‘Young boys in consensual relationship often bear brunt of POCSO’: Madras High Court acquits youth

The court, therefore, issued directions to the Tamil Nadu government with the aim to give “wide publicity of the POCSO Act” and its rigours to help control the law’s misuse.

‘Public awareness’

• Immediate and positive steps to comply with Section 43 of the POCSO Act, in order that awareness is created in the general public, children and parents on the uncompromising provisions of the Act.
• Consider conducting camps in government schools and colleges, for creating awareness about the POCSO Act and its dire consequences.
• The chief secretary of the state shall at his discretion, consider conducting similar camps/seminars in private schools and colleges.

‘Love for the girl’

• The prosecution alleged that the appellant had developed acquaintance with the victim girl aged 16.
• Subsequently, the appellant conveyed his love for the girl and his desire to marry her.
• It was alleged that the victim told the appellant that her parents planned for her marriage against her willingness. Later, the appellant allegedly insisted the victim leave her parental home so as to get married to him.
• The girl stated that soon after her marriage wand till his arrest, the accused repeatedly committed sexual assault on her.
• Following this a complaint was lodged and an FIR came to be registered against the appellant in 2018.
• On completion of the trial, the appellant was found guilty of offences under Section 366 (kidnapping) of IPC and Section 5(I) (aggravated sexual assault) read with 6 of POCSO Act.
• Feeling aggrieved by the order of conviction, he approached the high court.

‘Non-production of primary evidence’

• The survivor was aged about 16 years and the appellant was 17 years old.
• To prove the age of the survivor, xerox copy of birth certificate and transfer certificate were filed through the survivor girl.
• Based on the aforesaid documents, the age of the victim was determined and the proceedings under the POCSO Act commenced.
• Non production of originals of the documents have not been explained. The victim, who was examined categorically stated that the originals of documents were available.
• It is a settled legal proposition that secondary evidence can be admitted only if proper and justifiable explanation is offered for non production of the primary evidence.
• Secondary evidence is inadmissible until the non-production of the original is accounted for in a manner that brings the case within the specific exceptions provided in Section 65.
• The primary evidence being the best evidence and admittedly available, ought to have been produced.
• If the xerox copy of birth certificate and transfer certificate are discarded, then the prosecution’s case falls to the ground, since the foundational fact regarding the age of the victim stands unproved.
• The appeal deserves to be allowed on this short ground.