3-Yr-Old Child Would Barely Understand Import Of Person Touching Her Private Part, Unbelievable She Would Panic: Sikkim High Court

The Sikkim High Court while deciding on a criminal appeal against the conviction of the appellant under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) observed that “…in our considered opinion, a child of three and half years would barely be able to understand the import of a person touching her private part, how she would be in a state of panic having comprehended that it was a sexual assault, is indeed astonishing and unbelievable.”

The appellant was convicted by the Special Trial Court conviction under Section 5(m) of POCSO Act for committing penetrative sexual assault against a three-and-half years old girl. The Division Bench of Justice Meenakshi Madan Rai And Justice Bhaskar Raj Pradhan acquitted the appellant on the ground that prosecution failed to show even the probability of the offence having been committed.

The First Information Report (FIR) was lodged when an investigation was underway in another POCSO case where the appellant had sexually assaulted a nine-year old boy (PW-1), who is brother of the victim in the present case.

The High Court observed that the evidence of the prosecution witnesses was inconsistent. It noted that in his statement to the Magistrate, PW-1 had stated that the appellant had inserted his penis inside the victim's mouth and anus, however during the trial he stated that appellant had put his finger inside her anus. The victim's father (PW-5) had stated that PW-1 told him that the appellant had touched and played with his daughter's genitals.

Further, that statement of PW-1 does not corroborate with his mother's (PW-4) who stated that as per as per PW-1 the appellant had removed the victim's frock and touched her all over her body. PW-4 had stated that she had found her daughter in in a state of panic. With respect to this statement of PW-4 that her daughter was in a state of panic after the incident, the court remarked that that it is not plausible that three-and-half years old would comprehend what a sexual assault is.

It stated that the prosecution witnesses had “given different versions of the alleged sexual assault on the minor child” and that the evidence of prosecution witnesses did not corroborate.

The Court noted that PW-4 and PW-5 did not file any complaint regarding the incident and it was not disclosed to anyone by them or PW-1. It was only during the recording of statement of PW-1 before the Magistrate, that he made the statement about the incident against his sister. In relation to this, the Court observed that “The allegation of the offence appears to be an afterthought, in light of the vacillating evidence as already discussed, which cannot be relied upon to reach a conclusion of conviction. The evidence of PWs 1, 4 and 5 does not inspire the confidence of this Court to conclude that the Prosecution has proved its case beyond all reasonable doubt.”

The Court held the prosecution failed to prove its case beyond reasonable doubt. Despite Section 29 POCSO Act which provides for presumption of guilt of the accused, the prosecution was not able to establish even the probability of commission of the crime.

“In light of the facts and circumstances, we are of the considered opinion that the Prosecution has failed to attain the bar set for to it to prove its case beyond reasonable doubt. We are conscious and aware of the provisions of Section 29 of the POCSO Act, 2012, however, we cannot loose sight of the fact that the evidence does not establish even the probability of the offence having been committed. In any event, it is not the statement of the alleged victim that she was subjected to sexual assault.”

The High Court thus reversed the judgment of the Trial Court and acquitted the appellant.

Case title: Phurba Lepcha vs. State of Sikkim, Crl.A. No.25 of 2023

Citation: 2024 Live Law (Sik) 6

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