Conviction Upheld Despite Lack of Cross-Examination, with Sentence Reduced to Period Already Undergone

The informant, Sawan Birhor, filed an FIR alleging that on December 8, 2016, his minor sister (P.W.1) was kidnapped by the appellant while she was on her way to a bank and taken to Patna.

The victim alleged she was kept in captivity at various brick kilns and molested.

The Trial Court convicted the appellant under Sections 366 and 354 of the IPC and Section 8 of the POCSO Act, sentencing him to three years of rigorous imprisonment.

The appellant challenged the conviction on grounds of lack of documentary proof of the victim’s age and the denial of a fair trial, as the witnesses were not cross-examined.

1. Whether the prosecution successfully established the minority of the victim and the guilt of the appellant despite the lack of cross-examination by the defense.

2. Whether the lack of legal assistance and cross-examination invalidated the conviction or necessitated a modification of the sentence.

The court applied Section 366 (kidnapping/abducting a woman to compel marriage/illicit intercourse) and Section 354 (outraging modesty) of the IPC, alongside Section 8 of the POCSO Act (punishment for sexual assault).

It further utilized the statutory presumptions under Section 29 and Section 30 of the POCSO Act, which shift the burden of proof regarding certain mental states and the commission of the offence to the accused once the prosecution establishes the foundational facts.

The court also considered Section 42 of the POCSO Act, which bars double punishment for the same act under both the IPC and POCSO.

The High Court observed a significant procedural lapse: the appellant was not provided with adequate legal assistance, and witnesses were discharged without cross-examination, which prima facie suggested the absence of a fair trial.

However, the Court found the testimony of the victim (P.W.1)—supported by the medical officer (P.W.6) who estimated her age at 13-14 years—to be reliable.

Relying on the victim's statement and the legal presumptions under Sections 29 and 30 of the POCSO Act, the Court determined that the conviction was sustainable.

Regarding the sentence, the Court noted that the appellant had already served approximately 2 years, 4 months, and 17 days of the three-year sentence.

However, the court modified the order of sentence, reducing it to the period of imprisonment already undergone by the appellant, noting that no useful purpose would be served by re-incarcerating him.

The appellant was discharged from the liability of his bail bond.