Allahabad High Court
Vishwanath Ahirwar vs State Of U.P. on 27 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 22.11.2022 Judgment delivered on 27.4.2023 Court No. - 50 Case :- CRIMINAL APPEAL No. - 323 of 2021 Appellant :- Vishwanath Ahirwar Respondent :- State of U.P. Counsel for Appellant :- Avijit Saxena Counsel for Respondent :- G.A. Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard Sri Avijit Saxena, learned counsel for the appellant and learned A.G.A. for the State and perused the record.
2. Instant Crl. Appeal has been preferred by the accused-appellant against judgment and order dated 5.12.2020 passed by Additional Sessions Judge (Rape and POCSO cases), Mahoba in Special Trial No. 15 of 2018 (State Vs. Vishwanath) arising out of case crime no. 667 of 2016, P.S. Kulpaharh, District Mahoba, whereby appellant was acquitted of charge under Section 363, 366 IPC and convicted for charge under Section 6 POCSO Act and sentenced to ten years rigorous imprisonment and Rs. 10,000/- fine with default stipulation.
3. Factual matrix of the case in brief relevant for present appeal are that informant Gauri Shankar (PW-1) lodged an F.I.R. with P.S. concerned on 25.12.2016 at 16:15 hours wherein he stated that his minor daughter aged around 16 years was seduced and enticed away by accused Vishwanath S/o Veerpal Ahirwar on 19.11.2016 at 2:00 pm from his home. The victim was alone at that time in the home. Younger daughter of the informant had seen the victim going with accused. Report was lodged under Section 363 IPC, 366 IPC and Section 8 POCSO Act. Police carried out investigation of the case and recorded statement of the informant Gauri Shankar, eye-witness Km. Roshni and chance witness. In March, 2017 the investigating officer received information that accused was residing in somewhere at Patiyala, Punjab along with victim. Victim and accused filed a Writ Petition No. 12960 of 2017 before this Court under Article 226 of the Constitution for quashing first information report registered against accused in the present case in the meanwhile wherein this Court issued a direction to the effect that in case the alleged girl appears/produced before the learned C.J.M. concerned within 20 days and moves an application for her medical examination, recording of her statement under Section 161 Cr.P.C. and 164 Cr.P.C., learned magistrate concerned shall fix a date for same purpose, on that date first informant and the officer in-charge of the P.S. concerned shall be summoned. She shall be produced before the C.M.O. concerned by the concerned police officer for her medico legal examination thereafter she shall be produced before C.J.M. concerned for recording of her statement under Section 164 Cr.P.C.. The same shall be recorded on the application filed by I.O./Officer-in-charge of the P.S. concerned, till then no coercive steps shall be taken against the petitioner, in default of it, it shall be open to police authorities concerned to arrest the petitioner.
4. Victim appeared before police and her statement under Section 161 Cr.P.C. was recorded in which she stated that she is aged around 17 to 18 years. She received education up to class 5 at M.K. Public School, Kulpaharh, Mahoba and passed class 5th in 2013. She got friendly with accused Vishwanath who was working as mason in her neighborhood and on 19.11.2016 at 2:00 pm she eloped with accused without informing her family members. She was living with accused at Sangroor, District Jalandhar and solemnized marriage with him and both of them resided together as husband and wife. She was pregnant for three months of her physical relations with accused. She established physical relations with accused of her free will. Her statement under Section 164 Cr.P.C. was recorded by C.J.M., Mahoba on 24.7.2017 wherein she stated that 8-9 months ago, she went to Delhi of her own volition and solemnized marriage with accused. Both were residing as husband and wife. She was having a gestation of four months. She has not been abducted by anyone and she went of her free will. None had done any forceful action with her. She is apprehensive of her life from parents and she was willing to reside with her in-laws. Accused has not kindnaped her. Medico legal examination of the victim was conducted on 20.7.2017 at District women hospital, Mahoba in which she is shown aged around 17 years. Doctor recorded statement of the victim to the effect that she had eloped with accused eight months ago. They went to Delhi and got married and started living as husband and wife. She was not raped. She established relations with accused of her free will and both were residing as husband and wife. She married with accused without any pressure on her own volition. Dr. opined that there are signs of vaginal penetrations in her supplementary report and in ultrasound report dated 21.7.2017 victim was found to have pregnancy of 15 weeks five days. For age determination of the victim, her radiological examination was conducted and C.M.O. in his report dated 22.7.2017 opined that in view of radiological examination and physical appearance of the victim, her age was about 18 years. Accused was subsequently arrested on 10.8.2017 and sent to jail. He was released on bail by orders of this Court dated 15.9.2017.
