Staff Reporter
Guwahati: The Gauhati High Court recently set aside a conviction under Section 10 of the POCSO Act passed by the Trial Court on the ground that the minor victim’s evidence was not found to be of ‘sterling quality’ and was used without corroborating her statement to establish the guilt of the accused.
The single judge bench of Justice Mridul Kumar Kalita, after hearing a criminal appeals case (Crl.A./303/2023) observed, “This Court is of considered opinion that once it is found that the prosecutrix has not deposed truthfully before the Trial Court, her evidence no longer remains of a sterling quality and, therefore, it becomes unsafe for the Trial Court to rely on such testimony and to come to the finding of guilt of the appellant on the basis of uncorroborated testimony of such a witness. It is also pertinent to note that the victim, in this case, is also a child witness and, therefore, possibility of tutoring her may not be excluded.”
The basic facts of the case are that the father of the victim girl had lodged an FIR before the Officer-in-charge of Bokajan Police Station, alleging that on November 7, 2021 at about 8:00 PM, his elder daughter, aged about seven years at the time, informed him that when they were sleeping, the accused appellant took her away after gagging her mouth and later committed rape on her. Thereafter, he threatened her not to disclose the matter to anyone else.
On receipt of the said FIR, Bokajan P.S. Case No. 205/2021 was registered under Section 448 of the Indian Penal Code read with Section 6 of the POCSO Act, 2012 and investigation was initiated. After completion of the investigation, charge-sheet was laid against the appellant under Section 448 of the Indian Penal Code read with Section 8 of POCSO Act, 2012.
The Trial Court convicted the accused-appellant under Section 10 of the POCSO Act and sentenced him to undergo rigorous imprisonment for seven years.
The Counsel appearing for the appellant submitted that the only eye-witness in the case is the victim girl herself and that the evidence of the victim girl has been inherently inconsistent. The appellant’s counsel submitted that the victim girl, while deposing as the PW-1, has categorically stated that the appellant has pushed his penis into her vagina and committed rape on her for about one hour; however, the medical officer (PW-7) who examined the victim girl found the vulva and vagina of the victim girl healthy as well as the hymen intact.
It was argued that the prosecution side has failed to prove the foundational fact regarding the allegations of rape.
On the other hand, the Additional Public Prosecutor (APP) submitted that in the instant case, the prosecutrix has categorically implicated the appellant in having committed aggravated sexual assault on her. It was further submitted that in cases involving offences of such nature, there is no requirement of law that the testimony of the prosecutrix cannot be accepted unless corroborated.
The Court found the submission of the appellant’s counsel persuasive that if a minor girl of 8 years old is subjected to forceful penetrative sexual assault, there would certainly be some injuries on her private part and her hymen is unlikely to remain intact.
“It appears that even the Trial Court found the testimony of the PW-1 to be an exaggeration of facts; however, it came to a conclusion that this case is a case of aggravated sexual assault merely on the assumption that had such an incident not occurred, the informant as well as the victim would not have come to the police,” the Court said.
The Court further noted that the Trial Court failed to consider the plea taken by the appellant during his examination under Section 313 of the CrPC as well as evidence adduced by the defence witnesses while coming to the conclusion of the guilt in the impugned judgement.
“…in the instant case, the Trial Court did not accept the statement of victim girl to be true and it was held to be exaggerated and, thereafter, convicted the appellant for a lesser offence based on the same testimony….it would be unsafe for the Court to rely on such testimony without any corroboration to come to the conclusion of guilt of the appellant even for a lesser offence,” the Court observed.
Thus, the Court gave the benefit of the doubt to the appellant and set aside his conviction under Section 10 of the POCSO Act as well as the sentence imposed on him by the impugned judgement.
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