Case Note & Summary
The judgment arose out of two criminal appeals filed before the High Court of Judicature at Bombay, Bench at Aurangabad. Criminal Appeal No. 482 of 2015 was filed by the original accused, challenging his conviction under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the sentence of ten years rigorous imprisonment and fine of Rs. 35,000. Criminal Appeal No. 181 of 2016 was filed by the victim, seeking enhancement of compensation to Rs. 1,00,000. The accused had been convicted by the Additional Sessions Judge, Hingoli, in Special Child Case No. 1 of 2013 on 29th April 2015. The factual background revealed that the victim, a 16-year-old orphan girl living with her younger sister in Navi Abadi, Jamgavan, was raped by the accused, who was their neighbour. The first incident occurred about eight months before the filing of the FIR on 25th September 2013. The accused entered the victim's house at night, gagged her with a handkerchief, tied her hands with her own Odhani, and committed rape. He threatened to kill both sisters if they disclosed the incident. Because of the threat and lack of adult support, the victim and her sister remained silent. The accused subsequently raped the victim repeatedly over the following months. The matter came to light when the victim's pregnancy became visible, and at the instance of the village Sarpanch, she was taken to the police station where she filed the FIR. The legal issues centered on the sustainability of the conviction, the proof of the victim's age, and the adequacy of compensation. The accused argued that there was an inordinate delay in filing the FIR, that no DNA test was conducted, that the victim's testimony was unreliable, and that her age was not conclusively proved. The prosecution and the victim's counsel countered that the delay was explained by threats and the victim's traumatic situation, that the school record conclusively proved her age, and that the victim's testimony was credible and sufficient for conviction. The Court analyzed the evidence comprehensively. Relying on the Supreme Court's decision in Jarnail Singh v. State of Haryana, (2013) 7 SCC 263, the Court applied Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, and held that the school admission register extract (Exhibit 44) and the victim's statement about her date of birth (10.06.1997) proved that she was a child under the POCSO Act. The Court found that the delay of eight months in filing the FIR was adequately explained by the victim's fear, social isolation, and the accused's continuous threats, and such delay was not fatal. The victim's detailed and consistent testimony was found credible and was corroborated by her sister's evidence and the medical evidence of 20 weeks pregnancy, making the absence of a DNA test irrelevant. The Court also invoked the statutory presumption under Section 29 of the POCSO Act, noting that the accused failed to rebut it. Accordingly, the accused's appeal was dismissed. On the issue of compensation, the Court considered the victim's dire circumstances as an orphan with no family support and the hardships she faced upon leaving the Remand Home after attaining majority. Exercising powers under Section 33(8) of the POCSO Act and Section 357A of the Code of Criminal Procedure, the Court enhanced the compensation to Rs. 1,00,000, payable by the accused within three months, with default recovery as arrears of land revenue. The victim's appeal was allowed.
Headnote
A) Criminal Law - Rape of Minor - Proof of Age - Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12; Protection of Children from Sexual Offences Act, 2012, Sections 2(1)(d) and 4 - The victim's school admission register extract and her testimony established her date of birth as 10.06.1997, showing she was 16 years at the time of the incident. The court applied Rule 12 of the 2007 Rules and held that school record carries higher evidentiary value than an ossification test which was not conducted. Held, age of the victim as a child was proved beyond reasonable doubt. (Paras 12-14) B) Criminal Law - Delay in Filing FIR - Explanation for Delay - Protection of Children from Sexual Offences Act, 2012, Section 19 - The prosecutrix lodged the FIR about eight months after the first incident of rape, citing threats to her life and fear of social ostracism. The court noted that the victim was an orphan living with her minor sister and had no adult support, and that delay in reporting sexual offences, especially by a child victim, does not automatically vitiate the prosecution case if satisfactorily explained. Held, the delay was reasonable and did not affect the credibility of the prosecution case. (Paras 15-16) C) Criminal Law - Evidence - Testimony of Sole Witness - Indian Evidence Act, 1872, Section 134 - The prosecutrix gave detailed and consistent testimony of the sexual assault and subsequent repeated rapes, which was supported by her sister's evidence and the medical evidence of pregnancy. The court held that a conviction can be founded on the uncorroborated testimony of a victim of sexual assault if such testimony is found to be trustworthy and credible; corroboration is not necessary. Held, the victim's evidence was reliable and sufficient to convict the accused. (Paras 17-20) D) Criminal Law - Statutory Presumption - Presumption of Offence - Protection of Children from Sexual Offences Act, 2012, Section 29 - Section 29 of the POCSO Act creates a statutory presumption that the accused committed the offence unless the contrary is proved. The accused failed to lead any evidence to rebut this presumption; his defence of denial was unsupported. Held, the presumption operated against the accused and supported his conviction. (Paras 8, 28) E) Criminal Law - Forensic Evidence - DNA Test Not Mandatory - Indian Evidence Act, 1872 - Non-conducting of DNA test did not weaken the prosecution case when other reliable evidence such as the victim's testimony and medical evidence of pregnancy existed. The court held that DNA test is not a sine qua non for conviction in rape cases, especially when the identity of the accused and the fact of sexual assault are established through credible oral evidence. Held, absence of DNA report was not fatal. (Paras 22-23) F) Victim Compensation - Enhancement of Compensation - Powers of Appellate Court - Protection of Children from Sexual Offences Act, 2012, Section 33(8); Code of Criminal Procedure, 1973, Section 357A - The trial court had directed a fine of Rs. 35,000 with Rs. 25,000 to be paid as compensation and recommended the case to the District Victim Compensation Board. Considering the victim's status as an orphan with no familial support and the need for her rehabilitation, the High Court enhanced the compensation payable by the accused to Rs. 1,00,000, to be paid within three months, failing which the amount would be recovered as arrears of land revenue. Held, compensation was enhanced in the interest of justice and victim's welfare. (Paras 24-29)
Issue of Consideration
Whether the conviction of the accused under Section 4 of the Protection of Children from Sexual Offences Act, 2012 is sustainable; Whether the age of the victim is sufficiently proved; Whether the compensation awarded is adequate and should be enhanced
Final Decision
Criminal Appeal No.482 of 2015 dismissed; Criminal Appeal No.181 of 2016 allowed; Accused to pay compensation of Rs.1,00,000 to victim within three months from the date of judgment, in default recovery as arrears of land revenue; Conviction and sentence under Section 4 of POCSO Act upheld.
Law Points
- Proof of age under Rule 12 of Juvenile Justice Rules
- 2007
- relevant for POCSO Act
- Presumption under Section 29 of POCSO Act
- Conviction under Section 4 of POCSO Act based on proof of age and sexual assault
- Compensation to victim under Section 33(8) of POCSO Act and Section 357A of CrPC
- Delay in FIR not fatal if victim is in traumatic situation
- Testimony of prosecutrix credible even without corroboration
- DNA test not mandatory when other evidence is reliable
- Enhancement of compensation ordered
