Allahabad High Court: In an appeal filed against the judgment and order passed by Additional Sessions Judge, wherein, the Court has acquitted the appellant under Section , but convicted the appellant (convict) for offence punishable under Section of (POCSO) and sentenced him to ten years of rigorous imprisonment, Ram Manohar Narayan Mishra, J. has held that the Trial Court has not properly appreciated the evidence appearing on point of age determination of the victim and there are factual and legal errors in the impugned judgment, thus it is not sustainable under law. Therefore, the Court set aside the judgment and order of conviction and sentence passed by Trial Court and acquitted the accused under Section of .
The Trial Court on the basis of evidence adduced by the prosecution, observed that the victim contacted the accused on her free will, there was no evidence of her being forcefully kidnapped, and the prosecutrix failed to establish the fact that she was abducted with an intent or knowledge to marry the accused against her free will. Further, it also failed to establish charges under Section 363 and Section of the (IPC). However, based on findings from educational record that the victim was minor even during the trial, the appellant was convicted under Section of the .
The father of the victim (informant) has stated that on 19-11-2010 when her 16-year-old daughter was alone in the house, the accused visited his home and seduced and enticed away her daughter. When he came back to home in the evening and when he did not find the victim, his younger daughter stated that she had seen the victim going along with the accused, thereafter he filed a written report and lodged a First Information Report
The Court after perusing the medical report noted that at the time of examination, no injury was found on the victim. Further, according to age determination report of Chief Medical Officer, she was aged around 18 years.
Further, the Court took note of Rule 12 of , which provides the procedure to be followed in determination of age. It provides that in every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining the matriculation or equivalent certificates, and in the absence of it , the date of birth certificate from the school (other than a play school) first attended; and in its absence, the birth certificate given by a corporation or a municipal authority or a panchayat; and only in absence of either (i) (ii) (iii), the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.
The Court said that after enactment of Rule 12, the (‘JJ Act’) was enacted. Further, after taking note of Section of the and Section of the , said that offences related to sexual assault are very heinous in nature and if the victim is minor then her consent is statutorily and judicially of no value. In such cases in contrast of common practise, onus of proof is on the accused, rather than on the victim as provided under Section of the and furthermore, age of the victim gains significance as offences against minor girl creates a different class of offences.
The Court took note of Jarnail Singh v. State of Haryana, wherein it was held that the procedure to be followed in determination of age in every case concerning a child or juvenile based on bone ossification test in absence of a matriculation certificate and birth certificate from school or municipal authority.
Further, it also took note of Ram Suresh Singh v. Prabhat Singh, and Jyoti Prakash Rai v. State of Bihar, , wherein it was clarified that bone ossification test is not conclusive in nature for age determination as it does not reveal exact age of the person, but it leaves margin of two years on either side of age range which after a lot of deliberation Supreme Court held that all things being equal, benefit of doubt in age estimation by bone ossification test is to go to the accused.
The Court noted that in the school register of the victim, her date of birth is mentioned as 12-11-2000, and this entry in academic record of the victim will in normal circumstances would have precedence over her medical age determination. However, the admission form has not been filled by the parents of the victim , but by a stranger, whose credentials are unknown. Thus, the significance of victim’s medical age determination will be considered, as per which she was a major on the date of the incident.
The Court said that trial Judge has reduced eight months from the medical age determination on ground that it was carried out after eight months of the incident. As per medical determination also victim’s age is found as 17 years and 4 months on the date of incident , still she would be held as minor. This practice is not permissible under law as the age determination of age is expert medical opinion and there is no authority that period lapsed between date of incident and medical age determination will be reduced.
Thus, the Court said that it is not proved with preponderance of probabilities that victim was minor on the date of incident and as the date of birth recorded in school record of victim is not free from doubt, therefore, benefit of doubt is liable to be given to the accused on this point on peculiar facts and circumstances also.
The Court also noted that the victim left her parental home on her own volition and solemnized marriage with the accused and after eight months she came back to her home and at that time she was pregnant for more than 15 weeks. She again associated with the accused and delivered a girl child. Presently, she is living with accused as her wife along with a girl child, thus accused and victim have settled their life.
The Court held that this is a case of deemed conviction, since the Trial Court did not consider anomalies in age determination of the victim, which is a crucial aspect of the case. Thus, the Court set aside the order of conviction and sentence passed by the Trial Court.
[Vishwanath Ahirwar v. State of U.P., Criminal Appeal No. 323 of 2021, decided on 27-4-2023]
Advocates who appeared in this case :
For the Appellant: Advocate, Avijit Saxena;
For the Respondent: Government Advocate.
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