Madras High Court
Thavamani vs The State Rep. By on 18 June, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.A.No.586 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.06.2025
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.586 of 2025 &
Crl.MP.No.10588 of 2025
Thavamani ... Appellant
Vs.
The State rep. by
The Inspector of Police,
Eriyur Police Station,
Dharmapuri District
(crime No.44 of 2020) ... Respondent
PRAYER: Criminal Appeal filed under Section 415(2) of BNSS, 2023,
praying to call for the entire records in connection with the
Spl.S.C.No.26 of 2021 on the file of the learned Fast Track Magalir
Neethimandram, Dharmapuri, Dharmapuri District and set aside the
judgment dated 22.01.2025.
For Appellant : Mr.E.Kannadasan
For Respondent : Mr.S.Raja Kumar,
Additional Public Prosecutor
1/32
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Crl.A.No.586 of 2025
JUDGMENT
This criminal appeal has been preferred against the judgment
passed in Spl.S.C.No.26 of 2021 on the file of the learned Fast Track
Magalir Neethimandram, Dharmapuri, Dharmapuri District dated
22.01.2025, thereby convicting the appellant for the offence punishable
under Sections 363 & 366 of IPC, Section 9 of Prohibition of Child
Marriage Act and Section 5(l) r/w 6(1) of POCSO Act.
2. The case of the prosecution is that the minor victim girl fell
in love with the appellant 1 ½ years before the date of the occurrence.
After knowing the love affair between the appellant and the victim, the
defacto complainant advised the victim not to talk with the appellant.
However, the appellant enticed the victim under the pretext of loving her
and marrying her. On 21.03.2020 at about 5 p.m., the appellant
kidnapped the victim from her house on his motor cycle with an intention
to marry and have sexual intercourse with her. They went to Bangalore
and the appellant tied thali to the victim. They stayed there till
03.05.2020 in a rental house. On their stay, the appellant had committed
aggravated penetrative sexual assault on the victim. After knowing the
complaint lodged by the defacto complainant and registration of FIR in
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crime No.44 of 2020 under “girl missing”, the victim girl and the
appellant came to their respective houses. Thereafter, on recording the
statement of victim, the respondent altered the offence into offence under
Sections 363 & 366 of IPC, Section 9 of Prohibition of Child Marriage
Act and Section 5(l) r/w 6(1) of POCSO Act. After completion of
investigation, final report was filed and the same was taken cognizance
by the trial court.
3. On the side of the prosecution, they had examined PW1 to
PW17 and marked Ex.P1 to Ex.P21. The prosecution produced a material
object as M.O.1. On the side of the appellant, no one was examined and
no documents were marked. On perusal of oral and documentary
evidences, the trial court convicted and sentenced the appellant for the
offence punishable under Section 363 of IPC to undergo five years
rigorous imprisonment with fine of Rs.5,000/-, in default, to undergo six
months imprisonment; under Section 366 of IPC to undergo five years
rigorous imprisonment with fine of Rs.5,000/-, in default, to undergo six
months imprisonment; under Section 9 of Prohibition of Child Marriage
Act, to undergo one year rigorous imprisonment with fine of Rs.1,000/-,
in default, to undergo three months imprisonment; and under Section 5(l)
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r/w 6(1) of POCSO Act, to undergo twenty years rigorous imprisonment
with fine of Rs.10,000/-, in default to undergo twelve months
imprisonment. Aggrieved by the aforesaid orders, the appellant has filed
this criminal appeal.
4. The learned counsel for the appellant would submit that the
prosecution failed to prove the age of the victim. In order to prove the
age of the victim, the certificate issued by the school where the victim
had studied, was marked as Ex.P12 through the headmaster of the school.
In fact, the entry in the school record was not supported by any document
such as birth certificate. Therefore, the prosecution miserably failed to
prove the age of the victim to convict the appellant herein under
Prohibition of Child Marriage Act and POCSO Act. He further submitted
that when the age of the victim was not proved by the prosecution, even
according to the case of the prosecution, the victim herself eloped with
the appellant since they already fell in love with each other to get
married. Accordingly, they went to Bangalore and got married in a
temple. Thereafter, they stayed in a rental house and lived as husband
and wife. After knowing the complaint lodged by the parents of the
victim girl, they themselves went to their respective houses. He also
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relied upon the statement recorded under Section 164 of Cr.P.C, in which
the victim did not even whisper that the appellant forcibly kidnapped her
and had committed penetrative sexual assault on her. Therefore, it is a
case of love affair and even according to the case of the prosecution, the
victim was aged above 17 years. Since the age of the victim was 18 years
under POCSO Act, the appellant was charge sheeted and convicted for
the offence punishable under Sections 363 & 366 of IPC, Section 9 of
Prohibition of Child Marriage Act and Section 5(l) r/w 6(1) of POCSO
Act.. In support of his contention, he relied upon the judgment of the
Hon'ble High Court of Bombay in the case of Ashik Ramjali Ansari Vs.
