By Astha Bhumish Shah 

While considering an appeal against the conviction of the appellant under Section 376 IPC and Section 4(1) POCSO Act by the Special Court for penetrative assault, the Patna High Court held that if the accused/ defence did not object to the production of secondary evidence for age determination of the victim during the trial, they forfeit the right to contest the admissibility of the same. Post taking Matriculation examination, the prosecutrix started living with her uncle and aunt. It is alleged that since then, the appellant started misbehaving with her and on the false promise to marry, established a physical relationship with her. When she asked him to marry her, he refused and promised to do so upon her becoming a major. He, however, went back on the same and the affair continued for three years, post which he clearly refused to marry the prosecutrix under any condition. Accordingly, the Court rejected the appellant’s argument that the prosecution did not fulfil the conditions for proving the document (photocopy of matriculation certificate) by secondary evidence to prove the age of the victim, hence it should not have been admitted by the Special Court. Since the appellant did not object to the production of secondary evidence during the trial, he waived his right to bring such an objection at a later stage. The Court held that the age of the victim as a minor had been legally proved through the photocopy of Matriculation Certificate.  

The Court also said that the consent of the victim is immaterial under the POCSO Act and does not excuse the offence committed by the accused. At the time of occurrence of the alleged incident, the prosecutrix was a child and consent of a child is no consent under Section 375 IPC or Section 4 of the POCSO Act. Even if the parties were married, the same would be void ab initio under Section 11 of the Hindu Marriage Act and punishable under Section 494 of IPC as the appellant already had a wife. Finally, the Court upheld the appellant’s conviction but reduced his sentence from 20 years to 10 years and directed him to pay the victim rupees one lakh as compensation. It also directed the Bihar Legal Services Authority to provide compensation of rupees two lakh to the victim. (Satyabrat Ashok @ Satya Vrat Ashok @ Pappu Sharma @ Pappu Son of Ramyad Sharma Resident of Mohalla- Vishunupuri Colony, Chand Chaurah, P.S- Vishnupad, Distt- Gaya v. The State of Bihar – CR. APP (DB)/914/2022) 

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