Prosecution under Protection of Children from Sexual Offences Act, 2012

Source: Patna High Court 

Why in News? 

A bench of Justices Jitendra Kumar and Ashutosh Kumar held that the presumption under Section 29 and Section 30 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) can only be raised when the foundational facts have been proved. 

• The Patna High Court held this in the case of Deo Narayan Yadav @ Bhulla Yadav v. State of Bihar. 

What is the Background of Deo Narayan Yadav @ Bhulla Yadav v. State of Bihar Case?

• The FIR was registered on the written report of the victim/informant against three accused persons for the offence punishable under Sections 376 read with Section 34 of the Indian Penal Code, 1860 (IPC) and Section 3, 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). 
• The case of prosecution is that the age of the victim is 13-14 years. 
• It is the case of prosecution that when the victim was coming back from Kujri Hatia to home the accused persons committed rape on her. 
• She informed her mother who advised her to wait for her father.  
• In the meantime, she became pregnant. 
• Hearing this news, her father came and organized a panchayat, but none of the accused persons obeyed the orders of the panchayat. 
• Hence, FIR was registered against the accused persons.  
• After registration of the FIR, the investigation commenced and the charge-sheet was filed against the accused Deo Narayan @ Bhulla Yadav under Section 376 read with Section 34 of the IPC and Section 3, 4 of the POCSO Act. 
• The Trial Court passed the impugned judgment convicting the accused.  
• However, no finding was given regarding the age of the victim by the Trial Court. 

What were the Court’s Observations? 

• The Court first of all discussed Section 29 and Section 30 of the POCSO Act and observed that the presumptions as provided under these provisions are mandatory in nature but are rebuttable. 
• The Court held that before raising the presumption against the accused under Section 29 and Section 30 the prosecution is first required to prove the foundational facts beyond all reasonable doubts by relevant and legally admissible evidence and only thereafter the burden of proof will shift to the accused to rebut the presumptions on the touchstone of preponderance of probability.  
• The Court held that the foundational fact to be proved here to raise the presumption under Section 29 and 30 of the POCSO Act is that the victim's age was below 18 years. 
• Thus, the first and foremost question is whether the prosecution has been successful in proving that the alleged victim is the child. 
• The Court, after citing several judgments, held that the process of proving the age of victim under POCSO Act is same as provided for under Juvenile Justice Act, 2015 (J.J. Act). 
• The Court observed that there are no certificates on record regarding the age of the alleged victim despite the fact that she was studying in class 9th.  
  • It was observed that holding documentary proof regarding the age of the victim gives rise to adverse inference against the prosecution regarding the age of the victim. 
• It is to be noted that in this case there was medical evidence available regarding the age of the victim which provided that the age of the victim is below 18 years.  
• It is a settled position of law that medical opinion regarding age of a person is not conclusive evidence, because exact assessment of the age cannot be done on the basis of medical test as there is always possibility of errors on both higher and lower sides. 
• Thus, the medical opinion has to be always considered along with the attending circumstances. 
  • In the present facts, the Court observed that the father's testimony does not fully corroborate the prosecution's case that the victim's age is below 18 years.  
• Therefore, the Court acquitted the accused case under the POCSO Act. 
• The Court held that there were only minor discrepancies in the prosecution witnesses' statements which do not touch the core of the prosecution's case. 
• It was observed that no parent of any girl in our society can damage the reputation of his/her daughter regarding her chastity.  
• Thus, the Court did not accept the claim of the appellant that the case was false and has been filed for extortion of money. 
• The Appellant was found guilty of the offence punishable under Section 376 (1) of IPC and hence he is liable to pay compensation under Section 357 (3) of Criminal Procedure Code, 1973 (CrPC). 

What is the Law Regarding Presumption Under Section 29 and Section 30 of POCSO? 

• Section 29 of POCSO Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. 
• Section 30 (1) of POCSO Act provides that in any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. 
  • Section 30(2) provides that for the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. 
    Explanation.--In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.  

What is the Law Regarding Rape Under Section 63 of Bhartiya Nyaya Sanhita, 2023 (BNS)?  

• Section 63 of BNS provides that a man is said to commit “rape” if he—  
  • Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or  
  • Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or  
  • Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or  
  • Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: —  
    • against her will.  
    • without her consent.  
    •  with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.  
    • with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.  
    • with her consent when, at the time of giving such consent, by reason of mental illness or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. 
    •  with or without her consent, when she is under eighteen years of age. 
    •  when she is unable to communicate consent. 
    • Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.  
    • Explanation 2. —Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:  
    • Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.  
    • Exception.1––A medical procedure or intervention shall not constitute rape.  
    • Exception.2––Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape 
• Section 376 of Indian Penal Code, 1860 (IPC) provides for the offence of rape. 

What are Landmark Cases Cited in this Case? 

• Babu Vs State of Kerala, (2010): 
  • The Supreme Court in this case held that 
    • Every accused is presumed to be innocent unless the guilt is proved. 
    • However, this is subject to statutory exceptions. 
    • A presumption against the accused can only be raised when certain foundational facts are established by the prosecution.  
• Collector of Customs Vs. D. Bhoormal (1972): 
  • The Court here discussed what is meant by “proof beyond reasonable doubt”. 
  • The Court observed that all that is required is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. 
  • Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case. 
• Jarnail Singh v. State of Haryana (2013): 
  • The Supreme Court held that the procedure provided for determination of age of juvenile in conflict with law should be adopted for determination of age of the victim of crime. 
• P. Yuvaprakash v. State (2023): 
  • The Supreme Court reiterated that procedure for determination of age of the victim of a crime is the same as provided for determination of age of a child in conflict with law in the prevailing Juvenile Justice Act at the relevant time. 
• Mukarrab v. State of U.P. (2017): 
  • The Supreme Court held that medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances.