Child Victim’s Credible Statement Is Sufficient To Prove Sexual Assault Even If Medical Evidence Is Not Supporting Prosecution Case: Gauhati HC Upholds POCSO Conviction

The Court also added that in the variance between the ocular and the medical evidence, the ocular evidence would prevail.

The Bench of Justice Malasri Nandi held, “After going through the judgment of the trial court, it reveals that the trial court carefully examined the evidence, focussing on the victim testimony. The trial court found the victim statement credible and consistent, noting that whatever stated by the victim in her evidence is sufficient to prove the case of sexual assault against the accused appellant. Even if for the sake of arguments, we take that the medical evidence is not supporting the prosecution case, still we will have to apply the rule in case of variance between the ocular and the medical evidence, the ocular evidence would prevail and as aforesaid, the evidence of the victim is consistent.”

Advocates S Kanungoe and D Saikia appeared for the Appellant while Additional PP B Sharma appeared for the Respondent.

An appeal was preferred by the Convict against the judgment of conviction in a case arising out of Section 4 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’).

An FIR was registered by the father of the victim stating that the accused had lured his four-year-old daughter to his house and tried to commit sexual assault by confining her in the room. That, on hearing her scream, his wife entered the house of the convict and found the accused and her daughter in naked condition. His wife brought back his daughter and informed the matter to the neighbours.

The Counsel for the accused submitted that the trial court did not make any effort to determine the age of the victim girl which is necessary to establish a charge under the POCSO Act. It was further submitted that no birth certificate or no school certificate was produced and no ossification test was also conducted to prove the age of the victim as per Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015. It was the prosecution failed to prove the age of the victim as such, the Convict could not be convicted under the provision of the POCSO Act.

The Court reiterated that when considering evidence of a minor victim girl subjected to a sexual offence, the court does not necessarily demand an almost accurate account of the incident. The Court said that the law is well settled that generally speaking oral testimony may be classified into three categories i.e. (i) wholly reliable (ii) wholly unreliable (iii) neither wholly reliable nor wholly unreliable. The first two categories of cases may not pose a serious difficulty for the court in arriving at its conclusion. However, in the third category the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial as a requirement of the rule of prudence, it said.

The Court observed, “What flows from the aforesaid decision is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the court should strive to find out the true genesis of the incident. The court can rely on the victim as a ‘sterling witness’ without further corroboration. But the quality and credulity must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to end, from the initial statement to the oral testimony, without creating any doubt about the prosecution case.”

The Court reiterated, “The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceeding, a person of any age is competent to give evidence if she/he is able to understand questions put as a witness and if such answers to the question that can be understood. A child of tender age can be allowed to testify if he/she has the intellectual capacity to understand question and give rational answers thereto. A child becomes incompetent only in case the court considers that the child was unable to understand the question and answers them in coherent and comprehensive manner. If the child understands the question put to him/her and gives rational answers to those question, it can be taken that she/he is a competent witness to be examined.”

The Court opined that the prosecution had proved that the accused was the person who had ravished the victim who was a minor aged about 5-6 years at the relevant time and there was no perversity in the conclusion arrived at by the trial judge.

Accordingly, the Court dismissed the appeal and upheld the judgment.

Cause Title: Budul Das Hailakandi v. State of Assam

Appearances:

Appellant: Advocates S Kanungoe and D Saikia (Amicus Curiae)

Respondent: Additional PP B Sharma

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