P. YUVAPRAKASH versus STATE REP. BY INSPECTOR OF POLICE

[2023] 10 S.C.R.

P. YUVAPRAKASH

STATE REP. BY INSPECTOR OF POLICE

(Criminal Appeal No(s). 1898 of 2023)

BJULY 18, 2023

[S. RAVINDRA BHAT AND ARAVIND KUMAR, JJ.]

Protection of Children from Sexual Offences Act, 2012 –ss.3,4,5,6,7, 34 – Juvenile Justice (Care and protection of Children)Act, 2015 – s.94 – Prohibition of Child Marriage Act, 2006 – s.10C– Penal Code, 1860 – s.366 – Acquittal under – The prosecutionalleged that the appellant-accused and others kidnapped the victim‘M’ (allegedly 17-year-old girl) – Complaint lodged u/s. 366A ofIPC – Appellant solemnized marriage with her and engaged in sexualintercourse – M was traced by police – In her statement recorded,D‘M’ stated that she had known accused and both loved each otherand had eloped voluntarily – The trial Court held appellant andothers guilty and he was sentenced inter-alia u/s. 6 of the POCSOAct to undergo rigorous imprisonment for life – High Court confirmedappellant’s conviction under the POCSO Act but his sentence wasreduced to 10 years of rigorous imprisonment; he was also convictedEu/s 10 Prohibition of Child Marriage Act – Appellant was acquittedfrom the charge u/s. 366 of the IPC – On appeal, held: Thedocuments produced, i.e., transfer certificate and extracts of theadmission register, are not as per mandate of s. 94(2)(i) JJ Act andnor they are in accord with s.94(2)(ii)JJ Act – Thus, the only pieceFof evidence, accorded with s. 94 of the JJ Act was the medicalossification test and the PW-9 (examining doctor) opined that victimwas between 18-20 years and in cross-examination PW-9 said thatthe age might be 19 years – The result of the ossification or bonetest was the most authentic evidence, corroborated by PW-9 –Considering the statement of victim u/s. 164 CrPC, the prosecutionGwas not able to establish that there was any penetrative sexualassault as result of coercion or compulsion on the part of theappellant – Charges against accused u/s.6 of the POCSO Act aswell as s.10 of the Prohibition of Child Marriage Act cannot besustained – Judgment of High Court set aside and appellantHacquitted.

Allowing the appeal, the Court

HELD:1. It is clear that none of the documents producedduring the trial answered the description of “the date of birthcertificate from the school” or “the matriculation or equivalentcertificate” from the concerned examination board or certificateby corporation, municipal authority or Panchayat. In thesecircumstances, it was incumbent for the prosecution to provethrough acceptable medical tests/examination that the victim’sage was below 18 years as per Section 94(2)(iii) of the JJ Act.PW-9, Chief Civil Doctor and Radiologist at the General Hospitalat Vellore, produced the X-ray reports and deposed that in termsof the examination of M, certificate was issued stating “that theage of the said girl would be more than 18 years and less than 20years”. In the cross-examination, she admitted that M’s age couldbe taken as 19 years. However, the High Court rejected thisevidence, saying that “when the precise date of birth is availablefrom out of the school records, the approximate age estimated bythe medical expert cannot be the determining factor”. This findingis, in this court’s considered view, incorrect and erroneous. Asheld earlier, the documents produced, i.e., transfer certificateand extracts of the admission register, are not what Section 94(2) (i) mandates; nor are they in accord with Section 94 (2) (ii)because DW-1 clearly deposed that there were no records relatingto the birth of the victim, M. In these circumstances, the onlypiece of evidence, accorded with Section 94 of the JJ Act was themedical ossification test, based on several X-Rays of the victim,and on the basis of which PW-9 made her statement. She explainedthe details regarding examination of the victim’s bones, stage oftheir development and opined that she was between 18-20 years;in cross-examination she said that the age might be 19 years.Given all these circumstances, this court is of the opinion thatthe result of the ossification or bone test was the most authenticevidence, corroborated by the examining doctor, PW-9. [Para19][488-F-H; 489-A-D]

