1. This Criminal Appeal is filed by the appellant aggrieved by the judgment in S.C.POCSO No.157 of 2019, dated 27.04.2021 passed by the Special Sessions Judge, First Fast Track Sessions Court for expeditious trial and disposal of cases of Rape and Protection of Children from Sexual Offences Act, 2012, Khammam and sentenced to undergo rigorous imprisonment for a period of 10 years for the offence punishable under Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short ‘the Act of 2012’).
2. The case of the prosecution is that PW.1/victim was studying in X class and used to stay in Kasturba Gandhi Girls Hostel. Every Sunday, the appellant used to go there and talk to her. He stated that he will marry her after completing her studies. In the year 2017, she was studying in Social Welfare Hostel studying Intermediate first year. The appellant used to visit the hostel on Sundays. On three occasions, both of them went to Boudha Stupham where the appellant hugged her and kissed her and promised to marry her. In the year 2018, while returning from college, P.W.1 was taken on a motor bike and was restrained in a room for four days. After four days, the appellant dropped her at Hostel. During Dussara holidays, when P.W.1 was in her house, appellant asked her to come to cotton fields where they had sexual intercourse. Again P.W.1 came to her house during General Elections, Holi festival, M.P Elections and during all these periods, the appellant had sexual intercourse with her in the cotton fields.
3. However, the appellant refused to marry P.W.1. Since the appellant promised to marry her, she did not disclose the relation to anyone. Thereafter, the parents of P.W.1 went to the house of the appellant and asked him to marry, but he refused. For having sexual intercourse over a period of time and refusing to marry, Ex.P1 complaint was filed.
4. After investigation, the police filed charge sheet for the offence punishable under Section 376(1)(f) of IPC and Section 6 of the Act of 2012.
5. On behalf of the prosecution, P.Ws.1 to 12 were examined and Exs.P1 to P12 marked. On behalf of the defence, D.Ws.1 to 3 were examined and Exs.D1 to D4 marked.
6. Learned counsel appearing for the appellant would submit that the prosecution has failed to prove the date of birth and that P.W.1 was minor. Failure to prove the age, the question of attracting Section 6 of the Act of 2012 does not arise. As seen from the complaint, it is evident that the sexual relation was consensual. He relied on the judgment of Hon’ble Supreme Court in the case of Alamelu v. State rep. by Inspector of Police LAWS(SC) 2011 1 102, wherein the Hon’ble Supreme Court held that merely marking transfer certificate would not suffice to prove the date of birth unless the person who made entry or gave the date of birth certificate is examined. He further relied on the following judgments; i)Mekala Shiva v. The State of Telangana Crl.A.No.167 of 2022; ii)Guda Mahender v. The State of Telangana Crl.A.No.219 of 2021; iii) Shambhu Kharwar v. State of U.P and another Crl.A.No.1231 of 2022; iv) Sonu@Subhash Kumar v. State of U.P and another Crl.A.No.233 of 2021; v) Somasundaram v. State LAWS (SC) 2020 6 3 and vi) Uday v. State of Karnataka LAWS (SC) 2003 2 16.
7. On the other hand, learned Additional Public Prosecutor would submit that the prosecution has filed Ex.P5, which is the conduct certificate. According to P.W.10, who is the Doctor, the age of the victim was between 16 to 17 years, according to the X-ray and test conducted by her. Though semen and spermatozoa were not found that in itself cannot entail acquittal.
8. The prosecution has placed reliance on Ex.P5 certificate and also the Medical Examination wherein the Doctor gave an opinion that she was 16 to 17 years when examined.
9. The Hon’ble Supreme Court held that error of plus or minus two years can be considered in ossification test. Considering the same, the victim would be around 18 or 19 years. Further, the prosecution did not file the birth certificate or birth registration certificate taken at the time of birth. However, the bonafide certificate is issued. The date of birth in the bonafide certificate would normally be on the basis of declaration given by the parents or the guardian before the school.
10. As seen from the evidence of the victim girl/P.W.1, she admitted that while she was staying in the school hostel and college hostel, the appellant was visiting her on regular basis. She was also moving with him. She admitted in chief examination that initially she stayed in the room of the appellant for a period of four days. However, there was no complaint. During i) Dasara festival holidays; ii) when there were general elections; iii) during Holiy holidays; iv) during Parliament elections, P.W.1 stated that she went to the cotton fields where they had sexual intercourse. Over a period of time, the appellant and the victim/P.W.1 participated in the sexual intercourse. At no point of time P.W.1 stated that she was forced to have sexual intercourse. Even the circumstances do not suggest that there was any kind of force used. P.W.1 admits that she was constantly meeting the appellant and narration given in the chief examination would suggest that she was consenting to having sexual intercourse with the appellant over a period of time.
11. Failure to marry at a subsequent date, it cannot be said that the physical relation in between them which was apparently consensual, amounts to rape. In the back ground of the prosecution not being able to prove the age of the victim/P.W.1, conclusively, the benefit of doubt has to be extended to the appellant. Even the Doctor admitted that there were no signs of force. During examination, the victim had not informed the Doctor that she was subjected to forcible sexual intercourse.
12. It appears from the facts of the present case that criminal complaint was filed since the appellant refused to marry her. It is not necessary to discuss whether the offence of cheating is made out since no charge was framed. The appellant succeeds for the aforementioned reasons.
13. In the result, the judgment in S.C.POCSO No.157 of 2019, dated 27.04.2021 is set aside and the appellant is acquitted. Since the appellant is on bail, his bail bonds shall stand cancelled.
14. Criminal Appeal is allowed.
