1. The sole accused in S.C.No.120/2016 on the files of the Special Court (Additional District and Sessions Court) under the Protection of Children from Sexual Offences Act (for short 'the POCSO Act'), Ernakulam has filed this appeal challenging conviction and sentence imposed against him in the aforesaid case dated 23.01.2018.

2. Heard the learned Senior Counsel, Sri.P.Vijayabhanu appearing for the appellant/accused and the learned Public Prosecutor appearing for the respondents. Perused the verdict impugned and the evidence available.

3. The prosecution case is that the accused made acquaintance with PW1, a girl child aged 14 years, then taken her to the rubber plantation at 3.00 p.m on January 2013 and subjected her to sexual intercourse and repeated the same thereafter. On this premise, the prosecution alleges commission of offences punishable under Section 376 of Indian Penal Code (for short 'IPC') and Section 3(a) r/w 4 of the POCSO Act, by the appellant/accused.

4. The learned Special Judge framed charge for the said offences and tried the case. During trial, PW1 to PW13 were examined and Exts.P1 to P15 were marked on the side of prosecution. No defence evidence was adduced.

5. On appreciation of evidence, the learned Special Judge found that the appellant/accused committed offences punishable under Section 376(2) (n) of IPC as well as under Section 5(l)r/w 6 of POCSO Act. Accordingly, appellant/accused was convicted for the said offences and sentenced as under:

                  “Accordingly, the accused is sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs.50,000/- (Rupees Fifty thousand only) u/s. 376 (2) (n) of IPC. In default of payment of fine amount, he shall undergo rigorous imprisonment for another six months. In view of S.42 of the POCSO Act, no separate sentence is imposed for the offence punishable u/s. 5(l) r / w 6 of the POCSO Act, 2012. Set off allowed. The fine amount, if paid, will be given to PW1, as compensation u/s. 357 (1) of Cr.P.C.”

6. The learned Senior Counsel raised two specific contentions to unsettle the verdict impugned. According to him, in order to find commission of offence punishable under the POCSO Act, the prosecution has a duty to prove the age of the victim to establish that the victim was a child as defined under the POCSO Act. According to him, here the evidence of PW1, the victim and PW2, her mother would not show any indication regarding the age of the victim to treat her as a child, so as to attract the offence under POCSO Act.

7. According to the learned Senior Counsel, though Ext.P6, extract of admission register was tendered in evidence through PW7, the same is insufficient to prove the age of the victim to hold that the victim is a child. Otherwise, the evidence would suggest that the sexual intercourse, if any, is the outcome of consent given by a lady aged above 18 years and be it so, the finding of the Special Court that the accused committed offences under Section 376(2) (n) of IPC as well as under Section 5(l)r/w 6 of POCSO Act would not sustain in the eye of law. In this connection, the learned counsel placed two decisions of the Apex Court. First one reported in C.Doddanarayana Reddy v. Jayarama Reddy [AIR 2020 SC 1912] referring paragraph 18 of the above decision, where the Apex Court held as under:

                  “18. In Madan Mohan Singh, this Court held that the entries made in the official record may be admissible Under Section 35 held the Indian Evidence Act, 1872 but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded. The Court held as under:

                  20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible Under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/school leaving certificate required to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

                  21. For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded. (Vide Brij Mohan Singh v. Priya Brat Narain Sinha [ MANU/SC/0189/1964: AIR 1965 SC 282], Birad Mal Singhvi v. Anand Purohit [ MANU/SC/0052/1988: 1988 Supp SCC 604 AIR 1988 SC 1796], Vishnu v. State of Maharashtra MANU/SC/2156/2005: (2006) 1 SCC 283: (2006) 1 SCC (Cri.) 217] and Satpal Singh v. State of Haryana [ MANU/SC/0537/2010: (2010) 8 SCC 714 : JT (2010) 7 SC500].)

