Mannam Prasad vs The State Of A.P.,
2023 Latest Caselaw 4517 AP

         THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

                  CRIMINAL APPEAL No.106 of 2016
JUDGMENT:

1. Accused in Sessions Case No.06 of 2013 on the file of the learned

Special Judge Constituted under Protection of Children from Sexual

Offences Act-cum-I Additional Sessions Judge, Guntur [for short, "trial

Court"], is the appellant herein. He was tried for the offence punishable

under Section 6 of the Protection of Children from Sexual Offences Act,

2012 [for short, "POCSO Act"] and Section 506(2) of the Indian Penal

Code, 1860 [for short, "IPC"].

2. Vide Judgment, dated 29.09.2015, the learned Sessions Judge

convicted the Accused under Section 235(2) of Cr. P.C. Accordingly, he

was sentenced to suffer Rigorous Imprisonment for Ten (10) Years and to

pay a fine of Rs.10,000/- (Rupees Ten Thousand only) for the offence

punishable under Section 6 of the POCSO Act. However, the accused was

acquitted under Section 235(1) of Cr.P.C. for the offence punishable

under Section 506(2) of IPC.

3. For the sake of convenience, the parties will be referred to as

arrayed before the trial Court.

4. Considering the nature of the crime, I am not disclosing the names

of victim, members of her family, as well as the witnesses of that area

(locality); therefore, wherever required, they have been described by their

witness number.

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5. The prosecution case, as elucidated in the written report-Ex.P1,

dt.13.05.2013 submitted by PW.1, unfolds as follows:

Approximately, four months before submitting Ex.P1 report, the accused visited her residence, in the absence of her mother. He compelled her to participate in sexual intercourse and resorted menacing threats, even going to the extent of brandishing knife to threaten self harm by stabbing himself in the neck; he tied a thail around her neck infront of image of Lord Jesus proclaiming her as his wife. She believed his version and had sexual intercourse with him. Notably, the accused's brother's wedding was slated for 26.06.2013. Approximately, two weeks before this event, the accused revisited her house. At this juncture, she requested him to disclose their relationship to his parents. However, his response was callous as he declared his intention to marry his niece i.e., sister's daughter. She revealed her pregnancy, but the accused denied any responsibility for the paternity. Subsequently, P.W.1 in conjunction with P.W.2 (the victim's mother) and P.W.3 (the victim's sister) went to Nagarampalem Police Station and lodged Ex.P1 report.

6. Based on the report, the Police registered as a case in Crime

No.199 of 2013 under Section 420, 376, 509 of IPC of Nagarampalem

Police Station. Ex.P9 is the F.I.R. During the course of investigation, the

Investigation Officer recorded the statements from various witnesses

including the victim. The Investigation Officer gathered the medical

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evidence and other relevant evidence. Subsequently, the accused was

arrested. Upon concluding the investigation, the Investigation officer,

P.W.15 submitted a charge sheet against the accused for the offences

punishable under Sections 420, 376, 509 of IPC and Sections 4 & 6 of

the POCSO Act.

7. The Special Judge Constituted under the Protection of Children

from Sexual Offences Act-cum-I Additional District and Sessions Judge,

Guntur, has taken on file as Sessions Case No.06 of 2013. On

appearance, furnished the copies of the documents to the accused under

Section 207 Cr.P.C. Based on the material available on record, Charges

under Section 6 of POCSO Act and Section 506(2) of IPC have been

framed against the accused, read over and explained to the accused. He

pleaded not guilty and claimed for trial.

8. The Prosecution examined P.Ws.1 to 15 to prove the case and got

marked Exs.P1 to P10. On behalf of the accused, no oral or documentary

evidence was adduced. After completing the prosecution evidence,

learned Sessions Judge examined the accused under Section 313

Cr.P.C., concerning the incriminating circumstances appearing against

him in the evidence of prosecution witnesses, which he denied. The

defence was of total denial and false implication.

9. After considering the necessary material available on record, the

learned Sessions Judge found the guilt of the accused/appellant and

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convicted him as stated supra. Aggrieved by which, the present appeal

has been preferred.

10. At length, I have heard the submissions by Sri Raja Reddy Koneti,

learned counsel for the appellant/accused and learned Assistant Public

Prosecutor, for the respondent/State. I have gone through the entire

evidence produced before the trial Court.

11. Learned counsel for the appellant contends that the letter written

by the School Headmaster should not be considered conclusive evidence

of the victim girl's age, since its authenticity or accuracy has not been

sufficiently established; there is no clear and conclusive evidence

demonstrating that the victim was below 18 years; according to the

victim girl's testimony, the relationship was consensual between adults,

should not lead to the application of the penal provisions relating to rape

or penetrative sexual assault; there are numerous inconsistencies in the

statement given by the informant and the witnesses examined by the

Prosecution; these inconsistencies cast doubt on the reliability of the

evidence and make it risky to convict the accused under the POCSO Act;

the victim's statement cannot always presumed to be gospel truth to

record conviction; the victim's statement is not credible; it has been

vociferously argued on behalf of the appellant that during the course of

investigation or thereafter no DNA test of the child was done to

conclusively establish that the victim girl was impregnated by the

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appellant/accused; the appellant is innocent and has been falsely

implicated based on suspicion; independent witnesses have not

supported the prosecution's version and have even been declared hostile

by the prosecution; the trial court has failed to consider and appreciate

the prosecution evidence in light of settled principle of criminal

jurisprudence; the impugned Judgment and order passed by the trial

Court is illegal and unjustified which is liable to be set aside and appeal

be allowed.

