Sikkim High Court Upholds POCSO Conviction, Says 6-Yr-Old Victim's Deposition Was Of Sterling Quality Despite Tender Age

The Sikkim High Court has upheld a conviction under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) stating that the victim's deposition during the trial was truthful and consistent with her statement recorded by the Magistrate under Section 164 of the Code of Criminal Procedure, 1973 (CrPC).

A Division Bench of Justice Meenakshi Madan Rai And Justice Bhaskar Raj Pradhan were considering the petition of the appellant against his conviction under Section 5(m) and Section 5(l) of the POCSO Act by the Special Trial Court for aggravated penetrative sexual assault on a child below twelve years.

The victim of six years of age was sexually assaulted by the appellant seven times at different places. The victim's mother had witnessed the last incident of sexual assault at her residence on 04.06.2022. The mother had thrown the victim's underwear and had bathed the victim after the incident. The first information report (FIR) was lodged on 12.06.2022 and the victim gave her statement to the Magistrate under Section 164 Cr.PC on 21.06.2022.

The High Court noted that during the trial, the victim described the act of sexual assault with absolute certainty in spite of her tender age. It considered the victim's statement recorded by the Magistrate and her deposition in Court to be consistent.

“The cross-examination by the defence yielded no evidence to demolish the victim's deposition which satisfies the ingredients of aggravated penetrative sexual assault by the appellant. Her deposition is consistent to her statement recorded by the learned Magistrate on 21.06.2022 under section 164 Cr.P.C. (victim's statement). Her deposition is also adequately corroborated by other prosecution witnesses.”

The appellant contended that there were contradictions between the victim's statement under Section 164 Cr.PC and her deposition in court. He contended that in the victim's statement, she had stated that the appellant 'tried' inserting his penis in her vagina whereas in her deposition she stated that the appellant had 'put' his penis inside her vagina. The Court regarded this as a minor discrepancy and remarked that “The minor discrepancy…between the victim's statement and her deposition can be attributed to her tender age.”

The appellant further contended that there was a variance between the victim's deposition and medical evidence. During the medical examination, the doctor had recorded that the victim's hymen was not intact and also that there were no signs of injuries on the victim's sensitive parts.

The appellant claimed that this indicates that the deposition of the victim and medical evidence are inconsistent. Regarding this, the Court observed that the victim was medically examined after several days of the incident. It noted that during cross-examination, the doctor stated that injuries from a sexual assault on a minor are usually visible only if the assault was very recent.

Based on the statement of the doctor, the Court remarked, “That would explain the lack of injuries in the labia majora and labia minora of the victim who was examined after several days of the last incident. The victim's deposition is adequately corroborated by the medical evidence.” Since the victim was examined several days after the incident, the Court noted that it would be difficult to detect anything in the forensic report.

It stated, “We are of the view that this failure would not demolish the victim's deposition which is of sterling quality inspite of her tender age and the corroborative medical evidence.”

Thus the Court considered the victim's statement as cogent and truthful, corroborated by the prosecution and medical evidence. Thus, it upheld the Trial Court's decision in convicting the appellant.

Case title: Lendup Lepcha vs. State of Sikkim, CRL. A. No. 12 of 2023

Citation: 2024 Live Law (Sik) 5

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