P. YUVAPRAKASHversusSTATE REP. BY INSPECTOR OF POLICE

478               [2023] 10
               SUPREME      S.C.R.REPORTS
                         COURT     478 : 2023 INSC 676
                                                   [2023] 10 S.C.R.


A                            P. YUVAPRAKASH
                                       v.
                  STATE REP. BY INSPECTOR OF POLICE
                     (Criminal Appeal No(s). 1898 of 2023)
B                                JULY 18, 2023
           [S. RAVINDRA BHAT AND ARAVIND KUMAR, JJ.]
             Protection of Children from Sexual Offences Act, 2012 –
      ss.3,4,5,6,7, 34 – Juvenile Justice (Care and protection of Children)
      Act, 2015 – s.94 – Prohibition of Child Marriage Act, 2006 – s.10
C
      – Penal Code, 1860 – s.366 – Acquittal under – The prosecution
      alleged that the appellant-accused and others kidnapped the victim
      ‘M’ (allegedly 17-year-old girl) – Complaint lodged u/s. 366A of
      IPC – Appellant solemnized marriage with her and engaged in sexual
      intercourse – M was traced by police – In her statement recorded,
D     ‘M’ stated that she had known accused and both loved each other
      and had eloped voluntarily – The trial Court held appellant and
      others guilty and he was sentenced inter-alia u/s. 6 of the POCSO
      Act to undergo rigorous imprisonment for life – High Court confirmed
      appellant’s conviction under the POCSO Act but his sentence was
      reduced to 10 years of rigorous imprisonment; he was also convicted
E
      u/s 10 Prohibition of Child Marriage Act – Appellant was acquitted
      from the charge u/s. 366 of the IPC – On appeal, held: The
      documents produced, i.e., a transfer certificate and extracts of the
      admission register, are not as per mandate of s. 94(2)(i) JJ Act and
      nor they are in accord with s.94(2)(ii)JJ Act – Thus, the only piece
F     of evidence, accorded with s. 94 of the JJ Act was the medical
      ossification test and the PW-9 (examining doctor) opined that victim
      was between 18-20 years and in cross-examination PW-9 said that
      the age might be 19 years – The result of the ossification or bone
      test was the most authentic evidence, corroborated by PW-9 –
      Considering the statement of victim u/s. 164 CrPC, the prosecution
G
      was not able to establish that there was any penetrative sexual
      assault as a result of coercion or compulsion on the part of the
      appellant – Charges against accused u/s.6 of the POCSO Act as
      well as s.10 of the Prohibition of Child Marriage Act cannot be
      sustained – Judgment of High Court set aside and appellant
H     acquitted.
                                        478
P. YUVAPRAKASH v. STATE REP. BY INSPECTOR OF POLICE                   479


      Allowing the appeal, the Court                                  A
       HELD:1. It is clear that none of the documents produced
during the trial answered the description of “the date of birth
certificate from the school” or “the matriculation or equivalent
certificate” from the concerned examination board or certificate
by a corporation, municipal authority or a Panchayat. In these        B
circumstances, it was incumbent for the prosecution to prove
through acceptable medical tests/examination that the victim’s
age was below 18 years as per Section 94(2)(iii) of the JJ Act.
PW-9, Chief Civil Doctor and Radiologist at the General Hospital
at Vellore, produced the X-ray reports and deposed that in terms
of the examination of M, a certificate was issued stating “that the   C
age of the said girl would be more than 18 years and less than 20
years”. In the cross-examination, she admitted that M’s age could
be taken as 19 years. However, the High Court rejected this
evidence, saying that “when the precise date of birth is available
from out of the school records, the approximate age estimated by      D
the medical expert cannot be the determining factor”. This finding
is, in this court’s considered view, incorrect and erroneous. As
held earlier, the documents produced, i.e., a transfer certificate
and extracts of the admission register, are not what Section 94
(2) (i) mandates; nor are they in accord with Section 94 (2) (ii)
because DW-1 clearly deposed that there were no records relating      E
to the birth of the victim, M. In these circumstances, the only
piece of evidence, accorded with Section 94 of the JJ Act was the
medical ossification test, based on several X-Rays of the victim,
and on the basis of which PW-9 made her statement. She explained
the details regarding examination of the victim’s bones, stage of     F
their development and opined that she was between 18-20 years;
in cross-examination she said that the age might be 19 years.
Given all these circumstances, this court is of the opinion that
the result of the ossification or bone test was the most authentic
evidence, corroborated by the examining doctor, PW-9. [Para
19][488-F-H; 489-A-D]                                                 G