2. In her statement under Section 164 of the Cr. PC, thevictim M had deposed that she was in love with the appellant,had consumed poison, and had even been hospitalized becauseshe was adamant to live with the appellant. No doubt, she resiled

Afrom her statement. Yet, the medical evidence (deposition of PW-11-doctor) indicated that the victim had ruptured hymen; therewas no external injury at her private parts, and that according toher “48 hours before medical examination there was no evidenceto show that she had sexual assault is the opinion given by me.”This witness also produced her Notes of examination (Ex. P-11).BIn view of these facts, this court is of the opinion that theprosecution was not able to establish that there was anypenetrative sexual assault as result of coercion or compulsionon the part of the appellant. Even the High Court recognizedthis, albeit while reducing the sentence (since, in its opinion, MCwas minor at the time), observing that “P.W.3 had gone to theextent of taking poison to commit suicide out of love failure, underenormous pressure, he had accompanied P.W.3, married her andhad sexual intercourse with her, bothbefore the marriage as wellwas after the marriage.” From these facts, and the definitionsunder POCSO Act, especially the definitions of “sexual assault”,DSections 5 and 6, read with Sections 350 and 351 IPC, it can beseen that it is only when there is penetrative sexual assault, whichimplies sexual contact with or without consent of the minor victim,that the offences under the POCSO Act are committed.[Para21][491-A-F]ERishipal Singh Solanki vs. State of Uttar Pradesh &Ors. [2021] 12 SCR 502; Sanjeev Kumar Gupta vs.The State of Uttar Pradesh & Ors [2019] 9 SCR 735 –relied on.

Abuzar Hossain @ Gulam Hossain v State of WestFBengal [2012] 9 SCR 224 – referred to.

Case Law Reference

From the Judgment and Order dated 14.12.2016 of the High CourtHof Judicature at Madras in CRA No.400 of 2016.

Ms. E. R. Sumathy, S. Anand, Shankar Ganesh R., Advs. for theAppellant.

V. Krishnamurthy, AAG, Dr. Joseph Aristotle S., Ms. RichaVishwakarma, Ms. Vaidehi Rastogi, Advs. for the Respondent.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. The sole appellant is aggrieved by the conviction affirmed andthe sentence imposed by the Madras High Court, rejecting his plea[1]. Heis acquitted of committing offense under Section 366 of the Indian PenalCode (hereafter “IPC”), but convicted under Section 6 of the Protectionof Children from Sexual Offences Act, 2012 (hereafter “POCSO Act”).

2. The case of the prosecution was that one T. Abdul Hameedcomplained to the police that his younger daughter (hereafter “M” or“the victim”), aged 17 years (running 18 years), had stomach-ache whenhe went out on work on 13.01.2015. His elder daughter Vaheedha andhis younger sister Ameena had taken M to the hospital.While they werereturning home, near Rita School, Shastri Nagar, at about 02.30 hours,one Yuvaprakash and two others reached the spot, kidnapped M, andescaped from there by two-wheeler. This incident was reported to AbdulHameed by his elder daughter over the phone.He and others searchedforM in the nearby areas, but it in vain.Abdul Hameed lodged complaint[2]under Section 366A of the IPC. It was further alleged that on 14.01.2015,the appellant and A-3, A-4, A-6 to A-9 took M to templeat Kodumuditown, where the appellant tied thali around M’s neck to solemnizetheir marriage. After themarriage, again the appellant and A-3, A-4, A6to A9 took M to the second accused’s house, where they made her tostay with the appellant. It was alleged that while they were there, theappellant had repeated sexual intercourse with M.

3. It was also alleged that on 15.01.2015, the accused took M inan Omni van to Madurai, where the appellant stayed with her in hisuncle’s house between 15:01.2015 and 25.01.2015, at Seelanayakanpattiand that during this time too, the appellant repeatedly had sexualintercourse with the victim.Meanwhile, the police investigated thecomplaint, which was registered as missing person report. On

1 By common final order dated 14.12.2016 in Cr. A. No. 400/2016.

2 registered in Crime No. 22 of 2015.

