{"id":335628,"date":"2024-11-20T18:00:47","date_gmt":"2024-11-20T12:30:47","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=335628"},"modified":"2024-11-20T17:46:45","modified_gmt":"2024-11-20T12:16:45","slug":"patnahc-directs-release-of-old-man-after-10-years-who-was-wrongly-convicted-u-s-6-pocso-act-instead-of-s-4","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2024\/11\/20\/patnahc-directs-release-of-old-man-after-10-years-who-was-wrongly-convicted-u-s-6-pocso-act-instead-of-s-4\/","title":{"rendered":"‘Convicted u\/Section 6 of POCSO Act instead of Section 4’; Patna HC directs release of an old man after 10 years’ imprisonment; enhances victim compensation from Rs 4 to 5 lakhs"},"content":{"rendered":"
\n

Patna High Court:<\/span> The Division Bench of Ashutosh Kumar and Jitendra Kumar*<\/span>, JJ., opined that the present case was covered under Section 4<\/a> of the Protection of Children from Sexual Offences Act, 2012<\/a> (‘<\/span>POCSO Act’) and not under Section 6<\/a> of POCSO Act<\/a>, as the victim was found to be above 12 years of age and hence, penetrative sexual assault committed against her did not come under aggravated penetrative sexual assault as defined under Section 5<\/a> of POCSO Act<\/a>. The Court, after considering appellant’s age, opined that imprisonment of appellant for 10 years would meet the ends of justice and thus, he was sentenced to the period he had already spent in custody and was directed to be released.<\/p>\n

Background<\/h3>\n

The informant stated that on 04-05-2014, his 10-year-old niece was taken by appellant, who was his agnate, to Banaras on the pretext of serving his daughter who was expecting a child. At Banaras, after administration of intoxicant to informant’s niece, she was subjected to rape by appellant and when she returned home on 06-05-2014, she told informant about the occurrence. Based on the written report, FIR was lodged for the offence punishable under Sections 376<\/a>1<\/sup><\/a> of the Penal Code, 1860<\/a> (‘IPC’) against appellant. After investigation, a charge sheet was submitted against appellant for an offence punishable under Sections 365<\/a>2<\/sup><\/a>, 366-A<\/a> and 376<\/a> of IPC<\/a> and Section 6<\/a> of POCSO Act<\/a>.<\/p>\n

After cognizance of the offence by the Magistrate against appellant, the case was committed to the Court of Sessions. The charges were framed against appellant under Sections 365<\/a>, 366-A<\/a> and 376<\/a> of IPC<\/a> and Section 6<\/a> of POCSO Act<\/a>, thereafter, the trial commenced. The Trial Court passed the impugned judgment of conviction and order of sentence whereby appellant was found guilty and sentenced accordingly.<\/p>\n

Analysis, Law, and Decision<\/h3>\n

The Court noted that there was no procedure provided in Section 34(2)<\/a> of POCSO Act<\/a> to determine victim’s age and the said section only provided that if any question arose whether a person was a child or not, such question was required to be determined by the Special Court after satisfying itself about the age of such person and to record in writing its reason for such determination.<\/p>\n

The Court relied on Jarnail Singh<\/span> v. State of Haryana<\/span>, (2013) 7 SCC 263<\/a>, wherein it was held that procedure provided for determination of age of a juvenile in conflict with law should be adopted for determination of the age of the victim of a crime also, as there was hardly any difference, in so far as issue of minority was concerned, between the child in conflict with law and the child who was the victim of a crime.<\/p>\n

The Court referred to Section 94<\/a> of the Juvenile Justice (Care and Protection of Children) Act, 2015<\/a> (‘the JJ Act’) which dealt with presumption and determination of age and opined that the age of the victim was determined on the basis of birth certificate from the school or matriculation or equivalent certificate, if available. In the absence of such certificate, the birth certificate given by the Municipal Authorities or Panchayat was required to be considered for determination of the age of the victim and in absence of the said certificates, victim’s age was required to be determined by ossification test or any other latest medical test. Any other proof like oral evidence was impliedly excluded from consideration for determination of the age of the victim.<\/p>\n

