Failure to establish victim's age and necessity of DNA evidence results in benefit of doubt for the accused.

Per Deepak Kumar Tiwari, J.

15.07.2024

1. This appeal is directed against the judgment of conviction and order of sentence dated 22.03.2021 passed by the Special Judge, Protection of Children from Sexual Offences Act 2012, Jashpur, Chhattisgarh in Special Criminal (POCSO Act) Case No.10/2020, whereby, the appellant has been convicted and sentenced as under :

2. Prosecution case, in brief, is that the prosecutrix (PW-3), aged about 13 years, lodged an FIR (Ex.P-6) on 08.06.2020 at Police Station Bagicha, Jashpur to the effect that on 5.1.2020, in the morning hours, when her parents had gone for doing labour work and she was alone in her house, the accused/appellant came therein and committed rape with her and also threatened to kill her if she disclosed the incident to anyone. The victim further stated that thereafter, the appellant used to enter the house whenever she was alone in her home and committed rape with her and this continued for five days. However, due to fear, she did not disclose the incident to anyone. Later on, when she got pregnant, she informed about the incident to her family members, which led to lodging of the present FIR.

3. Based on the aforesaid information, the investigation commenced. Statement of the victim was recorded under Section 164 of the Cr.P.C. Her School Admission Register was seized vide Ex.P-19, in which, her date of birth was recorded as 15.06.2008. The victim was medically examined by Dr. V. Bakhla (PW-4), who gave the MLC report (Ex.P-8), in which, the prosecutrix was found carrying pregnancy of 26 weeks. In the said report, the doctor has also found an old internal injury, but did not found any external injury on the body of the victim at the time of examination. Her secondary sexual characteristics were not developed fully. The appellant was examined by Dr. C.R. Bhagat (PW-1) and he found him capable of performing sexual intercourse.

4. After completion of investigation, the charge sheet was filed. During the trial, the appellant abjured his guilt and claimed to be tried. In order to prove its case, the prosecution examined as many as 11 witnesses. In the statement recorded under Section 313 of the Cr.PC, the appellant pleaded innocence and false implication. However, he did not examine any defence witness. After evaluation of all the evidence on record, the trial Court convicted and sentenced the appellant as mentioned in para 1 of this judgment. Hence, this Appeal.

5. Learned counsel for the appellant would submit that the prosecution has failed to prove the age of the victim (PW-3). He submits that there is inconsistency in the statement of the prosecutrix. Even father of the victim RR (PW-2) has turned hostile and not supported the case of the prosecution and further, denied happening of the above incident. Learned counsel also submits that there is severe discrepancy in the school register (Ex.P-19) and Seizure memo (Ex.P-17) as in the school records, the date of birth of the victim has been recorded as ‘15.06.2008’, whereas, in the seizure memo, the same has been mentioned as ‘24.02.2008’. He submits that no primary document/evidence was produced by the father of the victim to prove the actual age of the prosecutrix and he has categorically deposed the estimated age of the prosecutrix to be 18-19 years and therefore, the age of the prosecutrix is doubtful. The next submission of learned counsel for the appellant is that Section 53-A was inserted in Section 53 of the Cr.P.C. by the Cr.P.C. (Amendment) Act, 2005, which came into effect from 23.06.2