Mumbai: The Bombay High Court acquitted a man from charges of POCSO observing that the prosecution has failed to prove its case beyond reasonable doubt that the victim was a minor. Justice Anuja Prabhudessai, on May 2, acquitted the man observing, “This was relevant as the evidence on record otherwise indicates that the physical relationship between the appellant and the victim was consensual. In the absence of evidence to prove that the victim was below 18 years of age, the provisions of the POCSO Act (Protection of Children from Sexual Offences Act), cannot be invoked and consensual relationship would not constitute rape within the meaning of Section 375 of the IPC (Indian Penal Code).
” The HC was hearing an appeal filed by the man against his conviction by the special POCSO court at Raigad which, on December 18, 2019, sentenced him to 10 years in prison and imposed a fine of ₹20,000. Sexual intercourse on the pretext of marriage In March 2016, the FIR was registered by the victim, who was in class 10 at the time, alleging the man had sexual intercourse on the pretext of marriage. She stated that on March 25, 2016, she informed the man, who had gone to his village in UP, that she was pregnant and asked him to keep his promise of marriage.
However, when she tried calling him after two days, his phone was switched off and he did not return to Mumbai. She delivered a child at Sion hospital. The DNA test proved that the man was the biological father of the child.
The man, in his statement to the magistrate, said that he was in love with the victim and had planned to marry her. He claimed he had gone to his native place to inform his mother about his marriage. When she informed that she was pregnant, he said he would marry her after returning to the city.
However, he could not trace her after he returned. He was arrested on May 21, 2016. He asserts that he is ready to marry the victim and take care of the child.
No evidence to prove victim was below 18 years of age His advocate Jagdish Kumar argued that there is no cogent and conclusive evidence to prove that the victim was below 18 years of age. He submits that it was a consensual relationship between two adults, which would not attract penal provisions of rape or penetrative sexual assault. Additional public prosecutor NB Patil argued that the victim was a class 10 student and at the time of the incident she was about 14-15 years of age.
The court noted an entry of the date of birth, as recorded in the school register, is relevant and admissible in evidence under section 35 of the Evidence Act. “It is also well settled that the ossification test or other medical test though is a guiding factor for determining the age, it is not conclusive or incontrovertible and leaves a margin of error of two years on either side,” the HC said. (To receive our E-paper on WhatsApp daily, please click here.
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From: freepressjournal
URL: https://www.freepressjournal.in/mumbai/bombay-high-court-sets-accused-in-posco-case-free-as-prosecution-fails-to-prove-victim-was-a-minor
