POCSO Victim’s Age Can Be Determined By Any Of Modes Available Under Law & Not Necessarily As Per JJ Act: Kerala High Court

The Kerala High Court held that the age of a POCSO victim can be determined by any of the modes available under law and not necessarily only as per the Juvenile Justice Act, 2015 (JJ Act).

The Court held thus in a Criminal Appeal filed by an accused challenging the conviction and sentence imposed upon him by the Special Court for Atrocities against Women and Children, Kasaragod.

A Single Bench of Justice Bechu Kurian Thomas observed, “… the age of a victim can be determined by any of the modes available under law and not necessarily only as per the JJ Act of 2015. A contrary view may not only defeat the object of the statute, but can also enable several perpetrators of sexual offences to go scot free. Such an eventuality is an antithesis of law relating to sexual offences especially that relating to minors.”

The Bench said that absence of the name of the child in the birth certificate cannot be regarded as a flaw as it is normal not to incorporate the name of the child.

Advocate Balu Tom represented the Appellant/Accused, while Public Prosecutor Noushad K.A. represented the Respondent/State.

Facts of the Case

The Appellant-accused was found guilty for the offences punishable under Section 376(2)(i) and 376(2)(n) of the Indian Penal Code,1860 (IPC) and Section 6 read with Section 5(l) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). He was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 15,000/-. Compensation to the victim under the victim compensation scheme was also directed to be paid by the Trial Court. The prosecution alleged that in September 2015, and thereafter on several days, till February 2016, the accused raped a minor girl aged 13 years in her house and thereby committed the offences alleged.

Contentions

The counsel for the accused contended that the prosecution allegations are totally false and the same do not make out any offence against the accused. It was also submitted that the age of the victim was not proved as per law as the birth certificate does not refer to or identify the victim. On the other hand, the Public Prosecutor for the State contended that the allegations are serious in nature and the prosecution had clearly proved the offence committed by the accused beyond reasonable doubt and therefore there is no reason to interfere with the impugned Judgment.

Court’s Observations

The High Court after hearing the contentions of the counsel, noted, “Sexual offences targeting young victims whose innocence of childhood are exploited must be dealt with a stern hand. When the evidence of the victim is unwavering and of a sterling quality, the foundational facts get established. Once the foundational facts are proved, section 29 of the POCSO Act sets in and creates a statutory presumption of guilt of the accused.”

The Court was of the view that the victim was subjected to penetrative sexual assault by the accused, who was identified without any incertitude and there are no reasons to disbelieve the prosecution witnesses.

“No significant inconsistency has also been brought out through their cross-examination. The victim's testimony was unwavering, free from any embellishments, medically corroborated and even supported by the evidence of other witnesses. The foundational facts were thus proved by the prosecution and hence the presumption under section 29 of the POCSO Act is attracted”, it added.

The Court remarked that the substantive evidence available before the Court indicate that the accused had committed penetrative sexual assault/raped the victim, repeatedly, inside her house on several days, during the period from September 2015 till February 2016 and hence, the finding of the Trial Court that the accused had subjected the victim to rape does not warrant any interference.

“… when the age of a victim has to be determined under the POCSO Act, recourse has to be made to the provision of the statutes relating to juveniles. … The POCSO Act does not stipulate in section 34(2) that when the victim is a child, age can be determined only as per the law relating to juveniles. It was in Jarnail Singh (supra) and Yuvaprakash (supra) the said proposition was laid down”, it observed.

The Court further said that the words in a Judgment ought not to be interpreted as that in a statute and a decision is only an authority for the questions determined therein and while applying the ratio, the Court ought not to pick out a word or a sentence from the Judgment disassociated from the context in which the issue under consideration arose.

“Viewed in the light of the above principle, it has to be held that the words ‘should be the basis for determining age, even for a child who is a victim of crime’ as observed in Jarnail Singh (supra) has to be interpreted as ‘can be the basis for determining age, even for a child who is a victim of crime’. A contrary view, if adopted, would defeat the very object of the statute. Hence, the decision in Jarnail Singh (supra) which mandated that the age should be determined as per 2007 Rules, according to me, cannot be interpreted as laying down the principle that the only method to determine age of a victim in a POCSO offence is as per the said provision”, it held.

Conclusion

The Court enunciated that when an offence is committed by a child, he shall be dealt with under the JJ Act of 2015, but when it comes to determining the question as to whether a person is a child or not, such a question will have to be determined by the Special Court after satisfying itself about the age.

“The principles of the law of evidence can apply when the issue before a court relates to the determination of the age of a child. The provisions of the statutes relating to juveniles can be one of the modes and need not be the only mode. Under the law of evidence, all facts, except the contents of documents, can be proved by oral evidence as per section 59 of the Indian Evidence Act, 1872 (for short ‘the IE Act’) and the only requirement is that the oral evidence must be direct”, it also noted.

The Court elucidated that contents of a document can be proved by primary or secondary evidence and even Section 35 of the Indian Evidence Act, 1872 (IEA) can be resorted to, for determining the age of a victim in a POCSO offence.

“When the mode of determination of the age of a victim has not been specifically delineated in any statute, there cannot be any absolute restriction for entertaining any other mode for determination of the age of a victim in a POCSO offence. … While determining the age of a victim, this Court cannot ignore the definition of the word ‘proved’ in section 3 of the Indian Evidence Act which states that “a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” Considering the certificate produced as Ext.P2 and the unchallenged evidence of the victim, it is highly probable that the date of birth of the victim is the same as that recorded in Ext.P2. Hence it is held that the prosecution did prove that the date of birth of the victim is 18.08.2002”, it concluded.

Accordingly, the High Court dismissed the Appeal and upheld the conviction.

Cause Title- Suresh K v. State of Kerala (Neutral Citation: 2025:KER:95276)

Appearance:

Appellant: Advocates Balu Tom, Bonny Benny, and Bejoy Joseph P.J.

Respondent: Public Prosecutor Noushad K.A.

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