Minor Girl's Claim Of Being 18+ Or Aadhar Showing Her As Major Doesn't Help Case Of Accused Booked Under POCSO Act: HP High Court

A bench of Justice Rakesh Kainthla thus rejected an accused's regular bail plea, who is facing charges of offences under Sections 363 and 376 of the IPC and Section 4 of the POCSO Act.

Briefly put, the FIR was lodged against the accused on May 20, 2024, by the victim's father, alleging that his daughter (born in August 2007) had left her home without informing anyone. The complainant suspected kidnapping by the petitioner.

Police subsequently recovered the girl, who initially denied any illegal act by the petitioner and admitted that she left her home of her own volition.

However, forensic examination revealed that DNA profiles obtained from the victim's body and clothes matched the petitioner's blood sample. Later, the victim made a supplementary statement disclosing that she was subjected to rape.

Seeking bail in the case, the accused argued that the victim herself had carried her Aadhar card, which reflected her date of birth as January 1, 2005 and that she also claimed to be a major.

Thus, it was claimed that there were reasonable grounds to believe that the victim was not a minor on the date of the incident.

On the other hand, the Additional Advocate General submitted that the petitioner had raped a minor, which is a heinous offence, and this fact was corroborated by the report of forensic analysis.

It was further submitted that the prosecution's evidence is yet to be recorded, and releasing the petitioner on bail would adversely affect the fair trial. Therefore, he prayed that the present petition be dismissed.

High Court's order and observations

At the outset, the Bench rejected the accused's contention that he had sufficient reason to doubt the victim's minority on the date of the incident, looking at her DOB as mentioned in the Aadhaar card.

The court referred to the Supreme Court's October 2024 judgment in Saroj & Ors. v. Iffco-Tokio General Insurance Co. & Ors 2024 LiveLaw (SC) 837, in which it was held that an Aadhar card is not proof of date of birth.

Justice Kainthla, therefore, concluded that no advantage can be derived from the fact that the victim's date of birth was mentioned as 01.01.2005 in the Aadhar card.

Furthermore, on the accused's plea that the victim misrepresented her age to him, the Court referred extensively to the 19th-century English case of Reg. V. Prince., [LR] 2 CCR 154, where it was held that a girl's false statement of being older does not absolve the accused if she is, in fact, under the statutory age.

"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 petitioner", the Court said.

The Court added that the plea taken by the petitioner that the victim told him her incorrect age will not help him, as it stressed that the POCSO Act was enacted "to protect children from themselves as well as from others who are minded to prey upon them".

The single judge also underscored that children are deemed to be incapable of consent, and consent is no defence to the offences punishable under the POCSO Act.

Against this backdrop, noting the forensic evidence linking the petitioner to the crime, the minor status of the victim, and the fact that only one prosecution witness out of 31 had been examined so far, the Court did not find it to be a fit case to release the accused on bail.

Accordingly, the bail petition was dismissed. The Court clarified that its observations are confined to the bail proceedings and will not affect the merits of the trial.