Evidence Of The Victim Can Be Taken To Prove Her Age In Absence Of Necessary Documents: Madras High Court

Justice Bharatha Chakravarthy was dealing with an appeal challenging the judgment passed by the Sessions Judge, Mahila Court, Salem wherein the appellant was found guilty of the offence under Section 6 read with 5(k) and 5(j)(ii) of the POCSO Act and under Section 506(i) of IPC.

The court opined that when the prosecution had not produced the Transfer certificate of the victim and when the victim had categorically deposed before the court that her date of birth was 27.07.1995 not making her a minor at the time of the offence, her evidence should be taken as her correct age and therefore altered the charges.

I am of the opinion that the evidence of the victim that the date of birth is 27.07.1995, can be accepted as her correct age and as on date of the occurrence, her age is more than eighteen years and therefore, the alleged intercourse would be an offence under Section 376 of the Indian Penal code and cannot be one under Section 6 of the POCSO Act.

The crux of the case was that the appellant, who was about thirty years old, had forcefully committed sexual intercourse with the victim aged about nineteen years and was his neighbour and as a result she became pregnant. When she went to the medical shop to get medicines to abort the foetus, the appellant's sister confronted her upon which she confessed the entire issue to her father. Thereafter, the complaint was lodged.

Initially, the case was registered under Section 376 and 506(i) of IPC. During the investigation, the School Headmaster of the victim gave a certificate stating the victim's date of birth as 19.12.1996 and as per the same since the victim was less than eighteen years of age at the time of occurrence, the case was altered to one under the POCSO Act.

The trial court found the accused guilty of the offence under Section 506(i) of IPC and under Section 6 of the POCSO Act and sentenced accordingly.

The appellant contended that the victim girl, even in her evidence has stated that she was born on 27.07.1995. She had also stated that this date finds plane in all her credentials including school records, identity certificate by the Disabilities Department and her horoscope etc. Thus, when the prosecution had not treated her hostile to this effect and cross examined her, her evidence should have been treated as proof for her own date of birth.

Further, instead of producing the transfer certificate, the prosecution had marked only a certificate issued by the Headmaster. He also contended that he intercourse was with consent and drew attention to the fact that theh victim had not disclosed about the offence to anyone and revealed only when she could not hide the pregnancy.

The prosecution on the other hand relied on Rule 12 2 of the Juvenile Justice (Care and Protection of Children) Rules. As per this rule, the prosecution has to firstly see whether there is SSLC or 12th Std certificate. In the absence of it, it was for the prosecution to take the certificate from the school regarding the date of birth of the girl.

The court carefully examined the procedure laid down by the Supreme Court in the case of Jarnail Singh v. State of Haryana with respect to determination of the age of the victim. In the present case, the matriculation or equivalent certificate was unavailable as the victim was a school dropout. The second option was therefore the date of birth certificate of the victim.

The court noted that even though the Transfer Certificate of the victim was available in the school, the same was not marked by the prosecution. Even the victim, had categorically deposed that her date of birth was 27.07.1995.

All through the investigation, right from the First Information Report and the complaint, the age of the victim is mentioned only as nineteen years, therefore, I am of the view that the prosecution has failed to categorically prove the age of the victim as less than eighteen years as on date of the occurrence, that is, on 23.10.2013.

Thus, the court opined that the evidence of the victim should be taken as her correct age and therefore, the offence would not come within the POCSO act and instead would attract Section 376 IPC

The court further disagreed with the contention that the act was consensual. The court held that just because the victim did not immediately complain to her parents or others and was keeping quiet will not absolve the appellant. The court emphasised that it was not the victim, but the accused who was on trial.

Merely because the victim did not immediately complain to her parents or others and was keeping quiet and the fact that there was even chance of repeated assaults by itself will not absolve the appellant from the act and for the victim is not under the Trial in this case, but the appellant is the person who is.

Thus, the court found the appellant guilty for the offence under Section 376 of IPC and sentenced him to rigorous imprisonment for a period of 7 years. In addition to the one lakh rupees paid as compensation to the victim child, the court directed that the victim could apply for compensation, as per law, under the relevant Victim Compensation Fund and directed the Legal Services Authority to fix the quantum and pay the maximum permissible compensation to the victim. Additionally, the court ordered the accused to pay a sum of Rs. 50,000 as compensation to the victim.

Case Title: Azhagan @ Prabhu v. State

Case No: Crl A. No. 146 of 2022

Citation: 2022 LiveLaw (Mad) 337

Counsel for the Appellant: Mr.S.Jevakumar

Counsel for the Respondent: Mr.S.Vinoth Kumar, Government Advocate (Criminal Side)