State v. Basir Ahmad

1. This Criminal Leave to Appeal under Section 378(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as „CrPC‟) has been filed by the State against the impugned Judgment dated 18.07.2020 acquitting the respondent for the offences under Sections 363/376/506 of the Indian Penal Code, 1860 (hereinafter referred to as „IPC‟) and Section 4 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as „POCSO Act‟).

2. The case of the prosecution was that on 13.02.2014, a complaint was made by Bhabhi of ‘Ms.X’, the prosecutrix that she was missing from the house since 13.02.2014 and had failed to return. During investigation, brother of the prosecutrix informed that the prosecutrix was present at the House No. 32A, Gali No. 3, Nehru Nagar, Anand Parbat. On this information, the Investigating Officer along with brother went to the said house and recovered the prosecutrix. Her statement was recorded and the offence under Section 376 IPC was added in the FIR already registered Digitally under Section 363 IPC. After investigation, the charge sheet was filed under Sections 363, 376 and 506 IPC and Section 4 of the POCSO Act.

3. Charges against the respondent were framed on 23.05.2014 under the aforesaid Sections. Statements of 8 witnesses were recorded on behalf of the prosecution wherein the prosecutrix who appeared as PW-2 fully supported the case of the prosecution. However, the learned Additional Sessions Judge observed that the age of the prosecutrix was shown to be between 17 to 19 years and therefore, there was no conclusive evidence of her being a minor at the time of alleged offence. Consequently, the benefit was extended to the respondent who was acquitted.

4. Aggrieved by the said acquittal of the respondent, the State has filed the present Leave to Appeal.

5. The grounds pleaded essentially by the State are that the learned Additional Sessions Judge failed to appreciate the testimony of the prosecutrix i.e. PW-2 who in her statement under Sections 161 and 164 CrPC as well as in her testimony before the Court, had deposed that the respondent had made physical relationship with her under threat. It is pleaded that her statement throughout was consistent and there was no material contradiction. The testimony of the prosecutrix was corroborated by the forensic evidence wherein the FSL report corroborated the presence of human semen on the exhibits of the prosecutrix. The learned Additional Sessions Judge also ignored the DNA profile which matched with that of the accused-respondent herein.

6. For the purpose of determination of the age, the ossification report was considered which suggested the age of the prosecutrix in the range of 17 to 19 years. The learned ASJ overlooked the age of the prosecutrix on the Digitally lower side despite the sensitivity of the matter and simply extended the benefit of doubt to the respondent. The impugned Judgment thus suffers from material illegality and thus, leave to appeal against the said acquittal of the respondent is filed.

7. Submissions heard.

8. The first submission made on behalf of the State was that the age of prosecutrix was estimated between 17 years to 19 years in the ossification test. The age on lower side should have been accepted and the learned ASJ fell in error in holding that prosecutrix was not proved to be minor beyond reasonable doubt.

9. In the case of Jarnail Singh Vs. State of Haryana (2013) 7 SCC 263, the Apex Court observed even though Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 is strictly applicable only to determine the age of a child in conflict with law. However, the aforesaid statutory provision should also be the basis for determining the age of a child who is the victim of crime for there is hardly any difference insofar as the issue of minority is concerned between a child in conflict with law or a child who is the victim of the crime. It was held that it would be just and appropriate to apply Rule 12 of the Rules, 2007 to determine the age of the victim.

10. Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as „Rules, 2007‟) provides for procedure for determination of the age and reads as under:

11. In Jarnail Singh (supra), it was explained how the Rule was to be followed. It explained that Rule 12 provides that the age of the child be ascertained by adopting the first available basis out of the number of options postulated in Rule 12(3) of the Rules, 2007. If an option is available in the first clause, it shall have overriding effect on the options given in the subsequent clauses. Highest rated option should be as per the sequence mentioned in Rule 12(3) of the Rules, 2007. If first option i.e. the Matriculation Certificate or equivalent certificate is available, then, it should be the sole basis for determination of age. In its absence, the second option shall be the Birth Certificate from the school first attended and in its Digitally absence, the third option being the Birth Certificate given by the Corporation or a Municipal Authority or Panchayat should be considered. If none of these documents are available, only then the medical opinion may be sought for determination of the age of the child.