3.5 Year-Old-Child Would Barely Understand Import Of A Person Touching Her Private Part: Sikkim HC Acquits POCSO Accused
The Sikkim High Court found it astonishing and unbelievable that a 3.5-year-old, child who barely understood the import of a person touching her private parts, would be in a state of panic to comprehend the same as sexual assault.
The Bench acquitted the appellant convicted under Sections 5(m) and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) after the evidence presented by the prosecution did not inspire confidence. The Court stated that the allegation of the offence appeared to be an “afterthought” in light of the “vacillating evidence,” and therefore could not be relied upon to convict the appellant.
A Division Bench of Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan observed, “That evidence of PWs does not inspire the confidence of this Court. The witnesses have given different versions of the alleged sexual assault on the minor child and, in our considered opinion, a child of three and half years would barely be able to understand the import of a person touching her private part, how she would be in a state of panic having comprehended that it was a sexual assault, is indeed astonishing and unbelievable.”
Advocate Dewen Sharma Luite represented the appellant, while Addl. P.P. Yadev Sharma appeared for the respondent.
During the investigation of another POCSO case, the minor victim (brother of the 3.5-year-old) revealed that the appellant had sexually assaulted his younger sister. The mother of the children confirmed that the appellant had visited their home in an inebriated state, offered to put their three-and-a-half-year-old daughter to sleep, and was followed by the minor brother who then witnessed the assault.
An FIR was lodged against the appellant following the incident under Section 377 of the IPC read with Sections 4 and 6 of the POCSO Act. The Special Judge (POCSO Act) convicted the appellant under Section 5(m) punishable under Section 6 of the POCSO Act and sentenced him to default incarceration.
The Court noted discrepancies in the statements provided by the brother, mother, and father of the victim. The brother initially claimed that the appellant inserted his fingers into the victim's mouth and anus, while the mother described more severe actions, stating that the brother reported that the appellant had removed the victim’s frock, touched her body, and caused bleeding. The father provided yet another version, alleging that the appellant had touched and played with the victim’s genitals.
“We are conscious and aware of the provisions of Section 29 of the POCSO Act, 2012, however, we cannot loose sight of the fact that the evidence does not establish even the probability of the offence having been committed. In any event, it is not the statement of the alleged victim that she was subjected to sexual assault,” the Bench remarked.
Consequently, the Court held that the prosecution failed to prove its case beyond all reasonable doubts. Given the vacillating and uncorroborated testimonies, the Court set aside the appellant’s conviction and sentence, directing his immediate release.
Accordingly, the High Court allowed the appeal.
Cause Title: Phurba Lepcha v. State of Sikkim