Protection of Children from Sexual Offences Act, 2012—Section 6—Indian Penal Code, 1860—Section 376D—Penetrative sexual assault on girl child—Life sentence—For making out offence punishable under Section 6 of POCSO Act, it is incumbent on part of prosecution to establish that victim of crime in question, at the relevant time, was a child as defined by Section 2(d) of POCSO—If it is shown that victim was below 18 years of age at time of commission of offence of penetrative sexual assault on her repeatedly then only accused persons can be made liable for consequence thereof provided by Section 6 of POCSO Act—For proving age of a person, oral evidence is hardly of any assistance—In case in hand, prosecution has relied on oral evidence regarding age of victim so also evidence of Medical Officer—Oral evidence regarding age of victim female child cannot be accepted—Fatal blow is given to prosecution case regarding age of victim—Prosecution has failed to adduced any evidence to point out that victim female child, on the date of commission of alleged offence was a child below 18 years of age—Provisions of POCSO Act are not applicable to case in hand—As such, conviction of appellant/accused No.1 for offence punishable under Section 6 of Act cannot be sustained. (Paras 7, 8, 9 and 14)

Indian Penal Code, 1860—Section 376D—Gang rape of girl child—Life sentence—In Indian settings, refusal to act upon testimony of a victim of sexual offence in absence of corroboration, as a rule, is adding insult to the injury—If a victim of rape states that she has been ravished by committing forcible sexual intercourse on her, her statement has to be accepted even if it is uncorroborated by other evidence on record, provided such testimony inspires confidence and is truthful—However, when material found on record gives inference that act was with consent or that entire incident was false, then conviction cannot be validly sustained—If evidence of victim of sexual offence is pregnant with imagination, surmises and improbabilities then also it cannot be acted upon to record conviction unless it is corroborated by other material on record coming from independent sources—Instinct of self-preservation of prosecutrix can be gathered from her chief examination—She has omitted to state names of two young boys who were accompanying her in train—Omission appears to be with some intention—No external or internal injury was found on person of prosecutrix—Uncorroborated testimony of prosecutrix cannot be acted upon to record conviction and resultant sentence for such grave offence—Impugned judgment and order of conviction and resultant sentence quashed and set aside—Appeal allowed. (Paras 15, 21, 24 and 25)

Juvenile Justice (Care and Protection of Children) Rules, 2007—Rule 12—Procedure which is adopted for determining age of juvenile in conflict with law should be adopted while determining age of victim of sexual assault—For availing option given in clause (b) of Rule 12(3), prosecution has to adduce clear, cogent and trustworthy evidence regarding non-availability of matriculation or other equivalent certificate of child concerned—Prosecution is required to come up with evidence that record of school first attended by victim female child does not contain entry regarding her date of birth and there is no entry of date of birth of victim female child, in record of corporation or municipal authority or a Panchayat. (Paras 11 and 12)

Cases Referred:

Rajak Mohammad vs. State of Himachal Pradesh, (2018) 9 SCC 248; Jaya Mala vs. Home Secretary, Government of J. & K., AIR 1982 SC 1297; Mahadeo vs. State of Maharashtra, (2013) 14 SCC 637; Jarnail Singh vs. State of Haryana, (2013) 7 SCC 263; Radhu vs. State of M.P., 2007 Cr.L.J. 4704—Relied.

A. M. Badar, J.—By this appeal, appellant/convicted accused No.1 Anurag Choudhari is challenging the judgment and order dated 17.09.2019 and 20.09.2019 respectively passed by the learned 1st Additional Sessions Judge-cum-Special Judge PO