The prosecution must prove foundational facts, including the victim's age, to establish guilt under POCSO Act; discrepancies in evidence warrant acquittal.

JUDGMENT :

Rajeev Ranjan Prasad, J.

These appeals have been preferred for setting aside the judgment of conviction dated 11.08.2021 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 17.08.2021 (hereinafter referred to as the ‘impugned order’) passed by learned Exclusive Special Judge (POCSO), Saran at Chapra (hereinafter referred to as the ‘learned trial court’) in Sessions Trial (POCSO) No. 86 of 2019 arising out of Chapra Town P.S. Case No. 446 of 2019.

2. By the impugned judgment, the appellants have been convicted for the offences punishable under Section 376D INDIAN PENAL CODE (in short ‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’ or the ‘Act of 2012’) and by the impugned order, the appellants have been ordered to undergo rigorous imprisonment for twenty (20) years with a fine of Rs.20,000/- and in default of payment of fine, they have to further undergo simple imprisonment for three months.

Prosecution Case

3. The prosecution story is based on the fardbeyan of the victim (PW-4) recorded by S.I. Kumari Vibha Rani of Saran Mahila P.S. on 10.08.2019 at 21:10 hours at Patna Medical College and Hospital, (in short ‘P.M.C.H.’), Patna. In her fardbeyan, she has stated that on 10.08.2019 at about 12:00 Noon when she was returning from her school after appearing in the examination, on the way, (1) Dhyani Sharma, (2) Sonu @ Tarzan and (3) Atish Kumar forcibly grabbed her, pressed her mouth and took her to the office of Gyani Sharma, Ward Commissioner where firstly, Dhyani Sharma raped her, thereafter Sonu @ Tarzan raped her and when she started bleeding then Atish Kumar raped her as a result of which when she started bleeding profusely, then all the accused persons left her there. Thereafter, she somehow managed to reach her house where she told about the incident to her mother then her family members took her to Sadar Hospital, Chapra where she was referred to another hospital for better treatment.

4. On the basis of this fardbeyan, Chapra Town P.S. Case No. 446 of 2019 dated 10.08.2019 was registered under Sections 376(D)/34 IPC and Sections 4 , 5, 5(g) and 6 of the POCSO Act. Thereafter, Sessions Trial (POCSO) No. 86 of 2019 was registered in the Sessions Court. After investigation, Police submitted chargesheet bearing No. 660 of 2019 dated 30.09.2019 against three accused, namely, (1) Ravi Raj Sharma @ Dhyani Sharma, (2) Sonu @ Tarzan and (3) Atish Kumar under Section 376(D) IPC and Sections 4 , 5, 5(g) and 6 of the POCSO Act. On the basis of this chargesheet, learned Special Judge, POCSO Act took cognizance of the offences under Section 376(D) IPC and Section 6 of the POCSO Act vide order dated 23.10.2019. On 19.11.2019, charges were framed under Section 376(D) IPC and Section 6 of the POCSO Act against all the three accused persons. Charges were read over and explained to the appellants in Hindi to which they pleaded not guilty and claimed to be tried.

5. In course of trial, the prosecution examined as many as Seven witnesses and exhibited several documents to prove the prosecution case. The defence also exhibited some documents. The list of the prosecution witnesses and the exhibits are being shown hereunder in tabular form:-

List of Prosecution Witnesses

List of Exhibits on behalf of Prosecution