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.

JUDGMENT :

(Chandra Shekhar Jha, J.)

Heard Mr. Sudhir Kumar Singh, learned counsel appearing on behalf of the appellant and Mrs. Anita Kumari Singh, Additional Public Prosecutor for the State.

2. The present memo of appeal has been filed for setting-aside the judgment of conviction dated 28.01.2023 and order of sentence dated 09.02.2023 passed by learned 6th Additional Sessions Judge-cum-Special Judge, POCSO Act, East Champaran, Motihari in connection with P.Tr. No. 14/2020 arising out of Turkauliya (Banjariya) P.S. Case No. 850 of 2019, whereby and whereunder the learned trial court has awarded with rigorous imprisonment of ten (10) years with a fine of Rs. 20,000/- under Section 4(1) of the POCSO Act, in default of payment of fine, S.I. of one month. Further, convict is ordered to undergo S.I. of five (5) years with a fine of Rs. 10,000/- under Section 10 of the POCSO Act, in default of payment of fine, S.I. of fifteen (15) days. Further, the learned trial court convicted the appellant to undergo imprisonment of seven (7) years with a fine of Rs. 10,000/- for the offence under Section 363 of the Indian Penal Code and in default of payment of fine, convict is ordered to undergo S.I. of one month and further ordered that all the sentences shall run concurrently.

3. The brief facts of this case as it appears from the written information of the father of victim (PW-2), that while his minor daughter aged about 12 years, was going to ‘Chhath Ghat’ on 03.11.2019 at around 4:00 a.m., two accused persons namely, Pradeep Srivastava (appellant) alongwith co-accused Suman Srivastava forcibly dragged and seated her in the middle of their motorcycle and taken away towards Ambika Nagar. The informant alleged that some villagers had seen that accused persons were taken away his minor daughter on the motorcycle. The villagers informed the informant regarding the occurrence, thereafter the informant alongwith family members followed the accused persons but they were not caught. The informant stated that when he reached at the house of the accused persons and met with their father, he assured him to return his minor daughter. The informant further stated that he never made any application to the concerned police station regarding the occurrence. He stated that the accused persons left his minor daughter at ‘Chati Mai’ after 8 to 10 days of the occurrence. He alleged that the accused namely, Pradeep Srivastava (appellant) repeatedly raped his minor daughter ten days of her captivity and also abused him by taking caste name and threatened him that he will upload the photos and video, which he has created with his daughter during the aforesaid period. He further stated that when his son opened the social media account on facebook, he found those photos and videos were uploaded. Thereafter, the informant lodged the present F.I.R.

4. On the basis of aforesaid written report, police drawn formal F.I.R. being Turkauliya (Banjariya) P.S. Case No. 850 of 2019 registered for the offence punishable under Section 363, 366(A), 376 and 34 of the Indian Penal Code read with Section 4/8 of the Protection of Children from Sexual Offence Act and Section 3(i)(r)(w) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act. After conclusion of investigation, police submitted charge-sheet being No. 21/2020 dated 27.02.2020 and, on the basis of which, cognizance was taken against the accused persons under section 363 and 365 of the I.P.C. read with section 8 of the POCSO Act on 18.03.2020 but upon perusal of materials collected during investigation, charges were framed against the accused persons under Section 363, 365, 370, 376(3) of the I.P.C. alongwith Section 4, 10 & 14 of the POCSO Act, Sections 3(i)(w) of the SC/ST (POA) Act & Section 67(B) of the I.T. Act on 09.09.2021.

5. Learned trial court explained the aforesaid charges to appellants/accused, which he pleaded “not guilty” and claimed trial.

6. court, the prosecution altogether examined total Sev