[POCSO] Not expected for 7-year-old child to recapitulate the harrowing incidents with mathematical precision; Delhi High Court upholds conviction based on child testimony

delhi high court

Delhi High Court: In an appeal filed by the appellant (convict) seeking to set aside the impugned judgment of conviction dated 03-02-2020 and order of sentence dated 20-02-2020 convicting the appellant under Section 10 and 12 of Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) for offences under section 454 and 506(II) of Penal Code, 1860 (IPC). Jasmeet Singh, J., upholdsdid not interfere with the impugned conviction as the Trial Court was right in holding that the testimony of the victim alone is sufficient to prove the guilt of the accused and minor contradictions or insignificant discrepancies in the statement of a child victim should not be a ground for throwing out an otherwise reliable prosecution case.

The complainant (mother of the child victim) was not present in her house when accused/appellant Kishore Kumar along with one another boy came to her house and made her son/child victim age about 07 years open the door of her house by threatening him. After entering the house, the appellant told the victim to sit in a corner and committed unnatural sex with his companion in plain sight of the child victim. It is further alleged that after a few days accused/appellant Kishore Kumar again committed the same act. The appellant exhibited his private parts and also, touched the private parts of the child victim.

The appellant was sentenced to undergo Rigorous Imprisonment for three years along with a fine of Rs. 2500/- for committing an offence punishable under Section 454 IPC. He was awarded similar sentences for committing the offence punishable under Section 506(II) IPC and Section 12 of the POCSO Act. He was sentenced to rigorous imprisonment for a period of five years along with a fine of Rs 2500/- for an offence punishable under Section 10 of the POCSO Act.

The Court noted that under section 29 of the POCSO Act, there is a presumption of guilt against the accused. The prosecution is only required to lay the foundational facts that disclose the commission of offence by the accused persons. Once the same has been done, it is the accused who has to rebut the presumption of guilt. Thus, in the present case, the victim’s account aged 7 years does not appear to be tutored or fabricated, and he consistently described the incident where the accused engaged in inappropriate behaviour with another person in his presence.

In Rakesh v. State (GNCT of Delhi), 2021 SCC OnLine Del 3957, Delhi High Court observed that

By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury.

The Court concluded that the statement of the child victim is of sterling quality. The combined evidence of the prosecution lays down the foundational facts which disclose the commission of offence and this Court finds no reason to disbelieve or discredit the statement of the child victim. Hence, the testimony inspires confidence. However, the inconsistencies, improvements and contradictions in the evidence of the child victim such as not knowing the name of the appellant, exact date, month or year of the incident are of a minor character and do not call into question the veracity of the prosecution’s story.

Thus, the Court did not interfere with the impugned judgement since the testimony of the victim was clear, reliable and trustworthy, the allegation of the appellant that the victim was tutored or that appellant’s partner with whom the sexual act was performed was never identified again becomes secondary.

[Kishore v State, CRL.A. 531/2020, decided on 25-05-2023]

Advocates who appeared in this case :

Mr. Prashant Mehta, Mr. Charanpreet Singh, Advocates for the Appellants;

Mr. Ajay Vikram Singh, APP SI Ajit Singh, PS KNK Marg Advocates for the Respondents.

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