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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and NAWNEET KUMAR PANDEY, JJ.
Criminal Appeal (DB) No.696 and 763 of 2021
(6.10.2023)
Sanjeev Kumar @ Bitthu @ Bittu (in 696) Santosh Sahani @ Bantha (in 763) ... Appellants
vs.
State of Bihar ... Respondent
(in both)
Protection of Children from Sexual Offences Act, 2012 – Section 6 – Indian Penal Code, 1860 – Sections 366-A and 376-DA – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 read with Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 – Kidnapping and penetrative sexual assault upon minor girl – Conviction and sentence – Finding on point of victim's age is based on doctor's report which, in turn, is based on radiological examination – In opinion of Medical Board, age of victim was found to be between 15-16 years as on date of medical examination – Such determination of age cannot be said to be accurate – Age determination by Doctors should be given flexibility of two years on either side – Prosecution ought to have followed procedure prescribed under Section 94(2) of Juvenile Justice Act, 2015 to establish that victim was a 'child' within meaning of Section 2(d) of POCSO Act – It was incumbent upon prosecution to establish beyond all reasonable doubts that victim was below 18 years as on date of occurrence to attract provisions of POCSO Act – Finding recorded by trial court that victim was a child under age of 18 years cannot be sustained – For same reason, conviction of appellants for offence punishable under Section 376-DA of IPC is not sustainable. (Paras 13, 16 to 19)
Indian Penal Code, 1860 – Sections 366-A and 376-DA – Juvenile Justice (Care and Protection of Children) Act, 2015 – Protection of Children from Sexual Offences Act, 2012 – Section 6 – Kidnapping and penetrative sexual assault upon minor girl – Conviction and sentence – Victim supported prosecution's case of her kidnapping and commission of rape by all four accused persons – Victim deposed that she was raped in vehicle itself by accused persons and that she was made to stay in house of sister of appellant – Doctor's evidence does not support prosecution's case of gang rape – Prosecution cannot be said to have proved offence of kidnapping for commission of sexual assault upon victim beyond all reasonable doubts – Finding of conviction recorded by trial court requires interference – Appellants deserve to be acquitted by giving them benefit of doubt – Impugned judgment of conviction and order of sentence set aside – Appeal allowed. (Paras 23, 26 to 30)
Chakradhari Sharan Singh, J.—As both the appeals, preferred under Section 374(2) of the CrPC, arise out of the same judgment of conviction dated 13.09.2021 and the order of sentence dated 15.09.2021 passed by the learned Additional Sessions Judge-VIth-cum-Special Judge POCSO Act, Samastipur, in T.R. No. 184 of 2021 and R.N. No. 1163 of 2018, they have been heard together and are being disposed of by the present judgment and order. By the judgment and order aforesaid, the appellants have been convicted and sentenced as under:—
Cr. Appeal (D.B.) No. 696 of 2021
|
| Convicted under Sections | Imprisonment | Sentence Fine (Rs.) | In default of fine |
| Sanjeev Kumar | 363 of the IPC | R.I. for Seven years | 5,000/- | S.I. for one month |
| @ Bitthu @ Bittu | 366-A of the IPC | R.I. for 10 years | 10,000/- | S.I. for two months |
|
| 376-DA of the IPC (under the provisions of alternate punishment U/s 42 POCSO Act) | R.I. for Life | 50,000/- | - |
Cr. Appeal (D.B.) No. 763 of 2021
| Santosh Sahani | 363 of the IPC | R.I. for Seven years | 5,000/- | S.I. for one month |
| @ Bantha | 366-A of the IPC | R.I. for 10 years | 10,000/- | S.I. for two months |
|
| 376-DA of the IPC (under the provisions of alternate punishment U/s 42 POCSO Act) | R.I. for Life | 50,000/- | - |
2. All the sentences have been directed to run concurrently.
3. The victim's father (PW 1) is the informant of the concerned Kalyanpur P.S. Case No. 164 of 2018 registered for the offence punishable under Sections 363, 366-A, 354-D, 343 read with 34 of the IPC. A written report of the informant, addressed to the Officer-in-Charge of Kalyanpur Police Station, is the basis for registration of the said FIR on 06.10.2018. According to the allegation in the FIR, on 01.10.2018 at about 3 A.M., when the informant's minor daughter (aged 13 years) had come out her house for easing herself, four persons, named in the FIR, viz. Santosh Sahani @ Bantha (appellant), Sachindra Sahani, Sanjeev Kumar @ Bitthu @ Bittu (the appellant) and Manjay Sahni were waiting out the house in a Bolero vehicle and all of them kidnapped the victim in the said vehicle. An oral information was given to Officer-in-Charge of the Police Station on the same day and the family members started searching for the victim. Under social pressure, it is alleged, the victim was released and dropped at 2 PM at a place called Gopalpur barrage. The informant belonged to Scheduled Caste.
4. The police, upon completion of investigation, submitted charge-sheet on 09.01.2019 against the appellants Santosh Sahani @ Bantha and Sanjeev Kumar @ Bitthu @ Bittu on 19.01.2019 for the offences punishable under Section 363, 366- A, 354(D)(i), 343 read with 34 of the IPC and Section 3 (1)(r)(s) (w) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’ for short). Cognizance was subsequently taken of the offences punishable under Sections 366- A of the IPC, Section 6 of the Protection of Children from Sexual Offences Act, 2012, (POCSO Act) and Section 3 (1)(r)(s)(w) of the SC/ST Act. The appellants were charged of the offences punishable under Sections 363/34, 366-A/34, 376/34 of the IPC, Section 6 of the POCSO Act and Section 3 (1)(r)(s)(w) of the SC/ST Act.
5. As the appellants denied the charge and claimed to be tried, they were put on trial.
6. It is mentioned here that we are not disclosing, in the present judgment, the names of the victim and her parents, who deposed at the trial for the prosecution, so as to conceal her identity and they have been referred to in the present judgment based on their status as prosecution witnesses.
7. At the trial, the prosecution got examined eight witnesses including the victim’s father and the informant (PW 1), her mother (PW 5), grandmother (PW 6) and the victim (PW 2). The Investigating Officer deposed at the trial as PW 7 and the Doctor, who had examined the victim, as PW 8. PWs 3 and 4 are the co-villagers. In addition to the oral evidence of the prosecution’s witness,
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 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 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 court ruled that the prosecution failed to prove the minor status of the victim beyond a reasonable doubt, undermining the conviction under the POCSO Act.
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.
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....
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