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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and KHATIM REZA, JJ.
Criminal Appeal (DB) No. 1031 of 2019
(10.10.2022)
Md. Islam ... Appellant
vs.
State of Bihar ... Respondents
Indian Penal Code, 1860 – Section 376(2) – Rape of a minor girl – in the medical report of the Radiologist the age of the victim has been determined as 17 years – the Doctor in his evidence has depsed, based on the findings recorded in the said report, that age of the victim could be between 18 to 19 years – no evidence other than the evidence of the medical expert is available, based on which it can be reasonably concluded that age of the victim was less than 16 years as on the date of occurrence when Section 376 (2) (i) was inforce – prosecution having failed to establish that the victim was less than 16 years of age as on the date of occurrence,the appellant's conviction u/s 376 (2) (i) IPC cannot be upheld. (Para 18)
Prevention of Children from Sexual Offences Act, 2012 – Section 6 – Rape of a minor girl – prosecution could not establish that the victim was a child as on the date of occurence in order to attract the provisions of the POCSO Act – the radiologist has found in his report the age of the victim to be 17 years – however at the trial the Doctor has deposed during the cross-examination that the age of the victim could be between 18 to 19 years based on the said medical report – thus, the prosecution failed to establish conclusively its case at the trial that victim was a child/minor as on the date of occurrence – Conviction of the appellant under Section 4 & 6 of the POCSO Act cannot be upheld. (Para 19)
Indian Penal Code, 1860 – Section 376 (2) (i) r/w Prevention of Children from Sexual offences Act, 2012 – Section 6 – Rape of a minor girl the appellant was not made to undergo any medical test nor the clothes of the victim were sent for any forensic examination to connect the appellant with the allegd offence of rape/sexual assault or sexual inter-course – prosecution's evidences are full of inconsistencies and contradictions – the evidence of the victim is not trustworthy – prosecution failed to establish that the victim was a minor as on the date of occurrence – place where the occurrence of sexual assault had taken place, the manner in which the victim was taken the place of assault forcibly or otherwise, nor proved at the trial – no evidence except the evidence of victim avaible at the trial to prove that she was taken to the place of occurrence by the appellant – appeal allowed – appellant acquitted. (Paras 21 to 26)
(2011) 7 SCC 130 Para 40 – Referred........
Chakradhari Sharan Singh, J.—Heard Mr. Vindhya Keshri Kumar, learned Senior Counsel appearing on behalf of the appellant and Ms. Shashi Bala Verma, learned Additional Public Prosecutor for the State.
2. By the impugned judgment and order dated 02.07.2019/10.07.2019 passed by the Court of learned 1st Additional Sessions Judge-cum- Special Judge, POCSO Act, Vaishali, Hajipur in G.R. No. 4272 of 2015, arising out of Vaishali P.S. Case No. 261 of 2015, this appellant has been convicted and sentenced as under:—
| Sentence | |||
| Conviction under Section | Imprisonment | Fine (Rs.) | In default of fine |
| Section 6 of Protection of Children from Sexual Offences Act | Imprisonment for 12 years | 50,000/- | S.I. for 6 months |
3. The victim of the occurrence is being referred to as ‘AB’ in the present judgment for concealing her identity.
4. The informant (PW-6) is the mother on whose written report submitted on 21.08.2015, the concerned Vaishali P.S. Case No. 261/15 came to be registered leveling offences punishable under Sections 363, 366A, 376, 120B of the Indian Penal Code, Section 6 of the Protection of Children from Sexual Offences Act, 2012, and Section 3(i)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities), Act, 1989.
5. In the First Information Report the informant alleged that she belonged to a scheduled caste. There is a mosque located in front of her house at Rahimpur in which this appellant worked as Maulana. The Dafadar of her village Md. Mazaz Akhtar and Md. Dilshad Rahman @ Samsi, are also residents of the same village. There existed some dispute between the informant and the two others viz. Md. Mazaz Akhtar and Md. Dilshad Rahman @ Samsi for putting up a stall (gumti) at certain place. On 20.08.2015, her daughter AB had gone to school but she did not return. Upon inquiry she learnt that AB had been kidnapped by Dafadar Md. Mazaz Akhtar and Md. Dilshad Rahman @ Samsi under a conspiracy to get her married to this appellant and had taken her to the residence of the appellant at Muzaffarpur. She complained in her written report that considering her to be belonging to a Mahadalit caste, her daughter had been kidnapped in order to get her married to the appellant. She also mentioned that the victim, AB was recovered from the house of the appellant and that the appellant had sexually assaulted her.
6. The fardbeyan bears right thumb impression of the informant (PW-6) and signatures of Kishori Rai (PW-2), Madan Chaudhary (PW-3) and Naresh Chaudhary (PW-4). The statement of AB (PW-5) was recorded by learned Judicial Magistrate First Class, Vaishali on 22.08.2015 which has been exhibited at the trial as Exhibit-1 wherein she described the manner in which the occurrence had taken place. She disclosed in her statement under Section 164 of the Code of Criminal Procedure that soon after she came out of her school for catching an auto-rikshaw, she found the appellant standing there with a motorbike. She told the appellant that she was going to her house. The appellant offered her to drop her at her house. On his asking she sat on the appellant’s motorcycle who, instead of dropping her at her house, took her to Muzaffarpur and locked her in a room and raped her. He kept AB in the room at Muzaffarpur in the night. Subsequently, the appellant received a call on his mobile phone whereafter, the appellant locked AB in the room from outside and went back to Rahimpur. Taking advantage of an opening through a window of the room she managed to escape and came to Muzaffarpur town. Thereafter she called her family members and asked them to come to Muzaffarpur, upon which her brother came at Muzaffapur to take her back. She further disclosed in her statement under Section 164 of the Code of Criminal Procedure that the appellant had sexually assaulted her twice in the night. She further disclosed that the appellan
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 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 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....
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 reliability of the victim's testimony and the presumption under section 29 of the POCSO Act were crucial in establishing the accused's guilt.
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