12. Per contra, the learned Assistant Public Prosecutor, for the State

opposed the same, contending that the Prosecution has successfully

demonstrated that the accused committed an aggravated penetrative

sexual assault on the victim girl, an offence punishable under Section 6

of the POCSO Act. He strongly supported the findings made by the

learned trial Judge. He submitted that the testimony provided by the eye

witnesses and the medical evidence conclusively established that the

accused engaged in sexual act with the victim girl against her will; the

vital prosecution witnesses remained steadfast in their statements during

cross-examination; their testimony in Court was consistent with the

statements they made during the investigation.

13. I have perused the material papers, the deposition of the

witnesses, and the trial Court's Judgment. I have given my thoughtful

consideration to the rival contentions made on behalf of the parties. After

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hearing the learned counsel for the parties and the case facts, while

adverting to the arguments so advanced, the following question would

arise for determination:

Whether the Prosecution was able to bring home the guilt of the accused for the offence punishable under Section 6 of the POCSO Act, beyond a reasonable doubt?

P O I N T:

14. To appreciate the rival contentions made by the learned counsel

appearing for both parties, it will be proper to reproduce the salient

portion of significant evidence of the prosecution witnesses.

15. The victim girl was examined as P.W.1; PW.2 is her mother; PW.3

is her elder sister; PWs.4 to 9 are all neighbours of the victim. According

to P.W.1's testimony, she studied up to 7th class in SKBM High School,

Guntur; she was familiar with the accused, who lived nearby; around

four months before the incident occurred, the accused began pursuing

her, expressing his love and desire to marry her; however, she

consistently refused his advances; approximately four months prior to

reporting the incident to the police, when her mother was not at home,

the accused entered her house and compelled her to engage in sexual

intercourse; he made a threat saying he would harm himself by stabbing

his neck with a knife, if she didn't comply; after this, he tied a thali

around her neck in front of picture of Lord Jesus, claiming that she was

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his wife and had permission to have sexual intercourse with her;

following this incident, the accused continue to engage in sexual acts

with P.W.1. She disclosed that she became pregnant and requested that

the accused take her to his home; however, he declined her request; she

subsequently, confided in her mother and elder sister about her

pregnancy. Then, they approached the accused's parents urging them to

accept her into their household, but their plea was met with refusal; so,

thereafter, PW.1 along with her mother and sister visited Nagarampalem

Police Station and submitted an Ex.P1-report. PW.1 stated that she gave

a birth to a baby boy, but the infant passed away within ten days;

according to her, at the time of the incident, she was about 17 years old.

16. The evidence of PW.15, the then Inspector of Police, Nagarampalem

Police Station, shows that on 13.05.2013 at about 10.00 A.M., P.W.1 to

P.W.3 came to the Police Station and lodged Ex.P1 report. Based on the

same, he registered a case in Crime No.199/2013 under Section 420,

376, 509 IPC Ex.P9 is the F.I.R. Later, he sent the victim Girl to GGH,

Guntur for medical examination through a woman Police Constable.

Then, P.W.15 proceeded to GGH Guntur, secured P.Ws.1 to 3, examined

them, and recorded their statements.

17. It is the PW.3's testimony that ten days before giving of the Ex.P.1

report, she noticed that PW.1 was not doing well and she was not eating

food and when she asked her about it, PW.1 revealed that two or three

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months earlier, the accused had visited their house and he asked PW.1

to engage in sexual activity with him. When she refused, he made a

threat saying he would harm himself, unless she agreed to have sexual

intercourse and she also revealed that before engaged in sexual activity,

the accused tied a thali in front of the picture of Lord Jesus.

18. According to PW.2's evidence, four days prior to the giving of a

police report by PW.1, PW.1 informed her elder daughter (P.W.3) that the

accused tied thali before the photo of Lord Jesus and threatened PW.1

that he would kill himself with a knife and participated in sexual course

with PW.1; and further, accused refused to marry PW.1; when she

questioned PW.1, she confirmed her pregnancy and stated that accused

is responsible for her pregnancy.

19. The PW.15's evidence further shows that he prepared the Ex.P.10

rough sketch of the scene of the offence, drafted Ex.P.5 observation

report, and photographed the crime scene in the presence of mediators.

Then, he secured P.Ws.4 to 11 and L.W.4-P.V.Sambasiva Rao and

L.W.10-K.Koteswaramma and examined them and recorded their

statements.

20. PW.4 and PW.5, the neighbours of PWs.1 and 2, did not support

the Prosecution's case. They were examined to establish that 15 days

before the giving of the report, they were informed by PW.1 that the

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accused cheated her by participating in sexual intercourse on the pretext

of marrying her. Later, he refused to marry her.

21. The PW.10's evidence shows that he is a photographer in Guntur.

He has a photo studio under the name and style of Venkateswara Photo

Studio opposite the Liberty Theatre. The said evidence of PW.10 is not

disputed. It is elicited that at the instance of Police, he is taking

photographs relating to several cases. His evidence shows that on

13.05.2013, he went to Sivaram Nagar at the request of the Police; he

took Ex.P.4 (set of three photographs).

22. PW.11 supported to the Prosecution's case by deposing that in his

presence, the Police inspected the scene of the offence, which was the

rented house of PW.1, and the photographer took photos of the scene of

the offence. Police prepared a scene observation report. As it is not the

Prosecution's case that any incriminating material was collected from the

scene of the offence to establish the guilt of the accused, PW.11's

evidence is formal to prove the investigation held by PW.15.

23. PW.15's evidence shows that on 27.05.2013, he received credible

information about the presence of the accused; he, along with his staff,

surprised his house and arrested the accused. During the investigation,

he sent the victim girl to the Forensic Medical Department, Guntur

Medical College, Guntur, for age determination, but the victim girl

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refused; as such, the age of the victim girl was not furnished by the said

Department.

24. The evidence of PW.13, Assistant Professor, shows that on

06.07.2013, he received a requisition from the Inspector of Police,

Nagarampalem Police Station, to conduct a potency test on the accused.

