Avinash vs State of Karnataka

A.S. Pachhapure, J.

The appellant has challenged his conviction and sentence for the offence punishable under Section 366 IPC and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as "the POCSO Act" for short], on a trial held by the learned Sessions Judge, Davanagere.

The facts reveal that the appellant committed an Act of sexual assault after kidnapping the victim-P.W. 8 on 22.10.2013 in the night hours, took her to Bengaluru and other places, had the sexual intercourse with her. In the circumstances, a complaint came to be filed on 23.10.2013 and registered in Crime No. 188/13. In the course of the investigation, the victim was sent to the doctor for medical examination, mahazars were held. Statements were recorded. Material objects were collected and sent for opinion of the experts. The radiological examination was made on the victim to assess her age and the documents were collected. On completion of the investigation, charge-sheet was laid against the appellant/accused for the offence punishable under Section 366 IPC and under Section 4 of the POCSO Act.

In the trial, P.Ws. 1 to 18 were examined and in their evidence Exs. P1 to 17 were marked. After recording the statement of the appellant under Section 313 Cr.P.C., no defence evidence was lead.

The trial Court after hearing the counsel for the parties and on appreciation of the evidence, convicted the appellant for the said charges and for the offence under Section 4 of the POCSO Act, he was ordered to undergo simple imprisonment for 7 years and to pay a fine of Rs. 10,000-00 and lesser sentence for the other offence. Aggrieved by the conviction and sentence, the present appeal is filed.

I have heard learned counsel for the appellant and also learned High Court Government Pleader.

The point that arises for my consideration is;

Whether the appellant has made out any grounds to interfere in his conviction and sentence for the offence punishable under Section 366 IPC and under Section 4 of the POCSO Act?

Learned counsel for the appellant would submit that the medical examination does not reveal the fact that the victim was less than 16 years of age. There is no material on record to show that she had the sexual intercourse with the appellant. He submits that Ex. P17 is the xerox copy of the SSLC marks card and it is wrongly admitted in the evidence. In the absence of original of SSLC marks card to prove the age of the victim, it is the contention that the material placed on record does not reveal any offence under Section 366 IPC or under Section 4 of the POCSO Act.

On the other hand, learned High Court Government Pleader supports the Judgment and Order and submits that the offences have been proved beyond all reasonable doubt.

The scrutiny of the material placed on record would reveal that the age of the victim is an important aspect to be decided before considering the question as to whether there was either an offence under Section 4 of the POCSO Act on under Section 366 IPC. So, to attract the provision of Section 3 of the POCSO Act, it is necessary for the prosecution to establish that there was an act of penetration by the appellant and further that the provisions of the POCSO Act is applicable to the victim.

The medical evidence has been placed on record by way of Ex. P11. Ex. P6, the report issued on radiology examination reveals that the age of the victim was 16 +/- 1. Ex. P12 medical report would reveal that the age estimation on the basis of radiological examination is in between 18 to 20 years. Anyhow, the prosecution has produced Ex. P17, xerox copy of the SSLC marks card of the victim which reveals the date of birth of the victim as 15.04.1998. As per this certificate, the age of the victim is less than 16 years as on the date of the incident. But, it is well-established principle of law that the xerox copy cannot be accepted as evidence.

That apart, the Investigating Officer-P.W. 18 states in his evidence that he collected the SSLC marks card from one Vijayananda. But, Ex. P17 is not the original document. That apart, it is attested by a person, whose name cannot be made out. The Circle Inspector himself put his signature on Ex. P17 and marked in the evidence of the Investigating officer. Such evidence is not admissible in law. It is necessary for the prosecution to produce the original or attested copy from the competent authority and in the absence of such original document, the xerox copy - Ex. P17 cannot be relied upon. When the medical evidence placed on record reveals the age of the victim was in between 16 to 20 years, it is necessary for the prosecution to fix up the date of her birth and for this purpose, though it relies upon Ex. P17, as the said document itself is not admissible in law, the conclusion of the trial Court as regards the age of the victim cannot be accepted. The medical evidence is the opinion evidence and there is variation as regards the age of the victim and the SSLC marks card is an important document which ought to have been produced and could have been admitted in the evidence. Therefore, I am of the opinion that it is the case where on the basis of the material placed on record, the age of the victim cannot be assessed.

The appellant is charged for the offence under the provisions of the POCSO Act. There are serious charges against the appellant and merely because Xerox copy of the document is admitted in the evidence, it is not proper to dispose of the case once for all. It appears proper to give an opportunity to the prosecution to produce the original of Ex. P17 and to consider the same on its production, permit to produce any other supporting evidence and then dispose of the case in accordance with law. In that view of the matter, it is a fit case where the conviction and sentence has to be set aside by remitting the matter to the trial Count with a direction to afford an opportunity to the prosecution to produce original of Ex. P17 i.e., SSLC marks card and record the evidence in this regard and dispose of the case in accordance with law.

It is submitted by learned counsel for the appellant that the appellant is in the custody since from the date of his arrest. Therefore, the appellant is at liberty to apply for bail before the trial Court and in case if such an application is moved, the trial Court shall dispose of the said application expeditiously and proceed to dispose of the case in accordance with law.

Consequently, the appeal is allowed. The conviction and sentence of the appellant for the offence under Section 366 IPC and under Section 4 of the POCSO Act are set aside. The matter is remitted back to the trial Count. To avoid delay, the panties are directed to appear before the trial Count on 01.06.2015.