency was right or wrong – Impugned judgment of conviction and order of sentence set aside. (Paras 16, 17, 19, 20, 21,
22, 31, 34, 42 and 45)
(B) Criminal Procedure Code, 1973 – Section 53-A – Medical examination of accused of rape – Said provision is not mandatory in character but it enables prosecution to conduct examination of victim in a manner as to substantially establish a charge of committing offence of rape – Failure of prosecution to subject appellant to medical examination was certainly fatal to prosecution’s case especially when ocular evidence was found to be not trustworthy. (Paras 36, 37 and 38)
Result: Appeal allowed. Appellant acquitted.
JUDGMENT (CAV)
The present appeal has been directed against the judgment of conviction dated 18.11.2022 and order of sentence dated 23.11.2022 passed by learned Additional Sessions Judge-VII cum Special Judge, Protection of Children from Sexual Offences Act (hereinafter referred to as POCSO), Patna in Special (POCSO) Case No. 178/2017 arising out of Bikram P.S. Case No. 336/2017 whereby the accused (appellant/convict) has been convicted for the offence punishable under Section 6 of the POCSO Act and has been sentenced to undergo rigorous imprisonment for ten years alongwith fine of Rs.50,000/- (fifty thousand) for the said offence and in default of payment of fine he has to suffer two months additional imprisonment.
2. The name of victim has not been disclosed in the present judgment to protect her prestige and dignity.
3. A written report submitted to S.H.O., Bikram Police Station in the district of Patna under the signature of informant is the basis for registration of First Information Report (hereinafter referred to as FIR).
4. According to written report of informant (PW-2), the occurrence is of 17.11.2017 at about 5.00 P.M. for which information was given on 19.11.2017 at about 9.30 hours and immediately whereafter FIR was registered. The prosecution case, in brief, is that the victim aged about 8 years was lured by the accused (appellant/convict) with a promise to give lemon to her and on the pretext of taking lemon, the victim went away with the accused (appellant/convict). When the victim did not return, the informant went out for searching her. It is claimed by the informant that she saw that accused (appellant/convict) made an attempt to commit rape upon the victim in the husk room. It is further claimed by the informant that the accused (appellant/convict) fled away from the spot after noticing the presence of the informant. After that, the informant cautioned the family members of accused (appellant/convict) but she did not get any positive response. It is further claimed that she gave application to police station on 19.11.2017 as there was no male member at her house.
5. On the basis of written report of informant, Bikram P.S. Case No. 336/2017 dated 19.11.2017 was initially registered under Sections 376/ 511 of the I.P.C. and later on Sections 4, 6 and 8 of the POCSO Act were added. Routine investigation followed. Statement of witnesses came to be recorded and on completion of investigation, charge sheet has been submitted against the accused (appellant/convict) under Section 354-B of the I.P.C. and under Sections 4, 6 and 8 of the POCSO Act. Thereafter, the learned trial court took cognizance against the accused (appellant/convict) under the aforesaid sections. The learned trial court was pleased to frame charges under Section 376 of the I.P.C. and Sections 4 and 6 of the POCSO Act. The charges were read over and explained to the accused (appellant/convict) to which he pleaded not guilty and claimed to be tried.
6. In order to bring home guilt of the accused (appellant/convict), prosecution has examined altogether ten witnesses. PW-1 is victim, PW-2 is mother of the victim and informant of this case, PW-3 is grand-father of the victim, PW.-4 is father of the victim, PW-5 is Shahjad Alam, PW-6 is Santosh Kumar, PW-7 is Dilip Kumar, PW-8 is Ajayuddin, PW-9 is Imam Victoriya Bano and PW-10 is Ram Chandra Paswan who is Investigating Officer of this case. Following documentary evidence came to be exhibited on behalf of the prosecution:—
Exhibit-P-1(PW-1) is statement of victim under Section 164 of Cr.P.C.
Exhibit-P-2 (PW-2) is the signature of the informant on written application.
Exhibit-P-2/1 (PW-10) is the endorsement and signature of the S.H.O. of Bikram Police Station.
Exhibit-P-3 (PW-10) is a formal FIR.
Defence of the accused (appellant/convict) 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 of total denial
(1) Penetrative sexual assault on girl child – Evidence of approximate age of victim would not be sufficient to any conclusion about exact age of victim.(2) Medical examination of accused of rape is ....
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.
It is a settled law that victim of a sexual assault is not treated as accomplish and as such her evidence does not require corroboration from any other evidence if her sole testimony inspires confide....
The prosecution failed to establish the elements of penetrative sexual assault under the POCSO Act, leading to the quashing of conviction due to insufficient evidence and unreliable witness testimoni....
The conviction of the appellant was quashed due to insufficient and inconsistent evidence, demonstrating the necessity for reliable testimonies in criminal cases, especially under sexual offence laws....
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