2023 Supreme(Pat) 1032

IN THE HIGH COURT OF JUDICATURE AT PATNA
ARVIND SRIVASTAVA and SUNIL DUTTA MISHRA, JJ.
Criminal Appeal (DB) No. 54 of 2022
(20.12.2023)
Abhinandan Sah @ Abhinandan
Kumar Sah ... Appellants
vs.
State of Bihar ... Respondents

Headnote:

Protection of Children from Sexual Offences Act, 2012 – Section 29 – Presumption of offence – Under Section 29 of POCSO Act, it cannot be said that presumption is absolute – It would come into operation only when prosecution is first able to establish facts that would form foundation for presumption under Section 29 of POCSO Act to operate – There may be difficulty in proving a negative fact – Negative cannot be proved – In order to prove a contrary fact, fact whose opposite is sought to be established, must be proposed first – Foundational facts in a POCSO case includes proof that victim is a child, that alleged incident has taken place, that accused has committed offence and whenever physical injury is caused, to establish it with medical evidence – If basic and foundational facts of prosecution case is laid by adducing legally admissible evidence then burden gets shifted to accused to rebut it by establishing from evidence on record that he has not committed offence or that no such incident was occurred or that victim is not a child. (Paras 31 and 32)

Protection of Children from Sexual Offences Act, 2012 – Section 4 – Indian Penal Code, 1860 – Section 376 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 – Rape of minor girl – Conviction and sentence – In a case pertaining to POCSO Act, it is imperative to establish age of victim and thereby her minority – Age of prosecutrix has an extremely crucial bearing in the case – Age of victim has to be determined on the basis of settled statutory criteria – Method to determine age of a juvenile is also applicable to determine age of victim – Date of birth certificate from school or matriculation or equivalent certificate by concerned Examination Board has to be firstly preferred – Age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed – If there is doubt with regard to correct age of prosecutrix, benefit must go in favour of accused – Burden is always upon prosecution to establish what is alleged – No effort was made by prosecution to establish age of victim in accordance with statutory provision – Delay in lodging F.I.R. creates doubts in prosecution case that same is after thought – There is clearly no medical evidence in present case to demonstrate that victim had suffered any such sexual assault alleged to be committed by appellant – It appears that she was a consenting party to what was going with her – There is no element of enticement with victim by appellant – Offence of rape is not corroborated by any evidence – Prosecution has miserably failed to prove place of occurrence, manner of occurrence and also age of victim – Impugned judgment of conviction and order of sentence set aside and appellant acquitted of charges levelled against him – Appeal allowed. (Paras 34, 36, 38, 40, 44, 46, 47, 48, 49 and 52)

Indian Evidence Act, 1872 – Sections 101 and 102 – Protection of Children from Sexual Offences Act, 2012 – Section 4 – Burden of proof – Onus is cast on prosecution to prove its case beyond reasonable doubt and lack of cross-examination does not do away with statutory requirement placed on prosecution by Sections 101 and 102 of Evidence Act, 1872 – Date of birth is question of fact which must be cogently proved by leading evidence – Aim of Court of facts is to come to a firm conclusion about minority of victim – Like all other facts in issue, determination of age of victim must necessarily be proved by cogent evidence needed in a criminal trial – POCSO Act, 2012 does not diminish or dilute Indian Evidence Act. (Paras 39 and 42)

Criminal Procedure Code, 1973 – Section 154 – Delay in filing F.I.R. – Normal rule that prosecution has to always explain delay does not apply to rape cases – In a given situation delay can raise suspicion on genuineness of implication of accused – This principle depends on facts and circumstances of each case and cannot be a general rule – Courts cannot ignore social reality that if a sexual offence is committed constituting an offence punishable under provisions of POCSO Act, there is normal and natural tendency of victim's family to conceal that occurrence to safeguard interest of family prestige, avoid vilification and in interest of future of victim as well. (Para 43)