ascertaining the age of victim

Patna High Court overturned conviction in POCSO case noting failure of Trial Court to ascertain the age of the victim despite being challenged during trial

Case title- Kumod Mandal v. State of Bihar, 2023 SCC OnLine Pat 2812


A division bench of the High Court of Judicature at Patna was deciding an appeal preferred by the appellant under Section 374(2) of the CrPC against the conviction order for offences under Section 376, 341 of the IPC, 1860 and Section 4 of the POCSO Act, 2012. Based on the minor girl’s allegation, the incident in question occurred while she was scraping grass when the Appellant suddenly appeared at the scene, forcibly overpowered her, committed rape on her and threatened to kill her pointing a sharp weapon (kachiya) towards her if she made any noise.

Contentions of the parties:

Based on the statements of the victim and the parents, the age of the victim was confirmed as 12 years old. However, the doctor’s examination revealed that firstly, the age of the victim was below 16 years and secondly, no injury mark was seen on the body or genitalia of the victim. In addition, there were no explicit signs of sexual attack, but the possibility could not be ruled out.

Further, the Asst. Public Prosecutor submitted that the victim was a child within the meaning of Section 2(1)(d) of the POCSO Act, 2012 and the reverse burden of proof lies on the Appellant to disprove his culpable mental state under Section 29 and 30 of POCSO Act, 2012.

On the other hand, the Appellant submitted that the Trial Court in this case made no attempts to determine the age of the victim as required by Section 34(2) of the POCSO Act, 2012 despite the existing discrepancy in age as apparent from the medical opinion of the Doctor.

Legal principle:

Section 34 (2) of the POCSO Act, 2012 mandates the Special Court to determine the age of a person when the age of such person is in question during any proceeding before it and record its reasons for such determination.

Observations of the Court:

The Court noted that two different versions emerged about the sequence of events in the case.

1) The victim deposed that after the incident, one witness approached the scene of occurrence hearing her outcry and took her to her house while she was in an unconscious state and

2) On the contrary, the witness deposed that the victim herself approached her while screaming that the appellant had sexually assaulted her. The Court found that this was a material contradiction in the witness testimonies.

Moreover, there was no mention of a kachiya in victim’s statement recorded under Section 164 CrPC although present in her Fardbeyan making the prosecution’s case doubtful and weak.

The Hon’ble High Court held that the Trial Court was indeed duty bound under Section 34 of the POCSO Act to ascertain the exact age of the victim as it was challenged by the Appellant during the proceedings. The Court further held that the provisions of reverse burden of proof, namely Section 29 and 30 would not be attracted in this particular case.

Decision: After careful scrutiny of the material and evidence placed on record, the Hon’ble High Court was of the opinion that the Prosecution failed to prove its case beyond all reasonable doubt and thus, the Appeal must be allowed, and Appellant should be given the benefit of the doubt.

By Tusharika Vig

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