Oral Testimony Of Victim & Mother Sufficient To Prove Age Under POCSO Act If Minority Not Disputed In Cross-Examination: Kerala High Court

The Court was hearing a criminal appeal challenging the conviction of the accused under Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012, and Section 354 of the Indian Penal Code, on the ground, inter alia, that the prosecution had failed to prove the age of the victim through legally acceptable documentary evidence as required in law.

A Single Judge Bench of Justice A. Badharudeen, while addressing the issue of proof of age in PoCSO prosecutions, held: “When the child and her mother give evidence before the court, stating the date of birth of the victim, which would substantially show that the victim is below 18 years, if the accused does not dispute the status of the victim as a child below 18 years by contending that the victim’s age at the time of occurrence is above 18 years by cross-examining them and thereby, their substantial evidence would remain unchallenged, and thus, if the prosecution fails to prove the same by documentary evidence as discussed, conviction for the offence under the PoCSO Act is permissible.”

Senior Advocate Manju Antoney appeared for the appellant, while Senior Public Prosecutor Vipin Narayan appeared for the State.

Background

The prosecution case arose from allegations attracting offences under Section 7, read with Section 8 of the Protection of Children from Sexual Offences Act, 2012, as well as Section 354 of the Indian Penal Code. The trial court, after recording evidence of witnesses and appreciating the material on record, convicted the accused and imposed a sentence in accordance with the statutory framework.

The accused challenged the conviction primarily on the ground that the prosecution had failed to establish that the victim was a “child” within the meaning of Section 2(d) of the PoCSO Act, which defines a child as a person below 18 years of age. It was contended that apart from oral testimony, no documentary evidence had been produced to establish the age of the victim.

Reliance was placed on precedents governing age determination, particularly the framework laid down under the Juvenile Justice (Care and Protection of Children) Act, 2015, and judicial decisions mandating proof through documentary or medical evidence where available.

The State, on the other hand, contended that the oral testimony of the victim and her mother regarding age remained unchallenged during cross-examination, and therefore, such evidence was sufficient to establish minority in the absence of rebuttal.

Court’s Observation

The Court began by examining the legal framework governing the determination of age in PoCSO prosecutions. Referring to Jarnail Singh v. State of Haryana (2013), the Court reiterated that the hierarchy of evidence for age determination gives primacy to matriculation certificates, followed by school records and birth certificates, and in their absence, medical evidence may be relied upon.

It noted that this framework, though originating in the context of the Juvenile Justice Act, has been applied for determining the age of victims in PoCSO cases as well. The Court further referred to State of Uttar Pradesh v. Anurudh (2026), observing that the issue of age determination is ordinarily a matter to be established during trial.

However, the Court emphasised that the absence of documentary evidence does not automatically render the prosecution's case unsustainable. It clarified that a fact in issue may be proved either through documentary or oral evidence in accordance with the Indian Evidence Act, 1872.

In this context, the Court placed reliance on the Division Bench decision in Biju v. State of Kerala (2024), which recognised that unchallenged oral testimony of the victim and her mother can be sufficient to establish age, provided it is reliable and remains uncontroverted.

The Court then articulated the governing principle in clear terms, holding that “a fact in issue can be proved either by oral evidence or by documentary evidence or by both, including circumstances arising therefrom” and that there is no statutory bar under the PoCSO Act preventing reliance on admissible oral evidence for proving age.

Crucially, the Court distinguished two situations. It held that where the accused actively disputes the age of the victim during cross-examination, and the prosecution fails to produce documentary evidence as per the prescribed hierarchy, it may be unsafe to sustain a conviction under the PoCSO Act.

At the same time, the Court clarified that where such oral testimony remains unchallenged, the accused cannot later contend that the prosecution failed to prove age. It was observed that the accused had the opportunity to dispute the minority during trial and, having failed to do so, cannot rely on the absence of documentary proof as a ground for acquittal.

The Court further held: “It is legally well settled that the accused could very well contend that the victim is not a child defined in the PoCSO Act during trial, and if so, it is the bounden duty of the prosecution to prove the age of the victim, and the said mandate would have no dilution.”

Elaborating on the consequences of such failure to challenge, the Court concluded that where the testimony of the victim and her mother remains uncontroverted on the issue of age, such evidence can be safely relied upon to establish that the victim was below 18 years.

The Court also reiterated the settled principle under Section 134 of the Indian Evidence Act, 1872, that a conviction can be based on the testimony of a single reliable witness, and that quality of evidence prevails over quantity.

Applying these principles, the Court held that the oral evidence on record sufficiently established that the victim was below 18 years at the relevant time and that the contention regarding non-proof of age was untenable.

Conclusion

The High Court concluded that the prosecution had successfully established the essential ingredients required for conviction under Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012, as well as Section 354 of the Indian Penal Code.

It held that the challenge to the conviction on the ground of non-proof of age was without merit, as the oral testimony establishing minority remained unchallenged and was sufficient in law.

Accordingly, the appeal was dismissed. The conviction and sentence imposed by the trial court were confirmed, and the accused was directed to surrender to undergo the sentence in accordance with the law.

Cause Title: Joseph @ Sabu v. State of Kerala (Neutral Citation: 2026:KER:32710)

Appearances

Appellant: Advocates Manju Antoney, R. Anas Muhammed Shamnad, P. Mamatha

Respondent: Vipin Narayan, Senior Public Prosecutor

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