POCSO Act | Court Must Corroborate Victim's Testimony If Found To Be Unreliable: Gauhati High Court

The Gauhati High Court recently set aside a conviction under Section 10 of the POCSO Act passed by the Trial Court on the ground that the victim's evidence was not found to be of sterling quality and was utilised without corroboration. The single judge bench of Justice Mridul Kumar Kalita observed:“This Court is of considered opinion that once it is found that the prosecutrix has not deposed truthfully before the Trial Court, her evidence no longer remains of a sterling quality and, therefore, it becomes unsafe for the Trial Court to rely on such testimony and to come to the finding of guilt of the appellant on the basis of uncorroborated testimony of such a witness. It is also pertinent to note that the victim, in this case, is also a child witness and, therefore, possibility of tutoring her may not be excluded.”Father of the victim girl had lodged an alleging that his elder daughter, aged about seven years at the time, informed him that when they were sleeping, the appellant took her away gagging her mouth and committed rape on her thereafter he threatened her not to disclose the matter to anyone else. On the basis of the said FIR, a case was registered under Section 448 of the IPC and Section 6 of the POCSO Act. The Trial Court convicted the accused-appellant under Section 10 of the POCSO Act and sentenced him to undergo rigorous imprisonment for seven years.The Counsel appearing for the appellant submitted that the accusation against the appellant has been constantly shifting during different stages of the criminal proceeding. It was submitted that while in the FIR, it was alleged that the appellant had committed a bad act upon the victim girl and the said FIR was registered under Section 448 of the IPC read with Section 6 of the POCSO Act. However, it was alleged that after the investigation, charge-sheet was laid under Section 8 of the POCSO Act and charges were framed against the appellant on Section 4 of the POCSO Act and ultimately charges were altered at the stage of delivery of judgment under Section 6 of the POCSO. It was submitted that the conviction was made under Section 10 of the POCSO Act. It was further submitted that only eye-witness in the case is the victim girl herself and there is inherent inconsistency in the evidence of the victim girl. The appellant's counsel submitted that the victim girl, while deposing as the PW-1, has categorically stated that the appellant has pushed his penis into her vagina and committed rape on her for about one hour, however, the medical officer (PW-7) who examined the victim girl found the vulva and vagina of the victim girl healthy as well as hymen intact. It was argued that the prosecution side has failed to prove the foundational fact regarding the allegations of rape and therefore, presumption under Sections 29 and 30 of the POCSO Act could not have been made by the Trial Court against the appellant.On the other hand, the Additional Public Prosecutor (APP) submitted that in the instant case, the prosecutrix has categorically implicated the appellant of having committed aggravated sexual assault on her. It was argued that when ocular evidence is contradictory to the medical evidence, the ocular evidence may be relied if such ocular evidence inspires confidence. It was further submitted that in cases involving offences of such nature, there is no requirement of law that the testimony of the prosecutrix cannot be accepted unless corroborated.The Court found the submission of the appellant's counsel that if a minor girl of 8 years old is subjected to forceful penetrative sexual assault, there would certainly be some injuries on her private part and her hymen is unlikely to remain intact, persuasive. “It appears that even the Trial Court found the testimony of the PW-1 to be an exaggeration of facts, however, it came to a conclusion that this case is a case of aggravated sexual assault merely on the assumption that had such incident had not occurred, the informant as well as victim would not have come to the police,” the Court said.The Court further noted that the Trial Court failed to consider the plea taken by the appellant during his examination under Section 313 of the CrPC as well as evidence adduced by the defence witnesses while coming to the conclusion of the guilt in the impugned judgment.“…in the instant case, the Trial Court did not accept the statement of victim girl to be true and it was held to be exaggerated and, thereafter, convicted the appellant for a lesser offence based on the same testimony. This approach, in the considered opinion of this Court, is not a correct approach. More so, when the deposition of the PW-1 (victim) has been belied by the medical evidence as well as testimony of the PW-7 (doctor), it would be unsafe for the Court to rely on such testimony without any corroboration to come to the conclusion of guilt of the appellant even for a lesser offence. The Trial Court without there being any reliable evidence to that effect ...

POCSO Act | Court Must Corroborate Victim's Testimony If Found To Be Unreliable: Gauhati High Court

Udit Singh

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