                  22. If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) or Sections 50, 51, 59, 60 and 61, etc. of the Evidence Act by examining the person having special means of knowledge, authenticity of date, time, etc. mentioned therein. (Vide Updesh Kumar v. Prithvi Singh [ MANU/SC/0040/2001 : (2001) 2 SCC 524: 2001 SCC (Cri.) 1300: 2001 SCC (L & S) 1063] and State of Punjab v. Mohinder Singh [ MANU/SC/0201/2005: (2005) 3 SCC 702 : AIR 2005 SC 1868].)”

8. Another decision in Birad Mal Singhvi v. Anand Purohit [AIR 1988 SC 1796] was also relied on, with specific reference to paragraph 15, which reads as under:

                  “15. The High Court held that in view of the entries contained in Exts.8,9,10,11 and 12 proved by Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5, the date of birth of Hukmichand and Suraj Prakash Joshi was proved and on that assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination. In our opinion the High Court committed serious error. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact.To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentary value to prove the age of the person in the absence of the material on which the age was recorded.”

9. Vehemently opposing the contentions raised by the learned Senior Counsel, the learned Public Prosecutor submitted that in this case, the age of the victim as a child has been established by the prosecution with the aid of Ext.P6 proved through PW7. That apart, PW2, the mother of the victim, also deposed that, at the time of the occurrence in 2013, PW1 was studying in the 10th Standard, thereby supporting the prosecution case that PW1 was a minor. He has also pointed out that the evidence of PW7 read with Ext.P6 would be sufficient to prove the age of the victim is below 18 years and in this connection he has placed four decisions of the Apex Court reported in Raju v. State of Kerala [2013 (1) KHC 718], Jarnail Singh v. State of Haryana [2013 KHC 4455], Ranjeet Goswami v. State of Jharkhand and Another [2013 KHC 4747] and latest decision of this Court reported in Joseph @ Sabu v. State of Kerala [2026 KHC OnLine 331 and 2026 KLT OnLine 1624].

10. According to the learned Public Prosecutor, the evidence available through PW7 and Ext.P6, supported by the version of PW2, the mother of the victim, the prosecution successfully proved the age of the victim below 18 years at the time of occurrence and the evidence of PW1 regarding the occurrence is of sterling quality and in such view of the matter the contentions raised by the learned Senior Counsel would not succeed. Therefore, the verdict is liable to be confirmed.

11. Now the points arise for consideration are:

                  (1) Whether the Special Court is justified in finding that the accused/appellant committed offence punishable under Section 376(2) (n) of IPC?

                  (2) Whether the Special Court went wrong in finding that the accused/appellant committed offence punishable under Section 5(l) r/w 6 of POCSO Act?

                  (3) Whether the trial court verdict requires interference?

                  (4) Order to be passed.

Points 1 to 4

12. In this case, the prime witness for the prosecution is none other than PW1, the victim herself. She deposed that she was a native of Puthencruz and she had studied in St.John's J.H.S.S, Kanniattunirappu, during 2013. In her house, the father, mother and elder brother also had been residing along with her. Her father had been engaged in tapping job and the mother also used to go for job. They were followers of Pentecost Ideology of Christianity. She deposed further that she had familiarity with the accused, who is at the dock as a nearby resident who used to come for prayers at the church. According to her, there was a small hill nearby her house and one day when the accused attended prayers at the church, he demanded her to reach the hill. Accordingly, at 3.00 p.m on January 2013, she reached therein. Then the accused hugged her forcefully and caught hold on her breast. He had removed his dress and mounted over her body and had sexual intercourse with her. Further he informed her that he had recorded same in his mobile phone. Thereafter, he called her on her mobile phone and threatened that, unless she would not co-operate with him whenever he called, he would show the recordings of the sexual intercourse to others. According to PW1, on the premise of this threat, later on two occasions, the accused had sexual intercourse with her. Later, his father identified her coming from the hill and also father had witnessed the accused running beneath the hill on his motor bike. Then her father became angry and he became hostile to her. Then father informed this to his siblings and they also asked her about the incident. Then she disclosed the occurrence and also gave statement to the Police, and the Police recorded her statement and she put signature on the same. According to her, her father could not speak or hear. Later she had given statement to the Magistrate and Ext.P2 is identified as the statement so given by her. She knew the fact that the accused have wife and child and also she had occasion to meet the wife of the accused at the church. She also deposed that she had produced her night dress, midi top, pants, two panties, two braziers before the police, after identifying the same, which in fact got marked as MO1 to MO6 series, in the connected case, viz., SC No.448/2018.

