[POCSO Act] When “Ring Of Truth” Found In Victim's Story, Her Non-Examination By Police Is Of No Consequence: Calcutta High Court

The Calcutta High Court has recently upheld the conviction of a boy who allegedly “pawed” at a minor girl while she was accompanied by her mother in a public area. A single-judge bench of Justice Siddhartha Roy Chowdhury upheld the conviction on the basis on the minor’s testimony and noted that non-examination of the victim by the Police would be of no consequence in such circumstances.

The bench was hearing an appeal against conviction. It was submitted by the respondents that while the both of them were walking back home from a marketplace in Howrah, the minor was assaulted by a boy approaching them from the opposite side. After the boy was apprehended, the mother filed a complaint under Section 8 of the POCSO Act.

It was contended by the Counsel that the in the mother’s written evidence she had revealed that the boy came from behind and assaulted her daughter, but at the stage of adducing oral evidence before the Court she had claimed that he was approaching from the opposite side. Moreover, the victim girl was neither examined by the Investigating Officer nor by Doctor.

Disagreeing, the Bench noted, “The testimony indicates that after the boy touched her breast, he was nabbed by her as well as her mother and he was slapped. The place was crowded and soon after the incident police arrived there. The accused person did not utter anything indicating his lack of intention to commit offence."

Court also said though the victim was not examined by the I.O. she was produced before the Judicial Magistrate and her statement was recorded under Section 164 of the Evidence Act. Subsequently she adduced evidence before the Court on oath.

"There is no discrepancy between her previous statement before the learned Magistrate and her testimony before the Court. There is nothing to impeach her credibility. When a ring of truth is found in what has been stated by the victim girl before the learned Trial Court, non-examination of the victim girl by police is of no consequence,” it said.

Justice Chowdhury referred on the Supreme Court case of Alamgir v NCT of Delhi, which held that when any evidence is otherwise credit worthy, then any omissions on part of the police officials in examining the victim would not prejudice the right of the victim to rely on such evidence.

Furthermore, the appellant's argument on non-examination by a doctor was also negated by the Bench in holding the examination by a doctor would not be required under Section 8 of the POCSO Act in such facts and circumstances.

The final argument advanced on behalf of the appellants was under the Probation of Offenders Act, 1958, on the grounds of compassion due him being in his teenage years, without a criminal record, and needing to provide for his family. To this contention, the Bench noted that the intention of the POCSO Act is to protect children from “heinous crimes” and declined the prayer for probation. It held that it is a settled point of law that probation cannot be granted since special laws, unless specifically derogated, which prescribe a mandatory minimum sentence, and came into force after the enactment of the Probation Act in the year 1958, do not allow any probation to be granted.

Coram: Justice Siddhartha Roy Chowdhury

Case: Prakash Shaw v. State of West Bengal

Citation: 2023 LiveLaw (Cal) 171

Click Here To Read/Download Judgment