Accordingly, he conducted the same, opining that there is nothing to

suggest that the accused is incapable of performing a sexual act and

issued Ex.P7-Potency Certificate. However, the accused disputed the

PW.13's version with regard to his examination by the doctor. However, it

is not his case that he could not perform sexual acts. It is also elicited

that the paternity of the foetus can be ascertained if the victim and the

accused are referred, and a necessary DNA test is conducted by taking

the amniotic fluent from the womb. It is a matter of regret that much

court time could have been saved if appropriate DNA samples were

drawn and it was established that the appellant herein was the father of

the child who died within 10 days of his birth. However, when it comes to

crimes committed by poor persons against other poor persons, the

investigation is of the kind as in this case.

25. P.W.14's evidence shows that on 13.05.2013 at about 1.00 P.M.,

she examined P.W.1 on the requisition given by W.P.C.3324 of

Nagarampalem Police Station and opined that victim girl/P.W.1 is

pregnant of 15 weeks at the time of her examination and issued Ex.P8-

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Wound Certificate. PW.14's evidence is not disputed in cross-

examination.

26. From the reading of the evidence, it is clear that the defence has

not disputed the Prosecution's case that as of 13.05.2013, the victim girl

was pregnant for 15 weeks.

27. The PW.6's testimony is significant, as his house is situated

opposite to the residence of PWs 1 and 2. PW.6 asserted that the accused

and PW.1 loved each other, with a desire to marry each other; they were

often seen together in the neighbourhood; however, for some reason,

their marriage did not take place. During PW.6's cross-examination, it

was revealed that he did not possess personal knowledge of physical

intimacy between the accused and PW.1. PW.7, an Advocate, stated that

on 12.05.2013 around 7.30 or 8.00 A.M, both P.W.1 and P.W.2

approached him; they informed him that the accused had claimed to love

PW.1 and in absence of P.W.2, accused engaged in sexual intercourse

with P.W.1 under the pretext of marriage. P.W.7 further testified that

when he called upon the accused and his parents, they disclosed that

the accused intended to be married to his uncle's daughter.

28. PW.8, the wife of PW.7, testified that PW.1 informed her that the

accused tied thali to the photo of Lord Jesus, and after that, he

participated in sexual intercourse with her. It is also her evidence that at

the request of PWs.1 to 3, her husband enquired about the accused and

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his parents; the accused informed him that he was not willing to marry

PW.1 and was interested in marrying his uncle's daughter.

29. PW.9 testified that at the instance of PW.2, PW.7 called the

accused and his parents and enquired about the matter, but they

informed that the accused's marriage would be performed with her

uncle's daughter.

30. PW.1 stated in cross-examination that the first incident occurred

four months before she reported to the Police. She never raised cries

when the accused participated in sexual intercourse with her. Prior to

the giving of the report, she had not informed her mother or sister that

the accused participated in sexual intercourse with her. The evidence of

PWs.1 to 3 shows a discrepancy in their evidence on the aspect of when

PW.1 informed them about the incident in question. PW.1 denied the

suggestion that she developed intimacy with the locality people, so she

became pregnant; then, she demanded the accused to marry her or pay

Rs.5,00,000/-, and when he refused, she gave a false report against him.

The defence has not disputed PW.1's pregnancy before lodging Ex.P.1

report to the Police.

31. Learned Assistant Public Prosecutor contends that from the very

inception, it was the Prosecution's case that the victim girl was a minor.

Although no medical examination was done on this, the Doctor (PW.14)

examined the victim girl, and issued a wound certificate, showing the

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victim girl's age as 17 years during the examination. More importantly,

Ex.P.6 letter issued by PW.12, School Headmaster, also shows the victim

girl's age was less than 18 years at the time of the incident, the trial

Court is also satisfied with the material placed before the Court regarding

the victim's age.

32. The learned counsel appearing for the appellant contended that

the procedure contemplated under Rule 12 of the Juvenile Justice (Care

and Protection of Children) Rules, 2007 (hereinafter referred to as "2007

Rules") is not followed in determining the victim's age. Indeed, neither the

Criminal Procedure Code nor the IPC or POCSO Act 2012 provide the

procedure for determining the victim's age. Section 67 of the Juvenile

Justice (Care and Protection of Children) Act, 2000 provides a procedure

for determining a juvenile's age.

33. The Hon'ble Apex Court in Jarnail Singh v. State of Haryana1,

deciding the issue of procedure for determination of age of victim of rape,

was of the view that the procedure for determination of juvenile's age as

provided in Rule 12 (supra) may be adopted for determination of victim's

age. It is held as under:

"22. On the issue of the determination of the age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of

1 (2013) 7 SCC 263

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Children) Act, 2000. Rule 12, referred to hereinabove, reads as follows:

"12.Procedure to be followed in determination of age.--(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with the law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with the law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the School (other than a play school) first attended, and in the absence whereof;

(iii) the birth certificate given by a corporation, a municipal authority, or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

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(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save, and except where further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.

(6) The provisions contained in this Rule shall also apply to those disposed of cases where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule (3) and the act, requiring dispensation of the sentence under the act for passing an appropriate order in the interest of the juvenile in conflict with the law."

34. Given the above settled legal position, it is clear that even though

Rule 12 is strictly applicable only to determine the age of a child in

conflict with law, I am of the view that the aforesaid statutory provision

should be the basis for determining age, even of a child who is a victim of

crime. Thus, it is clear that for the determination of the age of the victim,

primacy shall be given to the Date of Birth (for short, "DoB") mentioned

in the matriculation (or equivalent) certificate, in the absence thereof,

DoB mention in the School first attended by the victim shall be taken

into consideration, in absence of both, the entries made by a Corporation

or a Municipal authority or a Panchayat regarding DoB shall be taken

into account and finally if none of those mentioned above document

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containing DoB is available, medical evidence regarding age of the victim,

shall be taken into consideration. It is clear that neither merely ocular

evidence nor any other document shall be considered for age

determination.

