2024 Supreme(Online)(Bom) 7949

HIGH COURT OF BOMBAY
HON'BLE SHRI JUSTICE G. A. SANAP
CHETAN KAILAS VAIDYA – Appellant
Versus
STATE OF MAH. THR. PSO PS GHATANJI TAH.ARNI DIST.YAVATMAL AND ANOTHER – Respondent
APEAL/196/2022

To prove minority under the POCSO Act, prosecution must adduce primary evidence such as birth certificate or parent testimony; a school extract based on unproved Anganwadi entry is insufficient. DNA and chemical analyser reports not specifically put to accused under Section 313 CrPC cannot be considered.

Headnote:(A) Indian Penal Code, 1860 - Section 376(2)(n); Protection of Children from Sexual Offences Act, 2012 - Sections 4 and 6; Code of Criminal Procedure, 1973 - Sections 293 and 313 - Rape on false promise of marriage - Proof of age of victim - Evidentiary value of school admission extract and Anganwadi entry - Necessity of examining parents/primary evidence - Effect of failure to put scientific evidence to accused under Section 313 CrPC.

(B) Age determination - Where the prosecution relies on a school register extract, but the entry therein is stated to be based on an Anganwadi register entry, the original Anganwadi register or the person providing the information at admission must be proved; in absence thereof, the school extract alone cannot be treated as cogent proof of the victim’s age. The investigating officer’s failure to obtain a birth certificate from the local authority or examine the parents creates a serious lacuna. (Paras 12-15)

(C) Section 313 CrPC - Incriminating material such as chemical analyser and DNA reports must be specifically put to the accused; failure to do so requires such evidence to be excluded from consideration. Non-examination of the analysts and unexplained gaps in custody of the samples further weaken reliance on such reports. (Paras 20-22)

(D) Consent - When the victim is not proved to be under 18 years and the sexual act was consensual, albeit on a promise of marriage, the accused cannot be convicted of rape under Section 376 IPC if the promise was not shown to be false from the inception. (Paras 16-18)

Facts of the case:
The appellant was convicted by the learned Additional Sessions Judge (Special Court under the POCSO Act) for offences under Section 376(2)(n) IPC and Sections 4 and 6 of the POCSO Act. The victim alleged that the appellant, her maternal cousin, had sexual intercourse with her on three occasions on the false promise of marriage, resulting in pregnancy. The prosecution claimed she was 17 years, 6 months and 9 days old at the time, relying on a school admission extract. The trial court convicted and sentenced the appellant to 10 years’ imprisonment. In appeal, the High Court examined the evidence relating to age, consent and scientific reports.

Findings of Court:
The High Court held that the prosecution failed to prove beyond reasonable doubt that the victim was below 18 years. The school extract was not sufficient because it was based on an Anganwadi entry which was not proved; parents were not examined; and an identity document showed a different date of birth. It further held that since the victim was a consenting party and her age was not proved, the offence of rape and the POCSO offence were not established. The chemical analyser and DNA reports could not be used in the absence of proper proof, non-examination of analysts, and because the incriminating evidence was not put to the appellant under Section 313 CrPC.

Issues: (i) Whether the prosecution proved the age of the victim to be below 18 years on the date of the incident; (ii) Whether the consent given by the victim on the basis of a promise of marriage made the act non-consensual; (iii) Whether the DNA/chemical analyser reports were admissible and reliable when the analysts were not examined and the contents were not put to the accused.

Ratio Decidendi: The prosecution must prove the age of a victim with cogent and reliable evidence; a school extract based on an unproved Anganwadi entry and without examining parents is not sufficient. Incriminating scientific evidence must be specifically put to the accused under Section 313 CrPC, otherwise it is excluded. Where consent is established and minority is not proved, a conviction under Section 376 IPC and the POCSO Act cannot be sustained.

Result: The appeal was allowed. The judgment and order of conviction and sentence were quashed and set aside. The appellant was acquitted of all offences and directed to be released forthwith if not required in any other case.