Shiva Vs State of Hp

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2025:HHC:28138

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Appeal No.28 of 2024 Reserved on: 31.07.2025 Date of Decision: 20.08.2025

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Shiva ...Appellant

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Versus State of H.P. ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ Yes For the Appellant : Ms. Shrishti Chauhan, Advocate. For the Respondent/State : Mr. Jitender K. Sharma, Additional Advocate General.

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Rakesh Kainthla, Judge

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The present appeal is directed against the judgment and order dated 10.08.2023, passed by learned Additional Sessions Judge, Fast Track Special Court (POCSO), Kangra, at Dharmshala, H.P. (learned Trial Court), vide which the appellant (accused before learned Trial Court) was convicted of the commission of offences punishable under Sections 363, 366 and

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506 of the Indian Penal Code (IPC) and Section 4 of the

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Protection of Children from Sexual Offences Act (POCSO Act) and

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was sentenced as under:

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Under IPC	Section 363 of the	To undergo simple imprisonment for five years, directed to pay a fine of ₹ 10,000/- and in default of payment of fine to further undergo simple imprisonment for one year.
Under IPC	Section 366 of the	To undergo simple imprisonment for five years, directed to pay a fine of ₹ 10,000/- and in default of payment of fine to undergo further simple imprisonment for one year
Under IPC	Section 506 of the	To undergo simple imprisonment for one year.
Under	Section 4 of POCSO	Sentenced to undergo simple imprisonment for seven years, pay a fine of ₹10,000/- and in default of payment of fine to further undergo simple imprisonment for one year.

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All the substantive sentences of imprisonment were directed to run concurrently. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

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Briefly stated, the facts giving rise to the present appeal are that the police presented a challan before the learned Trial Court for the commission of offences punishable under Sections 363, 366-A, 376 and 506 of the IPC and Section 4 of the POCSO Act. It was asserted that the victim was born on

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25.08.1999. She had passed her 10+2 examination and was undergoing computer training. She left for the Computer Centre on 24.07.2017 at 10:00 a.m., but she did not return. The victim’s mother searched for her, but she could not find her anywhere. It was found that Shiva (appellant/accused) was also missing. Shiva was in contact with the victim, hence, it was suspected that Shiva had kidnapped the victim. An application (Ext.PW-2/A) was filed in the Police Station, and an F.I.R. (Ext.PW-2/B) was registered. SI Balam Ram (PW-14) conducted the investigation. The accused and the victim were produced at the Police Station. SI Balam Ram (PW-14) filed an application (Ext.P1/PW14) for conducting the medical examination of the victim. Dr. Sapna Sharma (PW-5) conducted the medical examination of the victim. She found that the possibility of sexual intercourse could not be ruled out. She advised an X-ray for Radiological age determination. The age of the patient was found to be 20-25 years after the Radiological examination. She issued MLC (Ext.P-2/PW-1). She preserved the samples and handed them over to the police official accompanying the victim. An application (Ext.PW-4/A) was filed for conducting the medical examination of the accused. Dr. Pankaj Saki (PW-4)

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conducted the medical examination of the accused and found that there was nothing to suggest that the accused was incapable of performing sexual intercourse. He preserved the samples and handed them over to the police official accompanying the accused. He issued MLC (Ext.PW4/B). SI Balam Ram (PW-14) filed an application (Ext. Ext.P2/PW14) before the learned Judicial Magistrate, Kangra, for recording the statement of the victim under Section 164 of Cr.P.C. Learned Judicial Magistrate First Class, Kangra, recorded the victim’s statement (Ext.P5/PW1). The accused identified the house where he had stayed with the victim. The police seized the bed-sheet, which was put in a cloth parcel, and the parcel was sealed with seven seals of seal ‘A’. The parcel was seized vide memo (Ext.P3/PW14). Sample seal (Ext.P4/PW14) was taken on a separate piece of cloth. Site plan (Ext.P5/PW14) was prepared. S.I. Balam Ram (PW-14) filed an application (Ext.P1/PW9) before Civil Hospital, Nagrota Bagwan, for taking the blood sample of the accused on an FTA card for DNA profiling. Dr. Nishant Nayyar (PW-9) obtained the blood sample on an FTA card. He issued MLC (Ext.P2/PW9). SI Balam Ram (PW-14) filed an application for obtaining the victim’s date of birth certificate and

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2025:HHC:28138 obtained an abstract of the Birth and Death Register (Ext.P2/PW13). The date of Birth Certificate of the victim (Ext.P-3/PW-13) was issued by the Gram Panchayat. Copy of the matriculation certificate (Ext.P8/PW1) was obtained. An application (Ext.P6/PW5) was filed in Civil Hospital, Nagrota Bagwan, for obtaining the blood sample of the victim on an FTA card. Dr. Radhika (PW-12) obtained the blood sample of the victim on an FTA card. She issued MLC (Ext.P2/PW12). Samples and FTA cards were sent to the State Forensic Science Laboratory (SFSL), Junga, for analysis. Report (Ext.P1/PW20) was issued stating that blood was found in traces in the vaginal swab and vaginal slide of the victim, but these were insufficient for serological examination. Human blood and human semen were detected in the underwear of the victim. Report (Ext.P1/PW19) was issued, in which it was mentioned that the DNA profiles obtained from the victim’s underwear matched completely with the DNA profiles obtained from the victim and the accused. The statements of the remaining witness were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court.

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Learned Trial Court charged the accused with the

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commission of offences punishable under Sections 363, 366 and 506 of IPC and Section 4 of POCSO Act, to which the accused pleaded not guilty and claimed to be tried.

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The prosecution has examined twenty witnesses to prove its case. Victim (PW-1) narrated the incident. Mother of the victim (PW-2) made a complaint to the police. Bablu (PW-3) brought the victim and the accused to the Police Station. Dr. Pankaj Saki (PW-4) conducted the medical examination of the accused. Dr. Sapna Sharma (PW-5) conducted the medical examination of the victim. Constable Ashwani Kumar (PW-6) accompanied the accused to the hospital and brought the samples to the Police Station. He also collected the samples from SFSL, Junga. HC Pankaj (PW-7) carried the samples to the State Forensic Science Laboratory (SFSL), Junga. HC Raju Dhiman (PW-8) was posted as MHC with whom the case property was deposited. Dr. Nishant Nayyar (PW-9) obtained the blood sample of the accused on the FTA card. Raman Kumar (PW-10) developed the photographs. Brother of the victim (PW-11) and aunt of the victim (PW-15) narrated the circumstances in which the victim was found missing and recovered. Dr. Radhika (PW-

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obtained the blood sample of the victim on the FTA card. Shashank Sahi (PW`13) produced the abstract of the birth and death register. SI Balam Ram (PW-14) investigated the case. Sumna Kumari (PW-16) is the owner of the house where the accused and the victim resided together. Victim’s uncle (PW-17) is the witness to the recovery of the bedsheet. Inspector Bharat Bhushan (PW-18) proved that the DNA forms were filled by SHO Nirmal. Dr. Arun Sharma (PW-19) was posted as a Director SFSL at Junga and issued the report of DNA profiling. Ajay Kumar Sehgal (PW-20) was posted as a Scientific Officer at RFSL Dharamshala and issued the report of analysis.

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The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution's case in its entirety. He claimed that he was innocent. No defence was adduced by the accused.

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Learned Trial Court held that the statement of the

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victim was duly corroborated by the report of the analysis. There was a discrepancy in her date of birth recorded in different documents and the ossification test, but this discrepancy was not material. The victim specifically stated that the accused

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threatened her and took her with him. Hence, the accused was convicted and sentenced as aforesaid.

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Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Trial Court, the accused filed the present appeal, asserting that the learned Trial Court ignored the material contradictions/discrepancies in the prosecution's case. The victim accompanied the accused to his maternal uncle’s house, and she falsely implicated the accused. The victim disclosed to the maternal uncle and aunt of the accused that she was a major and had solemnised marriage with the accused. Pariwar Regiser showed the date of birth of the victim as 01.01.1999, which established that the victim was a major on the date of the incident. The matriculation certificate showed her date of birth as 25.08.1999. The ossification test placed her age between 20-25 years. There were discrepancies in the date of the birth of the victim, and the benefit of the same should have been extended to the accused. The matter was reported to the police after a considerable delay. The victim could not have been taken forcibly in a bus, and the findings to this effect recorded by the learned Trial Court are incorrect. The witnesses made improvements in their testimonies. Therefore, it was prayed that

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the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

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I have heard Ms. Shrishti Chauhan, learned counsel for the appellant and Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent /State.

