The name of informant and victim have been concealed in the present judgment to protect their prestige and dignity.
Patna High Court's Justice Alok Kumar Pandey observed, "The learned trial court fell in error of law as well as appreciation of facts of the case in view of settled criminal jurisprudence. Hence, impugned judgment and order of sentence are hereby set aside and this appeal stands allowed. The appellant is in custody. Let him be released forthwith, if he is not warranted in any other case" in Deepak Kumar v. State of Bihar on March 29, 2024. The criminal appeal arose out of PS. Case No.-121 of 2015 Thana- Ramnagar, West Champaran. The analysis of evidence adduced during trial and submissions of counsel of the appellant made it crystal clear that offence under Section 366A, 376 of the IPC and 4 of POCSO Act have not been proved beyond reasonable doubt and benefit of doubt must go in favour of the appellant.
The appeal was filed against the judgment of conviction dated February 7, 2022 and order of sentence dated February 8, 2022 passed by Additional Sessions Judge, 7th cum Special Judge, Protection of Children from Sexual Offences Act (hereinafter referred to as POCSO), Bettiah whereby and whereunder the trial court has found the appellant guilty for the offences punishable under Sections 366A and 376 of the Indian Penal Code (hereinafter referred to as IPC) and under Section 4 of POCSO Act and sentenced him to undergo ten years imprisonment for the offence punishable under Section 366A of the IPC, to undergo seven years rigorous imprisonment for the offence punishable under Section 376 of the IPC and to undergo ten years rigorous imprisonment along with fine of Rs. 20,000/-for the offence punishable under Section 4 of POCSO Act and in default of payment of fine he has to suffer two months additional imprisonment. All the sentences were ordered to run concurrently.
According to written report of informant, the occurrence is of June 8, 2015 at about 7:00 PM for which information was given on June 10, 2015 at 17 hours and immediately whereafter FIR was registered. The prosecution case in brief was that victim, the daughter of the informant aged about 14 years was kidnapped by the appellant with intention of marriage. It was claimed that appellant was present at his house till morning of June 9, 2015. It was claimed on the basis of communication held between informant and appellant that informant’s daughter would reach at her house. It is further stated that mobile number as mentioned in the FIR was available with daughter of informant.
After hearing the parties, the trial court convicted the appellant-accused and sentenced him. But the co-
accused Imran Ali stood acquitted by the trial court by the same judgment.
The appellant's counsel submitted that the prosecution completely failed to discharge its onus of proving beyond all reasonable doubt that the victim was minor on the date of occurrence. On the said point he further submitted that victim claimed herself that her age is 20 years while adducing evidence as PW-3 on 10.11.2016. The learned trial court has also recorded the age of the victim as 20 years while taking the evidence of PW-3 (victim). The prosecution has not challenged or even suggested the victim (PW-3) on the point of her age as she has claimed herself to be 20 years old. The informant (PW-9) has not stated the date of birth of victim even on specific question being raised. He further submitted that Medical Board suggested the age of the victim between 17-18 years showing variation would not be sufficient to come to any conclusion about the exact age. On the point of age variation the learned counsel for the appellant relied upon judgment of Hasmuddin and others vs. The State of Bihar (2018) and specifically referred para 17 of the said judgment in which it has been mentioned that victim has been found in between 17 years to 19 years, which is subject to variance of two years and the age befitting with the defence case is to be accepted. Learned counsel submitted that in light of said observation, variation in age as opined by medical evidence should go in favour of the appellant.