State of Maharashtra and another reported in 2023 SCC Online Bom
1390.
5. Per contra, the learned Additional Public Prosecutor
appearing for the respondent would submit that in order to prove the age
of the victim, the prosecution marked Ex.P12 through PW12, who is the
headmaster of the school in which the victim was studying. As per the
school records, the victim’s date of birth was recorded as 02.06.2003.
Therefore, on the date of the occurrence, the victim was minor. Hence,
the impugned judgment does not require any interference by this Court.
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6. Heard, the learned counsel appearing on either side and
perused, all the materials placed before this Court.
7. In this appeal, the points for consideration are as follows:
(i) Whether the prosecution has proved the age of
the victim as minor on the date of the alleged
occurrence?
(ii) If the prosecution failed to prove the age of the
victim, whether the appellant is liable to be convicted for
the offence punishable under Sections 363 & 366 of IPC,
Section 9 of Prohibition of Child Marriage Act and
Section 5(l) r/w 6(1) of POCSO Act?
8. Admittedly, the victim girl fell in love with the appellant 1
½ years prior to the date of the occurrence i.e. 21.03.2020. On
21.03.2020, the victim heard about arrangement of her marriage after
completion of her 12th standard. It was informed by the victim to the
appellant herein. Therefore, the victim suggested to elope somewhere to
get married. Thereafter, the appellant informed the victim and he picked
her upon his two wheeler. Thereafter, they went to Bangalore by bus on
23.03.2020. they got married by tying thali in a temple situated in
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Bangalore. Thereafter, they had taken a house for rent owned by PW10.
They lived together as husband and wife and had physical relationship.
In order to prove the age of the victim, the prosecution marked Ex.P12,
the school certificate issued by PW12. On perusal of Ex.P12, it is nothing
but certificate issued by the headmaster-PW12 showing that at the time
of her admission into school, her date of birth was mentioned as
02.06.2003. PW12 also deposed that he issued certificate on the basis of
the school record in which the birth of the victim was recorded as
02.06.2003. Thus it is clear that the prosecution failed to mark any other
document in support of the certificate-Ex.P12 issued by PW12. In this
regard, it is relevant to rely on the judgment of this Court rendered in
Crl.A.No.607 of 2018 dated 11.11.2022, wherein it is held as follows:
“11. The learned counsel for the appellant vehemently
contended that the prosecution failed to prove the age of the
victim. In order to prove the age of the victim, the prosecution
produced Exs.P5 and P6. The school certificate of the victim
was marked as Ex.P5. Admission register was marked as Ex.P6.
Though the prosecution has produced the school certificate, it
failed to prove that the admission of the victim to the school was
made on production of date of birth certificate and the date of
birth entered in the school register is the correct date of birth of
the victim. Further the victim did not produce any date of birth
certificate and the prosecution failed to produce any other
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documents to show that the victim was born on 25.02.2001. In
fact, it is also contradictory to the charge since the charge framed
against the accused shows as though the victim was born on
14.05.1999. In order to ascertain the age of the minor girl, there
is no procedure as contemplated under the POCSO Act.
Therefore, the procedure as contemplated under Section Juvenile
Justice (Care and Protection of Children) Rules, 2007 should
come to surface. In this regard, the law has been settled by the
Hon'ble Division Bench of this Court as well as the Hon'ble
Supreme Court of India that the procedure prescribed under the
Juvenile Justice (Care and Protection of Children) Rules, 2007
has to be followed.
12. It is relevant to extract Rule 12(3) of the Juvenile
Justice (Care and Production of Children) Rules, 2007 reads as
follows :
“12. Procedure to be followed determination of Age :-
(1) xxxxxx
(2) xxxxxx
(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 :-
(a)(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 ;
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(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 and, while passing orders in such case shall, after taking
into considerations 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 to conflict with law.