      2. In her statement under Section 164 of the Cr. PC, the
victim M had deposed that she was in love with the appellant,
had consumed poison, and had even been hospitalized because
she was adamant to live with the appellant. No doubt, she resiled
                                                                      H
480            SUPREME COURT REPORTS                     [2023] 10 S.C.R.


A     from her statement. Yet, the medical evidence (deposition of PW-
      11-doctor) indicated that the victim had a ruptured hymen; there
      was no external injury at her private parts, and that according to
      her “48 hours before medical examination there was no evidence
      to show that she had sexual assault is the opinion given by me.”
      This witness also produced her Notes of examination (Ex. P-11).
B
      In view of these facts, this court is of the opinion that the
      prosecution was not able to establish that there was any
      penetrative sexual assault as a result of coercion or compulsion
      on the part of the appellant. Even the High Court recognized
      this, albeit while reducing the sentence (since, in its opinion, M
C     was a minor at the time), observing that “P.W.3 had gone to the
      extent of taking poison to commit suicide out of love failure, under
      enormous pressure, he had accompanied P.W.3, married her and
      had sexual intercourse with her, bothbefore the marriage as well
      was after the marriage.” From these facts, and the definitions
      under POCSO Act, especially the definitions of “sexual assault”,
D
      Sections 5 and 6, read with Sections 350 and 351 IPC, it can be
      seen that it is only when there is penetrative sexual assault, which
      implies sexual contact with or without consent of the minor victim,
      that the offences under the POCSO Act are committed.[Para
      21][491-A-F]
E           Rishipal Singh Solanki vs. State of Uttar Pradesh &
            Ors. [2021] 12 SCR 502; Sanjeev Kumar Gupta vs.
            The State of Uttar Pradesh & Ors [2019] 9 SCR 735 –
            relied on.
            Abuzar Hossain @ Gulam Hossain v State of West
F           Bengal [2012] 9 SCR 224 – referred to.
                            Case Law Reference
      [2021] 12 SCR 502              relied on               Para 15
      [2019] 9 SCR 735               relied on               Para 16
G
      [2012] 9 SCR 224               referred to             Para 17
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No.1898 of 2023.
            From the Judgment and Order dated 14.12.2016 of the High Court
H     of Judicature at Madras in CRA No.400 of 2016.
P. YUVAPRAKASH v. STATE REP. BY INSPECTOR OF POLICE                         481


