The Patna High Court has set aside a conviction under the POCSO Act after holding that the prosecution failed to establish the victim’s age as a child under Section 2(d), rendering statutory presumptions inapplicable. This judgment underscores the non-negotiable requirement of age verification in child sexual offence cases, even when the allegations are grave.
Background & Facts
The Dispute
The appellant, Md. Alam, was convicted by the Additional Sessions Judge (POCSO), Vaishali, for offences under Section 377/34 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The prosecution alleged that on 24.02.2021, the appellant and another accused lured a minor boy, aged 12, from a shop in Mahua Bazar, took him to the appellant’s residence in Rampur Singhara, and committed unnatural sexual acts. The victim reported the incident on 25.02.2021 and lodged a written complaint on 26.02.2021. An FIR was registered on 05.03.2021.
Key Facts
- The victim, identified as PW-1, was allegedly assaulted on the night of 24.02.2021 at approximately 11:00 PM.
- He was taken to Mahua Sub-Divisional Hospital on 25.02.2021 at 7:25 PM, where Dr. Rakesh Kumar (PW-2) observed fresh blood around the perineal region and recorded the injury as occurring within six hours.
- The victim claimed he went to the hospital alone; his mother (PW-3) stated she accompanied him to Government Hospital, Manjhaul, on 25.02.2021 morning.
- The written complaint (Exhibit ‘1’) was signed by the victim but allegedly written by an unidentified person at Sadar Hospital, Hajipur.
- The victim’s age was recorded as 12 years in the complaint and as a Class VIII student, but during trial, he stated he had studied only up to Class IV.
- No school records, birth certificate, ossification test, or dental examination were produced to verify age.
- The Investigating Officer (PW-5) admitted he did not verify the victim’s age.
- The second alleged place of occurrence was identified as the house of Siraj Ahmed, not the appellant’s house. The Sarpanch (DW-2) confirmed police visited Siraj’s house, not the appellant’s.
- The formal FIR (Exhibit ‘8’) was drawn by Sub-Inspector Krishnanand Jha, who was not examined.
- The victim’s father submitted an affidavit stating the allegations were false.
Procedural History
- 24.02.2021: Alleged sexual assault occurred.
- 25.02.2021: Victim examined at Mahua Sub-Divisional Hospital at 7:25 PM; complaint initiated.
- 26.02.2021: Written complaint (Exhibit ‘1’) submitted.
- 05.03.2021: FIR (Mahua PS Case No. 162 of 2021) registered under Section 377 IPC and Sections 4/8 of POCSO Act.
- 10.12.2021: Chargesheet filed against the appellant only; investigation against others stayed.
- 16.12.2021: Cognizance taken by trial court.
- 24.01.2022: Charges framed under Section 377/34 IPC and Section 6 POCSO Act.
- 25.04.2023: Trial court convicted appellant and sentenced him to 20 years RI under POCSO and 10 years RI under IPC, to run concurrently.
- 15.05.2023: Sentence order passed.
- 20.04.2026: Judgment delivered by Patna High Court on appeal.
The Parties' Positions
For the Appellant: Argued that the prosecution failed to prove the victim’s age, that there were material contradictions in witness statements, that the second place of occurrence was misidentified, that the formal FIR was not examined, and that the medical evidence was inconclusive. Asserted that the case was motivated by prior enmity due to his legal representation of opposing parties in civil suits.
For the State and Informant: Contended that minor contradictions do not invalidate the prosecution case, that the victim’s testimony was credible, and that the trial court rightly applied presumptions under Sections 29 and 30 of the POCSO Act.
Relief Sought
The appellant sought acquittal on the grounds of insufficient evidence, failure to prove age, and violation of procedural safeguards under the Juvenile Justice Act, 2015. He also sought immediate release from custody.
The Legal Issue
The central question was whether the prosecution established the victim’s age as a child under Section 2(d) of the POCSO Act, thereby triggering the presumptions under Sections 29 and 30, or whether the absence of age verification rendered those presumptions inapplicable.
