Kerala High Court
Ahamed Mubashir vs The State Of Kerala on 5 April, 2024
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
CRL.MC NO. 1736 OF 2021
CRIME NO.351/2020 OF Hosdurg Police Station, Kasargod
AGAINST THE FINAL REPORT IN SC NO.519 OF 2020 OF ADDITIONAL
DISTRICT & SESSIONS COURT - I, KASARAGOD
PETITIONER/ACCUSED:
PARTHASARATHI M
AGED 33 YEARS
S/O. VENUGOPAL, SWAPNAM HOUSE, NEAR AMRUTHA
NURSARY, ANANTHAMPALLAM, KANHANGAD VILLAGE,
HOSDURG , KASARGOD, KERALA-671 315.
BY ADVS.
MAHESH V RAMAKRISHNAN
SMT.MARY LIYA SABU
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNKAULAM-682 031.
BY P.P.SMT.M.K.PUSHPALATHA
SRI.N.R.SANGEETH RAJ
SMT.C.SEENA
SRI.G.SUDHEER
AMICI CURIAE SRI.RENJITH B MARAR & SRI.JOHN S
RALPH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ALONG
WITH CRL.R.P.NO.70/2023 AND CONNECTED CASES ON 05.04.2024,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
Crl.R.P.Nos.70, 221 & 281 of 2023 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
CRL.MC NO. 2231 OF 2023
CRIME NO.503/2020 OF Infopark Police Station, Ernakulam
AGAINST THE FINAL REPORT IN SC NO.971/2021 AND ORDER DATED
1.11.2022 IN CMP.NO.468 OF 2022 OF ADDL. DISTRICT AND
SESSIONS COURT, ERNAKULAM (FOR THE TRIAL OF CASES RELATING
TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN)
PETITIONER/ACCUSED:
AHAMED MUBASHIR,AGED 26 YEARS
S/O MOIDEEN, ORMAKUDIL HOUSE,
UDAMA P.O, KASARGOD, PIN - 671319.
BY ADVS.SARUN
C.C.ANOOP
R.ANAS MUHAMMED SHAMNAD
ARCHANA HARIDAS K.
RESPONDENTS/STATE & COMPLAINANT :
1 THE STATE OF KERALA
THROUGH THE LEARNED PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031.
2 THE STATION HOUSE OFFICER
INFO PARK POLICE STATION, INFO PARK CAMPUS, KAKKANAD
ERNAKULAM DISTRICT., PIN - 682030
BY P.P.SMT.M.K.PUSHPALATHA, SRI.N.R.SANGEETH RAJ,
SMT.C.SEENA & SRI.G.SUDHEER
AMICI CURIAE SRI.RENJITH B MARAR & SRI.JOHN S RALPH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ALONG WITH CRL.R.P.NO.70/2023 AND CONNECTED CASES ON
05.04.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
Crl.R.P.Nos.70, 221 & 281 of 2023 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
CRL.REV.PET NO. 70 OF 2023
CRIME NO.1190/2020 OF Viyyur Police Station, Thrissur
AGAINST THE ORDER DATED 17.01.2023 IN SC NO.289 OF 2022 OF
FAST TRACK SPECIAL COURT, THRISSUR
REVISION PETITIONER/ACCUSED:
BASIL ELDOSE, AGED 27 YEARS
NEDUNGOTTIL HOUSE, PULLAMKANDAM DESOM,
KATILAPPOVAM, MADAKKATHARA VILLAGE, THRISSUR,
KERALA, 680028, PIN - 680028.
BY ADV SARATH BABU KOTTAKKAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031.
BY P.P.SMT.M.K.PUSHPALATHA
SRI.N.R.SANGEETH RAJ
SMT.C.SEENA
SRI.G.SUDHEER
AMICI CURIAE SRI.RENJITH B MARAR & SRI.JOHN S
RALPH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ALONG WITH CRL.R.P.NO.221/2023 AND CONNECTED CASES
05.04.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
Crl.R.P.Nos.70, 221 & 281 of 2023 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
CRL.REV.PET NO. 221 OF 2023
CRIME NO.2880/2020 OF Kottarakkara Police Station, Kollam
AGAINST THE ORDER DATED 27.1.2023 IN CRL.M.P.06/2022 IN SC
NO.809 OF 2020 OF FAST TRACK SPECIAL COURT, KOTTARAKKARA
REVISION PETITIONER/ACCUSED:
AKHIL ABRAHAM, AGED 28 YEARS
S/O KURUVILA MATHEW, ANJILIL VELIL VEEDU,
NETAJI NAGAR, KIZHAKKEKARA MURI,
KOTTARAKARA, KOLLAM, PIN - 691506.
BY ADVS.S.RAJEEV
V.VINAY
M.S.ANEER
PRERITH PHILIP JOSEPH
SARATH K.P.
