Case Note & Summary
The appellant, Yadav Chandoba Dawlekar, was convicted by the Special Judge/Additional Sessions Judge-4, Nanded, in Special Case (POCSO) No.19 of 2015 for offences under Sections 363, 376 of the Indian Penal Code and Section 3 punishable under Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act). He was sentenced to simple imprisonment for five years and fine for Section 363 IPC, rigorous imprisonment for ten years and fine for Section 3/4 POCSO Act, and no separate sentence for Section 376 IPC. The appellant appealed against the conviction. The case arose from an incident on 01/05/2015 when the victim, a girl, left her home with the appellant. The victim's mother lodged a missing complaint, and the victim was recovered from the appellant's house. The victim was examined, and her statement under Section 164 CrPC was recorded. The trial court convicted the appellant. The High Court heard arguments from the appellant's advocate, the State's APP, and the advocate for respondent No.2 (victim's mother). The main issues were whether the victim was a 'child' under POCSO Act and whether the sexual intercourse was consensual. The prosecution relied on the mother's statement (Exhibit-26) and school leaving certificate (Exhibit-27) showing the victim's date of birth as 02/02/1998, making her above 18 on the date of incident. The ossification test (Exhibit-33) estimated age between 17-18 years, but medical evidence cannot determine exact age. The victim's testimony (PW-2) indicated she voluntarily went with the appellant and had sexual intercourse out of love. The court held that the prosecution failed to prove the victim was a child under POCSO, and the sexual intercourse was consensual. The court also noted that the victim was above 16 years, so the offence of kidnapping under Section 363 IPC was not made out. The High Court allowed the appeal, set aside the conviction, and acquitted the appellant of all charges.
Headnote
A) Criminal Law - Age Determination - Proof of Age - Section 2(d) POCSO Act, 2012 - The prosecution must prove beyond reasonable doubt that the victim is below 18 years. In this case, the mother's statement (Exhibit-26) and school leaving certificate (Exhibit-27) showed the victim's date of birth as 02/02/1998, making her above 18 on the date of incident (01/05/2015). The ossification test (Exhibit-33) estimated age between 17-18 years, but medical evidence cannot determine exact age and has a margin of error. Held that the prosecution failed to prove the victim was a child under POCSO (Paras 3-10). B) Criminal Law - Consent - Consensual Sexual Intercourse - Sections 375, 376 IPC - The victim's testimony (PW-2) and her mother's testimony (PW-1) indicated that the victim voluntarily went with the accused and had sexual intercourse. The victim admitted to having a love affair and eloping. There was no evidence of force or inducement. Held that the sexual intercourse was consensual, and the accused cannot be convicted for rape under Section 376 IPC (Paras 11-15). C) Criminal Law - Kidnapping - Consent of Minor - Section 361, 363 IPC - Since the victim was above 16 years (as per her date of birth 02/02/1998, she was 17 years 3 months on the date of incident), and she voluntarily accompanied the accused, the offence of kidnapping under Section 363 IPC is not made out. Held that the accused is entitled to acquittal (Paras 16-18).
Issue of Consideration
Whether the prosecution has proved that the victim was a 'child' under Section 2(d) of the POCSO Act and whether the sexual intercourse was consensual.
Final Decision
The High Court allowed the appeal, set aside the conviction and sentence, and acquitted the appellant of all charges. The appellant was directed to be set at liberty unless required in any other case.
Law Points
- Age of victim must be proved beyond reasonable doubt for POCSO
- Consent of minor is irrelevant
- Medical evidence cannot determine exact age
- Ossification test has margin of error
- Benefit of doubt in age determination