The Court noted that as per the evidence of the Medical Board, which was constituted in the present case, the victim was found to be 12-14 years old based on the radiological test. The Court opined that medical opinion in relation to the person’s age was not conclusive evidence as exact assessment of age could not be done based on the medical test as there was always a possibility of errors. However, medical opinions could be useful guiding factors to be considered in the absence of the documents as mentioned in Section 94(2) of the JJ Act.<\/p>\n

The Court stated that the medical opinion must be considered along with the attending circumstances and as per the evidence on record, only attending circumstance was the oral testimony of the victim’s father who had deposed in his examination-in-chief that the victim was 12 years of age at the time of the alleged occurrence. However, the victim’s father did not submit any school certificate or Panchayat or Municipal authority certificate regarding the victim’s age. Thus, considering the oral testimony and the medical opinion, the victim was found to be above 12 years of age and hence, the victim was a ‘child’ and the provisions of the POCSO Act were applicable against appellant.<\/p>\n

The Court stated that the evidence of any relative or family members could not be discarded only on account of his or her relationship with the deceased and the evidence of such witnesses must be weighed on the touchstone of truth and at most, the court was required to take care and caution while appreciating their evidence.<\/p>\n

The Court opined that the victim’s testimony was consistent and truthful and based on her sole testimony, accused might be convicted without corroboration of her testimony, as she was not an accomplice, and she stood on the footing of an injured witness and for such conviction, the only requirement was that the prosecutrix must be trustworthy, inspiring confidence of the Court.<\/p>\n

The Court stated that the victim’s testimony was supported by the medical evidence as per which the victim’s hymen was found ruptured and the doctor who examined her, had opined that the commission of rape could not be ruled out. The Court further stated that from the the evidence of the other witnesses, it was proved that the victim was taken to Banaras by appellant and he stayed with her at a lodge for two days and even the investigating officer had verified the register of the lodge and found that appellant had stayed there in a room along with the victim.<\/p>\n

The Court stated that the contention that parents of the victim wanted to get her married with appellant’s son and when appellant refused to get his son married with her, he was falsely implicated was not persuasive as the victim had two elder sisters who were still unmarried and as per the social practice, it was not believable that the parents would offer marriage of a third daughter when their two elder daughters were still unmarried.<\/p>\n

Thus, the Court held that appellant was guilty of committing penetrative sexual assault against the victim. However, the Court stated that the Trial Court applied wrong statutory provisions to punish appellant by sentencing him under Section 6<\/a> of POCSO Act<\/a> and sentencing him to rigorous imprisonment for the remainder of natural life. The Court stated that the Trial Court did not notice the facts that the alleged offence was committed in 2014 and at that time there was no such punishment in Section 6<\/a> of POCSO Act<\/a>.<\/p>\n

Further, the present case was covered under Section 4<\/a> of POCSO Act<\/a> and not under Section 6<\/a> of POCSO Act<\/a>, as the victim was found to be above 12 years of age and hence, penetrative sexual assault committed against her did not come under aggravated penetrative sexual assault as defined under Section 5<\/a> of POCSO Act<\/a> as under the said section, penetrative sexual assault only on the child below 12 years of age comes in the category of aggravated penetrative sexual assault. Thus, if the victim child was above 12 years of age, the penetrative sexual assault was punishable under Section 4<\/a> of POCSO Act<\/a> and as per the said section as it existed prior to the amendment in 2019, penetrative sexual assault was punishable with imprisonment of either description for a term which shall not be less than 7 years, but which might extend to imprisonment for life and shall also be liable to fine.<\/p>\n

The Court, after considering appellant’s age, opined that imprisonment of appellant for 10 years would meet the ends of justice whereas appellant had been already in custody for more than 10 years since 20-05-2014. Thus, he was sentenced to the period he had already spent in custody and was directed to be released. The Court, after considering the victim’s age, increased the compensation payable to her from Rs 4 lakhs to Rs 5 lakhs. The Court upheld imposition of Rs 50,000 as fine on appellant that was payable to the victim.<\/p>\n

