Must the prosecutrix be held to be a major, with valid consent, where her age is not proved beyond reasonable doubt?

(Judgment of the Court was made by N.SATHISH KUMAR, J.) Challenging the judgment of conviction and sentence, dated 09.06.2017 made in Special S.C.No.6 of 2017 by the Additional Sessions, Magalir Neethi Mandram (Fast Track Mahila Court), Erode, the accused has filed this criminal appeal. By the abovesaid judgment, the accused was convicted and sentenced to undergo imprisonment as stated below: Conviction Sentence Section 366 of IPC to undergo 10 years Rigorous imprisonment with fine of Rs.2000/-, in default to undergo 6 months simple imprisonment Section 9 of the Prevention of Child Marriage Act, 2006 To undergo 2 years Rigorous imprisonment with fine of Rs.1000/- in default to undergo 3 months simple imprisonment. Section 6 of the Protection of Children from Sexual Offences Act, 2012 To undergo life imprisonment with a fine of Rs.2000/- in default to undergo 6 months simple imprisonment

The brief facts of the prosecution case is as follows: 2.1.P.W.1 is the father and P.W.2 is the mother of the victim, P.W.3. According to P.W.1, P.W.3 was 17 years of age and was studying first year degree course in Bharathidasan University. On 23.06.2016, P.W.3 went to college at 08.30 a.m. and she did not return home and hence, P.W.1 lodged Ex.P.1 complaint to Kavundapadi police station. Thereafter, he came to know that the accused took his daughter and married her. While P.W.3 was working in a Banian company for some time, she had developed friendship with the accused. On 23.06.2016, while she was studying in the college, the accused called her at 09.30 a.m. over phone to come to Gobichettipalayam bus stand and he asked P.W.3 to come to Karadikoil. Later, he took her in a bike and under the pretext of taking her to a temple, he took her to Nambiyur and they had stayed in the accused friend’s house. The accused also promised her that he will marry her. The same day night, he had physical relationship with the victim. Later, on 24.06.2016, he took her to a temple and tied sacred yellow thread and married her. Thereafter, they both stayed together in accused’s friend’s home till 30.06.2016 and they both were residing as husband and wife. Later on 01.07.2016, the accused took her to Tirupati and stayed in a lodge. Thereafter, they went to Palani on 03.07.2016. On coming to know about an information regarding police complaint, both the accused and P.W.3 went to the police station and surrendered. 2.2.P.W.5 is the brother of P.W.3 and son of P.Ws.1 and 2. According to him, while P.W.3 was working in the Banian company, she developed friendship with the accused. Later on 23.06.2016, she left the house to go to the college and thereafter, she did not come. 2.3.P.W.9, a resident of Kattupalayam near Nambiyur, who has stated that on 27.06.2016 at about 08.15 p.m., both the accused and P.W.3 came to his house and told him that they married and they stayed in his house for one day. Later, they left to Tirupati. P.W.10 is the Headmaster of the middle school in A.Perumapalayam. He has issued Ex.P.7 and Ex.P.8 relating to P.W.3. As per Ex.P.8, her date of birth is 01.06.1999. 2.4.P.W.11, the medical officer examined P.W.3 radio-logically and filed Ex.P.11 (series) X-Ray. As per Ex.P11, P.W.11 came to an opinion that P.W.3 has completed 17 years and she is aged between 17 and 18 years and issued Ex.P.10 Radiologist report in this regard. P.W.12, medical officer examined the accused and issued Exs.P.13 and P.14, opining that there is nothing to suggest that the accused is impotent. P.W.13, scientific officer issued Ex.P.15 report and as per the report, they did not detect any blood in the material objects. P.W.14, the medical officer attached to Gopichettipalayam government hospital, examined the victim and found hymen was ruptured and had issued Exs.P.16 and P.17, opining that P.W.3 was subjected to sexual intercourse. 2.5.P.W.15, Sub Registrar, produced Ex.P.19, birth certificate of the girl child born to Marappan and Malliga, indicating that the child was born on 22.12.1999. P.W.16 is the Principal of Bharathidasan Arts and Science College and he has issued a copy of the certificate Exs.P.21 and P.22, wherein her date of birth was mentioned as 01.06.1999. P.W.18, an expert from the forensic science department has deposed that she has not found any sperm in the material objects examined by them. P.W.21 received the Ex.P.1 complaint and registered the FIR Ex.P.27 and forwarded the same to the Court and a copy to the Inspector. On 04.07.2016, both P.W.3 and the accused sought police protection from the Superintendent of Police. Later, he recorded the statement of the witnesses. Thereafter, P.W.21 altered the crime and the alteration report is Ex.P.28. 2.6.P.W.22, the Headmaster of Kavundapadi Government Girls Higher secondary school has produced Ex.P.30 to show that P.W.3’s date of birth was 01.06.1999. P.W.23, the Investigating Officer recorded the statement of witnesses and after conducting the investigation, she filed the final report against the accused.

