Back
IN THE HIGH COURT OF JUDICATURE AT PATNA
CHANDRA SHEKHAR JHA, J.
Criminal Appeal (SJ) No. 5040 of 2023
(20.11.2024)
Md. Amin ... Appellant
vs.
State of Bihar & Anr. ... Respondents
Protection of Children from Sexual Offences Act, 2012 – Section 4 – Indian Penal Code, 1860 – Sections 363 and 376 – Criminal Procedure Code, 1973 – Section 164 – Kidnapping and rape of minor girl – Conviction and sentence – Statement of victim as recorded under Section 164 of Cr.P.C. is not substantial piece of evidence but its value as a corroborative evidence cannot be ruled out – Victim cannot be accepted as "Sterling witness" – Testimony of CWs also not appears corroborating with allegation of gang rape – Conviction as secured by Trial Court on sole testimony of victim appears questionable – Victim was accepted minor within meaning of Section 2(1)(d) of POCSO Act by trial court on the basis of her radiological age as she was assessed between 16-18 years – No documents regarding date of birth/age was brought on record in view of Section 94(2) of J.J. Act – If a marginal benefit of + 2 years be given then certainly on the date of occurrence, victim appears stands major and conviction as recorded under POCSO Act appears questionable – Prosecution failed to established foundational aspect qua crime in question so as to import provision of presumption as available under Sections 29 and 30 of POCSO Act – Conviction and sentence set aside – Appeal allowed. (Paras 29, 30, 32, 34 to 37)
Chandra Shekhar Jha, J.—The present appeal preferred by appellant/convict Md. Amin against judgment of conviction dated 18.09.2023 and the impugned order of sentence dated 22.09.2023 passed by the learned Exclusive Special Judge (POCSO Act)-cum-Addl. District & Sessions Judge-VII, Bhagalpur, in POCSO Case No. 86 of 2021 arising out of Kharik P.S. Case No. 69 of 2021, whereby and whereunder the appellant/convict has been convicted for the offences under Sections 363 and 376 of the Indian Penal Code and Section 4 of the POCSO Act and ordered to undergo sentence for R.I. of ten years and fine of Rs. 20,000/- (Rupees twenty thousand only) for the offence under Section 4 of the POCSO Act and in default of payment of fine, he shall further undergo six months of S.I. Further sentenced him to undergo R.I. for five years and fine of Rs. 10,000/- (Rupees ten thousand only) for the offence under Section 363 of the Indian Penal Code and in default of payment of fine, he shall further undergo three months of S.I.
2. The crux of prosecution case, as it appears from the written information of the informant, namely, Manoj Thakur (PW-1) that on 08.04.2021 at about 9:00 AM, his minor daughter went on missing, so he began to search. During course of search, he came to know that Md. Amin (appellant) enticed his minor daughter. Further alleged that his minor daughter has also taken away Rs. 16000/- and golden chain alongwith her. It was also alleged that when he asked brother of Amin about this, then he abused him, so he suspect that Md. Irshad and Md. Iliyas and Amin all having common intention have enticed away her for the purpose of marriage with his minor daughter.
3. With aforesaid written information of informant/PW-1, Kharik P.S. Case No. 69/2021 dated 9.4.2021 was lodged for the offences under Sections 363,366(A),379/34 of the Indian Penal Code.
4. After investigation, police submitted charge sheet No. 151/21 on 07.08.2021 for the offences under Sections 363,366(A)/34 of the Indian Penal Code. Thereafter, learned trial court took cognizance against the appellant for the offences under Sections 363, 366A, 376 of the Indian Penal Code and Section 4 of the POCSO Act for trial and disposal.
5. To established its case before the learned trial court, the prosecution altogether examined total of seven witnesses, namely, PW-1 Manoj Thakur (informant and father of the victim) PW-2 Funia Devi (mother of the victim), PW-3 victim, PW-4 Prabhat Kumar (1st I.O.), PW-5 Mausam Kumar, PW-6 Praveen Kumar Yadav and PW-7 Manoj Kumar (2nd I.O. of the case).
6. Total of two court witnesses were also examined as C.W.-1 Dr. A.K. Murarka and C.W. 2 Dr. Anju Turir.
7. The prosecution also exhibited following documents during the trial to substantiate its case which are as:—
Exhibit no. I—Signature of victim on statement under Section 161 of Cr.P.C. Exhibit–P-2 The formal FIR.
Exhibit-2—Signature of victim on statement under Section 164 of Cr.P.C.
Exhibit-3—Writing and signature on FIR.
Exhibit-1/1—Writing and signature on statement under Section 161 of Cr.P.C.
Exhibit-4—Writing on search-Cum- Seizure list.
Exhibit-5—Entire charge sheet. C.I- Entire Radiological report of Doctor.
C.2—Entire Medical Report.
8. On the basis of evidences, as surfaced during the trial, the appellant/convict was examined under Section 313 of the Cr.P.C., where he denied all the evidences as surfaced against him during trial and claimed his complete innocence and false implication.
9. Total of two defence witnesses were examined on behalf of accused/appellant during the trial.
10. On the basis of aforesaid evidences, learned trial court convicted the appellant and passed order of sentence, as aforesaid, being aggrieved with, appellant/convict preferred the present appeal.
11. Hence the present appeal.
12. Learned counsel appearing on behalf of the appellant submitted that the fact of love affairs as appears out of testimony of PW-5 and PW-6 and further land dispute out of testimony of victim/PW-3 herself
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 conviction was quashed due to insufficient evidence and credibility issues with the victim, highlighting the necessity of establishing a solid evidentiary foundation in sexual assault cases.
The prosecution failed to establish the elements of penetrative sexual assault under the POCSO Act, leading to the quashing of conviction due to insufficient evidence and unreliable witness testimoni....
Conviction and sentencing for sexual offences under the POCSO Act upheld, establishing that the defense's failure to challenge the victim's age and credibility supported the prosecution's case.
Victim testimony in sexual assault cases must be credible and consistent; considerable contradictions undermine prosecution's case under the POCSO Act.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
