‘Prosecution Has Failed To Prove Victim’s Age Beyond Reasonable Doubt’: Gauhati High Court Sets Aside Conviction In POCSO Case

The Gauhati High Court on Tuesday set aside the conviction and order of sentence passed by the trial court under Section 6 of POCSO Act against a man, on the ground that the prosecution has failed to prove beyond reasonable doubt that the victim was below 18 years of age at the time of incident.

The single judge bench of Justice Malasri Nandi observed:

“It is well settled that ossification test or other medical test though is a guiding factor for determining the age but it is not conclusive or incontrovertible and leaves a margin of error of two years on either side. It is also a settled position that the benefit of doubt with regard to the age of the victim always goes in favour of the accused. In the instant case, the radiologist has assessed the age of the victim 16 to 17 years. Considering the margin of error in age even as one year, the victim would be 18 years of age and would not be a child within the meaning of Section 2(d) of the POCSO Act.”

The victim lodged an FIR on March 31, 2017 alleging that the appellant on the pretext of marrying her, developed a relationship with her and impregnated her after having sexual intercourse with her on multiple occasions. It was further stated in the FIR that though the victim requested him repeatedly to take her to his house but he did not pay heed to her request.

On receipt of the complaint, a case was registered under Section 6 (Punishment for aggravated penetrative sexual assault) of the POCSO Act, 2012. After completion of investigation, charge-sheet was submitted against the accused-appellant under Section 6 of POCSO Act.

The Trial Court on December 05, 2020, convicted the accused-appellant under Section of POCSO Act and sentenced him to undergo rigorous imprisonment for ten years and directed him to pay compensation of Rs.50,000/- to the victim girl and her male child as provided under Section 357(3) CrPC.

The Amicus Curiae, Z. Hussain argued that the prosecution only proved the age of the victim through medical evidence as there was no birth certificate or any other document to prove the actual age of the victim. It was further submitted that it is the established principle of law that there is a margin of error of two years on either side and the benefit of doubt always goes in favour of the accused.

The Amicus Curiae contended that except the oral testimony of the victim, there is no other evidence to substantiate that the accused committed sexual intercourse with the victim and was responsible for her pregnancy. It was argued that the child being born and alive, no DNA or any sort of medical examination was conducted to prove the paternity of the child.

On the other hand, the Additional Public Prosecutor (APP), S. H. Bora submitted that the accused-appellant was well aware that the victim was below 18 years of age despite which he has subjected the victim to penetrative sexual assault.

The court noted that the evidence of the victim indicates that the relationship between her and the accused-appellant was consensual. It further observed that the evidence on record reveals that there are no documents like birth certificate or school certificate to prove the age of the victim and the prosecution has proved the age of victim through radiological report.

“Though the victim stated that she was born on 15.08.2004 but she has failed to produce her birth certificate during trial. P.W.1 and P.W.2 who are the grandparents of the victim stated that at the time of the incident, the age of the victim girl was 13 years but to substantiate their oral evidence, no any document has been submitted before the trial court. It transpires that the age of the victim has been proved through the radiological report,” it added.

The court further noted that the evidence of the medical officer (PW6) indicates that the radiologist has assessed the age of the victim as 16 to 17 years. However, it added, the radiologist, who examined the victim to determine her age, was not examined before the trial court to prove the radiological report.

“P.W.6, the medical officer is not the author of the report conducting determination of the age of the victim. P.W.6 while testified in the trial court stated that as per report of radiologist, the age of the victim was 16 to 17 years at the relevant time. As the prosecution has not examined the said doctor(radiologist) who could explain the basis of such opinion, the report has no evidentiary value in the eye of law,” the court said.

The prosecution has also not adduced any evidence regarding the “victim's physical growth and development and secondary sexual character” which leaves room for ample doubt with regard to the correct age of the victim and the benefit of which must necessarily go in favour of the appellant, said the court.

“The prosecution has, therefore, failed to prove beyond reasonable doubt that the victim was below 18 years of age. This was relevant as the evidence on record indicates that the physical relationship between the appellant and the victim was consensual. In the absence of evidence to prove that the victim was below 18 years of age, the provisions of the POCSO Act cannot be invoked and consensual relationship would not constitute the offence of rape within the meaning of Section 375 of the IPC,” the court opined.

Case Title: S v. The State of Assam

Citation: 2023 LiveLaw (Gau) 80

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