Gujarat HC Acquits Eight In Alleged Sexual Exploitation Of A Minor, Citing Unproved Age And Insufficient Evidence

The prosecution alleged that the victim’s mother and other accused arranged for the victim to be sexually exploited by several persons, and that the victim was about 15 years old.

The accused were charged under Sections 376(d), 504 and 506(2) of the IPC; Sections 4, 5(g)(i), 6 and 17 of the POCSO Act; and Sections 4, 5 and 6 of the Immoral Traffic (Prevention) Act.

The Special (POCSO) Judge, Jamnagar, convicted the appellants on 17 July 2019.

In their appeals, the appellants challenged, among other matters, the victim’s credibility, the use of her complaint and Section 164 CrPC statement, proof of age, and the sufficiency of corroborating evidence.

At trial, the victim denied the allegations and was declared hostile; other material witnesses also did not support the prosecution.

Under Section 34 of the POCSO Act and Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, age is determined by considering, in order, the prescribed school or examination-board record, a birth certificate issued by a corporation, municipality or panchayat, and—only in the absence of those records—medical age determination.

A statement recorded under Section 164 CrPC is not substantive evidence and may be used to corroborate or contradict its maker; it requires corroboration.

The evidence of a hostile witness is not automatically erased and may be relied upon to the extent it is credible, as recognised in Bhagwan Singh v. State of Haryana, Khujji v. State of Madhya Pradesh and Devraj v. State of Chhattisgarh.

The Court also considered the POCSO Act’s presumption under Section 29 and the relevant provisions of the Immoral Traffic (Prevention) Act, including its requirements concerning a Special Police Officer or trafficking police officer and the offences of living on prostitution earnings, procuring a person for prostitution, and detaining a person for sexual intercourse.

The prosecution must prove guilt, including the individual accused’s role and the essential elements of each offence, beyond reasonable doubt.

The Court found that the victim repudiated both her complaint and her Section 164 CrPC statement at trial, while the latter could not independently prove the allegations and was inconsistent with the complaint on material details.

The birth certificate produced at trial was not proved through the issuing authority, the prosecution did not obtain the victim’s school record despite evidence that she had attended school, and the required age-determination process was therefore not followed.

The hotel records were not proved through their maker; the panch witnesses and other witnesses did not support the prosecution; and the medical evidence established no particular accused’s identity or participation.

The Court also found that the investigation did not establish the alleged prostitution-related activity or the individual roles of the accused, and that the prosecution had not sufficiently corroborated the victim’s earlier accounts.

Taken cumulatively, the evidence did not prove the charges beyond reasonable doubt.

It allowed the appeals, set aside the convictions and sentences imposed on 17 July 2019, and acquitted the accused; any bail bonds were discharged.