No Liability If Accused Lacks Knowledge Regarding Victim's Age During Intercourse: Madras HC

It is hugely significant to note that in a major development that unfolded, the Madurai Bench of the Madras High Court in a most learned, laudable, landmark and latest judgment titled Sujithkumar @Sonaimuthu vs State in Crl.A(MD)No.394 of 2022 that was first reserved on 20.12.2023 and then finally pronounced on 19.01.2024 has held in no uncertain terms that for liability under Section 5 of the Prevention of Children from Sexual Offences Act, 2012 (POCSO Act), it is crucial to prove that the accused was fully aware of the victim's age during the alleged sexual intercourse. It must be mentioned here that the Court allowed a criminal appeal challenging the conviction and sentence passed against the accused under the POCSO Act. We thus notice that in light of the circumstances, the Court deemed it fit to overturn the appellant's conviction under Section 5(1) r/w 5(J)(ii) r/w 6 of the POCSO Act noting clearly that the prosecution failed to substantiate the charges. We thus witness that accordingly the Court allowed the criminal appeal and thus set aside the conviction and sentence of the appellant.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon'ble Mr Justice KK Ramakrishnan of Madurai Bench of Madras High Court sets the ball in motion by first and foremost putting forth in para 1 that, "The appellant, who is the sole accused in Spl.S.C.No.52 of 2016 on the file of the learned Sessions Judge (Special Court-POCSO Act cases), Madurai, filed this criminal appeal challenging the conviction and sentence imposed against him by the learned Sessions Judge (Special Court-POCSO Act cases), Madurai. The learned trial Judge has passed the impugned order, dated 28.03.2022 and found the petitioner guilty, convicted and sentenced him as detailed below:-

Sole Accused Convicted under Section 5(l) r/w 5(J)(ii) r/w 6 of POCSO Act with Rigorous Imprisonment ten years and to pay a fine of Rs. 5,000/-, in default to undergo Simple Imprisonment for one year."

To put things in perspective, the Bench envisages in para 2 that, "The case of the prosecution is that the appellant/Sole accused is the neighbour of the victim girl/P.W.1. The appellant was already married and he was having two children. The appellant had love affair with the victim girl and he had sexual intercourse with her several times by giving false promise to marry her. Due to which, she became pregnant. On the basis of the complaint given by the victim girl/P.W.1, the respondent police registered the case against the appellant in Crime No.111 of 2013 for the offences under Section 5(l) r/w 5(J)(ii) r/w 6 of Prevention of Children from Sexual Offences Act, 2012, (hereinafter, for the sake of brevity, referred to as "POCSO Act"). Thereafter, the respondent police arrested the accused and conducted investigation and filed the final report. The same was taken on file by the learned Sessions Judge (Special Court-POCSO Act cases), Madurai, in Spl.S.C.No.52 of 2016. The learned trial Judge issued summons to the accused and after his appearance, served the copies under Section 207 Cr.P.C. Thereafter, he framed necessary charges and questioned the accused. The accused pleaded not guilty and hence the trial commenced against the accused."

To be sure, the Bench discloses in para 3 that, "To prove the case, the prosecution examined P.W.1 to P.W.15 and exhibited 16 documents as Ex.P.1 to Ex.P.16. The learned trial Judge thereafter questioned the accused under Section 313 Cr.P.C by putting the relevant question and the accused denied the same as false and thereafter, the case was posted for examination of the witnesses on the side of the accused. The accused examined D.W.1 and exhibited one document as Ex.D.1."

As it turned out, the Bench then mentions in para 4 that, "The learned trial Judge, on considering the evidence of witnesses, convicted and sentenced the appellant for the offence as stated supra. Aggrieved over the same, the appellant preferred this appeal."

Be it noted, the Bench notes in para 6 that, "The learned Additional Public Prosecutor submitted that the entry in the record is admissible, when P.W.11 was examined to prove the same. He further submitted that even though P.W.11 turned hostile, the appellant had sexual intercourse with her several times by giving false promise to marry her. Hence, the offence under Section 5(l) r/w 5(J)(ii) r/w 6 of POCSO Act is made out against the appellant. Hence, the conviction and sentence passed against him can not be found fault with."

