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2024 Supreme(Pat) 516

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and JITENDRA KUMAR, JJ.
Criminal Appeal (DB) No.914 of 2022
(28.6.2024)
Satyabrat Ashok @ Satya Vrat Ashok @ Pappu Sharma @ Pappu ... Appellant
vs.
State of Bihar ... Respondent

Advocates:
For the Appellant : M/s Ajay Kumar Thakur, Kiran Kumari, Vaishnavi Singh, Imteyaz Ahmad, Ritwik Thakur, Ritwaj Raman.
For the State : Mr. Binod Bihari Singh, APP.

Headnote:

Protection of Children from Sexual Offences Act, 2012 – Sections 29 and 30 – Presumption of offence and culpable mental state – Presumptions as provided are those of law and mandatory in nature, but are rebuttable – Accused may rebut presumption by leading defence evidence or by discrediting prosecution witnesses through cross examination or by exposing patent absurdities or inherent infirmities in prosecution case by analyzing special features of particular case – Presumption does not take away essential duty of Court to analyze evidence on record in light of special features of a particular case – Courts are required to be on guard to see that application of presumptions does not lead to any injustice or mistaken conviction. (Paras 14 and 17)

Protection of Children from Sexual Offences Act, 2012 – Sections 4(2) read with Sections 2(1)(d) and 34 – Indian Penal Code, 1860 – Section 376 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 – Juvenile Justice (Care and Protection of Children) Rules, 2007 – Rule 12 – Penetrative sexual assault against child – Rigorous imprisonment for 20 years and fine of Rs. 25,000/- imposed – Age of victim is one of foundational facts to be proved by prosecution as it is a prerequisite for application of POCSO Act against appellant – Procedure provided for determination of age of juvenile in conflict with law should be adopted for determination of age of victim of crime also – Initial burden of prosecution to prove age of victim stands discharged, proving beyond reasonable doubts that victim at the time of occurrence was below 16 years of age – Victim has deposed that physical relationship between Accused/Appellant and her was going on for last 7-8 months since prior to lodging of present case – Consent of child/Informant is immaterial in eye of law and does not obliterate offence committed by Accused/Appellant against child/Informant – Even marriage of Accused/Appellant with child victim of rape does not absolve Accused of offence of sexual assault – Appellant is already married and his first wife is still alive – Evidence of prosecutrix is not required to be corroborated as she is not an accomplice – Her status is at par with an injured witness – Evidence of child/Informant is also corroborated by oral evidence of her parents and her maternal uncle and medical evidence on record – Conviction maintained – Rigorous imprisonment of ten years and fine of Rs. One Lakh under Section 4(1) of POCSO Act would meet ends of justice – Appeal partly allowed. (Paras 42, 50, 51, 52, 55, 66, 67 and 68)

Criminal Procedure Code, 1973 – Section 357-A – Protection of Children from Sexual Offences Act, 2012 – Sections 33(8) – Protection of Children from Sexual Offences Rules, 2020 – Rule 9 – Victim Compensation Scheme – Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes-2018 as prepared by NALSA, has been incorporated by Bihar Government in its Victim Compensation Scheme of 2014 – If someone is found to be victim of crime, Special Court is duty bound to direct payment of compensation to victim, either by way of fine or if fine is insufficient, then by way of direction to Legal Services Authority to pay compensation – Bihar Legal Services Authority directed to pay compensation of Rs. 2,00,000/- to victim. (Paras 76, 79 and 84)

Judgement Key Points

Certainly. Based on the provided legal document, the key legal points are as follows:

  1. The prosecution has the initial burden to establish the foundational facts, including the age of the victim, beyond reasonable doubt. The age of the victim is a crucial element for applying the relevant statutes and must be proved through admissible evidence, such as matriculation certificates or other official documents, with proper procedural adherence (!) (!) (!) .

  2. The procedure for determining the age of a victim under the POCSO Act and related juvenile laws is similar. It involves considering official documents first, such as matriculation or birth certificates, and if unavailable, resorting to medical age estimation tests. The process must be in accordance with applicable rules and regulations, and objections to evidence must be raised at the appropriate stage (!) (!) (!) .

  3. Evidence of age obtained through secondary sources, such as photocopies, is admissible if the proper foundation is laid, and objections to such evidence are raised timely. Waiver of objections at trial may preclude raising such issues at later stages (!) (!) (!) .

  4. The victim's age at the time of the alleged sexual assault is critical for determining the applicability of the POCSO Act. The evidence indicates that the victim was below 18 years at the time of the offence, which is a fundamental requirement for the offence under the Act (!) (!) (!) .

  5. The evidence of the victim, corroborated by her parents, maternal uncle, and medical examination, is trustworthy and sufficient to establish that the victim was subjected to penetrative sexual assault. The victim's consent is immaterial under the law, as she was a minor at the time of the offence (!) (!) (!) .

  6. The marriage of the accused to the victim does not absolve him of the offence, especially since the marriage is void ab initio due to the victim's minority and the accused's existing marriage. Such marriage does not negate the criminal act of sexual assault (!) .

  7. The evidence on record supports the conclusion that the accused committed the offence of penetrative sexual assault and that the offence was committed when the victim was approximately 16 years and 10 months old (!) (!) .

  8. The presumption provisions under the POCSO Act, which shift the burden of proof onto the accused regarding the mental element of the offence, are applicable once the foundational facts are proved. The accused has the opportunity to rebut these presumptions, but the prosecution must first establish the basic facts beyond reasonable doubt (!) (!) (!) .

  9. The victim's testimony is sufficient for conviction without requiring corroboration, provided it is trustworthy and credible. The evidence of the victim, supported by medical and testimonial evidence, is deemed reliable in this case (!) (!) .