5. Investigation officer filed charge sheet against accused after investigation and cognizance was taken on 27.1.2018 for charges under Section 363, 366 IPC and Section 6 of POCSO Act against accused. Accused was charged for offence under Section 363, 366 IPC and Section 6 of POCSO Act, 2012 on 14.5.2018.
6. Prosecution examined PW-1, victim, daughter of Gauri Shankar, PW-2 Dr. Amrita, Medical Officer, PW-3 Gauri Shankar (informant), PW-4 Shakir Ahmaed (Headmaster of M.K. Public School), PW-5 Head Constable Ashok Kumar who is author of chick F.I.R. dated 25.12.2016 and extracts of G.D., Report No. 29 dated 25.12.2016, time 16:15 hours, P.S. Kulpaharh, District Mahoba and these papers were exhibited as Ext. Ka-9 and Ka-10. 7. Learned counsel for the accused admitted genuineness of the papers, site plan and charge sheet prepared and signed by investigating officer of this case, therefore, examination of investigating officer was dispensed with by trial court. These papers were exhibited as Ext. Ka-11 and Ka-15.
8. After conclusion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. wherein it is stated that date of birth stated by the victim as 12.11.2000 is not correct. She has reduced her age in her statement, rest of his statement is correct. He also admitted that in ultrasonography report of the victim, she was found to have conceived for 15 weeks 6 days is correct. He also stated that PW-4 Shakir has proved date of birth of the victim as 12.11.2000 which is not correct. He admitted that his learned counsel admitted genuineness of the charge sheet and site plan. He admitted fact of elopement of the victim with him on the date and time of the incident in his statement. Accused did not adduce any defence evidence.
9. Learned trial court heard the submissions of learned counsel for the parties and after appreciating the evidence on record observed that this is a settled law that age determination of the victim of sexual offence will be conducted under provisions of Juvenile Justice (Protection of Children Act). The age recorded in educational records of the victim shall have preference over age determination based on medical evidence and on the basis of evidence and date of birth recorded in academics documents of the victim as 12.11.2000 which is proved by PW-4 Shakir Ahmed (headmaster of M.K. Public School), who found that victim was around 16 years of age on the date of incident and therefore she was minor. He also observed that as the medical examination of the victim was conducted after eight months of the incident even on the basis of medical evidence she is found seven years four months of age on the date of the incident and thus she was minor on this basis also, therefore, only on ground that victim and her father in their evidence during trial stated her age as 19 years would not rebut the age determination on the basis of documentary evidence and court gave a finding that victim was 16 years of age on the date of incident and she was minor, however, he observed that on the basis of evidence adduced by prosecution, it is reflected that victim left her home after contacting the accused of her free will and her father could not adduce any evidence to the effect that accused had forcefully kidnapped her or took her away. Father of the victim is not an eye-witness and his statement is based on version of his younger daughter but she was not produced in the evidence by the prosecution, therefore, he concluded that prosecution failed to prove charge under Section 363 IPC. Learned trial judge also observed that prosecution also failed to establish the fact that accused abducted the victim with intent or knowledge that she may be compelled to marry the accused against her will, therefore, he concluded that prosecution also failed to prove charge under Section 366 IPC against accused, however, he observed that as on the basis of evidence on record victim has been found minor aged around 16 years on the date of incident and she admitted in her statement under Section 161 Cr.P.C. and 164 Cr.P.C. that she was pregnant for three months and she made physical relations with accused out of her free will and in her medico legal examination, she was also found pregnant and in evidence of PW-2 Dr. Amrita it is stated that on internal examination of the victim, her hymen was found old, torn and healed and no injury was found on her internal organs and her pregnancy was also confirmed in report of ultrasonologist, this fact is proved that accused subjected the victim of aggravated sexual