Prosecution Must Prove Victim Was Below 16 Years For Rape Conviction In Cases Prior To 2013 Amendment: Delhi High Court

The Delhi High Court has ruled that the prosecution must prove that the minor rape victim was below the age of 16 years, for securing conviction of the accused in cases commencing prior to Criminal Law (Amendment) Act, 2013.

While acquitting a man convicted for allegedly raping an 11 year old girl in 2005, Justice Swarana Kanta Sharma said:

“It is important to remember that the alleged offence was committed in the year 2005, when the age of consent under Section 375 of IPC was 16 years, and not 18 years as amended later in 2013. Therefore, for conviction, the prosecution was required to prove that the prosecutrix was below 16 years of age.”

The 2013 Amendment Act raised the age of consent for sexual intercourse to 18 years, making sexual intercourse with a person below 18 years a criminal offence.

The man had moved the Court challenging his conviction for the offence of rape and the sentence of rigorous imprisonment of five years. In 2008, the sentence was suspended during the pendency of the appeal which was filed in 2007.

Allowing the appeal, Justice Sharma noted that the man and the minor had admitted that they had been living together as husband and wife after solemnizing marriage and had engaged in sexual relations.

The Court further said that neither the admission register of the minor's school nor the affidavit allegedly filed with the school on the basis of which she was entered in the school register were produced before the Trial Court.

It also said that when the prosecutrix was recovered by the police and produced for medical examination, her age was recorded as 14 years in the MLC, which was inconsistent with the prosecution's case that she was only 11 years and 7 months old at that time.

Noting that the I.O. had not made proper inquiries regarding the age of the prosecutrix, the Court said that the entire case regarding the age of the minor rested solely on the certificate issued by school's headmistress, which cannot be regarded as reliable proof of age.

The Court also observed that no ossification test was conducted to resolve the inconsistencies in the minor's age.

“Considering that the incident took place in 2005, when the statutory age of consent was 16 years, and in light of the absence of conclusive evidence to prove that the prosecutrix was below 16 years at that time, especially when the prosecutrix herself claims that she was above the said age, this Court finds that the prosecution has failed to prove the age of prosecutrix beyond reasonable doubt,” the Court said.

“Accordingly, this Court holds that the conviction of the appellant under Section 376 of IPC cannot be sustained as he deserves to be extended the benefit of doubt. The impugned judgment and order on sentence are therefore set aside, and the appellant is acquitted of all charges.”

Title: UDAI PAL v. STATE

Citation: 2025 LiveLaw (Del) 1379

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