The Delhi High Court recently upheld the conviction of an accused under the Protection of Children from Sexual Offenses Act (POCSO), setting aside the father’s testimony that his daughter was a 16-year old at the time of offense.

The court was hearing an appeal filed by Mohammed Afsar challenging his conviction under Section 376 of the Indian Penal Code read with Section 4 of the POCSO Act on January 15th, 2020.

It was held by Justice Mukta Gupta that the testimony of the father was merely based on his memory accompanied by a rough estimation. This testimony cannot be used to refute the documented evidence like the records of school first attended by her that evidently showed her to be a minor and a student of class VIII when the incident took place.

According to the allegations, In May 2013, Mohammed Afsar had abducted the girl while she was on her way to school, forcefully married her and then raped her. The girl’s father filed a missing person’s report at the local police station and at the time of filing he had stated that his daughter was 16 years old.

As soon as the police recovered the girl, a medical examination was done and she was discovered to be pregnant after which the provisions of rape under the Indian Penal Code and POCSO were added to the FIR.

Afsar’s counsel argued that according to the plaintiff’s own father, she was 16-year-old at the time of the incident and this the appellant is protected under the exception in Section 375 of the Indian Penal Code which states that a man cannot be punished for establishing or having sexual relations with his wife provided that she was not below 15 years of age.

It was further submitted by him that the girl’s father had got married in 1987 and that he had his first child two years after the marriage, with a two to two-and-half years gap between each child after that. Since the girl is the third child and she was born around 1993, she would have been 20 years old at the time of the incident.

The counsel further stated that even after taking into account the fact that one of the plaintiff’s siblings had died in the interim and he/she was older to her, she would be over 16 years of age in May 2013.

The Court, however, stated that under Rule 12(3) of JJ Rules, the Matriculation and equivalent certificate must be given first priority, and in the absence of that, the date of birth certificate from the school first attended.

In this case, the school records show that the girl was born on January 10th, 2001. Therefore, based on the date of birth recorded in the school first attended, the plaintiff was a child in accordance with Section 2(1) (d) of the POCSO Act as she was below 18 years of age.

The Court ruled that the father’s version should be disregarded because it was based on memory and even he admitted that he couldn’t tell the exact age difference between his daughters.

The Court also noted that, while the father claimed that the deceased child was his third, the plaintiff claimed that the deceased child was the family’s youngest son born in Delhi.

The Court also rejected the appellant’s claim that there were inconsistencies in the testimonies of several other witnesses regarding plaintiff’s recovery.

It concluded that the prosecution had proven “beyond a reasonable doubt” that the victim was a “child” at the time of the incident that was forcibly abducted and taken away from her parents and repeatedly subjected to the offense sexual intercourse.

As a result, the appeal was dismissed.


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