Madras High Court: While hearing a criminal appeal against conviction under Section 366, Penal Code, 1860 (IPC) and Section 5(l) read with Section 6, Protection of Children from Sexual Offences Act, 2012 (POCSO Act), a Single Judge Bench of N. Mala, J., observed that the trial court committed a fatal error in relying on inadmissible xerox copies of documents to determine the age of the victim. The Court held that once the foundational fact of age was unproved, the conviction could not be sustained. Accordingly, the Court allowed the appeal, set aside the conviction and sentence, and acquitted the appellant.
Highlighting the rising misuse of POCSO Act, the Court emphasised that,
“It is a typical case of consensual adolescent sexual relationship ending on a discordant note due to parental differences, and in cases involving consensual relationships between adolescents, it is often the young boy who ultimately bears the consequences.”
Background
The prosecution alleged that the victim, aged 16 years, developed acquaintance with the appellant, who was a friend of her elder brother. On 3 March 2018, the appellant expressed his love and desire to marry her. Since her parents planned for her marriage against her wishes, the appellant insisted she leave her home. On 4 March 2018, she left her parental home and married the appellant at his uncle’s house. It was alleged that the appellant repeatedly committed sexual assault until his arrest on 5 April 2018. A complaint was lodged, and FIR was registered under Section 5(l) read with Section 6, POCSO Act.
The appellant contended that the victim voluntarily joined him, her statements were inconsistent and contradictory, and the trial court erred in relying on wavering testimony without corroboration.
However, the State argued that the trial court had properly analysed the evidence, including medical corroboration, and rendered cogent reasons for conviction.
Analysis and Decision
The Court emphasised that the genesis of the prosecution case was interlined with a romantic relationship that ended acrimoniously, thereby warranting careful appellate scrutiny of the allegations and the surrounding circumstances. The Court noted that both the appellant and the victim were minors at the time of occurrence. However, to prove the age of the victim, the prosecution relied on xerox copies of the birth certificate and transfer certificate.
The Court observed that non-production of the originals of the birth certificate and transfer certificate had not been explained and reiterated the settled proposition that secondary evidence can be admitted only if proper and justifiable explanation is offered for non-production of the primary evidence. The Court further relied on Tharammel Peethambaran v. T. Ushakrishnan, 2026 SCC OnLine SC 169, wherein it was held that secondary evidence is inadmissible until the non-production of the original is accounted for in a manner that brings the case within the specific exceptions provided in Section 65, Evidence Act, 1872.
The Court emphasised that the trial court, before accepting the xerox copies in evidence, ought to have considered their admissibility, and the failure to note that the xerox copies were inadmissible and placing heavy reliance on them to determine the age of the victim was a fatal error committed by the trial court.
The Court highlighted that primary evidence is the rule and secondary evidence an exception, and a party is required to produce the best evidence if available. The Court noted that the primary evidence, i.e., the originals of the xerox copies being the best evidence and admittedly available, ought to have been produced since the xerox copies are only secondary evidence. Hence, the Court emphasised that the xerox copies ought to have been discarded, and if the xerox copies are discarded, then the prosecution’s case falls to the ground, since the foundational fact regarding the age of the victim stands unproved.
The Court highlighted that under parental pressure, the girl may be compelled to marry another person, following which criminal proceedings are initiated against the boy under the POCSO Act, resulting in his prolonged incarceration.
The Court referred to State of U.P. v. Anurudh, 2026 SCC OnLine SC 40, wherein the Supreme Court directed circulation of a copy of the judgment to the Secretary, Law Department, Government of India, to consider initiation of steps as may be possible to correct this menace, inter alia, the introduction of a Romeo-Juliet clause exempting genuine adolescent relationships from the stronghold of this law, and enacting a mechanism enabling the prosecution of those persons who, by the use of these laws, seek to settle scores.
The Court observed that if the provisions of Section 43, POCSO Act are followed in letter and spirit, the menace as pointed out by the Supreme Court in Anurudha (supra), to an extent, can be curbed. The Court opined that it is fundamentally due to lack of knowledge of the POCSO Act and its draconian provisions that the same is misused. The Court, therefore, issued directions to the Chief Secretary of the State of Tamil Nadu to take immediate and positive steps to comply with Section 43, POCSO Act, in order that awareness is created in the general public, children, and parents on the uncompromising provisions of the POCSO Act.
Apart from the measures provided under Section 43, POCSO Act, the Court directed the Chief Secretary to consider conducting camps in Government and private schools and colleges for creating awareness about the POCSO Act and its dire consequences. Further, the Chief Secretary shall file a Status Report on 3 June 2026 on the measures undertaken as directed herein, in furtherance of the provisions of Section 43, POCSO Act.
Accordingly, the Court allowed the criminal appeal, and the judgment of conviction and sentence passed by the Sessions Judge under the POCSO Act was set aside. The Court thereby acquitted the appellant of all charges levelled against him, and since it was reported that the appellant was in jail, he was directed to be set at liberty forthwith unless his presence was required in connection with any other case.
[Mahesh v. State of T.N., Crl. A (MD) No.1300 of 2025, decided on 16-2-2026]
Advocates who appeared in this case :
For the Appellant: K. Karnan
For the State: A. Thiruvadikumar, Additional Public Prosecutor