The appellant's counsel submitted that neither victim nor any witness has given evidence of physical relation of victim with the appellant and no evidence to the effect that appellant had induced the minor girl with intention or knowledge that she will be forced or seduced to illicit intercourse with any other person, hence, there is no question for conviction under Sections 376, 366(A) of the IPC and Section 4 of POCSO Act. Learned counsel of the appellant further submitted that PW-1, PW-2, PW-3(victim), PW-4, PW-5 and PW-7 have not supported the case of the prosecution and they have been declared hostile. PW-3 victim has not supported the charge levelled against the appellant in her deposition. Md. Saheb who was the witness on the written report has not been examined nor any explanation for his non examination was given by the prosecution side. The Investigating Officer has not been examined which has seriously caused prejudice to the defence since defence has got no proper opportunity to contradict the evidence of witnesses. No evidence has been deposed regarding sexual intercourse. PW-6 is a hearsay witness whose evidence cannot be basis for conviction and PW-9 (informant) who has proved his thumb impression as Ext-1 and he has deposed that he is not aware as to what has been written in the initial version of the story of the prosecution. Learned counsel of the appellant further submitted that in the present case appellant is not guilty for taking away the victim as there is no averment made by the victim in her deposition that appellant is responsible for taking away the victim rather she went to Bettiah with her own volition.
To buttress the said submission counsel of the appellant relied upon the case of S. Varadarajan vs. State of Madras (1965) and referred paragraphs no. 7 and 9 of the said judgment in which at para 7 it has been clarified that “when the victim willingly accompanied the appellant, law did not caste upon him duty of taking her back to her father’s house or even of telling her not to accompany him as she was on the verge of attaining majority and she was capable of knowing what was good and what was bad for her.”
The appellant's counsel submitted that at para 9 of the said judgment it is clarified that “there is a distinction between taking and allowing a minor to accompany a person. In order to prove taking away from the keeping of lawful guardian something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of intention of the minor to leave the house of the guardian.”
It was pointed out that the court below has not ascertained the age of the victim as per statutory provision and there is no finding with regard to age of the victim in judgment under challenge. He further submitted that statement under Section 164 of the Cr.P.C. is required to be specifically put to contradict the witnesses and the said statement is not substantive piece of evidence rather it can be used to corroborate and contradict the witnesses and on the said point learned counsel for the appellant relied upon a decision of State of Delhi vs Shri Ram Lohia (1960).
He further submitted that presumption under Section 29 of POCSO Act is rebuttable in law and for the same he has relied upon judgment of Navin Dhaniram Baraiye vs. The State of Maharashtra (2018) in which it has been held that “statutory presumption would stand activated only if prosecution proves the foundational facts and then, even if the statutory provision is activated, the burden of accused is not to rebut the presumption beyond reasonable doubt.”
The appellant's counsel submitted that the prosecution did not place the contents of statement of victim recorded under Section 164 of the Cr.P.C. while cross examining the victim. He further submitted that in the present case audio/video footage with regard to recording of statement of victim has not been done which would be proved fatal for the prosecution in view of Section 26(4) of the POCSO Act.
The High Court found substance in submission made of the appellant that the prosecution failed to prove, beyond all reasonable doubts, the fact that the victim was minor as on the date of occurrence.
It relied on Supreme Court's decision in case of Jarnail Singh v. State of Haryana (2013) wherein it held that “though Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 have been framed under the provisions of Juvenile Justice (Care and Protection of Children) Act, 200...is applicable to determine the age of child in conflict with law, the aforesaid provision should be the basis for determination of age even of a child who is a victim of crime. The Court remarked that there was hardly any difference insofar as the issue of minority was concerned, between a child in conflict with law, and a child who is a victim of crime. Paragraph 22 and 23 of the said decision in case of Jarnail Singh (supra) can be usefully referred to for clarity:-
“22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as “the 2007 Rules”). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:
“12. Procedure to be followed in determination of age- (1) in every case concerning a child or a juvenile
in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of
physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by
obtaining—(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case
shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board
after examining and obtaining the certificate or any other documentary proof referred to in sub-
rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.”
The Court observed that "Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision,
the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent lause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, onthe basis of medical opinion.”
Iy has recorded that identical provision is thereunder 94 of Juvenile Justice Care and Protection of Children Act, 2015 which came into effect from 15.01.2016. In the present case, date of occurrence is June 8, 2015. However, in the present case Rule 12 of Rules 2007 was applicable.
