High Court sets aside judgement of Additional Sessions Judge-VI-cum-Special Judge, POCSO Act, Nalanda in "a case of a gun-shot marriage"

Patna High Court's bench of Justices Ashutosh Kumar and Jitendra Kumar set aside the judgment and order of conviction by Additional Sessions Judge-VI-cum-Special Judge, POCSO Act, Nalanda and acquitted Prabhas Singh, the appellant of the charges leveled against him. 

The victim had lodged the written report addressed to the Officer-in-Charge of Mahila Police Station, Biharsharif on October 24, 2019, which led to the registration of Mahila P.S. Case No. 175 of 2019 on the same day under Sections 376, 313, 506 and 34 of the I.P.C. and Section 6 of the POCSO Act, 2012. 

Section 376 of IPC provides punishment for rape. The offender is "punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine." 

Section 313 deals with punishment for the offence of "causing miscarriage without woman's consent" . The offender is punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." It is non-bailable and triable by a Court of Session.

Section 506 deals with the punishment for criminal intimidation. The offender is punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 

Section 34 deals with acts done by several persons in furtherance of common intention.

Section 6 of POCSO Act provides" punishment for aggravated penetrative sexual assault". The offencer is punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. The fine imposed is required to be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

The Court has recorded that "no effort was made by the Investigator to know about the age of the victim, especially at the time of the first encounter, when she had become pregnant." The age came to light from the the matriculation certificate of the victim, which showed her date of birth to be April 1, 2003. It emerged that the victim was a 16 year old minor when she had met the appellant for the first time and had continued with her relationship for a very long time during her minority. 

The marriage was performed after the offence of rape was lodged. The Court observed: "Prima facie, it appears to be a case of a gun-shot marriage and, thereafter, that marriage having failed for some reason or the other." The Court inferred that "the victim having voluntarily accepted the matrimonial relationship with the appellant and staying in her matrimonial home for three years, which fact was clearly admitted by her in her deposition before the Trial Court and there being no investigation about the minority of the victim, we do not find it to be a case of rape." It pointed out that "there is no proof of the fact that the relationship was consummated when the victim was only a minor and had not crossed over the date of majority." The Court concluded, "we find the accusation against the appellant to be unworthy of complete reliance. We, therefore, cannot put our imprimatur to the opinion arrived at by the Trial Court."

The Court observed that "the victim had a field day when she approbated and reprobated, depending upon her equation with the appellant and his family members." It has recorded that "the victim has herself stated under Section 164 Cr.P.C. as also before the Trial Court that she got married to the appellant,  it was an important fact to have been disclosed before the Investigator as also before the Trial Court. The very factum of marriage and the victim staying in her matrimonial home for more than two years would have made the allegations absolutely false."

The Court has noted that the victim "has also admitted that she became pregnant because of the association with the appellant, but when the appellant refused to marry her, she lodged a case. After the case was lodged, the appellant married her and she was happily residing in her matrimonial home."

The judgement notes that "all the while that she made statement before the Magistrate under Section 164 Cr.P.C. and in her deposition before the Trial Court, she had referred to the appellant as having plighted his troth to her. There was obviously love relationship between the victim and the appellant."

The Court's direction reads: "the appellant/Prabhas Singh is in jail, he is directed to be released from jail forthwith, if his detention is not required in any other case."

Notably, there is a glaring proofing error in the opening sentence of the judgement. It reads: "The sole appellant/Prabhas Singh has been convicted for the offence under Section 376 (3) of the Protection of Children from Sexual Offences Act, 2012." Instead of referring to Section 376 (3) of the IPC, it inadvertently refers to POCSO Act. The fact is that there are only 46 Sections in the POCSO Act.  Section 376 (3) of IPC which was inserted in 2018 states that "Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim."