Back
PATNA HIGH COURT
Chakradhari Sharan Singh and Nawneet Kumar Pandey, JJ.
Sanjeev Kumar @ Bitthu @ Bittu and Anr. – Appellants
versus
State of Bihar – Respondent
Criminal Appeal (DB) No.696 of 2021 with Criminal Appeal (DB) No.763 of 2021
Decided on 6.10.2023
(A) Protection of Children from Sexual Offices Act, 2012 – Section 6 – Indian Penal Code, 1860 – Sections 366-A and 376-DA – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 read with Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 – Kidnapping and penetrative sexual assault upon minor girl – Conviction and sentence – Finding on point of victim’s age is based on doctor’s report which, in turn, is based on radiological examination – In opinion of Medical Board, age of victim was found to be between 15-16 years as on date of medical examination – Such determination of age cannot be said to be accurate – Age determination by Doctors should be given flexibility of two years on either side – Prosecution ought to have followed procedure prescribed under Section 94(2) of Juvenile Justice Act, 2015 to establish that victim was a ‘child’ within meaning of Section 2(d) of POCSO Act – It was incumbent upon prosecution to establish beyond all reasonable doubts that victim was below 18 years as on date of occurrence to attract provisions of POCSO Act – Finding recorded by trial court that victim was a child under age of 18 years cannot be sustained – For same reason, conviction of appellants for offence punishable under Section 376-DA of IPC is not sustainable. (Paras 13, 16, 17, 18 and 19)
(B) Indian Penal Code, 1860 – Sections 366-A and 376-DA – Juvenile Justice (Care and Protection of Children) Act, 2015 – Protection of Children from Sexual Offices Act, 2012 – Section 6 – Kidnapping and penetrative sexual assault upon minor girl – Conviction and sentence – Victim supported prosecution’s case of her kidnapping and commission of rape by all four accused persons – Victim deposed that she was raped in vehicle itself by accused persons and that she was made to stay in house of sister of appellant – Doctor’s evidence does not support prosecution’s case of gang rape – Prosecution cannot be said to have proved offence of kidnapping for commission of sexual assault upon victim beyond all reasonable doubts – Finding of conviction recorded by trial court requires interference – Appellants deserve to be acquitted by giving them benefit of doubt – Impugned judgment of conviction and order of sentence set aside – Appellants acquitted. (Paras 23, 26 to 30)
Result: Appeal allowed.
Certainly. Based on the provided legal document, the key points are as follows:
The prosecution bears the burden of establishing beyond all reasonable doubts that the victim was under 18 years of age at the time of the occurrence to invoke the provisions of the POCSO Act. The age determination based solely on radiological examination and medical reports, which estimate the victim's age to be between 15-16 years, cannot be considered entirely accurate. The prosecution failed to follow the prescribed procedure under Section 94(2) of the Juvenile Justice Act, which mandates establishing the age through official documents such as school records or birth certificates, before relying on medical evidence (!) (!) (!) (!) (!) (!) (!) (!) .
The evidence regarding the victim’s age, primarily based on medical examination, is insufficient to conclusively prove that she was a child under 18 years at the time of the incident. The lack of proper age verification procedures undermines the conviction under the relevant sections of the POCSO Act and IPC (!) (!) (!) .
The prosecution's case of kidnapping and gang rape is not conclusively proved. Witness testimonies, including those of the victim and her family members, are inconsistent and unreliable. The victim herself contradicted certain aspects of the prosecution's narrative, such as the timing and circumstances of the kidnapping and the disclosure of rape, which casts doubt on the credibility of the case (!) (!) (!) (!) (!) (!) (!) .
The medical evidence does not support the occurrence of gang rape. The delay in FIR registration and discrepancies in the victim’s disclosures further weaken the prosecution's case. The evidence does not establish beyond all reasonable doubts that the accused committed the alleged offenses (!) (!) (!) (!) .
As the fundamental requirement of establishing the victim’s age was not adequately met, and the evidence regarding the alleged kidnapping and sexual assault is not sufficiently credible, the conviction of the appellants under the relevant sections of the IPC and POCSO Act cannot be sustained. The appellate court set aside the conviction and ordered the release of the accused persons forthwith (!) (!) .
The appeals are allowed, and the appellants are acquitted of all charges. They are to be released from custody if not required in any other matter (!) (!) .
Please let me know if you require further analysis or assistance.
