While acquitting the appellant in child sexual assault case, the Supreme Court has held that statutory presumptions under the POCSO Act cannot be treated as gospel truth for the prosecution and cannot override the accused’s right to a fair trial under Article 21 of the Constitution. The Court said that presumptions under Sections 29 and 30 of the POCSO Act are rebuttable, not absolute, and hence, they cannot be mechanically applied to stamp every prosecution case as proved.
The Court clarified that where the FSL report shows no semen, no male DNA, and no blood on the victim’s pyjami, and the examining doctor finds no injury and an intact hymen, the theory of penetrative sexual assault stands negated. The Court also said that the mother’s testimony, riddled with contradictions with the doctor’s version, embellished improvements over her Section 164 statement, and non-corroboration from medical evidence, cannot be treated as that of a sterling witness warranting reliance without corroboration.
Where the complainant’s own cross-examination establishes a water-sharing dispute between the families living in adjoining jhuggis, the defence version of a motivated complaint gains cogent ground and becomes acceptable in the totality of evidence, added the Court.
A Two-Judge Bench comprising Justice N.V. Anjaria and Justice Prashant Kumar Mishra undertook a detailed re-appreciation of the evidence and found the prosecution case riddled with material contradictions and improbabilities. The Court noted glaring inconsistencies between the testimony of the mother and the private doctor, as while mother stated she visited the doctor at 9:30 pm along with her husband, the doctor deposed that the victim was brought at 4-5 pm and only by the mother. Thus, mother’s deposition was found to be embellished with material improvements over her Section 164 CrPC statement, particularly regarding the appellant’s alleged statement about lighting fire in the park and the victim’s complaint of penetrative sexual assault, facts not mentioned in the FIR.
On the medical front, the Court observed that Dr. Varnit, who physically examined the victim at AIIMS, found no injury, no bloodstains on the vulval area, and the hymen was intact without any abnormality. The FSL expert confirmed that no semen was detected on any of the seven parcels examined, no male DNA could be isolated, and blood could not be detected on the pyjami of the victim, directly falsifying the prosecution’s claim of blood spots. The Court also found the defence version of enmity over a common water connection between the jhuggis of the complainant and the appellant to be credible and established through mother’s own cross-examination, lending plausibility to the theory that the complaint was motivated and filed out of ill-intention.
Briefly, the appellant, Deepak, was convicted by the Designated Special Court under the POCSO Act for offences under Section 363 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012, and was sentenced to 10 years of rigorous imprisonment under POCSO along with a 1-year RI under Section 363 IPC. The case arose from an incident on Dec 09, 2015, involving a 2.5-year-old girl, the daughter of the complainant, who alleged that the appellant took the child to Hans Raj City Park and committed penetrative sexual assault on her. The First Information Report was registered on Dec 11, 2015, at Kalkaji Police Station. The High Court of Delhi dismissed the appeal and confirmed the conviction and sentence.
