1. Consensual physical relationship between an adult and a minor — Conviction under POCSO Act for aggravated penetrative sexual assault. (Para 1 , 2 )
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2026 Supreme(Sikk) 51
THE HIGH COURT OF SIKKIM: GANGTOK
A. Muhamed Mustaque, C.J., Bhaskar Raj Pradhan, J.
Bishnu Chettri Alias Aditya - Appellant
Versus
State of Sikkim. - Respondent
Criminal Appeal No. 18 of 2025
Decided On : 23-09-2026
Important Points
Statutory records, including birth certificates and hospital live birth registers created *ante litem motam*, carry a presumption of correctness under Section 35 of the Indian Evidence Act and are admissible as proof of a victim's minority under the POCSO Act.
Subject
Criminal Law - POCSO Act
Act Referred
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT: S.2(d), S.5(j)(ii), S.6
CRIMINAL PROCEDURE CODE: S.313
REGISTRATION OF BIRTHS AND DEATHS ACT: S.12, S.16
SIKKIM REGISTRATION OF BIRTHS AND DEATHS RULES: R.13, R.8
EVIDENCE ACT: S.35
CRIMINAL PROCEDURE CODE: S.313
REGISTRATION OF BIRTHS AND DEATHS ACT: S.12, S.16
SIKKIM REGISTRATION OF BIRTHS AND DEATHS RULES: R.13, R.8
EVIDENCE ACT: S.35
Headnote
(A) Protection of Children from Sexual Offences Act, 2012 - Sections 2(d), 5(j)(ii), 5(l), and 6 - Establishment of minority of the survivor - Prosecution’s burden to prove the victim was a child - Original birth certificate, being a public document, carries a presumption of correctness (Paras 18, 19).
(B) Indian Evidence Act, 1872 - Section 35 - Statutory registers - Live Birth Register maintained by hospitals under the Registration of Births and Deaths Act, 1969 - Entries made *ante litem motam* are admissible and carry a presumption of correctness (Para 20).
Facts of the case:
An accused entered into a romantic and consensual physical relationship with a female student who later eloped with him. The relationship resulted in the birth of a daughter. The accused was prosecuted and convicted by a Special Judge under the POCSO Act on the basis that the survivor was a child at the time of the offense.
Findings of Court:
The court held that the minority of the survivor was established through the production of the original birth certificate, the school admission register, and the hospital's live birth register, all of which recorded the same date of birth. Forensic evidence further confirmed the biological paternity of the accused.
Issues: Whether the prosecution had established the minority of the survivor beyond reasonable doubt to justify conviction under the POCSO Act.
Ratio Decidendi: Birth certificates and hospital live birth registers created in the ordinary course of business and *ante litem motam* are statutory records that carry a presumption of correctness under Section 35 of the Indian Evidence Act, 1872. Such documents, when corroborated by school records and testimony, are sufficient to prove the age of a child under the POCSO Act. (Paras 18-20).
Result: Sentence confirmed.
(B) Indian Evidence Act, 1872 - Section 35 - Statutory registers - Live Birth Register maintained by hospitals under the Registration of Births and Deaths Act, 1969 - Entries made *ante litem motam* are admissible and carry a presumption of correctness (Para 20).
Facts of the case:
An accused entered into a romantic and consensual physical relationship with a female student who later eloped with him. The relationship resulted in the birth of a daughter. The accused was prosecuted and convicted by a Special Judge under the POCSO Act on the basis that the survivor was a child at the time of the offense.
Findings of Court:
The court held that the minority of the survivor was established through the production of the original birth certificate, the school admission register, and the hospital's live birth register, all of which recorded the same date of birth. Forensic evidence further confirmed the biological paternity of the accused.
Issues: Whether the prosecution had established the minority of the survivor beyond reasonable doubt to justify conviction under the POCSO Act.
Ratio Decidendi: Birth certificates and hospital live birth registers created in the ordinary course of business and *ante litem motam* are statutory records that carry a presumption of correctness under Section 35 of the Indian Evidence Act, 1872. Such documents, when corroborated by school records and testimony, are sufficient to prove the age of a child under the POCSO Act. (Paras 18-20).
Result: Sentence confirmed.