ANILKUMAR C.R.
RESPONDENT/STATE:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031 (CRIME NO 2880/2020 OF
KOTTARAKARA POLICE STATION, KOLLAM)
BY P.P.SMT.M.K.PUSHPALATHA , SRI.N.R.SANGEETH RAJ
SMT.C.SEENA, SRI.G.SUDHEER
AMICI CURIAE SRI.RENJITH B MARAR & SRI.JOHN S
RALPH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ALONG WITH Crl.Rev.Pet.70/2023 AND CONNECTED CASES ON
05.04.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
Crl.R.P.Nos.70, 221 & 281 of 2023 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
CRL.REV.PET NO. 281 OF 2023
CRIME NO.1499/2020 OF Kannur Town POLICE STATION, Kannur
AGAINST THE ORDER DATED 17.1.2023 IN CMP.NO.48/22 IN SC
NO.20 OF 2021 OF FAST TRACK SPECIAL COURT, KANNUR
REVISION PETITIONER/ACCUSED:
SUJITH. P.M, AGED 59 YEARS
S/O VASUDEVAN, MEGNA HOUSE, THULICHERY.P.O,
CIVIL STATION, KANNUR, PIN - 670004.
BY ADVS.
M.K.SUMOD
VIDYA M.K.
THUSHARA.K
RESPONDENT/STATE:
THE STATE OF KERALA
REPRESENTED BY THE PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
BY P.P.SMT.M.K.PUSHPALATHA
SRI.N.R.SANGEETH RAJ
SMT.C.SEENA
SRI.G.SUDHEER
AMICI CURIAE SRI.RENJITH B MARAR & SRI.JOHN S
RALPH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ALONG WITH Crl.Rev.Pet.70/2023 AND CONNECTED CASES, ON
5.4.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
Crl.R.P.Nos.70, 221 & 281 of 2023 6
ORDER
Is strict proof of the age of the victim required in all cases of
child pornography ? Should the prosecution prove the identity of the
victim in child pornography cases ? These are essentially the questions
raised in all these petitions. Therefore, I prefer to dispose of all these
cases analogously.
2. In Crl.M.C.No.2231 of 2023, the petitioner challenges
the final report and the order dated 1.11.2022 in CMP.No.468 of 2022,
an application seeking discharge, passed by the Court of Additional
District and Sessions Judge, Ernakulam (for the trial of cases relating to
Atrocities & Sexual Violence against Women and Children). In
Crl.M.C.No.1736 of 2021, the petitioner challenges the final report in
S.C.No.519/2020 on the file of the Additional District and Sessions
Court-I, Kasaragod.
3. In all the Criminal Revision Petitions, the petitioners
challenge the orders rejecting their applications seeking discharge
under Section 227 Cr.P.C..
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
4. The prosecution case is that on 27.6.2020 at 8 a.m., the
Police found naked videos and photos of minor girls in the mobile phone
of the accused. After completing the investigation the Police submitted
final report alleging offences punishable under Sections 15(1) & 15(2)
of the Protection of Children from Sexual Offences Act, 2012 (for short
"the POCSO Act") and Section 67-B(b) of the Information Technology
Act, 2000 (for short "the I.T. Act").
5. The prosecution case is that on 4.10.2020, pursuant to
the information received from the Cyber Cell, Kochi City, the Inspector
of Police, Info Park Police Station found child pornographic videos and
pictures in the message application installed in the mobile phone of the
accused. After completing the investigation the Police submitted final
report alleging offences punishable under Sections 67 & 67-B of the
I.T. Act and Section 15 of the POCSO Act.
6. The prosecution alleges that on 4.10.2020, the Police
found obscene videos containing child pornography in the laptop in the
possession of the accused. The Police submitted final report alleging
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
offences punishable under Section 15(1) of the POCSO Act and Section
67-B(b) of the I.T. Act. The petitioner/accused filed an application
seeking discharge under Section 227 Cr.P.C. as Crl.M.P.No.575/2022.
The Court below dismissed the application. This order is under
challenge in the Crl.R.P.
7. The prosecution alleges that the Police found
pornographic photos and videos downloaded in the mobile phone in the
possession of the accused. The Police submitted final report alleging
offences punishable under Section 15 of the POCSO Act and Section 67-
B(b) of the I.T. Act. The petitioner/accused filed an application seeking
discharge under Section 227 Cr.P.C. as Crl.M.P.No.06/2022. The Court
below dismissed the application. This order is under challenge in the
Crl.R.P.
8. The prosecution case is that on 4.10.2020, the Police
found obscene videos and photos containing child pornography in the
mobile phone in the possession of the accused. The Police submitted
final report alleging offences punishable under Section 15(1) of the
POCSO Act and Section 67-B(b) of the I.T. Act. The petitioner/accused
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
filed an application seeking discharge under Section 227 Cr.P.C. as
C.M.P.No.48/2022. The Court below dismissed the application. This
order is under challenge in the revision petition.
