The prosecution must prove the victim's age as below 18 for POCSO applicability; failure to do so leads to acquittal.

JUDGMENT :

(Jitendra Kumar, J.)

The present appeal has been preferred against the impugned judgment of conviction and order of sentence dated 12.07.2021 and 19.07.2021 respectively passed by Ld. Additional Sessions Judge-VIII-cum-Special Judge, POCSO Act, Aurangabad, Bihar, in G.R. No. 72 of 2018, C.I.S. No. 72 of 2018 arising out of Mahila P.S. Case No. 29 of 2018, whereby the sole appellant has been convicted for the offences punishable under Sections 376, 342 and 120 (B) of the Indian Penal Code and Section 4 of the POCSO Act. From perusal of the impugned order of sentence, it transpires that in view of Section 42 of the POCSO Act, the Trial Court has sentenced the appellant under Section 376 of the Indian Penal Code instead of Section 4 of the POCSO Act. Under Section 376 of the Indian Penal Code, the appellant has been sentenced to undergo rigorous imprisonment for 20 years and to pay a fine of Rs.30,000/-and in case of default to pay the fine, he has been further directed to undergo additional simple imprisonment for six months. Under Section 342 of the Indian Penal Code, the appellant has been directed to pay a fine of Rs.1,000/-and in case of default to pay the fine, to undergo simple imprisonment of three months. Under Section 120B of the Indian Penal Code, the appellant has been sentenced to undergo rigorous imprisonment for 20 years and to pay a fine of Rs. 30,000/-and, in case of default to pay the fine, to undergo additional simple imprisonment for 6 months. All the sentences have been directed to run concurrently.

2. By the impugned order of sentence, the learned Trial Court has also found the informant as victim of the crime and recommended District Legal Services Authority, Aurangabad to pay Rs.4,00,000/-to the victim towards compensation. In case of any interim compensation being already paid to the victim, the same has been directed to be adjusted against final compensation of Rs.4,00,000/-.

Prosecution case

3. The prosecution case as emerging from the written report received by the Aurangabad Mahila Police Station on 25.10.2018 is that on 21.10.2018 at about 4:00 P.M. the friend of the informant, namely, GuriyaPerween, took her to Dev market to purchase some articles for practical. Thereafter, she took the informant to her home. Thereafter, elder brother of her friend namely, Mannu @ Saddam, who is appellant herein, confined her to a room. When she tried to come out from the room, the appellant gagged her and kept her confined in the room and committed rape upon her whole night. In the next morning, when the appellant went out from the room to take water, she started crying calling the name of Guriya. Hearing her sound, GuriyaPerween came to her. The informant asked her to take her with herself. Thereafter, Guriyatook her with herself at about 4:00 A.M. to Aurangabad where both of them stayed in a Mosque at Kasai Mohalla. In the evening, she was again persuaded to go to Ranchi by bus wherefrom she was taken to Gumla. Thereafter, she was taken to the house of mousi of her friend at village Satbarva. Her mousi informed the brother of the informant and thereafter, her brother Shahnawaz Alam and Shahzad Alam reached there and taken to Dev Police Station on 25.10.2018 at 10 O’clock. Thereafter, she was sent to Mahila Police Station, Aurangabad.

Factual backgrounds

4. On the basis of the written report, Mahila P.S. Case No. 29 of 2018 was lodged against the appellant and co-accused GuriyaPerween for the offences punishable under Sections 342, 343, 376, 120(B) of the Indian Penal Code and Section 4 of the POCSO Act.

5. After investigation, charge-sheet bearing No. 29 of 2018 dated 24.12.2018 was submitted against both the accused for the offences punishable under Sections 342, 343, 376, 120(B) of the Indian Penal Code and Section 4 of POCSO Act. On her application, GuriyaPerween was declared juvenile and her case was separated and sent to Juvenile Justice Board.

6. Charge under Sections 343, 376, 120(B) of the India