Himachal Pradesh HC Upholds 10-Year Rape Sentence, But Sets Aside POCSO And Kidnapping Convictions For Lack Of Age Proof

The prosecution alleged that on 5 February 2018 the accused took the prosecutrix, then said to be under 18, from Mandi to a hotel and forcibly had sexual intercourse with her.

Her mother reported her missing; the prosecutrix returned the following morning and disclosed the incident.

The prosecution relied on her testimony, her Section 164 CrPC statement, family witnesses, medical evidence and hotel records.

The Special Court convicted the accused under Sections 363 and 376(2) IPC and Section 4 of the POCSO Act, imposing, among other terms, ten years’ rigorous imprisonment under Section 376(2) IPC.

On appeal, the accused challenged, among other matters, proof of the prosecutrix’s age and the reliability of the evidence.

Under Section 2(d) of the POCSO Act, a child is a person below 18 years; the Act therefore applies only if the victim’s minority is proved.

Kidnapping from lawful guardianship under Sections 361 and 363 IPC likewise requires proof that the girl was under 18, was in the keeping of a lawful guardian, and was taken or induced to leave without that guardian’s consent.

In assessing age, the Court considered Jarnail Singh v. State of Haryana, Rishipal Singh v. State of U.P., P. Yuvaprakash v. State and the cited Himachal Pradesh decisions.

A prosecutrix’s credible testimony may, without corroboration, sustain a conviction; corroborative assurance may be sought where the court is not prepared to rely on it implicitly.

Absence of physical injury does not by itself negate sexual assault, and a victim’s prior sexual experience does not amount to consent on the occasion in question.

Section 114A of the Evidence Act provides for a presumption of absence of consent in specified rape prosecutions where intercourse is proved and the woman states in evidence that she did not consent.

The Court held that Exhibit PW4/B, the birth certificate recording the prosecutrix’s date of birth as 5 June 2000, could not establish her age in accordance with the applicable legal requirements.

It therefore found no legally sufficient proof that she was under 18, defeating the age-dependent elements of both kidnapping from lawful guardianship and the POCSO offence.

On the sexual-assault charge, however, the Court found the prosecutrix’s account consistent with the evidence of her mother, father and cousin, and supported by her Section 164 CrPC statement and the medical evidence.

It considered the absence of injuries insufficient to discredit her account and treated her alleged prior sexual experience as irrelevant to consent on the occasion.

Applying Section 114A, the Court accepted her evidence that the intercourse was without consent and found forcible sexual intercourse proved.

It set aside the convictions under Section 363 IPC and Section 4 of the POCSO Act because the prosecutrix’s minority had not been proved, but upheld the conviction under Section 376(2) IPC.

The judgment records the original sentence of ten years’ rigorous imprisonment and a fine of ₹10,000 under Section 376(2) IPC.