penetrative assault as envisaged under Section 6 of the POCSO Act. Evidence on record reflects that after leaving the home, victim solemnized marriage with accused. They lived together in marital relations in same house, therefore, act of the accused comes under the purview of aggravated penetration sexual assault and on this finding learned trial court convicted the accused for charge under section 6 of POCSO Act for ten years of rigorous imprisonment and fine. Learned trial judge cited judgment of Hon'bl Apex Court in Independent Thoughts vs. Union of India and others Writ Petition (Civil) No. 382 of 2013, decided on 11.10.2017, wherein Hon'ble Apex Court considered the issue of child marriage in the country in the light of provisions of the POCSO Act and observed that exception-2 of Section 375 IPC provides that a sexual intercourse or sexual acts by a man with his own wife, wife not being under 15 years of age, is not rape. Insofar as it relates to a girl child below 18 years is liable to be struck down on the following grounds:-
"(i) it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India;
(ii) it is discriminatory and violative of Article 14 of the Constitution of India and;
(iii) it is inconsistent with the provisions of POCSO, which must prevail.
Therefore, Exception 2 to Section 375 IPC is read down as follows:"
"Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape".
It is, however, made clear that this judgment will have prospective effect."
10. Learned counsel for the appellant submitted that in present appeal finding of learned trial court that victim was minor at the time of incident is not in consonance with evidence on record as the appellant and prosecutrix had married in temple at Ghaziabad. Both of them had signed an instrument of their marriage in which age of the prosecutrix is stated as 19 years while the appellant is shown as 21 years old. Prosecutrix has also signed personal notoarised affidavit dated 5.12.2016 declaring that she married appellant out of her own free will and intents to live with him. In this affidavit also her age was shown as 19 years.
11. In statement of PW-1 dated 23.8.2018 made before the trial court victim has stated her age at the time of her statement as 21 years. Since the incident is of 9.11.2016 i.e. little less than two years ago from the date of statement in August, 2018, it stands to reason that at the time of alleged incident in November, 2016, victim girl was two years younger i.e. 19 years of age, hence she was major at the time of incident and provisions of POCSO Act will not be applicable against the appellant.
12. PW-3, Gauri Shankar, informant and father of the prosecutrix has also stated that at the time of incident, his daughter was below 19 years of age which suggests that she was around 18-19 years of age at the time of incident. This statement contradicts his version in F.I.R. where he stated that his daughter was aged around 16 years. Learned counsel further submitted that learned trial court recorded acquittal of accused for charge under Section 363 and 366 IPC after holding that accused was not found to have abducted the victim on the basis of evidence on record but on the other hand convicted and sentenced him for charge under Section 6 of POCSO Act holding her minor. The consent of a minor victim, if recognized and approved earlier in same judgment under different charges, will have to be taken into account while dealing with Section 6 of POCSO Act as well. This is because factum of minority of the victim remains the same in both instances and hence trial court cannot selectively took and choose as to when to recognize consent of minor girl and when not under different charges, hence consent of prosecutrix in initiating sexual intercourse with the appellant should be recognized and charge under Section 6 of POCSO Act which speaks of unilateral act of sexaul intercourse by a man with unwilling child victim should be quashed. He also submitted that section 3 of Prohibition of Child Marriage Act, 2006, designates marriage with a minor a voidable marriage which cannot be null and void at the instance of minor whereas Section 12 of said Act enumerates three conditions under which marriage of minor will be null and void. Sub-section(A) of Section 12 of P.C.M.A. Act describes a situation where a minor is enticed out of keeping of lawful guardian then such marriage of the minor shall be null and void, however, in present case learned trial court has acquitted the accused on charge under Section 363 and 366 IPC.
