Case Note & Summary
The appeal was filed before the Bombay High Court against the judgment of the Additional Sessions Judge, Parbhani, convicting the appellant under Sections 366A and 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act. The prosecution case was that on 03.12.2013, the appellant kidnapped a 16-year-old girl, took her to Pune, and committed sexual intercourse with her multiple times under the promise of marriage. The victim’s father lodged a complaint after discovering her missing. The trial court relied on the testimony of the victim, her father, school records, and medical evidence to convict the appellant. In appeal, the appellant argued that the prosecution failed to prove the victim was below 16 years of age, as the ossification test indicated an age of 15 to 16.5 years, and that the school records were not authenticated by the original school’s headmaster. Consequently, he contended that consent was material, and since the victim voluntarily accompanied him, no offence under Section 366A or 376 IPC was made out, nor did the POCSO Act apply. The appellant also sought reduction of sentence citing the victim’s marriage and the consensual nature of the relationship. The court heard arguments from both sides and reserved judgment. The provided text does not include the final decision of the High Court.
Issue of Consideration
Whether the prosecution proved the victim’s age below 16 years for the offence under Section 376 IPC and below 18 years for the POCSO Act, and whether the conviction is sustainable in light of the evidence regarding consent and the voluntariness of the victim’s departure from her home.
Law Points
- Age determination in sexual offences
- proof of age through school records and ossification test
- consent and its relevance when victim is a minor
- burden of proof for age under POCSO Act
- scope of Section 366A IPC
- presumption under Section 29 POCSO Act
- evidentiary value of unchallenged testimony
- principles of crossexamination under Indian Evidence Act
Case Details
2019 LawText (BOM) (06) 29
Criminal Appeal No. 466 of 2016
Mr. Kailas B. Jadhav (Appellant), Mr. P.N. Kutti (APP for State), Mr. Hemant U. Dhage (Respondent No.2)
The State of Maharashtra and Dinkar Baburao Hoge
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Nature of Litigation
Criminal appeal against conviction for kidnapping and sexual offences against a minor.
Remedy Sought
Appellant sought acquittal from the offences under Sections 366A, 376 IPC and Section 6 POCSO Act, and alternatively reduction of sentence.
Filing Reason
The appellant was convicted by the trial court for kidnapping and raping a 16-year-old girl; he claimed the victim was a consenting major and that the prosecution failed to prove her age.
Previous Decisions
The Additional Sessions Judge, Parbhani, convicted the appellant on 15.12.2015 in Special Case (POCSO) No. 14 of 2014.
Issues
Whether the prosecution proved that the victim was below 16 years of age to attract Section 376 IPC.
Whether the prosecution proved that the victim was below 18 years to attract the POCSO Act.
Whether the sexual intercourse was consensual and whether consent was a valid defence given the victim's age.
Whether the offence under Section 366A IPC was made out when the victim allegedly left home voluntarily.
Submissions/Arguments
Appellant argued that the victim was above 16 years based on ossification test and lack of authentic school records, thus consent was material and no offence under Section 376.
The victim voluntarily accompanied the appellant and stayed without complaint, negating the offence under Section 366A.
The prosecution failed to prove age below 18 years, so the POCSO Act and its presumption under Section 29 did not apply.
Alternatively, if conviction is upheld, the sentence should be reduced to the period already undergone, citing the love affair and that the victim had married.
Judgment Excerpts
as per the evidence of Headmaster (PW3) date of birth of the victim girl is 08.07.1997 and the date of incident is 03.12.2013. Thus on the date of incident age of the victim girl was 16 years 4 months 25 days.
ossification was carried by PW9 and Radiological opinion as per Exh.65 is that age of the prosecutrix was 15 to 16.5 years.
If a witness is not crossexamined on a particular portion of her deposition in her Examinationinchief, said statement is required to be accepted as the same is not challenged by the defence.
Procedural History
FIR No. 199/2013 registered on 04.12.2013 at Police Station Manwat under Section 366A IPC. Subsequently Sections 376 IPC and 6 POCSO Act were added. After investigation, charge-sheet was filed and the case was committed to the Sessions Court. Trial conducted; the appellant was convicted on 15.12.2015 by the Additional Sessions Judge, Parbhani. Criminal Appeal No. 466 of 2016 was filed before the Bombay High Court, admitted on 08.08.2016. The appellant's bail application was rejected on 16.09.2016. The appeal was heard on 05.04.2019 and judgment reserved.
Acts & Sections
- Indian Penal Code: Section 366A, Section 376
- Protection of Children from Sexual Offences Act: Section 6, Section 29
- Code of Criminal Procedure, 1973: Section 428, Section 313
- Indian Evidence Act, 1872: Section 138, Section 146