[Md. Mahmood Alam v. State of Bihar, 2024 SCC OnLine Pat 7691<\/a>, decided on 30-10-2024<\/span>]<\/p>\n

*Judgment authored by: Justice Jitendra Kumar<\/span><\/strong><\/p>\n\n

Advocates who appeared in this case:<\/p>\n

For the Appellant:<\/span> Md. Ataul Haque, Advocate<\/p>\n

For the Respondent:<\/span> Abhimanyu Sharma, APP<\/p>\n<\/div>\n\n

1.<\/a> Corresponding Section 64<\/a> of the Nyaya Sanhita, 2023<\/a> (‘BNS, 2023’)<\/p>\n

2.<\/a> Section 140(3)<\/a> of BNS, 2023<\/a><\/p>\n

Buy Penal Code, 1860   HERE<\/a><\/h3>\n

\"penal<\/a><\/p>\n

Buy Protection of Children from Sexual Offences Act, 2012   HERE<\/a><\/h3>\n

\"protection<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

The Trial Court did not notice the facts that the offence was committed in 2014 and at that time there was no such punishment as rigorous imprisonment for the remainder of natural life in Section 6 of POCSO Act.<\/p>\n","protected":false},"author":1,"featured_media":316104,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,10],"tags":[71045,3468,68333,75471,7441,26154,23524,75467,75468,75469,8541,75470],"class_list":["post-335628","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-casebriefs","category-highcourts","tag-aggravated-penetrative-sexual-assault","tag-conviction","tag-justice-ashutosh-kumar","tag-justice-jitendra-kumar","tag-patna-high-court","tag-penetrative-sexual-assault","tag-pocso-act","tag-section-4-pocso-act","tag-section-5-pocso-act","tag-section-6-pocso-act","tag-victim-compensation","tag-wrong-conviction"],"yoast_head":"\n\u2018Convicted u\/S. 6 of POCSO Act instead of S.4\u2019; 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All HC answers","author":"Bhumika Indulia","date":"November 22, 2021","format":false,"excerpt":"Allahabad High Court: Anil Kumar Ojha, J., while addressing a matter of child sexual assault, expressed that, Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":239223,"url":"https:\/\/www.scconline.com\/blog\/post\/2020\/11\/16\/bom-hc-70-year-old-man-convicted-under-s-10-pocso-act-in-light-of-touching-breast-of-a-minor-child-aged-8-years-old-amounting-to-aggravated-sexual-assault\/","url_meta":{"origin":335628,"position":1},"title":"Bom HC | 70-year old man convicted under S. 10 POCSO Act for touching breast of a minor child aged 8 years old amounting to ‘aggravated sexual assault’","author":"Bhumika Indulia","date":"November 16, 2020","format":false,"excerpt":"Bombay High Court: Vinay Joshi, J., altered the conviction for rape and penetrative sexual assault to an act of aggravated form of sexual assault punishable under Section 10 of the POCSO Act in light of touching the breast of the child. Appellant aged 67 years was convicted under Sections 376\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2016\/09\/Bombay-HC.jpg?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2016\/09\/Bombay-HC.jpg?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2016\/09\/Bombay-HC.jpg?resize=525%2C300&ssl=1 1.5x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2016\/09\/Bombay-HC.jpg?resize=700%2C400&ssl=1 2x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2016\/09\/Bombay-HC.jpg?resize=1050%2C600&ssl=1 3x"},"classes":[]},{"id":373163,"url":"https:\/\/www.scconline.com\/blog\/post\/2026\/01\/19\/del-hc-rubbing-penis-against-childs-private-part-not-penetrative-sexual-assault-under-pocso-act\/","url_meta":{"origin":335628,"position":2},"title":"Rubbing penis against child’s private part not ‘Penetrative Sexual Assault’ under POCSO Act; Delhi HC modifies sentence","author":"Ritu","date":"January 19, 2026","format":false,"excerpt":"\u201cThe accused in this case was a doctor to whom the child was sent for medicine. The accused was in a position of authority and trust, and it was such a position that had been misused by him\u2026 In such circumstances, no leniency is called for.\u201d","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"Penetrative Sexual Assault under POCSO Act","src":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2026\/01\/Penetrative-Sexual-Assault-under-POCSO-Act.webp?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2026\/01\/Penetrative-Sexual-Assault-under-POCSO-Act.webp?