No effort by prosecution to establish that victim was minor on date of crime: Patna High Court sets aside POCSO conviction

The Patna High Court recently set aside the conviction of a man under the Protection of Children from Sexual Offences (POCSO) Act, observing that no exercise was carried out by the prosecution to establish that the victim was a minor on the date of the crime..The Court was hearing a criminal appeal filed against a trial court judgment that convicted a man for raping a girl who was purportedly 8 years old at the time of the incident.Justice Alok Kumar Pandey noted in the order,"...the prosecutrix was a literate girl as she has signed everywhere. Therefore, she must have been getting education somewhere. It is not the prosecution case or evidence that prosecutrix did not attend any school. As a matter of fact, no effort was made by the prosecution to establish the age of the victim in accordance with statutory provision.".It also found that the victim's statement was "quite contradictory" in nature on vital points, and thus could not form the basis of conviction..As per the prosecution case, the 8-year-old victim was lured by the appellant with the promise of giving her a lemon. When the victim did not return, the informant, who is also the mother of the victim, went to look for her. The victim's mother claimed that she saw the appellant attempting to commit rape on the victim in a room, and thereafter fleeing the scene upon noticing her presence. A first information report (FIR) was registered against appellant for rape and criminal intimidation under the Indian Penal Code (IPC), and for offences under Sections 4, 6, and 8 of the POCSO Act.In 2022, the trial court took cognizance and convicted the accused appellant for rape and offences under the POCSO Act. .The Court noted that the trial court was totally silent on the specific questions that were put to the victim during examination.Further, it pointed out that the victim herself mentioned that whatever she said in her statement was tutored by the police."It observed that her statement recorded under Section 164 of the Cr.P.C. is nothing but purely a tutor version of police and words were put to her mouth by the police which does not inspire confidence and statement under Section 164 of CRPC has lost its credibility for the purpose of corroboration and therefore, she cannot put into category of sterling witness," the order said.In view of the evidence in the case, the Court said that it was crystal clear that the offence under Section 6 of the POCSO Act has not been proved beyond reasonable doubt..The appellant was represented by Advocates Ajay Kumar Thakur, Vaishnavi Singh and Malay Kumar Choudhary.The State was represented by Advocate Syed Ashfaque Ahmad..[Read Order]