'Testimony Of Victim Does Not Inspire Confidence & Remains Uncorroborated': Gauhati High Court Sets Aside POCSO Conviction

The Gauhati High Court recently set aside the conviction of a man under Section 4 of the POCSO Act passed by the Trial Court, by giving him the benefit of the doubt on the ground that the testimony of the victim girl remained uncorroborated.

The single-judge bench of Justice Mridul Kumar Kalita observed:

“……considering the fact that the testimony of the victim girl while she has deposed before the Court is inconsistent and totally contradictory to her statements which she has made while her statement was recorded under Section 164 of the Code of Criminal Procedure, 1973, as well as made under Section 161 the Code of Criminal Procedure, 1973, this court is of considered opinion that it may not be safe to rely on sole testimony of the victim girl (PW-8), to arrive at a finding of guilt of the present appellant.”

The case of the prosecution was that the informant had lodged an FIR before the In-Charge of Diphu Bazar TOP, Diphu, alleging that the daughter of the first informant (victim), who was aged about 14 years at that time was lured away by the accused-appellant when she had gone for shopping.

Based on the said FIR, a case was registered under Section 366A of the IPC. After the completion of the investigation, the Investigation Officer (IO) submitted a charge sheet under Section 366 A of the IPC and Sections 4, 5 and 6 of the POCSO Act, 2012 against the accused-appellant.

The Trial Court framed the charge under Section 4 of the POCSO Act against the appellant. The appellant was convicted by the Trial Court under the said provision and sentenced to undergo simple imprisonment for 7 years and to pay a fine of Rs. 10,000/-.

The Counsel appearing for the accused-appellant submitted that the Trial Court had erred in coming to the finding of guilt of the present appellant only on the basis of uncorroborated testimony of the victim (PW-8). It was argued that the version of the alleged incident narrated by PW-8 during trial is entirely different from her version which she had stated during her examination under Section 164 of the CrPC.

The appellant's Counsel further submitted that the medical report of the victim girl also does not corroborate the testimony of PW-8 as no sign of any injury was found on the victim girl though she had stated in her testimony that she was assaulted by the appellant.

On the other hand, the Additional Public Prosecutor (APP) submitted that the evidence of the victim is sufficient to conclude the guilt of the appellant and in such offences, corroboration of the testimony of the victim girl is not necessary. It was further argued that the conviction can be based solely upon the testimony of the victim girl unless there are compelling reasons for seeking such corroboration.

The Court noted that according to the statement of the victim under Section 164 of the CrPC, she left with the appellant on her own and she came to Hojai on a bus, which is quite contradictory to her statement which she had made while deposing as PW-8, wherein, she had stated that she is unaware as to who took her by putting a cloth over her head when she opened the door in between 8:00 to 9:00 PM and when she recovered her senses, she found herself in a bamboo thatches house.

“She has categorically stated in her statement under Section 164 of the Code of Criminal Procedure, 1973 that neither the appellant nor any of his family members had assaulted her while she was with them. She has also not stated anything about subjecting her to sexual intercourse by the appellant when her statement was recorded under Section 164 of the Code of Criminal Procedure, 1973,” the Court observed.

It was remarked by the Court that there is no explanation as to why the victim did not call her mother when she heard someone knocking on the door and why she herself went to open the door without informing her mother, which does not appear to be normal conduct under such circumstances. It was further noted by the Court that there is no evidence of any hue and cry or shouting by the victim at the time when she was taken away from her house.

The Court observed:

“As regards the question as to whether the victim was forcefully subjected to sexual intercourse recently before such medical examination or not, no such conclusive evidence is there as the medical evidence on record also failed to suggest that the victim was subjected to forceful sexual intercourse.”

The Court opined that as the testimony of the victim girl does not inspire confidence and remained uncorroborated in material particulars, the appellant is entitled to get the benefit of the doubt.

Thus, the Court set aside the conviction and sentence imposed on the appellant under section 4 of the POCSO Act, 2012 by the Trial Court.

Citation: 2023 LiveLaw (Gau) 108

Case Title: Md. Babu Ali @Imran Ali

Case No.: Crl.A./278/2022

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