The court held that the prosecution failed to prove the victim's age beyond reasonable doubt, emphasizing that consent from a minor is not legally valid under the POCSO Act.

JUDGMENT :

Meenakshi Madan Rai, J.

1. This Appeal calls into question the Judgment, dated 29-11-2023, in S.T. (POCSO) Case No.51 of 2021, of the Court of the Learned Special Judge (POCSO Act, 2012), Gangtok, Sikkim, vide which, the Appellant was convicted of the offence under Section 4 (2) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, “POCSO Act”) and sentenced to undergo simple imprisonment for a term of twenty years under Section 4 (2) of the POCSO Act and to pay a fine of Rs. 2,000/- (Rupees two thousand)only, with a default stipulation.

2. The facts pertaining to the instant case are that, PW-2, the victim’s mother, had taken PW-1 the victim, aged about fifteen years, on 02-10-2021 to the hospital for medical examination on her sudden illness. On such examination, it was found that PW-1 was pregnant. She revealed to PW-2 that the Appellant was the father. PW-2 accordingly lodged Exbt. 3, the FIR on 04-10-2021 before the jurisdictional Police Station, informing that, the Appellant aged about twenty-three years had raped and impregnated her child, which she came to learn through the Doctor on 28-09-2021. That, her daughter told her that she had been taken by the Appellant twice on 07-09-2021 to his residence at around 2 p.m. and a week earlier to his friend’s place. The FIR was registered against the Appellant on the same date, i.e., 04-10- 2021, under Section 376 of the INDIAN PENAL CODE , 1860 (hereinafter, “IPC”) read with Section 5 (j)(ii)/6 of the POCSO Act and endorsed to PW-11, the Investigating Officer (I.O.) for investigation, on completion of which, he submitted Charge-Sheet against the Appellant, under the above mentioned sections of law. The Learned Trial Court, on taking cognizance of the offence, framed Charge against the Appellant on two counts under Section 4 (2) of the POCSO Act, for committing the offence, once in his friend’s room and then in his own room, for two counts under Section 376 (3) of the IPC. Charge was also framed under Section 5 (l), Section 5 (j)(ii) of the POCSO Act and Section 376 (2)(n) of the IPC. The Appellant pleaded “not guilty” to the charges and claimed trial. The Prosecution examined eleven witnesses in an effort to establish its case beyond reasonable doubt. On closure of Prosecution evidence, the Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, “Cr.P.C.”) to enable him to explain the incriminating circumstances in the evidence against him. He claimed to be innocent and unaware of the reasons for his arrest and that he was falsely implicated. Thereafter, the final arguments of the parties were heard. Consideration of the entire evidence by the Learned Trial Court, culminated in the conviction and sentence as extracted supra.

3. Learned Counsel for the Appellant advanced the argument that the Prosecution attempted unsuccessfully to establish that the victim was a minor. The Prosecution relied on the following documents to prove her age, viz., Exbt P-2/PW-1 her Birth Certificate, Exbt P-10/PW-10 letter issued by the Principal of the victim’s school, indicating her date of birth as 03-09-2006, Exbt P-11/PW-10 the School Admission Register and Exbt P-19/PW-11 the Seizure Memo for the Birth Certificate. The witnesses furnished for proof of these said documents were PWs 1, 2 and 10. Regardless of the above, the Prosecution failed to establish the place of issuance of the Birth Certificate, its seizure or its contents. That, the production of the Register Exbt P-11/PW-10 was of no assi