Proof of victim's age and absence of adult consent are fundamental to establishing sexual assault under POCSO, as the law protects minors regardless of purported consensual relationships.

JUDGMENT :

BISWANATH SOMADDER, CJ.

1. The instant Criminal Appeal arose in respect of a judgment and order dated 29^th November, 2023, rendered by the learned Special Judge (POCSO Act, 2012), Gangtok, Sikkim in S.T. (POCSO) Case No. 51 of 2021, whereby the appellant, Bickey Pariyar alias Darjee, was convicted of an offence committed under section 4(2) of the Protection of Children from Sexual Offences Act, 2012 (for short, "the POCSO Act, 2012") and sentenced with simple imprisonment for a term of 20 years and to pay a fine of Rs.2,000/- (Rupees two thousand only), with a default stipulation.

2. A Division Bench of this Court heard the instant criminal appeal, being Crl. A. No. 03 of 2024. The Division Bench rendered two separate judgments on 05^th March, 2025. One of the Hon’ble Judges (Meenakshi Madan Rai, J.) acquitted the convict (being the appellant herein) and the other Hon’ble Judge (Bhaskar Raj Pradhan, J.) upheld the judgment and order of conviction rendered by the learned Special Judge (POCSO Act, 2012). This has resulted in a divergence of views and in such circumstances, the matter was referred before this Bench for a final decision on the issue.

3. Since the facts of the case have already been elaborately discussed in the two judgments dated 05^th March, 2025, only in order to avoid prolixity, this Bench does not dwell upon the same while rendering its opinion in the matter.

4. A careful reading of both judgments reveals the following:-

One of the Hon’ble Judges (Meenakshi Madan Rai, J.) has held that the prosecution has failed to establish that the victim was a minor or that the appellant had forcefully sexually assaulted her or coerced her into a sexual relationship. The other Hon’ble Judge (Bhaskar Raj Pradhan, J.), disagreed with the aforesaid findings and recorded his dissent in a separate judgment, which followed the first judgment of acquittal rendered in the matter.

5. Before analysing the two judgments and coming to a final decision in the matter, this Court hastens to state at the very outset that the principles of justice require not only procedural fairness but also a substantive fidelity to the protective arms of criminal statutes, particularly those designated to safeguard the vulnerable sections of society. The POCSO Act, 2012, was enacted with an uncompromising object to criminalise sexual activity with children — irrespective of consent — in recognition of their vulnerability and incapacity to give lawful consent.

6. In the light of the above principles, this Court will now proceed to dwell upon and analyse the evidence with regard to the age of the victim and whether the same was conclusively proved. The first and most critical element in any POCSO case is the determination of the victim’s age. The prosecution, in the facts of the instant case had presented the following evidence before the learned Trial Court: -

(i) Birth Certificate (Exhibit P-2)

(ii) Attested copy of School Admission Register (Exhibit P-11)

(iii) Victim’s own testimony (PW-1), corroborated by her mother (PW-2).

7. In this regard, one of the Hon’ble Judges (Meenakshi Madan Rai, J.) has come to a conclusion that it could not be said that the age of the victim has been proved beyond reasonable doubt and on this aspect she was constrained to differ with the findings of the learned Trial Court, which, while relying on the birth certificate and the testimony of PW-2, concluded that the victim was a minor. In this regard, the Hon’ble Judge (Meenakshi Madan Rai, J.) has observed, inter alia, as follows: -

“11. In a case like the present one, it is absolutely imperative that the Pr