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Ms. Shrishti Chauhan, learned counsel for the appellant, submitted that the victim was the adopted girl. There were discrepancies in her date of birth recorded in the matriculation certificate and the birth certificate. The names of adoptive parents were mentioned on the date of birth certificate instead of the biological parents, which created doubt regarding the authenticity of the date of birth certificate. The ossification test put her age between 20-25 years. Pariwar register also showed that the victim was a major on the date of the incident. The victim voluntarily accompanied the accused. She disclosed herself to be the wife of the accused. All the circumstances show that the relationship between the parties was consensual, and the accused was falsely implicated. Hence, she prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. She relied upon the

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judgment of this Court in Ranveer Singh vs State of H.P. 2024:HHC:16944 in support of her submission.

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Mr. Jitender K. Sharma, learned Additional Advocate General, submitted that the matriculation certificate will prevail over the other certificates produced by the prosecution. The learned Trial Court had rightly held that the ossification test was not required to be conducted when the matriculation certificate and the date of birth certificate fixed the age of the victim with certainty. The victim was a minor and incapable of consent; therefore, the plea taken by the accused that the victim had consented is not sustainable. The version of the victim that she was raped was duly corroborated by the medical evidence and the result of the analysis. There is no infirmity in the judgment and order passed by the learned Trial Court, hence, he prayed that the present appeal be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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It was laid down by the Hon’ble Supreme Court in Jarnail Singh versus State of Haryana (2013) 7 SCC 263 that the provisions of the Juvenile Justice Act (JJ Act) should be followed

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to determine the age of the victim under the POCSO Act. It was

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observed:

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“23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with the law, we are of the view that the aforesaid statutory provision should be the basis for determining the age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of the minority is concerned between a child in conflict with the law and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has an overriding effect over an option expressed in a subsequent clause. The highest-rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), the matriculation (or equivalent) certificate of the child concerned is the highest-rated option. In case the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such an entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation, a municipal authority, or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid that Rule 12(3) postulates the

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determination of the age of the child concerned on the basis of medical opinion .

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24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW, PW 6, could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied up to Class 3 only, and thereafter, had left her school and had started to do household work. The prosecution, in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW, PW 6, on the next available basis in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW 4) to prove the age of the prosecutrix, VW, PW 6. Satpal (PW 4) was the Head Master of Government High School, Jathlana, where the prosecutrix VW, PW 6, had studied up to Class 3. Satpal (PW 4) had proved the certificate Ext. PG, as having been made on the basis of the school records, indicating that the prosecutrix, VW, PW 6, was born on 15-5-1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are, therefore, of the view that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW, PW 6. It would also be relevant to mention that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High Court to rely on any other material, including the ossification test, for determining the age of the prosecutrix VW, PW 6. The deposition of Satpal, PW 4, has not been contested. Therefore, the date of birth of the prosecutrix VW, PW 6 (indicated in Ext. PG as 15-7-1977) assumes finality. Accordingly, it is clear that the prosecutrix VW, PW 6, was less than 15 years old on the date of occurrence, i.e. on 25-3-1993. In the said view of the matter, there is no room for any doubt that the prosecutrix VW, PW 6, was a minor on the date of occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court that even if the prosecutrix VW, PW 6, had accompanied the appellant-accused Jarnail Singh of her own free will and had had consensual sex with him, the same would have been

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2025:HHC:28138 clearly inconsequential, as she was a minor.” (Emphasis supplied)

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Thus, the provisions of Rule 12 have to be applied to determine the age of the victim.

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It was held in Sanjeev Kumar Gupta versus State of U.P.& Ors (2019) 12 SCC 370 that Rule 12 (3)(a) provides that a matriculation certificate, if available, in its absence date of Birth certificate from the school first attended and in their absence the birth certificate given by the Corporation Municipal Authority or Panchayat would be considered. These are in hierarchical order. Thus, where a matriculation certificate is available, the birth certificate from the school and the birth certificate given by the Corporation cannot be relied upon. It was observed:

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“12. Clause ( a ) of Rule 12(3) provides that for the purpose of seeking evidence in the enquiry, the following documents would have to be obtained:

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( i ) matriculation or equivalent certificate if available;

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( ii ) in the absence of ( i ), the date of birth certificate from the school first attended; and

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( iii ) in the absence of ( i ) and ( ii ), the birth certificate given by a corporation, municipal authority or panchayat.

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Clause ( a ) of Rule 12(3) contains a hierarchical ordering, evident from the use of the language “in the absence whereof”. This indicates that where a matriculation or equivalent certificate is available, the documents adverted

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to in ( ii ) and ( iii ) cannot be relied upon. The matriculation certificate, in other words, is given precedence. It is in the absence of a matriculation certificate that the date of birth certificate of the school first attended can be relied upon. It is in the absence of both the matriculation and the birth certificates of the first school attended that a birth certificate issued by the corporation, municipal authority or panchayat could be obtained. This facet of Rule 12(3) was noticed in the two-judge Bench decision of this Court in Ashwani Kumar Saxena [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750: (2013) 1 SCC (Cri) 594 ].

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13. K.S.P. Radhakrishnan, J. while holding that the procedures laid down in CrPC cannot be imported while making an enquiry in regard to a claim of juvenility under the 2007 Rules observed: ( Ashwani Kumar Saxena case [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750 : (2013) 1 SCC (Cri) 594 ], SCC pp. 763-64, para 32)

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“ 32 . “Age determination inquiry”, contemplated under Section 7-A of the Act, read with Rule 12 of the 2007 Rules, enables the court to seek evidence, and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended, other than a play school. Only in the absence of a matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining a medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case an exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by

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considering his or her age on the lower side within the margin of one year.”

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The Court took notice of the fact that there could be situations in which the date of birth recorded in the matriculation certificate, or for that matter in the other certificates referred to in Rule 12(3)( a ), may not be correct. The Court held that it was only when those documents are found to be fabricated or manipulated could the date of birth as reflected be discarded. The Court held : ( Ashwani Kumar Saxena case [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750 : (2013) 1 SCC (Cri) 594 ], SCC p. 764, para 34)

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“ 34 . … There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But the court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for a medical report for age determination.”

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In the view of the Court, it was only if the above conditions were fulfilled that a medical report could be called.

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14. The decision in Ashwani Kumar Saxena [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750: (2013) 1 SCC (Cri) 594] was rendered on 13-9-2012. Soon thereafter, a threejudge Bench of this Court considered the provisions of Section 7-A and Rule 12 in Abuzar Hossain [Abuzar Hossain v. State of W.B., (2012) 10 SCC 489: (2013) 1 SCC (Cri) 83] . R.M. Lodha, J. (as the learned Chief Justice then was), speaking for himself and Anil R. Dave, J. observed: ( Abuzar

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Hossain case [Abuzar Hossain v. State of W.B., (2012) 10 SCC 489: (2013) 1 SCC (Cri) 83 ], SCC pp. 509-10, para 39)

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“ 39.3 . As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued, nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)( a )( i ) to ( iii ) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not, by itself, be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents, like the school-leaving certificate or the voters' list, etc., obtained after conviction would depend on the facts and circumstances of each case, and no hard-andfast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh [Akbar Sheikh v. State of W.B., (2009) 7 SCC 415 : (2009) 3 SCC (Cri) 431] and Pawan [Pawan v. State of Uttaranchal, (2009) 15 SCC 259 : (2010) 2 SCC (Cri) 522] these documents were not found prima facie credible while in Jitendra Singh [Jitendra Singh v. State of U.P., (2010) 13 SCC 523 : (2011) 1 SCC (Cri) 857] the documents viz. school-leaving certificate, mark sheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7- A and order an enquiry for the determination of the age of the delinquent.”

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15. The above decision in Abuzar Hossain [Abuzar Hossain v. State of W.B., (2012) 10 SCC 489 : (2013) 1 SCC (Cri) 83 ] was rendered on 10-10-2012. Though the earlier decision in Ashwani Kumar Saxena [Ashwani Kumar

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Saxena v. State of M.P., (2012) 9 SCC 750 : (2013) 1 SCC (Cri) 594] was not cited before the Court, it appears from the above extract that the three-Judge Bench observed that the credibility and acceptability of the documents, including the school leaving certificate, would depend on the facts and circumstances of each case, and no hardand-fast rule as such could be laid down. Concurring with the judgment of R.M. Lodha, J., T.S. Thakur, J. (as the learned Chief Justice then was) observed that directing an inquiry is not the same thing as declaring the accused to be a juvenile. In the former, the court simply records a prima facie conclusion, while in the latter, a declaration is made on the basis of evidence. Hence, the approach at the stage of directing the inquiry has to be more liberal ( Abuzar Hossain case [Abuzar Hossain v. State of W.B., (2012) 10 SCC 489: (2013) 1 SCC (Cri) 83 ], SCC pp. 513-14, para 48)

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“ 48 . If one were to adopt a wooden approach, one could say nothing short of a certificate, whether from the school or a municipal authority, which would satisfy the court's conscience before directing an enquiry. But then directing an enquiry is not the same thing as declaring the accused to be a juvenile. The standard of proof required is different for both. In the former, the court simply records a prima facie conclusion. In the latter, the court makes a declaration on evidence that it scrutinises and accepts only if it is worthy of such acceptance. The approach at the stage of directing the enquiry has, of necessity, to be more liberal, lest there is an avoidable miscarriage of justice. Suffice it to say that while affidavits may not be generally accepted as a good enough basis for directing an enquiry, that they are not so accepted is not a rule of law but a rule of prudence. The Court would, therefore, in each case weigh the relevant factors, insist upon filing better affidavits if the need so arises, and even direct any additional information considered relevant, including the information regarding the age of the parents, the age of siblings and the like, to be

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furnished before it decides on a case-to-case basis whether or not an enquiry under Section 7-A ought to be conducted. It will eventually depend on how the court evaluates such material for a prima facie conclusion that the court may or may not direct an enquiry.”