13. In the case on hand, admittedly, the prosecution
failed to prove the date of birth of the victim and also failed to
produce any evidence to show that the victim was admitted in
the school by producing the birth certificate. It is well settled that
an entry of the date of birth made in the school admission
register would have evidentiary value only if there is material
available based on which the age was so recorded. The Hon'ble
Division Bench of this Court in Criminal Appeal No.487 of 2019
in the case of M.Marimuthu Vs. The State, represented by the
Inspector of Police, All Women Police Station, Srivaikuntum,
Titicorin dated 18.10.2022 held as follows :
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“17. In the instant case, the matriculation or equivalent
certificate of the victim is not available as she deposed that she
gave up studies after 9th class. Rule 12(3)(a) contemplates that
in the absence of the matriculation or equivalent certificate, the
date of birth certificate from the school first attended can be
used as evidence to determine the age of a child. Mr.Ashok
Kumar Chaudhary (PW-3), a teacher in the school where the
victim has studied, had produced the school records, which
showed that the victim was admitted in MC Primary School,
Vikas Block Sirsia, District Sarawasti, UP in class-I on
12.08.2005. The school record notes her date of birth as
10.01.2000. However, PW-3 went on to state that there is no
other record of admission of the victim available in the school
and nor could he state as to what was the nature of the
document submitted by the victim's parents at the time of her
admission, for recording her date of birth in the school register.
18. It is well settled that an entry of the date of birth
made in the school admission register would have evidentiary
value only if there is material available based on which the age
was so recorded. In the case of Brij Mohan Singh vs. Priya Brat
Narain Sinha and Ors. reported as AIR 1965 SC 282, the
Supreme Court held that an entry of birth recorded in the school
register maintained by an illiterate Chowkidar, was not
admissible and had no probative value within the meaning of
Section 35 of the Indian Evidence Act. For ready reference,
Section 35 of the Indian Evidence Act is reproduced below:-
“35. Relevancy of entry in public [record or an
electronic record] made in performance of duty.- An entry in
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any public or other official book, register or [record or an
electronic record], stating a fact in issue or relevant fact, and
made by a public servant in the discharge of his official duty, or
by any other person in performance of a duty specially enjoined
by the law of the country in which such book, register, or
[record or an electronic record] is kept, is itself a relevant
fact.”
19. In Birad Mal Singhvi vs. Anand Purohit reported as
1988 Supp. SCC 604, where a question arose with regard to
eligibility of a candidate participating in an election to the State
Legislative Assembly, in the context of attaining the age of 25
years as stipulated, the Supreme Court held as below:-
15........Section 35 of the Indian Evidence Act lays down
that entry in any public, official book, register, record stating a
fact in issue or relevant fact and made by a public servant in the
discharge of his official duty specially enjoined by the law of the
country is itself the relevant fact. To render a document
admissible under Section 35, three conditions must be satisfied,
firstly, entry that is relied on must be one in a public or other
official book, register or record; secondly, it must be an entry
stating a fact in issue or relevant fact; and thirdly, it must be
made by a public servant in discharge of his official duty, or any
other person in performance of a duty specially enjoined by law.
An entry relating to date of birth made in the school register is
relevant and admissible under Section 35 of the Act but the entry
regarding the age of a person in a school register is of not much
evidentiary value to prove the age of the person in the absence
of the material on which the age was recorded. ...” (emphasis
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added)
20. The probative value of the entry regarding the date of
birth made in a school register has come up for consideration by
the Supreme Court and the High Courts in several other cases
and the common view expressed is that no probative value can
be attached to such a record unless and until the parents are
examined or the person on whose information the entry may
have been made, is examined.
21. In Sushil Kumar vs. Rakesh Kumar reported as AIR
2004 SC 230, the Supreme Court held thus:-
“34. In the aforementioned backdrop the evidences
brought on record are required to be considered. The Admission
Register or a Transfer Certificate issued by a Primary School do
not satisfy the requirements of Section 35 of the Indian Evidence
Act. There is no reliable evidence on record to show that the
date of birth was recorded in the school register on the basis of
the statement of any reasonable person.“
14. Thus, it is clear that the entry of the birth record in the
school register is not admissible under Section 35 of the Evidence
Act. Therefore, the prosecution failed to prove the age of the
victim whether she was minor at the time of occurrence. The
evidence shows that the victim fell in love with the accused and
had physical relationship.....”
9. Thus it is clear that the entry of the birth recorded in the
school register is not admissible under Section 35 of Evidence Act
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without production of any supporting document There is no reliable
evidence on record to show that the date of birth was recorded in the
school register on the basis of the statement of reasonable person. Hence,
the entry recording the age of a person in a school register is of not much
evidenciary value to prove the age of the person in the absence of
material on which the age was recorded in the school register. Therefore,
the prosecution miserably failed to prove the age of the victim whether
she was minor at the time of the alleged occurrence. Further, the
statement recorded under Section 164 of Cr.P.C. was marked as Ex.P3.