A25.01.2015, the appellant and the other accused became aware that acomplaint had been lodged; as result, they abandoned M and leftMadurai. She then returned to her father’s house at Erode, when hetook her to the police station and reported what had occurred to theinvestigating officer (IO), viz. PW-16. PW-16 recorded the victim’sstatement under Section 161 of the Criminal Procedure Code (hereafterB“Cr. PC”). M’s statement was also recorded under Section 164 of theCr. PC. In this, she stated that she had known the accused, and bothloved each other, for about year; this was known to her father andgrandmother, who objected to their relationship. This led to her consumingrat poison to commit suicide; however, she was hospitalized and treated.CShe further stated that she eloped with the appellant voluntarily- factknown to her aunt and PW-4, her sister. She also stated that the appellantand his relatives solemnized her marriage with him, and they lived as amarried couple. According to her, when they were living together, thepolice came in search of her, after which she came to know that herfather had filed police complaint. She further clarified that she wasDnever abducted nor married forcibly and that she married the appellantas per her wishes.4. After M was traced, the police altered the complaint; the firstinformation report now included Section 6 and 17 of the POCSO Act aswell as other offences, such as Section 506 of the IPC, Section 10 of theEChild Marriage Prohibition Act, 2006. The appellant and other accused(i.e., his parents and relatives, A-2 to A-9) were alleged to have committedthe offences they were accused of in the charge sheet. The appellantand other accused were charged with commission of the offences; theyabjured guilt and faced trial. The key witnesses relied upon by theFprosecution were PW-3 (the victim, i.e., M); PW-4, her sister; PW-5,who turned hostile; PWs 6, 7 and 8, who deposed in relation to amotorcycle said to have been borrowed by the appellant’s father. Thedoctor who examined M was PW-9, as well as PW-11. PW-15, the sub-inspector who registered the case and PW-16, IO, who concluded theinvestigation. The trial court held the appellant and others guilty; theGappellant was sentenced inter alia under Section 6 of the POCSO Actto undergo rigorous imprisonment for life.

5. The High Court, by the impugned judgment modified theconviction. The accused A3, A4, A6 to A9 were convicted under Section10 of the Prohibition of Child Marriage Act, 2006; the second accusedH(A2) was acquitted of all charges and the appellant’s conviction under

the POCSO Act was confirmed but his sentence of life imprisonmentwith rigorous imprisonmentwas reduced to 10 years of rigorousimprisonment; he was also convicted under Section 10 of the Prohibitionof Child Marriage Act, 2006. The appellant was acquitted from thecharge under Section 366 of the IPC and the sentence was set aside.

6. Ms. E.R. Sumathy, learned counsel submitted that the findingsof the courts below are unsustainable. Firstly, she relied on thecircumstance that the victim M in her statement under Section 164Cr.PC,clearly indicated that she left with the appellant of her own accordand that her sister and aunt knew these facts. It was pointed out thatthe same statement further acknowledged that M and the appellant hadknown and loved each other for year. In these circumstances, whenshe eloped with the appellant, the fact that she did not support her previousstatement to the Magistrate and resiled from it, should have been animportant aspect that cast serious doubts about the prosecution story.

7. The learned counsel highlighted that the trial court’s approachin this regard was entirely erroneous because the findings recorded arethat the prosecution was unable to show that M was not under somecoercion from the appellant. Learned counsel pointed out that thisreasoning is without logic. Learned counsel submitted that when theMagistrate recorded the statement, M was clearly not under the influenceof the appellant; in fact, Magistrate recorded his opinion in this regard aswell.

8. Learned counsel next argued that the courts below fell intoerror in not appreciating that the prosecution failed to discharge the burdenof proof, with respect to the victim’s age. Reference was made toSection 34 of the POCSO Act and Section 94 of the Juvenile Justice(Care and Protection of Children) Act, 2015 (hereafter “JJ Act”), to saythat age determination has to be on the basis of settled statutory criteria.In the first instance, the school leaving certificate, or the matriculationcertificate had to be seen; if that were not available, the birth certificateor records to that effect issued by the local or municipal authority are tobe considered,and if neither of the first two classes of documents areavailable, then, age determination depends on the ossification test.Learned counsel highlighted that in the present case, the ossification testindicated that M’s age was between 18 and 20, proving that she was nota minor. This aspect was deposed to by PW-9, who also produced thetest report.