After the filing of the final report by the investigating officer, on appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Sessions in Special S.C.No.6 of 2017 and was made over to the Additional Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Erode for trial.

The accused was charged under section 366 IPC, Section 9 of the Prohibition of Child Marriage Act, 2006 and Section 6 of the Protection of Child from Sexual Offences Act, 2012. To prove the case, the prosecution has examined 23 witnesses, namely P.W.1 to P.W.23 and marked 35 documents, namely Ex.P.1 to Ex.P.35 and produced one material object, namely M.O.1, bike.

On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. as to the incriminating circumstances found against him in the evidence adduced by the prosecution witnesses. He denied all the incriminating circumstances as false. On the side of the defence, no evidence was recorded and no documents were marked.

The trial Court, after appreciating the oral and documentary evidence and materials on record, by judgment dated 09.06.2017, found the accused guilty of the offences and he was convicted and sentenced, as stated above. Challenging the same, the present criminal appeal has been preferred.

The main contention of the learned counsel for the appellant is that P.W.3 and the accused had love affair and in fact, P.W.3 voluntarily accompanied the accused. There was no element of kidnapping or abduction proved as against the accused. Therefore, the charge under section 366 IPC has not been made out. The trial court has mechanically convicted the accused. It is further submitted that though the school certificate indicates that she is minor girl and completed 17 years, the evidence of P.W.2, who is the mother of P.W.3, clearly shows that the age mentioned in the school certificate is not the correct age and they have given the wrong age. This fact creates a serious doubt about he age of the P.W.3. It is contended that P.W.3 was working in a banian company and thereafter she joined the college. All these facts clearly indicate that she has completed 18 years of age and she has already become major. In any event, when the age has not been properly proved and there is doubt about the age, two years error of margin has to be given to conclude that she is major and hence, the learned counsel would submit that the charge under section 366 IPC, section 9 of the Prevention of Child Marriage Act, 2006 and section 6 of POCSO have not been made out.

The learned Government Advocate (Criminal side) submitted that the school records clearly proved that the victim was aged below 18 years and though the school certificate and her birth certificate differ with regard to the date of birth, the fact remains is that she is aged below 18 years. Therefore, the consent is immaterial in law even assuming that there was love affair and P.W.3 had voluntarily accompanied the accused and stayed with him. Hence, the trial court is right in convicting the accused and sentencing him imprisonment as stated above.

We have considered the submissions made by both sides and perused the entire materials available on record.

