The Gauhati High Court has held that conviction in a POCSO case cannot be based solely on the presumption under Sections 29 and 30 of the POCSO Act unless the prosecution first proves the foundational facts. However, once those foundational facts are established, the presumption operates, and the defence must rebut it. In this case, the prosecution successfully established the foundational facts through the evidence of the victim and her mother, and the defence failed to rebut the presumption either through effective cross-examination or by leading defence evidence. The Court therefore held that the absence of corroboration from hostile or non-supporting witnesses, the non-examination of the victim’s sister, and the absence of injury marks were not fatal to the prosecution case.
The Court reaffirmed the settled principle that the testimony of the prosecutrix does not require corroboration if it is found credible and trustworthy, and that evidence has to be weighed and not counted. Minor discrepancies not going to the root of the prosecution case cannot be used to reject otherwise reliable testimony, especially in cases involving sexual assault on a child. The High Court found no reason to interfere with the judgment passed by the Addl. Sessions Judge-cum-Special Judge (POCSO), and held that the prosecution had proved that the accused restrained the victim on the road while she was returning from Madrassa and sexually assaulted her.
A Single Judge Bench of Justice Mitali Thakuria noted that the entire case substantially rested on the evidence of the victim and her mother because the co-villagers did not support the prosecution, one witness was declared hostile, and the younger sister who was accompanying the victim was not examined. Even so, the Bench found that the victim’s evidence remained consistent on the material particulars of the incident, and the only contradiction was regarding the time of the occurrence. The Bench held that this discrepancy about timing, especially when clarified by the victim in court, was not enough to discard her testimony. The Bench further observed that there was no evidence to support the defence plea of previous grudge, false implication, or the alternative story that the accused was only trying to save the victim from falling into the pond.
The Bench also observed that the medical evidence did not show signs of recent sexual intercourse or injuries on the victim’s private parts, but held that this did not damage the prosecution case because this was not a case of penetrative sexual assault. The allegation was of sexual assault involving restraint, laying the child on the ground, kissing her body, touching her breasts, opening her panty and showing his penis. The Bench accepted that bodily injuries are not necessary to prove sexual assault. On the issue of age, the Bench held that although the issuing authority of the birth certificate was not examined, the certificate showed that the victim’s birth was registered within two months of birth, and therefore its contents could not be disbelieved merely for non-examination of the issuing authority.
The Bench further held that a child witness is a competent witness under Section 118 of the Evidence Act, and there is no rule that such testimony must be discarded merely because of age. It found no material to suggest that the victim had been tutored or that she had falsely implicated the accused. The Bench also reiterated that the sole testimony of the prosecutrix can be sufficient for conviction if it inspires confidence and is trustworthy. In the present case, the Bench found the victim to be believable, trustworthy and consistent, and even described her as a “sterling witness.”
Briefly, the prosecution case was that on January 15, 2017, when the 12-year-old victim was returning from Madrassa with her younger sister on a bicycle, the accused restrained her near a pond, pulled her near a tree, laid her on the ground, kissed her, touched her breasts, opened her panty, showed his penis and attempted to commit sexual assault, but she escaped after raising alarm. A police case was registered, investigation was conducted, and charge-sheet was filed. During trial, the prosecution examined 8 witnesses, including the victim, her mother, the doctor and the investigating officers. The defence argued that there were contradictions in the victim’s version, that independent witnesses did not support the prosecution, that the victim’s sister was not examined, and that the medical report showed no injuries.
