The determination of a victim's age is crucial in cases of sexual assault, and the court emphasized the need for cogent evidence to establish minority under the POCSO Act.

JUDGMENT :

Bhaskar Raj Pradhan, J

1. The Appellant assails the judgment of conviction dated 27.09.2018 passed by the learned Special Judge, POCSO, East Sikkim at Gangtok, convicting him for penetrative sexual assault as defined in Section 3(a) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012), wrongful confinement under Section 342 of the Indian Penal Code, 1860 (IPC) and for rape as defined in Section 376 (2) (i) of the IPC. The order on sentence dated 28.09.2018 is assailed as well.

2. The learned Special Judge relying upon the evidence of the victim (P.W.1), her father (P.W.3) and Dr. K. N. Sharma (P.W.14) the Senior Radiologist, STNM Hospital, Gangtok who had conducted and determined the bone age of the victim (exhibit-23) came to the conclusion that the victim was a child within the meaning of Section 2(d) of the POCSO Act, 2012.

3. The learned Special Judge held that the evidence of the victim, her brother (P.W.13) and her father (P.W.3) were duly corroborated by the medical evidence and therefore no further proof was required for arriving at the conclusion that the Appellant had wrongfully confined the victim and committed penetrative sexual assault on her.

4. The learned Legal Aid Counsel for the Appellant contested the determination of the age of the victim; the finding of conviction based on the evidence which according to him clearly proved that the act was consensual; the conviction of the Appellant under Section 376 (2) (i) of the IPC as the prosecution had failed to prove that the victim was “under sixteen years of age” and the Appellant’s conviction for wrongful confinement.

5. The learned Additional Public Prosecutor for the Respondent per contra submitted that the victim’s statement was clear, unequivocal and reliable which was duly corroborated by her brother (P.W.13). He submitted that the evidence led by the prosecution had clearly brought home the guilt of the Appellant.

6. The POCSO Act, 2012 defines the word “child” to mean any person below the age of 18 years. This is required to be proved by the prosecution who alleges that the victim was a child against whom the alleged crime was committed. In re: Sunil v. State of Haryana, (2010) 1 SCC 742 the Supreme Court held that it would be quite unsafe to base conviction on an approximate date of birth of the prosecutrix.

7. Section 3 of the Indian Evidence Act, 1872 defines the word “evidence” in the following manner.

“Evidence means and includes-

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.

(2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.”

8. The oral evidence of the father (P.W.3) that the victim, his daughter, was 16 years old and studying in Class VIII at the time of the incident could not be demolished in his cross-examination. In fact besides a denial no attempt was made by the defence to even question the truthfulness of the oral evidence of the father (P.W.3). The victim also deposed that she was “16 plus years” at the time of her deposition and attending school in Class VIII. In her cross-examination she admitted she did not know her actual date of birth. She however, volunteered to state that her mother told her that she was 16 years old then. The victim was further cross-examined and she admitted that her mother had told her that she had attained 16 years of age based on her Aadhar Card. The victim denied the suggestion that she was an adult during the time of the incident.

9. In re: Vishnu Alias Undrya v. State of Maharashtra, (2006) 1 SCC 283 the Supreme Court while considering an appeal against the conviction under Section 376/366 IPC examined the question of date of birth of the victim and held that in the case of determination of the date of birth of the child, the best evidence is of the father and the mother. In the present case the untainted eviden