      Ms. E. R. Sumathy, S. Anand, Shankar Ganesh R., Advs. for the         A
Appellant.
     V. Krishnamurthy, AAG, Dr. Joseph Aristotle S., Ms. Richa
Vishwakarma, Ms. Vaidehi Rastogi, Advs. for the Respondent.
          The Judgment of the Court was delivered by
                                                                            B
          S. RAVINDRA BHAT, J.
       1. The sole appellant is aggrieved by the conviction affirmed and
the sentence imposed by the Madras High Court, rejecting his plea1. He
is acquitted of committing offense under Section 366 of the Indian Penal
Code (hereafter “IPC”), but convicted under Section 6 of the Protection     C
of Children from Sexual Offences Act, 2012 (hereafter “POCSO Act”).
       2. The case of the prosecution was that one T. Abdul Hameed
complained to the police that his younger daughter (hereafter “M” or
“the victim”), aged 17 years (running 18 years), had stomach-ache when
he went out on work on 13.01.2015. His elder daughter Vaheedha and          D
his younger sister Ameena had taken M to the hospital.While they were
returning home, near Rita School, Shastri Nagar, at about 02.30 hours,
one Yuvaprakash and two others reached the spot, kidnapped M, and
escaped from there by two-wheeler. This incident was reported to Abdul
Hameed by his elder daughter over the phone.He and others searchedfor
M in the nearby areas, but it in vain.Abdul Hameed lodged a complaint2      E
under Section 366A of the IPC. It was further alleged that on 14.01.2015,
the appellant and A-3, A-4, A-6 to A-9 took M to a templeat Kodumudi
town, where the appellant tied a thali around M’s neck to solemnize
their marriage. After themarriage, again the appellant and A-3, A-4, A6
to A9 took M to the second accused’s house, where they made her to          F
stay with the appellant. It was alleged that while they were there, the
appellant had repeated sexual intercourse with M.
      3. It was also alleged that on 15.01.2015, the accused took M in
an Omni van to Madurai, where the appellant stayed with her in his
uncle’s house between 15:01.2015 and 25.01.2015, at Seelanayakanpatti
                                                                            G
and that during this time too, the appellant repeatedly had sexual
intercourse with the victim.Meanwhile, the police investigated the
complaint, which was registered as a missing person report. On

1
    By common final order dated 14.12.2016 in Cr. A. No. 400/2016.
2
    registered in Crime No. 22 of 2015.                                     H
482             SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A     25.01.2015, the appellant and the other accused became aware that a
      complaint had been lodged; as a result, they abandoned M and left
      Madurai. She then returned to her father’s house at Erode, when he
      took her to the police station and reported what had occurred to the
      investigating officer (IO), viz. PW-16. PW-16 recorded the victim’s
      statement under Section 161 of the Criminal Procedure Code (hereafter
B
      “Cr. PC”). M’s statement was also recorded under Section 164 of the
      Cr. PC. In this, she stated that she had known the accused, and both
      loved each other, for about a year; this was known to her father and
      grandmother, who objected to their relationship. This led to her consuming
      rat poison to commit suicide; however, she was hospitalized and treated.
C     She further stated that she eloped with the appellant voluntarily- a fact
      known to her aunt and PW-4, her sister. She also stated that the appellant
      and his relatives solemnized her marriage with him, and they lived as a
      married couple. According to her, when they were living together, the
      police came in search of her, after which she came to know that her
      father had filed a police complaint. She further clarified that she was
D
      never abducted nor married forcibly and that she married the appellant
      as per her wishes.
               4. After M was traced, the police altered the complaint; the first
      information report now included Section 6 and 17 of the POCSO Act as
      well as other offences, such as Section 506 of the IPC, Section 10 of the
E     Child Marriage Prohibition Act, 2006. The appellant and other accused
      (i.e., his parents and relatives, A-2 to A-9) were alleged to have committed
      the offences they were accused of in the charge sheet. The appellant
      and other accused were charged with commission of the offences; they
      abjured guilt and faced trial. The key witnesses relied upon by the
F     prosecution were PW-3 (the victim, i.e., M); PW-4, her sister; PW-5,
      who turned hostile; PWs 6, 7 and 8, who deposed in relation to a
      motorcycle said to have been borrowed by the appellant’s father. The
      doctor who examined M was PW-9, as well as PW-11. PW-15, the sub-
      inspector who registered the case and PW-16, IO, who concluded the
      investigation. The trial court held the appellant and others guilty; the
G     appellant was sentenced inter alia under Section 6 of the POCSO Act
      to undergo rigorous imprisonment for life.
             5. The High Court, by the impugned judgment modified the
      conviction. The accused A3, A4, A6 to A9 were convicted under Section
      10 of the Prohibition of Child Marriage Act, 2006; the second accused
H     (A2) was acquitted of all charges and the appellant’s conviction under
P. YUVAPRAKASH v. STATE REP. BY INSPECTOR OF POLICE                             483
              [S. RAVINDRA BHAT, J.]

