Juvenile Justice Act Not Sole Method To Determine Age Of POCSO Victim; Oral & Documentary Evidence Can Be Relied Upon: Kerala HC

After examining Section 34 of the Protection of Children from Sexual Offences (POCSO) Act and the decisions of the Division Bench in Silvester Pigaruz v. State of Kerala (2024) and Biju v. State of Kerala (2024), Justice Bechu Kurian Thomas observed:

“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…A perusal of the above provision reveals 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.”

It was also observed that the statutory presumption of guilt under Section 29 of the POCSO Act sets in once foundational facts are proved and if the victim's evidence is unwavering and of sterling quality.

The Court was considering an appeal filed by a person convicted of the offences punishable under section 376(2)(i) and 376(2)(n) of the Indian Penal Code and section 6 r/w section 5(l) of the POCSO Act for committing rape on a minor girl when she was 13 years old.

The prosecution allegation was that the appellant committed rape on the victim from the period from September 2015 to February 2016 inside her house. The victim and her mother had deposed regarding the incidents of rape committed by the appellant whereas the doctor who conducted medical examination deposed that there was evidence of sexual intercourse consistent with the history of sexual assault on the victim. The birth certificate of the victim was marked through the Panchayat Secretary, who was also examined as a witness.

Based on these, the Special Court found the appellant to be guilty and sentenced to 10 years' imprisonment and a fine of Rs. 15,000/-. The Court also directed payment of compensation to the victim. The appellant assailed the Special Court's finding of guilt before the High Court and argued that the victim's age was not proved as per law.

The prosecution had produced the birth certificate issued by the Panchayat to prove the victim's age but the appellant contended that it does not mention the victim's age but only those of the parents and since the victim had another sister, the birth certificate could belong to her. The appellant thus claimed that he may be extended the benefit of doubt.

It was contended by the prosecution that the victim's mother identified her and the victim herself deposed her date of birth as well as the fact that she was subjected to penetrative sexual assault by the accused. Thus, it was argued that there cannot be any doubt regarding her age.

Appreciating the medical evidence and the depositions made by the victim and her mother, the Court felt that foundational facts were proved by the prosecution, attracting the presumption under Section 29.

It was observed:

“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 next question before the Court was whether the victim's age was proven. It noted that Section 34 of the Act mandates that when there arises a question as to whether a person is a child or not, such a question shall be determined after recording in writing the reasons for such a determination.

Though a ruling was made in Jarnail Singh v. State of Haryana (2013) that Juvenile Justice Act/Rules have be referred to in order to determine the age of a child victim, the Court felt that this was not a mandate but only one of the modes to determine age.

Regarding the other modes available, the Court remarked:

“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. When evidence required is in relation to a fact which could be seen or heard or perceived, direct oral evidence as per section 60 of IE Act means the evidence given by a person who had seen, heard or perceived the fact, as the case may be. Contents of a document can be proved by primary or secondary evidence. Even section 35 of the IE Act can be resorted to, for determining the age of a victim in a POCSO offence.”

As per Section 35 Evidence Act, an entry in a public record made by a public servant in discharge of his official duty is a relevant fact. Relying on these, the Court felt that the birth certificate produced and the victim's statement sufficiently proved her age. Thus, it found that the trial court's ruling was correct and dismissed the appeal.

Case No: Crl. A. No. 651 of 2021

Case Title: Suresh K. v. State of Kerala

Citation: 2026 LiveLaw (Ker) 11

Counsel for the appellant: Balu Tom, Bonny Benny, Bejoy Joseph P.J.

Counsel for the respondent: Noushad K.A. – Public Prosecutor

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