The Supreme Court has ruled that a conviction under the Protection of Children from Sexual Offences Act, 2012 cannot be sustained when the prosecution fails to prove the victim’s age through the documents or medical tests prescribed under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
At the same time, the bench of Justice Prashant Kumar Mishra and Justice N.V. Anjaria clarified that failure to establish the victim’s minority would not automatically absolve an accused where the evidence independently proves the commission of rape. It held that an appellate court can convict the accused under Section 376 of the Indian Penal Code even if the trial court did not frame a separate charge under that provision, provided the omission did not cause prejudice or a failure of justice.
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The prosecution alleged that a 13-year-old girl was sexually assaulted on November 26, 2019, at Mokoidaling in Sutnga, Meghalaya. An FIR was lodged by the victim’s mother on the following day.
After investigation, the appellant was prosecuted for criminal intimidation under Section 506 of the IPC and penetrative sexual assault under Sections 3 and 4 of the POCSO Act.
The Special POCSO Court convicted the appellant on June 16, 2021. He was sentenced to 20 years of rigorous imprisonment and a fine of ₹5,000 under Section 4 of the POCSO Act. A separate sentence of two years’ rigorous imprisonment was imposed under Section 506 of the IPC.
The trial court treated the victim as 13 years old on the basis of her mother’s testimony, a Baptismal Certificate and the medical report. The Meghalaya High Court subsequently upheld the conviction and sentence.
Before the Supreme Court, the appellant argued that the victim’s age had not been proved in accordance with Section 94 of the JJ Act. The prosecution had relied primarily on a Baptismal Certificate issued by the Khasi Jaintia Presbyterian Assembly, which recorded the victim’s date of birth as March 5, 2006.
It was submitted that neither the minister of the church nor any person responsible for preparing the certificate was examined. The certificate was also only marked as a paper mark and was not formally exhibited during the trial.
The appellant further pointed out that the investigating officer did not obtain the victim’s school birth certificate, matriculation certificate or a birth certificate issued by a municipal or local authority. No ossification test or other medical age-determination test was conducted either.
Section 94 Procedure Must Be Followed
The Supreme Court referred to its earlier decisions in Jarnail Singh v. State of Haryana, State of Madhya Pradesh v. Anoop Singh and P. Yuvaprakash v. State, which recognised that the mechanism prescribed under the juvenile justice law must also be followed while determining the age of a victim in a POCSO prosecution.
Under Section 94(2) of the JJ Act, the age of a person must first be determined through a date-of-birth certificate issued by the school or a matriculation or equivalent certificate issued by the examination board. In their absence, reliance may be placed on a birth certificate issued by a corporation, municipal authority or panchayat.
Only when these documents are unavailable can the authorities resort to an ossification test or another recognised medical age-determination procedure.
In the present case, the investigating officer did not collect any of the documents specified under Section 94. The victim was also not subjected to an ossification test or any other scientific age-determination procedure.
The Court observed that the Baptismal Certificate was the only document produced to prove the victim’s age. Although its date-of-birth entry was supported by the testimony of the victim’s mother, the certificate was not among the documents recognised by Section 94.
“Since the document itself is not the one prescribed under Section 94 of the JJ Act, we are of the considered view that the prosecution has failed to prove the age of the victim in the manner required under Section 94 of the JJ Act,” the Court held.
Baptismal Certificate Not Sufficient Under Statutory Framework
The State relied on the Supreme Court’s earlier ruling in Luis Caetano Viegas v. Estrelina Mariana R.M.A. Da’Costa, in which a baptismal record was accepted as evidence.
The bench, however, found the ruling distinguishable. It noted that the earlier case concerned inheritance and parentage, and a birth certificate based on the baptismal record had also been issued and proved.
The present matter, in contrast, involved the determination of a POCSO victim’s age, for which the legislature had created a specific statutory mechanism under Section 94 of the JJ Act.
The earlier ruling, therefore, could not be used to bypass the prescribed procedure for proving minority in a POCSO prosecution.
Failure to Prove Age Does Not Disprove Rape
Although the prosecution failed to establish the victim’s minority, the Supreme Court found that the evidence conclusively proved that the appellant had committed penetrative sexual assault.
The victim identified the appellant during all three rounds of the Test Identification Parade conducted on December 13, 2019. The magistrate who conducted the procedure confirmed the identification during the trial.
The victim had also stated that she struck the appellant on his forehead with a stone while resisting the assault. A doctor who examined the appellant found a cut injury measuring approximately 2 cm by 1 cm on the left side of his forehead.
The medical examination of the victim recorded a torn hymen and partial penile penetration. Blood stains were detected on the vaginal swab. The forensic examination also detected blood on the victim’s jacket, trousers and underwear, while a seminal stain was detected on the appellant’s underwear.
The Court concluded that the victim’s testimony, medical findings, forensic material and the appellant’s injuries collectively established the commission of rape.
It observed that the finding regarding sexual assault could not be discarded merely because the prosecution failed to produce legally acceptable proof of the victim’s age.
Conviction Possible Despite Absence of Section 376 Charge
The next question before the Court was whether the appellant could be convicted for rape under Section 376 of the IPC when the trial court had framed charges only under the POCSO Act and Section 506 of the IPC.
The Supreme Court said that the trial court should have framed an alternative charge under Section 376 of the IPC, particularly when the allegations prima facie disclosed the commission of rape. However, omission to frame the charge did not by itself absolve the accused.
Referring to Sections 222, 386 and 464 of the Code of Criminal Procedure, the Court explained that an error or omission in framing charges would invalidate a conviction only when it had caused actual prejudice or a failure of justice.
The essential physical ingredients of rape under Section 375 of the IPC and penetrative sexual assault under Section 3 of the POCSO Act were substantially the same, the Court noted. The distinguishing factor was the victim’s minority.
Since the appellant had been tried for penetrative sexual assault and was given a complete opportunity to contest the allegations, he was fully aware of the essential case against him. Substituting the POCSO conviction with a conviction for rape, therefore, did not cause any prejudice.
“Even in the absence of charge under Section 376 of the IPC, the accused can be convicted under the same where the ingredients are the same as under Section 3 of the POCSO Act, and the accused has been given an opportunity to defend himself against the same,” the Court held.
The bench clarified that appellate and revisional courts possess the power to convict an accused for an offence for which no formal charge was framed, unless the omission has resulted in a failure of justice.
For deciding whether prejudice was caused, courts must examine whether the accused knew the basic ingredients of the offence, whether the principal allegations were clearly explained and whether a fair opportunity to defend the case was provided.
Sentence Reduced From 20 Years to 10 Years
As the victim’s minority was not proved according to law, the Supreme Court set aside the appellant’s conviction under Section 4 of the POCSO Act, which had resulted in a minimum sentence of 20 years.
The appellant was instead convicted under Section 376 of the IPC and sentenced to 10 years of rigorous imprisonment with a fine of ₹10,000. In default of payment, he must undergo an additional six months of rigorous imprisonment.
The conviction and two-year sentence imposed for criminal intimidation under Section 506 of the IPC were left undisturbed.
The Court accordingly modified the judgments of the Special POCSO Court and the Meghalaya High Court and partly allowed the appeal.
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