Is Strict Proof Of Victim’s Age Required In All Cases Of Child Pornography? Kerala High Court Explains

The Kerala High Court explained whether strict proof of the age of victim is required in all cases of the child pornography.

The Court was deciding a criminal miscellaneous case in which the question was whether prosecution should prove the identity of the victim in child pornography cases.

A Single Bench of Justice K. Babu laid down the following guidelines:

(1) The provisions dealing with the offence of child pornography punishable under Section 15 of the POCSO Act and the offence of publishing or transmitting material in electronic form depicting children engaged in sexually explicit acts or conduct punishable under Section 67-B of the Information Technology Act are to be constructed emphasizing the viewpoint of the audience, the society at large.

(2) There need not be any strict proof as regards the age of the model in every case of child pornography. What is relevant is whether the model appears to be a child.

(3) If the image is that of an infant or toddler, the court can take judicial notice of the fact that the image is that of a child and proceed by framing charge.

(4) The question of whether the age of a model used in a child pornography prosecution is below 18 years is to be answered on a case-by-case analysis. In some cases, there need not be any strict proof as regards the age where the appearance of the model is explicitly that of a child aged below 18 years. In such cases, the fact finder can decide the issue of age without the assistance of an expert testimony.

(5) In some cases, the model involved might depict a person close to the age of 18. The fact finder will find it difficult to arrive at a conclusion as to the age. In such cases, the fact finder may rely on the opinion of a pediatrician or an expert in the field. In the case where the model depicts a boy or girl under the age of 16, the fact finder may decide based on the experience, using his/her critical faculties in deciding the issue. However, the conclusions are always open to challenge by the defence and the burden of proof shifts in accordance with Chapter VII of the Indian Evidence Act.

(6) In cases of marginal nature the opinion of the experts, including pediatrician and forensic experts, is necessary for arriving at conclusions on the age.

(7) In cases where special circumstances are pleaded as to the age of the model, it is the burden of the party who pleads it to prove the existence of such special circumstances or exceptions, as the case may be.

(8) Prosecution need not always establish the identity of the model as it is practically impossible and insistence on identification of the child and proof of the age as in the case of other offences under the POCSO Act will defeat the intention of the statute. The fact-finding on the age, being an integral part of the offence, the prosecution has to place the material before framing of charge.

Advocate Mahesh V Ramakrishnan appeared for the petitioner/accused while Public Prosecutor M.K. Pushpalatha appeared for the respondent/State.

In this case, the accused challenged the final report and the order in which an application seeking discharge, passed by the Court of Additional District and Sessions Judge for the trial of cases relating to Atrocities & Sexual Violence against Women and Children. The challenge was to the orders rejecting the applications seeking discharge under Section 227 of the Criminal Procedure Code (CrPC).

The High Court in the above regard observed, “It is a general rule that the opinion of witnesses possessing peculiar skill is admissible, whenever the subject matter of enquiry is such that inexperienced persons are unlikely to form a correct judgment upon it without such assistance. In other words, this is so when it so far partakes of the character of a science or art as to require a course of previous habit or study to obtain a competent knowledge of its nature.”

The Court said that an expert to be competent as a witness need not have acquired his knowledge professionally and it is sufficient so far as the admissibility of the evidence goes if he has acquired special experience therein. It added that the only thing is that the expert must show that he is skilled and has adequate knowledge and experience on the subject.

“Both under Sections 45 and 47 of the Indian Evidence Act, the evidence is of an opinion, in the former by a scientific comparison and in the latter based on familiarity resulting from frequent observations and experience. … In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon”, it noted.

The Court concluded that it is not a case where the court can quash further proceedings at this stage, however, the petitioner is to be allowed to seek discharge before the Trial Court.

Cause Title- Parthasarathi M v. State of Kerala (Neutral Citation: 2024:KER:28423)

Appearance:

Petitioner: Advocates Mahesh V Ramakrishnan and Mary Liya Sabu.

Respondent: PP M.K. Pushpalatha, Advocates N.R. Sangeeth Raj, C. Seena, G. Sudheer, Amicus Curiae Renjith B Marar, and John S Ralph.

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