35. Now, the question arises as to whether the evidence produced

before the trial Court regarding the victim's age is in compliance with

Rule 12 of the Juvenile Justice (Care and Protection of Children) Rule,

2007.

36. P.W.15 testified that he had written a letter to the Head Master,

SKBM Municipal Corporation High School, requesting information about

the victim girl's date of birth and he provided Ex.P.6, which indicates

that the victim girl's date of birth was recorded as 18.05.1998. To

corroborate the authenticity of Ex.P.6-letter, the Prosecution relied on

the testimony of P.W.12, the Head Master of the School. P.W.12 stated

that P.W.1 studied 6th class in their School during 2008-09 academic

year; PW.12 confirmed that after verifying the school's records, he sent a

letter to the Inspector of Police at Nagarampalem police station; PW.12

produced the admission record of P.W.1.

37. In the cross-examination, P.W.12 admitted that he did not

include the PW.1's birth certificate or any declaration from her parents

with Ex.P.6 letter; PW.12 acknowledged that he had not obtained the

P.W.1's birth certificate. P.W.12 also stated that there is a possibility of

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furnishing false date of birth by some of the students; he cannot say

whether P.W.1 furnished false date of birth; he had not collected any

affidavit from the P.W.1's parents to support the date of birth mentioned

in the letter; he did not attach a copy of the school record to Ex.P.6.

38. In connection with the age, P.W.1 stated in cross-examination

that she studied up to 7th class in SKBM High School, Guntur. She

studied 6th class and 7th class in SKBM High School, A.T.Agraharam,

Guntur. Upto 5th class, she studied in Addanki. She studied in the

elementary School in Sivaram Nagar. P.W.1's evidence shows that though

she first studied in the elementary School in Sivaram Nagar, P.W.15 has

not taken steps to collect the P.W.1's date of birth from the School, where

she first attended. No explanation is forthcoming for not obtaining a

certificate from the School, where she first attended.

39. In Madan Mohan Singh v. Rajni Kant2, the Hon'ble Supreme

Court, while differentiating between the admissibility of a document and

its probative value, opined that a document may be admissible, but

whether the entries contained therein had probative value could be

examined in the facts and circumstances of a case. The relevant portion

of the ratio is extracted below for easy reference;

"18. Therefore, a document may be admissible, but whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a

2 (2010) 9 SCC 209

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particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma v. State of Bihar3, Ram Murti v. State of Haryana4, Dayaram v. Dawalatshah5, Harpal Singh v. State of HP.6, Ravinder Singh Gorkhi v. State of U.P.7, Babloo Pasi v. State of Jharkhand8, Desh Raj v. Bodh Raj9 and Ram Suresh Singh v. Prabhat Singh10. In these cases, it has been held that even if the entry was made in an official record by the official concerned in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases.

19. Such entries may be in any public document i.e. school register, voters' list or family register prepared under the Rules and Regulations, etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain v. State of UP11 and Santenu Mitra v. State of W.B12.

20. So far as the entries made in the official record by an official or person authorized to perform official duties are concerned, they may be admissible under Section 35 of the Evidence Act. Still, the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries recorded and what was the source of information. The entries in the school register/School leaving certificate required to be proved in accordance with the law, and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

21. For determining the age of a person, the best evidence is of his/her parents if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/nursing home, etc.,

3 (1969) 2 SCC 359: AIR 1970 SC 326 4 (1970) 3 SCC 21: 1970 SCC (Cri) 371: AIR 1970 SC 1029 5 (1971) 1 SCC 358: AIR 1971 SC 681 6 (1981) 1 SCC 560: 1981 SCC (Cri) 208: AIR 1981 SC 361 7 (2006) 5 SCC 584 : (2006) 2 SCC (Cri) 632 8 (2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266 9 (2008) 2 SCC 186: AIR 2008 SC 632 10 (2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194 11 AIR 1964 SC 1625 : (1964) 2 Cri LJ 590 12 (1998) 5 SCC 697: 1998 SCC (Cri) 1381: AIR 1999 SC 1587

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the entry in the school register is to be discarded. (Vide Brij Mohan Singh v. Priya Brat Narain Sinha13, Birad Mal Singhvi v. Anand Purohit 14, Vishnu v. State of Maharashtra15 and Satpal Singh v. State of Haryana16).

22. If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) or Sections 50, 51, 59, 60 and 61, etc. of the Evidence Act by examining the person having special means of knowledge, the authenticity of date, time, etc. mentioned therein. (Vide Updesh Kumar v. Prithvi Singh17 and State of Punjab v. Mohinder Singh18)"

40. In a decision reported in Babloo Pasi vs. State of Jharkhand19,

the Hon'ble Supreme Court observed thus:

"22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence.

X

27. Insofar as the Board is concerned, it is evident that it has mechanically accepted the entry in the voters' list as conclusive without appreciating its probative value in terms of the provisions of Section 35 of the Evidence Act, 1872. Section 35 of the said Act lays down that an entry in any public or other official book, register or record stating a fact in issue or relevant fact made by a public servant in the discharge of his official duty, especially enjoined by the law of the country is itself a relevant fact.

