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Conviction under POCSO Act cannot be sustained if the age of the survivor is not established: Patna High Court

Team SoOLEGAL 12 Apr 2023 11:36am

Conviction under POCSO Act cannot be sustained if the age of the survivor is not established: Patna High Court

New Delhi: The Patna High Court has ruled that a conviction under the Protection of Children from Sexual Offenses (POCSO) Act cannot be upheld if the survivor's age cannot be verified [Deepak Kumar v State]. Justice Alok Kumar Pandey further ruled that the survivor's statement under Section 164 of the Code of Criminal Procedure (CrPC) cannot be considered substantive evidence. As a result, the Court acquitted an accused even though the prosecution made no effort to establish the victim's age.

The court observed, “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".

As a result, the Court reversed the trial court's order of conviction after finding substance in the appellant's contention that the prosecution failed to prove beyond a reasonable doubt that the victim was a juvenile at the time of the incident. The appellant had appealed in a 2022 trial court ruling finding him guilty of procuration of a young girl for rape and for violations under the POCSO Act. According to the prosecution, the victim, who was about 14 years old at that time, was kidnapped by the appellant with the intent of marrying her.

The appellant, on the other hand, contended that the prosecution failed to discharge its burden of establishing that the victim was a juvenile at the time of the incident. Furthermore, it was claimed that while presenting evidence, the victim herself stated that she was 20 years old. He further stated that the trial court did not determine the victim's age and that there was no age finding in the challenged judgment. While ruling in favor of the appellant on the issue of age determination, the court also stated that the victim's statement before the trial court was untrustworthy because it contradicted her statement before the magistrate.

"Her evidence does not inspire confidence and such evidence cannot be trustworthy," the court noted.

The Court further considered the fact that the appellant had not been questioned under Section 53A of the Criminal Procedure Code (Examination of person accused of rape by medical practitioner).

"While it is true that the provision is not mandatory in nature, the court believes that it allows the prosecution to conduct the examination of the victim in such a way as to substantially establish a charge of committing a rape."

After reviewing the evidence, the Court found that the claimed charges had not been proven beyond a reasonable doubt, and thus the appellant was given the benefit of the doubt.

"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."



Tagged: POCSO Act  
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