To prevent child-protection cases failing over age-proof lapses, Himachal Pradesh HC directs DGP to issue statewide investigation guidelines

The appellant was convicted in Sessions Trial No. 13/7 of 2020 arising from FIR No. 25/2020 under Sections 354A, 354D, 376 and 506 IPC and Section 4(2) of the POCSO Act. He was sentenced to 20 years’ rigorous imprisonment under Section 4(2) POCSO, along with additional sentences under the IPC.

During the pending criminal appeal, the State sought permission under Section 432 BNSS, corresponding to Section 391 CrPC, to produce the child victim’s Matriculation Certificate and relevant school records, and to re-examine the victim and examine the concerned school record-keeper/Principal.

During trial, the prosecution had already sought to establish the victim’s date of birth as 9 August 2004 through a birth certificate proved by the Panchayat Secretary and a Pariwar Register proved by the Investigating Officer.

The State submitted that the Matriculation Certificate and school record had not been collected or produced due to inadvertence or the Investigating Officer’s ignorance of the preferential method of age determination under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The appellant opposed the application, contending that the prosecution was attempting to fill a lacuna at the appellate stage and that the application was belated and prejudicial.

Whether the Appellate Court should permit the State to adduce additional evidence under Section 432 BNSS, corresponding to Section 391 CrPC, to prove the victim’s age through her Matriculation Certificate and school records?

Whether permitting the additional evidence would amount to filling a lacuna, conducting a retrial, or causing prejudice to the appellant?

Whether the victim should be re-examined and the concerned school official examined for proving the relevant age records?

Section 432 BNSS, corresponding to Section 391 CrPC, empowers an Appellate Court to take additional evidence or direct such evidence to be taken where it is necessary for a just decision, provided reasons are recorded and the accused is afforded an opportunity to be present and cross-examine the witnesses.

Section 348 BNSS, corresponding to Section 311 CrPC, permits the Court at any stage to summon, examine, recall or re-examine a person whose evidence appears essential to the just decision of the case.

Section 94 of the Juvenile Justice Act, 2015 prescribes the preferential evidentiary method for determining the age of a child, including reliance on school or Matriculation records.

The Court relied on Natasha Singh v. CBI, Varsha Garg v. State of Madhya Pradesh, Swapan Kumar Chatterjee v. CBI, Rajeshwar Prasad Misra v. State of West Bengal, Rambhau v. State of Maharashtra, Ashok Tshering Bhutia v. State of Sikkim and V.N. Patil v. K. Niranjan Kumar, holding that additional evidence may be permitted where essential to prevent failure of justice, but not as a disguise for retrial, to change the nature of the case, or merely to fill an incurable lacuna; the power must be exercised sparingly, judiciously and without prejudice to the accused.

The Court held that the proposed evidence concerned an issue already forming part of the prosecution case—namely, that the victim was born on 9 August 2004—and did not introduce any new factual or legal case against the appellant.

Although the prosecution had already produced the birth certificate and Pariwar Register, the Court considered that those documents might not be sufficient under the preferential requirements of Section 94 of the Juvenile Justice Act, particularly when a Matriculation Certificate or school record was available.

The failure to collect and produce the school record was treated as an irregularity arising from investigative negligence or ignorance, rather than an incurable lacuna.

Since the additional evidence was limited to proving the victim’s age, would assist the Court in reaching a just decision, and could be tested through cross-examination and rebuttal evidence, it would neither constitute a retrial nor cause prejudice to the appellant.

The Court therefore found it essential to re-examine the victim and examine the competent school official with the relevant records.

The State was permitted to re-examine PW-1, the child victim, and to examine the record-keeper, Office Superintendent, Principal or other competent official of the concerned school, along with the Matriculation Certificate and complete relevant school record, for the limited purpose of proving the victim’s date of birth in accordance with law.

The appellant was preserved the right to remain present and cross-examine the witnesses on the additional evidence.

The Court also directed the Director General of Police, Himachal Pradesh, to circulate guidelines requiring Investigating Officers to collect and prove all relevant age documents in cases involving child victims or children in conflict with law.