Gauhati High Court Overturns POCSO Conviction Citing Victim's "Sketchy" Evidence, Says No Proof Of Sexual Assault Detected In Medical Exam

The Gauhati High Court recently set aside a conviction under the POCSO Act, holding that the statements of the victim were contradictory and no evidence of sexual assault was detected by the medical officer who examined the victim.

The single judge bench of Justice Susmita Phukan Khuand noted,

“It is true that the consent of the victim is not required in a case under the POCSO Act. In the instant case, it is manifest that the victim was not induced to go with the accused but she went with him on her own volition. No evidence of sexual assault could be detected by the Medical Officer. On the contradictory statements of the victim, the accused is not held guilty of offence under the POCSO Act. The Medical Officer has also given her opinion that the victim’s age is around 17 to 18 years.”

Victim's mother alleged that accused, who stayed with them for a night, induced the 16-yr-old victim to elope with him. Counsel appearing for the accused submitted that the victim was a major at the time of the incident and she had eloped with the accused on her own volition.

The Court observed that the victim’s claim of sexual assault is not substantiated by the evidence of the Medical Officer as no marks of violence or injury marks were detected on her private parts. “When the evidence of the prosecutrix is not substantiated by the evidence of the MO and I/O, then doubt slowly infiltrates,” the Court noted.

Court also noted that victim alleged that accused forced her to board a bus to Guwahati. It said, "If the victim was unwilling to proceed with the accused to Morigaon or to Guwahati, she would have easily raised alarm, because she was traveling in a bus and the people would have rescued her from the clutches of the accused. The evidence of the victim appears to be too farfetched and sketchy.”

Court further observed that due to the contradictions in statements of victim and the informant, credence cannot be given to their evidence to incarcerate a person in connection with such a serious offence.

“A vague statement made by a victim cannot be taken as Gospel truth to incarcerate a person for an offence as serious as an offence under the POCSO Act, moreso, when the evidence of the victim is fraught with contradictions. Presumption regarding the offence of rape cannot be made on vague statements. No place of occurrence has been mentioned by the victim. It is discernible that the accused and the victim stayed in two different places. Where was the offence of rape committed?” it said.

The Court further remarked that the statement of the prosecutrix at every stage has improved, changed and has contradicted its earlier statement. The Court opined that the testimony of the prosecutrix suffers from material inconsistency and as per the settled law conviction cannot be based on such testimony of the prosecutrix which is not worthy of credence.

“It has also to be borne in mind that the victim has not alleged sexual assault when her evidence-in-chief was recorded but subsequently, on reexamination, the victim has mentioned about sexual assault but contradiction could be elicited through her cross-examination when it was brought to the notice of the Court that in her earlier statement under Section 164 Cr.P.C., the victim did not allege forceful sexual assault by the accused. It is apt to reiterate that the victim’s evidence is not worthy of credence,” it said.

Thus, the Court set aside the impugned judgment and order of sentence passed by the Trial Court.

Citation: 2023 LiveLaw (Gau) 90

Case Title: G.B. v. The State of Assam and Anr.

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