The court established that the burden of proving a victim's age lies with the prosecution, and the absence of reliable evidence necessitates giving the benefit of doubt to the accused.

JUDGMENT

S. Vaidyanathan, CJ. - This Criminal Appeal is directed against the judgment and order dated 16.12.2021 and order of sentence dated 20.12.2021, passed by the Special Judge (POCSO), District and Sessions Court, Shillong in Special (POCSO) Case No.3/2016 and the accused / Appellant herein was convicted by the Trial Court for the offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short 'POCSO Act, 2012') and sentenced to undergo Life Imprisonment and to pay a fine of Rs.10,000/- and sentenced to undergo imprisonment for ten years under Section 366A of IPC and to pay a fine of Rs.10,000/-, in default to undergo Imprisonment for one month for each default. The Sentences were ordered to run concurrently and the total fine amount awarded as compensation was directed to be paid to the victim girl.

Brief Prosecution Case:

2. A complaint was given by the father (P.W.1) of the victim girl on 05.04.2013 before Madanrting Police Station, East Khasi Hills, stating that his daughter aged 14 years was found missing on 04.04.2013 at 6.45am. With the help of the mobile number provided by the complainant, the victim girl was secured along with the accused from Jirania, Agartala, Tripura. Based on the complaint, FIR (Ex.P1) in Madanrting PS Case No.27(4) 2013 came to be registered against the accused under Section 366A IPC.

2.1. After investigation, a charge sheet dated 13.05.2014was laid and the Court of Chief Judicial Magistrate committed the case for trial to the Special Judge (POCSO), who framed the charges against the accused under Section 4 of POCSO Act, 2012 and Section 366A IPC. The prosecution, in order to substantiate the commission of the offence against the accused, has examined as many as 9witnesses and marked 6 documents. On the side of the defence, one witness was examined and no document was marked. Statements under Section 161Cr.P.C. were obtained from the victim girl (P.W.8) and the accused. The accused was questioned under Section 313 Cr.P.C. and he denied the charges levelled against him. The Trial Court, after analyzing the evidence let in by the prosecution, found the accused guilty of the offence under Section 6 of the POCSO Act, 2012 and convicted him as stated supra.

3. Learned counsel for the Appellant submitted that it is a case of love affair and the victim girl (P.W.8) on her own volition, had left the house and married the accused, which is evident from the 161 statement of the victim girl. There is no concrete evidence as to the age of the victim girl and the evidence of the Doctor in respect of assessment of her age was inconsistent, as no birth certificate or any other documents had been produced on the side of the prosecution to prove the age of the victim girl. According to the Appellant, the age of the victim girl would be more than 17 years, which is evident from the deposition of the Doctor (P.W.4). Learned counsel for the appellant further submitted that though initially the case was registered under Section 366A IPC, subsequently, Section 4 of the POCSO Act, 2012 was included, while framing charges and in the absence of such inclusion, the accused could have been acquitted from the charges.

Learned counsel for the appellant also submitted that as per the version of the D.W.1, both the accused and the victim girl got married in a mandir (Temple) and the victim girl looked as if her age was between 19 and 20 years.

4. Learned counsel for the Appellant referred to a judgment of the Supreme Court in the case of P. Yuvaprakash vs. State Rep. by Inspector of Police, reported in AIR 2023 SC 3525, wherein the Apex Court had elaborately dealt with different aspects with regard to determination of the age of a juvenile as under:

'12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:

94. Presumption and determination of age. - (1) Where, it is obvious to the Committee or the Board, based o