The Court has noted that "no exercise was carried out by the prosecution to establish that the victim was minor as on the date of occurrence by following the procedure prescribed under the Act in the light of reasoning put forth by the Supreme Court in case of Jarnail Singh (Supra)."
In the case of Rajak Mohammad vs. State of H.P. (2018) the Supreme Court has noted that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed. The Supreme Court, taking into account the facts and circumstances of that case opined in the said case that the report of radiological examination left room for ample doubt with regard to the correct age of prosecutrix. In such case, the benefit of aforesaid doubt, naturally, must go in favour of the accused. In the case of Sunil v. the State of Haryana (2010), the Supreme Court observed that conviction cannot be based on an approximate age of the victim.
In State of Madhya Pradesh vs. Munna @Shambhoo Nath (2016), the Supreme Court held that the evidence of approximate age of the victim would not be sufficient to any conclusion about the exact age of the victim.
The Court has recorded that in the present case, the prosecutrix was a literate girl as she has signed everywhere. Therefore, she must have been getting education somewhere. It is not the prosecution case or
evidence that prosecutrix did not attend any school. The finding recorded by the doctor in the medical report which has determined the victim’s age to be 17-18 years based on radiological examination and opinion of the dentist is not available in the medical report and said finding in court opinion cannot be treated to be accurate for the purpose of applying the provision of POCSO Act. As a matter of fact, no effort was made by the prosecution to establish the age of the victim in accordance with statutory provision. It is necessary to evaluate, analyze and screen out the evidences of witnesses adduced before the trial court in the light of the offence punishable under Section 366A, 376/34 of the IPC and 4 of POCSO Act.
The Court observed, "From perusal of statement under Section 164 of the Cr.P.C., it is crystal clear that her testimony during adducing evidence before the trial court is totally inconsistent with the statement recorded under Section 164 of the Cr.P.C. The statement of victim before the trial court has not supported story of prosecution and she has been declared hostile. It is well settled law that evidence given in court on oath coupled with opportunity of cross examination to the accused has great sanctity and that is why same is called substantive evidence. It is well settled by catena of judicial pronouncement that statement under Section 154 Cr.P.C. or under 161 Cr.P.C. or under 164 Cr.P.C. can be used for corroboration and contradiction only.
In R. Shaji vs. State of Kerala (2013), the Supreme Court said that a proposition to the effect that if statement of a witness is recorded under Section 164 of the Cr.P.C., his evidence in court should be discarded, is not at all warranted. As the defence had no opportunity to cross examine the witness whose statement was recorded under Section 164 Cr.P.C. or under Section 161 Cr.P.C., such statements cannot be
treated as substantive evidence.
The Court observed that "Statement of victim cannot be trustworthy in the light of the fact adduced during evidence before the court is quite inconsistent with the story of prosecution. Her evidence does not inspire confidence and such evidence cannot be trustworthy. The statement of victim which was adduced before the trial court is quite inconsistent with the statement under Section 164 Cr.P.C. which does not inspire confidence.
The Court referred to Section 53 A of the Cr.P.C., which ordains that when a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner, as mentioned in the said provision. Section 53 A of the Cr.PC., read as under:-
53-A. Examination of person accused of rape by medical practitioner-(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall, without delay, examine
such person and prepare a report of his examination giving the following particulars, namely:-
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be noted in the
report.
(5) The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.
The Court underlined that while it is true that said provision is not mandatory in character, the said provision enables the prosecution to conduct the examination of victim in a manner as to substantially establish a charge of committing an offence of rape.
The Court relied on the judgment of Supreme Court in case of Chotkau v. State of Uttar Pradesh (2022) whereby it has been observed that failure of the prosecution to subject the appellant to medical examination was certainly fatal to the prosecution’s case especially when the ocular evidence was found to be not trustworthy. The High Court found that there was failure on the part of prosecution to establish the essential fundamental facts to attract the provision of POCSO Act.
