The court established that consent is invalid when the victim is a minor, reaffirming the prosecution's burden of proving age and the elements of rape under the POCSO Act.

JUDGMENT :

S Rachaiah, J.

1. This appeal has been filed by the appellant being aggrieved by the judgment of conviction dated 19.12.2018 and order on sentence dated 20.12.2018 in Special Case (POCSO) No.22 of 2015 on the file of the II Additional District and Sessions Judge at Vijayapura, wherein the accused has been found guilty for the offences under Section 3 76(2)(i) of INDIAN PENAL CODE (for short ‘IPC’) and Sections 3 (a), 5(j)(ii) of The Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’).

Factual matrix of the case are as under:

2. The brother of the victim lodged a complaint before Sindagi police on 21.06.2015 at 20.15 hours stating that he is the resident of Holada Vasti, Sindagi and is residing along with his wife, mother and sister in the farmhouse of their land situated at Sindagi-Malegaon road near Ealiger Oil Mill. The victim is his sister and she is deaf and dumb from her birth. She used to graze the sheep nearby their land. The accused and his father were known to the complainant much earlier to the incident. Thereafter, they shifted to Sindagi by seeking coolie work.

3. The accused was doing ploughing the land of Ramu Kulkarni for the past three days and on the date of alleged incident, the victim was grazing the sheep near her land. The complainant had been to Sindagi along with his friend to bring the tractor for tilling the land. After coming home, he heard the screaming noise of his sister from his land.

4. On hearing the screaming sound, he went to the spot and noticed that the accused committing rape on his sister. The accused on seeing the complainant, ran away from the spot. Even though the complainant tried to catch him, he could not catch the accused.

5. After the incident, the complainant brought his sister to the house and waited for arrival of his mother from sandy. After her arrival, he narrated the incident and in the meantime, the victim also narrated the incident through sign language. Thereafter, he lodged a complaint against the accused before the respondent - Police. The respondent – police after conducting the investigation, submitted the charge sheet.

6. To prove the case of the prosecution, the prosecution, in all, examined 25 witnesses as PWs.1 to 25 and got marked 31 documents as per Exs.P1 to P31 and also identified 4 material objects as M.Os.1 to 4. The Trial Court after considering the evidence on record, convicted the accused for the above mentioned offences.

7. Heard Sri Shivanand V. Pattanashetti, the learned counsel for the appellant and Sri Jamadar Shahabuddin, learned High Court Government Pleader for the respondent No.1/State.

8. It is the submission of the learned counsel for the appellant that the judgment of conviction and order on sentence passed by the Trial Court is contrary to the facts of the case, evidence on record and also against the settled principles of law.

9. It is further submitted that the prosecution has not proved the minority of the victim. Therefore, the conviction under the POCSO Act cannot be sustained. There is a discrepancy in the report issued by the Doctor – P.W.7 regarding the age of pregnancy and also the date of commission of offence.

10. It is further submitted that even assuming that the DNA report is considered as true, the fact remains that, when the prosecution has not proved the case beyond reasonable doubt regarding the age of the prosecutrix and also not obtaining the consent, it cannot be presumed that the accused has committed rape on the victim.

11. It is further submitted that, even after the incident, the family members have continued the pregnancy of the victim till ten weeks which would indicate that t