9. I have heard the learned counsel for the petitioners,
the learned Amici Curiae Sri.Renjith B Marar and Sri.John S Ralph
and the learned Public Prosecutor Smt.Pushpalatha.
10. Sri.Sarath Babu Kottakkal, the learned counsel
appearing for the petitioner in Crl.R.P.No.70/2023 submitted the
following:
The offences under the POCSO Act are attracted only if the
victim is a child. The term 'child' is defined as any person below
the age of eighteen years. If the age is not established, no
prosecution under the POCSO Act will lie. For any offence under
the POCSO Act proof of age of the victim is necessary. There shall
be some legally admissible material to establish the age of the
victim. It is not safe to assess the age of someone from a
photograph or video from the perception of the viewer.
11. Sri.Mahesh V.Ramakrishnan, the learned counsel
appearing for the petitioner in Crl.M.C.No.1736/2021 supported the
contention raised by Sri.Sarath Babu Kottakkal. Sri.Sarun, the
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
learned counsel for the petitioner in Crl.M.C.No.2231/2023
submitted that the report of the forensic science laboratory makes
it clear that the petitioner has not downloaded any pornographic
material.
12. Sri.M.K.Sumod, the learned counsel for the revision
petitioner in Crl.R.P.No.281/2023 relying on Manuel Benny v.
State of Kerala and Another (2022 KHC 3437) submitted that
since there is no material to show that the petitioner downloaded
child pornographic material the offences alleged are not attracted.
13. Sri.S.Rajeev, the learned counsel appearing for the
petitioner in Crl.R.P.No.221 of 2023 submitted that the prosecution
needs to adduce positive evidence to prove the age of the victim.
The prosecution has to prove that the victim is aged below 18
years. It is further submitted that the prosecution failed to prima
facie prove that the petitioner voluntarily downloaded any
pornographic material.
14. The learned Amicus Curiae Sri.Renjith B Marar
submitted the following:
(1) The offence of child pornography is not against the individual
model alone but against the entire society. It therefore
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
emphasizes the viewpoint of the audience which is the society at
large.
(2) Strict proof of the age of the model is not necessary. There
doesn't need to be any actual abuse of the child for the depiction of
the sexual activity to constitute child pornography. Therefore, the
age of the child which is the subject matter of the visual depiction
need not be brought to light by strict proof. What is necessary is
that the subject model needs to appear to depict the child. In the
case of digital image there cannot be any proof as to the age, as
the image is not born at all but only depicts a child. There could
also be instances wherein the child pornographic materials may be
stored or transmitted by the accused and the subject matter may
not be within the jurisdiction of the respective courts or the
investigating agency may find it difficult to ascertain the real age of
the person whose image is portrayed. Therefore, all that is
necessary to constitute child pornography is that to a prudent
man's wisdom, the person portrayed in the pornographic materials
appears to be a child. There could also be the assistance of expert
testimony in cases where there are doubts in the mind of the Court
as to the age of the model used in the pornographic material.
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
(3) The Court can rely on its own experience to decipher whether
the model used is a child. A case-to-case basis approach is
required.
(4) Given the anonymity of the internet, the identity of the children
depicted and their whereabouts are frequently unknown.
15. The learned Amicus Curiae Sri.Renjith B Marar
relied on the following decisions:-
(i) Regina v. Michael Land [1998] 1 All ER 403
(ii) John Lead better v. Her Majesty's Advocate [2020] HCJAC 51.
(iii) United States v. Katz 178 F.3rd 368 (1999).
(iv) K.A.Abbas v. Union of India [(1970) 2 SCC 780]
(v) Aveek Sarkar & Anr. v. State of West Bengal and others
[(2014) 4 SCC 257]
(vi) Common Wealth v. Robert, The Superior Court of
Pennsylvania 829 A.2d.1207.
16. The learned Amicus Curiae Sri.John S Ralph made
the following submissions:-
1. If the prosecution allegation is that a minor child (human being)
is used in the images, the prosecution has to prove the age except
in cases where the court can take judicial notice as in the case of
an infant or toddler.
2. If the image is that of a virtual child, age cannot be proved since
the image has no date of birth.
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
3. In such a case the objective test is to be applied to see whether the
intention of the accused was to store/possess etc. of child porn.
17. The petitioners are alleged to have committed offences
punishable under Section 15 of the POCSO Act and Section 67-B of the
I.T. Act. The relevant penal sections are extracted below:
18. Section 15 of the POCSO Act reads thus:-
"15. Punishment for storage of pornographic material
involving child.-- (1) Any person, who stores or possesses
pornographic material in any form involving a child, but fails to
delete or destroy or report the same to the designated authority,
as may be prescribed, with an intention to share or transmit child
pornography, shall be liable to fine not less than five thousand
rupees and in the event of second or subsequent offence, with fine
which shall not be less than ten thousand rupees.