13. During cross-examination, she stated that she had gone to the hill while she was studying in the 9th standard and that it would take about 15 minutes to reach there. She also deposed that there was nobody present when the accused demanded her to reach the hill. According to her, she went to the hill on the premise of going for study along with books. In fact, nothing extracted during cross-examination of PW1, to make her evidence as untrustworthy of credit. That is the reason why the learned Senior Counsel also not argued anything to disbelieve the version of PW1. In fact, PW2, the mother of PW1 deposed in tune with the version of PW1. According to her, during 2013, i.e., during the time of occurrence, PW1 studied in 10th standard at St.John's J.H.S.S.

14. The younger brother of the father of PW1 got examined as PW4. PW4 deposed that, he was a resident of Thiruvaniyoor. He deposed further that PW1 is the daughter of his elder brother and residing adjacent to his house. He knew the accused Sibu and Shaiju. Sibu is a neighbor and Shaiju is a worker under one of his friend. PW1 was studying in a school situated about 2½ km away from his house. He had seen the accused, Sibu talking to PW1, while she was going to school. When he asked, PW1 told him that, she had acquaintance with Sibu from the church and they just had a talk. He told this incident to PW2, mother of PW1. He had also seen the accused, passing through the road in front of his house on a bike. When he asked, he was told by the accused that, he had gone to collect grass from the hill. He had also seen the grass in his bike. He had seen the accused on a Sunday afternoon. Since there was Kudumbasree meeting on Sunday after lunch, normally nobody would be there in the house. Later, when the police came for investigation, he had seen PW2, producing the dress of PW1 to the police. He had attested Ext.P3, seizure Mahazar(copy) for the same. PW5 examined in this case is the Doctor, who had examined the accused. PW5 deposed that, on 18.11.2013, he was the doctor of Taluk Hospital, Trippunithura. On that day, he had examined the accused, Sibu John and issued Ext.P4, Certificate of Potency(copy). On clinical examination, he found that, there was nothing to suggest that, “the accused is incapable of performing sexual acts”. Thus potency of the accused is proved by the prosecution. That apart, it is admitted by the accused that he had wife and child.

15. PW6, the Village Officer of Thiruvaniyoor deposed that during 2013 as requested by the police, she had inspected the scene of occurrence, a rubber plantation on a hill and prepared Ext.P5, Site Plan. When cross examined, she reiterated that, the scene of occurrence is just 500 mts. away from the house of PW1.

16. In this case, in order to prove the date birth of the victim as 18.12.1998, the prosecution examined PW7, the Head Mistress of St.John's J.H.S.S., Kanniattunirappu and tendered Ext.P6 extract of School Admission Register showing the date of birth of PW1 as 18.12.1998. It is relevant to note that even though during chief examination PW7 did not depose the mode of recording in Ext.P6. During cross-examination, the learned counsel for the accused put a question suggesting that the entry regarding the victim's date of birth in the Admission Register had been made after referring to her Birth Certificate and was answered in the affirmative by PW7. Thus, by cross-examination of PW7, Ext.P6 and its authenticity has been proved specifically.

17. In this case, the prime contention raised by the learned Senior Counsel for the appellant/accused is that no convincing evidence adduced by the prosecution to prove the age of the victim is below 18 years to treat her as a child, since PW1 and PW2 did not state anything regarding the age of PW1, while giving evidence.

18. It is in this context, the learned Senior Counsel placed decisions in C.Doddanarayana Reddy (supra) and Birad Mal Singhvi (supra). In C.Doddanarayana Reddy (supra), in paragraph 21, the Apex Court held that:

                  “For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded. (Vide Brij Mohan Singh v. Priya Brat Narain Sinha [ MANU/SC/0189/1964: AIR 1965 SC  282], Birad Mal Singhvi  v. Anand  Purohit [ MANU/SC/0052/1988: 1988 Supp SCC 604 AIR 1988 SC 1796], Vishnu v. State of Maharashtra MANU/SC/2156/2005: (2006) 1 SCC 283: (2006) 1 SCC (Cri.) 217] and Satpal Singh v. State of Haryana [ MANU/SC/0537/2010: (2010) 8 SCC 714 : JT (2010) 7 SC500].)”

