Ketan Sanjay Kokate v. The State of Maharashtra; Nagesh Baburao Naidu

13. The victim (PW[2]) has deposed that in the year 2014 the accused suggested to her that they should elope. He called her on 25.5.2014 at about 11.40 p.m. and on the next date he called her 7 of 21 to the ground floor of their building. She, her brother and another boy by name Sagar were playing on the ground floor. She told her brother that she was going home, and instead she went behind the building and thereafter went with the accused on his motorcycle at Panhala. They stayed in a lodge at Panhala for about eight days, during which period they had sexual relations with each other. The accused received a phone call from his mother, hence they left the lodge and went to the house of his mother’s friend. The police came to the said house and took them to the police station.

14. In her cross examination, PW[2] has admitted that she has married Babu. She has stated that there was no talk of marriage between her and the accused either before or after the incident. She has stated that Babu is her childhood friend. She has deposed that there was no love affair between her and Babu, though Babu had expressed his love towards her. She has denied the suggestion that after receiving the phone call from the mother of the accused, she directly came to the police station. She has admitted that when she returned to Pune, she was not willing to 8 of 21 lodge a complaint against the accused. She has denied that her father had pressurized her to give the statement against the accused. She has denied that the accused did not have sexual relationship with her at Panhala. She has also denied that she was having physical relationship with Babu even before she had eloped with the accused. She has stated that her marriage with Babu was arranged after the incident. She has denied that Babu had threatened her to depose against the accused.

15. PW[7] Dr. Yogesh Thawal, was attached to Sasoon Hospital, Pune. He has deposed that on 9.6.2014 the police had referred the victim for medical examination. He examined the victim. Her hymen was torn completely. The tears were 3 to 7 O’Clock and were healed. The clinical examination revealed the possibility of sexual intercourse. He has stated that the Medical Certificate (Exh.33) was prepared by Dr. Tanya and he has confirmed the contents of the same.

16. PW[9] Janak Kumar is a purohit. He has deposed that on 23.6.2014, one Kondiba Ghanwat had come with a boy and a girl 9 of 21 and had requested him to solemnize their marriage. The said girl had disclosed her name and had told him that she was above 18 years of age. He has identified the accused as the boy who had accompanied the victim girl.

17. PW10 Sharad Kale is the Investigating Officer. He was attached to Range Hill Police Chowki. Khadki. He has deposed that the father of the victim had initially filed a missing report and thereafter a complaint. He has stated that he took search of the accused and traced the victim and the accused at Warje. He has produced the birth certificate of the victim at Exh. 63. He had filed the chargesheet after completing the investigation.

18. The evidence of the victim clearly indicates that she was in love with the accused. These two youngsters, infatuated with each other, eloped and stayed in a lodge at Panhala for eight days. During this period they indulged in sexual activity. Pursuant to the missing report and the complaint lodged by the father of the victim, the Investigating Officer PW10 took search and traced them at Warje. They were brought to the police station. The 10 of 21 accused was arrested and is presently in custody, while the victim has married her childhood friend and has settled down in life.

19. The evidence of the prosecutrix amply proves that the relationship was consensual. Hence the core question for consideration is whether the victim was a ‘child’ within the meaning of Section 2(d) of the POCSO Act.

20. It may be noted that Section 34 of POCSO Act prescribes procedure to be followed in case of commission of any offence by a child under the POCSO Act and also deals with determination of age of a person by the Special Court under the POCSO Act. The said Section reads as under:-

11 of 21 satisfying itself about the age of such person and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under subsection (2) was not the correct age of that person. "

21. In Jarnail Singh v/s. State of Haryana, 2013 (7) SCC 163, upon considering the scope of Rule 12, of Juvenile Justice (Care and Protection of Children) Rules, 2007, the Apex Court has held that:- “Even though Rule 12 is strictly applicable only to determine the age of child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining the age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of child. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix. The manner of determining the age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under this aforesaid provision, the age of a child is 12 of 21 ascertained, by adopting the first available cases, out of a number of options postulated in Rule 12(3). If in the scheme of options under Rule 12(3), option is expressed in a proceeding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule XII(3) matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of said certificate, Rule 12(3), envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a Corporation or a Municipal Authority or a Panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) 13 of 21 postulates the determination of age of the concerned child on the basis of the medical opinion.”

22. The crime in the present case was registered prior to 2015 amendment of the Juvenile Justice Act, and hence the determination of age would be in accordance with and as per the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 and the Rules framed thereunder. Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules 2007 (for short 2007 Rules) which contemplates the procedure to be followed in determination of age reads thus:- “(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, the Committee by seeking evidence by obtaining (a) (I) the matriculation or equivalent certificate, 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; (b) and only in the absence of either (i), (ii) or (iii) of 14 of 21 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.

23. A plain reading of this Rule and the decision of the Apex Court in Jarnail Singh (supra) makes its abundantly clear that under Sub Rule (3) of Rule 12 the age of a child is ascertained by adopting the first available basis, out of a number of options postulated in the said Rule. From the options available under Rule 12(3), an option in the preceding clause will have over riding 15 of 21 effect over an option in subsequent clause. Under Rule 12(3), date of birth recorded in matriculation (or equivalent) certificate of the concerned child, is the first option. In the absence of such certificate, Rule 12(3) envisages consideration of the date of birth recorded in the first attended school (other than a play school) and it is only in the absence of such certificate, the age can be proved by producing the birth certificate issued by a Corporation, or Municipal Authority or a Panchayat and in the absence of the above, by medical opinion.

