2025 Supreme(Sikk) 73

THE HIGH COURT OF SIKKIM : GANGTOK
Meenakshi Madan Rai, Bhaskar Raj Pradhan, JJ.
Shanu Rai @ Netra Kumar Rai – Appellant
Versus
State of Sikkim – Respondent
Crl.A. No.04 of 2024
Decided On : 16-04-2025

In the absence of conclusive documentary proof establishing a victim's minority beyond reasonable doubt, a conviction under a special child protection statute cannot be sustained, though the court may maintain a conviction under the general penal code if the underlying criminal acts are proven by evidence.

Headnote:(A) Protection of Children from Sexual Offences Act, 2012 - Sections 5(g) and 6 - Indian Penal Code, 1860 - Sections 366, 376D and 376DA - Code of Criminal Procedure, 1973 - Section 164 and 313 - Sexual assault and abduction - Determination of minority - When prosecution fails to substantiate the age of the victim through reliable documentary evidence such as a Birth Certificate, leading to contradictory versions between school records and witness statements - Whether conviction under special legislation can be sustained - Held, no - In the absence of proof of age beyond reasonable doubt, the accused cannot be convicted under the special protective enactment, though conviction can be maintained under equivalent provisions of the general penal law if ingredients of the offence are established. (Paras 7, 10)

(B) Evidence - Proof of Age - Requirement - The assessment of the victim's age cannot be based on mere presumptions or flawed calculations by the Court, such as adding years to stated ages - Prosecution has the burden to prove age beyond reasonable doubt; reliance on contradictory hearsay or undocumented estimates constitutes a failure of proof - Where official records provided lack foundational corroboration, the benefit of the doubt on the question of minority must be accorded to the accused. (Paras 7 and 9)

Facts of the case:
An appeal was preferred against a conviction under the provisions of the special protective statute for children and the Indian Penal Code, relating to incidents of abduction and sexual assault. The appellant challenged the judgment primarily on the ground that the prosecution failed to prove the victim's minority, pointing to severe discrepancies between school records and the oral testimony of the victim and her family. The trial court had attempted to verify age through a process of calculation not supported by documentary evidence. The prosecution relied upon witness testimonies and medical examinations to establish the offence of sexual assault.

Findings of Court:
The court observed that the trial court's rationale regarding the estimation of the victim's age lacked a legal basis and was speculative. It found that the prosecution failed to produce conclusive documentary proof, such as a Birth Certificate, to resolve the contradictions between the school admission register and the testimony of the witnesses. Consequently, the court held that the victim's minority remained unproved beyond reasonable doubt, requiring an acquittal of the charges under the special legislation. However, based on the consistent evidence of the sexual assault and abduction, the conviction was maintained under the corresponding provisions of the general penal code.

Issues: Whether the prosecution successfully established the minority of the victim to sustain a conviction under the special protection act and whether the conviction for sexual assault and abduction remains sustainable under the general penal code despite the failure to prove minority.

Ratio Decidendi: When the prosecution fails to provide robust proof of the victim's age, a conviction under a special statute protecting children cannot stand. However, if the underlying acts of sexual violence and abduction are corroborated by credible witness evidence and medical reports, the court may rightfully substitute or maintain a conviction under the general penal code for the same underlying conduct to ensure justice and prevent prejudice to the accused.

Result: Appeal disposed of; conviction under the special protective statute set aside due to failure of proof regarding age; conviction under the general penal code for sexual assault and abduction upheld.

Table of Content
1. assessment of witness credibility in sexual assault cases through consistent testimonies. (Para 2 , 8)
2. requirement to prove the victim's age beyond reasonable doubt for pocso applicability. (Para 3 , 4 , 7)
3. substitution of pocso conviction with ipc equivalent when minority is not established. (Para 9 , 10)

JUDGMENT :

Meenakshi Madan Rai, J.

1. This Appeal assails the conviction of the Appellant under Section 5(g), punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, “POCSO Act, 2012”) and under Section 366 of the Indian Penal Code, 1860 (hereinafter, “IPC”), vide the impugned Judgment, dated 20-12- 2023, in S.T. (POCSO) Case No.19 of 2020, of the Court of the Learned Special Judge, , 2012.

(a) The Order on Sentence, dated 21-12-2023, directed the Appellant to undergo rigorous imprisonment for a term of twenty years and to pay a fine of Rs.2,000/- (Rupees two thousand) only, for the offence of sexual assault and to undergo simple imprisonment for a term of five years and fine of Rs.2,000/- (Rupees two thousand) only, for the offence of abduction, with default stipulations. This order is also impugned.

2. The facts of the Prosecution case briefly summarised is that, on 21-03-2020, PW-1, the victim lodged an FIR, Exbt P-1/PW- 1 informing that, on the relevant night when she was asleep along with her younger brother and sister at her home, she woke up to some knocking on the door and opened it. Two unknown persons closed her mouth, took her to a nearby jungle and pushed her to the ground. She recognised the Appellant, a co-worker of her parents, who disrobed and sexually assaulted her. Investigation was endorsed to PW-12, the Investigating Officer (I.O.), who on completion thereof, submitted Charge-Sheet under Section 6 of the POCSO Act, 2012, against the Appellant. The Learned Trial Court proceeded to frame Charge against the Appellant under Sections 366/34, 376D, 376DA of the IPC and Section 5(g) of the , punishable under Section 6 of the same Act, read with Section 34 of the . The Charge having been read over to the Appellant, he entered a plea of “not guilty”, pursuant to which trial commenced and the Prosecution examined twelve witnesses. On closure of the 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 evidence against him and his responses recorded. He sought to and examined himself as DW-1 and his mother as DW-2.

3. Learned Counsel for the Appellant canvassed that the Learned Trial Court was in error in convicting the Appellant under the provisions of the POCSO Act, 2012 (supra), as the age of the victim was not proved beyond reasonable doubt. The Birth Certificate of the victim was not furnished to fortify the Prosecution case. The victim’s father gave her date of birth as 19-04-2007 during her school admission, while PW-1 the victim and her mother PW-2 stated that, it was 19-04-2009, which are contradictory to each other. The entry of the date of birth in the School Admission Register was made in the year 2016, when the victim was admitted in Class III, no other document, such as, admission to her previous school or Birth Register was furnished to augment the assertion of the Prosecution regarding the correct date of birth of the victim. That apart, the victim has made several improvements in the Prosecution case as seen from her deposition in the Court as against her statement made under Section 164 Cr.P.C. Besides, the forensic report filed by the Prosecution fails to support the Prosecution case in any manner. That, there was no witness to establish that the Appellant had actually visited the house of the victim along with other persons, on the night of the incident nor was any medical evidence of the Appellant furnished to establish that he was capable of sexually assaulting the victim. Hence, the Appeal, on this ground alone,

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