Case Note & Summary
This was a criminal appeal before the Bombay High Court against conviction recorded by the Special Judge, POCSO Court, Pune in POCSO Special Case No.489 of 2016. The appellant was convicted under Sections 363, 366, 376(2)(i) of the Indian Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012. The prosecution case was that on 08.04.2015, the prosecutrix, then allegedly 14 years old and studying in 9th standard, was taken by the appellant from her paternal aunt's house on a false pretext that her mother had called her. Instead of taking her home, the appellant took her to Dadar, Mumbai, and then to Pandharpur, where he hired a room and allegedly committed forcible sexual intercourse. After two to three days, they returned to Pune via Jejuri, and the appellant dropped her near Indrayani Hotel, Wagholi. She called her brother, and her father lodged an FIR, leading to registration of Crime No.114 of 2015. The appellant pleaded not guilty and claimed trial. The prosecution examined eight witnesses. The trial court convicted and sentenced the appellant, imposing rigorous imprisonment for three years under Section 363 IPC, three years under Section 366 IPC, and ten years under Section 376(2)(i) IPC, with no separate sentence under the POCSO Act, all sentences to run concurrently. The appellant challenged the conviction, contending that the prosecution failed to prove the prosecutrix was a child under Section 2(d) of the POCSO Act and that the evidence showed she accompanied and stayed with him voluntarily. The respondent State argued that the school leaving certificate and evidence of the prosecutrix's brother and a school clerk proved her age as 14, and that consent was immaterial since she was a minor. The High Court examined the school leaving certificate and found that it was procured on 27.07.2016, more than a year after the incident, and that the prosecutrix was admitted to the school on 15.06.2016, after the incident. The school clerk admitted that the school had not obtained a birth certificate at the time of admission, and no person who disclosed or recorded the date of birth was examined. Relying on precedent, the court held that the certificate had no evidentiary value and that the prosecution had failed to prove the prosecutrix was a child. Additionally, the evidence of the prosecutrix's brother indicated she was about 22 years old, and her marriage shortly after the incident further undermined the claim of minority. On the issue of consent, the court noted that the prosecutrix travelled from Pune to Dadar, stayed with the appellant, went to the beach, travelled to Pandharpur, and stayed in a rented room without raising any alarm. Photographs showed her comfortable and happy. The court concluded that she accompanied the appellant voluntarily and that the prosecution had failed to prove lack of consent. Consequently, the court held that the convictions under Section 363 IPC and Section 4 POCSO Act could not be sustained, and the evidence did not establish forcible or deceitful taking or non-consensual intercourse under Sections 366 and 376(2)(i) IPC.
Headnote
A) Criminal Law - Proof of Age for Child Victim under POCSO - School Leaving Certificate Evidentiary Value - Protection of Children from Sexual Offences Act, 2012, Section 2(d); Indian Penal Code, 1860, Section 363 - The prosecution relied on a school leaving certificate to prove the victim was 14 years old. The certificate was procured after the incident, not based on a birth certificate, and neither the person who disclosed the date of birth nor the person who recorded it was examined. The court held the certificate had no evidentiary value and prosecution failed to prove child status, making conviction under Section 363 IPC and Section 4 POCSO unsustainable. Held that age must be proved by reliable evidence beyond reasonable doubt. (Paras 8-11) B) Criminal Law - Consent and Voluntary Association - Deceitful Means and Lack of Consent - Indian Penal Code, 1860, Sections 366, 376(2)(i) - Evidence of the prosecutrix showed she travelled from Pune to Dadar, Mumbai, then Pandharpur, stayed with the appellant without raising any alarm, and voluntarily accompanied him to Jejuri after the alleged incident. Photographs exhibited showed her comfortable and happy. The court inferred voluntary and consensual association, rejecting the allegation of forcible taking and intercourse. Held that prosecution failed to establish lack of consent. (Paras 12-16)
Issue of Consideration
Whether the prosecution proved beyond reasonable doubt that the prosecutrix was a child under Section 2(d) of the POCSO Act, 2012; and whether the appellant compelled the prosecutrix by deceitful means to accompany him and had sexual intercourse without her consent.
Final Decision
The High Court held that the School Leaving Certificate (Exhibit 30) had no evidentiary value because it was procured after the incident and not based on a birth certificate; the prosecution failed to prove the prosecutrix was a child under Section 2(d) of the POCSO Act; consequently convictions under Section 363 IPC and Section 4 POCSO Act could not be sustained. The evidence also indicated that the prosecutrix accompanied and stayed with the appellant voluntarily, raising doubt on lack of consent. The final operative order was not included in the provided text.
Law Points
- To prove guilt under POCSO Act
- prosecution must establish victim was a child under Section 2(d)
- school leaving certificate issued after incident and not based on birth certificate has no evidentiary value
- date of birth in school record must be supported by testimony of person who disclosed or recorded it
- in absence of reliable age proof conviction under Section 363 IPC and Section 4 POCSO cannot sustain
- conduct of prosecutrix travelling and staying voluntarily without raising alarm and photographs showing comfort indicate consensual association
- negating force or deceit
- consent of minor immaterial but age must be proved first.
