Section 34(2) POCSO Act | Trial Court Bound To Determine Victim's Age: Patna High Court

A Division Bench comprising Justices Chakradhari Sharan and 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,” the bench added.

The prosecutrix, who was also the informant, asserted that she was a minor and initiated legal proceedings under Section 376/34 of the Indian Penal Code, Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, and Section 3 (XII) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

According to the complainant's fardebayan, in 2016, the accused organized a dance program at his residence to celebrate the birth of his child. The prosecutrix and her cousin sister attended the event at the accused's house to watch the dance performance.

At around 11:00 PM, as they were returning home, the appellant and his co-accused, who happened to be the appellant's nephew, intercepted them. The appellant forcibly restrained the victim and subjected her to sexual assault. When the two victims raised an alarm, the accused fled the scene, it was alleged.

While escaping, the co-accused allegedly intimidated the cousin sister of the informant, warning her not to raise an alarm, and proceeded to gag her mouth. Following this harrowing encounter, the two victims sought refuge in their home and recounted the incident to their parents. Subsequently, a case was filed, leading to the appellant's conviction by the Trial Court.

Considering the facts and circumstances of the case, the High Court observed, “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 into account the discrepancy between the victim's statement under Section 164 of the CrPC, where she mentioned her uncle's intervention during the alleged rape, and her trial deposition or initial statement (fard-beyan), where such details were absent. The Court highlighted that this inconsistency raised doubts about the prosecution's case.

The court deemed the conviction pronounced by the trial court as untenable and thus ruled in favor of acquittal.

Consequently, the High Court upheld the appeal and annulled the appellant's conviction.

Counsel/s For the Appellant/s: Mr.Ashok Kumar Chaudhary, Sr. Adv. Mr.Akshansh Ankit, Adv.

Counsel/s For the Respondent/s: Mr.Sujit Kumar Singh, APP

LL Citation: 2023 LiveLaw (Pat) 139

Case Title: Case Title: RADHESHYAM SAH @ RADHE SHYAM SAH vs THE STATE OF BIHAR

Case No.: CRIMINAL APPEAL (DB) No.587 of 2021

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