Case Note & Summary
The appellant, Anil S/o Bhayrappa Khairav, was convicted by the Additional Sessions Judge, FTSC-I (POCSO), Vijayapura, in Special Case (POCSO) No.15/2017 for offences under Sections 366A, 344, 376(2)(n) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The case arose from a complaint lodged on 1 October 2016 by the victim's father (respondent No.2) alleging that the accused had stalked his daughter and on 30 September 2016, lured her away while she was attending nature calls, and thereafter committed forcible sexual intercourse. The victim was traced on 12 October 2016 and the accused arrested on 13 October 2016. The trial court convicted the accused based on the testimony of the victim (PW-4), her parents, and medical evidence. The accused appealed, challenging the conviction primarily on the ground that the prosecution failed to prove the victim's age as below 18 years, which is essential for an offence under the POCSO Act. The High Court analyzed the evidence and found that the victim's father (PW-2) did not mention her date of birth in the complaint or his testimony, and the victim herself did not state her age in her Section 164 CrPC statement or court testimony. The school certificate (Ex.P-14) produced to prove age was from Urdu High School, Honvad, but the victim was studying at Basavanthraya College, and the headmaster (PW-10) admitted that no written requisition was given and no transfer certificate was produced. The medical evidence (PW-8 and PW-9) indicated no signs of intercourse. The High Court held that the prosecution failed to prove the victim's minority beyond reasonable doubt, and therefore the presumption under Section 29 of the POCSO Act did not arise. The inconsistencies in the evidence and the lack of independent witnesses further weakened the prosecution's case. Consequently, the High Court allowed the appeal, set aside the conviction and sentence, and acquitted the accused of all charges.
Headnote
A) Criminal Law - Age of Victim - Proof of Minority - Protection of Children from Sexual Offences Act, 2012, Section 2(1)(d) - The prosecution must prove the age of the victim beyond reasonable doubt to sustain a conviction under the POCSO Act. In this case, the evidence regarding the victim's date of birth was inconsistent and unreliable, as the school certificate was from a school where the victim had not studied, and the father and victim did not mention the date of birth in their statements. Held that the age was not proved, entitling the accused to acquittal (Paras 18-22). B) Criminal Law - Presumption under POCSO Act - Rebuttal - Section 29, Protection of Children from Sexual Offences Act, 2012 - The presumption under Section 29 of the POCSO Act arises only if the foundational fact of the victim being a child is proved. Since the age was not established, the presumption did not apply, and the accused was entitled to benefit of doubt (Para 22). C) Criminal Law - Inconsistent Evidence - Acquittal - Indian Penal Code, 1860, Sections 366A, 344, 376(2)(n) - The medical evidence showed no signs of intercourse, and the victim's statement under Section 164 CrPC stated that no offence was committed. The prosecution's witnesses were interested and contradictory. Held that the conviction was unsustainable and set aside (Paras 23-25).
Issue of Consideration
Whether the prosecution proved beyond reasonable doubt that the victim was a child (below 18 years) under the POCSO Act, and whether the conviction was sustainable.
Final Decision
Appeal allowed. The judgment of conviction and order of sentence dated 17.04.2021 in Special Case (POCSO) No.15/2017 passed by the Addl. Sessions Judge, FTSC-I (POCSO), Vijayapura, is set aside. The appellant/accused is acquitted of all charges. His bail bonds stand cancelled.
Law Points
- Age of victim must be proved beyond reasonable doubt in POCSO cases
- Benefit of doubt when age not established
- Presumption under Section 29 POCSO Act rebuttable
- Inconsistencies in evidence lead to acquittal
