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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and JITENDRA KUMAR, JJ.
Criminal Appeal (DB) No. 357 of 2022
(30.10.2024)
Md. Mahmood Alam ... Appellant
vs.
State of Bihar ... Respondents
Indian Penal Code, 1860 – Section 376 & Prevention of Children from Sexual Offences (POCSO) Act, 2012 – Sections 5/6, 29 and 30 read with Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act, 2015) – Section 94 – Rape of a minor girl of 12 years of age – Presumption and determination of age of child – The age of the victim is determined on the basis of birth certificate from the school or matriculation certificate, if available – In other words, if the victim was a student of school, the aforesaid certificates have precedence over other modes of proof regarding the age – In the absence of such certificate, birth certificate given by the Municipal Authorities or Panchayat is required to be considered for determination of age of the victim – In the absence of the aforesaid certificates, the age of the victim is required to be determined by ossification test or any other latest medical test – Any other proof like oral evidence is impliedly excluded from consideration for determination of age of the victim – In the present case, there is only medical opinion regard to the age of the victim – It is a settled position of law that medical opinion regarding age of a person is not conclusive evidence, because exact assessment of the age cannot be done on the basis of medical test as there is always possibility of errors on both higher and lower sides however, medical opinions can be very useful guiding factors to be considered in the absence of documents as mentioned in Section 94(2) of the J.J. Act, 2015 – Medical opinion has to be always considered along with the attending circumstances – As per the evidence on record, only attending circumstance is the oral testimony of the father of the victim who has deposed that the victim was above 12 years of age at the time of occurrence – As such, in view of the oral testimony of the father of the victim and the medical opinion, the victim is found to be a child and the provisions of POCSO Act is applicable. (Paras 41, 45, 47)
Indian Penal Code, 1860 – Section 376 with Prevention of Children from Sexual Offences (POCSO Act), 2012 – Sections 516 – Appreciation of evidence of relative – It is a settled position of law that evidence of any relative or family members cannot be discarded only on account of his or her relationship with the deceased (sic, victim) – The evidence of such witnesses has to be weighed on the touchstone of truth or at most the court is required to take care and caution while appreciating their evidence – However, minor discrepancies, contradictions, improvements, embellishments or omissions or trivial matters not going to the root of the prosecution case should not be given undue importance – But it they relate to the particulars of the prosecution case, the testimony of such witnesses is liable to be discarded – Here, the evidence of the prosecutrix (PW-5) is consistent and truthful – There is no major contradictions in her statements going to root of the prosecution case – It is also supported by the medical evidence, as per which the hymen of the victim was found ruptured – Prosecution has successfully proved the foundational facts of the alleged offence and presumption under Sections 29 and 30 of the POCSO Act stands raised against the appellant and the appellant has not succeeded to report this presumption – Appellant had guilty of committing penetrative sexual assault against the victim – However, the alleged offence has been committed in the year 2014 when there was no such punishment under Section 6 of the Act being imprisonment for the remainder of life – Present case in covered under Section 4 of the POCSO Act and not under Section 6 of the Act as the victim being found to be above 12 years of age, the penetrative sexual assault against does not come under aggravated penetrative sexual assault – punishment reduced to 10 years with compensation enhanced to additional Rs. 1,00,000/- – Appellant being already in custody for more than 10 years directed to released forthwith. (Paras 49 to 62)
Babu Vs. State of Kerala, (2010) 9 SCC 189; Navin Dhaniram Baraiye Vs. State of Maharashtra, 2018 SCC Online Bom 1281; Joy V. S. Vs. State of Kerala, (2019) SCC Online Ker 783; Sahid Hossain Biswas Vs. State of West Bengal, 2017 SCC Online Cal 5023; Dharmender Singh Vs. State (Govt. of NCT of Delhi), (2020 SCC Online Del 1267); Latu Das Vs. State of Assam, 2019 SCC OnLine Gau. 5947 – Referred.
Jarnail Singh Vs. State of Haryana, (2013) 7 SCC 263; P. Yuvaprakash Vs. State, 2023 (5) BLJ 1 (SC) : 2023 SCC onLine SC 846; Rishipal Singh Solanki Vs. State of U.P., 2022 (1) BLJ 305 (SC) : (2022) 8 SCC 602; Mukarrab Vs. State of U.P., (2017) 2 SCC 210; State of M.P. Vs. Anoop Singh, (2015) 7 SCC 773; Abuzar Hossain Vs. State of W.B., (2012) 10 SCC 489; Appabhai Vs. State of Gujarat, 1988 Supp. SCC 241] – Relied.
The judgment holds the following regarding child victims' rights and child-friendly procedures:
Child victims have a right to a child-friendly procedure throughout investigation and trial, including recording of statements by a sensitive woman police officer in the presence of parents/guardian or trusted person, preferably at the child's residence or shelter home, avoiding police station premises. (!) (!) (!)
Section 24 POCSO mandates recording child's statement in a child-friendly manner, using simple, non-leading questions, with audio-video electronic means where feasible, to minimize trauma. (!) (!) (!)
Trial courts must adopt child-friendly trial practices: permitting child to testify via video-conferencing or behind one-way mirror/screen to prevent confrontation with accused; avoiding aggressive cross-examination; presence of support persons; and ensuring no disclosure of child's identity. (!) (!) (!) (!) (!)
