Supreme Court: In a challenge against conviction affirmed and sentence imposed by Madras High Court rejecting the appellant’s plea through order dated 14-12-2016 acquitting him for offence under Section 366 of Penal Code, 1860, but convicting under Section 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), S. Ravindra Bhat and Aravind Kumar, JJ. held that school transfer certificate was not equivalent to date of birth certificate as specified under Section 94 of Juvenile Justice Act, 2015 (‘JJ Act’), and found the absence of any ‘penetrative sexual assault’ resulting in acquittal of the appellant.
Background
Th complainant was the prosecutrix’ father who eloped with the appellant and married him, but case of kidnapping and offences under POCSO was registered. Prosecutrix’ statement was recorded under Section 161 and Section 164 of Criminal Procedure Code, 1973 (‘CrPC’). In the said statement, she stated that she knew the accused and both loved each other for almost a year. Their relationship was known to her father and grandmother who objected to their relationship, which once led her to consume rat poison to commit suicide. She also clarified that she voluntarily eloped with the appellant and the said fact was known to her aunt and sister who accompanied her on the date of incident. She was living with the appellant and his relatives as a married couple after solemnizing the marriage and during this, the police came in her search when they came to know about police complaint lodged by her father. She particularly clarified that she was never abducted, nor forcibly married.
After the prosecutrix was traced, the police complaint of missing person was altered and the First Information Report (‘FIR’) included Section 6 and 17 of POCSO Act and other offences under Section 506 of Penal Code, 1860 (‘IPC’) and Section 10 of Child Marriage Prohibition Act, 2006 including appellant, his parents and other relatives as accused. The Trial Court held the appellant and others guilty in the instant matter and the appellant was sentenced under Section 6 of POCSO Act to undergo rigorous imprisonment for life. The High Court modified the judgment regarding conviction of other accused, confirmed the appellant’s conviction but reduced the sentence to 10 years of rigorous imprisonment, also convicted under Section 10 of 2006 Act, acquitted of charge under Section 366 of IPC.
Court’s Analysis on Determination of age and other relevant factors
The Court perused Section 34 of POCSO Act which lays the procedure regarding commission of offence by child and determination of age by the Special Court. In view of the same, the Court also found the relevancy of Section 94 of Juvenile Justice Act, 2015 (‘JJ Act’) regarding presumption and determination of age.
Conjoint reading of the two provisions led the Court express that “wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act.”
As suggested by the Court, Section 94(2)(iii) indicates preference to date of birth certificate from school or matriculation or equivalent certificate issued by the Examination Board. In the absence of the same, birth certificate issued by Corporation/Municipal Authority/Panchayat and lastly in the absence of such documents, age is determined through ossification test or any other medical tests. The Court highlighted that in the instant case, only a school transfer certificate was considered which showed the prosecutrix’ date of birth as 11-07-1997, and not the date of birth certificate or equivalent certificate, and the same was not produced by the prosecution but the Court summoned witness.
The Court explained that the burden always remains with the prosecution to establish what it alleges, and the prosecution could not fall back upon a document never relied upon to hold that the prosecutrix was below 18 years when the offence was committed.
The Court referred to Rishipal Singh Solanki v. State of U.P., (2022) 8 SCC 602 wherein, the Court outlined the procedure to be followed in cases requiring determination of age. The same sequence of preference of documents was also confirmed in Sanjeev Kumar Gupta v. State of U.P., (2019) 12 SCC 370 and Abuzar Hossain v. State of W.B., (2012) 10 SCC 514.
The Court examined the evidence on record in the absence of any birth certificate and commented that “none of the documents produced during the trial answered the description of ‘the date of birth certificate from the school’ or ‘the matriculation or equivalent certificate’ from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat” and expressed that the prosecution should have proved the prosecutrix’ age through acceptable medical tests, and the X-Ray reports were produced whose evidence stated her age to be between 18 to 20 years, while in her cross-examination she admitted to be taken as a 19-year-old. The same was rejected by the High Court while precise date of birth was available, and the Court found such finding incorrect and erroneous.
The Court regarded the result of ossification or bone test as the most authentic evidence for being corroborated by the examining doctor as well.
The Court further perused Section 6 of POCSO Act and said that the offence depends on proof that ‘sexual assault’ took place, defined under Section 7, ‘penetrative sexual assault’ under Section 3 and ‘aggravated penetrative sexual assault’ under Section 5, ‘assault’ under Section 351 of IPC and ‘criminal force’ under Section 350 of IPC. The prosecutrix had clarified in her statement that she was in love with the appellant, and the event of consuming poison as well, because she was adamant to live with the appellant. There was medical evidence against sexual assault which led the Court to opine that the prosecution failed to establish any penetrative sexual assault due to coercion or compulsion by appellant.
The Court opined that the prosecutrix’ statement under Section 164 of CrPC was a truthful narration indicating absence of penetrative sexual assault due to which, provisions of POCSO Act were not applicable.
The Court also set aside the charges under Section 6 of POCSO Act and Section 10 of 2006 Act and the conviction and sentence imposed by the lower courts. The Court found the appellant not guilty of the offences he was charged with and thereby acquitted him.
[P. Yuvaprakash v. State, 2023 SCC OnLine SC 846, decided on 18-07-2023]
Judgment by: Justice S. Ravindra Bhat
Advocates who appeared in this case :
For Appellant: Advocate on Record E. R. Sumathy, Advocate S. Anand, Advocate Shankar Ganesh R.;
For Respondent: Senior Advocate and Additional Advocate General V. Krishnamurthy, Advocate on Record Joseph Aristotle S., Advocate Richa Vishwakarma, Advocate Vaidehi Rastogi, Advocate Shubhi Bhardwaj.
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