He also submitted that object and reason of POCSO Act provides that this is an Act to protect children from offences of sexual assault, sexual harasssment and pornography and provides for establishment of special course for trial of such offences and for matters connected therewith or incidental thereto, whereas Clause (3) of Article 15 of the Constitution, interalia, empowers the State to make special provisions for children.
13. Learned counsel placed reliance on judgment of Hon'ble High Court in the case of Ranjit Rajbanshi Vs. State of West Bengal and Others, 2021 SCC Online Cal 2470 (Supreme Court) and Anil Ratre Vs. State of Chattisgarh (CRA No. 965 of 2021) decided on 25.3.2022, in both cases, appellants were acquitted by respective high court for charge under Section 4 of POCSO Act interalia and other charges under IPC.
14. Learned counsel for the appellant also placed reliance on judgment of Hon'ble Apex Court in Crl. Appeal no. 796 of 2019, K. Dhandapani Vs. the State by the Inspector of Police, 2022 LiveLaw (SC) 477.
15. Per contra, learned A.G.A. strongly supported the judgment and order passed by learned trial court and submitted that victim was found to be around 16 years of age at the time of incident according to her academic documents and F.I.R. version. She eloped with accused and resided with him for around seven eight months and allegedly said to have solemnized marriage with him. When she was recovered she was found to be pregnant and she admitted in her evidence that she solemnized marriage with accused. They lived together as husband and wife and thereafter by that relation she conceived a child and presently she is mother of a girl child, thus the charge of aggravated sexual assault as envisaged under Section 5(J)(2) and Punishment under Section 6 of POCSO Act stands proved against the appellant and for which he has been rightly convicted and sentenced by learned trial court and findings of learned trial court call for no interference in present appeal.
16. If we go through the statement of witness of fact, PW-1 prosecutrix was examined on 23.8.2018 after two years of the incident in which she has stated before the court during trial that her date of birth is mentioned as 12.11.2000 in her class 5th result. Report of this incident was lodged by her father. She acknowledged her statement under Section 161 Cr.P.C. as well as 164 Cr.P.C. which was marked as Ext. Ka-2. She stated that she was engaged in work of labourer along with accused and love affairs developed between them. She telephoned the accused and she reached Delhi. She was not cross-examined by defence.
17. PW-3, Informant, who is father of the victim has stated that on 19.11.2010 at around 2:00 pm her daughter was alone in the house. She was around 16 years of age. The accused visited his home and seduced and enticed away her daughter. He was at that time at the tea shop in the market where he was engaged in his business of preparing and sell of tea. When he came back to home in the evening and when he did not find the victim, his younger daughter stated that she had seen the victim going along with Vishwanath then he filed a written report at P.S. and lodged an F.I.R.
18. In cross-examination he stated that victim was less than 19 years of age at the time of incident. He had not seen any incident and he lodged report on the basis of in puts received from younger daughter. Victim is residing with accused and a girl child born out of their relationship. He is not willing as of now any action against Vishwanath.
19. PW-2 Dr. Amrita, who is medical officer, who conducted medical examination of the victim, has proved the medical examination report as Ext. Ka-3, age determination report of CMO as Ext. Ka-4 and ultrasound report of the victim as Ext. Ka-5 and film of ultrasound as material Ext. No. 1. She stated that that at the time of examination, no injury was found on the person of the victim. According to age determination report of C.M.O., she was aged around 18 years.