(2) Any person, who stores or possesses pornographic
material in any form involving a child for transmitting or
propagating or displaying or distributing in any manner at any time
except for the purpose of reporting, as may be prescribed, or for
use as evidence in court, shall be punished with imprisonment of
either description which may extend to three years, or with fine, or
with both.
(3) Any person, who stores or possesses pornographic
material in any form involving a child for commercial purpose shall
be punished on the first conviction with imprisonment of either
description which shall not be less than three years which may
extend to five years, or with fine, or with both and in the event of
second or subsequent conviction, with imprisonment of either
description which shall not be less than five years which may
extend to seven years and shall also be liable to fine.
19. Section 67-B of the Information Technology Act
reads thus:
67B. Punishment for publishing or transmitting of material
depicting children in sexually explicit act, etc., in electronic
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
form.-Whoever,-
(a) publishes or transmits or causes to be published or
transmitted material in any electronic form which depicts children
engaged in sexually explicit act or conduct; or
(b) creates text or digital images, collects, seeks, browses,
downloads, advertises, promotes, exchanges or distributes material
in any electronic form depicting children in obscene or indecent or
sexually explicit manner; or
(c) cultivates, entices or induces children to online
relationship with one or more children for and on sexually explicit
act or in a manner that may offend a reasonable adult on the
computer resource; or
(d) facilitates abusing children online, or
(e) records in any electronic form own abuse or that of others
pertaining to sexually explicit act with children,
shall be punished on first conviction with imprisonment of either
description for a term which may extend to five years and with fine
which may extend to ten lakh rupees and in the event of second or
subsequent conviction with imprisonment of either description for a
term which may extend to seven years and also with fine which may
extend to ten lakh rupees:
xx xx xx
Explanation-For the purposes of this section, ―children
means a person who has not completed the age of 18 years."
20. Sub-section (1) of Section 15 of the POCSO Act makes
the act of storing or possessing pornographic material in any form
involving a child with an intention to share or transmit child
pornography. Sub-section (2) makes any act of storing or possessing
pornographic material in any form involving a child for transmitting or
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
propagating or displaying or distributing in any manner. Sub-section
(3) deals with the same overt acts committed for commercial purposes.
21. Child pornography is defined in Section 2(da) of the
POCSO Act as follows:-
"2(da) "child pornography" means any visual depiction of
sexually explicit conduct involving a child which includes
photograph, video, digital or computer generated image
indistinguishable from an actual child, and image created,
adapted, or modified, but appear to depict a child."
22. Section 2(da) takes in the following ingredients:
i. visual depiction of sexually explicit conduct
ii. involving a child
iii. image indistinguishable from an actual child
iv. appear to depict a child.
23. Sub-sections (a) and (b) of Section 67-B of the I.T. Act
make the acts referred to therein depicting children punishable.
24. A close reading of the relevant sections in the POCSO
Act and the I.T. Act makes it clear that depiction can only be through
artificial intelligence or through a work created to depict the image of a
child.
25. The intention of the legislation is to prohibit digital child
pornography. The legislature perceived the offence of child pornography
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
not against the individual model alone but against the entire society.
26. The offence of child pornography is treated as an
offence against the entire society emphasizing the viewpoint of the
audience, the society at large. In child pornography always there need
not be any actual abuse of the child.
27. In Regina v. Michael Land (supra), while dealing with
the offence under Section 1(1)(c) of the Protection of Children Act 1978
which makes possession of indecent photographs or pseudo
photographs of children with a view to their being distributed or shown,
the Royal Courts of Justice (The Strand, London WC2) considered the
nature of evidence to prove the age of the child involved. The Court,
while considering the question of whether the model involved did or
might depict a person under 16 observed that there is obvious difficulty
in making any positive identification of an unknown person depicted in a
photograph, hence his/her age, and therefore, underlines that the
question of whether such a person was a child for the purpose of the
1978 Act is one of fact based on inference without any need for formal
proof. The Court further held that there was no basis for concluding
that in the absence of pediatric or other expert evidence, the jury is
prevented from concluding that the indecent photograph depicts a boy
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
or a girl under the age of 16. In the jury trial, the Judge directed the
jury that in deciding whether it was proved that the photographs were
of a child the jury can do no more than use his/her own experience in
the judgment and his/her critical faculties in deciding the issue. The
Judge observed that it is simply an issue of fact for the jury to decide
what they have seen with their own eyes.
