SC: Can’t rely on school transfer certificate, extracts of the admission register to determine POCSO victim age

The top court said charges against P. Yuvaprakash under Section 6 of the POCSO Act as well as Section 10 of the Prohibition of Child Marriage Act, cannot be sustained. The Supreme Court set aside the conviction and sentences imposed by the trial court, which was upheld by the Madras High Court.

New Delhi: The Supreme Court (SC) has said that a "school transfer certificate and extracts of the admission register" cannot be relied upon, instead the result of the ossification or bone test would be more authentic evidence to determine a victim’s age in POCSO cases while acquitting an accused convicted under the POCSO Act and sentenced to 10 years of rigorous imprisonment.

A bench comprising Justices S. Ravindra Bhat and Aravind Kumar said the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) of Juvenile Justice (JJ) Act mandates; nor are they in accord with Section 94 (2) (ii) because a witness clearly deposed that there were no records relating to the birth of the victim. The apex court delivered the judgment on Tuesday, July 18.

The bench observed that in these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, where a doctor opined that the victim was between 18-20 years. "Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor," said the bench.

The bench noted that in her statement under Section 164 of the Cr. PC, the victim had deposed that she was in love with the appellant, had consumed poison, and had even been hospitalized because she was adamant to live with the appellant. "In view of these facts, this court is of the opinion that the prosecution was not able to establish that there was any penetrative sexual assault as a result of coercion or compulsion on the part of the appellant," noted the bench.

The top court observed that from these facts, and the definitions under the Protection of Children from Sexual Offences (POCSO) Act, especially the definitions of “sexual assault”, Sections 5 and 6, read with Sections 350 and 351 Indian Penal Code (IPC), it can be seen that it is only when there is penetrative sexual assault, which implies sexual contact with or without consent of the minor victim, that the offences under the POCSO Act are committed.

“All the facts proved in this case clearly indicate the victim's willingness to accompany the appellant and even celebrate their marriage. However, she did not support the statement under Section 164 Cr. PC," said the bench.

In 2015, a complaint was filed by the family of the victim accusing the appellant and his aides of kidnapping the girl and forcibly marrying her, and the appellant was also accused of committing repeated sexual assault on the victim. The girl told the magistrate that sexual acts were consensual, however, she retracted her statement during the trial. The trial court convicted the appellant under the POCSO Act, Prohibition of Child Marriage Act as well as for kidnapping.

In December 2016, the Madras High Court upheld the appellant’s conviction under the POCSO Act as well as the Prohibition of Child Marriage Act but set aside the conviction for kidnapping. The HC modified the sentence from rigorous life imprisonment to rigorous imprisonment for ten years. The appellant moved the apex court challenging the HC verdict.