POCSO Victim's Testimony Loses Credibility When DNA Report Rules Out Accused As Biological Father: Gauhati High Court

“30. From the evidence of PW-1 as discussed above, it is seen that she brought the allegation against the accused/appellant that he used to touch her inappropriately while she was staying with the grandfather/accused-appellant. She also specifically stated in her evidence that apart from this touching no other incident had taken place…[However] In her statement made u/s 164 CrPC, she brought the allegation of penetrative sexual assault against the appellant and she also disclosed that she used to be sexually assaulted by her grandfather/appellant. In her evidence, PW-1 has not implicated anybody for having raped her or admitted having any sexual relationship with anybody else, except the appellant. The pregnancy has also been attributed only to the appellant. However, the said testimony of the victim has been proved to be false and a lie.

In light of this discrepancy, the Court held that a conviction cannot rest solely on a statement recorded under Section 164 CrPC, which may be used only for contradiction or corroboration. Addressing the DNA evidence, the Bench noted that the DNA test conclusively established that the appellant was not the biological father of the child. This, the Court held, “washes away the very edifice on which the victim's case was built” and demonstrated that “she is not a reliable witness.”

While reaffirming that conviction can be sustained solely on the testimony of the prosecutrix if it is credible, the Court held:

“However, the very basis of the victim's allegation has been taken away by the DNA test report, which shows that the appellant was not the father of the victim's child. When the victim's evidence has been proved to be false, we are of the view that it would not be safe to rely upon the sole evidence of the victim that she was raped by the appellant, as she cannot be said to be a reliable witness and her evidence does not inspire our confidence. In fact, due to above reasons, the victim appears to have been tutored to make a false case.”

On the presumption under Section 29 of the POCSO Act, the Court clarified that it arises only after the prosecution proves the “foundational facts” of the offence against the accused. In the present case, the failure to establish these facts, coupled with the DNA evidence, disentitled the prosecution from invoking the presumption. Accordingly, the High Court acquitted the appellant of all charges.

Case title: Abdul Hamid v. State of Assam

Appearances: S.S. Zia appeared for the appellant; R.R. Kaushik represented the State.