POCSO conviction fails where the victim was major, while IPC rape conviction stands on credible evidence.

The appellant challenged the judgment dated 30.01.2024 of the Additional Sessions Judge-cum-Special Judge (POCSO), Barpeta, in Special (POCSO) Case No. 130/2023.

The case arose from an ejahar lodged by the victim’s father alleging that the appellant had maintained a sexual relationship with his daughter, resulting in her seven-month pregnancy.

The prosecution alleged that the sexual acts occurred when the victim was below 18 years of age.

The appellant was charged under Sections 376 IPC and 6 of the POCSO Act and was sentenced under Section 6 POCSO to 20 years’ rigorous imprisonment and fine.

The prosecution examined eight witnesses, including the victim, her relatives, villagers who allegedly witnessed an extra-judicial confession, the doctor, and the Investigating Officer.

The victim’s birth certificate recorded her date of birth as 15.10.2004; medical examination on 29.05.2023 found a pregnancy of 28 weeks and 3 days.

1. Whether the prosecution proved beyond reasonable doubt that the victim was below 18 years of age when the sexual acts resulting in her pregnancy occurred, thereby attracting Section 6 of the POCSO Act.

2. Whether the inconsistencies in the victim’s statements rendered her testimony unreliable or, notwithstanding those inconsistencies, the core allegation of non-consensual sexual intercourse remained proved.

3. Whether the alleged admission made by the appellant during the village discussion constituted a reliable extra-judicial confession, corroborated by other evidence.

4. Whether the prosecution established rape under Sections 375 and 376(1) IPC even if the POCSO charge failed.

The Court applied Section 375 IPC, under which sexual intercourse against a woman’s will, without her consent, or with consent obtained by fear constitutes rape, and Section 376(1) IPC, prescribing a minimum sentence of ten years’ rigorous imprisonment.

Section 6 of the POCSO Act applies to aggravated penetrative sexual assault against a child, while Section 29 permits a presumption against the accused only after the prosecution establishes the foundational facts.

The Court relied on Rai Sandeep v. State of NCT of Delhi, (2012) 8 SCC 21, for assessing whether the prosecutrix is a “sterling witness,” requiring consistency on the core facts from the earliest statement through trial.

It relied on Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403, holding that an extra-judicial confession is a weak form of evidence which must be voluntary, truthful, credible, free from material discrepancies, and preferably corroborated.

Section 6 of the Evidence Act was invoked regarding res gestae, requiring the statement to be contemporaneous with, or immediately subsequent to, the occurrence, as explained in Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130, and Atul Hazarika v. State of Assam, 2014 (1) GLR 314.

Section 428 CrPC was applied for setting off the period of detention.

The Court held that the victim’s date of birth established that she attained majority on 15.10.2022.

Since the medical examination dated 29.05.2023 showed a gestational age of 28 weeks and 3 days, and the victim’s accounts varied materially regarding the timing of the first incident—describing it as either seven or eight months earlier or approximately two years earlier—the Court found it unsafe to conclude that the relevant sexual act occurred while she was a child.

Accordingly, the POCSO conviction could not stand.

However, the Court considered the discrepancies insufficient to destroy the core allegation that the appellant had sexual intercourse with the victim.

Her consistent assertion that the appellant gagged her and threatened her with harm explained her failure to disclose the incidents earlier and established absence of free consent.

The alleged admission by the appellant before the village elders was treated as an extra-judicial confession and was found sufficiently supported by the testimony of the victim and witnesses PW-1, PW-3, PW-4 and PW-6.

The victim’s immediate disclosure, after pregnancy was detected, that the appellant was responsible was also treated as corroborative res gestae evidence.

On this basis, the Court concluded that rape under Section 376(1) IPC was proved, notwithstanding failure to establish the victim’s minority.

The conviction and sentence under Section 6 of the POCSO Act were set aside because the prosecution failed to prove that the victim was below 18 years of age when the relevant sexual act occurred.

The conviction under Section 376(1) IPC was maintained.

The appellant was sentenced to ten years’ imprisonment and a fine of Rs. 5,000, with six months’ further imprisonment in default of payment.

The period already undergone during trial and after conviction was directed to be set off under Section 428 CrPC.

The Trial Court Records were directed to be returned, and the Legal Services Authority was directed to pay remuneration to the Amicus Curiae.