Sikkim HC Acquits Man of POCSO and Rape Charges After Birth Certificate Issued 17 Years Late Fails Age Proof Test
The Sikkim High Court set aside convictions under the POCSO Act and Section 376(1) IPC after finding the prosecution's own witnesses contradicted the delayed birth certificate used to prove the victim was a minor.
A Division Bench of the High Court of Sikkim, comprising Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan, acquitted Jeet Hang Subba of all charges on 29 May 2026, setting aside his conviction under section 3(a) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and section 376(1) of the Indian Penal Code, 1860 (IPC). The Special Judge at Soreng had convicted him on 31 July 2024. The High Court found that the prosecution failed to prove the victim was a child at the time of the alleged offence, because the birth certificate it relied upon was registered more than seventeen years after the birth, without the Magistrate's order required by law for such delayed registration, and the prosecution's own witnesses gave contradictory evidence about the victim's actual age.
The Case Before the Special Judge, Soreng
The matter began on 10 August 2022 when Dr. Sharad Hang Subba, a Medical Officer at the Public Health Centre, lodged an FIR after the victim came to the outpatient department with vaginal bleeding, abdominal pain, and generalised weakness. On examination, her urine pregnancy test returned positive. She disclosed to the doctor that she had sexual intercourse with the appellant, her boyfriend, on 13 June 2022, and that he had given her an over-the-counter drug on 2 August 2022.
The charge sheet alleged that the appellant, a married man with a child, had a consensual love affair with the victim. A supplementary charge sheet followed after receipt of a report from the Central Forensic Science Laboratory. Three charges were framed: section 5(j)(ii) of the POCSO Act, section 376(1) IPC, and section 315 IPC. Sixteen prosecution witnesses were examined. The appellant, examined under section 313 of the Code of Criminal Procedure, 1973, denied all knowledge and claimed false implication.
The Special Judge acquitted the appellant of the charge under section 315 IPC, finding it unproved. However, the Special Judge held that the prosecution had established the victim was a minor on 13 June 2022 and convicted the appellant under section 3(a) of the POCSO Act and section 376(1) IPC. The appellant challenged the conviction before the High Court under section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023.
The Single Issue on Appeal: Was the Victim a Child?
The appeal was confined to one question: whether the prosecution had proved that the victim was a “child” as defined under section 2(d) of the POCSO Act, which means a person below eighteen years of age. The appellant's Senior Counsel, Mr. Jorgay Namka (appearing as Legal Aid Counsel), argued that the birth certificate (Exhibit P3) recording the victim's date of birth as 5 January 2005 was issued only on 5 April 2022 — nearly seventeen years after the alleged birth — and was therefore doubtful. He pointed to the depositions of the victim and her own mother, which contradicted the date in the certificate. If the victim was not a child, the conviction under section 376(1) IPC for rape was also unsustainable because the intercourse was admittedly consensual.
The Additional Public Prosecutor for the State maintained that the prosecution had established the victim's minority through the birth certificate and supporting documentary evidence.
What the Prosecution Witnesses Actually Said About the Victim's Age
The bench examined the depositions of every witness who could speak to the victim's age. The victim herself, deposing on 1 November 2022, stated she was then eighteen years old and that her actual date of birth was 5 January 2004, but her parents had reduced her age and recorded it as 5 January 2005. The victim's mother (P.W.2) stated in her examination-in-chief that the victim was born in December 2004 — not January 2005 as the certificate showed. The prosecution did not cross-examine either the victim or her mother on these statements, leaving them uncontroverted.
The victim's father (P.W.3) deposed that the victim was born on 5 January 2005 at home and that he had obtained the birth certificate from the PHC. Under cross-examination, however, he conceded he could not say whether the birth certificate was actually of the victim, did not know when he had obtained it, and admitted he did not know the victim's exact age.
One of the victim's sisters (P.W.4), deposing on 14 December 2022 at age seventeen, admitted during cross-examination that the victim was seven months older than her and that her own birthday was 8 July 2005. That arithmetic would place the victim's birth around December 2004, consistent with the mother's deposition. Another sister (P.W.6) admitted during cross-examination that the victim was eighteen years old when she deposed on 14 December 2022.
