[S.4 POCSO Act] Guilt Can Be Established Based On Victim's Uncorroborated Statement Provided It Is Cogent & Relevant: Gauhati HC

The Gauhati High Court recently upheld a conviction passed by the Trial Court under Section 4 of the POCSO Act, by observing that in case of a sexual offence, the finding of guilt can be recorded even on the basis of an uncorroborated statement of the victim provided the same is cogent and relevant.

The single-judge bench of Justice Malasri Nandi noted:

“The trial court found the victim statement credible and consistent, noting that whatever stated by the victim in her evidence is sufficient to prove the case of sexual assault against the accused appellant. Even if for the sake of arguments, we take that the medical evidence is not supporting the prosecution case, still we will have to apply the rule in case of variance between the ocular and the medical evidence, the ocular evidence would prevail and as aforesaid, the evidence of the victim is consistent.”

Facts

On May 03, 2017, an FIR was lodged by the father of the victim stating that the appellant had lured his four-year-old daughter to his house and thereafter, tried to commit sexual assault with his daughter by confining her in his room. It was alleged that as the appellant tried to commit sexual intercourse with his daughter forcibly, she sustained the swollen injury in her private parts.

On receipt of the complaint, a case was registered under Section 4 of the POCSO Act and after the completion of the investigation, a charge sheet was filed against the appellant under the mentioned provision.

The Trial Court vide judgment and order of sentence dated November 28, 2018, convicted and sentenced the appellant to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2000/-.

Arguments

The Amicus Curiae submitted that the Trial Court has not made any effort to determine the age of the victim girl which is necessary to establish a charge under the POCSO Act. It was further submitted that no birth certificate or no school certificate was produced and no ossification test was also conducted to prove the age of the victim as per Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015.

It was argued that before recording evidence of a minor, it is the duty of the judicial officer to ask preliminary questions to him or her with a view to ascertain whether the minor can answer the question put to him or her and is in a position to give rational answers. However, it argued that the Trial Court had not done this duty properly.

On the other hand, the Additional Public Prosecutor (APP) contended that the victim (PW-2) who is a minor girl clearly stated that the appellant had committed sexual assault towards her for which she sustained injury on her private parts. It was further submitted that the mother of the victim also supported the fact by stating that she noticed some injury on her private parts.

The APP argued that the medical officer had proved the age of the victim by stating that she was around five or six years of age at the relevant time of the incident.

Court's Observation

The Court noted that there is no cross-examination on the point regarding the age of the victim stated by PW-1 (mother of the victim), PW-3 (father of the victim) and PW-5 (medical officer). However, it was observed by the Court that it is a settled position of law, as there was no cross-examination on the point, and the matter cannot be challenged before the appellate court.

It was observed by the Court that the Trial Court after putting some questions correctly recorded its satisfaction as to the competency of the child witness.

“Regarding the victim's identification of the accused, the trial court found the identification of the appellant was credible even though the victim did not know the name of the accused. It appears that the accused appellant is the adjacent neighbour and she called him 'jetha'. From the evidence of the victim, it also reveals that the victim identified the accused by raising her finger towards the accused before the trial court,” the Court noted.

It was noted by the Court that the statement of the victim was not recorded by the investigating officer under Section 161 CrPC or by the magistrate under Section 164 CrPC.

“It is understood that the victim was 5/6 years of age at the relevant time and would have felt embarrassed to tell some facts. It is rather the failure on the part of the investigating officer to get such proper statement of the victim. In such case, the investigating officer should make the victim girl comfortable and then try to get the statement recorded,” the Court said.

After taking into consideration the testimony of all the witnesses including the victim, the Court held that the prosecution had proved that the accused-appellant was the person who had ravished the victim who was a minor aged about 5 or 6 years at the relevant time and there is absolutely no perversity in the conclusion arrived at by the trial judge.

Thus, the Court upheld the conviction and order of sentence passed by the Trial Court.

Citation: 2024 LiveLaw (Gau) 54

Case No.: CRLA(J)/28/2019

Case Title: Budul Das v. The State of Assam

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