The court ruled that the prosecution failed to prove the victim's age as below 18 years, thus the POCSO Act was not applicable, leading to a modification of the conviction under IPC.

JUDGMENT :

(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)

The present appeal has been preferred for setting aside the impugned judgment of conviction and order of sentence dated 22.06.2017 and 23.06.2017, respectively passed by Ld. Ist Additional Sessions-cum-Special Judge (POCSO Act), Araria, in connection with Special (POCSO) Case No. 17 of 2015/Sessions Trial No. 17 of 2015, arising out of Palasi P.S. Case No. 148 of 2015 dated 04.08.2015, whereby the sole appellant has been found guilty of offence punishable under Section 376 of the Indian Penal Code and Section ¾ of the POCSO Act, 2012 and sentenced to undergo imprisonment for life and pay a fine of Rs.50,000/- under Section 376 of the Indian Penal Code and to undergo imprisonment for life and also pay a fine of Rs.20,000/- for the offence Punishable under Section ¾ of the POCSO Act, 2012 and in default to pay the fine, to undergo additional simple imprisonment of 1 year. All the sentences have been directed to run concurrently.

2. The FIR bearing Palasi P.S Case No. 148 of 2015 was registered on 04.08.2015 at 9:00 O’clock on the written report of the victim/informant against three accused persons namely, Bateshwar Yadav, Kinlal Yadav and Deo Narayan @ Bhulla Yadav for the offence punishable under Sections 376 read with Section 34 of the Indian Penal Code and Section ¾ of the POCSO Act, 2012.

3. The prosecution case is that the age of the victim is 13-14 years. She is 9th class student of Utkramit Madhyamik Vidyalaya, Maldwarpur. About six months ago, at 4:00 O’ Clock, she was coming from Kujri Hatia to home, but all of a sudden, one Bateshwar Yadav gagged and lifted her to a nearby bamboo cluster and threw her on the ground. The other two persons viz. Kinlal Yadav and Deo Narayan Yadav @ Bhulla Yadav flicked knife and then committed rape on her one by one. On seeing the passers-by, they fled away. Her father had gone to Punjab on account of poverty and taking advantage of this situation, they established physical relationship with her. After a week, accused Bateshwar Yadav promised to marry her, provided she submitted herself to him. She protested, but was threatened and raped against her wish. She informed her mother who advised her to wait for her father. In the meantime, she became pregnant. Hearing this news, her father came and organised a panchayati, but none of them obeyed the orders of the panchayat. Hence, she lodged the case. At that time, she was carrying a pregnancy of 5-6 months.

4. After registration of the FIR, the investigation commenced and charge-sheet bearing No. 172 of 2015 dated 31.10.2015 was filed against the accused Deo Narayan @ Bhulla Yadav under Section 376 read with Section 34 of the Indian Penal Code and Section ¾ of the POCSO Act, 2012; keeping the investigation pending against other co-accused persons. Subsequently, cognizance was taken and charges were framed against the sole accused facing the Trial.

5. During trial, the following seven witnesses were examined on behalf of the prosecution:

(1) P.W.-1 - Father of the victim.

(2) P.W.-2 - Mother of the victim.

(3) P.W.-3 - victim/informant.

(4) P.W.-4 - Surendra Paswan (Investigating Officer).

(5) P.W.-5 - Dr. Shuvendu Dutta- (Doctor).

(6) P.W.-6 - Dr. Mantasa (Doctor).

(7) P.W. 7- Gayanand Yadav

6. The prosecution brought on record the following documentary evidences.

(i) Ext. 1- Signature of witness on the written application.

(ii) Ext.1/1 – Paging on written application.

(iii) Ext.1/2 – Formal FIR.

(iv) Ext. 2 - Medical Examination Report.

7. After closure of the prosecution evidence, accused was examined under Section 313 Cr.PC during which he was confronted with incriminating circumstances which had come in the prosecution evidence, so as to afford him an opportunity to explain those circumstances. During examination, he admitted that he had heard the evidence of the prosecution witnesses against him. However, he did not explain any circumstance, but denied every charge. He also stated that at the time o