The Supreme Court on Tuesday held that school transfer certificate cannot be the basis to determine age of a person under the Juvenile Justice Act (JJ Act) [P Yuvaprakash vs State Rep by Inspector of Police].
A bench of Justices S Ravindra Bhat and Aravind Kumar held that as per Section 94 of the Juvenile Justice Act (JJ Act), wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the Protection of Children from Sexual Offences Act (POCSO Act), the following documents have to be relied upon:
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board;
(ii) in the absence of (i), the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test.
Hence, the bench ruled that the Madras High Court was wrong in relying on a school transfer certificate and rejecting a doctor’s opinion that the minor was 19 years old at the time of the incident.
The Court, therefore, set aside the conviction and sentence of a man (the instant appellant) booked for the sexual assault of a minor girl and for allegedly abetting their child marriage.
“The documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) … In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim … Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor,” the Supreme Court said.
The top court, therefore, acquitted the accused of all the charges and ordered his release from jail.
The complaint in the case was filed in 2015, after the family of the minor accused the appellant and his aides of kidnapping the girl and forcibly marrying her off after repeated sexual assault.
The girl told the Magistrate that she had run away on her own free will with her lover and the sexual acts were consensual. However, she retracted her statement during the trial.
The trial court convicted the appellant under the POCSO Act, Prohibition of Child Marriage Act as well as Section 366 of the Indian Penal Code (for kidnapping, abducting or inducing a woman to compel her into marriage).
The Madras High Court, in December 2016, had upheld the conviction under the POCSO Act as well the Prohibition of Child Marriage Act, but set aside the conviction of the present petitioner under Section 366 IPC.
It, therefore, had modified the sentence from rigorous life imprisonment to rigorous imprisonment for ten years.
The Supreme Court stated 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.
In the absence of documents as prescribed under the JJ Act, the prosecution had to prove through acceptable medical tests/examination that the victim’s age was below 18 years as per Section 94(2)(iii) of the JJ Act.
The age could not have been proved through a transfer certificate, the bench observed.
Further, the bench emphasised that the prosecution had failed to prove any forced sexual assault.
“The medical evidence (deposition of PW-11, Dr. Kavitha) indicated that the victim had a ruptured hymen; there was no external injury at her private parts, and no evidence to show that she had sexual assault … It is only when there is penetrative sexual assault, which implies sexual contact with or without consent of the minor victim, that the offences under the POCSO Act are committed,” the top court said.
The apex court took exception to the trial court discarding the statement of the girl before the Magistrate.
“The prosecution did not even cross examine this witness [Magistrate] … the court is of the opinion that M’s statement under Section 164 of the CrPC contained a truthful narration of the events. This, in other words, meant that there was no penetrative sexual assault on her. Therefore, the provisions of the POCSO Act will not be applicable in this case”, the bench held while allowing the appeal.
Advocate ER Sumathy appeared for the appellant. Additional Advocate General V Krishnamurthy represented the State government.
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