Non-Disclosure Of Exact Occurrence Date In Earlier Statements Not Necessarily Fatal If POCSO Victim Clarifies In Deposition: Kerala High Court

The Kerala High Court, in a recent judgment, refused to set aside a conviction in a POCSO case that was challenged alleging anomaly in the prosecution case due to minor discrepancies regarding the date of occurrence.The appellant before Justice A. Badharudeen had contended that since the child victim failed to disclose the actual date of occurrence in FIS and in statement before Magistrate but disclosed later in his chief examination before court, the prosecution case was doubtful.The prosecution allegation was that while the victim was returning from school on foot, the appellant/accused came on scooter and offered him a lift to his home. It is further alleged that the accused grabbed the penis of the victim over his pants.The appellant was charged with Section 363 IPC and Sections 7 and 8 of the POCSO Act. The Special Court, after trial, found him guilty of the offences and sentenced him to rigorous imprisonment of 2 years and fine of Rs. 5000 for the offence of Section 363 IPC. He was sentenced to 3 years rigorous imprisonment for the offences under the POCSO Act. Challenging the conviction and sentence, he approached the High Court in appeal. In addition to the averment that actual date of occurrence was not mentioned, the appellant raised two other arguments. It was contended that the accused was not properly identified. The final challenged was that the father of the victim, though cited as a witness to prove the prosecution case, was not examined and this was fatal to the prosecution.According to the victim/PW1, after the incident, there was an awareness session in his school regarding POCSO law, and only then did he divulge the incident to his mother, who in turn, said it to his father. Clear dates were not mentioned in the FIS or the 164 statement but the victim remembered that there was a long holiday after the incident and he figured out the date while deposing.The Court remarked that the reason for not disclosing it earlier was explained by the victim during the examination and that the same was acceptable. It was further observed that totally weighing the evidence of the minor victim, the non-disclosure of actual date if not significant enough to disbelieve his version.“during the examination of the victim, he stated that, he did not disclose the actual date of occurrence in Ext.P1 [FIS] as well as 164 statement as he did not remember the date at the relevant time and thereafter, as he remembered that there was four days holidays after the occurrence. Accordingly, he got the actual date of occurrence and he had disclosed the actual date during his chief examination. This explanation offered by a minor witness is acceptable. Therefore, the challenge raised by the learned counsel for the accused as to non disclosure of actual date of occurrenc… is found to be not having much significance to disbelieve the version of PW1 in the instant case. On totally weighing the evidence of PW1, the same is found to be wholly reliable,” the Court remarked.With respect to the non-identification of the accused, the Court opined that the question of identity does not even arise as the victim had deposed that he was familiar with the accused and that they were neighbours. Moreover, since a statement disclosing the accused's name was given, there is no confusion regarding identity.In regard to the final averment regarding non-examination of the victim's father, the Court's opinion was that the same would not be fatal to the prosecution case since the incident was disclosed by the victim to his mother, who in turn had disclosed it to his father, the father's evidence was only hearsay.Thereafter, the Court reached the conclusion that the Special Court's decision regarding finding of guilt requires no interference. It was also of the opinion that the sentence also need no modification since 3 years imprisonment is the statutory minimum provided for the offence under Sections 7 and 8 of the POCSO Act.The Court also took note of the fact that the appellant is a habitual offender, who has been convicted in four other crimes under the POCSO Act. Therefore, it reiterated that sentence reduction is not possible.Thus, it dismissed the appeal.Case No: Crl.A. No. 1656 of 2025Case Title: Musthafa v. State of KeralaCitation: 2026 LiveLaw (Ker) 237Counsel for the appellant: Athul TomCounsel for the respondent: Renjith George – Sr. Public ProsecutorClick to Read/Download Judgment

Non-Disclosure Of Exact Occurrence Date In Earlier Statements Not Necessarily Fatal If POCSO Victim Clarifies In Deposition: Kerala High Court

K. Salma Jennath

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