Juvenile Justice (Care and Protection of Children) Act, 2015
Section 94 and Section 34 of the POCSO Act—Presumption and determination of age—Ossification test—Wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the Juvenile Justice Act—Burden is always upon prosecution to establish what it alleges—Prosecution could not have been fallen back upon a document which it had never relied upon—Documents produced i.e. a transfer certificate and extracts of admission register, are not what Section 94(2)(i) mandates; nor are they in accord with Section 94(2)(ii) of the Act because Judicial Magistrate clearly deposed that there were no records relating to birth of victim—Opinion of High Court that “when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor”—Incorrect and erroneous—Transfer certificate cannot be relied upon to determine the age of victim—Result of ossification or bone test was the most authentic evidence, corroborated by the examining doctor.
[Paras 13, 14, 18 & 19]
Protection of Children from Sexual Offences Act, 2012
Section 6—Aggravated penetrative sexual assault—Conviction—Offence under Section 6 of the POCSO Act depends on the proof that a “sexual assault” took place—In her statement under Section 164 of Cr.PC, the victim had deposed that she was in love with appellant, had consumed poison, and had even been hospitalized because she was adamant to live with appellant—Prosecution was not able to establish that there was any penetrative sexual assault as a result of coercion or compulsion on the part of the appellant—Proved facts clearly indicate victim’s willingness to accompany appellant and even celebrate their marriage—Victim did not support the statement under Section 164 of CrPC—Prosecution did not concededly produce the Judicial Magistrate who recorded the statement—No penetrative sexual assault committed on the victim—Provisions of the POCSO Act will not be applicable—Conviction set aside.
[Paras 21 to 23]