1. The sole appellant is aggrieved by the conviction affirmed and the sentence imposed by the Madras High Court, rejecting his plea1 . He is acquitted of committing offense under Section 366 of the Indian Penal Code (hereafter “IPC”), but convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereafter “POCSO Act”).
xxx
SOME FACTS
VICTIM RESILED FROM HER S.164 Cr.P.C STATEMENT
6. Ms. E.R. Sumathy, learned counsel submitted that the findings of the courts below are unsustainable. Firstly, she relied on the circumstance that the victim M in her statement under Section 164 Cr. PC, clearly indicated that she left with the appellant of her own accord and that her sister and aunt knew these facts. It was pointed out that the same statement further acknowledged that M and the appellant had known and loved each other for a year. In these circumstances, when she eloped with the appellant, the fact that she did not support her previous statement to the Magistrate and resiled from it, should have been an important aspect that cast serious doubts about the prosecution story.
9. The prosecution, however, did not provide any evidence to establish that the victim’s age was under 18. It was argued that, given the totality of these circumstances and that the victim had changed her version and deposed contrary to what she stated in her statement under Section 164 of Cr. PC, the appellant could not have been convicted for the offences he was charged with. It is lastly argued that the High Court acquitted the appellant of the charge under Section 366 IPC which gives a complete lie to the prosecution story about the kidnapping or forceful abduction of the victim.
10. Mr. V. Krishnamurthy, Learned Additional Advocate General appearing for the State, supported the concurrent conviction and sentence recorded by the Courts below; he submitted that even though the victim and the appellant knew each other, and even if it was accepted that they had feelings for each other, the fact remains that the victim was below the statutory age, and consent is irrelevant. He submitted that the findings of the courts below with respect to the age of the victim were supported or corroborated only by the testimony of DW-2, the Head Mistress of the school where M had studied. She had deposed that according to the school records, M’s date of birth is 11.07.1997.
ANALYSIS AND CONCLUSIONS
11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act which reads as follows:
“34. Procedure in case of commission of offence by child and determination of age by Special Court. – (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016). (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.”
12. In view of Section 34 (1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:
“94. Presumption and determination of age. – (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining –
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) (ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”
DOCUMENTS TO DETERMINE THE AGE OF THE JUVENILE
13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:
“(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”.
14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors., [2021 (12) SCR 502] this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:
“20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.”
16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors [[2019] 9 SCR 735] that:
“Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category”.
PROVING SOMEONE AS JUVENILE
17. In Abuzar Hossain @ Gulam Hossain v State of West Bengal [[2012] 9 SCR 224], this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.
xxx
19. It is clear from the above narrative that none of the documents produced during the trial answered the description of “the date of birth certificate from the school” or “the matriculation or equivalent certificate” from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim’s age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating “that the age of the said girl would be more than 18 years and less than 20 years”. In the cross-examination, she admitted that M’s age could be taken as 19 years. However, the High Court rejected this evidence, saying that “when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor”. This finding is, in this court’s considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim’s bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9.
xxx
21. In her statement under Section 164 of the Cr. PC, the victim M had deposed that she was in love with the appellant, had consumed poison, and had even been hospitalized because she was adamant to live with the appellant. No doubt, she resiled from her statement. Yet, the medical evidence (deposition of PW-11, Dr. Kavitha) indicated that the victim had a ruptured hymen; there was no external injury at her private parts, and that according to her “48 hours before medical examination there was no evidence to show that she had sexual assault is the opinion given by me.” This witness also produced her Notes of examination (Ex. P-11). In view of these facts, this court is of the opinion that the prosecution was not able to establish that there was any penetrative sexual assault as a result of coercion or compulsion on the part of the appellant. Even the High Court recognized this, albeit while reducing the sentence (since, in its opinion, M was a minor at the time), observing that “P.W.3 had gone to the extent of taking poison to commit suicide out of love failure, under enormous pressure, he had accompanied P.W.3, married her and had sexual intercourse with her, both before the marriage as well was after the marriage.” From these facts, and the definitions under POCSO Act, especially the definitions of “sexual assault”, Sections 5 and 6, read with Sections 350 and 351 IPC, it can be seen that it is only when there is penetrative sexual assault, which implies sexual contact with or without consent of the minor victim, that the offences under the POCSO Act are committed.
DEFENE CORROBORATED S.164 Cr.P.C STATEMENT BY CALLING THE MAGISTRATE AS DEFENCE WITNESS
22. All the facts proved in this case clearly indicate M’s willingness to accompany the appellant and even celebrate their marriage. However, she did not support the statement under Section 164 Cr. PC. To entirely discard that statement, the trial court observed that:
“In this case, on the orders of the Inspector of P.W.-16 had produced the girl Madheena before the Judicial Magistrate Court, Erode and she has given a statement voluntarily u/s.164 Cr.PC. To prove that the aforesaid statement was not given on any compulsion, no evidences have been put forth before this court.”
The above surmise by the trial court is untenable. The prosecution did not concededly produce the Judicial Magistrate who recorded the statement; however, that officer was available and was stationed at Erode. She deposed during the trial, as DW-1, and importantly affirmed the veracity of the victim’s statement (Ex. P-4) by stating as follows:
“It is a true statement given by the said girl wilfully. The said statement was not given on compulsion. It is correct if it is stated that, (M), in her statement, had told me that, I and my neighbour who was in the nearby house, by name Yuvaprakash are in love for the past 1 1/2 years, we used to talk to each other frequently over phone, my grand-mother on seeing me speaking over the phone had told my father about it, I took pesticide for ants and attempted to commit suicide….”
The prosecution did not even cross examine this witness. Having regard to these overall factors, the court is of the opinion that M’s statement under Section 164 of the Cr. PC contained a truthful narration of the events. This, in other words, meant that there was no penetrative sexual assault on her. Therefore, the provisions of the POCSO Act will not be applicable in this case. The impugned judgment set aside the charge under Section 366 IPC against the appellant. The charges against him, under Section 6 of the POCSO Act as well as Section 10 of the Prohibition of Child Marriage Act, cannot be sustained; the findings of the courts below, i.e., conviction and sentences imposed are, therefore, set aside.
PARTY: P. YUVAPRAKASH vs. STATE REP. BY INSPECTOR OF POLICE – CRIMINAL APPEAL NO (S). 1898 OF 2023 – JULY 18, 2023.
https://main.sci.gov.in/supremecourt/2018/47421/47421_2018_8_1501_45230_Judgement_18-Jul-2023.pdf
1 Comment
[…] POCSO CASE ACQUITTED BASED ON VICTIM’S S. 164 Cr.P.C STATEMENT […]