Case Note & Summary
By the present criminal appeal, the appellant, who was convicted by the Special Judge and Additional Sessions Judge, Kelapur in Special Case No.28/2015, challenged his conviction for offences punishable under Sections 376, 376(2)(f)(i) and (n), 354-A, 323 and 506 of the Indian Penal Code, 1860 (IPC) and Sections 4, 6, 8, 10 and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The Special Court had sentenced the appellant to life imprisonment for the remainder of his natural life and fine. The prosecution case was that the appellant, who was the father of the victim, had raped his minor daughter, aged about 14 years, on 21.8.2015 and for a period of 7 to 8 months prior to that date, taking advantage of the fact that his wife was residing separately due to strained relations. The appellant had pleaded not guilty and raised several defences in appeal, including false implication due to enmity with his wife, delay in lodging the FIR, absence of medical evidence showing injuries on the victim's private parts, dispute about the victim's age, non-examination of the victim's brother, and non-availability of the presumption under Section 29 of the POCSO Act. He also contended that the sentence was harsh and that provisions not in force on the date of commission were applied, violating Article 20 of the Constitution of India. The High Court examined the evidence on record. On the question of age, the Court relied upon the testimony of PW7, the Head Master of the school where the victim studied, who produced a transfer certificate showing the victim's date of birth as 22.3.2001, which made her around 14 years old at the time of the incident. There was no serious cross-examination on this aspect. Consequently, the Court held that the age of the victim was established as 14 years, making the issue of consent irrelevant and attracting the provisions of the POCSO Act. The Court further observed that in matters of this nature, the testimony of the victim is crucial; if the testimony inspires confidence, conviction can be based on it even without detailed corroboration. The victim, examined as PW5, gave a clear and cogent account of repeated sexual assault by her father over 7 to 8 months, including the last incident on 21.8.2015. She stated that the appellant used to close the doors, remove her clothes, and have sexual intercourse with her, beating her and threatening to kill her by administering poison if she disclosed the acts. Her maternal grandmother, PW2, also deposed that she and the victim's mother found the victim crying on 22.8.2015, and the victim narrated the rape and threats. The Court found the omissions and improvements pointed out by the defence in these witnesses' testimonies to be trivial and not sufficient to discard their evidence. The Court rejected the defence arguments regarding delay, absence of medical evidence, non-examination of the brother, and adverse inference, noting that the prosecution's evidence was credible and the presumption under Section 29 of the POCSO Act could be applied once foundational facts were proved. The Court also observed that ocular evidence, if credible, would prevail over medical evidence in case of conflict. Accordingly, the High Court dismissed the appeal and upheld the conviction and sentences imposed by the Special Court. The Court found no merit in the appellant's contentions and confirmed that the prosecution had proved the charges beyond reasonable doubt.
Headnote
A) Criminal Law - Rape of Minor Daughter - Consent Irrelevant When Victim Under 16 - Indian Penal Code, 1860, Sections 375, 376; Protection of Children from Sexual Offences Act, 2012, Section 3 - The prosecution established through the school transfer certificate and Head Master's evidence that the victim's date of birth was 22.3.2001, making her around 14 years old at the time of the offense. The court held that once the victim is under 16 years of age, consent is legally irrelevant and the provisions of POCSO Act apply. The appellant did not seriously challenge the age, and the conviction for rape was justified (Paras 12-15). B) Evidence - Credibility of Victim Testimony - Conviction Can Be Based on Sole Testimony if Inspires Confidence - Indian Evidence Act, 1872, Section 134 - The minor victim's testimony was recorded after confirming her understanding of oath, and she gave a clear and cogent account of repeated sexual assault by her father over 7 to 8 months. The court held that the testimony of the victim, if found reliable, is sufficient to sustain conviction without need for detailed corroboration; minor discrepancies pointed out by the defence were trivial and did not affect credibility (Paras 12, 18-21). C) Evidence - Proof of Age - School Transfer Certificate and Head Master's Evidence - Protection of Children from Sexual Offences Act, 2012, Section 2(1)(d) - The Head Master of Zilla Parishad High School produced a school transfer certificate indicating the victim's date of birth as 22.3.2001. The court held that this documentary evidence, coupled with lack of serious cross-examination, sufficiently established the victim's age as 14 years, making consent irrelevant and POCSO applicable (Paras 13-14).
Issue of Consideration
Whether the conviction under Sections 376, 376(2)(f)(i), 376(2)(n), 354-A, 323, 506 IPC and Sections 4,6,8,10,12 POCSO Act was sustainable; whether the victim's age was proved; whether the victim's testimony was credible enough; whether the presumption under Section 29 POCSO Act applied; whether the sentence was disproportionate and violated Article 20.
Final Decision
The Bombay High Court dismissed the appeal and upheld the appellant's conviction and sentences imposed by the Special Judge under the Indian Penal Code and POCSO Act.
Law Points
- Testimony of victim
- if credible
- sufficient for conviction
- consent irrelevant when victim under 16
- school transfer certificate valid proof of age
- age established as 14
- minor discrepancies not fatal
- presumption under Section 29 POCSO available after foundational facts
- ocular evidence preferred over medical evidence in case of conflict
- provisions under IPC and POCSO applied correctly
- no adverse inference for non-examination of brother due to evidence.