  10. The court has a duty to award compensation to the victim, which can be ordered directly by the court based on the circumstances of the case. The compensation aims to address physical and mental trauma and support rehabilitation. The applicable scheme and legal provisions empower the court to direct the payment of compensation either as interim or final relief (!) (!) (!) .

  11. In the absence of a specific state scheme for victims under the POCSO Act, the guidelines and provisions of the national victim compensation scheme, as well as relevant statutory provisions, should be utilized to determine the quantum and process of compensation. The court is responsible for ensuring timely payment to the victim (!) (!) .

  12. The law emphasizes that procedural objections to evidence, such as the mode of proof of documents, must be raised at the appropriate stage. Failure to do so results in waiver, and such objections cannot be raised for the first time during appeal (!) (!) .

  13. The legal framework mandates that the court must explicitly find and declare the victim of the offence and order appropriate compensation, even if the accused is acquitted or discharged. The obligation to provide compensation is a statutory duty of the court (!) .

  14. The sentence for the offence under the relevant statutes involves rigorous imprisonment for a minimum of ten years, with the possibility of life imprisonment, along with a fine. The fine amount, when paid, is directed to be given to the victim as part of the compensation (!) (!) .

  15. The court has the authority to direct the payment of interim and final compensation, ensuring the victim's rehabilitation and addressing trauma, in accordance with the applicable legal provisions and guidelines. Such payments are to be made within stipulated timeframes and can be deposited in interest-bearing accounts if deemed appropriate (!) (!) .

These points collectively summarize the legal principles, procedural requirements, and judicial directions relevant to the case, emphasizing the importance of proper age determination, the credibility of victim testimony, the non-cessation of criminal liability despite marriage, and the court’s role in ensuring victim compensation.


Jitendra Kumar, J.—The present appeal has been preferred against the impugned judgment of conviction and order of sentence dated 22.10.2022 and 04.11.2022 respectively passed by Ld. Special Judge, POCSO Court-cum-Additional Sessions Judge-VI, Gaya, Bihar, in POCSO Case No. 79 of 2018 arising out of Kotwali P.S. Case No. 356 of 2018, whereby the sole appellant has been convicted for the offences punishable under Section 376 of the Indian Penal Code and Section 4(2) of POCSO Act, 2012 and sentenced to undergo rigorous imprisonment for 20 years and pay a fine of Rs. 25,000/- for offence punishable under Section 4(2) of POCSO Act, 2012 and in case of default of payment of fine additional rigorous imprisonment of three months. The appellant has not been sentenced under Section 376 of the Indian Penal Code in view of the provisions of Section 42 of the POCSO Act, 2012.

2. The FIR bearing Kotwali P.S. Case No. 356 of 2018 was lodged at 11:00 O’ Clock on 20.07.2018 against the sole accused Satyabrat Ashok @ Pappu Sharma, who is appellant herein, for offence punishable under Section 376 of the Indian Penal Code and Section 8 of POCSO Act, 2012 on the written report of the victim on 20.07.2018 to the Officer-in-Charge Kotwali Police Station, Gaya.

3. The prosecution case as has emerged from the written report is that the informant/victim was born on 14.04.2000. She took examination of Matriculation in March, 2015 and thereafter, she started living with her uncle and aunt since 2015 at Buxar. It is alleged that since then, he started misbehaving with her and on the false promise to marry, he established physical relationship with her. When she asked to marry her, he refused and promised that he will marry only on her becoming a major. However, he reneged from his promise. None the less, the affair continued for three years. He had given her mobile phones twice for talking to him. He made physical relationship several times by taking her to hotel at Tower Gali near Bengali Ashram situated under Police Station Vishnupad, Gaya. On 20.07.2018, he clearly refused to marry her under any condition.

4. After registration of the F.I.R., investigation commenced and after investigation, charge-sheet bearing no. 156 of 2019 dated 17.06.2019 was submitted against the appellant for offences punishable under Section 376 of the Indian Penal Code and Section 4 of POCSO Act, 2012. Cognizance of offence punishable under Section 376 of the Indian Penal Code and Section 4 of POCSO Act was taken by the learned POCSO Court and charges were framed.

5. During trial, the following six witnesses were examined:—

(1) P.W.-1—Atit Kumar

(ii) P.W.-2—Victim

(iii) P.W.-3—Father of the victim

(iv) P.W.-4—Dr. Shakuntala Naag

(v) P.W.-5—Mother of the victim

(vi) P.W.-6—Seema Kumari (I.O. of the case)

6. During trial, the prosecution has also brought on record the following documentary evidence:—

(i) Ext. 1—Written application of FIR;

(ii) Ext. 2—Signature of victim on her statement under Section 164 Cr.PC;

(iii) Ext. 3—Photocopy of Matriculation Mark-sheet of victim.

(iv) Ext. 4—Medical Report

(v) Ext. 5—F.I.R.

(vi) Ext. 6—Endorsement

7. After closure of the prosecution evidence, the appellant was examined under Section 313 Cr.PC, confronting him with the incriminating circumstances which had come in the prosecution evidence, so as to afford him the opportunity to explain them. However, during his examination, the only thing which he stated was that he is innocent.

8. The appellant did not examine any witness in his defence. However, he brought the following documentary evidence on record:—

(i) Ext.A—Statement of victim dated 06.03.2019

9. The learned Trial Court after appreciating the evidence on record and considering the submissions of the parties, passed the impugned judgment of conviction and order of sentence finding that the victim/informant was fourteen (14) years of age at the time of commission of the offence against her and the appellant could not discharge his onus to rebut the pres

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