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16. Both these judgments have since been considered by a two-judge Bench of this Court in Parag Bhati [Parag Bhati v. State of U.P., (2016) 12 SCC 744 : (2017) 3 SCC (Cri) 819] , where it was observed : (SCC p. 758, para 36)

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“ 36 . It is a settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness of the date of birth, the date of birth mentioned in the matriculation certificate has to be treated as conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand being taken by the accused which raises doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain [Abuzar Hossain v. State of W.B., (2012) 10 SCC 489 : (2013) 1 SCC (Cri) 83] , an enquiry for determination of the age of the accused is permissible which has been done in the present case.”

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17. The 2015 Act came into force on 15-1-2016. Section 111 repeals the earlier 2000 Act but stipulates that despite the repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of the new legislation. Section 94 contains provisions in regard to the determination of age, is in the following terms:

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“ 94. Presumption and determination of age .—(1) Where it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence), that the said person is a child, the Committee or the

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Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age.

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(2) In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination by seeking evidence by obtaining—

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( i ) the date of birth certificate from the school, or the matriculation or equivalent certificate from the Examination Board concerned, if available; and in the absence thereof;

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( ii ) the birth certificate given by a corporation, a municipal authority, or a panchayat;

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( iii ) and only in the absence of ( i ) and ( ii ) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

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Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

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(3) The age recorded by the Committee or the Board to be the age of a person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”

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Clause ( i ) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the Examination Board concerned in the same category [namely ( i ) above]. In the absence thereof, category ( ii ) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of ( i ) and ( ii ) that age determination by means of medical analysis is provided. Section

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94(2)( i ) indicates a significant change over the provisions which were contained in Rule 12(3)( a ) of the 2007 Rules made under the 2000 Act. Under Rule 12(3)( a )( i ), the matriculation or equivalent certificate was given precedence, and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended could be obtained. In Section 94(2)( i ), both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.

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It was held in Rishipal Singh Solanki v. State of U.P. ,

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(2022) 8 SCC 602 that Section 94 of the Juvenile Justice Act, 2015, incorporated the provision of Rule 12 of Juvenile Justice Rules, 2007. The documents mentioned in Rule 12, (3)(a) i, ii, iii, of Juvenile Justice Rules, 2007 or Section 94(2) of Juvenile Justice Act will be prima facie sufficient to prove the age. It was held in Vinod Katara versus State of U.P., 2022 SCC OnLine SC 1204 that clause (a) of Rule 12(3) of 2007 Rules contains a hierarchical order. It was observed:

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48. Clause (a) of Rule 12(3) of the 2007 Rules contains a hierarchical ordering, evident from the use of the language “in the absence whereof”. This indicates that where a matriculation or equivalent certificate is available, the documents adverted to in (ii) and (iii) cannot be relied upon. The matriculation certificate, in other words, is given precedence. It is in the absence of a matriculation certificate that the date of birth certificate of the school first attended can be relied upon. It is in the absence of both the matriculation and the birth certificates of the first school attended that a birth certificate issued by the

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corporation, municipal authority or panchayat could be obtained.

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49. In Shah Nawaz v. State of Uttar Pradesh (2011) 13 SCC 751 , this Court, while examining the scope of Rule 12 of the 2007 Rules, had reiterated that medical opinion from the Medical Board should be sought only when the matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended, or any birth certificate issued by a corporation or a municipal authority or a panchayat or municipality is not available. This Court had held that the entry related to the date of birth entered in the mark sheet is valid evidence for determining the age of the accused person, and also the school leaving certificate for determining the age of the appellant.

¶119

A similar view was taken in P. Yuvaprakash v. State,

¶120

2023 SCC OnLine SC 846, wherein it was observed:

¶121

11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act, which reads as follows:

¶122

“34. Procedure in case of commission of offence by a child and determination of age by the Special Court . - (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).

¶123

(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person, and it shall record in writing its reasons for such determination.

¶124

(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.”

¶125

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12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act 2015 becomes relevant and applicable. That provision is extracted below:

¶128

“94. Presumption and determination of age. - (1) Where it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence), that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

¶129

(2) In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination by seeking evidence by obtaining

¶130

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

¶131

(ii) the birth certificate given by a corporation, a municipal authority, or a panchayat;

¶132

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

¶133

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

¶134

(3) The age recorded by the Committee or the Board to be the age of a person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”

¶135

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¶137

13. It is evident from the conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or his being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order that the Juvenile Justice Act requires consideration are that the concerned court has to determine the age by considering the following documents:

¶138

“(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

¶139

(ii) the birth certificate given by a corporation, a municipal authority, or a panchayat;

¶140

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”.

¶141

14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “ an ossification test ” or “ any other latest medical age determination test ” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate, matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate, showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court-summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have fallen

¶142

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back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar), had stated on oath that the records for the year 1997 with respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i), as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of the commission of the offence.

¶145

15. In a recent decision, in Rishipal Singh Solanki v. State of Uttar Pradesh (2021) 12 SCR 502 , this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia ) with Section 94 of the JJ Act and held as follows:

¶146

“20. Rule 12 of the JJ Rules, 2007, deals with the procedure to be followed in the determination of age. The juvenility of a person in conflict with the law had to be decided prima facie on the basis of physical appearance or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, the benefit could be given to the child or juvenile by considering the age on the lower side within the margin of one year.”

¶147

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 (2019) 9 SCR 735 that :

¶148

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“Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (i) above). In the absence thereof, category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i), the matriculation or equivalent certificate was given precedence, and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended could be obtained. In Section 94(2)(i), both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.

¶151

17. In Abuzar Hossain @ Gulam Hossain v. State of West Bengal (2012) 9 SCR 224 , this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.

¶152

A similar view was taken in Rajni v. State of U.P., 2025

¶153

SCC OnLine SC 1183 , wherein it was observed: -

¶154

21. Let us first deal with the issue of juvenility. The question for consideration is whether the learned Additional District and Sessions Judge and the High Court were justified in holding respondent No. 2 to be a juvenile and whether any interference is called for in such a decision?

¶155

22. Section 68 of the Juvenile Justice (Care and Protection of Children) Act, 2000, empowered the state

¶156

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government to make rules by notification in the official gazette to carry out the purposes of the Juvenile Justice (Care and Protection of Children) Act, 2000 (‘the JJ Act, 2000’). As per the proviso to sub-section (1) of Section 68, the central government was also empowered to frame model rules which would apply to the states also till such time rules were made in that behalf by the concerned state government; and while making any such rules so far as practicable to conform to the model rules framed by the central government.

¶159

23. With a view to provide for better implementation and administration of the provisions of the JJ Act, 2000 in its true spirit and substance, the central government in exercise of the powers conferred by the proviso to sub-section (1) of Section 68 of the JJ Act, 2000 made the Juvenile Justice (Care and Protection of Children) Rules, 2007 (briefly, ‘the JJ Rules, 2007’) laying down the fundamental principles to be applied in the administration of juvenile justice. Rule 12 dealt with the procedure to be followed in the determination of age. As per sub-rule (1), in every case concerning a child or juvenile in conflict with law, the court or JJB or the child welfare committee was required to determine the age of such juvenile or child or a juvenile in conflict with law within a period of 30 days from the date of making of the application for that purpose. As per sub-rule (2), the court or the JJB or the child welfare committee was required to decide the juvenility or otherwise of the juvenile or the child or the juvenile in conflict with law prima-facie on the basis of physical appearance or documents if available and send him to the observation home or to jail, as the case may be.

