2023 Supreme(Pat) 342

IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and CHANDRA PRAKASH SINGH, JJ.
Criminal Appeal (DB) No.417 of 2020 with 76, 477 of 2021
(28.6.2023)
Anil Kumar & Anr. (in 417)
Nagendra Kumar & Anr. (in 76)
Kamlesh Kumar & Ors. (in 477) ... Appellants
vs.
State of Bihar ... Respondent
(in all)

Headnote:

Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94(2) – Juvenile Justice (Care and Protection of Children) Rules, 2007 – Rule 12 – Determination of age of juvenile – There is hardly any difference so far as issue of minority is concerned between a child in conflict with law and a child who is a victim of crime – Age determined on the basis of radiological examination may not be accurate determination and sufficient margin either way has to be allowed. (Paras 19 and 21)

Protection of Children from Sexual Offences Act, 2012 – Section 6 – Information Technology Act, 2000 – Section 67-B – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 3(2)(v) – Indian Penal Code, 1860 – Sections 376-D, 354-A, 354-B and 506 – Gang rape of two minor sisters – Videography of incident – Conviction and sentence – In School Admission Register there are over writings and cuttings as regards year of birth of both victims – Based on date of birth, as found mentioned in admission register, it cannot be conclusively held that victims were below 18 years of age as on date of occurrence and fell within definition of 'child' under Section2(1)(d) of the POCSO Act – Prosecution failed to conclusively prove at trial that victims were below 18 years of age as on date of occurrence – Conviction of appellants for offence punishable under Section 6 of POCSO Act cannot be sustained. (Paras 17, 23 and 24)

Information Technology Act, 2000 – Section 67-B – Indian Evidence Act,1872 – Section 65-B – Indian Penal Code, 1860 – Sections 376-D, 354-A, 354-B and 506 – Gang rape of two minor sisters – Videography of incident – Conviction and sentence – Evidence Act does not permit or contemplate proof of an electronic record by oral evidence, if requirements under Section 65-B of Evidence Act are not complied with – There is no evidence that video/photocopies of print-outs of which was taken from mobile phone of witness was sent by appellant – Appellants' conviction for offence punishable under Section 67-B of IT Act cannot be upheld. (Paras 27 to 30)

Indian Penal Code, 1860 – Sections 376-D, 354-A, 354-B and 506 – Gang rape of two minor sisters – Conviction and sentence – Since prosecution failed to prove conclusively the fact that victims were below 18 years of age, conviction of appellants for offences punishable under Section 376-D of IPC cannot be upheld – Medical evidence does not support prosecution's case of gang rape – Medical board did not find any external or internal injuries on body of victims – No corroboration by medical evidence is essential in a case of charge of rape, if victims of rape appear to be truthful witness of sterling quality – Court, however, cannot completely brush aside medical evidence if it is contrary to accusation made by victim and evidence led at trial – Nature of accusation made by informant in FIR and sought to be proved at trial by oral evidence, is contradicted by medical evidence and forensic test results as well – Non-examination of mother of victims who was present in house, is fatal to prosecution's case – Appellants deserve acquittal by giving them benefit of doubt – Judgment of conviction and order of sentence set aside – Appeals allowed. (Paras 31, 34, 35, 39, 42, 43 and 45)