                  Similarly, in Birad Mal Singhvi (Supra), the Apex Court held in paragraph 15 that:

                  “ To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentary value to prove the age of the person in the absence of the material on which the age was recorded.”

                  In fact, in Joseph @ Sabu (supra), this Court considered the mode of proof of the age of the victim to find that the victim as a person below 18 years of age and as a 'child' defined under Section 2(1)(d) of the POCSO Act. After referring decisions in Jarnail Singh (supra), State of Uttar Pradesh v. Anurudh [2026 KHC OnLine 6036] and Biju v. State of Kerala [2024 (2) KHC 297], this Court observed in paragraphs 12 to 15 as under:

                  “12. Point Nos.(i) and (ii) In paragraph No.23 of Jarnail Singh’s case (supra), the Apex Court held that even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion.

                  13. The decision in Jarnail Singh’s case (supra) has been followed in a latest decision of the Apex Court in State of Uttar Pradesh v. Anurudh reported in [2026 KHC OnLine 6036] when the Apex Court considered the question of age determination of a victim in a PoCSO Act case at the bail stage and applying the ratio in Jarnail Singh’s case (supra) holding that determination of age of the victim is a matter of trial and the same could not be considered at the stage of bail.

                  14. In the instant case, PW5, the victim deposed during the examination that her age was 8 years and in her deposition, her age was recorded as 9 years on the date of the examination. Additionally, during her chief examination, PW5 stated that she was studying in the 4th standard at the time of examination. Even though during chief-examination of PW2, the mother of the victim did not disclose the age of the victim, during cross-examination, while extracting the niceties of the occurrence, she stated that at the time of occurrence, the age of the victim was 8 and the same was divulged based on a question put by the Court. In this connection, it is relevant to note that the very rudimentary plank for prosecuting an accused under the PoCSO Act, is that the victim must be below 18 years of age, and in such cases, the prosecution is under a bounden duty to prove the age of the victim by the modes prescribed in the decisions discussed above. In Biju's case (supra), the Division Bench of this Court held that when the oral testimony of the victim is of sterling quality and the age of the victim is below 11 years at the time of occurrence as spoken by the victim and her mother, nothing in the PoCSO Act which would indicate that the unchallenged oral testimony of the mother of the victim could not be taken as proof of date of birth of the victim. The Division Bench distinguished the decisions in Renjith & Anr's case (supra) and Shaju's case (supra) on facts where apart from the evidence of the victim and her mother, a certificate showing the date of birth of victim below 18 years produced through corroborative witness which was also adduced by the prosecution. In the instant case, on facts, no other evidence than that of the victim and her mother is available to prove the age of the victim as 8 years on the date of occurrence. In fact, the view taken by the Division Bench is that when the oral testimony of the mother of the victim was not challenged, the same can be taken as proof of the date of birth of the victim when the mother discloses the date of birth, which would suggest that the victim is a person below 18 years and the rationale given by the Division Bench is that there is no provision under the PoCSO Act in doing so otherwise a fact in issue can be proved by the mode known to law in accordance with the procedure established by the Indian Evidence Act, 1872.