28. While constructing the term `obscenity' as provided in
Section 292 of the Indian Penal Code the Supreme Court in Aveek
Sarkar & Anr. v. State of West Bengal and others [(2014)4 SCC
257] applied the `community standard test' holding that Hicklin test
(R. v. Hicklin [(1868) LR 3 QB 360] which postulated that a
publication has to be judged for obscenity based on isolated passages of
a work considered out of context and judged by their apparent influence
on most susceptible readers, such as children or weak-minded adults, is
not a correct test to be applied to determine what is obscenity. The
Supreme Court observed that obscenity has to be judged from the point
of view of an average person, by applying contemporary community
standards. This view was reiterated by the Supreme Court in Apoorva
Arora v. State (Govt. of NCT of Delhi) [2024 KHC OnLine 6153].
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
29. In John Lead Better v. Her Majesty's Advocate
(2020 HCJAC 51), the Court, concerning the question of who is
competent to give evidence about whether an indecent photograph
depicts a child, held that proof that the subject of an indecent image
was of a person under the age of 16 did not require an expert witness.
A wide range of types of evidence might be available. It was necessary
to demonstrate that a skilled witness did have relevant knowledge and
experience to give evidence of fact, which was not based on personal
observation or of opinion. Where that was demonstrated, the witness
could draw on the general body of knowledge and understanding, the
Court observed following Griffiths v. Hart (2005 JC 313) and
Kennedy v. Concordia Services [2016 SC (UKSC) 6 at paras (42)
and (50)].
30. In Procurator Fiscal, perth v. Neil Macdonald Hart
(2005 SCCR 392), the Court, while dealing with the charge of
contravention of Section 52A(1) of the Civic Government (Scotland) Act
1982, considered the nature of evidence required for proving the age of
a child in a visual. The Court disagreed with the view in Regina v.
Michael Land and held as follows:-
"We must respectfully disagree with that view. In our
opinion, while there may be cases in which proof of the
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
essential facts in question may be achieved without
reference to an expert witness or witnesses, in other kinds
of cases, where the subject of the image may be
approaching the age of 16, there may be very considerable
difficulty for the fact-finding tribunal in that regard. In
such cases, the evidence of one or more expert witnesses
may well be necessary in practice to enable the Crown to
prove that the subject of an image is under 16 years of
age."
31. In United States v. Katz (supra) on the question of
whether the age of a model in a child pornography can be determined
by a lay jury without the assistance of expert testimony, the Court held
thus:-
"20. Implicit in the district court's ruling is the finding
that the age of the models had to be determined by expert
testimony. The ruling was no doubt influenced by the
government's position embracing the need for, and
advocating the admissibility of, expert testimony on this
issue. On appeal, the government changes its position and
argues that a lay jury could determine the age of the post-
puberty models without any assistance from its own expert,
citing United States v. Lamb, 945 F.Supp.441 (N.D.N.Y.1996)
(declining to require the government to prove the age of the
persons depicted by expert testimony); United States v.
Gallo, 846 F.2d 74, 1988 WL 46293, at 4 (4 th Cir.1988)
(table), ("expert testimony as to age, while perhaps helpful in
some cases, is certainly not required as a matter of course.");
United States v. Villard, 700 F.Supp.803, 814 (D.N.J.1988)
(noting that "the jury can examine the photographs in
question and determine for itself whether the individual is
under eighteen years of age.")
21. The threshold question - whether the age of a
model in a child pornography prosecution can be determined
by a lay jury without the assistance of expert testimony -must
be determined on a case by case basis. As the government
correctly points out, it is sometimes possible for the fact
finder to decide the issue of age in a child pornography case
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
without hearing any expert testimony. See United States v.
O'Malley, 854 F.2d 1085 (8th Cir.1988) (defendant's letters
describing the models in the pictures as a "twelve-year-old
girl" and "younger than nine]," combined with the pictures
themselves, sufficient to sustain a child pornography
conviction). However, in other cases, the parties have been
allowed to present conflicting expert testimony. See United
States v. Anderton, 136 F.3d 747, 750 (11 th Cir.1998)
(Government's expert, a medical doctor with expertise in
adolescent growth and development, testified that the models
were between eleven and fifteen and a half. Defendant's
expert, a clinical psychologist and sex therapist, testified that
the ages of the models could not be determined.) In yet
other cases, one party presents expert testimony, while the
other does not. See United States v. Broyles, 37 F.3d 1314,
1316 (8th Cir.1994) (Government presented the expert
testimony of a pediatric endocrinologist and Broyles presented
no evidence). A case by case analysis will encounter some
images in which the models are prepubescent children who
are so obviously less than 18 years old that expert testimony
is not necessary or helpful to the fact finder. On the other
hand, some cases will be based on images of models of
sufficient maturity that there is no need for expert testimony.