A9. The prosecution, however, did not provide any evidence toestablish that the victim’s age was under 18. It was argued that,giventhe totality of these circumstances and that the victim had changed herversion and deposed contrary to what she stated in her statement underSection 164 of Cr.PC, the appellant could not have been convicted forthe offences he was charged with. It is lastly argued that the High CourtBacquitted the appellant of the charge under Section 366 IPC which givesa complete lie to the prosecution story about the kidnapping or forcefulabduction of the victim.

10. Mr. V. Krishnamurthy, Learned Additional Advocate Generalappearing for the State, supported the concurrent conviction and sentenceCrecorded by the Courts below; he submitted that even though the victimand the appellant knew each other, and even if it was accepted that theyhad feelings for each other, the fact remains that the victim was belowthe statutory age, and consent is irrelevant.He submitted that the findingsof the courts below with respect to the age of the victim were supportedDor corroborated only by the testimony of DW-2, the Head Mistress ofthe school where M had studied. She had deposed that according to theschool records, M’s date of birth is 11.07.1997.

Analysis and conclusions

11. Before discussing the merits of the contentions and evidenceEin this case, it is necessary to extract Section 34 of the POCSO Actwhich reads as follows:

“34. Procedure in case of commission of offence by child anddetermination of age by Special Court. – (1) Where any offenceunder this Act is committed by child, such child shall beFdealt with under the provisions of the Juvenile Justice (Careand Protection of Children) Act, 2015 (2 of 2016).

(2) If any question arises in any proceeding before the SpecialCourt whether person is child or not, such question shallbe determined by the Special Court after satisfying itself aboutthe age of such person and it shall record in writing its reasonsGfor such determination.

(3) No order made by the Special Court shall be deemed to beinvalid merely by any subsequent proof that the age of aperson as determined by it under sub-section (2) was not thecorrect age of that person.”

12. In view of Section 34(1) of the POCSO Act, Section 94 of theJJ Act, 2015 becomes relevant, and applicable. That provision isextracted below:

“94. Presumption and determination of age. – (1) Where, it isobvious to the Committee or the Board, based on theappearance of the person brought before it under any of theprovisions of this Act (other than for the purpose of givingevidence) that the said person is child, the Committee or theBoard shall record such observation stating the age of thechild as nearly as may be and proceed with the inquiry undersection 14 or section 36, as the case may be, without waitingfor further confirmation of the age.

(2) In case, the Committee or the Board has reasonablegrounds for doubt regarding whether the person broughtbefore it is child or not, the Committee or the Board, as thecase may be, shall undertake the process of age determination,by seeking evidence by obtaining –

(i) the date of birth certificate from the school, or thematriculation or equivalent certificate from the concernedexamination Board, if available; and in the absence thereof;

(ii) the birth certificate given by corporation or municipalauthority or panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall bedetermined by an ossification test or any other latest medicalage determination test conducted on the orders of theCommittee or the Board:

Provided such age determination test conducted on the orderof the Committee or the Board shall be completed within fifteendays from the date of such order.

(3) The age recorded by the Committee or the Board to be theage of person so brought before it shall, for the purpose ofthis Act, be deemed to be the true age of that person.”

13. It is evident from conjoint reading of the above provisions thatwherever the dispute with respect to the age of person arises in thecontext of her or him being victim under the POCSO Act, the courtshave to take recourse to the steps indicated in Section 94 of the JJ Act.

AThe three documents in order of which the Juvenile Justice Act requiresconsideration is that the concerned court has to determine the age byconsidering the following documents:

“(i) the date of birth certificate from the school, or thematriculation or equivalent certificate from the concernedBexamination Board, if available; and in the absence thereof;

(ii) the birth certificate given by corporation or municipalauthority or panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall beCdetermined by an ossification test or any other latest medicalage determination test conducted on the orders of theCommittee or the Board”.

