The Supreme Court has that emphasised that failure to produce school, matriculation, municipal, or panchayat birth certificate, or to conduct ossification test, vitiates POCSO charge, but rape conviction under IPC can still stand on same evidence. The prosecution must prove the victim’s minority through the date of birth certificate from the school, the matriculation or equivalent certificate from the examination Board, or a birth certificate from a corporation, municipal authority, or panchayat; only in the absence of these can an ossification test or other medical age determination test be resorted to.
The Court clarified that a Baptismal Certificate issued by a church authority, even if corroborated by parental testimony, does not fall within the statutory categories prescribed for age determination of a POCSO victim and cannot sustain the presumption of minority. The Court also held that where the actus reus under Section 375 IPC and Section 3 of the POCSO Act is identical, and the accused has been put on notice of the penetrative sexual assault charge, the Court can convert the conviction to Section 376 IPC even without a specific charge having been framed.
An irregularity in framing of charge is not fatal unless it occasions a failure of justice; the determinative test is whether the accused was aware of the basic ingredients of the offence, whether the main facts were explained to him, and whether he had a fair chance to defend himself, added the Court, while pointing out that the Appellate Court can reverse, alter, or modify the finding and the nature and extent of the sentence, and pass any consequential or incidental order, including substituting a conviction under the IPC for one under the POCSO Act where minority is not proved.
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A Two-Judge Bench comprising Justice Prashant Kumar Mishra and Justice N.V. Anjaria noted that the prosecution had failed to produce any of the documents prescribed under Section 94 of the JJ Act for proving the age of the victim, namely, a date of birth certificate from the school, a matriculation or equivalent certificate from the examination Board, or a birth certificate issued by a corporation, municipal authority, or panchayat. The victim was also not subjected to any ossification test or other medical age determination test as mandated under Section 94(2)(iii) of the JJ Act. The only document on record was the Baptismal Certificate issued by the Khasi Jaintia Presbyterian Assembly, which, though corroborated by the mother’s deposition, did not fall within the categories specified under Section 94 of the JJ Act.
The Court rejected the respondent’s reliance on Luis Caetano Viegas v. Estrelina Mariana R.M.A. Da’Costa [(2002) 9 SCC 144], observing that in that case a birth certificate had also been duly proved, and further, the statutory mechanism under Section 94 of the JJ Act applied specifically to POCSO victims. On the question of the offence itself, the Court observed that the factum of penetrative sexual assault stood clearly established through medical evidence, the victim’s testimony under Section 164 CrPC, identification in the Test Identification Parade, the appellant’s injuries consistent with the victim’s version, and FSL evidence showing the appellant’s blood group on the victim’s clothing and seminal stains on the accused’s underwear.
Briefly, on 27 November 2019, the mother of a 13-year-old girl lodged an FIR alleging that her daughter had been raped by Pynchemalangaki Bareh on 26 November 2019 at Mokoidaling, Sutnga, in East Jaintia Hills, Meghalaya. The case was registered at Khliehriat Women Police Station under Sections 3 and 4 of the POCSO Act, 2012, and investigated by WPSI S. Kharsati. After investigation, a charge-sheet was filed before the Chief Judicial Magistrate, and the matter was committed to the Special Judge (POCSO).
The prosecution examined 14 witnesses, exhibited 11 material exhibits and one paper mark (Baptismal Certificate), and recorded the victim’s statement under Section 164 of the CrPC. The Trial Court convicted the appellant under Section 506 IPC and Section 3(a) of the POCSO Act punishable under Section 4 of the POCSO Act, sentencing him to 20 years’ rigorous imprisonment with a fine of Rs. 5,000/-. The High Court of Meghalaya dismissed the criminal appeal, upholding the conviction and sentence. The appellant then approached the Supreme Court assailing the conviction, primarily contending that the age of the victim had not been proved in accordance with Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), and that the Baptismal Certificate was inadmissible.