However, in this case, in which the government must prove
that a model, who is post-puberty but appears quite young, is
less than eighteen years old, expert testimony may well be
necessary to "assist the trier of fact to understand the
evidence or to determine a fact in issue." Fed.R.Evid. 702."
32. In United States of America v. T.Glenn Anderton (supra)
the Court relied on expert testimony as evidence. In United States v.
Broyles, (37F 3d 1314, 1316 (8th Dir 1994) the Court relied on the
testimony of a pediatric endocrinologist to determine the age of the child in a
video. The Court also relied on the expert testimony to find the age of the
child.
33. In Commonwealth v. Robert (829 A.2d.127), the
Superior Court of Pennsylvania observed that proof of age, like proof of
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
any material fact, can be accomplished by the use of either direct or
circumstantial evidence, or both. The proof necessary to satisfy the
element of age in a dissemination or possession of child pornography
case is not limited to expert opinion testimony.
34. The learned Amicus Curiae Sri.Renjith B. Marar
submitted that given the anonymity of the internet, the identity of the
children depicted and their whereabouts were frequently unknown.
Thus conventional means of proving age such as birth certificates or
testimony of a relative are usually unavailable. The learned Amicus
Curiae contended that requiring law enforcement officials to track down
and identify the children depicted to successfully prosecute a child
pornography case would defeat the very intention of the child
pornography statute and destroy its efficacy as a preventive measure in
the sexual exploitation of children.
35. The learned Amicus Curiae submitted that in
determining the age of the children the Courts can invoke Section 45 of
the Indian Evidence Act to form an opinion upon the age of the model in
a given case.
36. The learned Amicus Curiae Sri.John S Ralph however,
contended that the witness who says that the image is that of a child
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
will not satisfy the definition of an `expert' within the meaning of the
Indian Evidence Act and therefore, his opinion cannot substitute proof
regarding the age of the child.
37. Section 45 of the Indian Evidence Act reads thus:-
"45. Opinions of experts
When the court has to form an opinion upon a
point of foreign law, or of science or art; or as to identity
of handwriting or finger impressions, the opinions upon
that point of persons specially skilled in such foreign law,
science or art, or in questions as to identity of
handwriting or finger-impressions are relevant facts.
Such persons are called experts."
38. Section 45 of the Indian Evidence Act is an exception to
the rule as regards the exclusion of opinion evidence. An expert within
the meaning of Section 45 is one who has devoted time and study to a
special branch of learning. He is specially skilled in those points on
which he is asked to state his opinion. The Opinion of the expert is only
an opinion on evidence.
39. It is a general rule that the opinion of witnesses
possessing peculiar skill is admissible, whenever the subject matter of
enquiry is such that inexperienced persons are unlikely to form a
correct judgment upon it without such assistance. In other words, this
is so when it so far partakes of the character of a science or art as to
require a course of previous habit or study to obtain a competent
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
knowledge of its nature.
40. An expert to be competent as a witness need not have
acquired his knowledge professionally. It is sufficient so far as the
admissibility of the evidence goes if he has acquired special experience
therein. The only thing is that the expert must show that he is skilled
and has adequate knowledge and experience on the subject.
41. Both under Sections 45 and 47 of the Indian Evidence
Act, the evidence is of an opinion, in the former by a scientific
comparison and in the latter based on familiarity resulting from
frequent observations and experience.
42. In either case the Court must satisfy itself by such
means as are open that the opinion may be acted upon.
43. Phipson on Evidence (Sixteenth Edn at 33-09
page 971) states as follows:-
"Even at common law the opinions of skilled witnesses were
admissible wherever the subject is one upon which
competency to form an opinion can only be acquired by a
course of special study or experience."
44. Phipson (Eighteenth Edn at 33-62 page 1189)
further states thus:-
"Though the expert must be "skilled", by special study or
experience, the fact that he has not acquired his knowledge
professionally goes merely to weight and not to
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
admissibility.... Equally, one can acquire expert knowledge in
a particular sphere through repeated contact with it in the
course of one's work, notwithstanding that the expertise is
derived from experience and not from formal training."
45. In State v. S.J. Choudhary [(1996) 2 SCC 428],
overruling Hanumant Govind Nargundkar v. State of M.P. [(1952)
2 SCC 71 : AIR 1952 SC 343] the Supreme Court held that the
opinion of an expert in regard to 'typed script' would fall within the
ambit of Section 45 of the Evidence Act. The court held that opinion of
a person specifically skilled in the use of typewriters and having
scientific knowledge of typewriters would be an expert in the science
and his opinion about the identity for the purpose of identifying the
particular typewriter on which the writing is typed is a relevant fact
under Section 45 of the Evidence Act. Viewed on the touchstone of the
principles discussed above, I hold that giving an opinion on the age of a
model in a visual by a pediatrician is `science' occurring in Section 45 of
the Act.
