Proper age determination under POCSO Act requires strict adherence to relevant documentation.

ORAL JUDGMENT

1. This appeal is filed by the appellant being aggrieved by the judgment of conviction dated 31.07.2019 and order on sentence dated 08.08.2019 passed in Special Case No.2/2018 on the file of II Additional District and Sessions Judge, Kodagu-Madikeri, Sitting at Virajpet.

2. The ranks of the parties before the Trial Court will be considered henceforth for convenience.

Factual matrix of the case:

3. It is the case of the prosecution that, on 13.03.2018 at about 10.00 p.m., the accused kidnapped the victim, who was a minor, from the house of the informant situated at Nehru Colony, Thithimathi, in his scooter bearing its No.KA-05-HL-3769 took her to the house of Kallira Jaya situated at Hosur Village. Both the accused and the victim were residing in the line house of Kallira Jaya, where the accused is stated to have committed sexual assault on the victim.

4. It is further stated that, on 18.03.2018, the accused took the victim to T.K.T Estate of Poduvada Arapattu Village. There also stayed in the line house and abused her sexually inside the house. A case came to be registered against him by the complainant. Thereafter, he was arrested and the victim was secured. After conducting the investigation, submitted the charge sheet.

5. The Trial Court recorded the conviction for the offences under Sections 363 , 376 of IPC and Sections 4 r/w 6 of the POCSO Act .

6. Heard Sri.Suyog Herele.E, learned counsel for the appellant and Smt.Rashmi Patel, learned High Court Government Pleader for the respondent – State.

7. It is the submission of learned counsel for the appellant that the appellant was a neighbour. There was a galata between the wife of the complainant and the mother of the appellant. In fact, the age of the victim has not been properly determined and the Trial Court while appreciating the evidence has failed to take note of the inconsistency. In fact, the age of the victim and the documents produced to demonstrate her age have not been properly appreciated.

8. It is further submitted that the school certificate produced by P.W.10 is not the document relevant for the purpose of considering or determining the age of the victim. In fact, the said specific age is contrary to the settled principle of law. Therefore, the judgment of conviction passed by the Trial Court is liable to be set aside and the appellant may be set at liberty. Making such submissions, learned counsel for the appellant prays to allow the appeal.

9. Per contra, the learned High Court Government Pleader for the respondent – State vehemently submitted that the school record produced by P.W.10 would indicate that the date of birth of the victim is 28.02.2002. As per the date of the incident, she was a minor. Hence, the said document would be relevant to determine the age of the victim. Hence, there is no infirmity in considering the said document.

10. It is further submitted that the victim has supported the case of the prosecution. The medical evidence has also been appreciated properly. Hence, the judgment of conviction is required to be upheld. Making such submissions, the learned High Court Government Pleader prays to dismiss the appeal.

11. Having considered the rival submissions of the learned counsel for the respective parties, it is necessary to refer the judgment of the Hon'ble Supreme Court in the case of P.YUVAPRAKASH v. STATE REP. BY INSPECTOR ON POLICE , [(2023) SCC Online 846], wherein, the Hon'ble Supreme Court categorically held in paragraph Nos.11, 12, 13 and 14 as under:

“11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act which reads as follows