14. Section 94 (2)(iii) of the JJ Act clearly indicates that the dateof birth certificate from the school or matriculation or equivalent certificateDby the concerned examination board has to be firstly preferred in theabsence of which the birth certificate issued by the Corporation orMunicipal Authority or Panchayat and it is only thereafter in the absenceof these such documents the age is to be determined through “anossification test” or “any other latest medical age determination test”Econducted on the orders of the concerned authority, i.e. Committee orBoard or Court. In the present case, concededly, only transfer certificateand not the date of birth certificate or matriculation or equivalentcertificate was considered. Ex. C1, i.e., the school transfer certificateshowed the date of birth of the victim as 11.07.1997. Significantly, thetransfer certificate was produced not by the prosecution but instead byFthe court summoned witness, i.e., CW-1.The burden is always upon theprosecution to establish what it alleges; therefore, the prosecution couldnot have been fallen back upon document which it had never reliedupon. Furthermore, DW-3, the concerned Revenue Official (DeputyTahsildar) had stated on oath that the records for the year 1997 in respectGto the births and deaths were missing. Since it did not answer to thedescription of any class of documents mentioned in Section 94(2)(i) as itwas mere transfer certificate, Ex C-1 could not have been relied uponto hold that M was below 18 years at the time of commission of theoffence.

15. In recent decision, in Rishipal Singh Solanki vs. State ofUttar Pradesh&Ors.,[3 ]this court outlined the procedure to be followedin cases where age determination is required. The court was dealingwith Rule 12 of the erstwhile Juvenile Justice Rules (which is in parimateria) with Section 94 of the JJ Act, and held as follows:

“20. Rule 12 of the JJ Rules, 2007 deals with the procedureto be followed in determination of age. The juvenility of aperson in conflict with law had to be decided prima facie onthe basis of physical appearance, or documents, if available.But an inquiry into the determination of age by the Court orthe JJ Board was by seeking evidence by obtaining: (i) thematriculation or equivalent certificates, if available and inthe absence whereof; (ii) the date of birth certificate from theschool (other than play school) first attended; and in theabsence whereof; (iii) the birth certificate given by acorporation or municipal authority or panchayat. Onlyin the absence of either (i), (ii) and (iii) above, the medicalopinion could be sought from duly constituted Medical Boardto declare the age of the juvenile or child. It was also providedthat while determination was being made, benefit could begiven to the child or juvenile by considering the age on lowerside within the margin of one year.”

16. Speaking about provisions of the Juvenile Justice Act, especiallythe various options in Section 94 (2) of the JJ Act, this court held inSanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors[4] that:

“Clause (i) of Section 94 (2) places the date of birth certificatefrom the school and the matriculation or equivalent certificatefrom the concerned examination board in the same category(namely (i) above). In the absence thereof category (ii)provides for obtaining the birth certificate of the corporation,municipal authority or panchayat. It is only in the absence of(i) and (ii) that age determination by means of medical analysisis provided. Section 94(2)(a)(i) indicates significant changeover the provisions which were contained in Rule 12(3)(a) ofthe Rules of 2007 made under the Act of 2000. Under Rule12(3)(a)(i) the matriculation or equivalent certificate was

3 2021 (12) SCR502

4 [2019] 9 SCR 735

Agiven precedence and it was only in the event of the certificatenot being available that the date of birth certificate from theschool first attended, could be obtained. In Section 94(2)(i)both the date of birth certificate from the school as well asthe matriculation or equivalent certificate are placed in thesame category.B

17. In Abuzar Hossain @ Gulam Hossain v State of WestBengal[5], this court, through three-judge bench, held that the burden ofproving that someone is juvenile (or below the prescribed age) is uponthe person claiming it. Further, in that decision, the court indicated thehierarchy of documents that would be accepted in order of preference.C

