Beyond Juvenile Justice Act: Why Kerala High Court just made it harder for POCSO accused to escape on victim age factor

Justice Thomas observed that sexual offences targeting young victims whose innocence of childhood are exploited must be dealt with a stern hand.

It noted that “the age of a victim can be determined by any of the modes available under law and not necessarily only as per the JJ Act of 2015”.

Findings

• Sexual offences targeting young victims whose innocence of childhood are 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.
• There are no reasons to disbelieve the prosecution witnesses. No significant inconsistency has also been brought out through their cross-examination.
• The victim’s testimony was unwavering, free from any embellishments, medically corroborated and even supported by the evidence of other witnesses.

• The substantive evidence available indicates that the accused had committed penetrative sexual assault/raped the victim, repeatedly.
• 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 age of a victim can be determined by any of the modes available under law and not necessarily only as per the JJ 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.
• The victim had specifically deposed her date of birth. The said deposition was not challenged at all and no questions were even put to the said witness regarding her age.
• In the statement under section 313 of CrPC, the accused had not disputed the age of the victim specifically.

Background

• The prosecution alleged that the accused raped a minor girl in her house.
• After analysing the evidence adduced, the trial court found the accused guilty under section 376(2)(i) (rape with woman under 16 years) and 376(2)(n) (repeated rape with same woman) of the Indian Penal Code, 1860 and section 6 (aggravated penetrative sexual Assault) r/w section 5(l) of the Protection of Children from Sexual Offences Act, 2012.
• The counsel for the convict submitted that the age of the victim was not proved as per law as the birth certificate did not refer to or identify the victim.
• It was submitted that it mentions only the name of the victim’s parents and argued that the said birth certificate could possibly relate to the sister of the victim. Therefore, the accused sought the benefit of doubt.