Orissa High Court: In a jail criminal appeal against the Judgment and Order of the Additional Sessions Judge -cum- Special Judge, the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) wherein the convict/appellant was found guilty under Section 376(3) of the Penal Code, 1860 (‘IPC’) and Section 6 of the POCSO Act, the Single Judge Bench of S.K. Sahoo, J., the Court partly allowed the convict’s appeal and acquitted the convict of the offence under Section 376(3) of the IPC and Section 6 of the POCSO Act, instead found the convict guilty under Section 376(1) of the IPC and sentenced him to undergo rigorous imprisonment for ten years.
Factual Matrix
In the matter at hand, the father (‘informant’) of the minor victim girl lodged a first information report (‘FIR’) on 28-12-2018 before the Inspector in-charge stating therein that his daughter was fourteen years of age, and she was studying in Class-IX while staying in the house of her grandfather. It was stated in the FIR that on 27-12-2018, the convict who is a co-villager of the informant, approached the minor victim in the house of her maternal grandfather at about 10.00 a.m. and told her that her parents have sent him to take her to them to their village. The convict took the minor victim inside the jungle road and committed rape on her. The Special Judge, POSCO, vide the impugned decision held that the prosecution was successful in proving that the minor victim was less than sixteen years of age at the time of offence and it also held that the prosecution was able to prove its case beyond all reasonable doubts against the convict for commission of offence under Section 376(3) of the IPC and Section 6 of the POCSO Act. However, the trial Court acquitted the accused for commission of offence under Section 376(2)(n) of the IPC.
Court’s Decision
Regarding the age of the minor victim, the Court examined her deposition wherein it was stated that she was fifteen years of age and was a student of Class-IX on the date of recording of her deposition. The Court said that however the evidence of the minor victim was totally silent about her date of birth. The Court also said that the informant was also unable to state the approximate age of the minor victim, at the time of occurrence and the exact date of birth of the minor victim.
The Court noted that the headmaster in-charge of the minor victim’s school perused the school admission register in which the date of birth was recorded as 16-11-2003. However, the Court also noted that it was stated by the headmaster in-charge that the minor victim was admitted in the school only in Class-IX on production of the school leaving certificate (‘SLC’) obtained from her previous school, and the date of birth of the minor victim was mentioned in the school admission register on basis of the same. Further, the Court noted that the Investigating Officer (‘IO’) did not visit the previous school where the minor victim was studying in order to verify the date of birth mentioned in the school admission register.
Regarding the evidentiary value of SLC for proving the date of birth, the Court said that the SLC has no independent evidentiary value, which can be solely relied upon to prove someone’s date of birth. Further, the Court added that it is even more true when a student moves out of her original school, takes admission in another school and seeks to record her date of birth in the admission register of the new school on the sole basis of the SLC obtained from the previous school. Thus, the Court said that any tampering with the original date of birth, as recorded in the previous school register, cannot be ruled out in SLC. Placing its reliance on Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604, wherein the evidentiary value of school admission registers for proving date of birth was discussed, the Court said that it was quite unsafe to rely on the admission register of the subsequent school or the SLC to determine the accurate age of the minor victim.
The Court also added that since the oral evidence relating to the date of birth of the minor victim was lacking and relevant documentary evidence was seized by the IO nor proved during the trial, thus, it cannot be conclusively held that the prosecution had succeeded in proving that the minor victim was under sixteen years of age as on the date of occurrence only on the basis of an entry made in a school admission register where the victim took admission only in Class-IX.
Regarding the offence of rape, the Court relied on the testimony of the minor victim which was corroborated with the evidence of two men who reached to the spot when they heard the minor victim shouting and found the minor victim and the convict in nude condition. The Court also examined the statement of the Medical Officer, who had found two scratch marks on the right breast on lateral side and stain, dried semen present on her under garment, the labia majora was swollen and the hymen was ruptured, on medical examination of the minor victim.
The Court concluded that prosecution had successfully proved that on 27-12-2018, the convict committed rape on the minor victim in Jhanjimunda forest. However, the Court added that since the prosecution had failed to prove that the minor victim was under sixteen years of age at the time of occurrence, the ingredients of the offence under Section 376(3) of the IPC were not satisfied which require that the woman must be under sixteen years of age. Thus, the Court said that in absence of concrete proof of the age of the minor victim and that she was a child as per the definition under section 2(d) of the POCSO Act, the charge under section 6 of the POCSO Act was not proved.
Therefore, the Court acquitted the convict of the offence under Section 376(3) of the IPC and Section 6 of the POCSO Act, but instead he was found guilty under Section 376(1) of the IPC and sentenced him to undergo rigorous imprisonment for ten years. Further, the Court directed to disburse to the minor victim the amount of compensation within a period of two months from the date of receipt of the judgment.
[Duryodhan Majhi v. State of Odisha, 2023 SCC OnLine Ori 5188, Decided on 12-07-2023]
Advocates who appeared in this case :
For Appellant:- Amicus Curiae Minati Behera;
For Respondent:- Additional Standing Counsel Priyabrata Tripathy.
Buy Protection of Children from Sexual Offences Act, 2012 HERE
Buy Penal Code, 1860 HERE