On perusal of the Ex.P3, it is revealed that the victim fell in love with the
appellant and only on her instruction, the appellant had come to her
house and both eloped to Bangalore. In Bangalore, they got married in
the presence of a temple and lived together as husband and wife in a
rental house owned by PW10. It is also evident from the deposition of
PW10 that both came to his house for rent. They also represented that
both are husband and wife. During their stay, they had physical
relationship. It is also reiterated in the deposition of the victim as
follows:
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M$h; vjphp v';fs; Ciu nrh;e;jth;/ mtUk; ehDk; xd;wiu
tUlkhf fhjypj;Jte;njhk;/ nkw;go tptuk; vd; mk;kht[f;F bjhpe;J
vd; mk;kh vd;id jpl;odhh;/ mij ehd; vjphpaplk; Twpndd;/ mjd;
gpwF ehd; gs;spf;F ngha;bfhz;oUe;njd;/ 24/03/2020k; njjp ,Ue;j
bfkp!o; hp ghPli
; rf;fhf tpLKiw tplo; Ue;jhh;fs;/ 21/03/2020 njjp
khiy 5 kzpf;F fhl;Lgf;fk; brd;W tUtjhf mk;khtplk; TwptplL
;
nl';f; gf;fk; brd;wnghJ vjphp jpUkzk; bra;Jbfhs;syhk; ahUk;
xd;Wk; bra;a khl;lhh;fs; vd Twpdhh;/
vjphp TN 29 AP 4345 vd;W gjpbtz; bfhz;l CBZ vd;w
,Urf;futhfdj;jpy; te;jpUe;jhh;/ nkw;go ,Urf;futhfdj;jpy; ehDk;
vjphpa[k; bry;yKoapy; cs;s vjphpapd; tPlo; w;F brd;nwhk;/ md;wput[
m';nfna j';fpndhk;/ 22/03/2020 njjpapy; ngUe;Jfs; Xlhjjhy;
md;Wk; m';nfna j';fpapUe;njhk;/ 23/03/2020k; njjp bry;yKoapypUe;J
nkr;nrhpf;F ngUe;jpy; brd;nwhk;/ m';fpUe;J nryk; brd;W bg';fS:h;
brd;W bjg;gFo vd;w CUf;F brd;nwhk;/ bjg;gFoapy; cs;s
tpehafh; nfhapypy; 24/03/2020k; njjpapy; fhiy Rkhh; 8. 9 kzpastpy;
vjphp kë;rs; bfhk;gpy; jhyp fapw;iw vd; fGj;jpy; fl;odhh;/
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vjphpf;F bjhpe;j Rnuû; vd;gthplk; tPL thliff;F nfl;L Rnuû;
vd;gth; ghyd; vd;gthplk; nfl;L mtUf;F bjhpe;j md;idag;gh
vd;gthplk; tPL thliff;F vLj;J m';F j';fpndhk;/ m';F fl;ol
ntiy ele;J bfhz;oUe;jjhy; vjphp m';F ntiyf;F brd;Wtpll; hh;/
vjphp ,utpy; tPL jpUk;gp ekf;Fjhd; jpUkzk;; Mfptpl;lnj jg;g[
,y;iy vd;W Twp vd;Dld; clYwt[ bfhs;thh;/ jpdKk; ,njnghy;
Twp vjphp vd;Dld; clYwt[ bfhs;thh;/
gpd;dh; xU ehs; vd; mk;kh fhty; epiyaj;jpy; g[fhh;
mspj;jpUe;jJ vjphpf;F bjhpe;Jtpll; J/ gpur;rid ntz;lhk; Chpy;
bfhz;L brd;W tpl;LtpLfpnwd; vd;W Twp 04/05/2020k; njjp fha;fwp
tz;oapy; ehDk; vjphpa[k; bgd;dhfuk; te;njhk;/ gpd;dh; ehd; kl;Lk;
m$;$dms;sp te;njd;/ m';fpUe;J ehd; ,ut[ 7 kzpastpy; tPlo; w;F
brd;Wtpl;nld;/ vd; mk;kh vd;dplk; ehd; v';nf brd;nwd; vd;W
nfl;lhh;/ vd; mk;khtplk; ehd; ele;jij Twpndd;/ gpd;dh; vd; mk;kh
vd;id Vhpa{h; fhty; epiyak; miHj;Jr; brd;whh;/
10. Therefore, the victim on her own, that too on her
instruction, eloped with the appellant and got married. When the
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prosecution failed to prove the age of the victim, no charge is made out
under Sections 363 and 366 of IPC and Section 9 of Prohibition of Child
Marriage Act. Even assuming that the victim girl was minor on the date
of the alleged occurrence, she completed her 17 years of age. In this
regard, the Hon'ble High Court of Bombay in the case of Ashik Ramjali
Ansari Vs. State of Maharashtra and another reported in 2023 SCC
Online Bom 1390, held as follows:
“36. The version of the love affair, which has come
through the PW 4 i.e. the prosecutrix, make it evident that as
an adolescent, crossing the age of 17, but not yet attained the
age of majority i.e. 18 years, she was in the gray area of age,
where she was smitten, but at the same time was unable to
decide herself, legally and validly considering that she was a
minor and still required some more months to pass, till she
attain majority. The prosecutrix was clear in her version and
about her expectation from her own life, fully aware and
ready for taking the consequences flowing from the
relationship, she was maintaining with the accused, a man
aged 25 years. In such a scenario, a question arises, when
there is a consensual relationship maintained between the
two and the prosecutrix never alleged that the physical
relationship was maintained by the accused with her, without
her consent or against her will, whether the conviction of the
accused under Section 376 of IPC and Sections 4 and 6 of the
POCSO Act is justiciable.