28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely : (i) entry that is relied on must be one in a public or other official book, register or

13 AIR 1965 SC 282 14 1988 Supp SCC 604: AIR 1988 SC 1796 15 (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217 16 (2010) 8 SCC 714: JT (2010) 7 SC 500 17 (2001) 2 SCC 524: 2001 SCC (Cri) 1300: 2001 SCC (L&S) 1063 18 (2005) 3 SCC 702: AIR 2005 SC 1868 19 2008(13) SCC 133

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record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or performance of his duty especially enjoined by law. An entry relating to the date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. (See Birad Mal Singhvi v. Anand Purohit20)

41. By placing reliance on the decisions cited above, this Court views

that an entry of the date of birth, as recorded in the School Register, is

relevant and admissible in evidence under section 35 of the Evidence Act.

However, such entry would be of no evidentiary value in the absence of

the material on the basis of which the age was recorded. There is

absolutely no evidence to prove who had given the date of birth of the

victim as 18.05.1998 at the time of her admission in the School in 6th

class with reference to Admission No.13419/2008-09. It is pertinent to

note that P.Ws.1 to 3 have not disclosed the victim's date of birth. On the

other hand, in the Ex.P1 report, the victim states that she is aged about

17 years. If the date of birth as disclosed in Ex.P6 is taken into

consideration, she would have just completed 15 years of age.

42. In such circumstances and in the absence of evidence regarding

the material on which the date of birth was recorded in the school

register, the entry regarding the victim's age in the admission register

has no probative value.

20 1988 Supp SCC 604

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43. The Prosecution has not examined the person having special

means of knowledge, authenticity of date, or time to prove the victim's

date of birth. As seen from the evidence of P.W.12, he addressed a letter

to the investigation officer based on the admission record of P.W.1. It

seems that he did not produce the admission register before the Court for

verification purposes but only placed the admission record of P.W.1. The

letter produced did not answer to the description of any class of

document specified in Rule 12 of 2007 Rules.

44. Thus, based on the document mentioned above, which is not a

matriculation certificate or the DoB certificate from the School first

attended, the victim's exact age cannot be determined. Thus, the

Prosecution has failed to produce any document as required by the 2007

Rules. Given the law laid down by the Hon'ble Supreme Court in Jarnail

Singh (supra), if the Prosecution fails to prove her age by a document as

required in sub-rule (i), (ii) and (iii) of aforesaid Rule 12, medical evidence

shall be relied upon as last option to determine her age.

45. Though, there is a provision for age determination by an

ossification test or any other medical age-related test to be conducted,

the Prosecution has not taken such steps. However, an ossification test

cannot be the sole criterion for age determination and a mechanical view

regarding a person's age cannot be adopted solely on the basis of medical

opinion by radiological examination. Such evidence is not conclusive but

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only a beneficial guiding factor to be considered in the absence of

documents mentioned in Rule 12 of the 2007 Rules.

46. This Court views that the Prosecution is not expected to produce

matriculation or equivalent certificates as the victim studied up to the 7th

class. In the absence thereon, it has to place the date of birth certificate

from the School first attended. The Prosecution has not placed such

certificate, and it has not offered any explanation. In the absence of the

same, the Prosecution is expected to produce the birth certificate given

by a Corporation or, a Municipal authority or a Panchayat. Still, such

certificate needs to be placed, and in the absence of certificates referred

to above, it is supposed to take steps of medical opinion from a duly

constituted Medical Board. Without following the procedure as

contemplated under Rule 12 of 2007 Rules, the Prosecution relied on

Ex.P6, which cannot be relied on, for the reasons indicated above. The

defence counsel contention that as the Prosecution did not establish that

the accused was less than 18 years old at the time of alleged commission

of offence and even according to PW.1's version that she consented to

sexual intercourse, the accused is entitled to the acquittal, cannot be

accepted.

47. Further, this Court finds that while ordinarily there is a

'presumption of innocence' vis-a-vis an accused, section 29 of the POCSO

Act reverses this position. Section 29 of the POCSO Act creates a

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'presumption of guilt' on the part of the accused if he is prosecuted for

committing, abetting or attempting certain offences. Section 29 reads as

follows:

"Presumption as to certain offences.--Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."

In the context of Section 29, the other provisions of the POCSO Act which also need attention are Section 30 of that statute, which is extracted herein below for ease of reference :

30. Presumption of culpable mental State.--(1) In any prosecution for any offence under this act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental State. Still, it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that Prosecution."

48. Under Section 4 of the Evidence Act, "whenever it is directed by

this Act that the court shall presume a fact, it shall regard such fact as

proved, unless and until it is disproved". However, it is open to the

accused to adduce such evidence for disproving the said compulsory

presumption, as the burden is unmistakably on him to do so. He can

discharge such burden either by eliciting answers through cross-

examination of the witnesses of the Prosecution or by adducing evidence

on the defence side or by both.

49. The position of law insofar as a presumption under Section 29 of

the POCSO Act is concerned, it becomes clear that although the

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provision states that the Court shall presume that the accused has

committed the offence for which he is charged under the POCSO Act

unless the contrary is proved, the presumption would operate only upon

the Prosecution first establishing foundational facts against the accused,

beyond a reasonable doubt. Unless the Prosecution is able to prove

foundational facts in the context of the allegations made against the

accused under the POCSO Act, the presumption under Section 29 of the

said Act would not operate against the accused. Even if the Prosecution

establishes such facts and the presumption is raised against the

accused, he can rebut the same either by discrediting prosecution

witnesses through cross-examination, demonstrating that the

prosecution case is improbable or absurd, or the accused could lead

evidence to prove his defence, in order to rebut the presumption. In

either case, the accused is required to rebut the presumption on the

touchstone of preponderance of probability.

