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Title-Abhinandan Vs The State of Bihar

Decided on-20/12/2023

+CR.APP (DB)No.-554/2022

CORAM-HON’BLE JUSTICE SUNIL DUTTA MISHRA

FACT

As per the fact of the case The appellant is an accused as per the Prosecution case the informant age 17 years was a student if Intermediate and both of them have a love affair.Where on the pretext of marriage,The Appellant sexually exploited her.On 30/08/2019 Appellant called the informant and said her to flee away to marry in Temple.As Appellant sexually assaulted her were some villagers had seen them and tried to assault them on asking of the villager Appellant called his father and thereafter the appellant and his father forbade the informant from disclosing the occurrence to her guardian and assure her for solemnization of her marriage.Were the informant approach several times for marriage but the appellant refused to marry her then informant filed the written application before the police station.Where Investigation of the case carried out and after the investigation the police submitted charge sheet against the appellant under section 376 of the IPC and Section 4 of the POCSO Act.Then The case was committed to the court of sessions and charges framed under 376 of IPC and Section 4 of POCSO Act.After examine the witnesses from both the parties and the completion of oral and documentary evidence the statement of the accused was recorded under section 313 of the CRPC to which he denied the occurrence and claim to be innocent.At the conclusion of trial The Trial court convicted the accused/Appellant and sentenced him as aforesaid.Being aggrieved by the Judgement of conviction and order of sentence,the present appeal.

Law Involved/Legal Provisions

As the criminal appeal has been filed by the appellant against the judgement and sentenced passed by the learned Additional Sessions judge VI-Cum-Special were the appellant has been convicted under section 376 of the IPC and Section 4 of POCSO Act with fine.It has further been directed that the detention undergone by the appellant shall be set off against the sentence imposed and provision under section 42 of the POSCO Act,The Appellant is not liable to be punished or sentenced under Section 376 of IPC as he already been sentenced for the offence under section 4 of the POCSO Act.

Issue raised

Whether the order passed by the trial court is valid?

THE COURT ANALYSIS AND DECISION 

As per the Hon’ble court after hearing both the parties observed and state that as after witnessing Prosecution side in their cross examination on behalf of defence that no such occurrence took place and the case was filed for pressuring accused/Appellant for marriage with the informant.In cases concerning offences under POCSO Act the main argument made on behalf of the state is presumption that operates against the accused under section 29 of the POCSO Act.It connected with the learned APP for the state that the court has to presume that the accused had committed the offence for which he is charged under the POCSO Act.It is submitted that in the present case it was for the appellant to have proved to the contrary and burden was entirely upon him,which he failed to discharge and therefore conviction by the trail court not be disturbed.As it is necessary to examine the effect if presumption under section 29 of the POCSO Act.Under Section 29 of the POCSO Act,it cannot be said that presumption is absolute.It would come into operation only when the presumption is first able to establish facts that would form the foundation under section 29 of the POCSO Act to operate.In a case pertaining to the POCSO Act it needs no reiteration that it is imperative to establish the age of the victim and thereby her minority.Section 94 of Juvinile Justice 2015 provides determination of age of the child in conflict with law and child in need of care and protection.In the present case the Prosecution failed to bring the original or certified true copy of Matriculation Certificate of the victim in trial to prove the same and its contents.In the scheme of the said Rule 12(3) matriculation certificate of concerned child,is the highest rated option.The Prosecution has  failed to conduct necessary investigation and the learned trial court has been remiss in failing to take into consideration the provisions of Section 94 of the Juvenline Justice.The allegations of Sexual assault coupled with the proof of majority of the victim drags an accused to the regrious of POCSO Act,which mandates a reverse burden of proof.The aim of the court of facts is to come to a firm conclusion about the minority of the victim must necessarily be proved by cogent evidence needed in a criminal trial.The POCSO Act does not diminish it dilute the Indian Evidence Act.In the instant case the mobile of the victim was important link to show but the Prosecution failed to bring this evidence without any reason.It also appears that IO had not visited the place of occurrence where the alleged offence had not visited the place of occurrence where the alleged offence was committed by the appellant.He had not taken the statement of any independent witness available near the place of occurrence.As after witnessing and the medical evidence shows foundation facts as in the present to raise presumption under section 29 of the POCSO Act have not been established beyond reasonable doubt by the Prosecution.Under Such Backdrop it would be unsafe to hold that the prosecution has proved its case against the appellant under the provisions of POCSO Act and Section 376 of IPC.Thus Prosecution has failed to prove the charges levelled against the accused/Appellant beyond all reasonable doubt thereby entitled the accused/Appellant for acquittal.The appeal is allowed and the order passed by the trail court accordingly is set aside.

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Written by- Prachee

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