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8. The trial Court on hearing the parties by the
impugned judgment and order has acquitted the accused,
holding that the prosecution has failed to prove that the victim
was a minor or aged below 18 years and that she was
subjected to forced sexual intercourse. The State has
challenged the said judgment and order in the above appeal.
9. Heard both side.
10. Learned HCGP for the State and Smt. Archana K.M,
learned Panel Advocate for HCLSC for respondent No.2,
reiterating the grounds of the appeal submit that victim has
admitted the relationship between herself and accused and the
fact of she being aged below 18 years was proved. Further the
victim being aged below 18 years was proved by the evidence
of PW.6/Vice Principal, who issued Study Certificate/Ex.P7 and
evidence of PW.9, who issued Ossification test report/Ex.P13.
The trial Court was in error in rejecting such evidence.
11. Per contra, Sri Hemanth Kumar S.R, learned
Counsel for respondent No.1/accused submits that basic fact of
victim being aged below 18 years was not proved. The
evidence on record clearly shows that the accused and PW.1
had romantic relationship, they married and after marriage
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they had consensual relationship. PWs.2 and 3/parents of the
victim did not speak anything about the age of the victim. The
prosecution did not adduce legally acceptable evidence to prove
the age of the victim. Hence, the trial Court was justified in
acquitting the accused.
12. On hearing both side and on examination of
materials on record, the question that arises for consideration
is "whether the impugned judgment and order of acquittal
suffers any illegality, infirmity or perversity?"
Analysis
13. As already noted, the fact of PWs.2 and 3 being the
father and mother of PW.1 is not under dispute. As per PW.1,
herself she was in love with the accused. Both of them eloped
from their village, married and then they cohabited with each
other.
14. It is settled proposition of law that in an appeal
against the order of acquittal, the scope of interference is
limited. Unless it is shown that the impugned judgment and
order of acquittal suffers patent illegality, arbitrariness or
perversity, the same cannot be interfered, merely on the
ground that another view is probable. This view of ours is
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supported by the judgment of the Hon'ble Supreme Court in
Prem Singh Vs State of Haryana . This Court has to examine
this matter in the light of the said legal position.
15. In the case on hand, the prosecution was required
to prove the following two aspects beyond reasonable doubt:
(i) That PW.1/victim as on the date of the offence was
aged below 18 years;
(ii) That the accused committed forced sexual
intercourse against her.
Reg. age of the victim:
16. The burden of proving the fact that victim was aged
below 18 years, beyond reasonable doubt was on the
prosecution.
17. The Hon'ble Supreme Court in Mahadeo Vs State of
Maharashtra and Another2 has held that the factors that apply
to assess the age of juvenile in conflict with law under Juvenile
Justice (Care and Protection of Children) Rules, 2007 ( for short
'JJ Rules') apply in assessing the age of victim also. The Hon'ble
(2013)14 SCC 88
(2013) 14 SCC 637
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Supreme Court in Para 12 of the above said judgment referring
to Rule 12(3) of JJ Rules held as follows:
"12. We can also in this connection make reference to a
statutory provision contained in the Juvenile Justice
(Care and Protection of Children) Rules, 2007, where
under Rule 12, the procedure to be followed in
determining the age of a juvenile has been set out. We
can usefully refer to the said provision in this context,
inasmuch as under Rule 12(3) of the said Rules, it is
stated that:
"12. (3) In every case concerning a child or
juvenile in conflict with law, the age
determination inquiry shall be conducted by
the Court or the Board or, as the case may be,
by 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
or a municipal authority or a Panchayat;"
Under Rule 12(3)(b), it is specifically provided that only
in the absence of alternative methods described under
Rules 12(3)(a)(i) to (iii), the medical opinion can be
sought for. In the light of such a statutory rule
prevailing for ascertainment of the age of a juvenile, in
our considered opinion, the same yardstick can be
rightly followed by the courts for the purpose of
ascertaining the age of a victim as well."
(Emphasis supplied)
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From the above, it becomes clear that, to prove the age of the
juvenile victim, the prosecution has to first produce
matriculation or equivalent Certificate, if available. Only in the
absence of that, date of birth certificate from the school first
attended has to be produced. In the absence of the above two,
the birth certificate given by the Corporation or Municipal
authority or Panchayath has to be produced. In the absence of
any of them, investigating officer has to resort to get the
ossification test of the victim done.
18. In the present case, PW.1/victim deposed that she
studied from 1st standard to 8th standard in Government Higher
Primary School, Sathi village and she joined Government Pre-
University College in K.R Nagar for 9th Standard. At the
relevant time, PW.6 was working as Vice Principal of
Government Pre-University College, K.R. Nagar. He deposed
that the victim was admitted into their school in 9th Standard.
As per their school records, her date of birth was 18.09.1999
and in that regard, he has issued Ex.P7/Study Certificate based
on the admission register entries.
19. From the above evidence it becomes clear that
Ex.P7 is not the document from the school first attended. There
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was no material to show that the victim had passed
matriculation. However, there was scope for the investigating
officer to collect the records from the first attended school,
which was not done. Without that, investigating officer resorted
to the ossification test. Even as per evidence of PW.9/doctor
who conducted ossification test and issued certificate/Ex.P13,
the age of the victim at the relevant time was between 17 and
18 years. Firstly, when the other best evidence was available in
terms of judgment in Mahadeo's case referred to supra,
resorting to ossification test was not required. Secondly, even
as per the said ossification test, the approximate age was
between 17 and 18 years.
20. The Hon'ble Supreme Court in para 64 of the
judgment in Vinod Katara V.s State of Uttar Pradesh3 has held
that ossification test is not conclusive for the age determination
because it does not reveal the exact age of the person. It was
further held that radiological examination leaves a margin of
error of two years on either side of the age range as prescribed
by the test, irrespective of whether the ossification test of
multiple joints is conducted. Thus, there is a margin of two
AIR 2022 SC 4771
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years on either side in age determined in the ossification test.
Therefore, the age of victim/PW.1 could be between 18 to 20
years. When the age proof is not accurate, the benefit of that
doubt should go to the accused. Hence, the trial Court was
justified in holding that the age of the victim was not proved by
legally acceptable evidence.
Reg. forced sexual relationship:
21. PW.1 is the alleged victim of sexual assault. She
categorically stated in her evidence that she had romantic
relationship with the accused, they eloped from their house,
married and they sexually cohabitated with each other. Trial
Court was justified in holding that the charges for the offences
punishable under Sections 366, 376(2)(i) and (n) of IPC,
Section 5(l) read with Section 6 of the POCSO Act and Section
9 of the Child Marriage Act were not proved beyond reasonable
doubt. For the aforesaid reasons, this Court does not find any
patent illegality or infirmity in the judgment and order of the
trial Court, warranting interference of this Court. Hence, the
following:
ORDER
Appeal is dismissed.
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Court places on record its appreciation for the able
assistance rendered by Smt. Archana K.M, learned Panel
Advocate for the High Court Legal Services Committee.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
PKN
