'Not Expected Of Child Of Such Tender Age To Behave Like An Adult By Raising Alarm Promptly': Delhi High Court Dismisses Appeal Of POCSO Convict

Observing that the statement of the child victim is of sterling quality, the Delhi Court has dismissed the appeal filed against conviction for aggravated sexual assault and sexual harassment committed on a 7-year-old boy under the Protection of Children from Sexual Offences Act, 2012 (POCSO).

Justice Jasmeet Singh said  the child with his vocabulary and comprehension was able to describe the incident and had a clear picture in describable words.

"He at 7 years of age, is not expected nor is it possible for a child of his age to recapitulate the harrowing incidents with mathematical precision," said the court.

It was the prosecution's case that the accused, along with his friend, sexually harassed the child victim and engaged in unnatural sexual intercourse by threatening him.

On the other hand, the accused contended that he was implicated because of personal animosity between him and the victim's mother.

The appellant was sentenced to undergo Rigorous Imprisonment for three years along with a fine of Rs. 2500/- for committing an offence punishable under Section 454 IPC. He was awarded similar sentences for committing the offence punishable under Section 506(II) IPC and Section 12 of the POCSO Act. In addition, he was sentenced to rigorous imprisonment for a period of five years along with a fine of Rs 2500/- for an offence punishable under Section 10 of the POCSO Act.

Justice Singh noted that under section 29 of the POCSO Act, “there is a presumption of guilt against the accused”.

"The prosecution is only required to lay the foundational facts which disclose the commission of offence by the accused persons. Once the same has been done, it is the accused who has to rebut the presumption of guilt," observed the court.

The court noted that appellant had come and threatened the victim to open the door and thereafter committed sexual assault on him.

“The victim's account does not appear to be tutored or fabricated, and he consistently described the incident where the accused engaged in inappropriate behaviour with another person in his presence,” said the court, adding that the victim, who was approximately 7 years old, provided a consistent narrative, which was corroborated by his mother.

The court also said it cannot lose sight of the fact that alleged offence was committed with a child victim of tender age who got frightened by the threats extended to him by the accused as well as by the alleged act of the accused.

"It is not expected that a child of such a tender age would behave like an adult by raising the alarm promptly," said the court, adding that the combined evidence of the prosecution lays down the foundational facts which disclose the commission of offence

The court finds no reason to disbelieve or discredit the statement of the child victim, it said while observing that the testimony inspires confidence.

"In my opinion the inconsistencies, improvements and contradictions in the evidence of the child victim such as not knowing the name of the appellant, exact date, month or year of the incident are of a minor character and do not call into question the veracity of the prosecution's story. The basic version regarding the manner and commission of offence is constant," said Justice Singh

On questioning of the MLC report that it is not corroborating the testimonies of the victim or complainant, the court opined that, “since the appellant is not convicted u/s 6 POCSO, and hence the same does not have a significant bearing on the case”.

Justice Singh also observed that the trial court has also rightly relied upon the judgements to state that the testimony of the victim alone is sufficient to prove the guilt of the accused and minor contradictions or insignificant discrepancies in the statement of a child victim should not be a ground for throwing out an otherwise reliable prosecution case

Case Title: Kishore Kumar v. State

Citation: 2023 LiveLaw (Del) 455

Appearances: Advocates Prashant Mehta, Charanpreet Singh for appellant

APP Ajay Vikram Singh for state

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