Absence Of Medical Officer's Opinion On Sexual Assault Not Fatal To Prosecution Under POCSO Act: Bombay High Court

In a significant ruling, the Bombay High Court recently held that in cases under the Protection of Children from Sexual Offences (POCSO) Act, a person cannot be acquitted just because the medical officer does not give any opinion about sexual assault. Single-judge Justice Ravindra Joshi, while upholding a man's conviction under section 376(2)(i) of the Indian Penal Code (IPC) and sections 6 and 10 of the POCSO Act, noted the argument of the convict that the medical officer who testified before the trial court did not give any opinion on sexual assault nor did he speak about any injury on the victim's person. The judge, however, took note of a medical certificate which indicated 'redness' on the private part of the victim. "There is no reason other than the sexual assault for causing of the same redness. In such circumstances merely because there is no opinion expressed by the Medical Officer with regard to the sexual assault, the case does not become fit for acquittal of the accused. In any case, the testimony of the Medical Officer is in the form of opinion," Justice Joshi held in the February 25 order. The entire evidence on record, the judge said, shows that the evidence of victim before the Trial Court is consistent with her previous statement and also gets the support from an independent witness coupled with the medical evidence. The judge further dismissed the argument of 'false implication' in the case as he failed to adduce any evidence in that regard."In case of offence against a child under POCSO Act, the Court is required to give due weightage to the evidence of the child, who is the victim of sexual assault. No doubt if the other evidence on record or overall circumstances brought before the court create any doubt with regard to the occurrence of the incident as claimed by the victim, the Court in such case would be on guard and search for any corroborative evidence," the judge observed. The court also dismissed various grounds on which the convict claimed that he was falsely implicated especially his suggestions against some prosecution witnesses and also about enmity with the victim's family over quarrels with her mother. "It is thus, clear that the defence is suggesting different reasons for his alleged false implication to the 4 witnesses of the prosecution and there is no substance in the said defence," the judge noted. While concluding, Justice Joshi held that the version of the victim was trustworthy and inspired confidence and therefore, refused to interfere with the findings of the special court, which convicted Pradip Baiker on June 7, 2022.According to the prosecution case, Baiker, a neighbour of the victim, had called the minor girl to his house on the pretext of giving some food items to her on August 22, 2013 and when the victim went to his house, he forcibly denuded her and committed sexual intercourse. She did not inform about the same to anyone till August 26, 2013, when she could not bear her stomach pain and narrated her ordeal to her mother. The same day, the family lodged a complaint against Baiker, who was subsequently arrested and later convicted. Challenging his conviction, Baiker petitioned Justice Joshi's bench, which found no material in the same and therefore, dismissed his appeal. Appearance:Advocate Akshay Dingale appeared for the Appellant.Additional Public Prosecutor Ashok Gawai represented the State.Legal Aid Counsel Gunjan Thakkar was appointed to represent the Victim. Case Title: Pradeep Prakash Baiker vs State of Maharashtra (Criminal Appeal 728 of 2022)Citation: 2026 LiveLaw (Bom) 89Click Here To Read/Download Judgment

Absence Of Medical Officer's Opinion On Sexual Assault Not Fatal To Prosecution Under POCSO Act: Bombay High Court

Narsi Benwal

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