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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and KHATIM REZA, JJ.
Criminal Appeal (DB) No.70 of 2020
(29.11.2022)
Santosh Kumar Singh
@ Santosh Yadav ... Appellant
vs.
State of Bihar ... Respondent
Protection of Children from Sexual Offences Act, 2012 – Section 4 read with Section 376 of Indian Penal Code, 1860 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 – Juvenile Justice (Care and Protection of Children) Rules, 2007 – Rule 12 – Rape of minor girl – Life sentence – No exercise was carried out by prosecution to establish that victim was a minor as on date of occurrence by following procedure prescribed under Act, 2015 – Prosecution failed to prove beyond all reasonable doubts, fact that victim was below 18 years of age (a minor) as on date of occurrence – Appellant was not subjected to any medical examination as stipulated under Section 53A of Cr.P.C. – Absence of report of Forensic Science Laboratory was a major flaw on part of prosecution in establishing its case – Medical examination of a person accused of rape may lead to a more accurate conclusion – Though, statement of a victim of rape doesn't require any other corroboration if she is found to be truthful and her evidence is of stellar quality, said principle doesn't absolve prosecution of its duty to establish its case beyond all reasonable doubts in absence of any legal presumption in present case – Medical report doesn't corroborate accusation of commission of rape – There are contradictory evidences of prosecution witnesses on point of seizure of clothes which victim was wearing at the time of occurrence – Impugned judgment of conviction and the order of sentence set aside – Appeal allowed. (Paras 19, 22, 24, 25, 26, 27, 31 and 32)
Indian Penal Code, 1860 – Section 376 – Rape – Conviction of a person of a crime, that too of a serious crime of nature of rape is a serious matter which has grave consequences, not only in terms of serving sentence of imprisonment – Such conviction has cascading effects on future of a person convicted of such offence – Only if evidence of a victim of rape is found to be trustworthy and of stellar quality without any embellishment, conviction can be recorded without any corroborative evidence – Purpose of investigation or prosecution of a person accused of an offence is not confined for ensuring conviction of person facing prosecution either during course of investigation or at trial – There being presumption of innocence of an accused of crime, it is duty of prosecuting agency to ensure that all relevant materials worth evidence are collected during course of investigation to establish its case at trial beyond all reasonable doubt – In the process of investigation, investigating agency cannot completely overlook interest of an accused from perspective of his prosecution. (Paras 27 and 28)
Chakradhari Sharan Singh, J.—We have heard Mr. Baxi S.R.P. Singh, learned Senior Counsel for the appellant and Mr. Sujit Kumar Singh, learned Additional Public Prosecutor for the State.
2. This appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C. for brevity) assailing the judgment of conviction dated 21.11.2019 and order of sentence dated 28.11.2019 passed by the learned 1st Additional Sessions Judge-cum-Special Judge, POCSO, Bhojpur, Ara in POCSO Case No. 34 of 2018, whereby the appellant has been convicted and sentenced as under:—
| Conviction under Section | Imprisonment | Sentence | |
| Fine (Rs.) | In default of fine | ||
| 376 of the Indian Penal Code | For life | 5,000/- | Six months R.I. |
| 4 of the Protection of Children from Sexual Offences Act | R.I. for 7 years | 5,000/- | Three months R.I. |
3. The victim is the informant, whose name has been concealed in the present judgment and order to protect her prestige and dignity.
4. A written report submitted to the Officer-in-Chief of Dhangia police station in the District of Bhojpur under the signature of the informant is the basis for registration of First Information Report (F.I.R. for brevity) disclosing commission of the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act ('POCSO Act' for short) and Section 376 of the Indian Penal Code (I.P.C. for brevity).
5. According to the F.I.R., the occurrence is of 24.05.2018 at 10:00 am for which the information was given on the same day at 07:10 pm, immediately whereafter the F.I.R was registered. It is the prosecution’s case that the victim, aged nearly 14 years, was in her house when her parents had gone outside for some private work. At about 10 am, when she was all alone, sleeping in her house, the appellant entered into her room, gagged her with her dupatta, committed rape on her, and he fled away. At 12:00 noon when her brother (P.W. 4) came, she narrated to him the entire occurrence and subsequently to her parents when they returned at 4:00 pm in the evening. The statement of the victim (P.W.-1) was recorded under Section 164 of the Code of Criminal Procedure on 25.05.2018. She supported the prosecution’s case as was disclosed by her in her written report. She stated that the appellant had come to his maternal uncle, a co-villager of the victim, where he was residing for the last few days. She did not know him from before nor she had any association with him. The victim was subjected to medical examination. The Doctor who conducted the medical examination recorded his findings as under:—
“(i) Medical Examination:—
Secondary Sexual character well developed.
(ii) P/E Examination:—
Blood stain around vagina.
(iii) P/V Examination:—
Hymen Rupture. Gloves stained with blood.
(iv) Microscopical of Vaginal Swab—Negative.
(v) USG (Ultra Sonography) of Lower abdomen:—
Normal utras, no sign of pregnancy.
(vi) X-ray report:—
Pelvis—Iliac apophysis not fused.
Elbow—All epiphysis fused.
Wrist—Saw epiphysis in the prosses of fusal.
According to above finding and Radiologist her probable age is between 14-17 years. Report is written and signed by me. Marked as Ext. 6.”
6. Apparently in the assessment of the Doctor, the age of the victim was found to be between 14-17 years. The police, upon completion of investigation, submitted charge-sheet on 30.06.2018 for the offences punishable under Section 376 and Section 4 of the POCSO Act against the appellant. Subsequently, congnizance was taken by the Special Court on 24.08.2018. The Special Court, thereafter, framed charge for commission of the offences punishable under Section 376 of the I.P.C and Section 4 of the POCSO Act on 26.11.2018. As the appellant denied the charges, he was put to trial. At the trial altogether 6 witnesses were examined including Investigating Officer (P.W. 5) and Doctor (P.W.6
The central legal point established in the judgment is the requirement for conclusive evidence to establish the commission of offenses, especially in cases involving serious allegations such as rape,....
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 court held that discrepancies in the victim's testimony and lack of corroborating evidence created reasonable doubt, leading to the appellant's acquittal.
The sole testimony of a child victim can suffice for conviction if credible, and age determination must rely on conclusive evidence such as school records.
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