The POCSO Act prohibits any sexual activity with a minor, regardless of claims of consent, emphasizing the importance of age determination through reliable documents.

JUDGMENT :

(G. JAYACHANDRAN, R. POORNIMA, JJ.)

This Criminal Appeal is filed against the conviction and sentence passed against the appellant/sole accused in the judgment dated 26.10.2021 passed by the Sessions Judge, Mahila Court, Pudukkottai, in Spl.S.C.No.10 of 2018 by convicting and sentencing the appellant for the offences punishable under Sections 5(1), 5(j)(ii) r/w.6 of POCSO Act 2012 and sentenced him to undergo imprisonment for life and to pay a fine of Rs.50,000/- in default, to undergo one year simple imprisonment.

2. The case of the prosecution is that the victim girl whose father was away from the home for his avocation, was being enticed by the accused with sweet words and being repeatedly exploited the carnal relationship as led to the pregnancy of the victim girl who was a minor, at that time point of time. The parents came to know about the pregnancy and thereafter, had sought criminal law into motion by way of a complaint, dated 27.02.2018.

3. The Investigation Officer had arranged for recording the statement of the victim girl under Section 161 Cr.P.C., and thereafter, proceeded further and filed a final report against the appellant herein for having aggravated sexual offence with the minor girl.

4. Based on the materials placed, the Sessions Court framed charge under Section under Section 5(1), 5(j)(ii) r/w.6 of POCSO Act 2012 and tried the accused.

5. To substantiate the charges, prosecution marshalled 9 witnesses, 9 exhibits and the video recording of the victim statement marked as M.O.1. In defence side, the accused has examined 3 witness and no document was let in. The DNA report was marked as Ex.X1.

6. The Trial Court having found that pending trial after the child birth the accused himself has taken out an application to subject himself, mother and the child for DNA test to disprove the paternity. Unfortunately, in this case, the DNA report had disclosed that the appellant is the biological father of the child. As a result, taking note of the school certificate of the victim girl which discloses her date of birth as 19.11.2001. On the date of alleged occurrence, she was below 18 years old minor child as per POCSO offence and the trial Court had convicted him for offence under Section 5(1), 5(j)(ii) r/w.6 of POCSO Act , 2012 and sentenced him to undergo imprisonment for life.

7. The learned counsel appearing for the appellant submitted that the true age of the victim girl has not been established by the prosecution. The victim girl was in fact major at the time of accident and it was a consensual sex between two adolescent. The admission of the minor girl in the cross examination regarding her affair with the appellant with consent being cited as a ground to challenge the conviction and sentence.

8. The learned counsel for the appellant vehemently argued that the case of consensual sex between two adolescent persons, particularly, when the age of the girl is doubtful and there is every possibility that she was major, the rigor of POCSO offence cannot be clamped on the accused.

9. The learned counsel referring to the School Leaving Certificate marked as Ex.P.8 and Transfer Certificate marked as Ex.P.9 vis-a-vis the cross examination of P.W.1, the father of the victim as well as P.W.9 the Headmistress of the school submitted that there is sufficient doubt regarding the authenticity of the date of birth mentioned in the School Leaving Certificate and Transfer Certificate. Therefore, she would submit that it is not an offence punishable under the POCSO Act in any event and being a consensual sex even IPC offence under Section 376 IPC will not attract.

10. Per contra, the Additional Public Prosecutor submitted that as far as ascertaining the age of the minor girl, it is a settled principle of law that most authenticated document is the School Certificate. In this case, the prosecution has collected the School Leaving Certificate of the victim as well as the Transfer Certificate. The same has been proved through P.W.9