Relationship Was Consensual, Prosecution Failed To Prove She Was Minor: Gauhati High Court Acquits POCSO Convict

The Gauhati High Court recently set aside the conviction of an accused under Section 6 of POCSO Act and Section 363 of IPC on the ground that the prosecution failed to prove the age of victim to be less than 18 years at the time of commission of alleged offence. The court also said the relationship between the accused and the victim was consensual.

The single judge bench of Justice Mridul Kumar Kalita observed that it is a settled principle now that in case of determination of age on the basis of the opinion of the radiologist, the benefit of the margin of error should always go to the accused.

"In the instant case, the doctor has opined that the age of the victim was below 18 years (16 to 17 years) and if we add 2 (two) years of margin of error to 16 (sixteen) to 17 (seventeen) years, it will come 18 (eighteen) to 19 (nineteen) years, in which case, the victim may not be regarded as a minor as under section 2(1) (d) of the POCSO Act, 2012 a child is defined as any person below the age of 18 years. Same is also the case in case of offence under section 363 of the Indian Penal Code. In view of above circumstances, this court is constrained to hold that the prosecution side has failed to prove that the age of the victim was less than 18 years when the alleged offence was committed and the benefit of the same would go to the accused," said the court. 

On May 01, 2017, the father of the victim lodged an FIR alleging that his daughter (victim) was kidnapped by the accused-appellant at about 8:00 a.m. on the same day. The Police filed a charge-sheet against the accused-appellant under Section 363, Section 376 of IPC and Section 4 of the POCSO Act, 2012.

The trial court on June 11, 2019 convicted the appellant under section 363 of the IPC as well as section 6 of the POCSO Act and sentenced him to undergo six months imprisonment under section 363 of the IPC and 10 years of imprisonment. The appellant preferred an appeal under Section 374 of CrPC assailing the impugned judgment and order of the Trial Court.

The counsel appearing for the appellant submitted that Trial Court has relied mainly on the testimony of the victim for arriving at a finding of conviction against the appellant, however, the testimony of victim is unworthy of any credence as she has stated the different versions of the incident in her statement recorded under section 164 CrPC vis-à-vis while deposing before the court.

It was further submitted that the prosecution side has failed to adduce any credible evidence to prove the age of the victim girl and the Trial Court relied on inadmissible evidence in coming to the finding that the victim is a minor.

The APP, D. Das, submitted that from the materials available on record, the case appears to be a case of romantic relationship between consensual young persons.

The Court noted that as per the documentary evidence, no certificate regarding age of the victim girl was exhibited by any of the prosecution witnesses to prove the age of the victim girl.

“However, said birth certificate was nor exhibited neither it is available on record and no explanation is given as to why the said birth certificate was not produced before the learned trial Court during trial as a documentary evidence to prove the age of victim girl. Failure on the part of the prosecution side to produce the birth certificate, if it was available, would only lead to the adverse presumption against the prosecution side under section 114(g) of the Indian Evidence Act, 1872,” said the court.

The court further pointed out that as per the testimony of other prosecution witnesses, the victim left her home alone  and she boarded the auto-rickshaw on her own, on the date of incident.

“The victim travelled with the appellant in auto-rickshaw, van and train and stayed with him for about eight months and there is no evidence that she was ever detained by the appellant, rather, in her statement made under section 164 Cr.P.C., she had stated that she stayed with the appellant as husband and wife. The fact that she narrated different versions of the incident at different stages also makes her testimony unreliable. Thus, this court is of considered opinion that the relationship between the appellant and the victim was consensual,” the court said.

Thus, the court held that the prosecution side has failed to prove the charges under section 6 of the POCSO Act, 2012 as well as under section 363 of the IPC beyond reasonable doubt and the appellant is entitled to get the benefit of doubt.

Accordingly, the court set aside the impugned judgement and order of the Trial Court and acquitted the accused-appellant.

Case Title: Sri Utpal Debnath v. The State of Assam & Anr.

Coram: Justice Mridul Kumar Kalita

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