By Astha Bhumish Shah 

The Patna High Court in a criminal appeal upheld the conviction of the appellant under Section 3 of the POCSO Act for penetrative sexual assault under Section 376 IPC. The High Court rejected the appellant’s argument that he was falsely implicated for extortion of money and forcing the victim to marry him. It held that there was sufficient evidence to convict the accused under Section 376 IPC as the victim gave birth to a child about nine months after the alleged incident, proving that she had been subjected to rape by the appellant and other co-accused.  The Court also observed that the delay in lodging the FIR 5 to 6 months after the incident had taken place was acceptable since the victim had been threatened with the fear of death by the accused to not disclose the same to anyone. The Court also noted that the village panchayat had imposed a fine against the appellant which had not been paid, post which a complaint had been launched with the Police. 

However, since the prosecution was unable to prove the victim’s age to be under 18 years, the appellant was acquitted under Section 3 of the POCSO Act. The Court said that withholding documentary proof regarding the age of the victim would give rise to an adverse inference against the prosecution with respect to the same. During the examination of the victim’s father, he had stated that the victim was 14-15 years old. However, during cross-examination he stated that the victim had started her studies at the age of 10. As per this deposition, the Court found that since the victim was in Class 9 at the time of the alleged incident, she would have been around 19 years old. Further, medical evidence also suggested that the victim as above the age of 18 years. Based on the above the Court held that though the appellant’s conviction would be upheld, the prosecution was unable to discharge the initial burden of proof regarding the age of the victim, therefore, provisions of POCSO could not be made applicable against him.  (Deo Narayan Yadav @ Bhulla Yadav, Son of Tarkeshwar Yadav, Resident of Village- Bakradongi, P.S. Palasi, District-Araria v. The State of Bihar – CR. APP (DB)/871/2017) 

Click here to read/ download the order.