The Registrar, Births and Deaths (P.W.14) confirmed that the birth certificate (Exhibit P3) was issued by him after verification, and that the original Births and Deaths Register (Exhibit P15) recorded the date of birth as 5 January 2005 — but the entry was registered only on 5 April 2022. The informant for that registration was the victim's father (P.W.3), who had already conceded in cross-examination that he did not know the victim's exact age.
Why the Birth Certificate Could Not Carry a Presumption of Correctness
The bench identified two independent reasons why the birth certificate could not be treated as reliable proof of the victim's date of birth.
First, the certificate was issued on 5 April 2022, more than seventeen years after the recorded date of birth of 5 January 2005. The Registrar had no personal knowledge of the birth and recorded only what the father told him. The father himself admitted he did not know the victim's exact age. The bench observed that under normal circumstances a birth certificate, as a public document, may attract a presumption of correctness. But that presumption was displaced here because the prosecution's own witnesses — the victim and her mother — directly contradicted the entry, and the prosecution chose not to challenge those depositions in cross-examination.
Second, the bench examined section 13 of the Registration of Births and Deaths Act, 1969. Section 13(3) of that Act provides that any birth not registered within one year of its occurrence can be registered only on an order made by a First Class Magistrate, after verifying the correctness of the birth, and on payment of the prescribed fee. The prosecution placed no evidence before the court to show that this procedure was followed before the entry was made in the register. The absence of that compliance meant the presumption of correctness attached to public documents could not be extended to this certificate.
The bench stated that when conflicting evidence is put forth by the prosecution, settled law requires that the version favouring the accused be accepted. On the totality of the evidence, the prosecution had failed to prove that the victim was a child as defined under section 2(d) of the POCSO Act. The conviction and sentence under section 3(a) of the POCSO Act were set aside.
The Section 376(1) IPC Conviction: Consensual Intercourse and the Sterling Witness Standard
The Special Judge had separately convicted the appellant under section 376(1) IPC on the basis that the victim's deposition about sexual intercourse on 13 June 2022 was not demolished or denied by the appellant. The High Court examined whether that conviction could survive once the POCSO conviction fell away.
The victim's account was detailed. She deposed that on 13 June 2022 at around 10.30 pm she went to meet the appellant at a spot a little away from her house, where they had decided to meet. They had sexual intercourse and then returned to their respective homes. She subsequently missed her period for two months, took a pregnancy test that came back positive, informed the appellant, and he arranged abortion medicine through a compounder. After consuming the medicine she began bleeding and suffered severe abdominal pain, eventually being taken to the PHC by her sister and referred onward to District Hospital, Namchi and then to District Hospital, Gangtok.
The victim's account of the pregnancy was corroborated by her parents and sisters, all of whom identified the appellant in court. Dr. Chimi P. Theeng (P.W.15), the Obstetrician and Gynaecologist at STNM Hospital who examined the victim on 12 August 2022, found her pregnant with moderate product of conception, which was removed. The bench accepted the victim's deposition about the sexual intercourse as “unblemished” and corroborated by the medical evidence.
The defence had suggested during cross-examination that the victim had been sexually abused by the elder brother of her brother-in-law about a year before the incident. The bench rejected this as irrelevant: had the victim conceived through that earlier encounter, she would have delivered a child well before 13 June 2022.
Despite accepting the victim's account of the intercourse, the bench held that the conviction under section 376(1) IPC could not be confirmed. The intercourse was admittedly consensual. The prosecution had not established that the victim was a child. Without proof of minority, consensual intercourse between adults does not constitute rape under section 376(1) IPC. The bench also noted that although the prosecution could not establish that the foetal substance extracted from the victim was that of the appellant, this did not affect the credibility of the victim's deposition about the intercourse itself. The absence of DNA linkage was not the reason for the acquittal on the rape charge; the absence of proof of minority was.
Outcome
The Division Bench set aside the impugned judgment and order on sentence dated 31 July 2024 in its entirety. Jeet Hang Subba was acquitted of all charges. The bench directed that he be set free if not required in any other case. A copy of the judgment was directed to be sent to the Special Judge, Soreng, along with the trial records, and a separate copy was directed to be forwarded to the Jail Superintendent, Rongyek, Gangtok.