Himachal Pradesh High Court
Reserved On: 31.07.2025 vs State Of H.P on 20 August, 2025
2025:HHC:28138
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.28 of 2024
Reserved on: 31.07.2025
.
Date of Decision: 20.08.2025
Shiva ...Appellant
Versus
State of H.P. ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellant
r : Ms. Shrishti Chauhan,
Advocate.
For the Respondent/State : Mr. Jitender K. Sharma,
Additional Advocate General.
Rakesh Kainthla, Judge
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
506 of the Indian Penal Code (IPC) and Section 4 of the
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
was sentenced as under:
Under Section 363 of the To undergo simple imprisonment
.
IPC 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 Section 366 of the To undergo simple imprisonment
IPC for five years, directed to pay a fine
of ₹ 10,000/- and in default of
payment of fine to undergo furthersimple imprisonment for one year
Under Section 506 of the To undergo simple imprisonment
IPC 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.
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.)
2. 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, rKangra, 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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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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3. Learned Trial Court charged the accused with the
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.
4. 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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12) 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.
5. 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.
6. Learned Trial Court held that the statement of the
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.
7. 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.
8. I have heard Ms. Shrishti Chauhan, learned counsel
.
for the appellant and Mr. Jitender K. Sharma, learned Additional
Advocate General for the respondent /State.
9. 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.
10. 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.
11. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. 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
observed:
“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 anydifference 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 2007Rules 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 byadopting 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 wouldconclusively 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 firstattended 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 berelied 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
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determination of the age of the child concerned on the basis of
medical opinion.
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 toestablish 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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clearly inconsequential, as she was a minor.” (Emphasis
supplied)
13. Thus, the provisions of Rule 12 have to be applied to
determine the age of the victim.
.
14. 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:
“12. Clause (a) of Rule 12(3) provides that for the purpose
of seeking evidence in the enquiry, the followingdocuments would have to be obtained:
(i) matriculation or equivalent certificate if
available;
(ii) in the absence of (i), the date of birth certificate
from the school first attended; and
(iii) in the absence of (i) and (ii), the birth certificate
given by a corporation, municipal authority or
panchayat.
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].
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)
“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.”
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)
“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.”
In the view of the Court, it was only if the above conditions
were fulfilled that a medical report could be called.
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 three-
judge 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)
“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.,
r obtained after conviction would depend on the facts
and circumstances of each case, and no hard-and-
fast 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.”
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 hard-
and-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)
“48. If one were to adopt a wooden approach, one
r 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.”
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)
“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.”
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:
“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::: Downloaded on – 20/08/2025 21:28:37 :::CIS
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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.
.
(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 agedetermination by seeking evidence by obtaining–
(i) the date of birth certificate from the school, or
the matriculation or equivalent certificate from the
Examination Board concerned, if available; and inthe absence thereof;
(ii) the birth certificate given by a corporation, a
municipal authority, or a panchayat;
r (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:
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.
(3) The age recorded by the Committee or the Board to be
the age of a person so brought before it shall, for thepurpose of this Act, be deemed to be the true age of that
person.”
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.
15. It was held in Rishipal Singh Solanki v. State of U.P.,
(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:
48. Clause (a) of Rule 12(3) of the 2007 Rules contains a
hierarchical ordering, evident from the use of thelanguage “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::: Downloaded on – 20/08/2025 21:28:37 :::CIS
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corporation, municipal authority or panchayat could be
obtained.
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.
16. A similar view was taken in P. Yuvaprakash v. State,
2023 SCC OnLine SC 846, wherein it was observed:
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:
“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 achild, such child shall be dealt with under the provisions
of the Juvenile Justice (Care and Protection of Children)Act, 2015 (2 of 2016).
(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.
(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.”
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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:
“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 suchobservation 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.
(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 processof age determination by seeking evidence by obtaining
–
(i) the date of birth certificate from the school, or
the matriculation or equivalent certificate fromthe concerned examination Board, if available;
and in the absence thereof;
(ii) the birth certificate given by a corporation, a
municipal authority, or a panchayat;
(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 theBoard:
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.
(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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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:
“(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;
(ii) the birth certificate given by a corporation, a
municipal authority, or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age
r shall be determined by an ossification test or any otherlatest medical age determination test conducted on the
orders of the Committee or the Board”.
