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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and GUNNU ANUPAMA CHAKRAVARTHY, JJ.
Criminal Appeal (DB) No.104 of 2022
(8.11.2023)
Subir Kumar @ Chhotiya ... Appellant
vs.
State of Bihar ... Respondent
Protection of Children from Sexual Offences Act, 2012 – Sections 4 and 29 – Indian Penal Code, 1860 – Section 376 – Penetrative sexual assault upon minor girl – Life sentence – Burden is always on prosecution to prove that victim is a child aged below 18 years – As far as POCSO Act is concerned, onus lies on appellant to establish that he is innocent in view of Section 29 of POCSO Act which is a statutory presumption – Prosecution has miserably failed to prove that victim was minor as on date of occurrence and that victim was a child within meaning of Section (2) (1) (d) of POCSO Act in order to attract POCSO Act – Medical evidence plays crucial role to prove offence under Section 376 of IPC – In view of evidence on record, it can be presumed that victim had sexual relationship with appellant with her consent – Prosecution has not done any DNA test to child born to victim in order to connect crime with that of accused – Prosecution has miserably failed to prove that appellant has committed sexual offence against victim for offence punishable under Section 376 of IPC – Appellant is entitled for benefit of doubt – Impugned judgment of conviction and order of sentence set aside – Appeal allowed. (Paras 16, 17, 21, 29 to 33)
Gunnu Anupama Chakravarthy, J.—This criminal appeal has been preferred against Judgment of conviction dated 29.11.2021 and order of sentence dated 30.11.2021 passed by the learned Additional Sessions Judge VI – cum – Special Judge POCSO, Jehanabad, in POCSO Case No. 50 of 2019, arising out of Jehanabad (Mahila) P.S. Case No. 46 of 2019. By the judgment and order aforesaid, the appellant has been convicted and sentenced as under:—
Cr. Appeal (D.B.) No. 104 of 2022
| Convicted under | Sections | Imprisonment | Sentence Fine (Rs.) | In default of fine |
| Subir Kumar @ Chhotiya | 376 of the IPC | R.I. for Life | 10,000/- | R.I. for one year |
|
| 4 of the POCSO Act | R.I. for Life | 10,000/- | R.I. for one year |
All the sentences have been directed to run concurrently.
2. As the matter relates to Section 376 of the Indian Penal Code and section 4 of the POCSO Act, we are of the considered view that the names of the victim or the parents of the victim shall not be disclosed in the judgment in order to safeguard the identity of the victim girl as per the directions of the Hon’ble Supreme Court.
3. We have heard Mr. Ajay Kumar Thakur, learned counsel for the appellant and Ms. Shashi Bala Verma, learned APP for the State.
4. The criminal case was set into motion basing on the written information given by the mother of the victim, who is the informant (PW 4), dated 20.7.2019 to the S.H.O., Mahila P.S., Jehanabad, wherein the informant has specifically stated that the victim was aged about 15 years and was pregnant at the time of preferring the information. PW 4/informant noticed the changes in the body of the victim and on confrontation with victim, she came to know that the appellant i.e., Sudhir Kumar @ Chhotiya of their village had lured the victim, used to do wrongful acts with the victim near the pond and under the Banyan tree for which she preferred the written application.
5. Basing on the report, the SHO, Mahila P.S., Jehanabad registered the case against the appellant vide FIR bearing Jehanabad (Mahila) P.S. Case No. 46 of 2019 dated 20.7.2019 for the alleged offence punishable under Section 376 of the IPC and under Section 4 of the POCSO Act.
6. During the course of investigation, the Investigating Officer has recorded the statement of witnesses under Section 161 of the Cr.P.C., who also got examined the victim under Section 164 of the Cr.P.C.. She also referred the victim for medical examination. On completion of the investigation and after receiving of the documents, laid charge-sheet against the appellant for the aforesaid offences.
7. The trial court took cognizance against the appellant vide order dated 21.10.2019 for the above said Sections and later charges were framed under Section 376 of the IPC and Section 4 of the POCSO Act on 18.12.2019, against the appellant, read over and explained to him.
The accused pleaded not guilty and claimed to be tried.
8. In order to prove the case against the appellant beyond the reasonable doubt, the prosecution has examined six witnesses i.e. PW1 the victim herself, PW 2, the mother of the victim (informant), PW 3 and 4, the Medical Officers of Sadar Hospital, Jehanabad, P.W. 5, the Investigation Officer and P.W. 6 the father of the victim.
9. In addition to the oral evidence of the prosecution’s witness, the prosecution also brought on record documentary evidence i.e., Exhibits 1 to 8 viz. column no. 1 & 2 and column no. 5 to 10 of medical report Ext. 1, Ultra Sonographic report Ext. 2. Entire medical report Ext. 3, Endorsement regarding registration of the case on the written petition of the informant Ext. 4, Formal F.I.R Ext. 5, Requisition for medical examination of the victim Ext. 6, Arrest memo of the accused Ext. 7, Statement of the victim u/s 164 Cr.PC Ext. 8.
10. Learned counsel appearing on behalf of the appellant contended that the trial court had convicted the appellant for the above said offences, which is erroneous and perverse. The prosecution has miserably failed to prove that the appellant
The victim's testimony, if found reliable, can form the sole basis for conviction under the POCSO Act, and legal presumption against the accused places the burden of rebuttal on the defense.
The presumption under Section 29 of the POCSO Act requires foundational facts to be established; mere reliance on medical evidence without corroboration is insufficient for conviction.
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 conviction for sexual offences against minors can rely on circumstantial evidence and victim testimony, reinforced by medical reports, even amidst witness hostility.
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