Trial Court Must Determine Age Of Victim; Section 34(2) POCSO Act Mandatory Provision: Patna HC Acquits Rape Accused

The Patna High Court observed that it is mandatory for the Trial Court to ascertain the age of victim as per Section 34(2) of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The Court observed thus while allowing an appeal filed by rape accused against the judgment of conviction passed by the Additional Sessions Judge.

A Division Bench comprising Justice Chakradhari Sharan and Justice Nawneet Kumar Pandey observed, “As per Section 34(2) of the POCSO Act, the age of the victim must be determined by the trial court. This mandatory provision was not adhered to by the learned trial court. … The prosecutrix in her statement, has stated that she had studied up to 7th standard but no effort was made by the learned trial court to ascertain the age of the victim on the basis of the educational certificates as required under Section 94 of the Juvenile Justice Act.”

Senior Advocate Ashok Kumar Chaudhary appeared on behalf of the appellant while Additional Public Prosecutor Sujit Kumar Singh appeared on behalf of the State.

Factual Background -

The prosecutrix/informant claimed herself to be a minor girl and a case under Section 376/34 of the Indian Penal Code, Section 4 of the POCSO Act, and Section 3 (XII) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was registered. The informant mentioned in her fard-beyan that in 2016, a dance programme was organized in the house of the appellant at the occasion of birth of his child. The prosecutrix and her cousin sister went to the house of the appellant for watching dance.

At 11.00 PM, when they were returning to their homes, the appellant and co-accused, who was nephew of the appellant, came there. The appellant caught hold of the victim and committed rape upon her and when the two raised alarm, the accused persons fled away. While fleeing away, co-accused threatened the cousin sister of the informant from raising alarm and he also gagged her mouth. The duo victims, thereafter, went to their house and narrated the incident to their parents as a result of which a case was registered and the appellant was then convicted by the Trial Court.

The High Court in view of the facts and circumstances of the case noted, “The observation made by Hon'ble Supreme Court in the case of Jyoti Prakash (supra) makes it clear that ossification or other test is not the exact proof of age of a person and two years flexibility may be given either side by the court. The prosecution, as discussed above, has failed to prove that the victim was a child within the meaning of Section 2(d) of the POCSO Act, as such, the presumption under Sections 29 and 30 of the POCSO Act will not attract.”

The Court also took note of the fact that the victim, in her statement under Section 164 of the CrPC, stated that when the appellant was committing rape upon her, her uncle came there and when he flashed torchlight, the appellant fled away therefrom and the victim herself after being ashamed, also fled away but such a statement does not find place in her deposition recorded during the trial or in her fard-beyan given. The Court said that this fact alone makes the prosecution case doubtful.

“The finding of conviction recorded by the trial court is unsustainable and deserves to be set aside. The appellant deserves to be acquitted by giving him benefit of doubt”, said the Court.

Accordingly, the High Court allowed the appeal and set aside the conviction of the appellant.

Cause Title- Radheshyam Sah @ Radhe Shyam Sah v. The State of Bihar

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