S.34(2) POCSO Act Mandatory, Trial Court Bound To Determine Victim's Age When Issue Raised By Accused: Patna High Court

The division bench, comprising Justices Chakradhari Sharan Singh and Nawneet Kumar Pandey, observed, “As per provisions of Section 34 (2) of the POCSO Act, 2012, it is imperative on the trial court to determine the age of the victim, but no effort was taken by the trial court for determination of the age of the victim.”

“From bare perusal of this provision, it appears that the trial court was duty bound to determine the age of the victim as the appellant has challenged the age of the victim. As such, the presumptions under Sections 29 and 30 of the POCSO Act do not attract in this case,” the bench added

The above ruling came in an appeal filed by the accused under Section 374(2) of the Code of Criminal Procedure, seeking to set aside the judgment of conviction and the sentence passed by the Special Judge (POCSO) in Saharsa. The appellant had been convicted under Sections 376 and 341 of the Indian Penal Code (IPC) and Section 4 of the POCSO Act.

The alleged incident occurred when the victim, a 12-year-old minor girl, was scrapping grass. As per prosecution, the appellant arrived at the scene, forcibly overpowered the victim, and sexually assaulted her and brandished a sharp object ("Kachiya") near her neck, threatening to harm her if she made any noise.

Both the victim and her parents testified in their statements that when the victim raised an alarm, PW 7, also was also scraping grass near the place of occurrence, arrived at the scene. However, PW 7 provided a different account, stating that the victim herself approached her, screaming, and seeking help.

The Court observed that there was a material contradiction in the depositions of the witnesses.

Additionally, the Court noted that the victim did not mention in her statement under Section 164 of the CrPC that the appellant had a Kachiya with him or that he threatened her with it, even though she stated these facts in her Fardbeyan and deposition, which made the prosecution's case doubtful.

The Court highlighted that in relation to charges under Section 376 of the Indian Penal Code (IPC), the doctor could not find any evidence of sexual assault.

Considering the numerous material contradictions in the prosecution's evidence, the Court concluded, “From careful scrutiny of the evidence available with the record, we do not find that the prosecution has proved its case beyond all the reasonable doubts. The above-noted circumstances makes the prosecution case doubtful and the appellant is entitled for the benefit of doubts.”

Based on these observations, the Court overturned the conviction and sentence, allowing the appeal. The Court ordered the immediate release of the appellant who was in custody.

Counsel/s For the Appellant/s: Mr. Pramod Mishra, Adv. Mr. Suraj Kumar, Adv.

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

LL Citation: 2023 Livelaw (Pat) 115

Case Title: Kumod Mandal Vs. The State Of Bihar

Case No: Criminal Appeal (Db) No.193 Of 2021

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