Unchallenged oral testimony of victim and parent is sufficient to prove minority under POCSO Act

The prosecution alleged that on May 19, 2014, the appellant, a security guard at an apartment complex, lured the eight-year-old victim (PW5) into a security cabin and sexually molested her by touching her vagina.

The Special Court (POCSO), Ernakulam, convicted the appellant under Section 7 r/w Section 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and Section 354 of the Indian Penal Code (IPC), sentencing him to three years of rigorous imprisonment.

The appellant challenged the conviction, primarily arguing that the prosecution failed to prove the victim's age through documentary evidence as mandated by law, relying solely on the oral testimony of the victim and her mother.

1. What is the legally recognized mode of proof for the age of a victim in POCSO Act cases?

2. Whether the unchallenged oral testimony of the victim and her mother is sufficient to prove that the victim was below 18 years of age at the time of the occurrence?

3. Whether the prosecution successfully established the ingredients of Section 7 r/w Section 8 of the POCSO Act and Section 354 of the IPC?

The court primarily applied Section 94 of the Juvenile Justice (Care and Protection of Children) Act and the principles established in Jarnail Singh v. State of Haryana, which mandate a hierarchical priority for age determination: (i) matriculation certificate, (ii) school birth certificate, (iii) municipal/panchayat birth certificate, and (iv) medical ossification tests in the absence of the former.

It further relied on the Division Bench ruling in Biju v. State of Kerala, which held that the Indian Evidence Act allows a fact in issue, such as age, to be proved via unchallenged oral testimony of a parent if the status of the victim as a "child" is not disputed during trial.

While acknowledging the strict documentary requirements in Jarnail Singh, the Court reasoned that if an accused concedes to the jurisdiction of a POCSO Court and fails to challenge the victim’s status as a minor during cross-examination, the oral testimony of the mother (PW2) and the victim (PW5) can be treated as sufficient proof under the Indian Evidence Act.

Here, PW5 and PW2 testified the victim was eight years old, a fact that remained substantially unchallenged by the defense.

Regarding the merits, the Court found the victim's testimony to be of "sterling quality," corroborated by the medical professional (PW1), who noted the victim's consistent narrative and emotional state, and the mother's immediate first information statement (Ext.P2).

The act of touching the child's vagina with sexual intent satisfied the physical contact requirements of Section 7 of the POCSO Act.

It held that while documentary evidence is the preferred mode of proving age, unchallenged oral testimony of the parents is admissible and sufficient to establish that a victim is a "child" under Section 2(d) of the POCSO Act.

The appellant's sentence of three years of rigorous imprisonment and a fine of ₹5,000 was upheld, as it met the statutory minimum for the offence.

The appellant was directed to surrender immediately to undergo the remaining sentence.