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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and G. ANUPAMA CHAKRAVARTHY, JJ.
Criminal Appeal (DB) Nos. 262 with 311 of 2022
(15.12.2023)
Raushan Kumar (in 262)
Nakul Kumar (in 311) ... Appellants
vs.
State of Bihar ... Respondent
(in both)
Protection of Children from Sexual Offences Act, 2012 – Section 4 read with Section 34(2) – Indian Penal Code, 1860 – Sections 363, 365 and 376 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 (2) – Rape of girl child – Conviction and sentence – First and foremost requirement to invoke provisions of POCSO Act is a clear finding beyond doubt that victim of sexual assault is a child below age of 18 years within meaning of Section 2(1)(d) of Act – Section 34 does not lay down any definite procedure for determination of age of a person who is a victim of sexual assault – Wherever dispute with respect to age of a person arises in context of her or him being victim under POCSO Act, Courts have to take recourse to steps indicated in Section 94 of Juvenile Act – Finding of Trial Court that victim was a child as on date of occurrence is primarily based on report of Doctor upon medical examination which in turn is based on radiological examination – Course adopted by Trial Court holding victim to be a child to attract provisions of the POCSO Act was legally impermissible – Age determination based only on radiological examination is impermissible under Section 34(2) of POCSO Act read with Section 94 of J.J. Act, 2015 – Provision under Section 34(2) of POCSO Act is mandatory in character – Finding of Trial Court, holding appellants guilty of offence punishable under Section 4 of POCSO Act is unsustainable and accordingly, set aside – Appellants deserve to be acquitted, giving them benefit of doubt of offences punishable under Sections 363, 365, 376 read with Section 34 of IPC – Impugned judgment of conviction and order of sentence set aside – Appeals allowed. (Paras 16, 17, 22, 24, 27, 28, 29 30 and 31)
Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 (2) – Determination of age – If a person appears to be a child to Court upon mere appearance requiring no further determination, no exercise may be required to be undertaken for determination of age of such person – Medical report determining age of a person has never been considered by Courts of law as also by medical scientists to be conclusive in nature. (Paras 23 and 24)
Protection of Children from Sexual Offences Act, 2012 – Sections 29 and 30 – Reverse burden of proof on accused of offence of his innocence – There is vast difference between prosecution of a person for offence punishable under provisions of POCSO Act and for those other offences punishable under Indian Penal Code or other penal provisions, which require no reverse burden of proof – A person charged of offence punishable under provisions of POCSO Act is presumed to have committed or abated or attempted to commit offence under Section 29 of POCSO Act contrary to general principle of presumption of innocence of an accused under criminal jurisprudence – Culpable mental state of person facing trial in respect of an offence is presumed under Section 30 of POCSO Act, which is not the general rule. (Para 25)
Chakradhari Sharan Singh, J. – These appeals have been preferred by the appellants under Section 374(2) of the Code of Criminal Procedure, putting to challenge the impugned judgment of conviction dated 28.02.2022 and the order of sentence dated 09.03.2022, passed by learned Additional District & Sessions Judge-VII-cum-Special Judge (POCSO), Patna, arising out of Khushrupur P.S. Case No. 342 of 2020, Special POCSO Case No. 191 of 2020, whereby the appellants have been convicted and sentenced as under: –
Cr. Appeal (DB) No. 262 of 2022
| Appellant | Penal Provision | Imprisonment | Sentence Fine (Rs.) | In default of fine |
| Raushan Kumar | Under Section 363 of the Indian Penal Code | R.I. for five years | 25,000/- | S.I for one year |
|
| Under Section 365 of the Indian Penal Code | R.I. for five years | 25,000/- | S.I for one year |
|
| Under Section 376 of the Indian Penal Code | R.I. for twenty years | 50,000/- | S.I for one year |
|
| Under Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act) | R.I. for twenty years | 50,000/- | S.I for one year |
Cr. Appeal (DB) No. 311 of 2022
| Appellant | Penal Provision | Imprisonment | Sentence Fine (Rs.) | In default of fine |
| Nakul Kumar | Under Section 363 of the Indian Penal Code | R.I. for five years | 25,000/- | S.I for one year |
|
| Under Section 365 of the Indian Penal Code | R.I. for five years | 25,000/- | S.I for one year |
|
| Under Section 376 of the Indian Penal Code | R.I. for twenty years | 50,000/- | S.I for one year |
|
| Under Section 4 of POCSO Act | R.I. for twenty years | 50,000/- | S.I for one year |
2. All the sentences have been ordered to run concurrently.
3. We have heard Mr. Ajay Kumar Thakur, learned counsel appearing on behalf of the appellant in Criminal Appeal (DB) No. 262 of 2022 and Mr. Ramakant Sharma, learned Senior Counsel assisted by Mr. Rajesh Kumar, learned counsel appearing on behalf of the appellant in Criminal Appeal (DB) No. 311 of 2022. Ms. Shashi Bala Verma, learned Additional Public Prosecutor had represented the State in both the appeals.
4. The foremost version of the occurrence is in the written report of the informant (PW-3), who is the father of the informant, which is the basis for registration of the police case, i.e., Khushrupur P.S. Case No. 342 of 2020, dated 28.10.2020. The formal FIR indicates that the information was received at the police station at 03:30 pm on 28.10.2020. The distance of the police station from the house of the informant, near which the place of occurrence was said to be situated, was two kilometers, as mentioned in the formal FIR. The appellants herein were named in the FIR. In the light of the evidence led at the trial by the prosecution's witnesses, we deem it proper to describe the accusation in the said written report against these appellants, in detail. The informant described the age of the victim (PW 5) to be 13 years and, according to him, on the previous day, i.e., 27.10.2020 at 08:00 am, she had left her house to ease herself. Late till evening, she did not return. He attempted to search her out, in course of which, he learnt that these appellants had taken the victim away in a motorcycle after enticing her. On 28.10.2020, the victim returned home at 05:00 am and disclosed to the informant that these appellants had taken her to Patna on a motorcycle. He alleged that the appellant Raushan Kumar committed wrongful acts (nq"deZ) on her daughter, a child, in Patna, in his residence.
5. The Victim's (PW-5) statement under Section 164 of the CrPC (exhibit-3) was recorded on 30.10.2020. Again, we deem it proper to describe what the victim narrated in her statement under Section 164 of the CrPC. It is manifest from her statement that these appellants and the victim are neighbours. The appellants, according to her, offered her to come along with them for roaming around in the market. On the proposal of these appellants, the victim went with the appellants on their bike. It is clear from state
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It stands well settled that circumstances not put to an accused under Section 313 Cr.PC. cannot be used against him and must be excluded from consideration - In a criminal trial, importance of questi....
The prosecution failed to establish the victim's age as a child under the POCSO Act, leading to the quashing of the conviction due to insufficient evidence and credibility issues.
Point of Law : Prosecution has failed to prove beyond doubt that the victim was below 18 years of age as on the date of the incident. Under these circumstances, the accused cannot be held guilty of o....
Conviction and sentencing for sexual offences under the POCSO Act upheld, establishing that the defense's failure to challenge the victim's age and credibility supported the prosecution's case.
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