46. Conclusions
(1) The provisions dealing with the offence of child pornography
punishable under Section 15 of the POCSO Act and the offence of
publishing or transmitting material in electronic form depicting children
engaged in sexually explicit acts or conduct punishable under Section
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
67-B of the Information Technology Act are to be constructed
emphasizing the viewpoint of the audience, the society at large.
(2) There need not be any strict proof as regards the age of the model
in every case of child pornography. What is relevant is whether the
model appears to be a child.
(3) If the image is that of an infant or toddler, the court can take
judicial notice of the fact that the image is that of a child and proceed
by framing charge.
(4) The question of whether the age of a model used in a child
pornography prosecution is below 18 years is to be answered on a
case-by-case analysis. In some cases, there need not be any strict
proof as regards the age where the appearance of the model is
explicitly that of a child aged below 18 years. In such cases, the fact
finder can decide the issue of age without the assistance of an expert
testimony.
(5) In some cases, the model involved might depict a person close to
the age of 18. The fact finder will find it difficult to arrive at a
conclusion as to the age. In such cases, the fact finder may rely on the
opinion of a pediatrician or an expert in the field. In the case where the
model depicts a boy or girl under the age of 16, the fact finder may
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
decide based on the experience, using his/her critical faculties in
deciding the issue. However, the conclusions are always open to
challenge by the defence and the burden of proof shifts in accordance
with Chapter VII of the Indian Evidence Act.
(6) In cases of marginal nature the opinion of the experts, including
pediatrician and forensic experts, is necessary for arriving at
conclusions on the age.
(7) In cases where special circumstances are pleaded as to the age of
the model, it is the burden of the party who pleads it to prove the
existence of such special circumstances or exceptions, as the case may
be.
(8) Prosecution need not always establish the identity of the model as it
is practically impossible and insistence on identification of the child and
proof of the age as in the case of other offences under the POCSO Act
will defeat the intention of the statute. The fact-finding on the age,
being an integral part of the offence, the prosecution has to place the
material before framing of charge.
47. The petitioner is alleged to have committed the offences
punishable under Sections 67 & 67-B of the I.T. Act and Section 15 of
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
the POCSO Act. The report of the Forensic Science Laboratory
(Annexure-A4) prepared after examining the mobile phone and the
memory card reads thus:-
"14. Results of Examination:
1. Child pornographic image files were retrieved from the
questioned mobile phone marked Q1. The soft copy UFED
report containing details of image files and other data
retrieved from the questioned mobile phone marked Q1 are
enclosed in a folder `Recovered from Q1' in Annexure-1
DVD.
2. Video/picture files depicting child pornography were not
detected amongst the data retrieved from the questioned
memory card marked."
In view of the finding of the expert that videos/picture files
depicting child pornography were not detected amongst the data
retrieved from the memory card, the continuation of the
prosecution against the petitioner in S.C.No.971/2021 on the file of
the Additional District & Sessions Court, Ernakulam is an abuse of
process of law as the prosecution failed to prima facie establish the
ingredients of the offences alleged against the petitioner. The case
comes under category (3) as enumerated in State of Haryana
and Others v. Bhajan Lal and Others [(1992) SCC (Cri.) 426]
case. Therefore, the FIR, final report and all further proceedings in
S.C.No.971/2021 stand quashed.
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
Crl.R.P.Nos.70, 221 and 281 of 2023
48. In these criminal revisions challenge is to the
orders rejecting the applications seeking discharge under Section
227 Cr.P.C. In these cases, the trial Courts have not considered
the question of whether the image used is that of the child in the
backdrop of the conclusions arrived at above. Therefore, the
orders dismissing Crl.MP.Nos.575/2022, 6/2022 and
CMP.No.48/2022 stand set aside and the trial Courts are directed
to reconsider the applications in accordance with law.
49. The petitioner in this case is alleged to have
committed the offences punishable under Sections 15(1) & 15(2)
of the POCSO Act and Section 67-B(b) of the I.T. Act. The case of
the prosecution is that the mobile phone of the accused therein
contained naked videos and photos of minor girls. The prosecution
has specifically alleged that the petitioner intentionally stored child
pornographic content. It is submitted that the prosecution has
failed to establish the age of the model used to attract the offences
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
alleged. This Court is of the view that it is not a case where this
Court can quash further proceedings at this stage. However, the
petitioner is to be allowed to seek discharge before the trial Court.
Therefore, the Crl.M.C. is closed giving liberty to the petitioner to
file an application under Section 227 Cr.P.C. before the trial Court.
50. All the Crl.M.Cs and Crl.R.Ps are disposed of as
above. I make it clear that I have not gone into the merits of the
allegations contained in the cases considered.
