'Reaction Of Every Person To A Traumatic Incident Differs': Sikkim High Court Set Aside Acquittal Of Man Accused Of Sexual Assaulting 10-Year-Old

Observing that there is “no straitjacket formula" for victim's reaction to the sexual assault, the Sikkim High Court has set aside the acquittal in a case under POCSO Act and convicted the accused for sexually assaulting a minor victim.

“The psychology of every person to a traumatic incident differs and consequently so does the reaction. There is no strait jacket formula for reactions to sexual assaults, more so, when the victim is a bare 10 year old and unable to comprehend the perverse act of an adult married man,” Justice Meenakshi Madan Rai said.

The victim was a mere 10-year-old child at the time of offence, her level of articulation and understanding of the act perpetrated on her has to be taken into consideration, the court said. It was hearing the State's appeal against the acquittal of the accused for allegedly sexually assaulting a ten year old girl by touching her private parts with sexual intent.

It was prosecution’s case that the FIR was lodged by the Ward Panchayat in 2017, on having received a verbal report from the victim’s mother, informing him that the accused had attempted rape on the victim. The trial court had acquitted the accused because, according to it, evidence of the victim did not inspire confidence, was shaky and unworthy of any credence. 

Justice Rai said that disbelieving a minor’s evidence despite its consistency and cogency defeats the purpose of The Protection of Children from Sexual Offences Act, 2012. The court cannot be pedantic in its appreciation of the victim’s evidence, the bench added.

The court noted that the victim has deposed that the accused had inserted his hand inside her clothing and pinched her breast, while she was watching videos at the residence of her relative on the relevant morning. The statement of the victim was corroborated by the testimony of her mother and doctor who examined her, it noted.

The trial court had observed that the victim did not appear to be nervous or affected by the alleged act, thereby insinuating that such an act did not take place. On this the bench said, “It is worth remarking that the Court failed to appreciate the shock and consternation that the child evidently experienced which left her dumbstruck for some time and made her reticent about discussing it even with her mother.”

"Minor contradictions such as which breast was pinched and whether the victim mentioned about P.W.13 being persuaded to leave the room do not affect the core of the case," it added.

The court also said no evidence was furnished by the accused to indicate that the victim could have conjured up the incident nor was it his case that they had acrimonious relations, "or for that matter any other reason, nor is it the Respondent's case that the victim was tutored."

Setting aside the trial court for being "perverse/against the weight of evidence", the court said, "The Respondent is convicted under Section 9(m) of the POCSO Act punishable under Section 10."

Case Title: State of Sikkim   Bhutia

Citation: 2023 LiveLaw (Sik) 4

Appearance: Yadev Sharma, Additional Public Prosecutor with Sujan Sunwar, Assistant Public Prosecutor for the State-Appellant.

Udai. P. Sharma, Advocate (Legal Aid Counsel) for the Respondent

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