Case Note & Summary
Background: The present appeal arose from the judgment of the Additional Sessions Judge, Sangli, in Special Case (POCSO) No.61/2016, whereby the appellant was convicted for offences under Sections 376 and 376(2)(n) of the Indian Penal Code, 1860, and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). The trial court had acquitted the appellant under Sections 363 and 366 IPC and under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant challenged the conviction and sentence of ten years rigorous imprisonment before the Bombay High Court. Facts: The prosecution alleged that on 16 June 2016, the appellant committed rape on the minor daughter of the first informant, who belonged to a Scheduled Caste. It was further alleged that the appellant kidnapped the victim under a false promise of marriage and subsequently had repeated sexual intercourse with her until September 2016. The First Information Report was registered at Kawathe-Mahankal Police Station, and after investigation, a charge‑sheet was filed. The trial court acquitted the appellant of the kidnapping and atrocity charges, but convicted him of rape and aggravated penetrative sexual assault under IPC and POCSO based on the victim’s testimony and the medical age determination certificate. Legal Issues: The central question before the High Court was whether the prosecution had proved that the victim was a ‘child’ within the meaning of Section 2(d) of the POCSO Act, 2012. This issue was critical because the entire POCSO conviction rested on the victim being below 18 years of age. The Court also examined the mandatory age determination procedure prescribed under Section 34 of the POCSO Act and Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Arguments: The appellant, represented by Ms. Saili Dhuru, contended that the prosecution had failed to produce the essential age‑related documents and that the Special Court erred in relying solely on the ossification test report. The State, through the Additional Public Prosecutor, supported the trial court’s findings. Court’s Analysis: The High Court meticulously examined the statutory scheme. It noted that Section 34 of the POCSO Act mandates that any question regarding the age of a victim be determined after the Special Court satisfies itself about the age. Borrowing the analogous procedure from the Juvenile Justice framework, as affirmed by the Supreme Court in Jarnail Singh v. State of Haryana, (2013) 7 SCC 163, the Court held that the age must be established by following a clear sequential hierarchy: first, the school matriculation or equivalent certificate; if not available, the birth certificate from a municipal authority or panchayat; and only in the absence of both can an ossification test be resorted to. The prosecution had not produced any of these primary documents, even though the victim was a Class 10 student and such records would ordinarily exist. No reasons were offered for their non‑production. Consequently, the Special Court’s reliance on the medical age determination certificate (Exhibit‑49) was impermissible. The High Court further observed, relying on Ram Vijay Singh v. State of Uttar Pradesh, (2021) Cri.L.J. 2805, that radiological age assessment is not conclusive proof and is subject to a margin of error. Therefore, the prosecution failed to discharge its burden of proving that the victim was a child under Section 2(d) POCSO. Decision: The judgment excerpt closes while the Court was still analyzing the impact on the IPC convictions. However, based on the reasoning, the Court clearly indicated that the POCSO conviction could not be sustained in the absence of legally admissible proof of age. The excerpt does not contain the final operative order disposing of the appeal in its entirety, but the legal finding was that the prosecution had not proved the victim’s minority as required by law, and accordingly, the conviction under Section 6 of the POCSO Act was liable to be set aside.
Headnote
A) Criminal Law - Protection of Children from Sexual Offences - Age Determination - Section 34, POCSO Act, 2012; Section 94, Juvenile Justice (Care and Protection of Children) Act, 2015; Rule 12(3), Juvenile Justice (Care and Protection of Children) Rules, 2007 - For proving that a victim is a child under POCSO, the prosecution must first produce the school or matriculation certificate; if unavailable, municipal birth certificate; and only in absence of both can ossification test be conducted. Medical age certificate is not conclusive. Held that non-production of primary documents rendered the prosecution's case on age unsustainable, warranting setting aside of conviction under Section 6 POCSO (Paras 9-15).
Issue of Consideration
Whether the prosecution proved that the victim was a child under Section 2(d) of the POCSO Act and whether the Special Court followed the mandatory procedure for age determination under Section 34 POCSO and Section 94 of the Juvenile Justice Act, 2015
Law Points
- Determination of age of victim under POCSO must follow sequential procedure under Section 94 JJ Act and Rule 12(3) JJ Rules
- school certificate is primary evidence
- medical age certificate only a guiding factor and not conclusive
- onus on prosecution to prove minority
- failure to produce primary documents vitiates conviction under POCSO
