POCSO | Consent May Be Immaterial, But Age Must Be Proved: Madras High Court Acquits Man

“Merely Producing a School Certificate Is Not Enough” — In a powerful judgment exposing investigative lapses and warning trial courts against passive adjudication, the Madras High Court set aside the conviction of a man under the Protection of Children from Sexual Offences Act, 2012, holding that the prosecution failed to prove the age of the victim beyond reasonable doubt and did not establish the chain of custody for the DNA evidence.

Justice Sunder Mohan acquitted the appellant Vengatesan of all charges under Sections 7, 8, 5(l), 5(j)(ii) and 6 of the POCSO Act and allied IPC offences, observing that the trial had been reduced to “a farce” due to a casual prosecution and ineffective defence.

The Court made it clear: “Consent is immaterial if the victim is a child. But the prosecution must first prove that she was a child.”

The Prosecution Case: Alleged Repeated Sexual Assault

The prosecution alleged that the appellant had committed repeated penetrative sexual assault on the victim in 2019 and that she later became pregnant. The case rested primarily on the evidence of the victim (PW2), her mother (PW1), medical witnesses, a school certificate (Ex.P4) to prove age, and a DNA report said to link the appellant to the foetus.

The Special Court for POCSO cases at Salem had convicted the appellant and imposed sentences up to 20 years of rigorous imprisonment.

Love Affair and Absence of Force

On appeal, the High Court examined the evidence of PW1 and PW2 and found that both admitted the appellant and the victim were known to each other and were in a love affair.

The victim stated that she had a relationship with the appellant and later severed it. She also admitted that another person had sexual relations with her.

Medical evidence revealed no external injuries. The Court noted:

“There is nothing on record to suggest that there was any forcible sexual intercourse.”

The conduct of the victim and the medical evidence suggested a consensual relationship. However, the Court clarified that consent would not matter if the victim was a minor. That brought the focus squarely on proof of age.

Suppression of Birth Certificate — Fatal to Prosecution

The mother (PW1) admitted in her deposition that she had handed over the birth certificate of the victim to the Investigating Officer. However, that birth certificate was never produced before the Court.

Justice Sunder Mohan observed that the birth certificate — the primary document under Section 94 of the Juvenile Justice Act — had been suppressed.

The Court held that such suppression justified drawing an adverse inference against the prosecution.

School Certificate Contradictory and Unreliable

To establish age, the prosecution relied on a school certificate (Ex.P4) issued by a Headmaster (PW5), showing the victim’s date of birth as 10.06.2005.

However, the victim herself stated that her date of birth was 31.12.2004.

The Headmaster did not explain the basis on which the date of birth was recorded. There was no production of admission records, no foundational documents, and no evidence of prior schooling.

The Court cautioned:

“Investigating officers in many cases adopt a shortcut method of obtaining a certificate from the Headmaster… Invariably the Headmaster is not aware of the basis on which the date of birth is mentioned.”

In the absence of the birth certificate and with contradictory and unsupported school records, the Court held that the prosecution failed to establish beyond reasonable doubt that the victim was a child at the time of occurrence.

DNA Evidence Without Chain of Custody — No Evidentiary Value

The prosecution argued that the DNA report established the appellant as the biological father of the foetus.

However, the High Court found glaring procedural lapses.

There was no evidence as to when and how the foetus was collected, preserved, packaged, and transmitted to the forensic laboratory. The scientific expert who prepared the DNA report was not examined. The report was marked through the Investigating Officer.

Justice Sunder Mohan held:

“The chain of custody of the foetus has not been properly proved… in the light of such evidence, the DNA Report would be of no avail to the prosecution.”

Referring to Manoj v. State of Madhya Pradesh (2023) 2 SCC 353, the Court reiterated that DNA testing is powerful only when proper protocols are followed; otherwise, contamination and error cannot be ruled out.

A Trial Reduced to a “Farce”

In unusually strong language, the Court criticised both the prosecution and the defence.

None of the prosecution witnesses were cross-examined. The victim’s testimony was inconsistent with her earlier statement under Section 164 Cr.P.C., yet no confrontation was made.

Justice Sunder Mohan observed:

“The defence counsel has failed to discharge his duty in the manner required… on the whole, the trial in this case has been reduced to a farce.”

The Court emphasised that effective legal assistance is a constitutional guarantee under Article 21. Citing Ashok v. State of Uttar Pradesh (2025) 2 SCC 381, it stated:

“Legal assistance must not be formal and it must be effective. Ineffective assistance is as bad as no assistance.”

Trial Court Not a “Mute Spectator”

Invoking Section 311 Cr.P.C. and Section 165 of the Evidence Act, the Court reminded trial judges of their proactive duty.

“The trial Court is under an obligation not to act as a mere spectator.”

Quoting Pooja Pal v. Union of India and Zahira Habibulla H. Sheikh v. State of Gujarat, the Court stressed that criminal trials are matters of public justice and cannot be left entirely to party conduct.

The learned Sessions Judge ought to have ensured proper proof of age, examination of the DNA expert, and effective representation for the accused.

Conviction Unsafe — Acquittal Ordered

Given the failure to prove minority and the absence of reliable scientific evidence, the Court concluded that it would be “highly unsafe” to sustain the conviction.

The appeal was allowed. The conviction and sentence dated 16.06.2022 in Spl.S.C.No.99 of 2020 were set aside. The appellant was acquitted of all charges. Fine, if paid, was directed to be refunded and bail bonds discharged.

A Broader Warning

This judgment serves as a stern reminder that in POCSO prosecutions:

“Age is the foundation. Without proving minority beyond reasonable doubt, the edifice of the case collapses.”

It also underscores that scientific evidence must be proved with strict adherence to chain of custody requirements and that trial courts must actively ensure fairness, competence, and completeness in criminal proceedings.

Date of Decision: 12.02.2026