Acquittal under POCSO Act if age of survivor is not established:
Justice Alok Kumar Pandey held that the statement of the survivor under Section 164 of Code of Criminal Procedure (CrPC) cannot be treated as substantive piece of evidence.
Deepak Kumar v State
The Patna High Court recently held that conviction under the Protection of Children from Sexual Offences (POCSO) Act cannot be sustained if the age of the survivor is not established [Deepak Kumar v State].
Justice Alok Kumar Pandey further held that the statement of the survivor under Section 164 of Code of Criminal Procedure (CrPC) cannot be treated as substantive piece of evidence.
The Court therefore, acquitted an accused taking into account the fact that no effort was made by the prosecution to establish the victim's age.
"Apparently, 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", the single-judge said.
The Court, therefore, set aside the trial court's order of conviction after finding substance in the submission of the appellant that the prosecution failed to prove beyond reasonable doubt that the victim was minor when the incident occurred.
The appellant had challenged a 2022 order passed by trial court finding the him guilty of procuration of a minor girl, rape and offences under the POCSO Act.
According to the prosecution, the victim who was about 14 years old, was kidnapped by the appellant with an intention of marriage.
The appellant however claimed that the prosecution had failed to discharge its onus of proving that the victim was minor when the incident took place. Further, it was submitted that while adducing evidence the victim herself claimed that her age was 20 years.
He also pointed out that the trial court did not ascertain the victim's age and in the judgment under challenge, there was no finding regarding age.
While finding in favour of the appellant on the issue regarding determination of age, the court also opined that the victim's statement before the trial court could not be considered trustworthy as it was inconsistent with her statement before the magistrate.
"Her evidence does not inspire confidence and such evidence cannot be trustworthy," the judge recorded.
The Court also considered the fact that the appellant had not been examined under Section 53A (Examination of person accused of rape by medical practitioner) of the Criminal Procedure Code.
"It is true that said provision is not mandatory in character, in court’s opinion 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."
On an examination of the evidence, the Court concluded that the offences alleged had not been proved beyond reasonable doubt and therefore, the benefit of doubt went in the appellant's favour.
"In the result, in my view, 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."
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