'Age Wasn't Proven': Madras High Court Acquits Father & Priest Accused Of Molesting Minor Under POCSO, Charges Them Under IPC

The bench of Justice AD Jagadish Chandira and Justice K Rajasekar noted that the certificate did not fulfil the requisites of Section 35 of the Indian Evidence Act and was not a birth certificate issued by the school. Thus, the court held that the certificate was not sufficient to prove the age of the victim girl. Noting that the prosecution had failed to prove the age of the victim girl in accordance with Section 94(2) of the Juvenile Justice Act, the court held that the offences under the POCSO Act could not be attracted.

“This Ex.P.7 certificate was issued by her, based on the requisition made by the Investigating Officer and entries in this certificate is not in the nature of any public or official register. Hence, this certificate is not fulfil the requisites of Section 35 of the Indian Evidence Act, and also it is not a birth certificate issued by the School. In such circumstances, we of the view that the age certificate issued by P.W.6 is not sufficient to prove the age of the victim girl,” the court observed.

The court was hearing appeals filed by the father and the priest against the decision of the Fast Track Mahila Court, Ramanathapuram, convicting and sentencing the accused persons under the POCSO Act.

The prosecution's case against the father was that he had molested his minor daughter while she was sleeping in the living room of the house after studying. When the victim objected to his act and said that she would inform her mother, the father threatened her with dire consequences and that he would kill the child and the mother. The child suffered mental agony and used to cry continuously, thinking about the act of her father. Noting the change in her behaviour, the mother, along with some relatives, took her to a Doctor for medical advice, where the doctor informed the family that the child was alright. However, since there was no change in the child's behaviour, the family took her to the second accused, who was a priest, to perform pooja for warding off evil spirits. During this time, when the girl was alone with the priest, he committed penetrative sexual assault on the child.

The appellants (accused) submitted that there was a miscarriage of justice by misjoinder of charges in the case. it was contended that the gravity of the charge against the father was less than the charges against the priest, but the trial court had clubbed all the charges and conducted the trial together, which caused grave prejudice. It was further argued that there was no overlapping of evidence, and there was an enormous delay in reporting the offences for which the prosecution gave no explanation. The appellants also contended that there were personal motives behind the filing of the case.

The public prosecutor, on the other hand, submitted that there was no misjoinder of charges. He submitted that as far as age of the victim, the certificate issued by the School in which the victim was studying and the evidence of the Head Mistress of the School was also recorded and no dispute was raised by the accused persons in terms of the age of the victim.

Though allegations of illicit intimacy between the victim's mother and a prosecution witness were raised, the prosecution argued that the evidence of the victim would be placed on a higher pedestal, and her evidence was in no way shattered or any grounds made out to disprove her evidence.

The court held that the acts of the accused would form part of the same transaction and thus there was no misjoinder of charge. The court added that even if there was a misjoinder of charges, that alone was not sufficient to set aside the sentence or invalidate the finding since Section 464 of CrPC prohibits setting aside the finding or sentence on the ground of misjoinder of charges. The court highlighted that unless there was a failure of justice, any omission to frame or absence of any error in charge including misjoinder of charges shall not be a ground to invalidate the findings or sentence or order of the competent court.

The court was also satisfied that the prosecution had proved the guilt of the accused persons. However, since the age of the victim girl could not be established, the court held that the charges under the POCSO Act would not be made out. The court noted that as per Section 222(1) of CrPC, when a person is charged with an offence and the facts reduce it to a minor offence, the criminal court is empowered to convict him of the minor offence.

Thus, the court partly allowed the criminal appeals and modified the conviction to one under Section 354 and 506(i) of IPC instead of Section 8 of POCSO and conviction under Section 376(1) of IPC instead of one under Section 6 of POCSO. The court added that the sentence would run concurrently, and the period of sentence already undergone would be set off under Section 428 of CrPC.

Counsel for Petitioner: Mr. R. Anand, Mr. G. Karuppasamy Pandian

Counsel for Respondents: Mr. A. Thiruvadi Kumar (Additional Public Prosecutor)

Case Title: Sivakumar v. State

Citation: 2025 LiveLaw (Mad) 171

Case No: Crl.A.(MD). Nos. 370 and 445 of 2022