[S.29 POCSO Act] Allegations Not Supported By Medical Evidence, Presumption Against Accused Not Mechanical: Madras High Court Acquits Army Jawan

Justice Sathi Kumar Sukumara Kurup observed that though the prosecution had claimed that there was insertion resulting in bleeding, there was no evidence to prove aggravated sexual assault and thus the allegations were without any medical evidence. The court further observed that when the charges were not proved by medical evidence, mechanical application of presumption under Section 29 of the POCSO Act would result in the miscarriage of justice.

“Therefore, it is a clear case that the prosecution had not proved the charges through medical evidence. Therefore, the presumption under Section 29 of the Protection of Children from Sexual Offences Act, if mechanically applied in these circumstances will result in miscarriage of justice,” the court said.

The court was hearing an appeal by Prathap Kumar Nayak. The case against Nayak was that while Nayak’s wife and a neighbour had gone shopping, he had sexually assaulted the neighbour’s daughter. Later, when the victim child informed her mother of the incident, the mother went to the Police Station and gave a complaint. Since she only knew Odiya, the complaint was translated to Hindi, and then to Tamil and registered.

During the appeal, Nayak claimed that he was wrongly arrayed as an accused to wreak vengeance. He also argued that the versions depicted by the mother and the victim child were contradictory and were not supported by medical evidence. He pointed out to the medical certificate which stated that there was no injury on the body of the victim child particularly in the genital area.

The Additional Public Prosecutor objected to the appeal by submitting that the evidence of the victim alone was sufficient to convict the accused. He submitted that the evidence of the child was corroborated by the evidence of the mother and thus even if there was a lack of corroborative materials, the burden on the court was to believe/presume the version of the victim.

The court however observed that if the Additional Public prosecutor’s contention was to be accepted, it would mean that Nayak would have to be mechanically convicted based on evidence of the victim and her mother alone.

The court also observed that as per the victim’s version, there was an insertion of penis in her vagina where she bled. However, the court noted that if there had been blood in her vagina, her hymen would have been torn but the certificate of the medical examiner stated that there was no injuries on her body and the hymen was intact. Thus, the court observed that the offence of aggravated sexual assault was not attracted.

Thus, the court set aside the judgment and conviction of the Sessions Judge, Mahila court in Chennai, and acquitted Nayak of the charges under Section 6 of the POCSO Act 2012.

Counsel for the Appellant: Mr. P. Srinivasan for Mr..Michael Jacob Dennyson

Counsel for the Respondent: Ms.G.V.Kasthuri Additional Public Prosecutor

Citation: 2023 LiveLaw (Mad) 330

Case Title: P Prathap Kumar Nayak v State

Case No: Crl.A.No.433 of 2018