the POCSO Act was confirmed but his sentence of life imprisonment               A
with rigorous imprisonmentwas reduced to 10 years of rigorous
imprisonment; he was also convicted under Section 10 of the Prohibition
of Child Marriage Act, 2006. The appellant was acquitted from the
charge under Section 366 of the IPC and the sentence was set aside.
       6. Ms. E.R. Sumathy, learned counsel submitted that the findings         B
of the courts below are unsustainable. Firstly, she relied on the
circumstance that the victim M in her statement under Section 164
Cr.PC,clearly indicated that she left with the appellant of her own accord
and that her sister and aunt knew these facts. It was pointed out that
the same statement further acknowledged that M and the appellant had
known and loved each other for a year. In these circumstances, when             C
she eloped with the appellant, the fact that she did not support her previous
statement to the Magistrate and resiled from it, should have been an
important aspect that cast serious doubts about the prosecution story.
       7. The learned counsel highlighted that the trial court’s approach
in this regard was entirely erroneous because the findings recorded are         D
that the prosecution was unable to show that M was not under some
coercion from the appellant. Learned counsel pointed out that this
reasoning is without logic. Learned counsel submitted that when the
Magistrate recorded the statement, M was clearly not under the influence
of the appellant; in fact, Magistrate recorded his opinion in this regard as    E
well.
        8. Learned counsel next argued that the courts below fell into
error in not appreciating that the prosecution failed to discharge the burden
of proof, with respect to the victim’s age. Reference was made to
Section 34 of the POCSO Act and Section 94 of the Juvenile Justice              F
(Care and Protection of Children) Act, 2015 (hereafter “JJ Act”), to say
that age determination has to be on the basis of settled statutory criteria.
In the first instance, the school leaving certificate, or the matriculation
certificate had to be seen; if that were not available, the birth certificate
or records to that effect issued by the local or municipal authority are to
be considered,and if neither of the first two classes of documents are          G
available, then, age determination depends on the ossification test.
Learned counsel highlighted that in the present case, the ossification test
indicated that M’s age was between 18 and 20, proving that she was not
a minor. This aspect was deposed to by PW-9, who also produced the
test report.
                                                                                H
484            SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A            9. The prosecution, however, did not provide any evidence to
      establish that the victim’s age was under 18. It was argued that,given
      the totality of these circumstances and that the victim had changed her
      version and deposed contrary to what she stated in her statement under
      Section 164 of Cr.PC, the appellant could not have been convicted for
      the offences he was charged with. It is lastly argued that the High Court
B
      acquitted the appellant of the charge under Section 366 IPC which gives
      a complete lie to the prosecution story about the kidnapping or forceful
      abduction of the victim.
             10. Mr. V. Krishnamurthy, Learned Additional Advocate General
      appearing for the State, supported the concurrent conviction and sentence
C     recorded by the Courts below; he submitted that even though the victim
      and the appellant knew each other, and even if it was accepted that they
      had feelings for each other, the fact remains that the victim was below
      the statutory age, and consent is irrelevant.He submitted that the findings
      of the courts below with respect to the age of the victim were supported
D     or corroborated only by the testimony of DW-2, the Head Mistress of
      the school where M had studied. She had deposed that according to the
      school records, M’s date of birth is 11.07.1997.
            Analysis and conclusions
             11. Before discussing the merits of the contentions and evidence
E     in this case, it is necessary to extract Section 34 of the POCSO Act
      which reads as follows:
            “34. Procedure in case of commission of offence by child and
            determination of age by Special Court. – (1) Where any offence
            under this Act is committed by a child, such child shall be
F           dealt with under the provisions of the Juvenile Justice (Care
            and Protection of Children) Act, 2015 (2 of 2016).
            (2) If any question arises in any proceeding before the Special
            Court whether a person is a child or not, such question shall
            be determined by the Special Court after satisfying itself about
            the age of such person and it shall record in writing its reasons
G
            for such determination.
            (3) No order made by the Special Court shall be deemed to be
            invalid merely by any subsequent proof that the age of a
            person as determined by it under sub-section (2) was not the
            correct age of that person.”
H
P. YUVAPRAKASH v. STATE REP. BY INSPECTOR OF POLICE                          485
              [S. RAVINDRA BHAT, J.]