20. PW-4, Shakir Ahmed, who is Headmaster of M.K.S. Public School, Kulpaharh, produced admission register related to admission of the victim before the court and filed a certified copy of its extracts after proving the same with original which is marked as Ext. Ka-7. In this register at Sr. No. 7 to 5, name of victim is mentioned as daughter of Gauri Shankar. Her date of birth is mentioned as 12.11.2000. She was admitted in school on 20.7.2012 and left the school on 30.6.2013 after passing class fifth, however, in application form dated 20.7.2012 in her admission in M.K.S. Public School, it is stated that prior to seeking admission in this school, she was studied in Naveen Prathmik Vidyalaya, Rajwad. Her admission form is signed by one Radha Charan as guardian and this fact is not brought on record as to what relation of Ram Charan was having with the victim who got her admitted in the said school
20. Hon'ble Apex Court in K. Dandpari (supra) dealt with a case where the appellant who was maternal uncle of the prosecutrix and was working as wood cutter on daily wages on private factory who was charged for having committed rape of victim/prosecutrix, who was stated to be aged around 14 years on the date of offence and gave birth to the first child when she was 15 years and second child when she was 17 years of age, Hon'ble Apex Court, taking into consideration peculiar facts and circumstances of the case, was of the view that conviction and sentence of the appellant deserves to be set aside in view of subsequent events that has been brought to the notice of this Court as this Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and prosecutrix. It was also observed in the impugned judgment that court was informed that there was a custom in Tamilnadu of the marriage of a girl with maternal uncle, however, Hon'ble Apex Court while setting aside conviction and sentence of the appellant observed that said order was passed on peculiar facts of the case and shall not be treated as precedent.
21. In Ranjit Rajbanshi Vs. State of West Bengal (supra) cited by learned counsel for the appellant, accused was convicted and sentenced by learned trial court under Section 376(1) IPC and Section 4 of POCSO Act while allowing appeal and setting aside the conviction observed as under:-
47. In the present case, the victim girl was admittedly 16 ½ years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as ''consent' as such, the expression ''penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression ''penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim.
48. As such, it cannot be said that the accused was guilty of penetrative sexual assault, as such, since here the act of penetration, even if true, would have to be taken not as an unilateral act of the accused but a participatory moment of passion involving the participation of both the victim and the accused.
52 In the instant case, even if the prosecution case is taken into consideration, no strong preponderance of probability was established in support of the prosecution case, sufficient to raise a presumption under Section 29 of the POCSO Act and shifting the negative onus on the accused to prove his innocence.
54. Although not directly relevant to the offence, the Court cannot be blind to the practical realities of life. The accused as well as the victim are at present leading marital lives with strangers to the case separately. As such, the Court ought to be doubly cautious in putting a stigma on either the accused or the victim.
55. The POCSO Act defines anyone under eighteen years of age as a ''child', but to convict a person for penetrative sexual assault, the psyche, maturity and previous conduct of the victim vis-à-vis the accused also acquires relevance. In the present case, the previous relation between the victim and the accused and their physical union on several occasions raise a strong presumption of the alleged incriminating act being participatory at both ends, not a unilateral act of the accused.
22. High Court of Karnataka, in the case of State of Karnataka Vs. Basavraj, decided on 4th November, 2022, affirmed the verdict of acquittal passed by trial court in a case under Section 366, 376(2)(7) IPC and Section 5(1) and 6 of POCSO Act where victim was found to be aged about 16 to 17 years who left for college but did not return on the date of incident and a letter was found that she was abducted by accused. Complainant resiled from the contents of the complainant and allegations made therein that victim categorically stated that she had married the accused before sub-registrar, Haliyal. She was never kidnapped and their neighbour has not committed sexual assault on her and thus, she did not support the case of prosecution. Victim and accused got marriage in the year 2017 and thereafter have had two children. They were living together happily. In the opinion of High Court, if the order of acquittal shall over turn, the family would suffer untold harm. The accused being sole bread earner.
