High Court overturns POCSO conviction by trial court

Gangtok, 23 Jul:

High Court of Sikkim has acquitted one AnishRai, who had been convictedfor rigorous imprisonment of 10 years under Protection of Childrenfrom Sexual Offences Act, 2012,with a fine of Rs5,000 by the Session Court atNamchi while setting aside the sentence and offences charged against him.

The division bench of Sikkim High Court headed by Acting Chief Justice, MeenakshiMadanRai, and Justice Bhaskar Raj Pradhan observed thatbesides the failure of the prosecution to establish the minority ofthe victim either by document or expert evidence, an adverse inferencecan be drawn by this Court under Section 114(g) of the Indian EvidenceAct, 1872, since the Investigating Officer despite knowledge failed tocollect the Birth Certificate of the victim from her sister.

The court further observed that the Birth Certificate issued by theschool having held no evidentiary value, the prosecution ought to havefurnished the Birth Certificate given by a corporation, municipalauthority, or a panchayat, failing which resort can be takento bone age estimation, which in any event in the instant matter would be futile.

Legal Aid Counsel for the appellant,Gulshan Lama, raised that the ageof the victim was not proved as the parameters laid out for thepurposes of arriving at the age of the victim in terms of the Juvenile Justice [Care and Protection of Children] Rules, 2007, were not complied with. He also argued that the ratio laid down by the SupremeCourt of India and stated that the evidence of the victim‘s father,pertaining to the age of the victim as likely to have been above 18 years was disregarded by the Trial Court.

However, the State Additional Prosecutor, Karma Thinlay, opposed theargument and said that the findings of the trial court suffered fromno illegality and the appeal deserves a dismissal adding that that theconsent of a minor is no consent in the eyes of law.

While writing the judgment, the division bench heard the rivalarguments put forth by Counsel for the parties andexamining the evidence and documents meticulously for determination ofthe Court and put forth three questions for judicial review: (i)Whether the Prosecution was able to establish that the Victim was aminor? (ii) Whether the act of the Victim was consensual or was sheunder coercion? (iii) Whether the learned Trial Court was in error inconvicting the Appellant?

The court observed that on the direction of theGynaecologist who examined the victim, she was sent to a Radiologist in order to determine her age. This radiologist was not authorised bythe investigating agency to verify the age of the victim, the bench said further adding that, “In the instant matter, it was incumbent on the medical witness to have first demonstrated her expertise in the field by way of evidence and thereafter, to testify as to how she had formed her opinion regarding the age of the victim.”

The court also observed that the evidence on record is clearly indicative of the free will of the victim in accompanying the accused and consenting to the acts between them.

While finding the conclusions of these three questions put forth forcourt determination, the bench arrived at the conclusion stating thatwhile summing up the entire gamut of facts and evidence on record, for the reasons discussed succinctly, “we have no qualms in arriving atthe finding that the learned Trial Court was in error in convictingthe appellant, which thereby sets to rest all the three questions”.