      12. In view of Section 34(1) of the POCSO Act, Section 94 of the       A
JJ Act, 2015 becomes relevant, and applicable. That provision is
extracted below:
      “94. Presumption and determination of age. – (1) Where, it is
      obvious to the Committee or the Board, based on the
      appearance of the person brought before it under any of the            B
      provisions of this Act (other than for the purpose of giving
      evidence) that the said person is a child, the Committee or the
      Board shall record such observation stating the age of the
      child as nearly as may be and proceed with the inquiry under
      section 14 or section 36, as the case may be, without waiting
      for further confirmation of the age.                                   C

      (2) In case, the Committee or the Board has reasonable
      grounds for doubt regarding whether the person brought
      before it is a child or not, the Committee or the Board, as the
      case may be, shall undertake the process of age determination,
      by seeking evidence by obtaining –                                     D

      (i) the date of birth certificate from the school, or the
      matriculation or equivalent certificate from the concerned
      examination Board, if available; and in the absence thereof;
      (ii) the birth certificate given by a corporation or a municipal       E
      authority or a panchayat;
      (iii) and only in the absence of (i) and (ii) above, age shall be
      determined by an ossification test or any other latest medical
      age determination test conducted on the orders of the
      Committee or the Board:                                                F
      Provided such age determination test conducted on the order
      of the Committee or the Board shall be completed within fifteen
      days from the date of such order.
      (3) The age recorded by the Committee or the Board to be the
      age of person so brought before it shall, for the purpose of           G
      this Act, be deemed to be the true age of that person.”
      13. It is evident from conjoint reading of the above provisions that
wherever the dispute with respect to the age of a person arises in the
context of her or him being a victim under the POCSO Act, the courts
have to take recourse to the steps indicated in Section 94 of the JJ Act.    H
486             SUPREME COURT REPORTS                            [2023] 10 S.C.R.


A     The three documents in order of which the Juvenile Justice Act requires
      consideration is that the concerned court has to determine the age by
      considering the following documents:
             “(i) the date of birth certificate from the school, or the
             matriculation or equivalent certificate from the concerned
B            examination Board, if available; and in the absence thereof;
             (ii) the birth certificate given by a corporation or a municipal
             authority or a panchayat;
             (iii) and only in the absence of (i) and (ii) above, age shall be
C            determined by an ossification test or any other latest medical
             age determination test conducted on the orders of the
             Committee or the Board”.
              14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date
      of birth certificate from the school or matriculation or equivalent certificate
D     by the concerned examination board has to be firstly preferred in the
      absence of which the birth certificate issued by the Corporation or
      Municipal Authority or Panchayat and it is only thereafter in the absence
      of these such documents the age is to be determined through “an
      ossification test” or “any other latest medical age determination test”
E     conducted on the orders of the concerned authority, i.e. Committee or
      Board or Court. In the present case, concededly, only a transfer certificate
      and not the date of birth certificate or matriculation or equivalent
      certificate was considered. Ex. C1, i.e., the school transfer certificate
      showed the date of birth of the victim as 11.07.1997. Significantly, the
      transfer certificate was produced not by the prosecution but instead by
F     the court summoned witness, i.e., CW-1.The burden is always upon the
      prosecution to establish what it alleges; therefore, the prosecution could
      not have been fallen back upon a document which it had never relied
      upon. Furthermore, DW-3, the concerned Revenue Official (Deputy
      Tahsildar) had stated on oath that the records for the year 1997 in respect
G     to the births and deaths were missing. Since it did not answer to the
      description of any class of documents mentioned in Section 94(2)(i) as it
      was a mere transfer certificate, Ex C-1 could not have been relied upon
      to hold that M was below 18 years at the time of commission of the
      offence.
H
P. YUVAPRAKASH v. STATE REP. BY INSPECTOR OF POLICE                           487
              [S. RAVINDRA BHAT, J.]

