[POCSO Act] Secondary Evidence For Age Determination Of Victim Stands Legally Proven If Not Challenged By Defence During Trial: Patna HC

The Patna High Court has observed that the accused/defence forfeits the right to contest the admissibility of secondary evidence produced by the prosecution for age determination of the victim under the POCSO Act if the defence did not object to the production of such evidence during the trial. Further, the Court emphasised that the consent of the victim is immaterial under the Act and does not excuse the offence committed by the accused.

The division bench of Justice Ashutosh Kumar and Justice Jitendra Kumar were considering the appeal against the conviction of the appellant under Section 376 IPC and Section 4(1) POCSO Act by the Special Court for penetrative sexual assault.

The appellant argued that the prosecution had produced the photocopy of the matriculation certificate to prove the age of the victim, which is secondary evidence. He contended that the prosecution did not fulfil the conditions for proving a document by secondary evidence. Thus, the document could not have been admitted by the Special Court as evidence to determine the victim's age.

Age determination of victim

The Court examined the procedure for the age determination of victims under the POCSO Act.

The High Court referred to the Supreme Court judgment in Jarnail Singh vs. State of Haryana (AIR 2013 SC 3467), where it was held that the procedure to determine the age of victim in the POCSO Act is the same as the procedure provided in the Juvenile Justice Act.

It then referred to Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007 made under the JJ Act, 2000 as the offence was committed between 2015 and 2018 (JJ Act, 2015 came into force in 2016). The Rule provides that the matriculation or equivalent certificate of the child is the sought-after evidence and only in the absence of such certificate, other evidence can be produced.

In the present case, the prosecution had produced a photocopy of the mark sheet of the matriculation examination of the victim indicating her date of birth.

The Court noted during the trial, that the defence had not raised any objections regarding the genuineness of the document produced by the prosecution. The defence had not objected to the prosecution's non-compliance with the pre-conditions for leading secondary evidence.

The Court was of the view that since the appellant did not object to the production of secondary evidence during the trial, he waived the right to raise such objection later. It stated “…the appellant was required to lodge protest/objection to the secondary evidence being admitted and taken on record. In the absence of such protest, it would be deemed that such an objection was waived by the appellant. Subsequently, the appellant will not be allowed to raise objection to the mode of proof at the appellate stage.”

The Court held that the age of the victim as provided in the photocopy of matriculation certificate was legally proved. It remarked “…even during the entire trial, the genuineness of the matriculation mark-sheet or its admissibility or mode of its proof has never been questioned or protested by the appellant. As such, matriculation marksheet stands legally proved…”

It observed that the initial burden of proof on the prosecution to prove the age of the victim was discharged and it proved beyond reasonable doubt that the victim was a minor at the time of the offence.

Consent of victim

During the cross-examination, the victim stated that the appellant engaged in sexual relations with her consent and that they got married in 2020.

The Court stated that the consent of a child is immaterial under the POCSO Act. Any consent given does not absolve the offence committed by the accused under the Act.

“…we have already found that she was a child at the time of alleged occurrence and the consent of the child is no consent, either under Section 375 of the Indian Penal Code or Section 4 of the POCSO Act. Hence, consent of the child/Informant is immaterial in the eye of law and does not obliterate the offence committed by the Accused/Appellant against the child/Informant. Even the marriage of Accused/Appellant with the child victim of rape does not absolve the Accused of the offence of the sexual assault”

The Court noted that even if they were married, it would be void ab initio under Section 11 of the Hindu Marriage Act and also punishable under Section 494 of the Indian Penal Code as the appellant already had a wife.

Conclusion

The Court upheld the appellant's conviction but reduced his sentence from 20 years to 10 years and directed him to pay the victim rupees one lakh as compensation. It also directed the Bihar Legal Services Authority to provide compensation of rupees two lakh to the victim.

Case title: Satyabrat Ashok @ Satya Vrat Ashok vs. The State of Bihar, CR. APP (DB) No.914 of 2022

Citation: 2024 LiveLaw (Pat) 51

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