According to the prosecution, P.W.3 is aged below 18 years. While she was in her first year college, on 23.06.2016, the accused enticed her and had taken her to various places and tied yellow thread (thali) and had physical relationship with P.W.3, thereby he committed the offence. The law was set in motion on the basis of Ex.P.1 complaint lodged by P.W.1, the father of P.W.3. It is the evidence of P.W.1 that P.W.3 had left the house on 23.06.2016 and she did not return home and that the accused had taken her. The evidence of P.W.3 is to the effect that she developed relationship with the accused and that the accused has spoken to her as if he is loving her more. On 23.06.2016, as usual, while she left the home to the college at 08.30 a.m., the accused called her over cell phone and asked her to come to the bus stand. Accordingly, she went to the Gopichettipalayam bus stand, from where the accused, under the pretext of taking her to a temple, took her to Nambiyur in the bike. Thereafter, instead of going to the temple, he took her to his friend’s house at Nambiyur, where they stayed for a day and on the same day night, the accused had sexual intercourse with her. On the next day, he took her to the temple and tied the yellow thread around her neck. They stayed in the same village in a friend’s house till 30.06.2016 and he had sexual intercourse with her. Later, they went to Tirupati on 01.07.2016 and stayed in a lodge and later they went to Palani on 03.07.2016. Thereafter, they also gave a complaint before the Namakkal Superintendent of Police Ex.P.2 seeking police protection. P.W.3 has stated that though the complaint Ex.P.2 was written by her, it was at the instance of the accused she wrote Ex.P.2.

The entire evidence of P.W.3 would clearly indicate that she had love affair and in fact, there was a consensual act which resulted in physical relationship with the accused. In fact, she voluntarily accompanied him. Though it was stated that it was only the accused who called her over phone to come to the bus stand, absolutely there is no whisper whatsoever with regard to the phone number of the cell phone. The mobile phone has not been recovered and the call details were not produced to show that P.W.3 was enticed by the accused and compelled to come to bus stand. The prosecution has projected the case as if P.W.3 was a minor and if the age of P.W.3 was proved beyond reasonable doubt, the consent of the P.W.3 becomes insignificant as far as the offence is concerned. Any consent of the minor below aged 18 years is not a valid consent in the eye of law. In such a situation, even though P.W.3 had voluntarily gone with the accused and had physical relationship by consent, still it will attract the offence against the accused, since the consent is not valid in the eye of law.

The evidence of the medical officer clearly shows that her hymen was ruptured, the examination also indicates that P.W.3 was subjected to sexual intercourse. This fact has been established by the prosecution. A perusal of the entire evidence of P.W.3 indicates that it is a clear case of consent. Now, it is in this backdrop, whether P.W.3 is minor at the relevant point of time has to be seen. As far as the determination of the age, normally the school records will be given first preference and a presumption is attached that the certificate from the school regarding the date of birth is the original date of birth. Such presumption is also rebuttable like any other statutory presumption. When there is doubt with regard to the genuineness of the entries made in the records with regard to the age, the presumption attached to the school certificate and the birth certificate with regard to the age cannot be applied automatically. Though the prosecution has produced many documents to prove the age of the P.W.3 to show that she is below 18 years, the Ex.P.21, Higher secondary course certificate with regard to State Board of School Examinations shows that she has completed Plus 2 in March 2016. This school certificate also indicates that her date of birth was 01.06.1999. Similarly, in the Transfer certificate Ex.P.22, the date of birth of P.W.3 was mentioned as 01.06.1999.

It is further relevant to note that P.W.3 in her evidence has denied the age mentioned in the school records. According to her, she was born only on 22.12.1999 and Ex.P.19 birth certificate was also filed to show that one female child was born to Marappan and Malliga, but a perusal of the Ex.P.19 would show that the name of the female child was not found, though the name of the father is shown as Marappan and the address is shown as Nedungaduthottam, Peruamapalayam, Ayyampalayam, whereas P.W.1 in his evidence does not state that Perumapalayam is situated within Ayyampalayam. He never stated that he was the resident of Nedungaduthottam. Therefore, when this fact was not established, it cannot be concluded that Ex.P.19 relates only to the birth of P.W.3. This court has to come to such a conclusion not only for such a small inconsistency as pointed out above, but also in view of the other factors. The evidence of P.Ws.1 and 2 themselves create serious doubt about the age of P.W.3 as to whether it is correctly reflected in the school certificate or in her birth certificate. P.W.1 in his evidence would submit that her daughter was born in the year 1998, though P.W.2 mother denied the same and she has admitted that in the school certificate, the correct age of her daughter P.W.3 was not reflected. In her evidence, P.W.2 has admitted that at the time of admission of P.W.3 in the school, the Headmaster himself has written some date in the school records. Therefore, the school certificate relied on by the prosecution does not reflect the correct age even as per her mother. Therefore, the presumption attached to this document cannot be applied automatically.