Legal Category Hierarchy
-
crime and sentencing
-
offences against the person
-
sexual offences
- aggravated penetrative sexual assault
-
sexual offences
-
offences against the person
- practice and procedure
Advocates Appeared:
For the Appellant :Ms. Gita Bista, Advocate (Legal Aid Counsel)
For the Respondent: Ms. Pema Bhutia, Assistant Public Prosecutor
For the Appellant :Ms. Gita Bista, Advocate (Legal Aid Counsel)
For the Respondent: Ms. Pema Bhutia, Assistant Public Prosecutor
Table of Contents
2. Appellant argued minority of survivor not proved; prosecution submitted age was established beyond reasonable doubt. (Para 6 , 7 )
3. Birth certificate, school register, and live birth register consistently showed survivor's date of birth as 01.05.2007, proving minority. (Para 18 , 19 , 20 )
4. A birth certificate under the Registration of Births and Deaths Act is a public document with a presumption of correctness. (Para 18 , 20 )
5. Appeal dismissed; conviction and sentence of 20 years rigorous imprisonment with fine confirmed. (Para 21 , 24 )
6. How is the age of a minor victim proved under the POCSO Act?
Age is proved by the original birth certificate, which is a public document with a presumption of correctness under the Registration of Births and Deaths Act. (Para 18 , 19 , 20 )
7. What is the evidentiary value of a live birth register entry?
It is a statutory register maintained under section 16 of the Registration of Births and Deaths Act and carries a presumption of correctness under section 35 of the Indian Evidence Act. (Para 20 )
8. Can a consensual romantic relationship justify a reduction of the minimum sentence under the POCSO Act?
No, the court cannot reduce the minimum sentence of 20 years under section 6 of the POCSO Act as it lacks plenary powers to interfere with the conviction. (Para 23 , 24 , 25 )
JUDGMENT :
Bhaskar Raj Pradhan, J.
1. P.W.6 (the survivor) was a student of Class VIII in a Senior Secondary School. She met the accused in their village in October, 2021. He had come there to work as a mason. They developed romantic relationship and started meeting frequently. She started frequently staying with the accused in his rented room. In 2022 she eloped with the accused and came to Gangtok where they stayed together and had physical relationship. This is the survivor (P.W.6’s) version in her deposition, which was not disputed by the survivor (P.W.6) when she was cross-examined. The survivor (P.W.6), however, admitted that the accused had applied “sindoor potey” on her as a symbol of marriage and physical relationship between them was consensual.
2. The criminal prosecution was initiated by P.W.2 (the survivor’s sister) on her return from Agra on 20.12.2022 when she did not find the survivor (P.W.6) at home. After an inquiry, she learnt that the survivor (P.W.6) had eloped with a boy. She informed the police station regarding the same and on the next day lodged the First Information Report (the FIR) (exhibit P3/P.W.2) dated 22.12.2022.
3. The FIR led to investigation conducted by Sovit Khatri Chettri (P.W.10) (the investigating officer) who filed the charge sheet on 20.02.2023 under section 5 (j) (ii) punishable under section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act) against the accused.
The Charges
4. Two charges were framed by the learned Special Judge on 31.03.2023 against the accused under section 5(j) (ii) and 5(l) both punishable under section 6 of the POCSO Act. The accused pleaded not guilty and claimed trial.
5. During the trial 10 witnesses were examined by the prosecution including the Investigating Officer (P.W.10).
Submissions
6. Ms Geeta Bista, learned Counsel for the appellant contends that the prosecution failed to establish the minority of the survivor (P.W.6). It is submitted that the prosecution failed to establish who had informed the Registering Authority about the survivor’s age. She further contends that the survivor (P.W.6’s) parents having not being examined, the age of the survivor (P.W.6) has not been proved as is required to be proved in a criminal prosecution.
7. Ms Pema Bhutia, learned Assistant Public Prosecutor on the other hand submits that the impugned judgment rendered by the learned Special Judge calls for no interference as the prosecution has been able to prove the ingredients of the offences charged as well as the minority of the survivor (P.W.6) beyond reasonable doubt.
Birth Certificate of the Survivor
8. To establish that the survivor (P.W.6) was a child as defined under section 2(d) of the POCSO Act the prosecution exhibited the birth certificate (exhibit P2/P.W.2) which was proved by the survivor’s sister (P.W.2) who was 22 years of age. She deposed that the survivor (P.W.6) was born on 01.05.2007 and identified her birth certificate (exhibit P2/P.W.2). The defence did not even question the P.W.2’s deposition that the survivor (P.W.6) was born on 01.05.2007 and that exhibit P2/P.W.2 produced in the original was the survivor (P.W.6’s) birth certificate.
9. The survivor (P.W.6) deposed on 19.03.2024 that she was studying in class X and her date of birth was 01.05.2007. She also identified her birth certificate (exhibit P2/P.W.2). The defence did not question these assertions of the survivor (P.W.6) as well. The birth certificate (exhibit P2/P.W.2) was seized by the Investigating Officer (P.W.10) vide seizure memo (exhibit P5/P.W.3) in the presence of two witnesses one of whom i.e. P.W.3 was examined by the prosecution who proved the seizure of the birth certificate from the survivor (P.W.6’s) father.
School Admission Register
10. The Principal of the Government Senior Secondary School (P.W.4) where the survivor (P.W.6) had earlier studied deposed that the School Admission Register (exhibit P8/P.W.4) which was produced in the original also recorded her dat
