In Md. Alam vs.The State of Bihar (2026), Patna High Court's Division Bench of Justices Rajeev Ranjan Prasad and Soni Shrivastava delivered a 21-page long judgement dated April 20, 2026 wherein, it conclude that "....the presumption contained under Sections 29 and 30 of the POCSO Act would not be attracted." The informant/ victim boy (PW-1) "cannot be put in the category of a sterling witness for the obvious reasons showing huge contradiction in his statement. In a case under the POCSO Act, the presumption of innocence is not lost." For these reasons, the Court set aside the judgment of conviction dated April 25, 2023 and order of sentence dated May 15, 2023 passed by Additional Sessions Judge-VI-cum-Special Judge, POCSO, Vaishali at Hajipur in POCSO case of 2021 which arose out of Mahua P.S. case of 2021. The appellant was acquitted of the charges giving him benefit of doubt. The appellant was said to be in custody. Justice Parsad authored the judgement. The Court directed to be released forthwith, if not wanted in any other case .The appeal was allowed.
Justice Prasad observed:"The prosecution has not disclosed the date of birth of the victim boy recorded in his first school admission register. No ossification and dental test of the victim has been conducted to assess his age. We are, therefore, of the considered opinion that in this case, the prosecution has miserably failed to prove that the victim would come within the definition of the word “child” as envisaged under Section 2(d) of the POCSO Act."
The appeal was preferred for setting aside the judgment of conviction. The appellant was convicted for the offences punishable under Sections 377/34 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act. By the order, he was sentenced to undergo rigorous imprisonment for twenty (20) years with a fine of Rs. 20,000/- under Section 6 of the POCSO Act. He was also sentenced to undergo rigorous imprisonment for ten (10) years with a fine of Rs. 10,000/- under Section 377/34 IPC, he was to further undergo rigorous imprisonment for six months. Both the sentences were to run concurrently.
The prosecution case is based on the written information dated February 26, 2021 submitted by the informant/ victim boy (PW-1). In his written information, he stated that on February 24, 2021 at about 06:30 AM in the morning, when he was sitting at the shop of Sunny Kumar and Golu Patel situated near Sahara India Office at Mahua Bazar, Samastipur Road, two persons came there and enquired from Sunny Kumar about the victim boy. On which Sunny Kumar told them that he was a good-mannered boy and was in search of some work due to his poor financial condition. Thereafter, these two persons told the victim to accompany them, they will provide him money, food and good clothes. They also said that he has to discharge their household work and assured him that he will be given opportunity for further study. Thereafter, Golu Patel told the victim boy to accompany them as they were known to Golu Patel. Those two accused persons were Ranjeet Patel and Md. Alam (this appellant). The victim boy along with two accused persons came at the house of Md. Alam on their motorcycle. Both of them told him to have food and go to sleep. He was trying to sleep, however, was not able to sleep. In the meantime, he saw that both of them started sipping alcohol from a bottle after pouring in glass and thereafter, he fell asleep. In the late night, he felt that somebody has opened his pants and trying to insert something through his anus which was painful. Thereafter, he woke up and saw that both the accused persons were naked and were doing unnatural sexual offence with him. He tried to prevent them but they threatened him to kill if he raised the alarm. These two accused persons committed unnatural sexual offence with the victim boy one by one by pressing his mouth. Thereafter, they put their clothes on and also told him to wear his clothes and threatened him not to disclose this to anyone, otherwise he will be killed.
Thereafter, in the morning of February 25, 2021 at about 09:30AM, both the accused persons left him on their motorcycle at the shop of Golu Patel. He felt the pain for the whole day but in the evening when he could not bear the pain, he disclosed about the said incident to his nearby neighbours and members of his family. He was taken to Mahua Sub-Divisional Hospital for treatment. Later on, he was referred to Sadar Hospital, Hajipur for better treatment. He was told to inform the concerned police station. On the basis of this written information, FIR being Mahua P.S. Case No. 162 of 2021 dated March 5, 2021 was registered
under Section 377 IPC amd Section 4/8 of the POCSO Act against (1) Sunny Kumar, (2) Golu Patel, (3) Ranjeet Patel and (4) Md. Alam (this appellant). After investigation, police submitted chargesheet bearing Chargesheet No. 817 of 2021 dated December 10, 2021 against Md. Alam for the offences punishable under Section 377/34 IPC and Section 4/8 of the POCSO Act keeping investigation pending against other accused persons.
The trial court by its order dated December 16, 2021 took cognizance of the offences punishable under Section 377/34 IPC and Section 4/8 of the POCSO Act against Md. Alam. Charges were read over and explained to the appellant in Hindi to which he denied the charges and claimed to be tried. Accordingly, charges were framed vide order dated January 24, 2022 for the offences punishable under Section 377/34 IPC and Section 6 of the POCSO Act.. In course of trial, the prosecution examined as many as five witnesses and got exhibited certain documents. Thereafter, the statement of the appellant was recorded under Section 313 of the CrPC. In this 313 CrPC statement, he pleaded innocence and stated that Prem Shankar and Uday Shankar had already registered case against him and they again implicated him in the this case. The Defence produced three witnesses and exhibited some documentary evidences.
