Case Note & Summary
The appellant, Santosh Gore, was convicted by the Children's Court for the State of Goa in Special Case No.36/2017 for offences under Section 376(2)(i) and (n) of the Indian Penal Code (IPC), Section 8(2) of the Goa Children's Act, 2003, and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and sentenced to 10 years rigorous imprisonment and a fine of Rs.2,00,000. The prosecution alleged that the appellant committed rape and aggravated penetrative sexual assault on a 13-year-old girl in his rented kitchen premises about 3-4 months before 31 March 2017. The appellant challenged the conviction on the ground that the victim's age was not proved beyond reasonable doubt. The High Court examined the evidence, particularly the birth certificate (Exhibit C-51) produced by PW-5, which contained overwriting and insertion without any initials, making it unreliable. No ossification test or medical evidence regarding age was conducted. The court held that the prosecution failed to establish the victim's minority, which was essential for the offences under the Goa Children's Act and POCSO Act, and also for the aggravated offence under Section 376(2)(i) IPC (rape of a minor). Consequently, the conviction was set aside, and the appellant was acquitted of all charges. The court did not examine the merits of the sexual assault allegations as the age issue was dispositive.
Headnote
A) Criminal Law - Age of Victim - Proof of Minority - Sections 375, 376(2)(i),(n) IPC, Section 2(y)(i) r/w 8(2) Goa Children's Act, 2003, Section 5(l) r/w 6 POCSO Act, 2012 - The prosecution relied on a birth certificate (Exhibit C-51) which contained overwriting/insertion without initials, making it doubtful. No ossification test or other reliable evidence was produced to establish the victim's age. Held that the age of the victim was not proved beyond reasonable doubt, and therefore the conviction under the special enactments and the IPC for rape of a minor cannot be sustained. (Paras 5-10)
B) Criminal Procedure - Jurisdiction of Children's Court - Age Determination - Section 313 Cr.P.C. - The trial before the Children's Court was based on the alleged minority of the victim. Since the age was not proved, the trial itself was rendered vulnerable. The accused was acquitted of all charges. (Paras 5-10)
Issue of Consideration
Whether the prosecution has established beyond reasonable doubt that the victim was a minor on the date of the alleged incident, and consequently, whether the conviction under the Goa Children's Act and POCSO Act is sustainable.
Final Decision
Appeal allowed. Impugned Judgment and Order dated 6 September 2018 set aside. Appellant acquitted of all charges. Bail bonds cancelled. Fine, if paid, to be refunded.
Law Points
- Age of victim must be proved beyond reasonable doubt
- Birth certificate with overwriting not reliable
- Ossification test not mandatory but helpful
- Children's Court jurisdiction depends on age
- Acquittal if age not established
Case Details
2020 LawText (BOM) (11) 47
Criminal Appeal No.20/2019 with LD-VC-CRI-70-2020
Vibhav A. Amonkar for Appellant, Sagar Dhargalkar (Additional Public Prosecutor) for Respondents
State through P.P., High Court of Bombay at Panaji, Goa and The Police Inspector, Curchorem Police Station
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Nature of Litigation
Criminal appeal against conviction for rape and sexual assault of a minor.
Remedy Sought
Appellant sought acquittal by challenging the conviction and sentence.
Filing Reason
Appellant was convicted by Children's Court for offences under IPC, Goa Children's Act, and POCSO Act; he appealed on grounds that victim's age was not proved.
Previous Decisions
Children's Court for the State of Goa convicted the appellant in Special Case No.36/2017 on 6 September 2018.
Issues
Whether the prosecution proved beyond reasonable doubt that the victim was a minor on the date of the incident.
Whether the conviction under the Goa Children's Act and POCSO Act is sustainable without clear proof of age.
Submissions/Arguments
Appellant argued that the birth certificate (Exhibit C-51) had overwriting/insertion without initials, making it fabricated and doubtful; no ossification test or medical evidence was conducted; thus age not proved.
Respondent/State argued in support of the conviction, but the judgment does not detail their submissions.
Ratio Decidendi
The age of the victim is a crucial element for offences under the Goa Children's Act and POCSO Act, and for the aggravated offence under Section 376(2)(i) IPC. The prosecution must prove minority beyond reasonable doubt. A birth certificate with overwriting and without initials is unreliable. In the absence of clear documentary or medical evidence, the age cannot be considered proved, and the conviction must be set aside.
Judgment Excerpts
Mr. Amonkar, the learned Counsel for the Accused, at the outset, submitted that there was no legal evidence on record to establish that the victim girl was a minor on the dates of the alleged incidents.
He pointed out to Exhibit C-51 produced by PW.5 to submit that there was overwriting/insertion, which was not even backed by any initials of any party.
In absence of any documentary evidence, it cannot be said that the Prosecution has established the age of the victim girl.
Procedural History
The appellant was charged and tried before the Children's Court for the State of Goa in Special Case No.36/2017. The prosecution examined 5 witnesses. The accused denied the charge and did not lead defense evidence. The Children's Court convicted and sentenced the appellant on 6 September 2018. The appellant filed Criminal Appeal No.20/2019 before the High Court of Bombay at Goa, which was heard and decided on 5 November 2020.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 375, 376(2)(i), 376(2)(n)
- Goa Children's Act, 2003: 2(y)(i), 8(2)
- Protection of Children from Sexual Offences Act, 2012 (POCSO Act): 5(l), 6
- Code of Criminal Procedure, 1973 (Cr.P.C.): 313