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37. The POCSO Act, which is specifically enacted for
protection of a “child” being defined as any person below the
age of 18 years, is not dependent upon the factor of
“consent”. In offence of sexual assault, since Section 375 is
attracted whenever a man commits an act of “rape” with a
woman with or without her consent, when she is under 18
years of the age, that is making the consent of a girl, who has
not attend majority, immaterial and, hence, inconsequential.
38. The need was felt for special enactment to protect
the children from sexual assault, sexual harassment and
pornography, keeping in mind Clause (3) of Article 15 of the
Constitution, which empower the State to make special
provision for the children and the Government of India
having acceded to the Convention on the Rights of the child,
contemplated by the General Assembly of the United Nations,
which prescribe a set of standards to be followed by all State
parties in securing the best interest of the child. A law was,
therefore, needed which would operate in the best interest
and well being of the child, to be regarded as being
paramount importance at every stage, to ensure his healthy,
physical, emotional, intellectual and social development.
Apart from this, Article 39 of the Constitution of India, also
provided that the State shall, in particular, direct its policy
towards securing that the tender aged children are not
abused and their childhood and youth is protected against
exploitation, so that they are afforded opportunities and
facilities to develop in a healthy manner, conditioned with
freedom and dignity.
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39. The salient features of the Act enacted by the
Parliament in form of the POCSO Act, 2012, being a gender
neutral enactment, which regarded the best interest and well
being of the child as of paramount importance at every stage,
so as to cater the physical, emotional, intellectual and social
development of a child, considered as vulnerable, to
exploitation.
40. All those acts covered by the POCSO Act of 2012,
whether it is an act of ‘aggravated penetrative sexual
assault’, ‘aggravated sexual assault’, ‘sexual assault’ with a
definite meaning assigned to it under the enactment, amount
to offence, when committed against a child i.e. a person
below age of 18 years.
41. It is little more than a decade that the special Act
is in operation and pertinent to note that at the time of
introduction of the POCSO Act, “age of consent” for
unmarried girl was 16 and it was presumed that any one
below this age cannot lawfully consent to sexual intercourse.
The POCSO Act raised the “age of consent” to 18 years and
following the recommendations of Justice J.S. Verma
Committee, in the wake of a gruesome incident, which took
place in NCT, Section 375 of IPC was also amended by the
Criminal Law (Amendment) Act, 2013.
42. As a consequence of the aforesaid provisions, an
act of sexual indulgence with a girl below 18 years, would
attract the rigors of the POCSO Act as well as the offence
under Section 376 of IPC, being immaterial, whether it is a
consensual relationship, as the law presume that a girl below
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18 years is not capable of consenting to sexual intercourse
and in such a scenario, even if a girl below 18, consent to a
sexual intercourse, her consent must be ignored and the other
party Shall be guilty of committing an offence under the
POCSO Act. 43. This provision, though definitely intended to
target sexual exploitation of children i.e. a male or a female,
however, has created a gray area, as it has definitely resulted
in criminalizing consensual adolescence/teenage relationship
and after the POCSO Act raised the age of consent from 16 to
18, even in case of a consensual sexual activity, where one of
the party is an adolescent and other a major, the act of the
other party is liable for criminal action.
