The burden of proving the victim's minority lies on the prosecution. School records regarding age are inadmissible unless the author of the entry is examined or the source is verified; in the absence of such proof, the conviction cannot be sustained based on contradictory testimony.

Judgment on Board

Per Ramesh Sinha, Chief Justice

1. This criminal appeal has been preferred by the appellant under section 374 (2) of the Criminal Procedure Code against the impugned judgement dated 05.04.2024 passed by learned Additional Sessions Judge (FTC), Dantewada, District South Bastar Dantewada, in Special Sessions (POCSO) Case No. 12/2022, whereby the appellant has been convicted and sentenced in the following manner:

2. Since the sentence under Section 4(2) of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) has been awarded, the learned Trial Court noted that the conviction under Section 376(3) of the IPC merges therein for the purpose of sentencing as per Section 42 of the POCSO Act, ensuring the appellant is punished under the provision carrying the greater degree of punishment.

3. The brief facts of the case are that on 20.01.2022, a written complaint (Exhibit P-5) was submitted by the victim before Police Station Bijapur stating therein that her engagement with the present appellant had been solemnized with the consent of both families, and thereafter the appellant, on the pretext of marriage, established physical relations with her against her will and later demanded dowry for marriage. It was further alleged that upon refusal to fulfill the said demand, the appellant declined to marry her. On the basis of the said complaint, the police registered First Information Report (Exhibit P-6) in Crime No. 10/2022 for the offences under Sections 376 and 506 of the IPC and Section 4 of the POCSO Act and Section 4 of the Dowry Prohibition Act against the appellant and commenced investigation.

4. During the course of investigation, the victim was sent for medical examination to the District Hospital, Bijapur, pursuant to which her medical examination was conducted and report (Exhibit P-8) was prepared. The medical officer did not find any external or internal injuries on the body of the victim and opined that no definite conclusion regarding recent sexual intercourse could be given. The victim was found to be physically developed and her hymen was noted to be ruptured. During examination, samples including pubic hair, perineal slides and swabs, high vaginal slides and swabs and nail clippings were collected, sealed and handed over to the police for chemical examination. The seized articles were thereafter sent to the Forensic Science Laboratory, and as per the FSL report (Exhibit P-16), human spermatozoa were detected on certain exhibits, though no conclusive opinion regarding the alleged offence could be drawn therefrom.

5. With respect to the age and date of birth of the victim, during investigation the police seized the admission discharge register of the School, vide seizure memo (Exhibit P-2), wherein the date of birth of the victim was recorded, and after retaining its attested copy (Exhibit P-4C), the original register was handed back to the school authorities on supurdnama (Exhibit P-3). The spot map of the place of occurrence was prepared by the Investigating Officer (Exhibit P-7) and a map was also prepared by the Patwari (Exhibit P-17). The appellant was arrested on 01.02.2022 vide arrest memo (Exhibit P-11) and was thereafter sent for medical examination to the District Hospital, Bijapur, where he was examined by the medical officer, who opined in his report (Exhibit P-13) that the appellant was physically fit and capable of performing sexual intercourse.

6. During the course of investigation, the statements of the witnesses were recorded under Section 161