50. First of all, the trial Court was supposed to decide the age of the

victim girl with reference to the Rule 12 of 2007 Rules. Thus, the

Prosecution has failed to produce any document as required by the 2007

Rules (supra) and also in view of the law laid down by the Hon'ble Apex

Court in Jarnail Singh (supra) to prove the age of the victim. In addition

to the above, the Prosecution has not produced reliable evidence to prove

the victim's age. However, by relying on the Ex.P6 document, the trial

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Court had dealt with the matter as if the victim was less than 18 years

old at the time of the commission of the offence. This Court is not

supposed to dispose of the matter by considering the victim's age was

more than 18 years as of the date of commission of the offence without

determining the victim's age as per Rule 12 of 2007 Rules. It deprives the

victim of being protected under the guise of the POCSO Act. Also, it

deprives the Court of drawing a presumption per Section 29 of the

POCSO Act and exonerating the accused to rebut the presumption.

51. A high responsibility lies upon the investigation agency to

investigate fairly. Any criminal offence is one against the society at large,

casting an onerous responsibility on the State, as the guardian and

purveyor of human rights and protector of law, to discharge its

sacrosanct role responsibly and committedly, always accountable to the

law-abiding citizenry for any lapse. The material on record depicts the

callous and casual approach of the investigation agency in not placing

the documents as contemplated under Rule 12 of 2007 Rules to

determine the Victim girl's age. If the investigation was faulty, it was not

the fault of the victims or the witnesses. A Court of law, to reiterate, has

to be involved in the quest for truth and justice and is not expected only

to officiate a formal ritual in a proceeding far-seeing an inevitable end

signalling a travesty of justice.

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52. In Maria Margarida Sequeira Fernandes V. Erasmo Jack de

Sequeira21, the Hon'ble Supreme Court held that:

33. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in discovering the truth. That is their mandate, obligation and bounden duty. The justice system will acquire credibility only when people are convinced that justice is based on the foundation of the truth.

53. In the case of a defective investigation, the Court has to be

circumspect in evaluating the evidence. It may have to adopt an active

and analytical role to ensure that truth is found by having recourse to

Section 311 or, at a later stage, also resorting to Section 391 instead of

throwing hands in the air in despair. It would not be right to acquit an

accused person solely on account of the defect; to do so would be

equivalent to playing into the hands of the investigating officer if the

investigation is designed to be defective. (See Karnel Singh V. State of

MP22)

54. In Paras Yadav v. State of Bihar23, the Hon'ble Supreme Court

held that if the lapse or omission is committed by the investigating

agency designedly or because of negligence, the prosecution evidence

must be examined dehors such omissions to determine whether the

evidence is reliable or not. The contaminated conduct of officials should

21 (2012) 5 SCC 370 22 (1995) 5 SCC 518 23 (1999) 2 SCC 126

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not stand in the way of courts getting at the truth by having recourse to

Sections 311, 391 of the Code and Section 165 of the Evidence Act at the

appropriate and relevant stages and evaluating the entire evidence;

otherwise, the designed mischief would be perpetuated with a premium

to the offenders and justice would not only be denied to the complainant

party but also made an ultimate casualty.

55. In Ram Bihari Yadav V. State of Bihar24, the Hon'ble Supreme

Court held that the courts are installed for justice-oriented mission and

thus, if a negligent investigation or omissions or lapses due to

perfunctory investigation are not effectively rectified, the faith and

confidence of the people would be shaken in the law-enforcing agency

and also in the institution devised for administration of justice.

56. Section 386 of the Code sets out the powers of the appellate Court.

To the extent it is relevant, it reads as follows:

"386.Powers of the appellate Court.--After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may--

(a)***

(b) in an appeal from a conviction--

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a court of competent jurisdiction subordinate to such appellate Court or committed for trial, or"

24 (1998) 4 SCC 517

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57. Section 311 of the Code empowers a criminal court to summon any

person as a witness though not summoned as a witness or recall and re-

examine any person already examined at any stage of any enquiry, trial

or other proceeding, and the Court shall summon and examine or recall

and re-examine any such person if his evidence appears to be essential

to the just decision of the case.

58. In Rajeswar Prasad Misra v. State of WB.25, the Hon'ble Apex

Court held thus:

"10. Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing, namely, to control discretion of the appellate Court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce Judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the Prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise."

59. In State of MP V. Bhooraji and others26, the Hon'ble Supreme Court held that:

"8... This is because the appellate Court has plenary powers for revaluation and reappraising the evidence and even to take additional evidence from the appellate Court itself or to direct such additional evidence to be collected by the trial court........

25 AIR 1965 SC 1887 26 (2001) 7 SCC 679

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60. Section 391 of the Code is another salutary provision which clothes

the courts with the power to effectively decide an appeal. Though Section

386 envisages the normal and ordinary manner and method of disposal

of an appeal, it does not and cannot be said to exhaustively enumerate

the modes by which the Court alone can deal with an appeal. Section

391 is one such exception to the ordinary Rule. If the appellate Court

considers additional evidence necessary, the provisions in Section 386

and Section 391 have to be harmoniously considered to enable the

appeal to be considered and disposed of in light of the additional

evidence. For this purpose, it is open to the appellate Court to call for

further evidence before the appeal is disposed of. The appellate Court can

direct the taking up of further evidence in support of the Prosecution; a

fortiori is open to the Court to direct that the accused persons may be

given a chance to adduce further evidence. Section 391 is in the nature

of an exception to the general Rule, and the powers under it must also be

exercised with great care, especially on behalf of the Prosecution, lest the

admission of additional evidence for the Prosecution operates in a

manner prejudicial to the defence of the accused. The primary object of

Section 391 is the prevention of a guilty man's escape through some

careless or ignorant proceedings before a court or vindication of an

innocent person wrongfully accused. Where the Court, through some

carelessness or ignorance, has omitted to record the circumstances

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essential to the elucidation of truth, the exercise of powers under Section

391 is desirable.

