Prosecution must establish victim's age and consent beyond reasonable doubt; reliance on unverified documents and lack of corroboration leads to acquittal in sexual assault cases.

JUDGMENT :

SHIVASHANKAR AMARANNAVAR, J.

1. This appeal is filed against the judgment of conviction and order on sentence dated 01.08.2018 passed in Spl.C. No. 45/2017 by I Additional District and Sessions Judge/Special Judge, Ramanagara, convicting the appellant - accused for offence under Section 366-A, 376(2)(i) of IPC and Section 4 of the POCSO Act and sentencing to undergo rigorous imprisonment for 10 years for offence punishable under Section 376(2)(i) of IPC and rigorous imprisonment for 3 years for offence under Section 366-A of IPC.

2. Factual matrix of the prosecution case is that seven months prior to the incident the appellant - accused and victim girl – P.W.1 were known to each other. On 17.01.2017 the appellant - accused asked the victim girl to come to the KSRTC bus stand and the victim girl came at 04.00 pm and asked the appellant - accused why he called her, for that the appellant - accused asked her to come to his village. When she refused, he threatened that he would die if she does not come. Therefore, the victim girl boarded the KSRTC bus along with the appellant – accused, he took her to Hosur Colony near Dindawara Village to his house and stayed there till 26.01.2017. On 25.01.2017, at night hours, the appellant - accused committed aggravated penetrative sexual assault upon the victim girl even though she refused. Charge sheet came to be filed against the appellant – accused for offence under Section 366-A, 367(2)(i) of IPC and Section 4 of POCSO Act. The Special Court has framed charge for the said offence. The prosecution has examined 10 witnesses as P.W.1 to P.W.10 and got marked Ex.P.1 to Ex.P.12 and M.O.1 to M.O. 9. Statement of appellant - accused came to be recorded under Section 313 of Cr.P.C. After hearing arguments on both sides the trial Court formulated points for consideration and convicted the appellant - accused for the aforesaid offences. Said judgment of conviction and order on sentence has been challenged in this appeal.

3. Heard learned counsel for the appellant - accused and learned HCGP for respondent – State.

4. Learned counsel for appellant - accused would contend that the age of the victim girl has not been proved as required under Section 34 of the POCSO Act and Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the 'JJ Act’). On that point he placed reliance on the decision of the Hon’ble Apex Court in the case of P. Yuvaprakash Vs. State by Inspector of Police reported in 2023 INSC 626. He contends that the author of the school certificate – Ex.P.10 has not been examined and it has been marked in the evidence of the Investigating Officer – P.W.10 who is not having any personal knowledge regarding the date of birth of the victim girl. He contends that the victim girl and her mother who have been examined as P.W.1 and P.W.2 have not stated the date of birth of the victim girl. Therefore, the prosecution has failed to prove that the victim girl is a child as defined under Section 2 (d) of the POCSO Act. He contends that there is no allegation against the appellant - accused in the complaint filed by P.W.2 – mother of the victim girl and name of one Santosh is stated in the complaint – Ex.P.2 and who is that Santosh has not been investigated. Even the cell number of the said Santosh has been mentioned in the complaint. The victim girl has been secured on 26.01.2017 and her statement has been recorded under Section 164 of Cr.P.C. on 30.01.2017 and there is a delay in recording the statemen