Trial relating to an offence under The Provisions of the POCSO Act,it is obligatory for the Trial Court to undertake the procedure for determination of age of the victim of sexual assault under the Act as prescribed under section 94 of the J.J Act,2015-High Court of Patna
TITLE-Raushan Kumar Vs The State of Bihar with Nakul Kumar Vs The State of Bihar
DECIDED On-15/12/2023
+CR.APP(DP)No.262/2022
CORAM-HON’BLE JUSTICE MR.CHAKRADHARI SHARAN SINGH AND HON’BLE JUSTICE SMT.G.ANUPAMA
INTRODUCTION
These appeals have been filed by the appellant challenging the impunged Judgement of conviction order passed by the learned Additional District & Sessions Judge VII cum special judge (POCSO) patna where the appellant has been convicted under section 363,365 and 376/34 of IPC and under section 4 of POCSO Act.
FACT
As per the facts of the case the FIR was registered by the father of the victim stating that the victim was of 13 years and has been taken to the Patna by the appellants and alleged that appellant Raushan kumar committed wrongful acts on her daughter,a child and investigation was done charges were framed and During the trail proceedings the appellant were been convicted under section 363,365 and 376/34 of IPC were the learned councel for Appellant Raushan Kumar state that there are manifest inconsistencies in the Prosecutions case as disclosed the statment under section 161 and her statement recorded under section 165 of the CrPC and also state that the the informant is not a reliable witness who mislead the police in his written statement by suppressing the material facts and even the Prosecutions witness are not reliable as their evidence at the trial is substantially different from what they had disclosed to the police during the investigation.The learned councel for Appellant also state that the trial court has committed an error while holding the appellant guilty as deposition of the victim and family members are apparently not trustworthy and reliable considering the patent inconsistencies in their deposition and also state that the trial court to have undertaken the task of determination of teg age of the victim for reaching a conclusion beyond doubt that victim was less than 18 years of age and a ‘ child’ within the meaning of section 2(1)(d) of POCSO act.He contends that section 34(2) of teg POCSO Act ordians the special court to determine as whether a person is a child or not or any question arises in a proceeding before the special Court and duty to record the writing it’s reasons for the determination of age of the victim.Whereas the learned councel for Appellant Nakul Kumar state that the victim statement under section 164 of the Crpc do not alleged any conduct in the nature of sexual assault as against this Appellant.Whereas the learned APP state that victim age was mentioned as 13 years by her father.The doctor based on radiological examination reached a conclusion that the age of the victim was 14-16 years.
THE COURT ANALYSIS AND DECISION
As per the Hon’ble court after carefully perused the impunged Judgement and order of the trail court and based on evidence have given thoughtful consideration to the rival submissions made in behalf of parties.As the first and foremost requirement to invoke the provision of the POCSO Act is clear finding beyond doubt that the victim of sexual assault is a child within the meaning of section 2(1)(d) of the Act which define child to be a person below the age of 18 years.As section 34(2) of the POCSO Act casts an obligation on the special court to determine the question as to whether a person is a child or not .There cannot be any gainsaying that age determination of a person,victim of sexual assault is one of the most fundamental questions which is to be duly addressed while invoking the provisions of the POCSO Act.as section 34(2) does not lay down any definite procedure for determining of age of a person who is a victim of sexual assault.As with teg enactment of Juvenile Justice Act2015 section 94 lays down the determination of age of a child under the provisions Said Act.It is settled legal position by now that to bring an offence within the ambit of the provisions of the POCSO Act when a question of age of the person of a said victim arises the Prosecution and the court will have to undertake the procedure prescribed under section 94 of the Juvenline Justice (care and protection of children) Act,2015.As the question arise in the present case is whether the age of the victim was at all in dispute or not for the purpose of attracting the provisions of the POCSO Act.As in mindful position of a person appears to be a child to the court upon mere appearance requiring no further determination of age of such person.As it is obligatory for the trial court to undertake the procedure for determination of age of the victim of sexual assault under the Act as prescribed under section 94 of the J.J Act 2015.As per the aforementioned observe that the court hold that it is mandatory for the Prosecution to prove and the Special court under the POCSO Act to determine the age of the victim as prescribed by the law and further hold that age determination by radiological examination is impermissible under section 34(2) of the POCSO Act read with section 94 of the J.J Act,2015.As failure in the part of the Prosecution and the trial court to determine the age of the victim accordance with the provisions.The finding if the trail court holding Appellant guilty of the offences punishable under section 4 of the POCSO Act is unsustainable and is accordingly set aside.Then the court find that the victim does not appear to be a truthful witness it is unsafe to uphold the finding of the conviction of these appeallant for the offences punishable under section 363,365 and 376/34 of IPC and the appellant deserved to be acquitted from the offences punishable.Therefore the impunged order Judgement passed by learned Additional District & Sessions Judge VII is here by set aside.These appeal are allowed.
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