Adult Sexual Predators Ought Not To Be Afforded Leeway By Micro Analysis Of Child Victim's Testimony: Sikkim High Court

The Sikkim High Court recently set aside the judgment of a Trial Court by which it acquitted a person charged with Sections 9(m) and 9(n) of POCSO Act and Section 354 of IPC on the ground that Trial Court was in error in acquitting the accused despite the unwavering evidence of the child victim on record and her evidence being wholly trustworthy.

The single judge bench of Justice Meenakshi Madan Rai observed:

“Adult sexual predators ought not to be dealt with leniency or extended misplaced sympathy they ought to face the penalty that their acts deserve and should not be afforded leeway by the Learned Trial Court by micro analysis of time and place of incident.”

While observing that the evidence of the child does not point to penetrative sexual assault, the Court invoked Section 222(2) of CrPC and convicted the accused respondent of the offence under Section 7 punishable under Section 8 of the POCSO Act.

The Additional Public Prosecutor appearing for the State-Appellant contended that the Trial Court without basis or enumerating reasons for her opinion assumed that the child could have been tutored but failed to examine and consider that her statement under Section 164 CrPC and her deposition before the Court corroborated each other and had withstood the cross-examination.

It was further submitted that PW-2 and PW-3 had corroborated the victim's statement with regard to the occurrence of the incident.

On the other hand, the Senior Counsel appearing for the accused-respondent contended that consistent anomalies arose in the prosecution case. It was submitted that according to PW-1 the incident occurred after she returned from school and was playing with her younger brother in the “courtyard” of their house. However, contrary to the evidence of PW-1, the victim's mother (PW-3) stated that when she reached her 'home' she saw the accused person keeping her victim daughter on his lap and on seeing her, the accused-respondent left her child on the floor and went out of her house and on seeing her, the accused-respondent left her victim child on the floor and went out of her house.

Thus, it was argued that the place of incident is unidentified being mired in confusing evidence. It was also contended that in an effort to explain the delay in the lodging of the FIR, the prosecution has insinuated that the accused-respondent came to the victim's house with his family attempting to reconcile the matter but no evidence fortifies such an allegation.

The Court noted that the High Court is to be slow in interfering with appeals against acquittals, yet it cannot remain a mute spectator, when, on analyzing the evidence on record it arrives at a finding that there has been a travesty of justice.

It was observed by the Court that PW-1 who is the victim of the sexual assault by a predator aged fifty years has been consistent in her evidence pertaining to the sexual assault perpetrated on her.

“Relevantly, it must be mentioned that her statement under Section 164 of the Cr.P.C., Exbt-1, was recorded on 28th day of December, 2018 and her evidence before the Court was recorded on 10th day of December, 2019. Notwithstanding the passage of time of almost a year, she has been consistent and unwavering about the details of the sexual assault and no contradictions are found in her statements,” the Court said.

It was further observed by the Court that the inability of the victim to specify the date of incident cannot be a ground to raze the prosecution case in the facts and circumstances of the present matter.

“Minor contradictions which arise during the recording of evidence and translation from the Nepali vernacular to English in fact requires the Judicial Officer to be vigilant in the Court room when such evidence is rendered, translated and recorded, to prevent anomalies. Nonetheless, these anomalies do not go to the root of the case of sexual assault, as the place of occurrence described by the Prosecution witnesses are not so disparate as to lead to a total disbelief of the Prosecution case of sexual assault,” it noted.

The Court remarked that after examining the deposition of the victim in Court and her statement under Section 164 of CrPC, the statements corroborate each other, are cogent, consistent and unwavering and there is no reason to conclude that the offence was a figment of the victim's imagination or conjured up by her nor is there evidence of her having been tutored by any person.

Thus, the Court opined that Trial Court was in error in acquitting the respondent of the offences charged with despite the unwavering evidence of the child victim on record and her sole testimony suffices to convict the respondent, her evidence being wholly trustworthy.

“It may be reiterated here that a purposive interpretation is to be given to the POCSO Act and the specific mandate of Section 29 of the POCSO Act is to be extended due consideration. Matters concerning sexual offences against minors require to be dealt with sensitivity and the victim's case ought to be given due consideration in terms of Section 29 of the POCSO Act when the deposition is evidently trustworthy, moreso when the accused has failed to establish lack of culpable mind as required under Section 30 of the POCSO Act,” the Court noted.

Accordingly, the Court set aside the judgment and order of acquittal passed by the Trial Court under the aforesaid provisions of POCSO Act and IPC.

The Court further noted that though the evidence of the child does not point to penetrative sexual assault, however, the offence committed by the accused-respondent would be one under Section 7 the POCSO Act.

Therefore, the Court invoked Section 222(2) of CrPC and convicted the accused-respondent under Section 7 punishable under Section 8 of the POCSO Act.

Case Title: State of Sikkim v. Lall Bahadur Rai

Case No.: Crl.A. No. 14 of 2024

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