The division judge bench of Justice Nawneet Kumar Pandey and Justice Chakradhari Sharan Singh of the Patna High Court in the case of Kumod Mandal vs. the State of Bihar held that as per provisions of Section 34 (2) of the POCSO Act, 2012, it is imperative on the trial court to determine the age of the victim.
Brief Facts:
The factual matrix of the case is that the minor victim was scraping grass in the maize field and then, the appellant came and forcibly put off her pants, gagged her mouth, pointed a Kachiya on her neck, and threatened to kill her. Thereafter, he committed rape upon her. Due to pain, the victim started writhing and Tetri Devi, who was also scraping grass at some distance, rushed there. She shouted and the persons who came there saw the victim in the nude condition and after changing clothes, the victim was taken to the Basnahi police station, where they refused to lodge the FIR. Afterwards, they went to Mahila police station to get the FIR registered. The charges were framed against the appellant under sections 376, 323, and 341 of the Indian Penal Code and Section 6 read with Section 5 (r) of the POCSO Act.
Contentions of the Appellant:
The learned counsel appearing on behalf of the Appellant contended that the appellant had been falsely implicated in the present case because of the previous enmity between the parties. It was furthermore contended that the learned trial court didn’t make any efforts to determine the age of the victim as required under Section 34 of the POCSO Act. At last, it was contended that as per the medical examination, no evidence of sexual assault was found.
Contentions of the State:
The learned counsel appearing on behalf of the state contended that according to Section 2 (1) (d) of the POCSO Act, the victim is a child, and as a result, the appellant has the burden of proof under Section 29 of the POCSO Act. Additionally, the appellant is presumed to be in a culpable mental state under Section 30 of the POCSO Act. Furthermore, the delay in lodging the FIR was duly explained.
Observations of the court:
The Hon’ble court observed that in accordance with Section 34 (2) of the POCSO Act, 2012, the trial court is required to ascertain the victim's age, but no effort was made by the trial court to do so.
It was furthermore observed that in the present case the presumptions under Sections 29 and 30 of the POCSO Act cannot be attracted as the age of the victim was challenged by the appellant and therefore, the trial court was duty bound to determine the age of the victim.
It was furthermore noted that no evidence of sexual assault was found by the doctor. Also, the reasoning behind the delay in lodging the FIR doesn’t appear to be convincing and trustworthy.
Based on these considerations, the court believed that the prosecution failed to prove the case beyond reasonable doubt and set aside the order of sentence passed by the lower court.
The decision of the court:
With the above direction, the court allowed the appeal.
Case Title: Kumod Mandal vs. the State of Bihar
Coram: Hon’ble Mr. Justice Nawneet Kumar Pandey and Hon’ble Mr. Justice Chakradhari Sharan
Case No.: Criminal Appeal (DB) No. 193 of 2021
Advocates for the Appellant: Mr. Pramod Mishra, Adv. Mr. Suraj Kumar, Adv.
Advocate for the Respondent: Mr. Sujit Kumar Singh, APP
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