Absence Of Witnesses Not Ground To Exonerate Accused In POCSO Case If Survivor's Testimony Reliable: Meghalaya High Court

The Meghalaya High Court has recently ruled that the absence of witnesses in sexual assault cases under the Protection of Children from Sexual Offences Act (POCSO Act) cannot be used as a justification to exonerate the accused in such cases, if survivor's testimony is reliable.

A Bench of Chief Justice Sanjib Banerjee and Justice W Diengdoh while dispelling the notion that uncorroborated allegations and complete denials by the accused in such cases should automatically discredit the survivor's account observed,

“It is time to completely discredit a routine line of defence often taken by an accused facing a charge of rape or sexual assault. The general refrain is that since the decision hinges on the uncorroborated allegation of the survivor and the complete denial thereof by the accused, in the absence of any ocular witness, the allegation of the survivor should not be accepted as gospel truth”.

The observations were made while dismissing an appeal by an accused, a tuition teacher, convicted for the offence of aggravated penetrative sexual assault against one of his 9-year-old students.

Challenging the conviction the appellant-accused contended that the trial court erred in entirely relying on the statement of the survivor to convict the appellant under Section 6 POCSO. Secondly, the appellant contended that his brother as well as another student were not examined during trial to verify the allegations.

Adjudicating the matter the bench noted that during the course of the examination, the medical expert had found a laceration and tear in the anus of the victim and concluded that Sexual assault may have taken place.

Court said no anomaly was pointed by the appellant in statement of the survivor under Section 164 CrPC and in his brief description to the medical practitioner at the time of his examination.

The High Court deemed the case to be straightforward and indisputable, given the survivor's clear and credible statement, supported by medical evidence, and the absence of any errors in the trial court's order and proceedings.

"Merely because Babuji (another student) had not been cited as a witness by the prosecution or the father of the survivor may have exaggerated the duration of the tuition class would not detract from the eminently believable account of a nine-year-old survivor in course of his statement under Section 164 of the Code and the description of the incidents at the time of his medical examination," the bench observed.

Court observed however depraved a person may be to sexually molest another person, he may not be foolish enough to indulge in such act in open public view. Such offences are committed stealthily or surreptitiously when the survivor is alone or by luring the survivor to a secluded spot and it is for such reason that the law that has developed requires the allegation of the survivor to be taken seriously and, if found to be credible, to accept the same, the bench underscored.

When the survivor is a child, it is improbable that a story would be conjured up regarding such an incident, the Court said while adding,

"The law that has developed requires the allegation of the survivor to be taken seriously and, if found to be credible, to accept the same ... When the survivor is a child, it is difficult to imagine that a story would be conjured up out of nothing and the same would be consistently repeated. Thus, when the survivor is a child of, say, up to 11-12 years of age, unless the court finds the child to be precocious enough to make out a story and consistently repeat the same, the fact that there may not have been any witness to the incident of sexual assault may not, by itself, let the accused off the hook."

In view of the same, the bench found no legal or factual basis to question the fundamental premise of the impugned judgment or the consequent order and accordingly dismissed the appeal.

Case Title: Arjun Das Vs State Of Meghalaya

Citation: 2023 LiveLaw (Meg) 19

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