Brief Facts
- A complaint was lodged by the father of the minor girl (‘M’) alleging that his daughter was kidnapped by the Appellant and his associates when ‘M’ was returning back home after a doctor’s appointment with her elder sisters. The incident was narrated to the complainant by his elder daughter who was present with the ‘M’ and thereafter the complainant tried finding his daughter but when his attempts failed, he lodged the FIR. It was also alleged that the Appellant had sexual intercourse with ‘M’ various times and upon coming to know that the police was searching for ‘M’ they abandoned her whereafter she went back to her home.
- However, when the statement of ‘M’ was recorded under Section 161 and Section 164 of Criminal Procedure Code, 1973 (‘CrPC), she stated that she knew the accused-appellant and both loved each other for almost a year. Their relationship was known to her father, the Complainant, 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 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.
Issues
- What should be the procedure for determining the age of the victim under the POCSO Act in light of section 34 of the POCSO Act?
- Whether proof of penetrative sexual assault is mandatory for convicting an accused for offence under section 6 of the POCSO Act?
- What is the relevancy of the statement of the victim recorded by the Magistrate under section 164 of the CrPC?
- Can the School Transfer certificate be relied to prove the age of the victim?
Held
- The Apex Court allowed the appeal and acquitted the accused as the age of the victim was not proved in accordance with the procedure under section 94 of the Juvenile Justice Act. There is no evidence of penetrative sexual assault or external injury on the body of the victim and the theory of consent was evident from the statement of victim under section 164 CrPC, which could not be countered by the Prosecution.
- It is evident from conjoint reading of the Section 34 & 34(1) of the POCSO Act, 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.
- Section 94 (2)(iii)of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court.
- The court referenced relevant legal precedents, such as Rishipal Singh Solanki v. State of U.P [2021 (12) SCR 502], Sanjeev Kumar Gupta v. State of U.P. [2019 (9) SCR 735], and Abuzar Hossain v. State of W.B. [2012 (9) SCR 224], which provide guidance on the procedure for determining age in cases involving sexual offenses against children. These precedents underscored the importance of following established procedures and relying on credible evidence.
- In her statement under Section 164 of the Cr. PC, the victim had deposed that she was in love with the appellant, had consumed poison, and had even been hospitalized because she was adamant to live with the appellant. No doubt, she resiled from her statement. Yet, the medical evidence (deposition of PW-11, Dr. Kavitha) indicated that the victim had a ruptured hymen; there was no external injury at her private parts, and that according to her “48 hours before medical examination there was no evidence to show that she had sexual assault”.
- From these facts, and the definitions under POCSO Act, especially the definitions of “sexual assault”, Sections 5and 6, read with Sections 350 and 351 IPC, it can be seen that it is only when there is penetrative sexual assault, which implies sexual contact with or without consent of the minor victim, that the offences under the POCSO Act are committed.
- Having regard to these overall factors, the court is of the opinion that M’s statement under Section 164 of the CrPC contained a truthful narration of the events. This, in other words, meant that there was no penetrative sexual assault on her. Therefore, the provisions of the POCSO Act will not be applicable in this case. The impugned judgment set aside the charge under Section 366 IPC against the appellant. The charges against him, under Section 6 of the POCSO Act as well as Section 10 of the Prohibition of Child Marriage Act, cannot be sustained; the findings of the courts below, i.e., conviction and sentences imposed are, therefore, set aside.
Relevant Paragraphs
13, 14, 19, 21, 22