The court upheld the conviction of rape under IPC despite challenges regarding the victim's age based on insufficient documentation, affirming the credibility of the victim's testimony.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr. J. Laskar, the learned counsel for the appellant. Also heard Ms. B. Bhuyan, the learned Additional Public Prosecutor for the State and Ms. S. Sharma, the learned Amicus Curiae for respondent no. 3.

2. The appellant has put to challenge the impugned judgment dated 23.02.2023 passed by the Special Judge, Dima Hasao, Haflong in Sessions Special Case No. 08 of 2019, by which the appellant was convicted u/s 376 IPC read with Section 4 of the POCSO Act. The sentence was however given u/s 376(1) in terms of Section 4 2 of the POCSO Act, wherein the appellant was sentenced to undergo Rigorous Imprisonment for 15 years with a fine of Rs. 50,000/-, in default Simple Imprisonment for 1 year.

3. The learned counsel for the appellant submits that the appellant could not have been convicted u/s 4 of the POCSO Act, 2012, inasmuch as, the age of the victim could not have been determined by the learned Trial Court, on the basis of a School Leaving Certificate. He also submits that there being no marks of violence or injury on the victim in terms of the Medical Report and the evidence of the doctor, the same clearly proved the fact that no rape had occurred. He also submits that the evidence of the prosecutrix alone could not be the basis for conviction of the appellant, in the absence of any corroboration from any other evidence, especially when there was no injury found on the body of the victim.

4. The learned Additional Public Prosecutor, on the other hand, submits that the conviction of the appellant should not be interfered with, as the testimony of the victim was truthful and there was nothing to disbelieve the same. Further, when the medical evidence corroborated the fact that the victim had been raped. She submits that as the evidence of the victim has the equivalent value as the evidence of an injured witness, the appellant had been rightly convicted by the learned Trial Court.

5. Ms. S. Sharma, the learned Amicus Curiae for the victim submits that the statement made by the victim u/s 164 Cr.PC corroborates the testimony given before the Court with regard to she being raped by the appellant. She also submits that the evidence of the prosecution witnesses have not been shaken during cross-examination and the same is borne out by the evidence of the Investigating Officer, i.e. PW-19.

6. The learned Amicus Curiae however submits that there is nothing to prove that the age of the victim was below 18 years of age at the time of the incident, inasmuch as, the age of the victim had been determined on the basis of the School Leaving Certificate issued by the School. In terms of Section 94 of the Juvenile Justice (Care & Protection of Children) Act, 2015 (hereinafter referred as the Act of 2015), a School Leaving Certificate is not a document which can determine the age of juvenile in conflict with law and it may not be safe to hold the victim to be below 18 years at the time of commission of the offence in terms of Section 94 (2)(i) of Act of 2015. The learned Amicus Curiae submits that even if this Court were to hold that there was no proof that the victim was below 18 years during the commission of the offence, for which Section 4 (2) or Section 5 of POCSO Act may not be attracted, the fact remains that the appellant was rightly convicted u/s 376 IPC along with Section 4 of the POCSO Act, as there is no limitation on the age of the victim for attracting the offence of rape under Section 376 (1) . Further, the sentence that has been imposed upon the appellant had been made in terms of (1) . As such, whether the victim was below 18 years of age or beyond 18 years of age at the time of the incident, the same does not change the character of the present case, as the appellant could be convicted u/s 376 and sentenced on the basis of the said provision of law also. She accordingly submits that this Court should not interfere with the decision of the learned Trial Court.

7. We have heard the learn