Telangana HC Reduces Sentence Of POCSO Accused, Says Minor's Understanding Of Rape Must Be Considered Before Relying On Sole Testimony For Conviction

The Telangana High Court while modifying a rape conviction under the POCSO Act, based on the sole testimony of a minor, held that it is imperative for Courts to ascertain whether a minor fully understands the meaning of ‘rape’ before accepting her testimony as sole grounds for conviction. 

In partly allowing the appeal while modifying the accused's conviction and sentence under Section 6 of the POCSO Act, for imprisonment of 20 years, to a conviction under Section 8 of the POCSO Act, with imprisonment for a term of three years, a single bench of Justice K. Surender held that:

“When the victim is a child and in one word, she states that ‘rape’ was committed, it would become imperative in such cases when there is no other corroborating evidence, to know from the victim girl as to what is meant by her narration of ‘rape’. The victim girl need not be humiliated in the Court, however, the Judge has to record his satisfaction that the victim child or girl has an understanding of what is meant by ‘rape’ or what the victim meant by stating that ‘rape’ was committed. The said understanding of the victim as to what is meant by word ‘rape’ by the Court concerned is for the reason of the specific requirements given under Section 3 of the Act of 2012 as to what constitutes penetrative sexual assault and what constitutes ‘rape’ under Section 375 IPC.”

Bench opined that when a case is being tried under the POCSO Act, the Court may arrive at a reasoned conclusion based on corroborative evidence backing the claims of the victim. However, the mere use of the word ‘rape’ by a minor girl (14 years in the present case) does not explain whether the child had knowledge as to what would constitute ‘rape’.

“It is understandable in cases of married women or the victim having knowledge about what constitutes ‘rape’, to accept the statement that the victim was subjected to rape. There is nothing on record in the evidence of P.W.2 that she had knowledge about sexual act or what constitutes ‘rape’. Nothing specific is narrated by the victim girl except stating that the accused committed rape on her,” it added. 

The case of the minor was that she had gone to stay at her uncle’s house for a few days, where the accused, her cousin bother forcibly committed 'rape' on her. A few days after the incident, when the father of the victim noticed a change in her behaviour and questioned her about the same, the minor told her father about the incident. Immediately after this the father of the victim preferred a complaint before the Police and the victim was sent for a medical examination.

However, it was submitted that since substantial time had passed since the incident, the examination report did not reveal the presence of any semen and could only conclude that sexual acts had been committed, owing to the hymen of the minor being broken.

The Trial Court had convicted the accused under section 6 of the POCSO Act, (penetrative sexual assault) based on the testimony given by the minor girl.

In the present appeal, the High Court noted that section 6 provided specific details as to what would constitute ‘penetrative sexual assault’. It was held that a duty was cast upon the Court to ascertain whether the ingredients of rape exist in the present case, based on evidence narrated by the victim. “The use of word ‘rape’ by the victim girl in the present circumstances cannot be made sole basis for the Court to assume or draw inference that penetrative sexual assault had taken place” the Bench observed.

Court also noted that in most cases, a witness prepared for the cross-examination by the prosecution is likely to narrate verbatim what was taught to her, and encouraged Trial Courts to remove any ambiguity in witness statements by asking questions as contemplated under section 165 of the Evidence Act. It clarified that asking such questions, for removal of doubt would not tantamount to leading questions.

“This Court is aware of the fact that there cannot be any leading questions during chief examination. However, in the cases of child witnesses who would already be under trauma, the happening can be clarified so as to make the statement of the victim basis for conclusion of guilt or otherwise of an accused. Seeking such clarification would not amount to putting leading questions to the witness during chief examination,” it concluded.

Finally, the Bench noted that based on the testimony of the victim, the accused could only be held guilty under section 8 of the POCSO Act for ‘sexual assault’ and not ‘penetrative sexual assault’ and accordingly modified the conviction.

Criminal Appeal No.783 OF 2023

Counsel for petitioner: M.V.Venu

Counsel for respondent: Addl. Public Prosecutor

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