Before parting with these cases, this Court places on
record its appreciation to the learned Counsel Sri.Renjith B Marar
and Sri.John S Ralph, for their valuable assistance as Amici Curiae.
Sd/-
K.BABU
Judge
TKS
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
PETITIONER ANNEXURES
ANNEXURE-A1 CERTIFIED COPY OF THE FIR NO.0351/21020
DATED 27.06.2020 OF THE HOSDURG POLICE
STATION
ANNEXURE-A2 CERTIFIED COPY OF THE FINAL REPORT DATED
31.10.2020 IN SC NO.519/2020 ON THE FILE
OF THE ADDL.DISTRICT AND SESSIONS COURT,
KASARAGO
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
PETITIONER ANNEXURES
Annexure-A1 THE TRUE COPY OF THE SEARCH LIST DATED
04.10.2020 PREPARED BY THE 2ND RESPONDENT
Annexure-A2 CERTIFIED COPY OF THE F.I.R NO. 0503/2020
OF INFO PARK POLICE STATION REGISTERED ON
04.10.2020
Annexure-A3 CERTIFIED COPY OF THE CHARGE SHEET FILED
BY THE 2ND RESPONDENT IN CRIME
Annexure-A4 TRUE COPY OF THE EXAMINATION REPORT OF
REGIONAL FORENSIC LABORATORY, KOCHI
Annexure-A5 CERTIFIED COPY OF THE ORDER DATED
01.11.2022 IN CMP NO.468/2022 IN
S.C.971/2021ON THE FILE OF ADDL. DISTRICT
AND SESSIONS JUDGE, ERNAKULAM (FOR THE
TRIAL OF CASES RELATING TO ATROCITIES &
SEXUAL VIOLENCE AGAINST WOMEN AND
CHILDREN)
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
APPENDIX OF CRL.REV.PET 70/2023
PETITIONER ANNEXURES
Annexure A1 3. THE CERTIFIED COPY OF THE FIR IN CRIME
NO 1170/2020 DATED 04/10/2020 OF THE
VIYYUR POLICE STATION, THRISSUR
Annexure A2 4. THE CERTIFIED COPY OF THE FINAL REPORT
IN CRIME NO 1170/2020 DATED 30/12/2021 OF
THE VIYYUR POLICE STATION, THRISSUR
Annexure A3 5. THE CERTIFIED COPY OF THE S.161
STATEMENTS OF THE WITNESSES IN CRIME NO
1170/2020 DATED 05/10/2020 TO 05/07/2021
OF THE VIYYUR POLICE STATION, THRISSUR
Annexure A4 6. THE CERTIFIED COPY OF THE CYBER-
FORENSIC REPORT IN CRIME NO 1170/2020
DATED 29/12/2021 OF THE VIYYUR POLICE
STATION, THRISSUR
Annexure A5 7. THE CERTIFIED COPY OF THE IT
CERTIFICATE IN CRIME NO 1170/2020 DATED
17/08/2021 OF THE VIYYUR POLICE STATION,
THRISSUR
Annexure A6 8. THE CERTIFIED COPY OF THE COURT CHARGE
FRAMED AGAINST THE ACCUSED IN SC 289/2022
DATED 17/01/2023 OF THE (FAST TRACK)
SPECIAL JUDGE, THRISSUR
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
APPENDIX OF CRL.REV.PET 221/2023
PETITIONER ANNEXURES
Annexure-I A TRUE COPY OF THE FIR IN CRIME NO
2880/2020 KOTTARAKARA POLICE STATION,
KOLLAM DISTRICT
Annexure-II A TRUE COPY OF THE FINAL REPORT IN CRIME
NO. 2880/2020 KOTTARAKARA POLICE STATION,
KOLLAM DISTRICT
Crl.M.C.Nos.1736 of 2021, 2231 of 2023 and
APPENDIX OF CRL.REV.PET 281/2023
PETITIONER'S ANNEXURES
Annexure A1 CERTIFIED COPY OF THE FIR IN CRIME NO.
1499/2020 OF THE KANNUR TOWN POLICE
STATION DATED 4.10.2020.
Annexure A2 CERTIFIED COPY OF THE MEMO OF EVIDENCE IN
CRIME NO 1499/20 OF KANNUR TOWN POLICE
STATION
Annexure A3 CERTIFIED COPY OF THE "CYBER FORENSIC
ANALYSIS REPORT" DATED: 02/12/2020
Annexure A4 CERTIFIED COPY OF THE FINAL REPORT DATED:
17/12/2020 IN THE CRIME NUMBER 1499/2020
OF KANNUR TOWN POLICE STATION.
Annexure A5 CERTIFIED COPY OF THE ORDER DATED:
17/01/2023 IN CMP 48/2022 IN SC 20/21 OF
THE FAST TRACK SPECIAL JUDGE (FTSC),
KANNUR.
