POCSO Act | Lack Of Documentary Proof Of Victim's Age Not Fatal If Oral Testimony Goes Unchallenged: Kerala High Court

Justice A. Badharudeen delivered the judgment in a criminal appeal challenging conviction under Sections 7 and 8 of the POCSO Act and Section 354 of the Indian Penal Code.

The prosecution case is that the accused, a security guard at an apartment complex, took the eight-year-old victim into a security cabin on the pretext of showing her a camera and sexually assaulted her.

The trial court convicted the accused under Sections 7 and 8 of the POCSO Act and Section 354 IPC, sentencing him to three years' rigorous imprisonment.

The appellant argued that the prosecution had failed to establish an essential ingredient of the offence, that the victim was below 18 years of age. The appellant argued that rather than the version of the victim and that of her mother, no other evidence have been adduced to prove the age of the victim.

The appellant further relied on Yuvaprakash P v. State [2023 KHC 6709], where the Court reiterated that age determination in such cases must ordinarily follow the evidentiary hierarchy under Section 94(2) of the Juvenile Justice Act.

According to Section 94 (2), a birth certificate from the concerned authority, or the matriculation or equivalent certificate from the examination board can be used for determination of the age. The Supreme Court had emphasized that where prescribed documents are unavailable, medical evidence becomes necessary.

The prosecution, however, relied on the Kerala High Court Division Bench decision in Biju v. State of Kerala [2024 (2) KHC 297], which held that unchallenged oral testimony regarding the victim's age may be accepted in a POCSO trial.

The Court noted that under Jarnail Singh v State of Haryana [(2013) 7 SCC 263], the Supreme Court applied the Juvenile Justice Rules framework to determine the age of child victims. Under that framework, courts are required to rely first on matriculation certificates, then school records, followed by birth certificates issued by local authorities, and finally medical opinion if documentary evidence is unavailable.

The Court noted that these documentary modes remain the preferred and legally recognized methods of proof. However, the Court drew a distinction between cases where the defence specifically disputes the age of the victim during cross-examination and cases where the oral evidence regarding age is allowed to stand unchallenged.

The Court observed that although the prosecution bears a “bounden duty” to prove age in a POCSO case, the consequences of failing to produce documentary proof depend upon how the defence conducts the trial.

“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. 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.” Court noted.

The Court thus added that when the victim and her mother testify that the child was below 18 years of age and the defence does not challenge that assertion in cross-examination, the prosecution's omission to produce documentary evidence would not automatically invalidate the conviction.

The High Court found that both the victim and her mother consistently stated that the child was eight years old at the time of the incident. The defence did not challenge this assertion during cross-examination.

The Court held that the testimony was sufficient in the facts of the case to establish that the victim was a “child” within the meaning of Section 2(d) of the POCSO Act.

The Court thus dismissed the appeal and upheld the conviction and sentence.

Case Title: Joseph @ Sabu v State of Kerala

Case No: Crl.A 929/ 2015

Citation: 2026 LiveLaw(Ker) 250

Counsel for Appellant: Manju Antoney, P.AnasMuhammed Shamnad, P. Mamatha

Counsel for Respondent: Vipin Narayan. A (Sr. PP)