Prosecution can establish the age of the victim through reliable oral testimonies, such as those from the victim and her mother, even if specific documentary evidence under the PoCSO Act is absent.

JUDGMENT :

A.BADHARUDEEN, J.

Sole accused in S.C.No.551/2014 on the files of the Special Court under the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the PoCSO, Act’ hereinafter), Ernakulam, has filed this appeal challenging conviction and sentence imposed by the Special Court against him in the above case, as per judgment dated 26.08.2015. Respondent herein is the State of Kerala.

2. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor. Perused the judgment under challenge.

3. Here, the prosecution alleges commission of offences punishable under Section 7 r/w Section 8 of the PoCSO Act as well as under Section 354 of the Indian Penal Code (for short, ‘the IPC ’ hereinafter), by the accused.

4. The prosecution case is that the accused herein brought the de facto complainant to the cabin room of security personnel at 6.00 p.m. on 19.05.2014 while she was playing along with others and subjected her to sexual molestation.

5. The learned Special Judge proceeded with trial and recorded evidence. PW1 to PW7 were examined and Exts.P1 to P5 were marked on the side of the prosecution. DW1 was examined on the side of the defence. Thereafter, the learned Special Judge found that the accused committed offences punishable under Section 7 r/w Section 8 of the PoCSO Act as well as under Section 354 of the IPC and he was sentenced as under:

“The accused is sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.5,000/- (Rupees Five thousand only) u/s. 7 r/w. 8 of the Protection of Children from Sexual Offenses (POCSO) Act, 2012. In default of payment of the fine amount, the accused shall undergo rigorous imprisonment for another one month. Set off allowed. In view of s. 42 of the Protection of Children from Sexual Offenses (POCSO) Act, 2012., no separate sentence is imposed on the accused for the offense punishable u/s. 354 of IPC ., as the punishment provided u/s. 354 is lesser in degree when compared with s.8 of the Protection of Children from Sexual Offenses (POCSO) Act, 2012. The fine amount, if realized will be paid to the victim, PW.5 as compensation u/s.357(1) of Cr.p.c.”

6. While challenging the verdict impugned, the learned counsel for the appellant/accused raised a pertinent legal question. According to him, in the instant case, the prosecution has failed to establish the age of the victim by convincing evidence, which is elementary in PoCSO Act offences, and therefore, the learned Special Judge went wrong in finding that the accused committed the offence under the PoCSO Act. According to the learned counsel, rather than the version of the victim examined as PW5, and the mother of the victim examined as PW2, no other evidence adduced to prove the age of the victim. The learned counsel also argued that the place of occurrence also not proved and PW1 did not state the place of occurrence during chief examination and the same was brought out during re-examination. Accordingly, the ingredients to attract the offence under the PoCSO Act, have not been established.

7. The learned counsel for the appellant/accused placed decision of the Apex Court in Yuvaprakash P v. State rep. by inspector of police reported in [2023 KHC 6709] with reference to paragraph Nos.16 and 19, where the Apex Court considered the evidence required to prove the age of the victim in PoCSO Act cases and held as under:

“16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this Court held in Sanjeev Kumar Gupta v. The State of Uttar Pradesh and Ors. (2019( 9) SCR 735) t