Uncorroborated Evidence Of Prosecutrix Sufficient But Father's Failure To Disclose Sexual Assault Casts Doubt On Her Credibility: Gauhati High Court

The Gauhati High Court recently acquitted two persons who were convicted for the offence of penetrative sexual assault on a minor under Section 4 of POCSO Act on the ground that even though father of the victim had lodged the FIR, he did not alleged any sexual offence.

The single bench comprising Justice Susmita Phukan Khaund observed,

“Why the father of the victim did not support the victim. He did not mention that the accused committed sexual assault on his daughter. Although uncorroborated evidence of prosecutrix is sufficient evidence against the perpetrators, yet when the victim’s father chose not to disclose anything about sexual assault, doubt creeps in regarding the credibility of the victim’s evidence.”

The case of the prosecution was that the on January 28, 2016 at about 12 noon, the 14 year old victim ‘X’ was found missing and then her father ‘Y’ lodged an FIR under Section 342 (Punishment for wrongful confinement), Section 366A (Procuration of minor girl), Section 368 (Wrongfully concealing or keeping in confinement, kidnapped or abducted person) and Section 34 (Acts done by several persons in furtherance of common intention) of IPC.

After completion of investigation, the charge-sheet was filed against the accused persons (appellants) under Sections 366A, 376(2)(i), 34 of the IPC read with Section 4 of the POCSO Act. The Trial Court vide judgment and order dated May 22, 2019 convicted the accused persons under Section 4 of the POCSO Act and sentenced them undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/-

The appellants assailed the impugned judgement and order passed by the Trial Court, before the High Court through the present appeal.

The Counsel appearing for the appellants submitted that the victim was missing for two days since January 28, 2016 but the FIR was lodged after a lapse of two days allowing enough scope for afterthought and fabrication.

It was further argued that four persons were implicated by the victim through her statement under Section 164 CrPC whereas charge-sheet was laid only against two. It was contended that the evidence of victim was not consistent to her statement under section 164 CrPC. It was submitted that no injuries on the private parts of the victim were detected on her examination by the Medical Officer.

The Additional Public Prosecutor submitted that the expert opinion is not a conclusive proof. It was further submitted that the victim was examined after 9 or 10 days and no suggestion was made to the victim that she was not a minor.

The Court observed that the victim stated that she regained her consciousness in the hospital, however, the doctor who examined the victim has not mentioned that the victim was found in an unconscious condition. Therefore, the Court noted that the victim’s evidence is contradictory to her statement under Section 164 of CrPC.

It was further observed by the Court that no explanation was given regarding delay of two days in lodging the FIR and the FIR was lodged only after the victim and accused persons were caught and handed over to the police.

“It is apparent that the victim was a school going student and she was missing for 2 days but the FIR was lodged after the Village Defence Party (VDP) handed over the victim along with the accused-persons to the Daipam police station. Why did the victim’s father wait for 2 days to lodge the FIR till the accused were caught with the victim by the VDP party? Not a single member of the VDP party was examined as a witness. The offence alleged is of a serious nature and the prosecution has to prove this case beyond a reasonable doubt,” the Court said.

The Court also wondered why no endeavour was made by the investigating agency to get the other two occupants identified by PW-3 (victim). It noted,

“She has stated that she has deposed that she regained the consciousness in the hospital whereas in her statement u/s 164 Cr.PC she stated that she could not recall where she regained her senses. Her statement was recorded after 9 or 10 days of the incident. Her explanation in her statement u/s 164 Cr.PC that she could not recall where she regained her senses does not appear to be plausible. She has stated that she regained her consciousness in the hospital and the MO’s evidence clearly reveals that she was examined after 9 days. Was she unconscious for 9 days? If she was taken to any other hospital earlier then, why was she not examined immediately after she was taken to any other hospital? If she was in such a bad state of health then why was she produced before the MO after 9 days?”

The Court further noted that the accused persons were convicted without ascertaining the age of the victim. It held,

“…it is hereby held that the prosecution failed to prove this case beyond a reasonable doubt. The victim’s age was also not ascertained, and without ascertaining the age of the victim the accused-persons were convicted. The victim has also accused four miscreants but the police investigated this case and laid charge-sheet against two accused-persons. In this aspect too, the victim’s evidence comes under cloud. I do not agree with the decision of the learned trial Court.”

Thus, the Court acquitted the appellants and set aside the impugned judgment and order passed by the Trial Court.

Citation: 2023 LiveLaw (Gau) 85

Coram: Justice Susmita Phukan Khaund

Case Title: A.B. v. The State of Assam & Anr.