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Synopsis

In a significant ruling, the High Court of Meghalaya affirmed the conviction of an accused in a case under the Protection of Children from Sexual Offences (POCSO) Act, 2012, clarifying that “minor discrepancies will not prejudice the case of the victim child and a small lacuna in the case of the prosecution will not throw away its case in entirety.”

The court, presided over by Chief Justice S. Vaidyanathan and Justice W. Diengdoh, were hearing a case challenging the conviction of the accused under Section 5(m) of the POCSO Act, 2012, and subsequent sentencing to a rigorous imprisonment term of 10 years, accompanied by a fine of Rs.10,000/-, as per Section 6 of the said Act.

The case originated following a complaint lodged by the mother of the victim, an eight-year-old girl, alleging aggravated penetrative sexual assault and rape perpetrated by the accused, identified as Kanu Das. The incident, as complained, occurred on March 03, 2016. The accused allegedly forcibly took the minor girl to a jungle, silenced her cries, and perpetrated the assault. This prompted the registration of FIR under Section 354 of the Indian Penal Code (IPC) read with Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The appellant, represented by Legal Aid Counsel M. Sharma, primarily contended that the case against the appellant was fabricated, emphasising that the victim initially disclosed the incident to her grandmother, who was not enlisted as a witness. Instead, it was the victim's mother who lodged the FIR. This raised concerns regarding the status of the testimony as hearsay and the mother a hearsay witness.

The appellant’s counsel highlighted inconsistencies during the cross-examination of the doctor who examined the victim. It was argued that as per the deposition of the doctor, “there was no sign of penetrative sexual assault and though the appellant was convicted solely on the basis of the medical report, it does not support the case of the prosecution.” It was further contended that the prosecution failed to corroborate the testimonies of the mother of the victim and the victim herself.

Furthermore, the appellant's counsel argued that even if the victim's statement under Section 164 of the Cr.P.C. was considered alongside the report provided by the medical expert, it would only amount to an offence of sexual assault under Section 7 of the POCSO Act, 2012.

Contrarily, Government Advocate (GA) R.Gurung, representing the state highlighted that the victim unequivocally stated that the accused had forcibly removed her clothing and sexually assaulted her. This narrative was corroborated by the medical examination, which indicated findings consistent with recent sexual assault.

Citing the precedent set by the Supreme Court in the case of State of 'U.P. Vs. Babul Nath’ (1994) 6 SCC 29, the GA asserted that even an attempt at penetration constitutes a grave offence. It was further argued that if the victim's statement under Section 164 of the Cr.P.C. remained consistent, no additional corroboration was necessary to establish the accused's guilt.

Furthermore, the GA pointed out that “As per Section 29 of the POCSO Act, 2012, burden shifts on the accused to prove his innocence.” However, the accused failed to provide any substantial explanation during their interrogation under Section 313 of the Cr.P.C., responding mostly with "Yes" or "No."

Quoting from the judgment in ‘Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat’ (1983) 3 SCC 217, “wherein it was categorically held that the evidence of victim to the offence is of paramount importance and the Court cannot shrug off the case of the prosecution merely for want of strict corroboration,” the GA underscored the paramount importance of the victim's testimony in cases of sexual assault.

After carefully considering the arguments presented by both the appellant and the state, the court held that the victim, an eight-year-old child, provided consistent and detailed testimony regarding the incident. This was corroborated by her mother's testimony and the medical examination. The medical report indicated findings consistent with recent sexual assault, further validating the victim's claim.

The court noted “the appellant has not discharged the burden that was cast on him under Section 29 of the POCSO Act and hence, the legal presumption is that the prosecution has proved the offence under Section 5(m) of the POCSO Act.”

The court addressed the appellant's argument regarding the interpretation of Section 7 of the POCSO Act, 2012. The appellant contended that since there was no complete penetration into the victim's vagina, the accused could only be charged under Section 7 for sexual assault, which deals with sexual assault  without penetration.

However, the court disagreed with this interpretation and held that “In a tender age, there is no possibility for a child to have an idea about a sexual assault and according to the child, a physical assault like hitting or pinching is a matter of concern.”

The court emphasised that accepting such an interpretation would send a wrong signal by suggesting that touching a female's private parts with the penis is permissible under the law as long as there is no penetration into the vagina. This would contradict the intent of the POCSO Act, which aims to protect children from all forms of sexual abuse, including inappropriate sexual contact.

The court expressed that going by the description given by the victim child about the incident and carefully considering the evidence of of the medical expert and the medical report, it was “convinced that the victim child was subjected to penetrative sexual assault.”

Consequently, the accused was held liable to be punished under Section 6 of the POCSO Act, 2012 and the decision of the trial court was upheld.

 

Cause Title: Kanu Das v State of Meghalaya