23. The High Court observed that prosecution is required to prove that accused have committed a rape of a women incapable of giving consent to constitute an offence under Section 376(2)(J) of the IPC as rape is defined under Section 375 IPC and aggravated penetration sexual assault is defined as under Section 5(i) and Section 6 of the POCSO Act and punishment is provided under Section 6 thereof. Court also observed that aim and objective of POCSO Act is to protect the minor children from sexual exploitation and it is made clear that a minor cannot provide consent, the minor under POCSO Act being a person under the age of 18 years. The aspect of the consent even by a girl of 16 years and above would have to be considered if there is indeed an offence under the IPC and/or POCSO Act. Normally when evidence is led the victim is a major and testimony given then of an act committed while being a minor would have to be given due value. It is also seen that many of the above offences which are deemed offences are deemed to have been committed as a result of or on account of lack of knowledge on the part of the minor girl and the boy. One thing leads to the other and being of an impressionable age, some things are done by a boy and girl which ought not to have been done and done without knowing the applicability of POCSO Act or certain provisions of the IPC which make them an offence. Though lack of knowledge of law is no excuse, can minors be presumed to have knowledge of the applicable law would be the question required to be asked in such a situation.
24. Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007, provides the procedure to be followed in determination of age. It provides that 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, the Committee by seeking evidence by obtaining (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; and only in absence of either (i) (ii) (iii), 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..
25. After enactment of this rule, Juvenile Justice Act, 2015 enacted and. Section 94 of the Act is reproduced as under:-
" (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
26. Section 6 of POCSO Act provides as under:-
"(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim."
27. Thus, this Court is not oblivious of the fact that offences related to sexual assault are very heinous in nature and if the victim is minor then her consent is statutorily and judicially of no value all together. In such cases in contrast of common practise, onus of proof is on the accused, rather than on the victim as provided under Section 29 of the POCSO Act and further more, age of the victim gains significance as offences against minor girl creates a differents class of offences. The Apex Court in the case of Jarnail Singh Vs. State of Haryana, (2013) 7 SCC 263, held that on the issue of judgment of age of the victim, one needs to refer to Section 12 of the Juvenile Justice Rules, 2007. It is also made clear that age of the victim was to be determined in the same manner as of present accused in crime, however, the same limited to the offence committed against children within the purview of Juvenile Justice Act. Section 94 of the Juvenile Justice Act provides that the manner in which age determination is to be done. Under Section 94 first preference will be given to birth certificate from the school, or any matriculation or equivalent certificates from the examination board is to be taken into consideration if they are available. In the absence of these certificates, birth certificate from municipal authority or the panchayat is accounted. Only after in absence of certificates from both the authorities, age determination process shall be carried out by performing a bone ossification test or any other medical age determination test available on the victim, as per the orders of the Board or committee.
28. In Ram Suresh Singh Vs. Prabhat Singh, 2009 6 SCC 681 and Jyoti Prakash Rai Vs. State of Bihar, (2008) 15 SCC 223, it was held that ossification test is not conclusive for age determination as it does not reveal the exact age of the person, but it leaves margin of two years on either side of the age range as prescribed by the test. An important question which arises out of this is whether the lower age is to be considered or the higher age. After a lot of deliberations the Supreme Court held that all things being equal, benefit of doubt in age estimation by bone ossification test is to go to the accused. This opinion was opined in the case of Triveniben V. Stat of Gujarat, (1989) 1 SCC 678, Maru Ram Vs. Union of India, (1981) 1 SCC 107 and was further confirmed in the case of Shweta Gulati & Anr. Vs. The State Govt. of NCT of Delhi, decided on 8.8.2018 and paragraph no. 14 of which reads as under:-
"14. The settled principle is that the ossification test is not conclusive of age determination. It is settled that it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. The Supreme Court, in several decisions, has taken judicial notice of the fact that the margin of error in age ascertained by radiological examination is two years on either side."
29. The question of statutory rape does not arise in facts of present case as the alleged offence took place much prior to the decision of Hon'ble Apex Court in Independent Thought's case (supra) which has not been given retrospective effect by Apex Court. The victim stated in her evidence that she and accused started living as husband and wife after marriage and this is admitted position that she has crossed sixteen years of age on the date of incident.
