The sufficiency of evidence to establish the victim's age as a 'child' under the POCSO Act and the impact of this determination on the charges and convictions.

JUDGMENT :

VINAY JOSHI, J.

1. Heard.

2. The challenge in this appeal is to the judgment and order of conviction in Special (POCSO) Case No. 85/2016 dated 03.01.2020 by which the appellant/accused was held guilty for the offence punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (short ‘POCSO Act’) Section 354 and 506 of the Indian Penal Code.

3. The Trial Court has imposed sentence to undergo rigorous imprisonment for three years along with fine of Rs. 500/- with default clause for the offence punishable under Section 8 of the POCSO Act. However, the Trial Court has not imposed separate sentence for the offence punishable under Section 354 of the Indian Penal Code by virtue of Section 42 of the POCSO Act. Besides that the accused has been sentenced to pay fine of Rs. 500/- for the offence punishable under Section 506 of the Indian Penal Code.

4. The prosecution case in nutshell is that the victim girl aged 15 years had lodged report on 16.04.2015 regarding the occurrence. She stated that on that day, around 08.00 p.m. there was religious procession in their village. Several young boys and girls including victim participated in the procession and were singing and dancing on the public road. Around 09.00 p.m. someone held victim from behind tightly and particularly held her breasts. The victim immediately gave jerk, turned around and saw that it was accused who caught hold her from behind. Immediately, victim went to her house and informed the things to her parents. All of them went to the house of accused to question about his deeds, on which the latter abused and threatened to beat. Therefore, the victim girl along with her parents rushed to the Police Station and lodged report. The Police took cognizance of commission of cognizable offence by registering crime vide Crime No. 26/2015 on the basis of victim’s report. The Police visited the place of incident and drew spot panchanama. Since victim refused to offer herself for medical examination, she was not sent accordingly. The statement of relevant witnesses were recorded. Investigating Officer has collected documents related to date of birth of victim. On completion of investigation, final report has been filed in the Special Court.

5. The Trial Court framed charge vide Exhibit-3. Since the accused denied the guilt, the prosecution has examined in all five witnesses to bring home the guilt. The prosecution also banks upon certain documents to substantiate the guilt of the accused. The prosecution evidence mainly consists of the evidence of victim, eyewitness, school Headmaster, Panch and Investigating Officer. Having regard to the oral and documentary evidence, the Trial Court formed opinion that the evidence adduced by the prosecution was sufficient to establish the leveled charges. In consequences, the Trial Court has recorded the finding of guilt and passed aforementioned sentence.

6. The learned counsel for accused strongly criticized the judgment of conviction. It is urged that Trial Court failed to appreciate the evidence in its proper perspective and resultantly erred in convicting the accused for the charges. It is argued that the prosecution utterly failed to establish that the victim was ‘child’ within the meaning of Section 2(d) of the POCSO Act and therefore, conviction under special Act is wholely unjustified. She would argue that the statement of victim recorded by the Magistrate under Section 164 of the Code of Criminal Procedure has been suppressed. Though there were several independent witnesses, they were not examined. Besides that, it is submitted that evidence of victim and eye-witness is inconsistent. She has expressed that since the incident occurred during night hours, there was possibility of mistaken identification. It is argued that the Investigating Agency has not conducted prior test identification parade which has weaken the prosecution case. Finally, she urged for reversal of the judgment of the conviction by allowin