Allahabad High Court: In an appeal filed against the judgment and order passed by Additional Sessions Judge, wherein, the Court has acquitted the appellant under Sections 363, 366 of the Penal Code, 1860 (‘IPC’) but convicted the appellant (convict) for offence punishable under Section 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) and sentenced him to ten years of rigorous imprisonment, Ram Manohar Narayan Mishra, J. has held that the Trial Court has not properly appreciated the evidence appearing on point of age determination of the victim and there are factual and legal errors in the impugned judgment, thus it is not sustainable under law. Therefore, the Court set aside the judgment and order of conviction and sentence passed by Trial Court and acquitted the accused under Section 6 of POCSO Act.
The father of the victim has stated in the First Information Report (‘FIR’) that on 19-11-2010 when her 16-year-old daughter was alone in the house, the convict visited his home and seduced and enticed away his daughter. When he came back home in the evening and when he did not find the victim, his younger daughter stated that she had seen the victim going along with the convict, thereafter he lodged a FIR. In 2017, the investigating officer received information that the convict was residing in Punjab along with the victim. The convict was charged for offence under Sections 363, 366 IPC and Section 6 of POCSO Act, 2012.
The Trial Court based on evidence adduced by the prosecution, observed that the victim contacted the accused on her free will, there was no evidence of her being forcefully kidnapped, and the prosecutrix failed to establish the fact that she was abducted with an intent or knowledge to marry the accused against her free will. Further, it also failed to establish charges under Section 363 and Section 366 of the Penal Code, 1860 (IPC). However, based on findings from educational record that the victim was minor even during the trial, the appellant was convicted under Section 6 of the POCSO Act.
The Trial Court further cited Independent Thoughts v. Union of India, Writ Petition (Civil) No. 382 of 2013, wherein the Court considered the issue of child marriage in the country in the light of provisions of the POCSO Act, and read down Exception 2 of Section 375 IPC which provides that a sexual intercourse or sexual acts by a man with his own wife, wife not being under 15 years of age is not rape, to the extent it relates to a girl child under 18 years. It was however, made clear that this judgment will have prospective effect.
The State submitted that the victim was found to be around 16 years of age at the time of incident according to her academic documents and FIR version. Thus, the charge of aggravated sexual assault stands proved against the convict.
The Court after perusing the admission register related to admission of the victim, noted that the victim’s date of birth is mentioned as 12-11-2000. She was admitted in school on 20-7-2012 and left the school on 30-6-2013 after passing class fifth, however, in application form it is stated that prior to seeking admission in this school, she was studied in some other School. Her admission form is signed by some stranger as her guardian and this fact is not brought on record as to what relation the victim has with him.
The Court further said that in K. Dhandapani v. State, 2022 SCC OnLine SC 1056, wherein the convict was the maternal uncle of the prosecutrix and was charged for having committed rape of victim, who was stated to be aged around 14 years on the date of offence and gave birth to the 2 children. The Court, taking into consideration these peculiar facts and circumstances of the case, viewed that conviction and sentence of the convict deserves to be set aside as the Court cannot shut its eyes to the ground reality and disturb the happy family life of the convict and prosecutrix. However, the Court observed that the said order was passed on peculiar facts of the case and shall not be treated as precedent.
The Court, after perusing the medical report, noted that at the time of examination, no injury was found on the victim. Further, according to the age determination report of Chief Medical Officer, she was aged around 18 years.
Further, the Court took note of Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007, (‘Juvenile Justice Rules, 2007’) which provides the procedure to be followed in determination of age. It provides that in every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining the matriculation or equivalent certificates, and in the absence of it , the date of birth certificate from the school (other than a play school) first attended; and in its absence, the birth certificate given by a corporation or a municipal authority or a panchayat; and only in absence of either (i) (ii) (iii), the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.
The Court said that after enactment of Rule 12, the Juvenile Justice Act, 2015 (‘JJ Act’) was enacted. Further, after taking note of Section 94 of the JJ Act and Section 6 of the POCSO Act, said that offences related to sexual assault are very heinous in nature and if the victim is minor then her consent is statutorily and judicially of no value. In such cases in contrast of common practise, onus of proof is on the accused, rather than on the victim as provided under Section 29 of the POCSO Act and furthermore, age of the victim gains significance as offences against minor girl creates a different class of offences.
The Court took note of Jarnail Singh v. State of Haryana, (2013) 7 SCC 263, wherein it was held that that on the issue of judgment of age of the victim, one needs to refer to Rule 12 of the Juvenile Justice Rules, 2007. Thus, only in absence of birth certificate from the school, or any matriculation or equivalent certificates from the examination board, age determination process shall be carried out by performing a bone ossification test or any other medical age determination test available on the victim, as per the orders of the Board or committee.
The Court said that the question of statutory rape does not arise in facts of present case, as the alleged offence took place much prior to the decision in Independent Thought’s case (supra) which has not been given retrospective effect.
Further, it also took note of Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223, wherein it was clarified that bone ossification test is not conclusive in nature for age determination as it does not reveal exact age of the person, but it leaves margin of two years on either side of age range. Thus, after a lot of deliberation the Supreme Court held that all things being equal, benefit of doubt in age estimation by bone ossification test is to go to the accused.
The Court noted that in the school register of the victim, her date of birth is mentioned as 12-11-2000, and this entry in academic record of the victim will in normal circumstances would have precedence over her medical age determination. However, the admission form has not been filled in by the parents of the victim, but by a stranger, whose credentials are unknown. Thus, the significance of victim’s medical age determination will be considered, as per which, she was a major on the date of the incident.
The Court said that Trial Court has reduced eight months from the medical age determination on ground that it was carried out after eight months of the incident. As per medical determination also victim’s age is found as 17 years and 4 months on the date of incident, but still she would be held as minor. This practice is not permissible under law as the age determination of age is expert medical opinion and there is no authority that period lapsed between date of incident and medical age determination will be reduced.
Thus, the Court said that it is not proved with preponderance of probabilities that victim was minor on the date of incident and as the date of birth recorded in school record of victim is not free from doubt, therefore, benefit of doubt is liable to be given to the accused on this point on peculiar facts and circumstances also.
The Court also noted that the victim left her parental home on her own volition and solemnized marriage with the convict, and after eight months she came back to her home and at that time she was pregnant for more than 15 weeks. She again associated with the accused and delivered a girl child. Presently, she is living with the convict as his wife along with a girl child, thus the convict and victim have settled their life.
The Court held that this is a case of deemed conviction, since the Trial Court did not consider anomalies in age determination of the victim, which is a crucial aspect of the case. Thus, the Court set aside the order of conviction and sentence passed by the Trial Court.
[Vishwanath Ahirwar v. State of U.P., 2023 SCC OnLine All 160, decided on 27-4-2023]
Advocates who appeared in this case :
For the Appellant: Advocate Avijit Saxena;
For the Respondent: Government Advocate.