POCSO Act | Certificate Issued By School Headmistress Not Sufficient To Prove Victim's Date Of Birth: Kerala High Court

The Kerala High Court on Thursday while setting aside the conviction under the POCSO Act of a father who had repeatedly committed rape on his daughter, observed that the certificate issued by the school Headmistress could not be regarded as sufficient evidence in order to establish the age of the victim. 

The Division Bench comprising of Justice K. Vinod Chandran and Justice C. Jayachandran thus observed, 

"The register maintained in the school is not a public document and the certificate issued by the Headmistress cannot be considered to be a secondary evidence. We hence find that there is no proof of age as established by the prosecution".

As per the factual matrix of the case, the father of the victim minor girl had repeatedly committed rape on her, and against the order of nature, and even threatened her with dire consequences. He was accordingly charged under Sections 376 & 377 of the IPC, and for commission of aggravated penetrative sexual assault under the Protection of Children From Sexual Offences Act, 2012 (POCSO Act).

The instant case before the Division Bench was an appeal from the order of Additional District & Sessions Court, Irinjalakuda, which convicted the accused.  

On behalf of the appellant accused, on the aspect of the conviction under the POCSO Act, it was contended by Advocates Renjith B. Marar, Lakshmi N. Kaimal, Arun Poomulli, and Asiwarya Thankachan, that the prosecution had not established the proof of date of date of birth, and hence the conviction the POCSO Act would not stand. In this regard, the counsels relied upon the decisions of the Court in Rajan v. State of Kerala [(2021) 4 KLT 274], Alex v. State of Kerala [2021 (4) KLT 480], and Raghavan v. State of Kerala [2021 (6) KLT 427], wherein it had been categorically laid down by the court that where there is no proof of date of birth, there cannot be any conviction under S. 376(i) and the various provisions under the POCSO Act.

The Public Prosecutor, O.V. Bindhu, on behalf of the respondent State, on the other hand, urged the Court to uphold the impugned judgment of the Sessions Court on all account.

The Court found that the certificate produced by the Headmistress of the School in which the victim was studying was just a certificate, and not the extract of the school register. It reiterated, 

"but for a certificate from school first attended as provided for in Jarnail Singh v. State of Haryana, no other certificate can be accepted for the purpose of proving date of birth; which has to be in accordance with the Evidence Act".

The Court, while upholding the conviction of the appellant under Sections 376(2)(f), 377 and 506 of the IPC, however, set aside the conviction under the POCSO Act and Section 376 (2)(i) of the IPC on finding that there was no proof of date of birth of the victim. 

Case Title: Shaju@Shaju v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 470

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