The Kerala High Court (Ernakulam Bench) strongly held that sexual offences targeting young victims whose innocence of childhood is exploited must be dealt with a stern hand. When the evidence of the victim is unwavering and of a sterling quality, the foundational facts get established, which attracts Section 29 of the POCSO Act and creates a statutory presumption of guilt of the accused.
The court said that the substantive evidence available before the Court indicates that the accused had committed penetrative sexual assault/raped the victim repeatedly inside her house on several days. Hence, the finding of the trial court that the accused had subjected the victim to rape does not warrant any interference.
The ruling came after finding that there are no reasons to disbelieve the prosecution witnesses, in the absence of any significant inconsistency through their cross-examination. Further, the victim’s testimony was unwavering, free from any embellishments, medically corroborated and even supported by the evidence of other witnesses.
Going forward, a Single Judge Bench of Justice Bechu Kurian Thomas observed that in a case where the offence alleged involves the commission of sexual assault on a minor, the victim’s age has to be determined, and the burden is on the prosecution to prove it. Under the POCSO Act, the extent of punishment can vary based on the age of the victim. Since the age of a victim under the POCSO Act is a significant issue, the determination of the age of the victim is an essential requirement in a proceeding under the POCSO Act.
Since the incidents of penetrative sexual assault in the instant case are alleged to have taken place during the period from September 2015 to February 2016, both the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Juvenile Justice (Care and Protection of Children) Act, 2015, are applicable.
The Bench noted that the evidence of the prosecution witnesses does indicate that the victim had studied in a school. However, no certificate from the school first attended by the victim has been produced. The Bench also pointed out that 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.
The Bench explained Section 34 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 Bench also pointed out that when the mode of determination of the age of a victim has not been specifically delineated in any statute, there cannot be any absolute restriction for entertaining any other mode for the determination of the age of a victim in a POCSO offence. Thus, even Section 35 of the India Evidence Act can be resorted to for determining the age of a victim in a POCSO offence.
Resultantly, the Bench asserted that the age of a victim can be determined by any of the modes available under law and not necessarily only as per the Juvenile Justice Act of 2015. A contrary view may not only defeat the object of the statute, but can also enable several perpetrators of sexual offences to go scot free. Such an eventuality is an antithesis of the law relating to sexual offences, especially that relating to minors. With these observations, the Bench dismissed the appeal and upheld the conviction and sentence of the appellant under the IPC as well as the POCSO.
Briefly, in this case, the appellant challenged the conviction and sentence imposed upon him by the Special Court for Atrocities against Women and Children, whereby the appellant was found guilty of raping a minor girl aged 13 years, and was booked for the offences punishable under Section 376(2)(i) and 376(2)(n) of the IPC and Section 6 read with Section 5(l) of the Protection of Children from Sexual Offences Act, 2012 (POCSO). The appellant had also challenged the direction of the Trial Court, whereby he was ordered to pay compensation to the victim under the victim compensation scheme.
Appearances:
Advocates Balu Tom, Bonny Benny, and Bejoy Joseph P.J., for the Appellant
Public Prosecutor Noushad K.A., for the Respondent