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
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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.
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:
“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) thematriculation or equivalent certificates, if available and
in the absence whereof; (ii) the date of birth certificate
from the school (other than a play school) firstattended; and in the absence whereof; (iii) the birth
certificate given by a corporation or a municipalauthority 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 declarethe 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.”
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:
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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 significantchange 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 wasonly 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
r the matriculation or equivalent certificate are placed in
the same category.
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.
17. A similar view was taken in Rajni v. State of U.P., 2025
SCC OnLine SC 1183, wherein it was observed: –
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?
22. Section 68 of the Juvenile Justice (Care and
Protection of Children) Act, 2000, empowered the state::: Downloaded on – 20/08/2025 21:28:37 :::CIS
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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.
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.
23.1. Sub-rule (3) of Rule 12 is relevant. Therefore, the
same is extracted hereunder:
(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-
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(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;
(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 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.
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
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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.
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.
25. Section 94 deals with the presumption and
determination of age. Section 94 reads thus:
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 ofthe 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 observationstating 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.
(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
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of age determination by seeking evidence by
obtaining–
(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;
(ii) the birth certificate given by a corporation or a
municipal authority, or a panchayat;
(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:
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.
(3) The age recorded by the Committee or the Board tobe 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.
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:
(i) the date of birth certificate from the school or the
matriculation or equivalent certificate from theconcerned Board, if available;
(ii) in the absence thereof, the birth certificate given by
a corporation or a municipal authority or a panchayat;
(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.
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26. Having noticed the relevant legal framework, let us
examine as to how the case of respondent No. 2 vis-à-
vis 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.
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
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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.
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.
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.
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.
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.
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
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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.
18. These judgments were followed by this Court in
Ranveer Singh (supra).
19. 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.
20. 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 1st January. It is impossible to
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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 1st of January.
21. 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 cross-
examination 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
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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.
22. 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.
23. 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.
24. 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
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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:
“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 improbablyend by bringing the offence within a more serious class of
crime. If a man strikes with a dangerous weapon, with theintent 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::: Downloaded on – 20/08/2025 21:28:37 :::CIS
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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.
25. Blackburn J observed:
“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 herto 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, infact, 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.”
26. Bramwell B said:
“I have used the word “knowingly;” but it will, perhaps,
be said that here the prisoner not only did not do the actknowingly, 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::: Downloaded on – 20/08/2025 21:28:37 :::CIS
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mens rea, there is not one when, as he believes, he knows
that she is over sixteen.
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 sheis 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 ofsixteen, 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 acrime. 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 principallyaims 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 onesense, I say that the act forbidden is wrong”
27. Denman J said:
“The belief that she was eighteen would be no justification
to the defendant for taking her out of his possession, andagainst 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::: Downloaded on – 20/08/2025 21:28:37 :::CIS
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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 thefather’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.”
28. 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.
29. 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:
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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.
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.
Xxx
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.
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.”
30. The argument that the minor had misrepresented her
age and the accused was not liable was repelled as under:
“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::: Downloaded on – 20/08/2025 21:28:37 :::CIS
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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”
31. Dealing with the dangers of premature sexual
.
activities, the court held that:
“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 mayeventually 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, whichpremature 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.”
32. The disclosure of the age by the victim as 18 years is
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.
33. 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
the maternal uncle of the accused. Accused Shiva violated her
during the night and told her not to disclose the incident to
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anyone. She stated in her cross-examination that she did not
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.
34. 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 cross-
examination 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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35. 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.
36. 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:
361. Kidnapping from lawful guardianship
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::: Downloaded on – 20/08/2025 21:28:37 :::CIS
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such minor or person from lawful guardianship.
37. It is apparent from the bare perusal of the Section that
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:
“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 inthis 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 lawfulguardian of such minor” in Section 361 are significant. The
use of the word “keeping” in the context connotes the ideaof charge, protection, maintenance and control; further,
the guardian’s charge and control appear to be compatible
with the independence of action and movement of theminor, 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::: Downloaded on – 20/08/2025 21:28:37 :::CIS
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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: 1F & 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 herfather, 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 toconstitute 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, nooffence is committed. The last case was of a conviction
under the statute (24 & 25 Vict., ch. 100, Section 55). Theinducement 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
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protect the sacred right of the guardians with respect to
their minor wards.