Child victims' right to privacy and dignity is paramount; courts must prohibit publication of material identifying the child, and expunge such details from records. (!) (!)
Right to free legal aid and support services for child victims from the inception of proceedings, including psychological assistance if needed. (!) (!)
Delays in trial for child victims must be minimized; adjournments granted sparingly, prioritizing expeditious disposal under Section 35 POCSO. (!) (!)
Jitendra Kumar, J.—The present appeal has been preferred against the judgment of conviction and order of sentence dated 25.03.2022 and 29.03.2022 respectively passed by learned Additional District & Sessions Judge-VII,-cum-Exclusive Special Court (POCSO) Act, Sasaram, Rohtas in POCSO Case No. 25 of 2015, arising out of Tilauthu P.S. Case No. 385 of 2014, whereby the sole Appellant has been found guilty of offence punishable under Section 376 I.P.C. and Section 5/6 of the POCSO Act, 2012. However, the appellant has not been sentenced under Section 376 of the Indian Penal Code and instead he has been sentenced to undergo rigorous imprisonment for the remainder of natural life and to pay a fine of Rs.50,000/- under Section 6 of the POCSO Act and in case of default to pay the fine, to further undergo additional simple imprisonment for one year. The victim has been also awarded compensation of Rs.4,00,000/- towards her rehabilitation to be paid by DLSA Rohtas at Sasaram.
Prosecution case.
2. The prosecution case as emerging from the written report of the informant given to the Officer-in-Charge of Tilauthu Police Station on 6.5.2014 is that on 04.05.2014, his 10 year old niece was taken by the appellant, who is his agnate, to Banaras on the pretext of serving his daughter who was expecting a child. At Banaras, his niece was subjected to rape by the appellant after administration of intoxicant. When she came with him at home on 6.5.2014, she told him about the occurrence.
Factual background.
3. On the basis of the written report, formal F.I.R. was lodged for the offence punishable under Sections 376 of I.P.C. on 06.05.2014 at 23 O’ clock against the sole accused Md. Mahmood Alam. After investigation, charge sheet bearing no. 29 of 2014 dated 22.06.2014 was submitted against the Appellant for offence punishable under Secstions 365, 366(A) and 376 of the Indian Penal Code and Section 6 of the POCSO Act. After cognizance of the offence by learned Magistrate on 11.07.2014 against the appellant, the case was committed to the Court of Sessions. The charges were framed against the appellant under Sections 365, 366(A) and 376 of the Indian Penal Code and Section 6 of the POCSO Act and the same were read over and explained to the accused to which he pleaded not guilty and claimed to be tried. Hence, the trial commenced.
4. During trial, the following ten witnesses were examined on behalf of the prosecution:—
(i) P.W. 1 :—Mother of the victim
(ii) P.W. 2 :—Grand-mother of the victim
(iii) P.W.3 :—Uncle of the victim/informant.
(iv) P.W. 4 :—Father of the victim.
(v) P.W. 5 :—Victim
(vi) P.W. 6 :—Dr. Richa Chaudhary
(vii) P.W. 7 :—Dr. Piyush Kumar Pushkar
(viii) P.W. 8 :—Abhinandan Kumar Singh
(ix) P.W. 9 :—Dr. Vijay Kumar Singh
(x) P.W. 10 :—Dhirendra Yadav
5. The prosecution also brought on record the following documentary evidence:—
(i) Ext. 1 :—Signature of the informant on the fardbeyan
(ii) Ext. 2 :—Signature upon the statement under Section 164 Cr.PC of the victim
(iii) Ext. 3 :—Medical report
(iv) Ext. 4 :—Report of the Medical Board
(v) Ext. 4 /1:—Signature of Dr. Vijay Kumar Singh on the report of the Medical Board.
Statement under Section 313 Cr.PC
6. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.PC confronting him with incriminating circumstances which came in the prosecution evidence, so as to afford him opportunity to explain those circumstances. During this examination, he admitted that he had heard the evidence of prosecution witnesses against him. But he did not explain any circumstance, though he claimed that the prosecution evidence is false and he is innocent and has been falsely implicated because he got his son married with another girl.
7. The appellant has also examined the following three witnesses in his defence:—
(i) D.W.1—Shahbuban Bibi
(ii) D.W.2—Najroon Khatoon
(iii) D.W. 3—Saibun Nisha
Findings of the Trial Court.
8. Learned Trial Court after appreciating the evidence on record and considering the s
The prosecution must prove the victim's age as below 18 for POCSO applicability; failure to do so leads to acquittal.
The prosecution must prove foundational facts of age and sexual assault beyond reasonable doubt, even with statutory presumptions under the POCSO Act.
The prosecution must prove foundational facts, including the victim's age, beyond reasonable doubt, even under statutory presumptions of the POCSO Act.
The prosecution must prove foundational facts, including the victim's age and the occurrence of the alleged crime, beyond reasonable doubt for a conviction under the POCSO Act.
Victim testimony in sexual assault cases must be credible and consistent; considerable contradictions undermine prosecution's case under the POCSO Act.
The sole testimony of a child victim can suffice for conviction if credible, and age determination must rely on conclusive evidence such as school records.
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.
School certificate determines minor's age preferentially; POCSO conviction upheld on credible victim testimony despite delay, contradictions (unproved), negative medicals; presumption activated post ....
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