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IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJEEV RANJAN PRASAD and SOURENDRA PANDEY, JJ.
Criminal Appeal (DB) No. 23 of 2023
(7.10.2025)
Farid Khan ... Appellant
vs.
State of Bihar & Anr. ... Respondents
Protection of Children from Sexual Offences Act, 2012 – Sections 4 and 29 – Indian Penal Code, 1860 – Section 376AB – Prolonged sexual exploitation of girl child – Conviction and sentence – I.O. had not collected any evidence with regard to age of victim – She had not even recorded statement of brother and sister of victim – There was no sign and symptom of recent sexual intercourse with victim – If any forceful sex is committed then there would be chances of injury sustained on body of victim – Trial court has not determined age of victim in this case – Prosecution has failed to prove basic fact as to age of victim in order to bring this case in ambit of POCSO Act – Medical age assessed if considered along with judicial pronouncements on subject, victim would be found major – Regarding place of occurrence prosecution case is quite inconsistent – Prosecution is totally inconsistent and vacillating even with regard to place of occurrence – Trial court has not at all tested her competence as required in case of a child witness – Suppression of first version of prosecution case would prove fatal to prosecution – Prosecution has not only failed to prove basic foundational facts to attract Section 29 of POCSO Act, accused has been able to demonstrate contradictions and material inconsistencies in prosecution evidence – Presumption of innocence still remains even in cases under POCSO Act – Trial court has committed grave error in convicting appellant on strength of materials on record – Appellant acquitted, giving him benefit of doubt – Appeal allowed. (Paras 24, 25, 26, 30, 32, 33 and 35)
Rajeev Ranjan Prasad, J.
Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.
2. Despite service of notice on informant-Respondent No.2, she has chosen not to appear through any Advocate to contest this appeal.
3. This appeal has been preferred for setting aside the judgment of conviction dated 17.11.2022 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 21.11.2022 (hereinafter referred to as the ‘impugned order’) passed by learned Additional District and Sessions Judge-cum- Special Exclusive Judge, POCSO, Aurangabad, Bihar (hereinafter referred to as the ‘learned trial court’) in G.R. POCSO and CIS No. 45 of 2021 arising out of Aurangabad Mahila P.S. Case No. 25 of 2021.
4. By the impugned judgment, the appellant has been convicted for the offences punishable under Section 376AB of the Indian Penal Code (in short ‘IPC’) and Section 4 of the Protection of Children from Sexual Offences Act (in short ‘POCSO Act’). By the impugned order, he has been ordered to undergo rigorous imprisonment for twenty years with a fine of Rs.10,000/- under Section 4 of the POCSO Act and in default of payment of fine, he shall undergo simple imprisonment for twelve months.
Prosecution Case
5. The prosecution case is based on the written application of the stepmother of the victim. In her written application (Exhibit ‘2’), the informant has alleged that her stepdaughter ‘X’ aged about ten years was living in village Bantara with her own maternal uncle (the appellant) aged about 55 years. It is alleged that her maternal uncle was sexually exploiting the victim ‘X’ for several months but the victim was not disclosing it to her being afraid of him. She has further alleged that when she came to know about this from her daughter then the appellant started threatening her and her daughter to kill. She came to the police station with her daughter (X) and submitted the written application (Exhibit ‘2’) on 22.07.2021.
6. On the basis of the written application of the informant, Aurangabad (Mahila) P.S. Case No. 25 of 2021 dated 22.07.2021 was registered under Sections 376(AB) and 506 IPC as well as under Section 4 of the POCSO Act against this appellant. After investigation, Police submitted chargesheet bearing Chargesheet No. 30 of 2021 dated 376(AB)/506 IPC and Section 4 of the POCSO Act against the appellant. Thereafter, learned Special Judge vide order dated 29.09.2021 took cognizance of the offences punishable under above-mentioned Sections.
7. Charges were read over and explained to the appellant in Hindi to which he pleaded not guilty and claimed to be tried. Accordingly, vide order dated 17.11.2021, charges were framed under Sections 376 and 506 IPC and Section 4 of the POCSO Act.
8. In course of trial, the prosecution examined as many as six witnesses and exhibited several documentary evidences. The names of the prosecution witnesses and the exhibits are being shown hereunder in tabular form:—
List of Prosecution witnesses
| PW-1 | Victim |
| PW-2 | Mother of the Victim |
| PW-3 | Maternal Uncle of the Victim(Mausa) |
| PW-4 | Maternal Uncle of the Victim (Mama) |
| PW-5 | Dr. Anshu Priya |
| PW-6 | Radha Kumari (I.O.) |
List of Exhibits on behalf of Prosecution
| Exhibit ‘1’ | Signature of the victim on 164 CrPC statement |
| Exhibit ‘2’ | Writing and Signature on the written application |
| Exhibit ‘3’ | Medical Examination Report of the Victim |
| Exhibit ‘4’ | Writing and Signature on the Formal FIR |
| Exhibit ‘5’ | Writing and Signature of the endorsement on written application |
| Exhibit ‘6’ | Identity Card of the Victim |
| Exhibit ‘7’ | Aadhar Enrollment Certificate |
9. Thereafter, the statement of the appellant was recorded under Section 313 of the CrPC. He took a plea that he is innocent and has been falsely implicated in this case due to land dispute and demand of Rs.30,0
Victim testimony in sexual assault cases must be credible and consistent; considerable contradictions undermine prosecution's case under the POCSO Act.
The prosecution must prove the victim's age as below 18 for POCSO applicability; failure to do so leads to acquittal.
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.
(1) Penetrative sexual assault on girl child – Evidence of approximate age of victim would not be sufficient to any conclusion about exact age of victim.(2) Medical examination of accused of rape is ....
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