Arguments Presented
For the Appellant
The appellant’s counsel argued that the prosecution failed to comply with Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which mandates age determination through school records, ossification tests, or dental examinations when age is disputed. The victim’s age was inconsistently stated - 12 years in the complaint, Class VIII in Section 164 CrPC statement, but Class IV in trial testimony. No documentary or medical evidence was produced to confirm his age. The Investigating Officer admitted he did not verify age. The medical report (Exhibit ‘4’ and ‘5’) was inconclusive: the doctor admitted he did not examine the source of blood, did not find bruising around the anus, and did not conduct a detailed examination. The formal FIR was not examined, and the second place of occurrence was misidentified. The mother’s and victim’s accounts of hospital visits were contradictory. The appellant’s alibi and prior enmity were not properly addressed.
For the Respondent
The State and informant argued that the victim’s testimony was consistent in substance, that minor contradictions are common in cases involving minors from disadvantaged backgrounds, and that the trial court rightly relied on the medical opinion and the presumption of guilt under Sections 29 and 30 of the POCSO Act. They contended that the delay in filing the FIR was explained by the victim’s fear and the involvement of an unknown scribe.
The Court's Analysis
The Court conducted a meticulous review of the evidence and found that the prosecution’s case was fundamentally undermined by its failure to establish the victim’s age. The Court observed:
"The prosecution has miserably failed to prove that the victim would come within the definition of the word ‘child’ as envisaged under Section 2(d) of the POCSO Act."
It noted that the victim’s age was inconsistently stated across documents and testimony, with no supporting documentary or medical evidence. The Investigating Officer admitted he did not verify age, and no ossification or dental test was conducted despite the defence raising the issue during trial. The Court held that Section 94 of the Juvenile Justice Act, 2015, is mandatory and applies to all proceedings under the POCSO Act. Without age verification, the presumptions under Sections 29 and 30 of the POCSO Act - which shift the burden of proof to the accused - cannot be invoked.
The Court further found that the medical evidence was speculative. Dr. Rakesh Kumar (PW-2) admitted he did not examine the source of the blood stain, did not find bruising, and relied solely on the victim’s history. The time of injury (within six hours) conflicted with the timeline: if the assault occurred at 11:00 PM on 24.02.2021 and the victim was examined at 7:25 PM on 25.02.2021, over 20 hours had passed - making the claim of “fresh blood” implausible.
The Court also noted that the formal FIR was not examined, the second place of occurrence was misidentified, and the victim’s account of going to the hospital alone contradicted his mother’s testimony and the doctor’s statement that six to seven persons accompanied him. The Court concluded:
"PW-1 cannot be put in the category of a sterling witness for the obvious reasons showing huge contradiction in his statement. In a case under the POCSO Act, the presumption of innocence is not lost."
The Court emphasized that while the POCSO Act is a protective statute, its provisions cannot override the fundamental requirement of proof. The burden remains on the prosecution to establish every element of the offence, including the victim’s age.
The Verdict
The appellant was acquitted of all charges under Section 377/34 IPC and Section 6 of the POCSO Act. The impugned judgment and sentence order dated 25.04.2023 and 15.05.2023 were set aside. The appellant, who was in custody, was directed to be released forthwith, unless detained in any other case. The trial court was directed to receive a copy of this judgment along with the case records.
What This Means For Similar Cases
Age Verification Is Mandatory, Not Optional
- Practitioners must ensure that in every POCSO case where age is disputed, a formal application under Section 94 of the Juvenile Justice Act, 2015, is filed before the trial court.
- Prosecution must produce school records, birth certificates, or medical reports (ossification/dental) to establish age beyond doubt.
- Failure to do so invalidates presumptions under Sections 29 and 30 of the POCSO Act, regardless of the gravity of the allegation.
Contradictions in Witness Testimony Can Be Fatal
- Inconsistencies between the victim’s and guardian’s accounts of medical treatment, hospital visits, or the sequence of events must be addressed with corroborative evidence.
- If the victim’s testimony is internally inconsistent or contradicted by medical or documentary evidence, the benefit of doubt must be given to the accused.
- The Court will not accept vague explanations for delays or unverified statements.
Formal FIR and Investigating Officer Must Be Examined
- The officer who records the formal FIR must be examined as a witness.
- Failure to examine the FIR-recording officer creates a serious procedural defect that may vitiate the entire prosecution case.
- Defence counsel must raise this defect at the earliest opportunity and seek exclusion of the FIR if uncorroborated.
