The Evidence Of Approximate Age Of Prosecutrix Cannot Take The Place Of Proof Of Exact Age: Patna High Court Acquits Accused In POCSO Case

The evidence of approximate age of the prosecutrix cannot take the place of proof of exact age, the Patna High Court observed while acquitting an accused in a POCSO case.

Arjun, the accused, was found guilty of rape of a girl aged about 13 years. He was convicted by the Trial Court of offences under Sections 366A and 376 of the Indian Penal Code and 4 of the POCSO Act.

In appeal, the High Court considered the question whether the prosecution has proved beyond reasonable doubts that the victim was under 18 years of age at the time of physical relation with the appellant to bring the case under the mischief of clause 'sixthly' of Section 375 of the Indian Penal Code. 

The court noted that case of the prosecution was that the victim was aged about 13-14 years and that the medical report  revealed that she was in between 15-16 years. The prosecution witnesses were not cross-examined nor any suggestion was put forward by the defence that the witnesses were making wrong statement regarding age of the prosecutrix, it noted. The prosecution case was that, she was a minor, and therefore her consent or no consent is immaterial for the purpose of consideration of charge against the accused.

The court referred to two Supreme Court judgment viz. Sunil v. The State of Haryana reported in AIR 2010 SC 392, State of Madhya Pradesh v. Munna @ Shambhoo Nath reported in (2016) 1 SCC 696, in which it was held that the evidence on approximate age of the victim would not be sufficient to any conclusion about the exact age of the victim.  In Jarnail Singh v. State of Haryana reported in 2013 CRI. L.J. 3976, the court noted, it was held hat the age of the victim of rape should be determined in the manner provided under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, there is no difference as regards minority between the child in conflict with law and the child who is victim of crime. Under Rule 12(3), preference is to be given to the school documents in determination of age of the victim. Only in absence of the school documents, the opinion of medical expert is permissible.

"Thus, it is evident from perusal of the Rule 12 above that only in absence of the school documents, other evidences are permissible to determine the age of the juvenile victim. In this case, the mother of the victim (PW-3) has said that the victim was a student of Class-VII. Therefore, school document of age of the victim was there which was deliberately not brought on the record by the prosecution. Even the report of ossification / radiological test was not produced to have opportunity to the defence to cross-examine the experts regarding scientific method adopted by them while performing such examination. Therefore, the evidence of exact date of birth of the victim which was available with the prosecution was not brought on the record and the evidence of approximate age cannot take the place of proof of exact age. Once the prosecution failed to prove that the victim was below 18 years of age, the above discussed evidence of her consent, assumes importance. As noticed above, the victim was in consensual relationship with the appellant. Therefore, charge under Section 376 IPC and 4 of the POCSO Act fails.", the bench observed.

Allowing the appeal, the court also observed that there is no prosecution case that a minor was induced to go for the purpose of illicit intercourse with another person and thus conviction of the accused is illegal under Section 366A of the Indian Penal Code also.

Case: Arjun Kumar @ Prince vs The State Of Bihar [ CRA (SJ) No.159 of 2018 ]

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