                  15. It is not in dispute that a fact in issue can be proved either by oral evidence or by documentary evidence or by both including circumstances arising therefrom. When an accused was summoned by a Special Court under the PoCSO Act alleging that he committed an offence under the PoCSO Act, the offence alleged against the accused is commission of offences mentioned in the PoCSO Act against a victim below 18 years. No doubt, the prosecution has a duty to prove the age of the victim to maintain a prosecution under the PoCSo Act. For which the documents to be relied on are well detailed in Jarnail Singh's case (surpa) and other decisions of the Apex Court. In Biju's case (supra), the Division Bench of this Court was inclined to rely on the oral testimony of the mother of the victim to prove date of birth which was not unchallenged. Here, accused faced trial before the Special Court where a special procedure is contemplated particularly on the premise that the victim was a minor aged below 18 years. In such a case, the accused conceded the jurisdiction of the Special Court under the PoCSO Act and faced trial. It is legally well settled that the accused could very well contend that the victim is not a child defined in the PoCSO Act during trial and if so, it is the bounden duty of the prosecution to prove the age of the victim and the said mandate would have no dilution. When the child and her mother give evidence before the court, stating the date of birth of the victim, which would substantially show that the victim is below 18 years, if the accused does not dispute the status of the victim as a child below 18 years by contending that the victim’s age at the time of occurrence is above 18 years by cross-examining them and thereby, their substantial evidence would remain unchallenged, and thus, if the prosecution fails to prove the same by documentary evidence as discussed, conviction for the offence under the PoCSO Act is permissible. But when the oral testimony given by the victim and the mother has been challenged during cross-examination contending that the age of the victim is above 18 years and the prosecution fails to prove the age of the victim below 18 years by admissible documents discussed hereinabove, it is unsafe to fasten criminal culpability on the accused under the PoCSO Act, since the prosecution failed to adduce evidence to prove that the victim was aged below 18 years during commission of the offences. Explaining the legal position in the above line, it is unsafe to hold that in the instant case, the prosecution failed to prove the age of the victim below 18 years. Thus, the contention raised by the learned counsel for the appellant/accused that the prosecution miserably failed to prove the age of the victim to establish that she was a child within the meaning of Section 2(d) of the PoCSO Act, which defines a child as a person below 18 years of age, is untenable.”

19. It is relevant to note that the evidence of PW7 supported by Ext.P6 would show that the date of birth of the victim is 18.12.1998. During cross examination of PW7 given evidence that he had entered the date of birth in Ext.P6 after verifying the birth certificate of the victim. This version remains as unchanged as it was brought during cross-examination of PW7. Apart from that, PW1 during cross-examination stated that when she reached the hill as demanded by the accused, she was studying in 9th standard. But, according to PW2, the mother during 2013, she was studying in 10th standard. Even though, the evidence of PW1 and PW2 show a slight difference as regarding the class in which PW1 studied during the occurrence, their evidence would support the evidence of PW7 that PW1 was a child at the time of occurrence. Thus, the contention raised by the learned Senior Counsel for the appellant/accused that PW1 and PW2 did not state anything regarding the status of PW1 as a child at the time of occurrence could not be found. Even otherwise, going by the decisions referred to above, Ext.P6, tendered in evidence, through PW7 found to be a reliable document to hold that the date of birth of PW1 is 18.12.1998 and that, at the time of the occurrence, she was below 18 years of age and, she was a 'child' as defined under Section 2 (1)(d) of the POCSO Act. In fact, the status of PW1 as a child is not at all disputed during trail and thus this argument mooted before this Court is childish.

20. The evidence discussed in detail by way of re-appreciation would show that the argument advanced by the learned Senior Counsel for the accused/appellant that the status of PW1 as a child failed to be established by the prosecution and that the relationship to be found as consensual would not succeed.

21. Coming back, Ext.P7 is the scene mahazar tendered in evidence of PW13. PW13, Circle Inspector of Police, Puthencruz supported the prosecution case.

22. In the instant case, on re-appreciation of the evidence tendered by PW1, the same appears to be wholly reliable. Further the stature of PW1 is that of a sterling witness to act upon her evidence. That apart, the evidence of PW1 is supported by the other evidence discussed in detail. Thus, it could be seen that the evidence available would show that the accused committed the offences punishable under Section 376(2)(n) of IPC as well as under Section 5(l) r/w 6 of the POCSO Act, as found by the Special Court. Therefore, the conviction does not require any interference. Coming to the sentence, no leniency in sentence is possible since the sentence imposed is the statutory minimum.

In view of the above, the appeal fails and the same is hereby dismissed. The conviction and sentence imposed by the Special Court stand confirmed. Since the appellant is in jail, no further order is required.

Registry is directed to forward a copy of this judgment to the Special court, for information and compliance.