Proof of Age is Mandatory for Conviction under POCSO Act: Himachal Pradesh High Court

The Himachal Pradesh High Court has set aside a conviction under the Protection Of Children From Sexual Offences Act, 2012 and Section 363 of the Indian Penal Code, 1860, ruling that a birth certificate not proved in accordance with established legal standards cannot be used to establish the minority of a victim in sexual assault cases.

In a verdict emphasizing the rigors of proof required for age determination, a bench of Justice Vivek Singh Thakur and Justice Bhupesh Sharma held that while the conviction for rape could be sustained on the credible testimony of the victim, the special protections of the POCSO Act and the offense of kidnapping from lawful guardianship depend entirely on the conclusive proof of the victim being under 18 years of age.

Key Takeaways

Age Determination Rigor

Failure to produce authentic and legally proved documents to establish minority as per the standards set by the Supreme Court renders POCSO Act provisions inapplicable.

Credibility of Prosecutrix

Conviction for sexual assault can be sustained on the sole, consistent testimony of the victim even in the absence of physical injuries or medical evidence of violence.

Right to Refuse

Every woman, regardless of past conduct or being habituated to sexual intercourse, retains the absolute right to refuse sexual activity, and consent cannot be assumed or coerced.

Establishing Minority and Legal Compliance

The High Court observed that the prosecution relied on a birth certificate which failed to meet the evidentiary standards required under the law. Referring to Jarnail Singh v. State of Haryana ( "(2013) 7 SCC 263": 2013 CaseBase(SC) 336), Rishipal Singh Solanki v. State of U.P. and Others, and P. Yuvaprakash v. State, Represented by Inspector of Police, the Court noted that there was no authentic and legal document proving the victim was a minor at the time of the incident.

The Court, in its reasoning, observed: "...provisions of Protection Of Children From Sexual Offences Act, 2012 are applicable only if the offence is committed against a minor, as defined in Section 2(d) of the Act. In the present case, the prosecution has failed to prove that the Victim Child/ Prosecutrix ‘K’ was minor on the date of the alleged occurrence... therefore, the provisions of the POCSO Act are not applicable against the accused..."

The Court has following directions:

"...the conviction of the accused punishable under Section 376(2) of the Indian Penal Code, 1860 is upheld, whereas the conviction under Section 363 of the Indian Penal Code, 1860 and Section 4 of the Protection Of Children From Sexual Offences Act, 2012, 2012, is set aside. Accordingly, the appeal is partly allowed."

Evaluating Victim Testimony and Consent

Despite the setting aside of the POCSO charges, the Court upheld the conviction for rape under the Indian Penal Code, 1860. Citing Mohd. Imran Khan vs. State (Govt. of NCT of Delhi) ( "(2011)10 Supreme Court Cases 192": 2011 CaseBase(SC) 1390) and State of Maharashtra Vs. Chandraprakash Kewalchand Jain ( "AIR 1990 SC 658": 1990 CaseBase(SC) 816), the Court reiterated that a victim of sexual assault stands on a higher pedestal than an injured witness. The Court emphasized that the absence of injuries does not negate the occurrence of sexual assault, especially considering the victim's circumstances.

Referring to the presumption under Section 114A of the Indian Evidence Act, 1872 (now Section 120 of the Bharatiya Sakshya Adhiniyam, 2026), the Court relied on Naim Ahmed Vs. State (NCT of Delhi) ( "2023 SCC OnLine 89": 2023 CaseBase(SC) 370) and Anurag Soni Vs. State of Chhattisgarh ( "2019 (13) SCC 1": 2019 CaseBase(SC) 2783) to hold that where sexual intercourse is proved and the victim states she did not consent, the Court must presume the absence of consent.

Ratio

In cases involving the Protection Of Children From Sexual Offences Act, 2012 and Section 363 of the Indian Penal Code, 1860, the prosecution is bound to prove the age of the victim as being below 18 years through authentic and legal documentation. However, a conviction for rape can be based on the sole, credible testimony of the prosecutrix if it inspires confidence, as the law does not require corroboration in material particulars for a victim who is not an accomplice but a victim of the crime.

Background

The case arose from an incident on February 5, 2018, where the accused was alleged to have kidnapped a victim (aged 17 years and 11 months according to her family) and subjected her to forcible sexual intercourse at a hotel in Mandi. The Trial Court had convicted the accused under Sections 363 and 376(2) of the Indian Penal Code, 1860 and Section 4 of the Protection Of Children From Sexual Offences Act, 2012, sentencing him to ten years of rigorous imprisonment.

The appellant challenged the conviction on the grounds that the birth certificate was not proved in accordance with the Indian Evidence Act, 1872 and that there were material contradictions in the prosecution's story. The High Court, while finding the victim's testimony regarding the sexual assault consistent and reliable, found the evidence regarding her age insufficient to attract the specialized statutes. Consequently, the Court modified the judgment by upholding the rape conviction but acquitting the appellant of the POCSO and kidnapping charges.

Case Details:
Case No.: Cr. Appeal No. : 272 of 2022
Neutral Citation: 2026:HHC:49132
Case Title: Susheel Kumar Versus State of H.P.
Appearances:
For the Petitioner(s): Mr. Vinod Kumar Thakur, Advocate.
For the Respondent(s): Mr. Gautam Sood, Deputy Advocate General.

Source: 2026 CaseBase(HP) 11184