Rough Estimation Of Prosecutrix's Age Given By Her Father Can't Be Used To Rebut Documentary Evidence: Delhi HC Upholds POCSO Conviction

The Delhi High Court recently refused to accept the rough estimation of age, given by a rape victim's father, to determine whether the offences under the POCSO Act are attracted.

Justice Mukta Gupta observed that to determine the age of a victim, suspected to be a minor, Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules 2007 applies. It provides that the first priority has to be given to the Matriculation or equivalent certificate and in the absence thereof, to the date of birth certificate from the school first attended other than a play school. 

In the instant case, the Bench noted that as per the date of birth recorded in the school first attended, the prosecutrix was a child in terms of Section 2(1)(d) of the POCSO Act as she was below the age of 18 years.

Thus, even if in the cross examination, her father had given a rough approximation of her age, the same cannot be taken as an exact estimation of the date of birth of the prosecutrix. It observed,

"This is all rough estimation based on his memory and he categorically stated that he could not tell exact difference of age between his other daughters and the prosecutrix and the age difference between the prosecutrix and the youngest child. The testimony of this witness cannot be used to rebut the documentary evidence giving the age of the prosecutrix who got admitted in the school in the year 2001 in Delhi at the school first attended."

Background

In this appeal, the appellant challenged the impugned judgement whereby he had been convicted of Section 376 IPC (punishment of rape) read with Section 4 (Punishment for penetrative sexual assault) of POCSO. His grounds for challenge were – the prosecutrix is an adult, she is married to the appellant of her free will and had given consent for sexual intercourse.

The prosecutrix on the other hand deposed that she was kidnapped by the appellant in May 2013, threatened to marry him and subjected to forceful sexual intercourse over a span of 25 days. Thereafter, she was rescued by her father with the help of police.

During trial, the prosecutrix's father had stated that he was married in the year 1987 and had nine children in all, out of which, the youngest child had expired. He deposed that his first child was born after about two years of marriage and there was a gap of 2 to 2½ years between each child. As per the prosecutrix, she had six sisters and one brother and two sisters were elder to her and that she was the third child in the family.

In this backdrop the appellant argued before the Court that the prosecutrix was a major at the time of incident. He submitted that considering the age gap between first child and thereafter, the prosecutrix was born in the year 1993 and as on the date of alleged incident, i.e. in May 2013, she was approximately 20 years old and hence, major.

He further argued that even given the margin of 2½ years gap between two children, she was still above 18 years of age at the time of alleged incident. Further, even the father of the prosecutrix stated that his second daughter was born somewhere around 1991 to 1992 and thus, in the year 2013, she was 21 to 22 years old. According to the father, after the second daughter, one more child was born who subsequently expired and thereafter, the victim was born. Even taking this gap into consideration, the prosecutrix was a major at the time of incident, it was contended further.

The prosecution largely relied on the date of birth certificate from the school first attended by the prosecutrix, which mentioned her date of birth as 10th January 2001. Thus it was contended that she was a minor as in May 2013.

The appellant claimed that this was not first school which the prosecutrix attended, and she had gone to school in the village itself.

Findings

At the outset, the Court noted that the categorical statement of the prosecutrix which was tested on extensive cross examination falsifies the claim of the appellant in his statement made under Section 313 CrPC that the proseuctrix had gone with him of her own free will and performed the Nikaah, hence, proving the commission of offence punishable under Section 376 IPC.

Next, the Court considered the controversy surrounding the prosecutrix's age. It noted that 

Case Title: Mohd. Afsar v. State, Crl. A. 274/2020

Citation: 2022 LiveLaw (Del) 109

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