Similarly, though the prosecution has filed the birth certificate Ex.P.19 to show as if P.W.3 was born originally on 22.12.1999, as already stated, the name of the child was not mentioned in the birth certificate and the names of one Marappan and Malliga were shown as parents of the child and that the address mentioned in the birth certificate was also not tallied with the address of P.W.1. Therefore, merely because parents name was similar, it cannot be concluded that the Ex.P.19 birth certificate relates only to P.W.3. It is common in the village that there are many persons in similar name. Therefore, unless and until the birth certificate relied on by the prosecution is proved to be genuine and relating only to P.W.3, the age as mentioned by the prosecution to conclude that she was minor cannot be a certain one. It is further to be noted that, P.W.11, the medical officer, who has performed Ossification test, has found that P.W.3 has completed 17 years. It is well settled that as far as the ossification test is concerned, there is always two years error of margin on either side. Therefore, that cannot also be certain. At any event, when the evidence of parents itself indicate that the correct date of birth was not reflected in the school certificate and that the other certificates relied on by the prosecution also was not established, considering the fact that P.W.3 has also completed Plus 2, it is to be noted that she should have completed 17 years and further evidence also would indicate that even prior to that, she had also worked in a Banian company. Further, the brother of the victim, namely P.W.5 also has stated that there was love affair between P.W.3 and the accused.

In this regard, it is relevant to refer to a decision of Hon’ble Supreme Court in Rajak Mohammad v. State of H.P., (2018) 9 SCC 248 and in paragraph no.9, the Hon’ble Supreme Court has held as follows: ‘9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused.‘

The Hon’ble Supreme Court in Umesh Yadav Vs. State of Bihar reported in 2025 SCC OnLine SC 3048 has held as follows: ‘5. The issue as to how the age, as determined in ossification test, is to be considered has been gone into by this Court in Jaya Mala v. Home Secretary, Government of Jammu & Kashmir4, in which it has been observed that when school records or reliable certificates are unavailable or suspected to be tampered with, courts may rely on medical determination with a margin of error of 2 years on the lower or higher side applied to it. ...‘

Therefore, when the age itself has not been established and there is doubt about her minor status and further when P.W.3 has given Ex.P.2 seeking protection wherein she has indicated that she was in love affair with the accused for more than three years and she has voluntarily gone with the accused and has taken a conscious decision and lived as husband and wife, these facts clearly show that every act of P.W.3 was the result of her voluntary and consensual act. Further, when the prosecution has failed to prove that she was minor, it has to be held that she is only major. In such view of the matter, when she is a major and she accompanied the accused voluntarily and with her consent, there was physical relationship, the charges framed as against the accused have to fail. In this regard, it is useful to refer to a decision of the Hon’ble Supreme Court in S.Varadarajan Vs. State of Madras reported in 1964 SCC OnLine SC 36 and paragraphs 14 and 15 are relevant which reads as follows: ‘14. The last case relied upon by the High Court is Ramaswami Udayar v. Raju Udayar which is also a case under Section 498 IPC. In that case the High Court has followed the two earlier decisions of that court to which we have made reference but in the course of the judgment the learned Judge has observed that it is not open to a minor in law to abandon her guardian, and that, therefore, when the minor leaves the guardian of her own accord and when she comes into the custody of the accused person, it is not necessary that the latter should be shown to have committed an overt act before he could be convicted under Section 498. The learned Judge has further observed:

In the light of the above, this criminal appeal is allowed and the judgment of the trial Court dated 09.06.2017 made in Special S.C.No.6 of 2017 is set aside and the accused is acquitted of all the charges levelled against him. Fine amount, if any, paid by the appellant, shall be refunded to him. Bail bond executed by the appellant shall stand discharged. (N.S.K., J.) (K.R.S., J.) 25.08.2026