61. There is no restriction in the wording of Section 391 either as to the

nature of the evidence, that it is to be taken for the Prosecution only, or

that the provisions of the section are only invoked when formal proof for

the Prosecution is necessary. If the appellate Court thinks it is necessary

in the interest of justice to take additional evidence, it shall do so. There

is nothing in the provision limiting it to cases where there has been

merely some formal defect. The matter is one of discretion of the

appellate Court. As reiterated supra, the ends of justice are not satisfied

only when the accused in a criminal case is acquitted. The community

acting through the State and the Public Prosecutor is also entitled to

justice. The cause of the community deserves equal treatment at the

hands of the Court in the discharge of its judicial functions.

62. In the ultimate analysis, whether it is a case covered by Section 386

or Section 391 of the Code, the underlying object which the Court must

keep in view is the very reason for which the courts exist, i.e. to find out

the truth and dispense justice impartially and also ensure that the very

process of courts is not employed or utilized in a manner which gives

room to unfairness or lends themselves to be used as instruments of

oppression and injustice.

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63. In view of the foregoing discussion and in light of the settled legal

principles of law, this Court views that an opportunity shall be given to

the prosecution to establish the victim's age as per Rule 12 of 2007 Rules

by permitting to adduce additional evidence, otherwise, it would be

equivalent to playing into the hands of the investigating officer.

64. It is also pertinent to note that despite filing a Charge Sheet

against the accused under Section 376 IPC, the trial Court has not

framed the charge under Section 376 IPC. The crux of the matter is this:

Would there be an occasion for a failure of justice by adopting such a

course as to convict an accused of the offence under Section 376 IPC.

65. To consider the effect of omission to frame the charge, it is just and

proper to refer to Section 464 of Cr.P.C. which reads as follows:

" 464. Effect of omission to frame, or absence of, or error in, charge -

(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge, including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of the opinion that a failure of justice has, in fact, been occasioned, it may-

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

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Provided that if the Court is of the opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."

66. In Dalbir Singh vs. State of Uttar Pradesh27, the Hon'ble Apex

Court observed thus:

"17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this Judgment by making reference to each one of them. Therefore, in view of Section 464 CrPC, it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangaraboina Sreenu [(1997) 5 SCC 348 : 1997 SCC (Cri) 690] was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC."

67. On a careful perusal of section 464 Cr.P.C. and the Judgment in

Dalbir Singh (supra), it is clear that mere non-framing of charge would

not vitiate the Judgment of conviction if no prejudice has been caused to

the accused, and there is no failure of justice.

68. In Mohd. Hussain v. State (Govt. of NCT of Delhi)28, the Hon'ble

Apex Court observed thus:

27 (2004) 5 SCC 334 28 (2012) 9 SCC 408

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"33. xxxxx16. What is meant by „a failure of justice‟ occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani v. State of Karnataka29 thus: (SCC p. 585, para 23)

„23. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment30). The criminal Court, particularly the superior Court, should make a close examination to ascertain whether there was a failure of justice or whether it is only a camouflage.'

69. A two-judge Bench of the Hon'ble Supreme Court in Zahira

Habibulla H. Sheikh v. State of Gujarat31, known as the Best Bakery

case, extensively considered the jurisprudence of fair trial, powers of the

criminal Court under the Code and the Evidence Act, including retrial of

a criminal case; the Court also made the following observations:

"36. xxx It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all-comprehensive or exhaustive definition of the concept of a fair trial. It will not be correct to say that only the accused must be fairly dealt with. That would be turning Nelson's eye to the needs of society and the victims or their family members and relatives. Each has an inbuilt right to be dealt with fairly in a criminal trial."

38. A criminal trial is a judicial examination of the issues in the case. Its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the Prosecution and the

29 2001) 2 SCC 577: 2001 SCC (Cri) 358 30 1978 AC 359 : (1977) 2 WLR 450 : (1977) 1 All ER 813 (HL) 31 (2004) 5 SCC 158

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accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities. It must be conducted under rules that will protect the innocent and punish the guilty. The proof of charge, which has to be beyond reasonable doubt, must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by isolated scrutiny.

39. Failure to accord fair hearing either to the accused or the Prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law that condemnation should be rendered only after the trial in which the hearing is a real one, not a sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage- managed, tailored and partisan trial.

40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice".

70. Coming to the facts of the present case, P.W.1 testified that the

accused forced her to participate in sexual intercourse with him; he also

threatened that he would die by stabbing himself with a knife on his

neck if she refused to participate sexual intercourse with him; but, even

then she did not agree then he tied a thali around her neck at the photo

of Lord Jesus when she agreed for participating sexual intercourse with

him and accordingly, he participated in sexual intercourse with her; two

days thereafter also, he attended to her house and participated in sexual

intercourse by stating that if they participate in sexual intercourse

continuously his parents will perform his marriage with her. It is not in

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dispute that the PW.6's house is situated opposite to the house of PWs 1

and 2. It is his evidence that the accused and PW.1 loved each other,

they wanted to marry, and they used to move together in their colony,

but somehow, their marriage was not performed. It is elicited in PW.6's

cross-examination that he has no personal knowledge about the physical

contact between the accused and PW.1.

71. A Reference has been made in the State of Punjab V. Gurmit

Singh and others32, as to the amendments in 1983 to Sections 375 and

376 of the Penal Code, making the penal provisions relating to rape more

stringent, and also to Section 114-A of the Evidence Act with respect to a

presumption to be raised with regard to allegations of consensual sex in

a case of alleged rape. It is, however, significant that Sections 113-A and

113-B, too, were inserted in the Evidence Act by the same amendment by

which certain presumptions in cases of abetment of suicide and dowry

death have been raised against the accused. These two sections, thus,

raise a clear presumption in favour of the Prosecution, but no similar

presumption with respect to rape is visualized as the presumption under

Section 114-A is s extremely restricted in its applicability. This clearly

shows that insofar as allegations of rape are concerned, the evidence of a

prosecutrix must be examined as that of an injured witness whose

presence at the spot is probable, but it can never be presumed that her

32 (1996) 2 SCC 384

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statement should, without exception, be taken as the gospel truth.