¶160

23.1. Sub-rule (3) of Rule 12 is relevant. Therefore, the same is extracted hereunder:

¶161

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-

¶162

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(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

¶165

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

¶166

(iii) the birth certificate given by a corporation or a municipal authority, or a panchayat;

¶167

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

¶168

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

¶169

23.2. Thus, sub-rule (3) of Rule 12 provided that the age determination enquiry should be conducted firstly on the basis of matriculation or equivalent certificate. If such a certificate was not available, then the date of birth certificate from the school first attended (other than a play school). In the absence of such a certificate, the birth certificate given by a corporation or a municipal authority or a panchayat should be the basis. Clause (b) of sub-rule (3) made it clear that only in the absence of such certificates as enumerated above, medical opinion would be sought for from a duly constituted medical board, which would declare the age

¶170

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of a juvenile or a child. In case an exact assessment of age could not be done, the court or JJB or the child welfare committee, for the reasons to be recorded, if considered necessary, had the discretion to give benefit to the child or the juvenile by considering his/her age on the lower side within the margin of one year. While passing orders in such a case, evidence as may be available or the medical opinion as provided should be taken into consideration before recording a finding in respect of age.

¶173

24. To consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care etc. by adopting a child friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation etc., the Juvenile Justice (Care and Protection of Children) Act, 2015 (already referred to as the JJ Act, 2015) came to be enacted. Section 111 is the repeal and savings clause. As per sub-section (1), the JJ Act, 2000, was repealed.

¶174

25. Section 94 deals with the presumption and determination of age. Section 94 reads thus:

¶175

94. Presumption and determination of age. —(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age.

¶176

(2) In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process

¶177

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of age determination by seeking evidence by obtaining—

¶180

( i ) the date of birth certificate from the school, or the matriculation or equivalent from the concerned examination Board, if available; and in the absence thereof;

¶181

( ii ) the birth certificate given by a corporation or a municipal authority, or a panchayat;

¶182

( iii ) and only in the absence of ( i ) and ( ii ) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

¶183

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

¶184

(3) The age recorded by the Committee or the Board to be the age of a person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

¶185

25.1. Thus, the process of age determination is provided in sub-section (2) of Section 94, which is identical to the procedure prescribed under sub-rule (3) of Rule 12 of the JJ Rules, 2007. Sub-section (2) of Section 94 says that to undertake the process of age determination, the child welfare committee or the JJB shall seek evidence in the following manner:

¶186

(i) the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned Board, if available;

¶187

(ii) in the absence thereof, the birth certificate given by a corporation or a municipal authority or a panchayat;

¶188

(iii) in the absence of (i) and (ii), the age shall be determined by an ossification test or by any other latest medical age determination test conducted on the orders of the child welfare committee or the JJB.

¶189

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26. Having noticed the relevant legal framework, let us examine as to how the case of respondent No. 2 vis-àvis juvenility was dealt with by the JJB and thereafter by the learned Additional District and Sessions Judge. As already noted above, JJB had held respondent No. 2 to be not a juvenile, which decision was reversed by the learned Additional District and Sessions Judge and affirmed by the High Court.

¶192

27. At this stage, we need to mention that the date of the incident is 17.02.2021. On behalf of respondent No. 2, a certificate from the DPS Higher Secondary School, Parvesh Vihar, Meerut, was filed. The date of admission was mentioned as 04.04.2016. The date of birth of respondent No. 2 was mentioned as 08.09.2003. Respondent No. 2 had passed the high school examination in the year 2018 from the said DPS Higher Secondary School, Parvesh Vihar, Meerut. Thereafter, he was studying at CRK Inter College, Meerut. Therefore, on the date of the incident, respondent No. 2 was below 18 years of age. In the register of DPS Higher Secondary School and the marksheet of the high school examination, the date of birth of respondent No. 2 was mentioned as 08.09.2003. JJB in an earlier proceeding relating to respondent No. 2, i.e. Miscellaneous Case No. 9/2000 in respect of Crime Case No. 11/2000 under Section 307 IPC, Police Station Medical College, Meerut, had accepted the date of birth of respondent No. 2 as 08.09.2003. It is seen that in the present proceeding, JJB examined the mother of respondent No. 2, who had applied to declare her son, respondent No. 2, as a juvenile. JJB observed that she did not remember in which school respondent No. 2 had studied from Class 1 to Class 7 before taking admission in DPS Higher Secondary School in Class 8. In her statement, Principal of DPS Higher Secondary School, Smt. Manju Mala Sharma stated that she had been working in the same school since the year 1996 and asserted that respondent No. 2 had obtained his education from her school from

¶193

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Class 4 to High School, but the original records of Class 4 to Class 8 were not available as those were destroyed due to fire.

¶196

27.1. JJB also rejected the birth certificate of Meerut Municipal Corporation, which showed the date of birth of respondent No. 2 as 08.09.2003 on the ground that it was issued on 08.06.2020.

¶197

27.2. As regards the earlier decision of JJB, it was observed that the present informant was not a party therein. Therefore, she had no opportunity to tender evidence or to rebut the claim of juvenility of respondent No. 2. Thus, the previous decision of JJB was not applicable.

¶198

27.3. It was in that context, JJB passed an order for medical examination of respondent No. 2. In compliance with such an order, the Medical Board submitted a report on 27.07.2021 assessing the age of respondent No. 2 as about 21 years.

¶199

27.4. JJB accepted the medical report dated 27.07.2021, wherein the age of respondent No. 2 was assessed as about 21 years. On that basis, respondent No. 2 was found to be more than 18 years of age on the date of the incident. Thus, respondent No. 2 was held to be an adult as on 17.02.2021, i.e. the date of the incident.

¶200

28. Admittedly, the line of reasoning adopted by the JJB is totally fallacious. When the concerned birth certificate from the school was available as well as the birth certificate issued by the Meerut Municipal Corporation, JJB could not have opted for ossification test. The statute is very clear that only in the absence of the certificates under clause (i) and clause (ii) of subsection (2) of Section 94 can the JJB order for an ossification test or any other medical test to determine the age of the juvenile. The certificate of the Meerut Municipal Corporation was issued on 08.06.2020, before the date of the incident. In any event, it was not open to the JJB to go behind the available school certificate or the birth certificate of the Corporation and

¶201

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record evidence to examine the correctness or otherwise of such certificate. This is not the mandate of Section 94(2) of the JJ Act, 2015. Therefore, the learned Additional District and Sessions Judge was justified in reversing such a decision of the JJB. Learned Additional District and Sessions Judge gave preference to the date of birth of respondent No. 2 mentioned in the high school certificate, wherein his date of birth was mentioned as 08.09.2003. Thus, respondent No. 2 was 17 years, 3 months, 10 days on the date of the incident. Accordingly, he was declared a juvenile delinquent.

¶204

These judgments were followed by this Court in

¶205

Ranveer Singh (supra).

¶206

Therefore, as per Rule 12(3)(a)(ii) of Juvenile Justice, Rule 2007 and Section 94 of the Juvenile Justice Act, 2015, the matriculation certificate or certificate from the school which was first attended by the victim has to be preferred to the birth certificate which falls within Rule 12 (iii)(a) of the Juvenile Justice Rule, 2007 and the ossification test, and the submission regarding the discrepancies in the birth certificate, matriculation certificate and ossification test cannot be accepted.

¶207

Even otherwise, the Pariwar register Mark ‘X’ was not proved before the Court as per law. It is not known on what basis the entry was recorded in it. The entries in the Pariwar Register are suspicious is apparent because the date of birth of all the members has been recorded as 1^st January. It is impossible to

¶208

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believe that five members of the family would have been born on the same date, i.e. first January. Therefore, in the absence of any proof of the authenticity of the entry in the Pariwar Register, the same cannot be relied upon to conclude that the victim was born on 1^st of January.

¶211

It was submitted that the entry in the birth register is suspicious because the names of adoptive parents were mentioned in it and not the names of the biological parents. This submission will not help the accused. The abstract of the birth and death register (Ext.P2/PW13) shows that the victim was born on 25.08.1999, and the date of registration is recorded as 07.09.1999. The victim's mother (PW-2) stated in her crossexamination that the victim was adopted on the day of her birth. She admitted that the victim was 22 days of age when her name was entered in the Pariwar Register. Therefore, the victim had been adopted on the day when her date of birth was recorded in the register of birth and death, and there was nothing unusual in recording the names of adoptive parents in the record of birth and death register instead of the names of biological parents. This entry was recorded after the birth of the victim and much before the present controversy had arisen. Hence, there is no

¶212

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reason to disbelieve the same. Further, the matriculation certificate also shows that the date of birth of the victim as 25.08.1999, which is the same date as was recorded in the register of birth and death. These entries corroborate each other, and there is no reason to disbelieve them. Hence, the learned Trial Court had rightly held that the victim was born on 25.08.1999 and she was a minor on the date of the incident.

¶215

Sumna Kumari (PW-16) stated that the accused and victim came to her house. The victim stated that she had married the accused and she wanted to stay in her house. She admitted in her cross-examination that the victim had a mobile phone and she used to call others. The victim disclosed her age to be 18 years.