JUDGMENT (ORAL)
Chakradhari Sharan Singh, J.—As both the appeals, preferred under Section 374(2) of the CrPC, arise out of the same judgment of conviction dated 13.09.2021 and the order of sentence dated 15.09.2021 passed by the learned Additional Sessions Judge-VIth-cum-Special Judge POCSO Act, Samastipur, in T.R. No. 184 of 2021 and R.N. No. 1163 of 2018, they have been heard together and are being disposed of by the present judgment and order. By the judgment and order aforesaid, the appellants have been convicted and sentenced as under:—
| Cr. Appeal (D.B.) No. 696 of 2021 | |||
| Convicted under Sections | Sentence | ||
| Imprisonment | Fine (Rs.) | In default of fine | |
| Sanjeev Kumar @ Bitthu @ Bittu | 363 of the IPC 366-A of the IPC 376-DA of the IPC (under the provisions of alternate punishment U/s 42 POCSO Act) | R.I. for Seven Years R.I. for 10 years R.I. for Life 50,000/- | 5,000/- S.I. for One month 10,000/- S.I. for two months — |
| Cr. Appeal (D.B.) No. 763 of 2021 | |||
| Santosh Sahani @ Bantha | 363 of the IPC R.I. for Seven years | 5,000/- S.I. for one month 10,000/- S.I. for two months | 366-A of the IPC R.I. for 10 years |
|
| 376-DA of the IPC (under the provisions of alternate punishment U/s 42 POCSO Act) | R.I. for Life 50,000/-
| — |
|
|
|
|
|
2. All the sentences have been directed to run concurrently.
3. The victim’s father (PW 1) is the informant of the concerned Kalyanpur P.S. Case No. 164 of 2018 registered for the offence punishable under Sections 363, 366-A, 354-D, 343 read with 34 of the IPC. A written report of the informant, addressed to the Officer-in-Charge of Kalyanpur Police Station, is the basis for registration of the said FIR on 06.10.2018. According to the allegation in the FIR, on 01.10.2018 at about 3 A.M., when the informant’s minor daughter (aged 13 years) had come out her house for easing herself, four persons, named in the FIR, viz. Santosh Sahani @ Bantha (appellant), Sachindra Sahani, Sanjeev Kumar @ Bitthu @ Bittu (the appellant) and Manjay Sahni were waiting out the house in a Bolero vehicle and all of them kidnapped the victim in the said vehicle. An oral information was given to Officer-in-Charge of the Police Station on the same day and the family members started searching for the victim. Under social pressure, it is alleged, the victim was released and dropped at 2 PM at a place called Gopalpur barrage. The informant belonged to Scheduled Caste.
4. The police, upon completion of investigation, submitted charge-sheet on 09.01.2019 against the appellants Santosh Sahani @ Bantha and Sanjeev Kumar @ Bitthu @ Bittu on 19.01.2019 for the offences punishable under Section 363, 366- A, 354(D)(i), 343 read with 34 of the IPC and Section 3 (1)(r)(s) (w) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’ for short). Cognizance was subsequently taken of the offences punishable under Sections 366- A of the IPC, Section 6 of the Protection of Children from Sexual Offices Act, 2012, (POCSO Act) and Section 3 (1)(r)(s)(w) of the SC/ST Act. The appellants were charged of the offences punishable under Sections 363/34, 366-A/34, 376/34 of the IPC, Section 6 of the POCSO Act and Section 3 (1)(r)(s)(w) of the SC/ST Act.
5. As the appellants denied the charge and claimed to be tried, they were put on trial.
6. It is mentioned here that we are not disclosing, in the present judgment, the names of the victim and her parents, who deposed at the trial for the prosecution, so as to conceal her identity and they have been referred to in the present judgment based on their status as prosecution witnesses.
7. At the trial, the prosecution got examined eight witnesses including the victim’s father and the informant (PW 1), her mother (PW 5), grandmother (PW 6) and the victim (PW 2). The Investigating Officer deposed at the trial as PW 7 and the Doctor, who had examined the victim, as PW 8. PW
Penetrative sexual assault upon minor girl – It is incumbent upon prosecution to establish beyond all reasonable doubts that victim was below 18 years as on date of occurrence to attract provisions o....
The prosecution must conclusively establish the victim's age under the POCSO Act, and inconsistencies in the victim's testimony can undermine the case against the accused, warranting acquittal.
The central legal point established in the judgment is the requirement for the prosecution to establish the victim's age beyond all reasonable doubt and the reliability of the victim's testimony in c....
The court ruled that the prosecution failed to prove the minor status of the victim beyond a reasonable doubt, undermining the conviction under the POCSO Act.
Conviction and sentencing for sexual offences under the POCSO Act upheld, establishing that the defense's failure to challenge the victim's age and credibility supported the prosecution's case.
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.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