      15. In a recent decision, in Rishipal Singh Solanki vs. State of        A
Uttar Pradesh&Ors.,3 this court outlined the procedure to be followed
in cases where age determination is required. The court was dealing
with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari
materia) with Section 94 of the JJ Act, and held as follows:
         “20. Rule 12 of the JJ Rules, 2007 deals with the procedure          B
         to be followed in determination of age. The juvenility of a
         person in conflict with law had to be decided prima facie on
         the basis of physical appearance, or documents, if available.
         But an inquiry into the determination of age by the Court or
         the JJ Board was by seeking evidence by obtaining: (i) the
         matriculation or equivalent certificates, if available and in        C
         the absence whereof; (ii) the date of birth certificate from the
         school (other than a play school) first attended; and in the
         absence whereof; (iii) the birth certificate given by a
         corporation or a municipal authority or a panchayat. Only
         in the absence of either (i), (ii) and (iii) above, the medical      D
         opinion could be sought from a duly constituted Medical Board
         to declare the age of the juvenile or child. It was also provided
         that while determination was being made, benefit could be
         given to the child or juvenile by considering the age on lower
         side within the margin of one year.”
                                                                              E
      16. Speaking about provisions of the Juvenile Justice Act, especially
the various options in Section 94 (2) of the JJ Act, this court held in
Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors 4 that:
         “Clause (i) of Section 94 (2) places the date of birth certificate
         from the school and the matriculation or equivalent certificate      F
         from the concerned examination board in the same category
         (namely (i) above). In the absence thereof category (ii)
         provides for obtaining the birth certificate of the corporation,
         municipal authority or panchayat. It is only in the absence of
         (i) and (ii) that age determination by means of medical analysis
         is provided. Section 94(2)(a)(i) indicates a significant change      G
         over the provisions which were contained in Rule 12(3)(a) of
         the Rules of 2007 made under the Act of 2000. Under Rule
         12(3)(a)(i) the matriculation or equivalent certificate was
3
    2021 (12) SCR502
4
    [2019] 9 SCR 735                                                          H
488                SUPREME COURT REPORTS                     [2023] 10 S.C.R.


A              given precedence and it was only in the event of the certificate
               not being available that the date of birth certificate from the
               school first attended, could be obtained. In Section 94(2)(i)
               both the date of birth certificate from the school as well as
               the matriculation or equivalent certificate are placed in the
               same category.
B
            17. In Abuzar Hossain @ Gulam Hossain v State of West
      Bengal5, this court, through a three-judge bench, held that the burden of
      proving that someone is a juvenile (or below the prescribed age) is upon
      the person claiming it. Further, in that decision, the court indicated the
      hierarchy of documents that would be accepted in order of preference.
C
              18. Reverting to the facts of this case, the headmaster of M’s
      School, CW-1, was summoned by the court and produced a Transfer
      Certificate (Ex.C-1). This witness produced a Transfer Certificate
      Register containing M’s name. He deposed that she had studied in the
      school for one year, i.e., 2009-10 and that the date of birth was based on
D     the basis of the record sheet given by the school where she studied in
      the7 th standard.DW-2 TMT Poongothoi, Headmaster of
      Chinnasoalipalayam Panchayat School, answered the summons served
      by the court and deposed that ‘M’ had joined her school with effect
      from 03.04.2002 and that her date of birth was recorded as 11.07.1997.
E     She admitted that though the date of birth was based on the birth
      certificate, it would normally be recorded on the basis of horoscope. She
      conceded to no knowledge about the basis on which the document
      pertaining to the date of birth was recorded. It is stated earlier on the
      same issue, i.e., the date of birth, Thiru Prakasam, DW-3 stated that the
      birth register pertaining to the year 1997 was not available in the record
F     room of his office.
             19. It is clear from the above narrative that none of the documents
      produced during the trial answered the description of “the date of birth
      certificate from the school” or “the matriculation or equivalent
      certificate” from the concerned examination board or certificate by a
G     corporation, municipal authority or a Panchayat. In these circumstances,
      it was incumbent for the prosecution to prove through acceptable medical
      tests/examination that the victim’s age was below 18 years as per Section
      94(2)(iii) of the JJ Act.PW-9, Dr. Thenmozhi, Chief Civil Doctor and
      Radiologist at the General Hospital at Vellore,produced the X-ray
      5
H         [2012] 9 SCR 224
P. YUVAPRAKASH v. STATE REP. BY INSPECTOR OF POLICE                            489
              [S. RAVINDRA BHAT, J.]

