In absence of proof of the victim's age, consent becomes relevant under POCSO, leading to the acquittal of the accused.

JUDGMENT

The Criminal Appeal challenges the judgement dated 27.06.2022 passed in Spl.S.C.No.62 of 2019 by the learned Special Judge for Exclusive Trial of Cases under POCSO Act, Puducherry, convicting and sentencing the appellant/accused as follows:

2. The case of the prosecution is that the appellant and the victim were known to each other; that the appellant was aged 20 years at the time of occurrence and the victim was aged 14 years; that on 08.08.2017 at about 23.30 hours, the appellant kidnapped the victim girl from the lawful guardianship of her parents, took her to a nearby village and committed penetrative sexual assault, and thereby committed offences under Sections 366 and 376 IPC and Section 4 of the POCSO Act.

3. On the complaint given by the victim’s mother (PW3), an FIR was registered for “girl missing” by PW11, the Sub-Inspector of Police. Thereafter, the victim girl was secured and the investigation was handed over to PW12.

PW12 made arrangements to subject the victim to medical examination and also arranged for recording her statement under Section 164(5) Cr.P.C. After examining other witnesses, PW12 filed the final report for the offences under Section 366 IPC and Section 4 of the POCSO Act.

4. The Trial Court framed charges for the aforesaid offences. The prosecution examined 13 witnesses and marked Exs.P1 to P11 to prove its case. Upon appreciation of oral and documentary evidence, the Trial Court found the appellant guilty of the said offences and sentenced him as stated above.

5. The learned counsel for the appellant submitted that the victim had stated to the Doctor after she was secured that she had voluntarily gone with the appellant; that the earliest version of the victim indicated that she and the appellant were in a consensual relationship; and that the date of birth of the victim had not been proved by the prosecution and therefore the offence under the POCSO Act would not be made out.

6. Per contra, the learned Public Prosecutor (Puducherry) for the respondent submitted that the victim herself had stated her date of birth as 13.03.2003 and the appellant had not challenged the same; that in her statement under Section 164(5) Cr.P.C. and in her deposition before Court, the victim had stated that the appellant committed penetrative sexual assault; that the statement made by the victim to the Doctor has no bearing; and that the prosecution had established its case beyond reasonable doubt and there is no infirmity in the impugned judgment.

7. The learned Public Prosecutor (Puducherry) further submitted that the Doctor had found injuries in the genital part of the victim and therefore it cannot be said that it was a consensual relationship.

8. As stated earlier, the prosecution examined 13 witnesses. PW1 is the victim. PW2 is the uncle of the victim. PW3 is the mother of the victim. PW4 is the witness to the Crime Details Form (Ex.P3). PW5 is the Village Administrative Officer who attested the confession of the appellant. PW6 is the Social Worker in the Social Welfare Department, who recorded the statement of the victim. PW7 is the Police Photographer, who recorded the statement made before PW5. PW8 is the Sub-Inspector of Police who recorded the statement of the victim along with PW12. PW9 is the Doctor who examined the victim and issued the medical examinatio