POCSO | Issue Regarding Determination Of Victim's Age Can Be Raised At Any Stage, Even Before Appellate Forum: Meghalaya High Court

The observation came from Justice W. Diengdoh:

"An offence against a child has to be tried by the Special Court. However, it is incumbent upon the Court to be certain right from the inception of a case that the case before it involves a child by the definition found in the said POCSO Act. In this context, the age determination is very vital before further proceedings are initiated."

The Court further held that determination of victim's age is an important issue going to the root of the matter and should therefore be decided as a preliminary issue. However, the issue can be raised at any stage of the proceedings, including at appellate stage. It observed,

"Proof or determination of age of the victim in a POCSO case is foundational and for such an important issue which begs consideration, the same can be raised at any stage of the lifetime of the case, even before the appellate forum. Therefore, to say that this Court cannot decide on this issue at the appellate stage would be far from the truth."

The Court was hearing an appeal against conviction of Appellant under Sections 7/8 of POCSO Act for touching private parts of the victim.

The appellant contested the victim's age and argued that it should have been taken up as the first and preliminary issue by the Special Court. He submitted that submitted that before the POCSO Court can even take cognizance of the case, the foundational fact has to be proved and the age of the victim must be established by the prosecution before reverse burden of proof is cast upon accused under Section 29 of the POCSO Act.

He argued that in this case, no document was ever exhibited, no medical examination was carried out to determine the age of the victim who is a student of class 10, who according to her, was aged 16 years at the relevant period.

Additional Advocate for Government submitted that the proposition of the appellant on the issue of age determination cannot be considered by this Court at this juncture, since this question was not raised at the relevant time before the Special Court.

Disagreeing, the Court held that Section 34 of the POCSO Act does not specifically provide that such a question should come from the side of the defence or the prosecution.

"Logically, since it is the prosecution's case that has to be prosecuted, it would not be improper to infer that this burden would lie with the prosecution and failure to do so would result in an adverse inference."

"The contention of the learned AAG that the provision of sub-section 2 of Section 34 of the POCSO Act requires that a question on age determination be raised by the defence before the Special Court which was not done so in this case, for the process to be initiated, cannot be accepted...as submitted by the learned counsel for the appellant that the victim in question is a girl of Class-X and was said to be approximately 16 years old at the time of the occurrence, however what is required is for the exact age to be determined, also finds acceptance by this Court."

In view of the above circumstances, the court decided to remand the matter back to the Special Judge to determine the age of the victim and to pass the final order upon appreciation of evidence under the changed circumstances.

Case Title : Shri Anwar Hussain Sheikh Vs. State of Meghalaya & Anr.