In The Absence Of Evidence To Prove That Victim Was Below 18 Years Of Age, POCSO Act Cannot Be Invoked: Bombay HC
While deciding a case of conviction under the Protection of Children from Sexual Offences Act, 2012 (POCSO) on the ground of the age of the victim, the Bombay High Court recently opined that in the absence of evidence, as regards the material on which the date of birth was recorded in the School Register and the School Leaving Certificate, the entry regarding the age of the victim as recorded in the School Register and School Leaving Certificate has no probative value.
Therefore, finding that prosecution has failed to prove beyond reasonable doubt that the victim was below 18 years of age and evidences on record has indicated of consensual physical relationship between the Appellant and the victim, the Single Judge Bench of Justice Anuja Prabhudessai observed that “in absence of evidence to prove that the victim was below 18 years of age, the provisions of the POCSO Act cannot be invoked and consensual relationship would not constitute rape within the meaning of Section 375 of the IPC”.
Advocate Jagdish Kumar Sanjeev Hegde appeared for the Appellant, whereas, APP N.B. Patil appeared for the Respondent.
Going by the background of the case, crime against Appellant was registered pursuant to filing of an FIR by the victim, who at the relevant time was a 10th standard student. The victim alleged that the Appellant had sexual relationship with her under the pretext of marriage, which later resulted in her pregnancy. Pursuant to same, Appellant was registered for offences punishable under Sections 4 and 6 of the POCSO Act, Section 376 (2) (i), (j) and (k) of the IPC and Section 3(1)(xii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. During trial, the Appellant claimed that he was arrested without disclosing any cause, and also asserted that he is ready to marry the victim and take care of the child.
The Special Judge held that the Appellant had sexual relationship with the victim, who was below 18 years of age and a child within the meaning of Section 2(d) of the POCSO Act. Since as per the DNA report the Appellant was proved to be the biological father of the child, the Special Judge held that the Appellant had subjected the victim to penetrative sexual assault and rape and hence held him guilty of offences punishable under Sections 4 and 6 of the POCSO Act and Section 376(2)(i), (j) and (k) of the IPC and sentenced him. Hence, present appeal.
Stating that ‘Child’ within the meaning of Section 2(d) of the POCSO Act means any person below the age of 18 years, the High Court after considering the provisions and submissions, opined that in order to attract the provisions of the POCSO Act, the onus is on the prosecution to prove that the victim was a ‘child’ within the meaning of section 2(d) of the POCSO Act.
From a perusal of section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, the High Court elucidated that when there is doubt about the age of the person, the age must be determined first based on date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination board and if no such material is available then on the basis of birth certificate given by a Corporation or a Municipal Authority or Panchayat and in the absence of such evidence based on ossification test or any other medical age determination test.
However, “Section 94 does not contain provision regarding benefit of margin of error to be given to the child or juvenile as provided in Rule 12(3)(b) of 2007 Rules, which provided for benefit to the child or juvenile by considering his/her age on lower side within the margin of one year”, added the Court.
Noticing that the age of the victim is sought to be proved based on the entry of the birth date in the School Register, the Bench took support from the decision of Apex Court in case of Satpal Singh Vs. State of Haryana [(2010) 8 SCC 714], to observe that an entry of the date of birth, as recorded in the School Register, is relevant and admissible in evidence under section 35 of the Evidence Act.
However, the Bench clarified that such entry would be of no evidentiary value in the absence of the material based on which the age was recorded.
Going further, the High Court found that the Head Master who had produced the School Register was not associated with the school on the date the said entry was effected, and there is absolutely no evidence to prove as to who had given the date of birth of the victim at the time of her initial admission in school.
While discarding the dental examination report, the Bench clarified that the mere fact that wisdom tooth has not erupted is not of great importance in assessing the age.
Highlighting that the Ossification test or another medical test though is a guiding factor for determining the age, it is not conclusive or incontrovertible and leaves a margin of error of two years on either side, the High Court elucidated that the benefit of doubt regarding the age of the victim always goes in favour of the accused.
Accordingly, the High Court acquitted the Appellant.
Cause Title: Maherban Hasan Babu Khan v. State of Maharashtra and Anr.