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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and BIBEK CHAUDHURI, JJ.
Criminal Appeal (DB) No.15 of 2022
(6.12.2023)
Shrikant Mandal @ Shrikant Kumar Mandal ... Appellant
vs.
State of Bihar ... Respondent
Indian Penal Code, 1860 – Section 376D – Protection of Children from Sexual Offences Act, 2012 – Section 4 and 29 – Criminal Procedure Code, 1973 – Section 53A, 164, 313 and 374(2) – Gang rape – Minor – Acquittal of accused – The Trial Court held appellant guilty under Section 376D of IPC and Section 4 of POCSO Act – Section 29 of the POCSO Act, casts reverse burden of proof of innocence on accused charged of commission of offences defined under Sections 3, 5, 7 and 9 – In order to attract the provisions of the POCSO Act primary duty of prosecution to prove in accordance with law at trial that a victim of crime is a child within the meaning of Section 2(1)(d) – Prosecution failed to establish that victim was a child – Solitary evidence of victim of sexual assault/ rape can be basis for conviction of person charged of such offence, only when victim is found by court to be truthful witness and her evidence is of sterling quality, right from beginning – Reading evidence of the victim, find that depositions are self-contradictory – Victim does not appear to be trustworthy – Safe to uphold the finding of conviction recorded by the Trial Court – Finding of conviction recorded by Trial Court cannot be sustained – Appellant acquitted of charge of offences – Impugned judgment of conviction and order of sentence are set aside – Appeal is allowed. (Paras 21,25,26 & 27)
Chakradhari Sharan Singh, J.—This appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, putting to challenge a judgment of conviction dated dated 27.10.2021 and an order of sentence dated 29.10.2021, passed by learned 6th Additional Sessions Judge-cum-Special Judge (POCSO), Banka in G.R. No. 168 of 2019, arising out of Mahila (Banka) P.S. Case No. 60 of 2019, whereby the appellant has been convicted and sentenced as under:—
| Appellant | Penal Provision | Imprisonment | Sentence Fine (Rs.) | In default of fine |
| Shrikant | 376D of the IPC | R.I. for 20 years | 20,000/- | R.I. for six months |
| Mandal | 4 of the POCSO Act | RI for 10 years | 10,000/- | RI for three months |
2. Two persons including this appellant were made accused in Mahila (Banka) P.S. Case No. 60 of 2019, instituted on the basis of the written report of the victim. The case of coaccused Sohan Kumar was, however, referred to Juvenile Justice Board in the light of the prosecution's case itself that he was below 18 years of age as on the date of occurrence. Undisputedly, the appellant and said Sohan Kumar are cousins. This fact we have mentioned at the outset in the light of nature of accusation made by the victim in her written statement recorded under Section 164 of the Cr.P.C. and her deposition at the trial.
3. Briefly narrated, it is the prosecution's case, as disclosed in the written report of the victim, that she was 15 years old, when on 08.12.2019 at 7:00 PM, she had gone out of her house, away from the village into a field to defecate. In the meanwhile, this appellant and his cousin Sohan Kumar came. They firstly assaulted her, tied her mouth and both of them dragged her to a place near a brickkiln. Thereafter, both of them committed rape upon her one by one. They threatened her of serious consequences, if she disclosed the occurrence to anyone. On return to her house she disclosed the occurrence to her aunt. One of the victim's cousin, when went to the house of the accused to make a complain about the occurrence, both of them assaulted him (the victim's cousin). She further alleged that after uproar and commotion, the people present nearby gathered there. Subsequently, she went to Police Station, Barahat for lodging a case and subsequently to the Mahila Police Station at Banka. The said written application given on 09.12.2019 gave rise to Mahila (Banka) P.S. Case No. 60 of 2019, disclosing commission of offence under Section 376D of the IPC and Section 4 of the POCSO Act.
4. It further transpires from the records that this appellant and co-accused Sohan Kumar were arrested on 09.12.2019 from their house. The statement of the victim (PW- 5) was recorded under Section 164 of the CrPC. The victim was subjected to undergo medical examination. It transpires from the records that the victim’s age, based on radiological examination, was assessed by the Medical Board to be between 15-16 years. The following marks were found on the person of the victim:—
(a) One black mole on right knee
(b) One old scar mark on right foreleg
(c) Hymen injury caused by forceful insertion of hard and blunt substance, may be caused by sexual intercourse.
(d) The vaginal swab was collected for examination.
It would be apt to notice, at this juncture itself, that the appellant was not subjected to any medical examination as contemplated under Section 53A of the CrPC.
5. The police, upon completion of investigation submitted charge-sheet against the appellant and said Sohan Kumar for the offences punishable under Section 376D of the IPC and Section 4 of the POCSO Act. The record of co-accused Sohan Kumar was separated and sent for further action to the Juvenile Justice Board, Banka on 10.12.2019. Cognizance was taken for the aforesaid offences on 25.04.2020. Subsequently, this appellant was charged of commission of the offences punishable under Section 376D of the IPC and Section 4 of the POCSO Act. The appellant denied the charge and claimed to be tried. A
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 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 central legal point established in the judgment is the requirement for conclusive evidence to establish the commission of offenses, especially in cases involving serious allegations such as rape,....
The court held that discrepancies in the victim's testimony and lack of corroborating evidence created reasonable doubt, leading to the appellant's acquittal.
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