Prosecution Did Not Establish Victim Was Minor, Her Statement Also Quite Contradictory: Patna High Court Sets Aside Conviction In POCSO Case

The Patna High Court recently overturned the conviction of an accused in a Protection of Children from Sexual Offences (POCSO) Act case, observing that no exercise was carried out by the prosecution to establish that the victim was minor on the date of occurrence. The court also said the victim's statement is "quite contradictory" in nature on vital points. 

Justice Alok Kumar Pandey passed the decision on a criminal appeal against the judgement and sentencing order passed by the Additional Sessions Judge-VII - POCSO, whereby the accused was convicted and was sentenced to undergo rigorous imprisonment for ten years. 

Background

According to the facts of the case, the victim, an 8-year-old girl, was lured by the accused appellant with the promise of giving her a lemon. The accused appellant took the victim away on the pretext of giving her the lemon. When the victim did not return, the informant, who is also the mother of the victim, started searching for her. The victim's mother claimed to have seen the accused appellant attempting to commit rape on the victim in a husk room. The accused appellant fled the scene upon noticing the informant's presence. The informant then informed the family members of the accused appellant, but did not receive a positive response.

The informant subsequently filed a police report under Sections 376/511 of the Indian Penal Code (IPC), and later Sections 4, 6, and 8 of the Protection of Children from Sexual Offences (POCSO) Act were added.

Post the investigation, a charge sheet was filed against the accused appellant under Section 354-B of the IPC and Sections 4, 6, and 8 of the POCSO Act.

The trial court took cognizance and framed charges under Section 376 of the I.P.C. and Sections 4 and 6 of the POCSO Act against the accused appellant. The trial court convicted the accused appellant last year.

Verdict

Justice Pandey pointed out 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 the case of Jarnail Singh v. State of Haryana reported in (2013) 7 SCC 263. 

"In the case of Sunil vs. the State of Haryana reported in AIR 2010 SC 392, the Hon’ble Supreme Court observed that conviction cannot be based on an approximate age of the victim. In State of Madhya Pradesh vs. Munna @ Shambhoo Nath reported in (2016) 1 SCC 696, the Hon’ble 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 said.

While observing that the prosecutrix was a literate girl and must have been getting education somewhere, Justice Pandey noted, “It is not the prosecution case or evidence that prosecutrix did not attend any school. As a matter of fact, no effort was made by the prosecution to establish the age of the victim in accordance with statutory provision. In this way, the contention of learned counsel for the appellant as submitted in foregoing paragraphs is quite tenable and sustainable.”

The bench noted that before taking the deposition of the minor victim who is of 8/9 years old, the trial court made an observation that the victim was competent to adduce evidence.

Subsequently, the court was also satisfied with answers given by the victim but was totally silent on specific questions that were put to her, and thus, consequently it defeats the very foundation of Section 118 of the Indian Evidence Act, it added.

While expounding on Section 118 of the Indian Evidence Act, Justice Pandey observed that the trial court had departed from said procedure of recording evidence and had erroneously committed an error on record.

“In the light of aforesaid discussion, it can well be concluded that trial judge who has a child witness before him should preserve on record question and answer which could help the higher courts or courts of appeal; to come to conclusion whether the trial court judge decision of competency was right or wrong,” the bench observed.

The court then placed reliance on Rai Sandeep @ Deepu in which the Supreme Court said that before relying on the sole testimony of the prosecutrix, the court must be satisfied that the prosecutrix is a “sterling witness.”

The court noted that the statement of the victim was quite contradictory in nature on vital points, and she herself stated that whatever she stated before the court was tutored to her by the police.

It observed that her statement recorded under Section 164 of the Cr.P.C. is “nothing but purely a tutor version of police and words were put to her mouth by the police which does not inspire confidence and statement under Section 164 of CRPC has lost its credibility for the purpose of corroboration and therefore, she cannot put into category of sterling witness.”

Justice Pandey further held that it was crystal clear that offence under Section 6 of the POCSO Act had not been proved beyond reasonable doubt and that benefit of doubt should go in favour of the appellant.

“In the result, in my view, the prosecution case suffers from several infirmities, as noticed above, and it was not a fit case where conviction could have been recorded. The learned trial court fell in error of law as well as appreciation of facts of the case in view of settled criminal jurisprudence,” the bench held while setting aside the impugned judgement of conviction and order of sentence.

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