44. In a case like the one before me, where the
prosecutrix is of 17 years and 5 months when the FIR is
lodged and she had indulged into sex voluntarily with the
accused with her will and consent, clearly reflecting a
romantic relationship between the two, the question is
whether merely because she has not touched 18, and barely a
few months away from attaining majority as per law, whether
the act of sexual intercourse would attract the offence under
the POCSO Act and would it amount to an offence of rape, as
Section 375 contemplate, an act of penetration of penis into
the vagina of a woman would amount to rape, even if it has
occurred with her consent, just because she is under 18 years
of age.
45. Pertinent to note that Section 375 itself by virtue of
Explanation 2, define “consent” to mean an unequivocal
voluntary agreement when the woman by words, gestures or
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any form of verbal or non-verbal communication,
communicates willingness to participate in the specific sexual
act, with a proviso being appended that a woman who does
not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the
sexual activity.
46. The essence of “consent” lies in the surrounding
circumstances, which would lead to an inference of
“consent” and which is accorded by a woman by the manner
set out in Explanation 2.
47. Sexual Autonomy encompasses both, the right to
engage in wanted sexual activity and right to be protected
from unwanted sexual aggression. Only when both aspects of
adolescent's rights are recognized, human sexual dignity can
be considered to be fully respected.
48. Development of sexuality starts as early as in
intrauterine life following conception and continues through
infancy, childhood, adolescence, adulthood till death. Self-
awareness about sexuality evolves during the childhood.
Adolescence is a phase of transition during which major
developments of sexuality takes place, with puberty being
marked as a major landmark in the journey of sexuality. It is
during this period, cognitive development takes place and it
result into development of thinking and reasoning. This is
also a phase of emotional development, which would
necessarily involve, social involvement, peer interaction, as
well as sexual interest.
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49. Different behavioral experimentation is seen in
early adolescence, risk taking in middle adolescence,
followed by stage of assessing their own risk factoring,
accompanied with change in lifestyle due to urbanization,
migration, education, and mixing of cultures, each factor
contributing in it's own way towards the development and its
manner. Adolescence is a period during which individual's
thought perception as well as response gets colored sexually
It is an age to explore and understand sexuality. Sexual
curiosity in the adolescence often lead to exposure to
pornography, indulgence in sexual activities, and also
increase in the vulnerability for sexual abuse.
50. Sometimes it is difficult to control the feelings
arising in an adolescent, in the wake of many critical
biological as well as psychological changes occurring during
this phase. Development of secondary sexual characteristics
and psychological changes are often aid these challenges.
These are supplemented by family and society's attitude as
well as cultural influence, particularly at the time of puberty.
Various factors would play a major role in deciding the
adolescent's sexual behaviour after puberty.
51. With the advent of easy accessibility of information
made available and as Internet has become widely used
resource for sexual information, especially amongst the
adolescents, where the appeal lies in the ease and anonymity
where the Online seeker can obtain information regarding
sensitive topics and this generates curiosity, which may have
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positive as well as negative influences, upon the youth of
today.
52. In the era where the adolescents have free access
to the Internet, Mobile, OTT Platform, Movies, which create
a deep impact upon their minds, coupled with inquisitiveness
about sex alongwith physical attraction towards other sex
and infatuation, which is definitely a matter of research as
the question of youthful sexuality has to be tackled in the
current society, by appropriately moderating their behaviour.
53. The United Nations formally defines “adolescent”
as the party between 10 and 19 years of age and “young
people” as between 10 to 24 years of age in the South Asia
Region. The roots of the age of consent are traced back to a
19th century, case of Phulmoni Dasi, a minor woman, who
married a man aged 35, when she was 11 and who died when
her husband forcibly consummated the marriage. This
incident, allegedly rape committed by a man upon a minor
girl, served a way for enacting the legislation in form of the
Age of Consent Act, 1891. Though the husband was acquitted
of rape charge, he was found guilty of causing death by rash
and negligent act.
54. Over the time, the age of consent has been
increased by various statutes in India and it was maintained
at 16 from 1940 till 2012, when POCSO Act raised the age of
consent to 18 years, probably one of the highest ages
globally, as majority of countries have set their age of
consent in the range of 14 to 16 years. Children in the age
group of 14 are considered capable of giving consent to sex
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in countries like Germany, Italy, Portugal, Hungary etc. In
London and Wales, the age of consent is 16. Among Asian
countries, Japan has set the age of consent as 13. In
Bangladesh, Section 9(1) of the Women and Child Abuse
Prevention Act, 2000 define ‘rape’ as sexual intercourse with
a woman, with or without her consent, when she is below 16
years of age. Similarly, in Srilanka, the age of consent is 16.