Needless to say, the Bench then states in para 7 that, "This Court has considered the rival submissions made by both parties and perused the records and also the precedents relied upon by them."

It is worth noting that the Bench notes in para 8 that, "To prove the age of the victim girl, the prosecution marked Ex.P. 7 and Ex.P.8. The said document is the entry in the school record. As per Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007, in the absence of the SSLC certificate, if any document is produced by the school authority, the same to be proved beyond reasonable doubt. The said entry of the date of birth is made with authenticated source. The said requirement was reiterated by the Honourable Supreme Court in the the case of Yuvaprakash Vs. State Represented by the Inspector of Police, reported in 2023 LiveLaw (SC) 538, the relevant paragraph was held as follows:

"18.Reverting to the facts of this case, the headmaster of M's school, CW1, was summoned by the Court and produced a Transfer Certificate (Ex.C-1). This Witness produced a Transfer Certificate Register containing M's name. He deposed that she had studied in the school for one year i.e., 2009-10 and that the date of birth was based on the basis of the record sheet given by the school where she studied in the 7th standard. D.W.2 TMT poongothoi, Headmaster of Chinnasolaipalayam Panchayat School, answered the summons served by the Court and deposed that 'M' had joined her school with effect from 03.04.2002 and that her date of birth was recorded as 11.07.1997. she admitted that though the date of birth was 11.07.1997. she admitted that though the date of birth was based on the birth certificate, it would normally be recorded on the basis of horoscope. She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. It is stated earlier on the same issue i.e., the date of birth, Thiru Prakasam, D.W.3 stated that the birth register pertaining to the year 1997 was not available in the record room of his office.

19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the Matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat.""

Quite significantly, the Bench propounds in para 9 that, "From the above principle, the P.W.11 is the retired Headmaster. He admitted the victim girl on 19.06.2008 in the fourth standard. It is not evidence of the P.W.11 that he made an endorsement either on the basis of the birth certificate or any other authenticated document. Hence, this Court feels that the prosecution miserably failed to prove the age of the victim girl to constitute the offence under the POCSO Act."

Most significantly, most forthrightly and so also most remarkably, the Bench then mandates in para 10 holding that, "In the absence of the age proof, the charge framed against the appellant under Section 5(l) r/w 5(J)(ii) r/w 6 of POCSO Act, is not made out. Without any evidence, on the side of the prosecution to prove that the appellant had sexual intercourse with her with the knowledge that victim is minor, the charge framed under Section 5(l) r/w 5(J)(ii) r/w 6 of POCSO Act is not made out. In the said circumstances, this Court finds that the prosecution miserably failed to prove the charges against the appellant. Hence, this Court is inclined to interfere with the finding of the learned trial Judge in convicting the appellant under Section 5(l) r/w 5(J)(ii) r/w 6 of POCSO Act, and acquit the appellant for the above stated reasons."

Finally and as a corollary, the Bench then concludes by directing in para 11 that, "In the result, this Criminal Appeal stands allowed. The conviction and sentence dated 28.03.2022, passed by the learned Sessions Judge (Special Court-POCSO Act cases), Madurai, in Spl.S.C.No.52 of 2016 is hereby set aside. The learned trial Judge granted compensation to the victim girl. Even though this Court acquitted the appellant from all the charges, the order of compensation granted to the victim girl is not disturbed. The fine amount, if any, paid by the appellant/sole accused shall be refunded to him. The bail bond, if any, executed by the appellant/sole accused shall stand cancelled."

All told, we thus see that the Madras High Court has made it indubitably clear that there is no liability of accused if the accused lacked knowledge and was ignorant regarding the victim's age during the intercourse. The accused was thus very rightly acquitted of all the charges framed against him as the charges could not be substantiated due to what has been pointed out hereinabove. No denying it!