Patna High Court: In a criminal appeal filed for setting aside the impugned judgment of conviction and order of sentence dated 22-06-2017 and 23-06-2017, respectively passed by Ist Additional Sessions-cum-Special Judge (POCSO Act), Araria, whereby appellant was convicted under Sections 376 of the Penal Code, 1860 (‘IPC’) and Sections 3/4 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’), the Division Bench of Ashutosh Kumar and Jitendra Kumar, JJ., while partially allowing the appeal, opined that no parent of any girl could damage the reputation of their daughter regarding her chastity and stated that a child born after nine months after the alleged occurrence was itself a proof that the victim was subjected to ravishment by the appellant and co-accused. The Court held that the victim was a major during the occurrence and thus, the charges of POCSO were dropped. However, the Court upheld the appellant’s conviction under Section 376 of the IPC.
Background
A FIR was registered in Palasi Police Station on the written report of the victim against the appellant and his two alleged accomplices. It was alleged that the victim, a minor was raped by these three men while coming back from her school. After a week, one of the accused promised to marry her, provided she submitted herself to him. She protested but was threatened and raped against her wish. She informed her mother, and in the meantime, she became pregnant and thus, her father organised a panchayat. The accused was ordered to pay Rs 50,000 to the victim, but he refused, which led to the filing of FIR.
The accused was charged under Sections 376 and 34 of the IPC and Sections 3/4 of the POCSO Act. The trial court convicted the accused but did not give any finding regarding the age of the victim of the crime. Consequently, the appellant approached this Court appealing against the conviction order.
The appellant contended that the prosecution failed to prove that the victim was a minor and they had failed to prove their case beyond a reasonable doubt. The appellant stated that there were many discrepancies in the statements of the witnesses and that the case was falsely motivated. The State, on the other hand, supported the conviction and argued that there was no illegality or infirmity in the impugned judgment and sentence of the trial court.
Decision and Analysis
In order to ascertain the age of the victim, the Court perused Section 34 of the POCSO Act which stated that the age of the victim shall be decided according the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (‘JJ Act’). The Court referred to P. Yuvaprakash v. State, 2023 SCC OnLine SC 846, in which the Supreme Court considered Section 34 of the POCSO Act and Section 94 of the JJ Act, and held that “the three documents in order of which the Juvenile Justice Act requires consideration is that the court concerned has to determine the age by considering the following documents:
“(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”.
The Court stated that no certificates were on record regarding the age of the victim despite the fact that the victim was studying in class 9. The Court opined that the initial burden of proof regarding the victim’s age lies on the prosecution despite Section 29 of the POCSO Act, because it was a foundational fact to be proved by the prosecution for application of the POCSO Act.
The Court noted that there was a medical opinion on record along with oral evidence regarding the age of the victim, i.e, one of the doctors found the victim to be 17-19 years of age. Further, the dental age of the alleged victim was within 18-19 years whereas radiological age was 16-18 years.
The Court opined that medical opinion regarding age of a person was not conclusive evidence, because exact assessment of the age could not be done based on the medical test as there was always possibility of errors on both higher and lower sides. However, medical opinions could be very useful guiding factors to be considered in the absence of the documents as mentioned in Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007 or Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Thus, medical opinion must always be considered along with the attending circumstances.
The Court, after considering the medical opinion along with the oral evidence of the victim’s father, opined that the alleged victim was above 18 years of age at the time of alleged occurrence and thus, the provisions of the POCSO Act did not apply against the appellant.
In respect to the offence under Section 376 of the IPC, the Court observed that the parents of the victims were illiterate and that the appellant’s allegations of false implications and extortion on the victim’s family’s part did not inspire any confidence as per evidence on record. The Court thus opined that no parent of any girl could damage the reputation of their daughter regarding her chastity. The Court stated that a child born after nine months after the alleged occurrence was itself a proof that the victim was subjected to ravishment by the appellant and co-accused and manner and place of the occurrence was also proved.
Therefore, the Court partly allowed the appeal and modified the trial court’s order and held that the appellant was guilty of the offence under Section 376(1) of the IPC and rigorous imprisonment of ten years and fine of Rs 10,000 and in case of default to pay the fine, additional simple imprisonment of three months would meet the ends of justice. The Court further held that the victim was entitled to a compensation of Rs 20,000 under Section 357(3) of Criminal Procedure Code, 1973 by the appellant and additional compensation by the Bihar State Legal Services as per Part -II of the Bihar Victim Compensation Scheme, 2014.
[X v. State of Bihar, 2024 SCC OnLine Pat 3010, decided on 28-06-2024]
*Judgment authored by: Justice Jitendra Kumar
Advocates who appeared in this case :
For the Appellant: Nagendra Kumar Singh, Bijay Kumar Pathak, Advocates
For the Respondent: Shashi Bala Verma, APP
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