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ORISSA HIGH COURT
S.K. Sahoo, J.
Duryodhan Majhi @ Durja – Appellant
versus
State of Odisha – Respondent
JCRLA No.09 of 2021
Decided on 12.7.2023
Protection of Children from Sexual Offences Act, 2012 – Section 6 read with Sections 363/366/376(2)(i)(n) of Indian Penal Code, 1860 – Kidnapping and rape and aggravated penetrative sexual assault on minor girl – Conviction and sentence – No birth certificate of victim has been seized – As such, it is quite unsafe to rely on admission register of subsequent school or S.L.C. to determine accurate age of victim – It cannot be conclusively said that prosecution has succeeded in proving that victim was under sixteen years of age as on date of occurrence – In absence of concrete proof of age of victim and that she was a child as per definition under Section 2(d) of POCSO Act, charge under Section 6 of POCSO Act is not proved – Appellant acquitted of charge under Section 376(3) of I.P.C., instead he is found guilty under Section 376(1) of I.P.C. – Conviction and sentence modified. (Paras 7 & 9)
Result: Jail Criminal Appeal Partly allowed.
Key Points: - The court analyzes whether the victim was under sixteen years of age to apply POCSO Section 6 and determine conviction under IPC 376(3) or 376(1). (!) (!) (!) (!) (!) (!) - It rules that reliance on a later school admission register or SL.C. for age is unsafe when prior school records or birth certificates are not seized or proved. (!) (!) (!) (!) - The judgment modifies the conviction from 376(3) IPC and 6 POCSO to 376(1) IPC with a ten-year RI and no fine, due to insufficient proven age. (!) (!) - It discusses that ossification tests or radiological evidence were not proved, affecting age determination. (!) (!) - The trial court’s findings regarding age were reversed in part due to lack of concrete age proof, leading to acquittal on some charges and conviction on another. (!) (!) - The judgment directs compensation considerations and mentions assistance to the victim via district legal services. (!) (!) - The defense’s argument about consent and age is addressed in light of corroborated witness testimony, but age determination drives the key outcome. (!) (!) (!)
JUDGMENT
S.K. Sahoo, J.—The appellant Duryodhan Majhi @ Durja faced trial in the Court of learned Addl. Sessions Judge-cum-Special Judge (POCSO), Nuapada in S.A. Case No.53 of 2018/T.R. No.24/2019 for commission of offences punishable under sections 376(2)(n)/ 376(3) of the Indian Penal Code (hereinafter ‘I.P.C.’) read with section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter ‘POCSO Act’) on the accusation that on 27.12.2018 at Jhanjimunda forest, he committed rape on the victim repeatedly against her will and without her consent and that the victim was under sixteen years of age by then and that he had committed aggravated penetrative sexual assault on the victim.
The learned trial Court vide impugned judgment and order dated 14.10.2020 found the appellant guilty under section 376(3) of the I.P.C. and section 6 of the POCSO Act, however acquitted him of the charge under section 376(2)(n) of the I.P.C. The learned Court sentenced him to undergo rigorous imprisonment for twenty years and to pay a fine of Rs.15,000/- (rupees fifteen thousand), in default of payment of fine, to suffer rigorous imprisonment for a further period of six months, for the offence under section 376(3) of the I.P.C. However, no separate sentence was imposed for his conviction under section 6 of the POCSO Act in view of the provision under section 42 of the POCSO Act.
2. The prosecution case, in short, is that one Kamal Majhi (P.W.1), the father of the victim lodged the first information report on 28.12.2018 before the Inspector in-charge of Nuapada police station stating therein that the victim was fourteen years of age and she was prosecuting her studies in Class-IX while staying in the house of her grandfather. On 27.12.2018, the appellant who is a co-villager of the informant, approached the victim in the house of her maternal grandfather at about 10.00 a.m. and told her that her parents have sent him to take her to them to village Chanamunda. He further alleged that the appellant told the victim that after he returned from Nuapada, he would take her with him and after sometime around 1.00 p.m., the appellant came back and in spite of reluctance of the victim to accompany him, he took her on a motorcycle. The appellant took the victim inside the Jhanjimunda jungle road and after going some distance in the said jungle, he stopped his motorcycle and pulled the victim inside the bushes, made her lie on the ground, removed her wearing apparels and committed rape on her. The victim shouted during the occurrence which attracted the attention of one Tulsiram Majhi (P.W.4) and Fade Majhi (P.W.5) to the spot and they rescued the victim and left her in her parental home. The victim was crying and she disclosed before the informant about the commission of rape by the appellant.
On the oral version of P.W.1 the father of the victim, P.W.12 Dhaniram Majhi scribed the written report and accordingly, it was presented before the Inspector in-charge of Nuapada police station who registered as Nuapada P.S. Case No.184 dated 28.12.2018 under section 376(3) of the I.P.C. and section 6 of the POCSO Act.
Initially, the case was investigated by one B. Mohanta, Inspector of Police but subsequently, Babitarani Puhan (P.W.26), S.I. of Police attached to Nuapada police station took over the charge of investigation. During course of investigation, she re-examined the informant and other witnesses, seized the school admission register of Panchayat High School, Darlimunda where the victim was prosecuting her studies to determine the age of the victim, wearing apparels of both the appellant and the victim were also seized. Thereafter the victim and the appellant were sent to District Headquarters Hospital, Nuapada for their medical examination and their biological samples were collected and seized. The statement of the victim was recorded under section 164 Cr.P.C. by the S.D.J.M., Nuapada on the prayer being made by the I.O. (P.W.26). The exhibit
It is quite unsafe to rely on admission register of subsequent school or S.L.C. to determine accurate age of victim of sexual assault.
The importance of proving the victim's age and the need for corroboration of the victim's testimony in cases of sexual offences.
The prosecution must prove a victim's age beyond reasonable doubt, and consent negates charges of kidnapping and rape when the victim willingly engages in a relationship.
The court held that discrepancies in the victim's testimony and lack of corroborating evidence created reasonable doubt, leading to the appellant's acquittal.
The determination of the victim's age is crucial in cases of sexual offences, and the court emphasized the importance of following the procedure for determining the age of a juvenile under the Juveni....
(1) Defence is not required to prove its plea beyond all reasonable doubts, but when inconsistent pleas have been taken by defence, same cannot be accepted.(2) Statement of a witness recorded under S....
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