¶216

Bablu (PW-3) stated that the victim disclosed that she was a major and she had solemnised her marriage with the accused. She also disclosed that she did not want to go to her home. The testimony of this witness will not help the accused.

¶217

It was submitted that the victim had mentioned her age as 18 years; therefore, the accused cannot be faulted for treating her as a major. This submission will not help the accused. In a classic case of Reg. V. Prince., [L.R.] 2 C.C.R. 154, the

¶218

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prisoner Prince unlawfully took an unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father. The jury found that the girl went with the prisoner willingly; she told the prisoner that she was aged 18 years, and the prisoner believed that she was aged 18 years, and he had a reasonable cause for doing so. It was held that this finding recorded by the jury would not help the prisoner. The act of the prisoner was unlawful per se, and if the girl was found to be less than sixteen years, the representation by the girl or the belief of the prisoner was immaterial. Brett J observed:

¶221

“Upon all the cases, I think it is proved that there can be no conviction for crime in England in the absence of a criminal mind or mens rea. Then comes the question: What is the true meaning of the phrase? I do not doubt that it exists where the prisoner knowingly does acts which would constitute a crime if the result were as he anticipated, but in which the result may not improbably end by bringing the offence within a more serious class of crime. If a man strikes with a dangerous weapon, with the intent to do grievous bodily harm, and kills, the result makes the crime murder. The prisoner has run the risk. So, if a prisoner does the prohibited acts without caring to consider what the truth is as to facts — as if a prisoner were to abduct a girl under sixteen without caring to consider whether she was, in truth, under sixteen — he runs the risk. So if he, without abduction, defiles a girl who is, in fact, under ten years old, with a belief that she is between ten and twelve. If the facts were as he believed, he would be committing the lesser crime. Then, he runs the risk of his crime, resulting in greater crime. It is clear that

¶222

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ignorance of the law is not an excuse. It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present to the prisoner's mind, and which he has reasonable ground to believe and does believe to be the facts, would, if true, make his acts no criminal offence at all.

¶225

25. Blackburn J observed:

¶226

“It seems impossible to suppose that the intention of the legislature in those two sections could have been to make the crime depend upon the knowledge of the prisoner of the girl's actual age. It would produce the monstrous result that a man who had a carnal connection with a girl, in reality not quite ten years old, but whom he on reasonable grounds believed to be a little more than ten, was to escape altogether. He could not, in that view of the statute, be convicted of the felony, for he did not know her to be under ten. He could not be convicted of the misdemeanour, because she was in fact not above the age of ten. It seems to us that the intention of the legislature was to punish those who had bad connections with young girls, though with their consent unless the girl was, in fact, old enough to give valid consent. The man who has a connection with a child, relying on her consent, does it at his peril if she is below the statutable age.”

¶227

26.

¶228

Bramwell B said:

¶229

“I have used the word “knowingly;” but it will, perhaps, be said that here the prisoner not only did not do the act knowingly, but knew, as he would have said, or believed, that the fact was otherwise than such as would have made his act a crime; that here the prisoner did not say to himself, “I do not know how the fact is, whether she is under sixteen or not, and will take the chance,” but acted on the reasonable belief that she was over sixteen; and that though if he had done what he did, knowing or believing neither way, but hazarding it, there would be a

¶230

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mens rea, there is not one when, as he believes, he knows that she is over sixteen.

¶233

It is impossible to suppose that, to bring the case within the statute, a person taking a girl out of her father's possession against his will is guilty of no offence unless he, the taker, knows she is under sixteen, that he would not be guilty if the jury were of opinion he knew neither one way nor the other. Let it be, then, that the question is whether he is guilty where he knows, as he thinks, that she is over sixteen. This introduces the necessity for reading the statute with some strange words introduced; as thus: “Whosoever shall take any unmarried girl, being under the age of sixteen, and not believing her to be over the age of sixteen, out of the possession,” &c. Those words are not there, and the question is whether we are bound to construe the statute as though they were, on account of the rule that the mens rea is necessary to make an act a crime. I am of the opinion that we are not, nor as though the word “knowingly” was there, and for the following reasons: The act forbidden is wrong in itself, if without lawful cause; I do not say illegal, but wrong. I have not lost sight of this, that though the statute probably principally aims at seduction for carnal purposes, the taking maybe by a female with a good motive. Nevertheless, though there may be such cases, which are not immoral in one sense, I say that the act forbidden is wrong”

¶234

¶235

Denman J said:

¶236

“The belief that she was eighteen would be no justification to the defendant for taking her out of his possession, and against his will. By taking her, even with her own consent, he must at least have been guilty of aiding and abetting her in doing an unlawful act, viz., in escaping against the will of her natural guardian from his lawful care and charge. This, in my opinion, leaves him wholly without lawful excuse or justification for the act he did, even though he believed that the girl was eighteen, and therefore unable to allege that what he has done was not

¶237

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unlawfully done, within the meaning of the clause. In other words, having knowingly done a wrongful act, viz. in taking the girl away from the lawful possession of her father against his will, and in violation of his rights as guardian by nature, he cannot be heard to say that he thought the girl was of an age beyond that limited by the statute for the offence charged against him. He had wrongfully done the very thing contemplated by the legislature: He had wrongfully and knowingly violated the father's rights against the father's will. And he cannot set up a legal defence by merely proving that he thought he was committing a different kind of wrong from that which in fact he was committing.”

¶240

This judgment has become a locus classicus and is cited in all the law books on the Indian Penal Code. Therefore, the fact that the victim represented herself age more than 18 years old will not help the appellant.

¶241

The legislature enacted the POCSO Act to protect children from themselves as well as from others who are minded to prey upon them. (please see R v Corran [2005] EWCA Crim 192 , para 6). The children are deemed to be incapable of consent, and consent is no defence to the offences punishable under POCSO Act. Dealing with the plea of consent under the Sexual Offences Act 2003 (which is almost similar to the POCSO Act but for the age, which is 13 under the Sexual Offences Act, 2003 and 18 under the POCSO Act), Baroness Hale of Richmond held in R vs G [2008] UKHL 37 as under:

¶242

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“44. Section 5 of the 2003 Act has three main features. First, it singles out penetration by the male penis as one of the most serious sorts of sexual behaviour towards a child under 13; second, it applies to such penetration of a child under 13 of either sex; and thirdly it calls this “rape". This is its novel feature but it is scarcely a new idea. The offences of unlawful sexual intercourse under sections 5 and 6 of the 1956 Act were often colloquially known as “statutory rape". This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence (although it may, of course, be relevant to the appropriate sentence). Even if a child is fully capable of understanding and freely agreeing to such sexual activity, which may often be doubted, especially with a child under 13, the law says that it makes no difference. He or she is legally disabled from consenting.

¶245

45. There are a great many good reasons for this: see, eg, R v Hess; R v Nguyen [1990] 2 SCR 906 , per McLachlin J. It is important to stress that the object is not only to protect such children from predatory adult paedophiles but also to protect them from premature sexual activity of all kinds. They are protected in two ways: first, by the fact that it is irrelevant whether or not they want or appear to want it; and secondly, by the fact that in the case of children under 13, it is irrelevant whether or not the possessor of the penis in question knows the age of the child he is penetrating.

¶246

Xxx

¶247

54. In effect, therefore, the real complaint is that the appellant has been convicted of an offence bearing the label “rape". Parliament has very recently decided that this is the correct label to apply to this activity. In my view, this does not engage the Article 8 rights of the appellant at all, but if it does, it is entirely justified. The concept of private life “covers the physical and moral integrity of the person, including his or her sexual life” ( X and Y v The Netherlands , para 22). This does not mean that every sexual relationship, however brief or

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unsymmetrical, is worthy of respect, nor is every sexual act which a person wishes to perform. It does mean that the physical and moral integrity of the complainant, vulnerable by reason of her age if nothing else, was worthy of respect. The state would have been open to criticism if it did not provide her with adequate protection. This attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in my view, amount to a lack of respect for the private life of the penetrating male.

¶251

55. Even supposing that it did, it cannot be an unjustified interference with that right to label the offence which he has committed “rape". The word “rape” does indeed connote a lack of consent. But the law has disabled children under 13 from giving their consent. So there was no consent. In view of all the dangers resulting from underage sexual activity, it cannot be wrong for the law to apply that label even if it cannot be proved that the child was in fact, unwilling. The fact that the appellant was under 16 is obviously relevant to his relative blameworthiness and has been reflected in the second most lenient disposal available to a criminal court. But it does not alter the fact of what he did or the fact that he should not have done it. In my view, the prosecution, conviction and sentence were both rational and proportionate in the pursuit of the legitimate aims of the protection of health and morals and the rights and freedoms of others.”

