‘No Corroboration To Evidence Of Child Witness, No Medical Evidence On Record’: Gauhati High Court Sets Aside POCSO Conviction

The Gauhati High Court recently set aside the conviction in a 2014 POCSO case where a maternal uncle of the victim was accused of penetrative sexual assault. The trial court in December 2018 had sentenced the convict to imprisonment of seven years.

Justice Malasri Nandi said the mother of the victim lodged the FIR and deposed before the court, on information allegedly given by the victim girl and there was no other prosecution witness who could support the statement of the child witness.

"The medical evidence on record did not show any corroboration of sexual assault on the victim. This creates serious doubt about the veracity of the statement made by the child witness (P.W.2) regarding commission of crime by the accused/appellant,” the bench said.

The mother of the victim minor girl lodged an FIR on October 27, 2014 stating that the accused-appellant committed rape on her 14-year-old daughter. She later became pregnant. It was further alleged that the wife of the appellant took the victim to the government hospital secretly and her pregnancy was terminated. A case was registered against the accused-appellant under Section 376(D) of IPC and Section 4 of the POCSO Act.

The trial court convicted the accused under Section 4 of POCSO Act and sentenced him to undergo rigorous imprisonment of seven years and to pay a fine of Rs. 10,000/-.

Amicus Curiae, B. Sarma submitted that accused-appellant is the maternal uncle of the victim and the prosecution case is based on a concocted story. It was further submitted that there is lack of evidence on record to sustain the conviction recorded by the trial court against the appellant. It was contended that other than the evidence of the victim, all other evidence of prosecution witnesses is hearsay evidence, which is not so much of value.

On the other hand, the Additional Public Prosecutor (APP), R. R. Kaushik submitted that the evidence of the victim alone is sufficient to prove the prosecution case as per settled position of law. It was further argued that when a child of tender age had indeed stated before the trial court about the involvement of the appellant in the acts in question, he deserved to be convicted and sentenced. The APP further submitted that under Section 29 of the POCSO Act, presumption operated against the appellant and it was necessary for him to prove the contrary, which he failed to do so.

The court noted that there is no witness to the incident who could know about the fact that the accused-appellant had committed rape on the victim as a result of which, she became pregnant.

“It cannot be countenanced that the presumption under Section 29 of the POCSO Act is absolute. It would come into operation only when the prosecution is first able to establish facts that would form the foundation for the presumption under Section 29 of the POCSO Act to operate. Otherwise, all that the prosecution would be required to do is to file a charge sheet against the accused under the provisions of the said Act and claim that the evidence of the prosecution witnesses would have to be accepted as gospel truth and further that the entire burden would be on the accused to prove to the contrary. Such a position of law or interpretation of the presumption under Section 29 of the POCSO Act cannot be accepted as it would clearly violate the constitutional mandate that no person shall be deprived of liberty except in accordance with procedure established by law.”

The court further noted that the nature of their evidence in the present case is such that it is clearly hearsay evidence as the victim alleged that the appellant had committed rape on her but she did not disclose the fact to her mother i.e. PW1 or any other person.

The court put reliance upon the judgments of the Supreme Court in Radhey Shyam v. State of Rajasthan and Lallu Manjhi and another v. State of Jharkhand.

It noted that from the evidence of victim, it cannot be ascertained when the incident took place and the FIR is also silent regarding approximate date of incident.

“The medical report is totally silent whether she was carrying pregnancy on the date of examination i.e. after two months of the incident. The medical report is also silent whether pregnancy was terminated in recent time. According to P.W.8, the medical officer, as per radiological report, at the relevant time, the victim was above 14 years and below 21 years. It transpires that the victim might be of 18 years or more at the relevant time. No clarification was taken from P.W.8 regarding age gap between 14 to 21 years.”

The court said  there is clearly no medical evidence in the case to demonstrate that the victim had suffered any such sexual assault alleged to be committed by the accused-appellant.

“A reading of the evidence of the victim girl shows that it would not be safe to rely upon the sole testimony of the child witness (P.W.2) to convict the appellant in the present case. There is no corroboration to the evidence of the said child witness (P.W.2) and the evidence of other prosecution witnesses has also not been supported the prosecution case. As there is no medical evidence on record to support the case of prosecution that the victim was subjected to sexual assault by the accused/appellant, it becomes difficult to uphold the conviction imposed by the learned trial court against the accused/appellant,” the court said.

Case Title: B v. The State of Assam

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