The Gauhati High Court has held that a conviction under Section 4 of the Protection of Children from Sexual Offences Act, 2012 cannot be sustained where the prosecution fails to establish that the victim was below eighteen years of age at the time of the offence. However, the Court observed that the offence of rape may still be proved independently under Section 376(1) of the Indian Penal Code.
This determination was made in an appeal filed under Section 374(2) of the Code of Criminal Procedure against the judgment of the Special Judge (POCSO), Baksa, which had convicted the appellant under Section 4 of the POCSO Act and sentenced him to rigorous imprisonment for twenty years along with a fine of Rs 20,000. The Trial Court had also framed a charge under Section 376(1) IPC but did not record any finding on it.
The prosecution case was that the appellant raped the victim near the Deosunga river in October 2019. The victim’s account was supported by two eyewitnesses, and the medical examination conducted by the doctor revealed a tear in the hymen and evidence of penetration within forty-eight hours of the incident. A radiological investigation report indicated that the victim was between fourteen and sixteen years of age.
The appellant challenged the conviction on several grounds, including alleged inconsistencies in the victim’s statements regarding whether she had gone to the river to fetch water or to defecate prior to the incident, and whether she had prior knowledge of the appellant. It was also contended that the victim’s age had not been proved.
The respondents relied on the victim’s testimony, the eyewitness accounts, the medical evidence, and a seizure list that mentioned the victim’s date of birth as February 1, 2006. The High Court found that the victim’s evidence was corroborated by the eyewitnesses and the medical evidence. Regarding the discrepancies in the victim’s statements, the Bench noted that while there were inconsistencies in her accounts under Section 161 and Section 164 CrPC concerning her purpose for going to the river, the factum of rape remained consistent throughout.
On the question of age, the High Court observed that neither the school certificate nor the birth certificate had been exhibited before the Trial Court, and copies of these documents were not available in the records. Although the seizure list had been marked as Exhibit 5, the Court held that its exhibition alone did not prove the contents of the seized documents. The Court further noted that the prosecution witnesses had not proved the contents of the seizure list.
Considering the radiological examination, which assessed the victim’s age to be between fourteen and sixteen years, the Court held that applying a benefit of two years to the upper limit of this range would place the victim at eighteen years of age at the time of the incident. Consequently, the provisions of the POCSO Act, 2012 would not apply to a person who had attained the age of eighteen years.
The High Court, however, found that the charge under Section 376(1) IPC had been framed and that the prosecution evidence had proved that rape was committed by the appellant. The Court held that the prosecution had established the guilt of the appellant for committing rape under IPC. Accordingly, the conviction under the POCSO Act was set aside, and the appellant was sentenced to rigorous imprisonment for twelve years under Section 376(1) IPC, with the fine of Rs 20,000 maintained.