¶252

30. The argument that the minor had misrepresented her

¶253

age and the accused was not liable was repelled as under:

¶254

“He also commits an offence if he behaves in the same way towards a child of 13 but under 16, albeit only if he does not reasonably believe that the child is 16 or over. So in principle, sex with a child under 16 is not allowed. When the child is under 13, three years younger than that, he

¶255

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2025:HHC:28138 takes the risk that she may be younger than he thinks she is. The object is to make him take responsibility for what he chooses to do”

¶257

Dealing with the dangers of premature sexual

¶258

activities, the court held that:

¶259

“Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who has practised in the family courts is only too well aware of the long-term and serious harm, both physical and psychological, which premature sexual activity can do. And the harm which may be done by premature sexual penetration is not necessarily lessened by the age of the person penetrating. That will depend upon all the circumstances of the case, of which his age is only one.”

¶260

The disclosure of the age by the victim as 18 years is

¶261

not sufficient to absolve the accused of the commission of am offence punishable under the POCSO Act when the victim was proved to be a minor and less than 18 years of age.

¶262

Victim (PW-1) stated that the accused, Shiva, took her in a bus from Hatwas to Sujanpur in Hamirpur district. She stayed at Sujanpur with the accused for three days in the house of

¶263

the maternal uncle of the accused. Accused Shiva violated her during the night and told her not to disclose the incident to

¶264

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anyone. She stated in her cross-examination that she did not

¶267

remember whether she had told the learned Magistrate that the accused had done a wrong act with her. She denied that she told the police that she had a friendship with the accused for the last three years and wanted to marry the accused. She denied that the accused was her boyfriend and that she had written letters to the accused. She also denied that she had disclosed her age as 18 years.

¶268

The statement of the victim does not establish the version of the accused that she was in love with the accused and had voluntarily left the home to marry him. Her crossexamination also does not establish that she had written love letters to the accused. The accused nowhere claimed in his statement recorded under Section 313 of Cr.P.C. that he had a love affair with the victim and the victim voluntarily left her home to accompany him. Therefore, the suggestions made to the victim that she had left home voluntarily to marry the accused will not help him. Further, no evidence was led to establish this plea and the learned Trial Court was justified in rejecting this plea.

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Thes statement of the victim that the accused had raped her was duly corroborated by the statement of Dr. Sapna Sharma (PW-5), who found that the possibility of sexual intercourse could not be ruled out. She preserved the samples, which were sent to the SFSL, and as per the report of SFSL (Ext.PX), the DNA profile of the accused was found in the underwear of the victim. The report (Ex. PY), shows that human semen was found in the underwear of the victim. These reports corroborate the version of the victim that the accused established sexual relations with her.

¶272

It was submitted that the victim did not raise a hue and cry when she was taken in a bus; however, this submission will not help the accused because the victim was a minor and incapable of consent. Therefore, even if she had voluntarily accompanied the accused, that would not have helped him. Section 361 of the IPC defines kidnapping from lawful guardianship as under:

¶273

361. Kidnapping from lawful guardianship

¶274

Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap

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such minor or person from lawful guardianship.

¶278

It is apparent from the bare perusal of the Section that

¶279

the offence of kidnapping is committed against the guardian, and the consent of the minor is immaterial. It was laid down by the Hon’ble Supreme court in Parkash v. State of Haryana, (2004) 1 SCC 339: 2004 SCC (Cri) 290: 2003 SCC OnLine SC 1339 that the offence of kidnapping is for the protection of the minor and the only consent of the guardian can take it out of the purview of Section 361. It was observed at page 342:

¶280

“7. …The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the age specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words “takes or entices any minor … out of the keeping of the lawful guardian of such minor” in Section 361 are significant. The use of the word “keeping” in the context connotes the idea of charge, protection, maintenance and control; further, the guardian's charge and control appear to be compatible with the independence of action and movement of the minor, the guardian's protection and control of the minor being available whenever necessity arises. On plain reading of this section, the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person, which creates willingness on the

¶281

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part of the minor to be taken out of the keeping of the lawful guardian, would be sufficient to attract the section. 8. In State of Haryana v. Raja Ram [(1973) 1 SCC 544: 1973 SCC (Cri) 428] English decisions were noticed by this Court for the purpose of illustrating the scope of the protection of minor children and of the sacred right of the parents and guardians to the possession of their minor children under the English law. The decisions noticed were R. v. Job Timmins [169 ER 1260: Bell 276], R. v. Handley [175 ER 890: 1 F & F 648] and R. v. Robb [176 ER 466: 4 F & F 59]. In the first case, Job Timmins was convicted of an indictment framed upon 9 Geo. IV, ch. 31, Section 20 for taking an unmarried girl under sixteen out of the possession of her father, and against his will. It was observed by Erle, C.J., that the statute was passed for the protection of parents and for preventing unmarried girls from being taken out of the possession of their parents against their will. Limiting the judgment to the facts of that case, it was said that no deception or forwardness on the part of the girl in such cases could prevent the person taking her away from being guilty of the offence in question. The second decision is authority for the view that in order to constitute an offence under 9 Geo. IV, ch. 31, Section 20, it is sufficient if, by moral force, a willingness on the part of the girl to go away with the prisoner is created; but if her going away with the prisoner is entirely voluntary, no offence is committed. The last case was of a conviction under the statute (24 & 25 Vict., ch. 100, Section 55). The inducement by previous promise or persuasion was held sufficient to bring the case within the mischief of the statute. In the English statutes, the expression used was “take out of the possession” and not “out of the keeping” as used in Section 361 IPC. But that expression was construed in the English decisions not to require actual manual possession. It was enough if, at the time of taking the girl continued under the care, charge and control of the parent — see R. v. Mankletow [(1853) 6 Cox Criminal Cases 143: 169 ER 678]. These decisions were held to confirm the view that Section 361 is also designed to

¶284

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protect the sacred right of the guardians with respect to their minor wards.

¶287

9. The position was again reiterated in Thakorlal D. Vadgama v. State of Gujarat [(1973) 2 SCC 413: 1973 SCC (Cri) 835: AIR 1973 SC 2313] wherein it was, inter alia, observed as follows : (SCC p. 421, para 10)

¶288

“The expression used in Section 361 IPC is ‘whoever takes or entices any minor’. The word ‘takes’ does not necessarily connote taking by force, and it is not confined only to the use of force, actual or constructive. This word merely means ‘to cause to go’, ‘to escort’ or ‘to get into possession’. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word ‘entice’ seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending on their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately, or it may create a continuous and gradual but imperceptible impression, culminating after some time, in achieving its ultimate purpose of successful inducement. The two words ‘takes’ and ‘entices’, as used in Section 361 IPC, are, in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 IPC.”

¶289

This position was reiterated in Anversinh v. State of

¶290

Gujarat, (2021) 3 SCC 12: (2021) 2 SCC (Cri) 18: 2021 SCC OnLine SC

¶291

19 , and it was held at page 20:

¶292

16. A bare perusal of the relevant legal provisions, as extracted above, shows that the consent of the minor is

¶293

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immaterial for purposes of Section 361 IPC. Indeed, as borne out through various other provisions in the IPC and other laws like the Contract Act, 1872, minors are deemed incapable of giving lawful consent. [ Satish Kumar Jayanti Lal Dabgar v. State of Gujarat , (2015) 7 SCC 359, para 15 : (2015) 3 SCC (Cri) 108] Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor's physical safety upon his/her guardians. Therefore, a minor girl's infatuation with her alleged kidnapper cannot, by itself, be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping.

¶296

Therefore, no advantage can be derived from the fact

¶297

that the victim had not protested while she was being taken in a bus.

¶298

It was submitted that the victim left her home voluntarily, and no offence of kidnapping was made out. This submission is not acceptable. It was held by the Orissa High Court in Bagula Naik v. State of Orissa, 1999 SCC OnLine Ori 118: (1999) 87 CLT 808: 1999 Cri LJ 2077 , that even if the victim had left the home voluntarily, but the accused had taken her to his house or some other place, the offence punishable under Section 363 of IPC would be attracted. It was observed at page 810:

¶299

“6. Second contention of the petitioner, as noted above, is twofold. Learned counsel for the petitioner, while arguing on this point, has contended that p.w. 3. Having left her house of her own, the petitioner cannot be accused of kidnapping for merely accompanying her to certain

¶300

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places, and therefore, his conduct cannot be termed as kidnapping or abduction. In that context, he relied upon the decisions reported in A.I.R. 1965 S.C. 942: S. Vardarajan v. State of Madras; 1979 Crl. L.J. 1094: Pramod Kumar v. State and 1983 Crl. L.J. 1819: Lawrence Kanandas v. The State of Maharashtra .