The trial court having examined the entire prosecution evidences found that the emphasis of defence regarding false implication due to previous enmity cannot be a ground to discard the witnesses' evidence if such evidence is found to be reliable while upholding conviction of an accused.
On the point of alibi taken by the defence, trial court took note of the argument of the defence counsel that at the time of occurrence, the accused being an Advocate was busy in court for preparing the filing of the bail bond and on the other hand, the learned counsel submitted that the accused was at the High Court, Patna at Mazar to join the tajposhi from 2:00 pm to 4:00 pm. The trial court observed that it was highly
unbelievable that a person who is an Advocate was present at three places of surroundings of 20-30 kms at the same time.
The High Court observed that the trial court negated the submission of defence counsel regarding contradiction on the point of age of the victim boy by referring the fact that no documentary evidence was brought on record regarding the education of the victim boy as the victim boy is from very poor family and is not a school going student and his mother is rustic. The trial court took note of injury report of the victim which suggested that the victim boy was minor and concerned medical expert being PW-2 found
the case of sexual assault. The trial court found that since the accused facing trial was accused in another case also, there was no reason of false implication of the accused by another person of poor and from a Scheduled Caste family of the vicinity.
The trial court observed that on the ground of minor contradictions, the evidences of prosecution witnesses cannot be ignored, the version of the occurrence as alleged and the medical examination with the opinion of suspected case of sexual assault cannot be put outside on the ground of minor contradictions or on the ground of previous enmity. Accordingly, the trial court found that the prosecution has successfully proved the case against the accused under Sections 377/34 IPC and Section 6 of the POCSO Act.
The High Court noted that there is a delay of 9 days in lodging of the FIR. The application gave rise to the present FIR was signed by the victim boy, but it is his admission that the application was written by a person who met him in the Sadar Hospital at Hajipur and to whom he had explained the whole occurrence. According to the victim boy, the person was a general person and he could not give the name of the person who wrote the application. A perusal of the deposition of the victim boy (PW-1) showed that he claimed to have posted the application in the post office, but in paragraph ‘26’ of his deposition, PW-1 claimed that he had complained in the police station on 26th. In paragraph ‘21’, he claimed that he had alone gone to the police station. This statement of PW-1 created doubt as to who wrote the written application. The doubt goes deeper when the High Court found that his mother (PW-3) claimed that she had taken her victim boy to the police station at Mahua and she also said that the application was written by Darogaji. She also stated that Darogaji had recorded her statement 8 days after lodgment of the case. If the statement of PW-3 is examined, it was found that she claims to have come to know about the occurrence from her son on the next day of the occurrence in the morning, but the victim (PW-1) stated that on February 25, 2021, he had alone gone to Mahua hospital. PW-2 recorded the time of examination of PW-1 as 7.25 pm. His parents were not with him, therefore, the statement of PW-3 that she had come to know about the occurrence on the next day in the morning was not a reliable statement. PW-3 stated that she had taken the victim boy to Government Hospital, Manjhaul, whereas the victim boy says that he had alone gone to Sub-Divisional Hospital, Mahua.
The High Court's judgement reads: "In our opinion, the evidence of PW-1 and PW-3 are not only contradicting each other, they are contradicting themselves also on various aspects. 25. This Court further finds that the learned trial court has itself recorded in its finding that “if the submissions of learned defence counsel is evaluated, the evidences on the point of age of the victim boy is contradictory….” Despite this, the learned trial court did not think it just and proper to determine the age of the victim in accordance with the scheme of Section 94 of the Act of 2015. 26. We have noticed hereinabove in the submissions of learned Senior Counsel for the appellant that how the age of the victim boy has not been disclosed by the prosecution in course of trial and the I.O. (PW-5) himself stated that he had not conducted
any verification on the age of the victim. In section 164 CrPC Statement, the victim is said to be studying in Class VIII but in course of trial, he has stated that he has studied up to Class IV....27. This Court further finds that the victim had gone to Mahua Hospital with 6-7 persons. PW-2 has stated so but the victim claims that he had gone alone. It is, thus, evident that the victim has been tutored not to disclose names of those 6-7 persons who were with him in the Mahua Hospital. Those 6-7 persons had said to PW-2 that they were from the neighbourhood of the victim and they cannot give consent. This makes the whole case
suspicious. 28. PW-2 has stated that he had not examined the source of the blood stain. He had referred the victim boy to Sadar Hospital, Hajipur but the victim had not received treatment in Sadar Hospital, Hajipur. The age of injury has been mentioned as within 6 hours and the doctor has noticed fresh blood but in course of his cross-examination, PW-2 has clearly stated that the blood would clot if the injury is on the upper part, within 3-4 minutes, he had not found any bruise around the anus. PW-2 has clearly stated that he had not made any statement before police. He had not examined the source of the blood stain, therefore, in our opinion,'
The judgement recorded: "30. We have further noticed that in this case, the police officer Krishnanand Jha, who had drawn the formal FIR, has not been examined."
Justice Prasad observed:"The prosecution has not disclosed the date of birth of the victim boy recorded in his first school admission register. No ossification and dental test of the victim has been conducted to assess his age. We are, therefore, of the considered opinion that in this case, the prosecution has miserably failed to prove that the victim would come within the definition of the word “child” as envisaged under Section 2(d) of the POCSO Act."
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