The Gauhati High Court has applied Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, explaining that its age-determination procedure could also be used to determine a sexual-assault victim’s age under POCSO. The Court held that the victim’s apparent willingness to accompany the appellant could not constitute valid consent in the circumstances of this case.
Where the victim’s date of birth was proved through the school admission register and the certificate issued on that basis, the Court treated ossification testing as unnecessary under its Section 94 analysis. The victim’s apparent willingness to accompany the appellant did not constitute valid consent in the circumstances of the case.
Briefly, the appeal was filed against the appellant’s conviction for taking away and sexually assaulting his wife’s younger sister, a minor aged around 14. The appellant and the minor were apprehended together after a few days. The trial court convicted him under Section 366 IPC read with Section 6 of the POCSO Act, imposing five years’ rigorous imprisonment and a Rs. 3,000 fine under Section 366, and 20 years’ rigorous imprisonment and a Rs. 10,000 fine under Section 6, with default imprisonment of three months and six months respectively. The supplied summary does not specify whether the sentences run concurrently or consecutively.
Applying Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, a Single Judge Bench of Justice M. Zothankhuma accepted the school records produced by the headmaster, which recorded the minor’s date of birth as 10/01/2009. It noted that the admission-register entry predated the incident and treated the father’s evidence as corroborative, making ossification evidence unnecessary. The Court also treated the doctor’s finding of a ruptured hymen as corroborating the minor’s account of rape.
Although the evidence permitted an inference that the minor loved the appellant and accompanied him willingly, the Court held that a minor could not give valid consent. On the evidence in this case, it held that taking her, while below 16, from her home and her parents’ guardianship, culminating in sexual intercourse, constituted the offence under Section 366 IPC and aggravated penetrative sexual assault in terms of Section 5(l) of the POCSO Act, punishable under Section 6.