¶303

7. In the case of S. Vardarajan (supra), a college-going girl on the verge of majority from her side telephoned the accused and thereafter both of them went to the SubRegistrar's office for registering the marriage agreement. The Apex Court judged the totality of the facts and circumstances and held it not to be a case of kidnapping. No such evidence is available in the record so far, in the present case is concerned, that it is at the instance of the p.w. 3 that the petitioner took her to his house or Athgarh. Hence, the aforesaid ratio is not applicable to the present case.

¶304

8. In the case of Pramod Kumar (supra), a grown-up boy aged about 16 years, committing theft of gold ornaments from his house, moved away from his town along with the accused. Prosecution alleged that the said accused was instrumental in the kidnapping of that boy. From the facts and evidence available in the record, it was found that the boy, of his own not only left the house but also accompanied the accused and voluntarily stayed with him for a considerable period. Under such circumstances, the Allahabad High Court held it was not a case of kidnapping. Needless to say, the facts of that case are quite distinguishable from the present case.

¶305

9. In the case of Lawrence Kanandas (supra), a school- going girl aged about 13 to 14, after attending the examination on the date of kidnapping, went away with the accused-petitioner, and he was convicted for the offence u/s. 363, I.P.C.. Learned Single Judge of Bombay High Court, taking into consideration the evidence suggesting to the fact that it was the girl who had induced the accused to come to her School and to take her to different places and also the other facts and circumstances existing in that regard, found the appellant not guilty.

¶306

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Facts and circumstances of the present case are not similar since there is no evidence worth the name to make an inference that p.w. 3 ever requested the petitioner to take her away, either to his house or to Athgarh. Even the accused has not taken such a stand while cross-examining witnesses or giving his statement u/s 313, Cr. P.C.. Hence, the aforesaid decision of the Bombay High Court is of no help to the petitioner.

¶309

It was laid down by Hon’ble Supreme Court in State of

¶310

Haryana v. Raja Ram, (1973) 1 SCC 544: 1973 SCC (Cri) 428: 1972 SCC OnLine SC 497 , that accused cannot escape conviction because he had not gone to the house of the victim to bring her, if the victim was persuaded by the act of the accused in leaving the home, he would be guilty. It was observed at page 549: -

¶311

“9. In the present case the evidence of the prosecutrix as corroborated by the evidence of Narain Das, PW 1 (her father), Abinash Chander PW 3 (her brother) and Smt Tarawanti PW 4 (her mother) convincingly establishes beyond reasonable doubt: (1) that Jai Narain had tried to become intimate with the prosecutrix and to seduce her to go and live with him and on objection having been raised by her father who asked Jai Narain not to visit his house, Jai Narain started sending message to the prosecutrix through Raja Ram, respondent; (2) that Raja Ram, respondent, had been asking the prosecutrix to be ready to accompany Jai Narain; (3) that at about 12 noon on April 4, Raja Ram went to see the prosecutrix at her house and asked her to visit his house when he would convey Jai Narain's message to her; (4) that on the same day after some time Sona was sent by her father to the house of the prosecutrix to fetch her to his house where the prosecutrix was informed that Jai Narain would come that night and would take the prosecutrix away and (5) that Raja Ram

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accordingly asked the prosecutrix to visit his house at about midnight so that she may be entrusted to Jai Narain. This evidence was believed by the learned Additional Sessions Judge who convicted the respondent, as already noticed. The learned Single Judge also did not disbelieve her statement. Indeed, in the High Court, the learned Counsel for Raja Ram had proceeded on the assumption that the evidence of the prosecutrix is acceptable, the argument being that even accepting her statement to be correct, no offence was made out against Raja Ram. Once the evidence of the prosecutrix is accepted, in our opinion, Raja Ram cannot escape conviction for the offence of kidnapping her from her father's lawful guardianship. It was not at all necessary for Raja Ram to have gone to the house of the prosecutrix to bring her from there on the midnight in question. It was sufficient if he had earlier been soliciting or persuading her to leave her father's house to go with him to Jai Narain. It is fully established on the record that he had been conveying messages from Jai Narain to the prosecutrix and had himself been persuading her to accompany him to Jai Narain's place, where he would hand her over to him. Indisputably the last message was conveyed by him to the prosecutrix when she was brought by his daughter Sona from her own house to his and it was pursuant to this message that the prosecutrix decided to leave her father's house on the midnight in question for going to Raja Ram's house for the purpose of being taken to Jai Narain's place. On these facts, it is difficult to hold that Raja Ram was not guilty of taking or enticing the prosecutrix out of the keeping of her father's lawful guardianship. Raja Ram's action was the proximate cause of the prosecutrix going out of the keeping of her father, and indeed, but for Raja Ram's persuasive offer to take her to Jai Narain, the prosecutrix would not have gone out of the keeping of her father, who was her lawful guardian, as she actually did. Raja Ram actively participated in the formation of the intention of the prosecutrix to leave her father's house. The fact that the prosecutrix was easily persuaded to go with Raja Ram

¶315

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would not prevent him from being guilty of the offence of kidnapping her. Her consent or willingness to accompany Raja Ram would be immaterial, and it would be equally so even if the proposal to go with Raja Ram had emanated from her. There is no doubt a distinction between taking and allowing a minor to accompany a person. But the present is not a case of the prosecutrix herself leaving her father's house without any inducement by Raja Ram, who merely allowed her to accompany him.”

¶318

42. Similarly, it was held in Anversinh v. State of Gujarat,

¶319

(2021) 3 SCC 12: (2021) 2 SCC (Cri) 18: 2021 SCC OnLine SC 19 that where the accused had the intent to marry the victim, her enticement was duly proved. It was observed at page 20:-

¶320

“13. A perusal of Section 361 IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child's minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such “enticement” need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. [ Thakorlal D. Vadgama v. State of Gujarat, (1973) 2 SCC 413 , para 10: 1973 SCC (Cri) 835 ] However, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home as happened in King Emperor v. Gokaran [King Emperor v. Gokaran, 1920 SCC OnLine Oudh JC 32: AIR 1921 Oudh 226 ] and Emperor v. Abdur Rahman [Emperor v. Abdur Rahman, 1916 SCC OnLine All 63: AIR 1916 All 210 ].

¶321

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Therefore, the accused cannot take advantage of the

¶324

fact that the victim had not raised any hue cry when she was being taken in a bus.

¶325

Therefore, it was duly proved on record that the victim is a child, she was taken out of the keeping of her mother to commit sexual intercourse, and the sexual intercourse was committed with her. Hence, a presumption will arise that the accused has committed the offence.

¶326

Section 29 of the Protection of Children from Sexual Offences Act, 2012 reads that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 & 9 of the Act, the Special Court shall presume that such person had committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved. This Section was considered by the Bombay High Court in Amol Dudhram Barsagade vs. State of Maharashtra 2019 AllMR(Cri) 435, and it was held that once the foundation of the prosecution case is laid by legally admissible evidence, it becomes incumbent upon the accused to establish from the record that he has not committed the offence. It was observed:-

¶327

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"5. The learned Additional Public Prosecutor Shri S.S. Doifode would strenuously contend that the statutory presumption under Section 29 of the POCSO Act is absolute. The date of birth of the victim, 12.10.2001, is duly proved and is indeed not challenged by the accused, and the victim, therefore, was a child within the meaning of Section 2(d) of the POCSO Act, it is the submission. The submission that the statutory presumption under Section 29 of the POCSO Act is absolute must be rejected if the suggestion is that even if foundational facts are not established, the prosecution can invoke the statutory presumption. Such an interpretation of Section 29 of the POCSO Act would render the said provision vulnerable to the vice of unconstitutionality. The statutory presumption would stand activated only if the prosecution proves the foundational facts, and then, even if the statutory presumption is activated, the burden on the accused is not to rebut the presumption beyond a reasonable doubt. Suffice it if the accused is in a position to create a serious doubt about the veracity of the prosecution's case or the accused brings on record material to render the prosecution's version highly improbable."

¶330

Similar is the judgment of the Tripura High Court in

¶331

Joubansen Tripura v. State of Tripura, 2021 SCC OnLine Tri 176 , wherein it was observed:

¶332

“12. Upon meticulous reading of Section 29 and 30 of the POCSO Act, according to us, prosecution will commence the trial with an additional advantage that there will be presumption of guilt against the accused person, but, in our considered view, such presumption cannot form the basis of conviction, if that be so, it would offend Article 20(3) and 21 of the Constitution of India. Perhaps, it is not the object of the legislature to incorporate Sections 29 and 30 under the POCSO Act.