55. In comparison, as far as India is concerned, the
age of marriage for male and female is fixed as 21 and 18
years as per Child Marriage Prohibition Act, 2006. The
definition of the term “child” varies from statute to statute
and as per the POCSO Act any person below 18 years is
considered to be “child” and it criminalizes all sexual
activities for those under the age of 18 years, even if the act
was committed by consent.
11. The above observation is squarely applicable to the case on
hand for the simple reason that the age of the victim, according to the
prosecution at the time of the occurrence, was not 18 years. This issue
has been dealt with by this Court as well in the case of Vijayalakshmi
and another Vs. State represented by Inspector of police and another
reported in (2021) 2 CTC 191, and the relevant portion of the judgment
is extracted hereunder:
10. This Court is instantaneously reminded of an
earlier order passed by a learned Single Judge of this Court,
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in Sabari v. Inspector of Police reported in (2019) 3 Mad LJ
(Cri) 110, wherein he had discussed in detail about the cases
in which persons of the age group of 16 to 18 years are
involved in love affairs and how in some cases ultimately end
up in a criminal case booked for an offence under the POCSO
Act. The relevant portions of the judgment are extracted here
under for proper appreciation:
“21. When this case was taken up for hearing, this
Court became concerned about the growing incidence of
offences under the POCSO Act on one side and also the
Rigorous Imprisonment envisaged in the Act. Sometimes it
happens that such offences are slapped against teenagers,
who fall victim of the application of the POCSO Act at an
young age without understanding the implication of the
severity of the enactment.
26. In addition to the above, this Court is of the view
that ‘warning’ of attraction of POCSO Act must be displayed
before screening of any film, which have teenage characters
suggesting relationship between boy and girl.
27. Apart from the above, this Court is of the view that
as per the 3rd respondent's report, majority of cases are due
to relationship between adolescent boys and girls. Though
under Section 2(d) of the Act, ‘Child’ is defined as a person
below the age of 18 years and in case of any love affair
between a girl and a boy, where the girl happened to be 16 or
17 years old, either in the school final or entering the college,
the relationship invariably assumes the penal character by
subjecting the boy to the rigours of POCSO Act. Once the age
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of the girl is established in such relationship as below 18
years, the boy involved in the relationship is sure to be
sentenced 7 years or 10 years as minimum imprisonment, as
the case may be.
28. When the girl below 18 years is involved in a
relationship with the teen age boy or little over the teen age, it
is always a question mark as to how such relationship could
be defined, though such relationship would be the result of
mutual innocence and biological attraction. Such relationship
cannot be construed as an unnatural one or alien to between
relationship of opposite sexes. But in such cases where the age
of the girl is below 18 years, even though she was capable of
giving consent for relationship, being mentally matured,
unfortunately, the provisions of the POCSO Act get attracted
if such relationship transcends beyond platonic limits,
attracting strong arm of law sanctioned by the provisions of
POCSO Act, catching up with the so called offender of sexual
assault, warranting a severe imprisonment of 7/10 years.
29. Therefore, on a profound consideration of the
ground realities, the definition of ‘Child’ under Section 2(d) of
the POCSO Act can be redefined as 16 instead of 18. Any
consensual sex after the age of 16 or bodily contact or allied
acts can be excluded from the rigorous provisions of the
POCSO Act and such sexual assault, if it is so defined can be
tried under more liberal provision, which can be introduced in
the Act itself and in order to distinguish the cases of teen age
relationship after 16 years, from the cases of sexual assault on
children below 16 years. The Act can be amended to the effect
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that the age of the offender ought not to be more than five
years or so than the consensual victim girl of 16 years or
more. So that the impressionable age of the victim girl cannot
be taken advantage of by a person who is much older and
crossed the age of presumable infatuation or innocence”.
11. There can be no second thought as to the
seriousness of offences under the POCSO Act and the object it
seeks to achieve. However, it is also imperative for this Court
to draw the thin line that demarcates the nature of acts that
should not be made to fall within the scope of the Act, for such
is the severity of the sentences provided under the Act,
justifiably so, that if acted upon hastily or irresponsibly, it
could lead to irreparable damage to the reputation and
livelihood of youth whose actions would have been only
innocuous. What came to be a law to protect and render
justice to victims and survivors of child abuse, can, become a
tool in the hands of certain sections of the society to abuse the
process of law.
