The Bombay High Court recently quashed and set aside a judgment and order of a Special POCSO Judge convicting a man accused of raping a minor girl suffering from mental retardation. The court reasoned that the accused, who is 22 years old now, was a juvenile at the time of the incident.
Justice AM Badar was hearing an appeal filed by the accused against his conviction under Sections 376(2)(g), 506 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act.
According to the prosecution, the victim girl used to reside in the same building as the appellant-accused (number 1) and his roommate who was a juvenile in conflict with the law.
It was the prosecution’s case that the victim girl was first raped by the appellant-accused’s roommate, then by another man who lived in a nearby building. Thereafter, the appellant-accused blackmailed the victim girl and threatened to tell her parents about the incident. Then the appellant-accused raped her on March 15, 2013.
Appellant’s lawyer SR Phanse submitted that his client was born on April 25, 1995, which means that he was less than 18 years of age at the time of the crime. Thus, the high court ordered the Special POCSO Judge to conduct an inquiry contemplated under Section 7a of the POCSO Act regarding the accused’s age.
According to the report, the birth certificate of the accused indicated that he was born on April 25, 1996, which made him 16 years 10 months and 18 days old at the time of the incident.
Justice Badar referred to the judgment of the apex court in Hari Ram v. The State of Rajasthan wherein it was held that once it is established that the accused was less than 18 years old at the time of the crime, he is entitled to benefits under the Juvenile Justice Act.
The court said:
“Thus, as the appellant/accused is found to be a juvenile in conflict with law on the date of commission of the offence, he needs to be forwarded to the Juvenile Justice Board for passing appropriate orders, and the sentence, if any, passed by the learned trial court in the matter, shall be deemed to have no effect. The appellant/accused has successfully established his juvenility on the date of occurrence of the crime i.e. on 15th March 2013, and on that date, he was below 18 years of age. He has already undergone sentence for about 5 years. Therefore, the sentence imposed upon him in POCSO Special Case No.512 of 2013 by the trial court needs to be set aside and the record needs to be placed before the Juvenile Justice Board for passing appropriate orders under the Juvenile Justice (Care and Protection of Children) Act.”
Thus, the appeal was allowed.