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2026\/01\/Penetrative-Sexual-Assault-under-POCSO-Act.webp?resize=525%2C300&ssl=1 1.5x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2026\/01\/Penetrative-Sexual-Assault-under-POCSO-Act.webp?resize=700%2C400&ssl=1 2x"},"classes":[]},{"id":270746,"url":"https:\/\/www.scconline.com\/blog\/post\/2022\/07\/28\/sexual-assault-on-minors-traumatic-destroys-personality-patna-high-courts-upholds-fathers-conviction-for-raping-his-minor-daughters-for-6-years\/","url_meta":{"origin":335628,"position":3},"title":"Sexual assault on minors traumatic, destroys personality: Patna High Courts upholds father’s conviction for raping his minor daughters for 6 years","author":"Editor","date":"July 28, 2022","format":false,"excerpt":"Patna High Court: The Division Bench of A.M. Badar and Rakesh Kumar Verma, JJ., while dismissing an appeal observed that a sexual assault leaves a traumatic effect on a victim of a minor age which not only affects her physically but also affects her emotionally and psychologically which ultimately leads\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"Patna High Court","src":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2022\/06\/patna_high_court.jpg?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2022\/06\/patna_high_court.jpg?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2022\/06\/patna_high_court.jpg?resize=525%2C300&ssl=1 1.5x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2022\/06\/patna_high_court.jpg?resize=700%2C400&ssl=1 2x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2022\/06\/patna_high_court.jpg?resize=1050%2C600&ssl=1 3x"},"classes":[]},{"id":174594,"url":"https:\/\/www.scconline.com\/blog\/post\/2017\/12\/09\/occurrence-penetrative-sexual-assault-proved-conviction-s-6-pocso-act\/","url_meta":{"origin":335628,"position":4},"title":"Occurrence of penetrative sexual assault to be proved for conviction under S. 6, POCSO Act","author":"Saba","date":"December 9, 2017","format":false,"excerpt":"Delhi High Court: A Division Bench comprising of Vipin Sanghi and P.S. Teji, JJ, modified the conviction of the appellant to a conviction under Section 18 of the POCSO Act (hereinafter the Act) instead of Section 6 of the Act. The appellant made only one submission that the offence proved\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":326677,"url":"https:\/\/www.scconline.com\/blog\/post\/2024\/07\/16\/touching-private-part-with-penis-amounts-to-aggravated-penetrative-sexual-assault-legal-news\/","url_meta":{"origin":335628,"position":5},"title":"Touching private part with penis amounts to aggravated penetrative sexual assault under POCSO Act; Meghalaya HC upholds man\u2019s conviction for raping 4-yr-old girl","author":"Editor","date":"July 16, 2024","format":false,"excerpt":"\u201cWhen the testimony of the victim child inspires the confidence of the Court and is found to be reliable, there is no necessity to look for other corroborations.\u201d","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"Meghalaya High Court","src":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/03\/Meghalaya-High-Court.webp?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/03\/Meghalaya-High-Court.webp?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/03\/Meghalaya-High-Court.webp?resize=525%2C300&ssl=1 1.5x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/03\/Meghalaya-High-Court.webp?resize=700%2C400&ssl=1 2x"},"classes":[]}],"amp_enabled":true,"_links":{"self":[{"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/posts\/335628","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/comments?post=335628"}],"version-history":[{"count":0,"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/posts\/335628\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/media\/316104"}],"wp:attachment":[{"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/media?parent=335628"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/categories?post=335628"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/tags?post=335628"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}