reportsand deposed that in terms of the examination of M, a certificate        A
was issued stating “that the age of the said girl would be more than
18 years and less than 20 years”. In the cross-examination, she
admitted that M’s age could be taken as 19 years. However, the High
Court rejected this evidence, saying that “when the precise date of
birth is available from out of the school records, the approximate
                                                                               B
age estimated by the medical expert cannot be the determining
factor”. This finding is, in this court’s considered view, incorrect and
erroneous. As held earlier, the documents produced, i.e., a transfer
certificate and extracts of the admission register, are not what Section
94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because
DW-1 clearly deposed that there were no records relating to the birth of       C
the victim, M. In these circumstances, the only piece of evidence,
accorded with Section 94 of the JJ Act was the medical ossification
test, based on several X-Rays of the victim, and on the basis of which
PW-9 made her statement. She explained the details regarding
examination of the victim’s bones, stage of their development and opined
                                                                               D
that she was between 18-20 years; in cross-examination she said that
the age might be 19 years. Given all these circumstances, this court is of
the opinion that the result of the ossification or bone test was the most
authentic evidence, corroborated by the examining doctor, PW-9.
      20. In this case, the appellant was charged,inter alia, for the
offence under Section 6 of the POCSO Act. The offence under Section            E
6 depends on the proof that a “sexual assault” took place. That term is
defined by Section 7, which reads as follows:
      “Whoever, with sexual intent touches the vagina, penis, anus
      or breast of the child or makes the child touch the vagina,
      penis, anus or breast of such person or any other person, or             F
      does any other act with sexual intent which involves physical
      contact without penetration is said to commit sexual assault.”
      The offence under Section 6, at the relevant time, was defined as
follows:
                                                                               G
      “Whoever, commits aggravated penetrative sexual assault,
      shall be punished with rigorous imprisonment for a term which
      shall not be less than ten years but which may extend to
      imprisonment for life and shall also be liable to fine.”
      Section 3 defines penetrative sexual assault, as follows:
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490             SUPREME COURT REPORTS                       [2023] 10 S.C.R.


A           “3. Penetrative Sexual Assault. - A person is said to commit
            “penetrative sexual assault” if -
            (a) he penetrates his penis, to any extent, into the vagina,
            mouth, urethra or anus of a child or makes the child to do so
            with him or any other person; or
B           (b)........................
            (c)........................
            (d)........................”
            Section 2(a) of the POCSO Act provides that ‘aggravated
C     penetrative sexual assault’ has the same meaning as assigned to it in
      Section 5. Therefore, Section 5, which defines ‘aggravated penetrative
      sexual assault’ is relevant. Section 5 (l) reads as follows:
            “5. Aggravated Penetrative Sexual Assault. -
            (a)
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            (l)whoever commits penetrative sexual assaulton the child
            more than once or repeatedly; or”
            Section 4, at the relevant time, read as follows:
            “(1) Whoever commits penetrative sexual assault shall be
E           punished with imprisonment of either description for a term
            which shall not be less than seven years but which may extend
            to imprisonment for life, and shall also be liable to fine.”
            The expression “assault” is defined in Section 351 IPC as

F           “Whoever makes any gesture, or any preparation intending
            or knowing it to be likely that such gesture or prepa-ration
            will cause any person present to apprehend that he who makes
            that gesture or preparation is about to use criminal force to
            that person, is said to commit an assault.”
            The expression “criminal force” is defined by Section 350 IPC as
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      follows:
            “Whoever intentionally uses force to any person, without that
            person’s consent, in order to the committing of any offence,
            or intending by the use of such force to cause, or knowing it
            to be likely that by the use of such force he will cause injury,
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P. YUVAPRAKASH v. STATE REP. BY INSPECTOR OF POLICE                             491
              [S. RAVINDRA BHAT, J.]

