19 July 2023 4:00 AM GMT
Citing the failure to establish the age of the minor victim, the Patna High Court has acquitted two accused, who were convicted under the Protection of Children from Sexual Offences (POCSO) Act in 2017.“Establishing the minority of the victim child is a condition precedent to proceeding with a case under the POCSO Act. However, in the present case, there is no such finding by the learned...
Citing the failure to establish the age of the minor victim, the Patna High Court has acquitted two accused, who were convicted under the Protection of Children from Sexual Offences (POCSO) Act in 2017.
“Establishing the minority of the victim child is a condition precedent to proceeding with a case under the POCSO Act. However, in the present case, there is no such finding by the learned trial court regarding whether the victim was a child at the time of the alleged occurrence. Non-compliance with such procedural requirements amounts to a failure of justice, and the benefit should certainly go in favor of the accused,” the bench of Justices Sudhir Singh and Chandra Prakash Singh held.
According to the prosecution's case, as per the statement of the victim's father, the victim was sent to a doctor for treatment due to illness. On the day of the incident, while the victim was returning alone after receiving treatment, the accused, Sakaldeo Yadav, intercepted her near the school. After a brief exchange, the accused and three other individuals, namely Lalan Yadav, Gorelal Yadav, and Sakindar Yadav, forcibly took the victim inside the school premises. It was alleged that the accused individuals raped the victim and threatened her with harm if she disclosed the incident to anyone.
The victim's father further stated that the accused persons took the victim to Jamui for treatment, including blood transfusion. The father said that he was unaware of the incident as he was occupied with Chhath parva festivities. It was only when the victim's health deteriorated and she confided in her parents that they became aware of the occurrence, he said. The victim was subsequently taken to Jamui Hospital for treatment.
Based on the complaint filed by the victim's father, a formal FIR was registered. Following an investigation, a charge sheet was submitted, and the court took cognizance of the case. The accused were subsequently charged, pleaded not guilty, and opted for trial. The Trial Court convicted and sentenced the appellants.
Sakindar Yadav, one of the appellants, was found guilty under Sections 376(D), 201, and 120(B) of the Indian Penal Code (IPC), as well as Section 4 of the POCSO Act. He was sentenced to 20 years of rigorous imprisonment along with a fine of Rs. 50,000 for the offense under Section 376(D) of the IPC. Additionally, he received 3 years of rigorous imprisonment for the offence under Section 201 of the IPC and life imprisonment with a fine of Rs. 50,000 for the offen e under Section 4 of the POCSO Act. In default of payment of the fine, he would face an additional imprisonment of one year.
Another appellant, Dr. Nagendra Kumar, was convicted under Section 201 of the IPC and sentenced to 3 years of rigorous imprisonment along with a fine of Rs. 20,000.
One of the key issues considered by the court was 'Whether the non-determination of the age as per the Section 34(2) of the POCSO Act regarding the age will cause prejudice to the fair trial?'
During the hearing, the appellants' counsel argued that the medical examination of the victim failed to establish the commission of rape and highlighted the absence of visible marks of violence on the victim's body. It was further contended that the non-determination of the victim's age in accordance with Section 34(2) of the POCSO Act prejudiced the case, undermining the prosecution's ability to establish appropriate legal provisions applicable to the victim.
The court observed that the Special Court had not properly examined the age of the victim through any supporting documentation.
Placing reliance on the Apex Court’s verdict in the case of Jarnail Singh versus State of Haryana reported in (2013) 7 SCC 263, the court clarified that the word ‘person’ in Section 34(2) of the POCSO Act includes not only a child who is accused of committing an offence but also a child who is a victim of the offence.
“The legislative intent behind using the word ‘person’ cautiously has to be paid proper homage by interpreting the word ‘child’ in a broader manner to include even a ‘child victim’. Thus, Section 34(2) of the POCSO Act casts a positive duty on the Special Court to satisfy itself with recorded reasons as to whether the ‘person’ is a child or not,” the court opined, ultimately deciding the issue in the affirmative.
Based on the findings, the court held that the prosecution failed to prove the charges against the appellants beyond a reasonable doubt with sufficient material evidence required by the law.
“Therefore, we are of the considered opinion that the conviction of the appellants is not sustainable in the eyes of law,” the court said while allowing both the criminal appeals and setting aside the judgment of conviction and the order of sentence passed by the Additional Sessions Judge 1st, Jamui.
Citation: 2023 LiveLaw (Pat) 81
1. (In Criminal Appeal (Db) No. 945 Of 2017)
For The Appellant: Mr. Ashok Kumar Jha, Advocate Mr. Binod Kumar, Advocate
For The Respondent: Mr. Abhimanyu Sharma, A.P.P.2. (In Criminal Appeal (Db) No. 875 Of 2017)
For The Appellant: Mr. Ajay Kumar Thakur, Advocate Mr. Ritwik Thakur, Advocate Mrs. Vaishnavi Singh, Advocate
For The Respondent: Mr. Abhimanyu Sharma, A.P.P.
Click Here To Read/Download Judgment