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)
“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.”
38. This position was reiterated in Anversinh v. State of
Gujarat, (2021) 3 SCC 12: (2021) 2 SCC (Cri) 18: 2021 SCC OnLine SC
19, and it was held at page 20:
16. A bare perusal of the relevant legal provisions, as
extracted above, shows that the consent of the minor is::: Downloaded on – 20/08/2025 21:28:37 :::CIS
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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’sinfatuation 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.
39. Therefore, no advantage can be derived from the fact
that the victim had not protested while she was being taken in a
bus.
40. 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:
“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::: Downloaded on – 20/08/2025 21:28:37 :::CIS
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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.
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 Sub-
Registrar’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 thepresent 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.
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 factsand 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, theAllahabad High Court held it was not a case of kidnapping.
Needless to say, the facts of that case are quitedistinguishable from the present case.
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.
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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.
41. It was laid down by Hon’ble Supreme Court in State of
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: –
“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 SmtTarawanti 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 togo 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 toaccompany 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::: Downloaded on – 20/08/2025 21:28:37 :::CIS
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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 becorrect, 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. Itwas 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’shouse to go with him to Jai Narain. It is fully established
on the record that he had been conveying messages fromJai 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 shewas 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 themidnight in question for going to Raja Ram’s house for the
purpose of being taken to Jai Narain’s place. On thesefacts, 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 theproximate 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
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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.”
42. Similarly, it was held in Anversinh v. State of Gujarat,
(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:-
“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 intime 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 minorfrom the custody of a stranger would not ipso facto
establish the offence of kidnapping. Thus, where theprosecution fails to prove that the incident of removal was
committed by or at the instigation of the accused, it wouldbe 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].
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43. Therefore, the accused cannot take advantage of the
fact that the victim had not raised any hue cry when she was
being taken in a bus.
.
44. 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.
45. 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:-
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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.”
46. Similar is the judgment of the Tripura High Court in
Joubansen Tripura v. State of Tripura, 2021 SCC OnLine Tri 176,
wherein it was observed:
“12. Upon meticulous reading of Section 29 and 30 of the
POCSO Act, according to us, prosecution will commencethe 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.
13. As we have said in the first part of this paragraph, the
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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 thefoundational facts of the instant case. Foundational facts
in the POCSO Act include:–
(i) the proof that the victim is a child;
(ii) that the alleged incident has taken place;
(iii) that the accused has committed the offence; and
(iv) whenever physical injury is caused, to establish
it with supporting medical evidence.
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 cross-
examination. 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
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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)
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)
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)
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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].
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]
47. 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:
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34. Sections 29 and 30 of the POCSO Act read as under:
“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.
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 shallpresume 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
r prosecution.
(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 apreponderance of probability.”
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 POCSO Act. Section 5 of the POCSO 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:
“3. Penetrative sexual assault.–A person is said to
commit “penetrative sexual assault” if–
(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) * * *
(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
***
(m) whoever commits penetrative sexual assault
on a child below twelve years; or
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
r to fine, or with death.
(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.”
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.”
48. The foundational facts were explained by the Madras
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.
31. The term ‘foundational facts’ in the POCSO
Act includes the following:
(i) The victim is a child
(ii) The alleged incident has occurred
(iii) The accused has committed the offence
(iv) Medical evidence to support the physical
injury, if any.”
49. Similar is the judgment in State of Haryana v. Vishal,
2022 SCC OnLine P&H 3827, wherein it was observed:
17. Learned counsel for the State argued that, in view of
provision of Sections 29 and 30 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
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convicted for the charges framed against him. A
cumulative reading of Sections 29 and 30 of the POCSO
Act 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 todischarge 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 cannotbe raised at the instance of the prosecution.
50. 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.
51. 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.
52. No other point was urged.
53. In view of the above, the present appeal fails and the
.
same is dismissed. Pending applications, if any, also stand
disposed of.
54. A copy of this judgment, along with the records of the
learned Trial Court, be sent back forthwith.
20th August 2025
(ravinder)
r to (Rakesh Kainthla)
Judge
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