30. In present case in scholar register of the victim, date of birth of the victim is mentioned as 12.11.2000 which is proved by PW-4, Shakir Ahmed, headmaster of the school by producing scholar register before the court and this entry in academic record of the victim will in normal circumstances would necessarily have preference over her medical determination of age, although, there is nothing to dis-believe the genuineness of this document yet this fact cannot be lost sight that admission form has not been filed up by parents of the victim but some Radha Charan and his credentials are not brought on record. This fact is also not brought on record that what was the date of birth of the victim recorded in school record of the first school i.e. Naveen Prathmik Vidyalaya, first attended by the victim. In that case the significance of medical age determination recorded by C.M.O. may not be lost sight, wherein her age is determined about 18 years on the basis of her radiological examination based fusion of epiphyses of her bones and if two years margin is given on higher side her medical age would be 20 years on date of her medical determination of age and accordingly she would be major on the date of incident and in that case defence of consenting party will have material bearing on facts of this case.
31. Learned trial Judge has reduced eight months from this medical age determination on ground that it was carried out after eight months of the incident and accordingly as per medical determination also her age is found as 17 years four months on the date of incident and on that basis also she would be held as minor. This practice is not permissible under law as the age determination of age is expert medical opinion and there is no authority that period lapsed between date of incident and medical age determination will be reduced and by this practice, exact age in period of time will be ascertained.
32. According to judicial authorities cited above medical age determination leaves the margin of two years on the either side of the age range as prescribe by the test and all things been equal, benefit of doubt in age estimation by bone ossification test is to go to the accused. Father of the victim also stated before the court that she was less than 19 years of age on the date of incident and he has not stated that she was below 18 years of age on the date of incident, thus keeping in view the consideration of over all evidence on the question of age of the victim based on medical age determination, academic record of the victim and statement of the victim and her father, first informant, regarding her age it cannot be held to be proved with preponderance of probabilities that victim was minor on the date of incident and date of birth recorded in school record of victim is not free from doubt, therefore, benefit of doubt is liable to be given to accused on this point on peculiar facts and circumstances also. Victim left her parental home on her own volition and joined the accused later as per her own evidence. They solemnized marriage somewhere else and after eight months she came back to her home and at that time she was pregnant for more than 15 weeks. She again associated with the accused and she delivered a girl child and presently she is living with accused as her wife along with a girl child, thus accused and victim have settled their life and from evidence of PW-3 it appears that he has reconciled with the realities which happened subsequent to the incident. The victim has stated nothing against the accused in her statement under Section 164 Cr.P.C. recorded by the magistrate as well as in her sworn testimony before the court during trial. In fact, this is a case of deemed conviction, therefore, in my considered opinion learned trial court has lost sight of some significant facts and circumstances of the case and certain anomalies in evidence adduced regarding age determination of the victim and keeping in view the above cited judicial authorities into consideration, this Court is of the view that learned trial court has not properly appreciated the evidence appearing on point of age determination of the victim and there are factual and legal errors in judgment under appeal and same is not sustainable under law, therefore, judgment and order of conviction and sentence passed by learned trial court is liable to be set aside and accused appellant deserves to be extended benefit of doubt and consequently is liable to be acquitted. This appeal consequently stands allowed.
33. Impugned judgment of conviction and order dated 5.12.2020 passed by learned trial court in Special Trial No. 15 of 2018 (State Vs. Vishwanath Ahirwar) under Section 6 of POCSO Act is hereby set aside and accused appellant Vishwanath Ahirwar is acquitted of charge under Section 6 of POCSO Act on being extended benefit of doubt. It is directed that the accused-appellant shall furnish a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned, in compliance of requirement of the 437-A Cr.P.C. before the trial court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of any appeal against the instant judgment or for grant of leave to appeal, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
34. Let a copy of this judgment along with lower court record be sent to court concerned for necessary information and compliance.
Order date: 27.4.2023/A.P. Pandey