18. Reverting to the facts of this case, the headmaster of M’sSchool, CW-1, was summoned by the court and produced TransferCertificate (Ex.C-1). This witness produced Transfer CertificateRegister containing M’s name. He deposed that she had studied in theschool for one year, i.e., 2009-10 and that the date of birth was based onDthe basis of the record sheet given by the school where she studied inthe7[th]standard.DW-2 TMT Poongothoi, Headmaster ofChinnasoalipalayam Panchayat School, answered the summons servedby the court and deposed that ‘M’ had joined her school with effectfrom 03.04.2002 and that her date of birth was recorded as 11.07.1997.EShe admitted that though the date of birth was based on the birthcertificate, it would normally be recorded on the basis of horoscope. Sheconceded to no knowledge about the basis on which the documentpertaining to the date of birth was recorded. It is stated earlier on thesame issue, i.e., the date of birth, Thiru Prakasam, DW-3 stated that thebirth register pertaining to the year 1997 was not available in the recordFroom of his office.19. It is clear from the above narrative that none of the documentsproduced during the trial answered the description of “the date of birthcertificate from the school” or “the matriculation or equivalentcertificate” from the concerned examination board or certificate by aGcorporation, municipal authority or Panchayat. In these circumstances,it was incumbent for the prosecution to prove through acceptable medicaltests/examination that the victim’s age was below 18 years as per Section94(2)(iii) of the JJ Act.PW-9, Dr. Thenmozhi, Chief Civil Doctor andRadiologist at the General Hospital at Vellore,produced the X-ray

H5 [2012] 9 SCR 224

reportsand deposed that in terms of the examination of M, certificatewas issued stating “that the age of the said girl would be more than18 years and less than 20 years”. In the cross-examination, sheadmitted that M’s age could be taken as 19 years. However, the HighCourt rejected this evidence, saying that “when the precise date ofbirth is available from out of the school records, the approximateage estimated by the medical expert cannot be the determiningfactor”. This finding is, in this court’s considered view, incorrect anderroneous. As held earlier, the documents produced, i.e., transfercertificate and extracts of the admission register, are not what Section94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) becauseDW-1 clearly deposed that there were no records relating to the birth ofthe victim, M. In these circumstances, the only piece of evidence,accorded with Section 94 of the JJ Act was the medical ossificationtest, based on several X-Rays of the victim, and on the basis of whichPW-9 made her statement. She explained the details regardingexamination of the victim’s bones, stage of their development and opinedthat she was between 18-20 years; in cross-examination she said thatthe age might be 19 years. Given all these circumstances, this court is ofthe opinion that the result of the ossification or bone test was the mostauthentic evidence, corroborated by the examining doctor, PW-9.

20. In this case, the appellant was charged,inter alia, for theoffence under Section 6 of the POCSO Act. The offence under Section6 depends on the proof that “sexual assault” took place. That term isdefined by Section 7, which reads as follows:

“Whoever, with sexual intent touches the vagina, penis, anusor breast of the child or makes the child touch the vagina,penis, anus or breast of such person or any other person, ordoes any other act with sexual intent which involves physicalcontact without penetration is said to commit sexual assault.”

The offence under Section 6, at the relevant time, was defined asfollows:

“Whoever, commits aggravated penetrative sexual assault,shall be punished with rigorous imprisonment for term whichshall not be less than ten years but which may extend toimprisonment for life and shall also be liable to fine.”

Section 3 defines penetrative sexual assault, as follows:

[2023] 10 S.C.R.

A“3. Penetrative Sexual Assault. - person is said to commit“penetrative sexual assault” if -

(a) he penetrates his penis, to any extent, into the vagina,mouth, urethra or anus of child or makes the child to do sowith him or any other person; or

B(b)........................

(c)........................

(d)........................”

Section 2(a) of the POCSO Act provides that ‘aggravatedCpenetrative sexual assault’ has the same meaning as assigned to it inSection 5. Therefore, Section 5, which defines ‘aggravated penetrativesexual assault’ is relevant. Section 5 (l) reads as follows:

“5. Aggravated Penetrative Sexual Assault. -

(l)whoever commits penetrative sexual assaulton the childmore than once or repeatedly; or”

Section 4, at the relevant time, read as follows:

“(1) Whoever commits penetrative sexual assault shall beEpunished with imprisonment of either description for termwhich shall not be less than seven years but which may extendto imprisonment for life, and shall also be liable to fine.”

