Where the age of the victim is between seventeen and eighteen years, invocation of the POCSO Act would be justified only if there is clinching evidence [Read the Judgment]

May 8, 2019:

Delhi High Court has recently observed that for an occurrence prior to the implementation of new JJ Act, even the age of victim should be decided by the old JJ Act and where the age of the victim is between seventeen and eighteen years of age, invocation of the POCSO Act would be justified only if there is clinching evidence.

A bench of Justice Hari Shankar has passed the judgment in the case titled as PRAVESH DIXIT @ TINDA vs STATE NCT OF DELHI on 06.05.2019.

High Court observed "Section 2 (2) of the POCSO Act, clarifies that the words used therein, but not defined therein, but which are defined in the IPC, Cr.P.C. and the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ―the JJ Act‖) and the Information Technology Act, 2000 shall have the meanings respectively assigned to them in the said Codes or Acts. I may note, here, that though the JJ Act stands repealed by the The Juvenile Justice (Care and Protection of Children) Act, 2015, it would be the 2000 JJ Act which would apply in the present case, being the act in force at the time of commission of the offence".

It further observed "A reading of Rule 12(3) of the JJ Rules, read with the judgments in Mahadeo (supra) and Anoop Singh (supra), indicates that the evidence, on the basis of which the age of a child victim of rape, is to be determined is (i) the matriculation or equivalent certificate, if available, (ii) in the absence thereof, the date of birth certificate from the school first attended, and (iii) in the absence thereof, the birth certificate given by a corporation or a municipal authority or a panchayat. If none of these documents are available, it is permissible to rely on medical opinion, which has to be obtained from a duly constituted medical board, entrusted with the duty of declaring the age of the juvenile or child".

It also observed "In the present case, neither is the matriculation certificate of X, nor the date of birth certificate from the school first attended by her, nor is the birth certificate of any corporation, municipal authority, or Panchayat, exhibited, before the Learned ASJ. The only evidence, on which the Learned ASJ has relied, is the date of birth of the petitioner as entered in the admission form, submitted at the time of her admission in the Kendriya Vidyalaya, Vikas Puri. Learned counsel for the appellant is undoubtedly justified in pointing out that a glance at the said admission form (Ex.PW-5/A) itself discloses that the Kendriya Vidyalaya, Vikas Puri was not the school first attended by the appellant, as she had, prior thereto, being studying in the AF Vidya Mandir".

High Court further observed "Even on the MLC of the X, the age of 17 years, as entered, does not appear to be the result of any scientific or legally acceptable examination or test. It needs to be borne in mind that the present case is not one in which the prosecutrix was of an age which would make it apparent that she was below the statutory age of eighteen, stipulated in the POCSO Act. Where the age of the victim is between seventeen and eighteen years of age, invocation of the POCSO Act would be justified only if there is clinching evidence, as contemplated by the Rule 12(3) of the JJ Rules, to the effect that the victim is less than 18 years of age".

It then commented "Examining the issue in the light of Rule 12(3) of the JJ Rules, there is, on the face of it, no conclusive evidence, to indicate that the prosecutrix X was less than eighteen years of age at the time of her alleged sexual assault by the appellant. That being so, the conviction, of the appellant, under the POCSO Act, cannot be said to be justified, on the basis of the material exhibited before the Learned ASJ, and on which he has chosen to place reliance".

However, the High Court found an unexhibited matriculation certificate of the victim in the file and stated that the trial court should give opportunity to the prosecution to bring that document on record with a view to properly arrive at the age of the victim. High Court then remanded the case for trial, however, considering the long time spent by accused in jail, it granted him bail.

Read the judgment here:

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