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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and CHANDRA PRAKASH SINGH, JJ.
Criminal Appeal (DB) No.14 of 2020
(17.11.2022)
Mojahid Ansari @ Mozahid
@ Mozahid Ansari
@ Md. Mojahi Ansari & Anr. ... Appellants
vs.
State of Bihar ... Respondent
Protection of Children from Sexual Offences Act, 2012 – Section 6 – Indian Penal Code, 1860 – Sections 366(A) and 376(D) – Procuration and gang rape of minor girl – Conviction and sentence – Victim was above 18 years of age and she was already married – Statement of victim recorded under Section 164 of Cr.P.C. has not been proved at trial – Parents of victim are best witnesses to certify exact age of victim – Father of victim itself had disclosed victim's age to be 18 years and seven months – Victim was not a minor as on date of occurrence – Conviction recorded by Trial Court for offence punishable under Section 6 of POCSO Act cannot be upheld – Appellants' conviction under Section 366A of IPC, as recorded by trial court, is also unsustainable as victim could not be treated to be a minor as on date of occurrence – Prosecution failed to establish charges of commission of offences punishable under Section 6 of POCSO Act and Sections 366A and 376D of IPC – Impugned judgment of conviction and order of sentence set aside. (Paras 13, 14, 17, 18, 23 and 24)
Chakradhari Sharan Singh, J.—This appeal has been preferred by the appellants under Section 374(2) of the Code of Criminal procedure, 1973 (Cr.P.C. in short) assailing a judgment of conviction dated 12.12.2019 and an order of sentence dated 18.12.2019, passed by learned 1st Additional Sessions Judge-cum-Special Judge (POCSO), Saharsa, in POCSO Case No. 21/2017, arising out of Bakhtiyarpur P.S. Case No. 66 of 2017, whereby the appellants have been convicted and sentenced as under:—
| Appellant No. | Conviction under Section | Sentence | ||
| Imprisonment | Fine (Rs.) | In default of fine | ||
| 1. (Mojahid Ansari @ Mozahid @ Mozahid Ansari @ Md. Mojahi Ansari) | 366(A) of the I.P.C. | R.I. for eight years | 8,000/- | R.I. for four months |
| 376(D) of the I.P.C. | R.I. for 20 years | 20,000/- | R.I. for 10 months | |
| 6 of the POCSO Act | R.I. for 10 years | 10,000/- | R.I. for five months | |
| 2. (Shamsad @ Shamsuddin @ Md. Shamsad @ Md Shamsad Ansari @ Shamsuddin) | 366(A) of the I.P.C. | R.I. for eight years | 8,000/- | R.I. for four months |
| 376(D) of the I.P.C. | R.I. for 20 years | 20,000/- | R.I. for 10 months | |
| 6 of the POCSO Act | R.I. for 10 years | 10,000/- | R.I. for five months | |
2. The sentences have been ordered to run concurrently.
3. The name of the victim has been concealed and she has been referred to as ‘the victim/PW-7’ in the present judgment.
4. Heard Mr. Bikramdeo Singh assisted by Mr. Satish Kumar Singh, learned counsel for the appellants and Ms. Shashi Bala Verma, learned Additional Public Prosecutor for the respondent State.
5. The prosecution’s case, as disclosed in the written report dated 20.03.2017 of the informant (PW-6), who is the father of the victim, is that the victim, i.e., PW-7, had left her house at 9.30 AM on 18.03.2017 for school. She, however, did not return till 5.30 PM. Apprehending that the victim might have been kidnapped either for marriage or for killing her, he got registered the First Information Report giving rise to Bakhtiyarpur P.S. Case No. 66 of 2017. He categorically mentioned the age of the victim to be 18 years and seven months and that she was married to someone nearly six months before the date of occurrence. The case was initially registered for the offences punishable under Sections 365 and 366 of the Indian Penal Code.
6. From the evidence on record, it transpires that the victim was recovered with the appellant No. 1, Mojahid Ansari @ Mozahid @ Mozahid Ansari @ Md. Mojahi Ansari, from a railway platform of Bhatinda Railway Station in Punjab on 23.03.2017 by the Punjab Police. She was subsequently brought back by the police and her brother and was subjected to medical examination on 27.03.2017. During the medical examination, no evidence of any sexual assault on the victim was found. Based on the report received from the Department of Radiology, J.L.N.M.C.H., Bhagalpur, the Doctor assessed the victim’s age to be less than 16 years. Statement of the victim recorded under Section 164 of the Cr.P.C. has not been exhibited at the trial though the victim’s signature on the said statement has been exhibited as Exhibit-3.
7. It is evident from the records that in the light of the statements of the victim recorded under Section 164 of the Cr.P.C., Sections 366A, 376 read with 120B of the Indian Penal Code and Section 4 of Protection of Children from Sexual Offences Act (POCSO) were added in the First Information Report under the order of the court below dated 05.05.2017.
8. Upon completion of investigation, the police submitted its charge-sheet for the commission of the offence punishable under Sections 365, 366A, 376 and 120B of the IPC and Section 4 of the POCSO Act. The cognizance was accordingly taken by the court below and subsequently charges were framed against the appellant
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 established that the prosecution must prove the victim's age as under 18 years to apply the provisions of the POCSO Act, and failure to do so results in the reversal of conviction.
The statutory presumption of guilt under Section 29 of the POCSO Act places the burden on the accused to prove their innocence in cases of sexual offences against children, which was upheld in this j....
Point of Law : Once the fact of victim being child is not proved, POCSO Act is not applicable.
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