          fear or annoyance to the person to whom the force is used, is         A
          said to use criminal force to that other.”
       21. In her statement under Section 164 of the Cr.PC, the victim
M had deposed that she was in love with the appellant, had consumed
poison, and had even been hospitalized because she was adamant to live
with the appellant. No doubt, she resiled from her statement. Yet, the          B
medical evidence (deposition of PW-11, Dr. Kavitha) indicated that the
victim had a ruptured hymen; there was no external injury at her private
parts, and that according to her “48 hours before medical examination
there was no evidence to show that she had sexual assault is the
opinion given by me.” This witness also produced her Notes of
examination (Ex. P-11). In view of these facts, this court is of the opinion    C
that the prosecution was not able to establish that there was any
penetrative sexual assault as a result of coercion or compulsion on the
part of the appellant. Even the High Court recognized this, albeit while
reducing the sentence (since, in its opinion, M was a minor at the time),
observing that “P.W.3 had gone to the extent of taking poison to                D
commit suicide out of love failure, under enormous pressure, he
had accompanied P.W.3, married her and had sexual intercourse
with her, both before the marriage as well was after the
marriage.”From these facts, and the definitions under POCSO Act,
especially the definitions of “sexual assault”, Sections 5 and 6, read with
Sections 350 and 351 IPC, it can be seen that it is only when there is          E
penetrative sexual assault, which implies sexual contact with or without
consent of the minor victim, that the offences under the POCSO Act
are committed.
       22. All the facts proved in this case clearly indicate M’s willingness
to accompany the appellant and even celebrate their marriage. However,          F
she did not support the statement under Section 164 Cr.PC. To entirely
discard that statement, the trial court observed that:
          “In this case, on the orders of the Inspector of P.W.-16 had
          produced the girl M6before the Judicial Magistrate Court,
          Erode and she has given a statement voluntarily u/s.164 Cr.PC.        G
          To prove that the aforesaid statement was not given on any
          compulsion, no evidences have been put forth before this
          court.”
6
    name redacted.
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492              SUPREME COURT REPORTS                        [2023] 10 S.C.R.


A           The above surmise by the trial court is untenable. The prosecution
      did not concededly produce the Judicial Magistrate who recorded the
      statement; however, that officer was available and was stationed at
      Erode. She deposed during the trial, as DW-1, and importantly affirmed
      the veracity of the victim’s statement (Ex. P-4) by stating as follows:
B            “It is a true statement given by the said girl wilfully. The said
             statement was not given on compulsion. It is correct if it is
             stated that, (M), in her statement, had told me that, I and my
             neighbour who was in the nearby house, by nameYuvaprakash
             are in love for the past 1 1/2 years, we used to talk to each
             other frequently over phone, my grand-mother on seeing me
C            speaking over the phone had told my father about it, I took
             pesticide for ants and attempted to commit suicide….”
             The prosecution did not even cross examine this witness. Having
      regard to these overall factors, the court is of the opinion that M’s
      statement under Section 164 of the Cr.PC contained a truthful narration
D     of the events. This, in other words, meant that there was no penetrative
      sexual assault on her.Therefore, the provisions of the POCSO Act will
      not be applicable in this case. The impugned judgment set aside the
      charge under Section 366 IPC against the appellant. The charges against
      him, under Section 6 of the POCSO Act as well as Section 10 of the
E     Prohibition of Child Marriage Act, cannot be sustained; the findings of
      the courts below, i.e., conviction and sentences imposed are, therefore,
      set aside.
             23. In view of the foregoing analysis and conclusions, this court is
      of the opinion that the appellant is not guilty of the offences he was
F     charged with; he is hereby acquitted. The impugned judgment and order
      is hereby set aside; the appellant shall be set at liberty forthwith unless
      required in connection with any other case. The appeal is allowed, but
      without order on costs.


G     Ankit Gyan                                                   Appeal allowed.
      (Assisted by : Aarsh Choudhary, LCRA)




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