The Delhi High Court has clarified that in child sexual assault cases, credible and consistent testimony of the victim can by itself sustain conviction, and minor discrepancies arising from age, memory or lapse of time do not discredit the prosecution on the main issue of abuse. Medical or forensic evidence, including absence of DNA, does not automatically defeat the prosecution where the victim’s ocular account is trustworthy and the medical record does not conclusively rule out the offence.
The Court also clarified that a parent’s continued failure to protect a child, despite repeated disclosures of sexual abuse, can amount to “intentional aid by illegal omission” under Section 16 read with Section 17 of the POCSO Act. Where the parent has a clear legal and parental duty to intervene, but instead dismisses complaints and permits the abuser to remain in proximity to the children, the omission can cross the line from knowledge to abetment.
A Single Judge Bench of Justice Chandrasekharan Sudha observed that the prosecution case substantially rested on the testimony of the two elder child victims and that their statements were materially consistent on the core allegations of repeated sexual assault, beatings and threats. The Court said the youngest child turning hostile did not dilute the evidentiary value of the testimony of the other two victims. It reiterated the settled rule that a conviction in a sexual assault case can rest on the sole testimony of the prosecutrix if that testimony is clear, reliable and inspires confidence.
On the inconsistencies pointed out by the defence, the Court said they were minor and natural. It found that variation about whether Akeel slept in one house or another, or whether the abuse started in second standard or continued across second to fourth standard, did not strike at the root of the prosecution case. The Court noted that the victims were very young when the incidents happened, and expecting exact chronological precision from child witnesses after a lapse of time would be unrealistic.
The Court also rejected the argument that absence of male DNA in the FSL report destroyed the prosecution case. It observed that non-detection of DNA by itself was not fatal, especially where degradation or loss of biological material was possible. The Court emphasised that medical and forensic evidence is primarily corroborative and cannot override trustworthy ocular testimony unless the medical evidence is so conclusive that the eyewitness version becomes impossible.
On the later retraction by the eldest child at the sentencing stage, the High Court was clear that such a statement could not undo the substantive evidence recorded during trial. The Court noted that the class teacher, examined as a witness, was never confronted with any real suggestion of tutoring during trial. It found that the child’s disclosure after a school awareness session was natural, particularly because the children had earlier been ignored at home and had not understood that the acts committed on them were abuse. The Court also observed that family pressure after conviction could explain the later retraction.
As regards the mother, the Court drew a distinction from a Madras High Court case relied on by the defence, where the mother had protested and was herself abused and threatened. In the present case, the Delhi High Court found the facts to be entirely different. According to the evidence, the mother was repeatedly informed, dismissed the complaints, told the child not to make allegations against Akeel, allowed him to continue staying in the house, and even justified his conduct. The Court held that this was not mere passive knowledge, but amounted to intentional aid by illegal omission within the meaning of Section 16 of the POCSO Act.
Briefly, the criminal appeals arose from the same POCSO trial. Akeel Azhar @ Rinku, the main accused, challenged his conviction for aggravated penetrative sexual assault, criminal intimidation and causing hurt. The victim’s mother separately challenged her conviction for abetment of the same sexual offences. The trial court had convicted Akeel under Sections 376(2), 323 and 506 IPC and Section 6 of the POCSO Act, and had convicted the mother under Section 6 read with Section 17 of the POCSO Act and Section 376(2) read with Section 109 IPC. The trial court had sentenced Akeel to 12 years’ rigorous imprisonment under the POCSO count, and the mother to 10 years’ rigorous imprisonment, with sentences directed to run concurrently.
The prosecution case was that for nearly three years before the FIR dated 10.08.2018, Akeel repeatedly sexually assaulted three minor girls aged about 2 to 8 years, beat them, and threatened them into silence. The prosecution also alleged that the mother knew about the abuse, failed to protect the children, and thereby aided the commission of the offences. The FIR was based on the eldest child’s complaint after she disclosed the abuse at school following a counselling and awareness session on good touch and bad touch.
In her FIR and later Section 164 statement, the eldest child said Akeel, who lived in their house and was treated as a “bhaiya”, would remove her clothes, touch her private parts, lie on top of her, and insert his private part into hers. She also said that when she tried to complain to her mother, the mother brushed it aside and told her not to speak that way about him. She further said Akeel had done the same acts to her sisters as well, beat them, kissed them, and threatened them not to disclose anything.
The second child also gave a Section 164 statement and trial testimony saying Akeel touched all three sisters, beat them, and even put his private part in her mouth and in her sister’s mouth. She said that when she and her sister informed their grandmother and mother, the grandmother dismissed it as a joke and the mother stayed silent. The youngest child, however, did not support the prosecution at trial and denied that Akeel had done anything wrong to her.
The medical evidence showed that the eldest child’s hymen tear was old and there was slight tenderness, while the other two girls had intact hymens because their internal examination was refused by the bua. The defence relied heavily on the FSL report showing no male DNA and also pointed to later statements made at the sentencing stage where the eldest child appeared to retract and claimed that the allegations had been made under the influence of her teacher or counsellor. The defence also argued that the mother could not be convicted for abetment merely because she knew of the offence.
