No age proof? Why Kerala High Court upheld a POCSO conviction based on an 8-year-old’s word

Once the child and her mother give evidence before the court stating the date of birth of the victim, if the accused does not dispute the age of the victim as a child below 18 years by cross-examining them, and in the absence of documentary evidence, conviction for the offence under the POCSO Act is permissible, the court ordered.

A guard, a child and an incident

The prosecution claimed before the Kerala High Court that the survivor lived along with her parents, younger sister and brother, and used to play in front of the apartment complex.

It was mentioned that her parents ran a tea shop near the apartment complex, and she knew the accused as its security guard, who used to visit their shop. The prosecution further claimed that while the girl was playing with her friends in front of the flat in May 2014, the accused took her inside the gate on the pretext of showing her a camera and sexually assaulted her.

The child immediately informed her mother, following which a First Information Report (FIR) was registered and a medical examination was conducted. The trial court found the accused guilty under the POCSO Act and sentenced him to three years’ rigorous imprisonment.

Aggrieved by the same, the accused challenged the special court’s conviction order before the Kerala High Court.

‘Conviction permissible’

• Justice Badharudeen took notice of the statement of the doctor who examined the survivor and mentioned that no girl child would tell a lie without an incident.
• The doctor said in her cross-examination that it was “highly improbable” that the girl would lie.
• The “expressions and feelings of the victim” were sufficient to indicate that the incident was probable, the doctor added.
• The Kerala High Court observed that when the survivor and her mother depose regarding the age of the child, indicating that she is below 18 years, and such evidence is not effectively challenged in cross-examination, the same can be relied upon even in the absence of documentary proof.
• In such circumstances, conviction under the POCSO Act is permissible despite the absence of documentary evidence of age.
• However, the Kerala High Court held that the prosecution has a duty to prove the age of the victim to maintain a prosecution under the POCSO Act.
• The order suspending sentence and granting bail to the accused stands cancelled, and the bail bond executed by the accused also stands cancelled.
• The accused is directed to surrender before the special court to undergo the sentence, failing which, the court is directed to execute the sentence without fail.

Arguments

Appearing for the accused, advocate Manju Antoney submitted that the prosecution failed to establish the survivor’s age with convincing evidence, which is elementary in POCSO Act offences. She added that with this reasoning, the special judge was wrong in finding that the accused committed the offence under the POCSO Act.

Senior Public Prosecutor Vipin Narayan A argued that the survivor and her mother deposed that the girls’ age was eight years on the date of occurrence and, therefore, the same is sufficient to prove the age. He added that no interference in the verdict is required on the premise of non-proof of the age of the survivor.