The expression “assault” is defined in Section 351 IPC as

“Whoever makes any gesture, or any preparation intendingor knowing it to be likely that such gesture or prepa-rationwill cause any person present to apprehend that he who makesthat gesture or preparation is about to use criminal force tothat person, is said to commit an assault.”

The expression “criminal force” is defined by Section 350 IPC asGfollows:

“Whoever intentionally uses force to any person, without thatperson’s consent, in order to the committing of any offence,or intending by the use of such force to cause, or knowing itto be likely that by the use of such force he will cause injury,

fear or annoyance to the person to whom the force is used, issaid to use criminal force to that other.”

21. In her statement under Section 164 of the Cr.PC, the victimM had deposed that she was in love with the appellant, had consumedpoison, and had even been hospitalized because she was adamant to livewith the appellant. No doubt, she resiled from her statement. Yet, themedical evidence (deposition of PW-11, Dr. Kavitha) indicated that thevictim had ruptured hymen; there was no external injury at her privateparts, and that according to her “48 hours before medical examinationthere was no evidence to show that she had sexual assault is theopinion given by me.” This witness also produced her Notes ofexamination (Ex. P-11). In view of these facts, this court is of the opinionthat the prosecution was not able to establish that there was anypenetrative sexual assault as result of coercion or compulsion on thepart of the appellant. Even the High Court recognized this, albeit whilereducing the sentence (since, in its opinion, M was minor at the time),observing that “P.W.3 had gone to the extent of taking poison tocommit suicide out of love failure, under enormous pressure, hehad accompanied P.W.3, married her and had sexual intercoursewith her, both before the marriage as well was after themarriage.”From these facts, and the definitions under POCSO Act,especially the definitions of “sexual assault”, Sections 5 and 6, read withSections 350 and 351 IPC, it can be seen that it is only when there ispenetrative sexual assault, which implies sexual contact with or withoutconsent of the minor victim, that the offences under the POCSO Actare committed.

22. All the facts proved in this case clearly indicate M’s willingnessto accompany the appellant and even celebrate their marriage. However,she did not support the statement under Section 164 Cr.PC. To entirelydiscard that statement, the trial court observed that:

“In this case, on the orders of the Inspector of P.W.-16 hadproduced the girl M[6]before the Judicial Magistrate Court,Erode and she has given statement voluntarily u/s.164 Cr.PC.To prove that the aforesaid statement was not given on anycompulsion, no evidences have been put forth before thiscourt.”

6 name redacted.

The above surmise by the trial court is untenable. The prosecutiondid not concededly produce the Judicial Magistrate who recorded thestatement; however, that officer was available and was stationed atErode. She deposed during the trial, as DW-1, and importantly affirmedthe veracity of the victim’s statement (Ex. P-4) by stating as follows:

B“It is true statement given by the said girl wilfully. The saidstatement was not given on compulsion. It is correct if it isstated that, (M), in her statement, had told me that, I and myneighbour who was in the nearby house, by nameYuvaprakashare in love for the past 1 1/2 years, we used to talk to eachother frequently over phone, my grand-mother on seeing meCspeaking over the phone had told my father about it, I tookpesticide for ants and attempted to commit suicide….”

The prosecution did not even cross examine this witness. Havingregard to these overall factors, the court is of the opinion that M’sstatement under Section 164 of the Cr.PC contained truthful narrationDof the events. This, in other words, meant that there was no penetrativesexual assault on her.Therefore, the provisions of the POCSO Act willnot be applicable in this case. The impugned judgment set aside thecharge under Section 366 IPC against the appellant. The charges againsthim, under Section 6 of the POCSO Act as well as Section 10 of theEProhibition of Child Marriage Act, cannot be sustained; the findings ofthe courts below, i.e., conviction and sentences imposed are, therefore,set aside.

23. In view of the foregoing analysis and conclusions, this court isof the opinion that the appellant is not guilty of the offences he wasFcharged with; he is hereby acquitted. The impugned judgment and orderis hereby set aside; the appellant shall be set at liberty forthwith unlessrequired in connection with any other case. The appeal is allowed, butwithout order on costs.

GAnkit Gyan

(Assisted by : Aarsh Choudhary, LCRA)

Appeal allowed.