24. It may be mentioned that age determination of a victim is vital for the applicability of the POCSO Act. Hence, the burden was on the prosecution to prove that the victim was below 18 years of age. Though Sub Section 2 of Section 34 does not prescribe any specific procedure for determination of the age of the child, who is the victim of crime, the Hon’ble Supreme Court has held that Rule 12 (3) should be the basis for determining the age of the victim. It has to be borne in mind that the POCSO Act contains stringent provisions and mandates minimum sentence of imprisonment. Hence, following the well settled principle that 16 of 21 stringent provisions require strict compliance of the provisions, the prosecution was required to prove the age of the victim in strict compliance of the law, as laid down by the Apex Court.

25. In this regard it is to be noted that PW[1] and PW[2] have stated that the date of birth of the victim (PW[2]) is 6.9.1997, thus indicating that the age of the victim on the date of the incident was of 16 years and 8 months. It is to be noted that the evidence of PW[9] indicates that at the time of solemnisation of marriage, the victim had stated her age as 18 years. There is thus no consistency in the oral evidence of the victim as regards her age.

26. The evidence of PW[1] and PW[2] clearly indicates that at the time of the incident, the victim was a student of Class X in All Saints English School, Khadki. These witnesses have not produced any document to prove the age of the victim as recorded in the school records. No reasons have been assigned for withholding these material documents.

27. It is pertinent to note that PW10, the Investigating Officer has produced the birth certificate of the victim issued by the 17 of 21 Corporation. This Certificate was produced by the Investigating Officer at the fag end of the trial. As a result, the accused had no opportunity to cross examine the victim or her father on the said certificate. Needless to state that such a procedure impacts right to fair trial.

28. It is also to be noted that the circumstance as regards the age of the victim, as deposed by PW[1] and PW[2] and/or as reflected in the birth certificate was not brought to the notice of the accused in the statement under Section 313 Cr.P.C. The accused therefore had no opportunity to explain this circumstance. In the case of Maheshwar Tigga (supra) the Hon’ble Supreme Court has held that “it stands well settled that circumstances not put to an accused under Section 313 Cr.P.C. cannot be used against him and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides in the opportunity not only to furnish his defence, but also to explain the incriminating circumstances against him. A probable defence raised by an accused is sufficient to rebut the accusation without the 18 of 21 requirement of proof beyond reasonable doubt.”

29. Similarly, in Reena Hazareeka (Supra) the Hon’ble Supreme Court has reiterated that “Section 313 Cr.P.C. cannot be seen simply as part of audi alteram partem. It confers a valuable right upon a accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313 (2) of Cr.P.C.”

30. In the instant case, the relevant evidence as regards the date of birth of the victim, as per the oral evidence of PW[1] and PW[2] or as recorded in the birth certificate, has not been put to the accused under Section 313 of Cr.P.C. As noted above, the applicability of the provisions of the POCSO Act depends on the age of the victim. Hence the evidence relating to the age of the victim was a vital circumstance appearing against the accused. It was therefore fundamental that his attention should have been drawn to every inculpatory material so as to enable him to explain it. The trial 19 of 21 Court has not drawn the attention of the accused to this vital circumstance and he had no opportunity to explain the circumstance appearing against him. In such circumstances, prejudice is implicit. Having failed to draw the attention of the accused on this vital circumstance, the trial Court could not have relied upon the same.

31. It is true that it was suggested to PW[1] that he had agreed to get the victim married to the accused after she became 18 years of age. In Rajesh Namdev Mhatre vs. State of Maharashtra (2002)

4 Mh.L.J. 266, the Division Bench of this Court has reiterated that the suggestions made in the cross-examination of the prosecution witnesses cannot be used to fill in the gaps in the evidence of the prosecution and the burden lies on the prosecution to prove the guilt of the accused. It is further held that though the suggestion made in the cross-examination is not evidence but it can be used to lend assurance to the prosecution case. Be that as it may, this suggestion does not specify as to when PW[1] had so agreed, whether it was immediately before the incident, several months or years before the incident. Hence the said suggestion cannot be 20 of 21 construed as an admission of the fact that as on the date of the incident, the victim was below 18 years of age.

32. The sexual relationship between the victim and the accused was consensual. The prosecution has failed to prove beyond doubt that the victim was below 18 years of age as on the date of the incident. Under these circumstances, the accused cannot be held guilty of offences under Section 376 of IPC or 4 of the POCSO Act. Consequently, the impugned judgment and sentence cannot be sustained.

33. Hence, the appeal is allowed. The impugned judgment and order is quashed and set aside. The accused is acquitted of offence under Section 376 of IPC and Section 4 of the POCSO Act. The accused be released forthwith, if not required in any other case. Fine amount, if deposited, be refunded to the accused. The accused shall furnish bond under Section 437A of Cr.P.C. before the Special Court within a period of two months. (ANUJA PRABHUDESSAI, J.)