¶333

13. As we have said in the first part of this paragraph, the prosecution will commence trial with an additional

¶334

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advantage of presumption against the accused, but the prosecution is legally bound to establish foundational facts which set the prosecution's case in motion. If the prosecution succeeds to establish the foundational facts, then it will be the obligation of the accused to prove his innocence, but the standard of proof again will be on the basis of preponderance of probabilities. Keeping in view the aforesaid principles, we shall proceed to decide as to whether the prosecution has been able to establish the foundational facts of the instant case. Foundational facts in the POCSO Act include:—

¶337

(i) the proof that the victim is a child;

¶338

(ii) that the alleged incident has taken place;

¶339

(iii) that the accused has committed the offence; and (iv) whenever physical injury is caused, to establish it with supporting medical evidence.

¶340

14. If the fundamental facts of the prosecution case are laid by the prosecution by leading legally admissible evidence, the duty of the accused is to rebut it by establishing from the evidence on record that he has not committed the offence. This can be achieved by eliciting patent absurdities or inherent infirmities in the version of prosecution or the oral testimony of witnesses or the existence of enmity between the accused and victim or bring out material contradictions and omissions in the evidence of witnesses, or to establish that the victim and witnesses are unreliable or that there is considerable and unexplained delay in lodging the complaint or that the victim is not a child. The accused may reach that end by discrediting and demolishing the prosecution witnesses by effective crossexamination. Only if he is not fully able to do so, he needs only to rebut the presumption by leading defence evidence. Still, whether to offer himself as a witness is the choice of the accused. Fundamentally, the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial, except that in a trial under the POCSO Act, the prosecution is additionally armed with the presumptions and the corresponding obligation on the accused to rebut the

¶341

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presumption. It is imperative to mention that in POCSO cases, considering the gravity of sentence and the stringency of the provisions, an onerous duty is cast on the trial court to ensure a more careful scrutiny of evidence, especially, when the evidence let in is the nature of oral testimony of the victim alone and not corroborated by any other evidence—oral, documentary and medical. (emphasis supplied)

¶344

15. Legally, the duty of the accused to rebut the presumption as arises only after the prosecution has established the foundational facts of the offence alleged against the accused. The yardstick for evaluating the rebuttable evidence is limited to the scale of preponderance of probability. Once the burden to rebut the presumption is discharged by the accused through effective cross-examination or by adducing defence evidence or by the accused himself tendering oral evidence, what remains is the appreciation of the evidence let in. Though it may appear that, in the light of presumptions, the burden of proof oscillates between the prosecution and the accused, depending on the quality of evidence let in, in practice, the process of adducing evidence in a POCSO case does not substantially differ from any other criminal case. Once the recording of prosecution evidence starts, the cross-examination of the witnesses will have to be undertaken by the accused, keeping in mind the duty of the accused to demolish the prosecution case by an effective cross-examination and additionally to elicit facts to rebut the statutory presumption that may arise from the evidence of prosecution witnesses. Practically, the duty of prosecution to establish the foundational facts and the duty of the accused to rebut presumption arise, with the commencement of the trial, progress forward along with the trial and the establishment of one, extinguishes the other. To that extent, the presumptions and the duty to rebut presumptions are coextensive. (emphasis supplied)

¶345

16. If an accused is convicted only on the basis of a presumption as contemplated in Sections 29 and 30 of the POCSO Act, then it would definitely offend Articles 20(3)

¶346

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and 21 of the Constitution of India. In my opinion, it was not the object of the legislature. Presumption of innocence is a human right and cannot per se be equated with the fundamental right under Article 21 of the Constitution of India. The Supreme Court, in various decisions, has held that provisions imposing the reverse burden must not only be required to be strictly complied with but also may be subject to proof of some basic facts as envisaged under the Statute. [ See State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10: AIR 1961 SC 1808 : (1961) 2 Cri LJ 856 ].

¶349

17. It may safely be said that presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of prosecution to establish the fundamental facts. This duty is always on the prosecution and never shifts to the accused. POCSO Act has no different connotations. Parliament is competent to place a burden on certain aspects on the accused, especially those which are within his exclusive knowledge. It is justified on the ground that prosecution cannot, in the very nature of things, be expected to know the affairs of the accused. This is specifically so in the case of sexual offences, where there may not be any eyewitnesses to the incident. Even the burden on the accused is also a partial one and is justifiable on the larger public interest. [ State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10: AIR 1961 SC 1808: (1961) 2 Cri LJ 856; Noor Aga v. State of Punjab, (2008) 16 SCC 417; Abdul Rashid Ibrahim v. State of Gujarat, (2000) 2 SCC 513]

¶350

It was laid down by the Hon’ble Supreme Court in Sambhubhai Raisangbhai Padhiyar v. State of Gujarat , (2025) 2 SCC 399: 2024 SCC OnLine SC 3769 that when the prosecution has established the foundational facts, the burden shifts upon the accused to rebut the presumption. It was observed at page 413:

¶351

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34. Sections 29 and 30 of the P OCSO Act read as under:

¶354

“ 29. Presumption as to certain offences .—Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

¶355

30. Presumption of culpable mental state .—(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

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(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.”

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35. It will be seen that a presumption under Section 29 is available where the foundational facts exist for the commission of an offence under Section 5 of the P OCSO Act. Section 5 of the P OCSO Act deals with aggravated penetrative sexual assault, and Section 6 speaks of punishment for aggravated penetrative sexual assault. Section 3 of the POCSO Act defines what penetrative sexual assault is. The relevant sections are extracted herein below:

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“ 3. Penetrative sexual assault .—A person is said to commit “penetrative sexual assault” if—

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( a ) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child do so with him or any other person; or

***

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5. Aggravated penetrative sexual assault .—( a )( h ) * * *

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( i ) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or

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( m ) whoever commits penetrative sexual assault on a child below twelve years; or

¶367

6. Punishment for aggravated penetrative sexual assault .—(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the natural life of that person, and shall also be liable to fine, or with death.

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(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.”

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36. The manner in which the appellant enticed the deceased child under the pretext of buying ice cream in spite of being dissuaded by the aunt (PW 10) and without the consent of the lawful guardians also makes out an offence under Section 364 IPC. The aggravated penetrative sexual assault clearly establishes an offence under Section 377 IPC and Sections 4 and 6 of the POCSO Act. The appellant has not rebutted the presumption by adducing proof to the contrary.”

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The foundational facts were explained by the Madras

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High Court in B. Mooventhan v. State of T.N., 2023 SCC OnLine Mad

5241 as under:

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30. In Criminal jurisprudence, the prosecution has to prove the case. However, in view of Section 29 of the POCSO Act, where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the POCSO Act, the Court shall presume that such person has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved. The presumption to be drawn under Sections 29 and 30 of the POCSO do not absolve the prosecution of its duty to establish the foundational facts. The prosecution has to establish the prima facie case by adducing evidence. Only when the fundamental and primary facts are established by the prosecution will the accused be under an obligation to rebut the presumptions by adducing cogent evidence, where the standard of proof required to rebut the presumption is a preponderance of probabilities. In short, the basic, primary and fundamental facts are to be established by the prosecution.

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31. The term ‘foundational facts’ in the POCSO Act includes the following:

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(i) The victim is a child

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(ii) The alleged incident has occurred

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(iii) The accused has committed the offence

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(iv) Medical evidence to support the physical injury, if any.”

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Similar is the judgment in State of Haryana v. Vishal,

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2022 SCC OnLine P&H 3827, wherein it was observed:

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17. Learned counsel for the State argued that, in view of provision of Sections 2 9 and 3 0 of the POCSO Act , a statutory presumption arises against the respondent/accused, and, the onus is upon him to prove his innocence, and that, in the present case, he has failed to prove his innocence, therefore, the statutory presumptions stand against him and he is liable to be

¶384

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¶386

convicted for the charges framed against him. A cumulative reading of Sections 29 and 30 of the P OCSO Ac t would provide that, once the foundational facts have been proved by the prosecution, only then is the statutory presumption raised against the accused, and the onus shifts upon the accused to prove his innocence. In the present case, as we have discussed above in detail, the prosecution has failed to prove the foundational facts upon which a statutory presumption can be raised. “ Presumption ” is a rule of law which enables the Court to presume the existence of a fact on the basis of certain proved facts. The Court cannot presume the existence of certain facts in a vacuum. The prosecution has to discharge its initial burden by proving those facts which are essential to raise the statutory presumption. In the case at hand, the prosecution has failed to discharge its initial onus; therefore, the statutory presumption cannot be raised at the instance of the prosecution.

¶387

In the present case, the testimony of the victim, her medical examination and the report of the analysis established the foundational fact, and the burden would shift upon the accused to show his innocence. There is nothing on record to show the innocence of the accused; therefore, the learned Trial Court had rightly held the accused guilty.

¶388

Learned Trial Court imposed the sentence of seven years for the commission of an offence punishable under Section 4 of the POCSO Act, which is the minimum sentence prescribed under Section 4 of the POCSO Act. Since the learned Trial Court has imposed a minimum sentence, therefore, no interference is

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required with the sentence imposed by the learned Trial Court.

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