Additionally, her statement can, at best, be adjudged on the principle

that ordinarily, no injured witness would tell a lie or implicate a person

falsely. We believe that it is under these principles that this case and

others, such as this one, need to be examined."

72. Section 90 of the Indian Penal Code says that if the consent had

been given under a misconception of fact, such consent obtained cannot

be construed as valid consent. Section 90 of IPC reads as follows:

"Consent known to be given under fear or misconception.--Consent is not such a consent as it is intended by any section of this Code if a person gives the consent under fear of injury or a misconception of fact. The issue raised in this case is squarely covered by the decision of the Hon'ble Supreme Court in the case of Pramod Surajbhan Pawar Vs. State of Maharashtra and Anr, wherein it held that:

The "consent" of a woman under Section 375 is vitiated on the grounds of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act.

73. There is a distinction between the mere breach of a promise and

not fulfilling a false promise. Thus, the Court must examine whether

there was made, at an early stage, a false promise of marriage by the

accused; and whether the consent involved was given after wholly

understanding the nature and consequences of sexual indulgence. There

may be a case where the prosecutrix agrees to have sexual intercourse

on account of her love and passion for the accused and not solely on

account of misrepresentation made to her by the accused, or where an

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accused on account of circumstances which he could not have foreseen,

or which were beyond his control, was unable to marry her, despite

having every intention to do so. Such cases must be treated differently.

74. Hence, it is evident that there must be adequate evidence to show

that at the relevant time, i.e. at the initial stage itself, the accused had no

intention whatsoever of keeping his promise to marry the victim. There

may, of course, be circumstances when a person having the best of

intentions is unable to marry the victim owing to various unavoidable

circumstances. The "failure to keep a promise made with respect to a

future uncertain date, due to reasons that need to be clarified from the

evidence available, does not always amount to the misconception of fact.

In order to come within the meaning of the term "misconception of fact",

the fact must have an immediate relevance.

75. As the charge under Section 6 of the POCSO Act is framed against

the accused, the accused is ordinarily, not expected to introduce

evidence suggesting that the victim consented to sexual intercourse

voluntarily, as the consent of a girl under the age of 18 years is legally

considered as invalid. In the event that the Prosecution fails to establish

that the accused was over 18 years old, that the evidence provided by

P.W.1 claiming that she gave consent based on a promise of marriage

made by accused may be relevant, when considering charge under

section 376 of the IPC as the consent, not vitiated by misconception of

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fact can be a factor in such a case. Without definitely determining the

victim girl's age as outlined in Rule 12 of 2007 Rules, it cannot be

concluded that she was over 18 years old. The Prosecution has not

placed necessary proof of the victim's age as required by Rule 12 of 2007

Rules. To provide a fair opportunity to the accused to present his

defence, the accused should be charged under Section 376 of IPC, if the

victim's age cannot be established, it allows the accused to address this

specific aspect of the case.

76. Merely because, the prosecution fails to establish the victim's age

less than 18 years old, if it is assumed that she is more than 18 years old

and convict the accused under section 376 of IPC without framing a

charge; without affording opportunity to the accused, it cannot be said

that there would be no failure of justice. The trial Court had sailed with

the trial in a casual and mechanical manner in relying on Ex.P6. In my

view, the learned Judge rendered the Judgment in utter ignorance of the

Rule 12 of 2007 Rules, which have to be applied concerning the facts and

circumstances of the case. In my view, the Prosecution has not placed

the documents as contemplated under Rule 12 of 2007 Rules and had

not taken appropriate steps in conducting victim's medical examination.

The impugned Judgment, therefore, resulted in a flagrant miscarriage of

justice.

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77. In view of the aforesaid analysis, the appeal is to be allowed by

setting aside the Judgment of the trial Court, by remitting the matter to

the trial Court to consider the framing of charge under section 376 of IPC

and to conduct retrial by permitting the prosecution to adduce additional

evidence to comply with Rule 12 of 2007 Rules strictly.

78. In the result, the Judgment passed by the learned trial Judge

convicting and sentencing the accused for the offence under Section 6 of

the POCSO Act, is set aside, and the matter is remitted back to the trial

Court to consider the framing of a charge under section 376 of IPC, if the

material on record warrants the same; and to conduct retrial by

permitting Prosecution to adduce additional evidence to comply with

Rule 12 of 2007 Rules strictly and to recall the witnesses that were

examined already by the Prosecution if they so desire. It is clear that

conducting a retrial does not mean the entire evidence already brought

on record will be erased. The trial Court has to reassess the evidence,

which is already on record and also receive any evidence oral and

documentary adduced by both parties and render the Judgment afresh

by assigning convincing reasons for the conclusions reached by it. The

trial Court has to dispose of the case, following the due procedure,

without being influenced by any of the observations made herein above,

within four (4) months from receipt of a copy of the Judgment in this

appeal.

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79. Appellant/Accused is hereby directed to appear before the learned

I Additional Sessions Judge, Guntur, on 05.10.2023 to take note of

further proceedings. Let a copy of this Judgment and order, along with

Lower Court records be sent back to the learned trial Court forthwith by

a special messenger without fail.

Miscellaneous applications pending, if any, in this appeal, shall

stand closed.

__________________________________ JUSTICE T. MALLIKARJUNA RAO

Date: 26.09.2023 SAK/MS

TMR, J Crl.A.No.106 of 2016

THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

CRIMINAL APPEAL No.106 of 2016 Date:26.09.2023

MS