12. As rightly recognized by the Learned Single Judge
of this Court in Sabari's Case (cited supra), incidences where
teenagers and young adults fall victim to offences under the
POCSO Act being slapped against them without
understanding the implication of the severity of the enactment
is an issue that brings much concern to the conscience of this
Court. A reading of the Statement of Objects and Reasons of
the POCSO Act would show that the Act was brought into
force to protect children from offences of sexual assault,
sexual harassment and pornography, pursuant to Article 15 of
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the Constitution of India and the Convention on the Rights of
the Child. However, a large array of cases filed under the
POCSO Act seems to be those arising on the basis of
complaints registered by the families of adolescents and
teenagers who are involved in romantic relationships with
each other. The scheme of the Act clearly shows that it did not
intend to bring within its scope or ambit, cases of the nature
where adolescents or teenagers involved in romantic
relationships are concerned.
13. This Court, therefore, deems it fit and necessary to
take a moment to delve into an important aspect, the
awareness of which is crucial in understanding and dealing
with cases of this nature. It is crucial to be aware of the
science and psychology of adolescence and young adulthood
at this juncture. ‘This is because social and biological
phenomena are widely recognized as determinants of human
development, health, and socioeconomic attainments across
the life course, but our understanding of the underlying
pathways and processes remains limited. Therefore, a
“biosocial approach” i.e. one that conceptualizes the
biological and social as mutually constituting, and draws on
models and methods from the biomedical and
social/behavioral sciences, is required.’ (McDade, T.W., &
Harris, K.M. (2018). The Biosocial Approach to Human
Development, Behavior, and Health Across the Life Course.
The Russell Sage Foundation journal of the social sciences :
RSF, 4(4), 2-26.)
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12. In the case on hand also, both the victim and the appellant
fell in love and got married in Bangalore. On the complaint lodged by
the mother of the victim, who was examined as PW1, the appellant and
the victim came to their respective houses. Even after knowing the fact
that the victim and the appellant got married, PW1 had taken the victim
to the police station and registered FIR as against the appellant. Further,
there is no evidence to show that the appellant had kidnapped the victim
and enticed the victim to come with him. That apart, the doctor who
examined the victim, deposed as PW8. On perusal of her deposition, it is
revealed that the victim informed the doctor that she fell in love with the
appellant and got married in Bangalore. Thereafter, they lived as
husband and wife and had physical relationship. On verification of her
vagina, there is evidence to show that the victim had physical
relationship several times. Therefore, the victim and the appellant had
sexual intercourse with mutual consent and it was not forced by the
appellant. While the prosecution failed to prove the age of the victim as
minor at the time of the alleged occurrence, no charge under Section 5(l)
r/w 6(1) of POCSO Act is made out against the appellant. Hence, the
prosecution failed to prove the charge under Section 5(l) r/w 6(1) of
POCSO Act.
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13. In criminal jurisprudence, the burden is always on the
prosecution to prove its case beyond reasonable doubt. When two views
are possible and the one favourable to the accused is equally plausible,
the benefit of doubt must necessarily go to the accused. In the present
case, the prosecution has failed to discharge its burden convincingly, and
the trial Court failed to properly appreciate the infirmities in the
prosecution case. Therefore, the conviction and sentence awarded by the
trial Court in respect of all the charges against the appellant cannot be
sustained and the same are liable to be set aside.
14. Accordingly, this Criminal Appeal is allowed and the
judgment dated 22.01.2025 passed in Spl.S.C.No.26 of 2021 on the file
of the learned Fast Track Magalir Neethimandram, Dharmapuri,
Dharmapuri District, is set aside. The appellant is acquitted of all
charges under Sections 363 & 366 of IPC, Section 9 of The Prohibition
of Child Marriage Act, Section 5(l) r/w 6(1) of Protection of Children
from Sexual Offence Act. The appellant/accused is directed to be set at
liberty forthwith unless his custody is otherwise required in connection
with any other case. Fine amount, if any paid, shall be refunded to the
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appellant forthwith. Bail bond, if any executed, shall stand cancelled.
Consequently, connected miscellaneous petition is closed.
18.06.2025
(2/2)
Index : Yes/No
Neutral citation : Yes/No
Speaking/non-speaking order
lok
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To
1.The learned Fast Track Magalir Neethimandram, Dharmapuri,
Dharmapuri District
2.The Inspector of Police,
Eriyur Police Station,
Dharmapuri District
3.The Public Prosecutor,
High Court, Madras.
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G.K.ILANTHIRAIYAN, J.
lok
Crl.A.No.586 of 2025 &
18.06.2025
(2/2)
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