Gangtok: On June 5, the Sikkim High Court, while deciding on a criminal appeal against the conviction of an appellant under the Protection of Children from Sexual Offences Act (POCSO Act), observed that “…in our considered opinion, a child of three and a 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.”
The appellant was previously convicted by the Special Trial Court under Section 5(m) of the POCSO Act for committing penetrative sexual assault against a three-and-a-half-year-old girl. However, the Division Bench of Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan acquitted the appellant, stating that the prosecution failed to show even the probability of the offence having been committed.
The First Information Report (FIR) was lodged during an investigation of another POCSO case where the appellant had allegedly sexually assaulted a nine-year-old boy (PW-1), who is the brother of the victim in the present case and the primary witness in the alleged crime.
The High Court noted inconsistencies in the evidence presented by prosecution witnesses. Initially, the brother of the victim stated to the Magistrate that the appellant had inserted his penis inside the victim’s mouth and anus. However, during the trial, he claimed that the appellant had put his finger inside her anus. Additionally, the victim’s father stated that his son told him the appellant had touched and played with his daughter’s genitals.
Furthermore, the brother’s statement did not corroborate with that of his mother, who stated that, according to her son, the appellant had removed the victim’s clothes and touched her all over her body. The mother also mentioned finding her daughter in a state of panic. Regarding the mother’s claim, the court remarked that “it is not plausible that a three-and-a-half-year-old would comprehend what a sexual assault is.”
The court observed that the prosecution witnesses had “given different versions of the alleged sexual assault on the minor child” and that their testimonies did not corroborate.
The court also noted that the parents did not file any complaint regarding the incident, nor did they disclose it to anyone. It was only during the recording of the brother’s statement before the magistrate that he mentioned the incident involving his sister.
The court commented, “The allegation of the offence appears to be an afterthought, in light of the vacillating evidence as already discussed, which cannot be relied upon to reach a conclusion of conviction. The evidence of the victim’s family does not inspire the confidence of this Court to conclude that the prosecution has proved its case beyond all reasonable doubt.”
The court held that the prosecution failed to prove its case beyond a reasonable doubt. Despite Section 29 of the POCSO Act, which provides for a presumption of guilt of the accused, the prosecution was unable to establish even the probability of the crime being committed.
“In light of the facts and circumstances, we are of the considered opinion that the prosecution has failed to attain the bar set for it to prove its case beyond a reasonable doubt. We are conscious and aware of the provisions of Section 29 of the POCSO Act, 2012; however, we cannot lose 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 High Court thus reversed the judgment of the Trial Court and acquitted the appellant, who was in central prison, Rongyek near Gangtok.
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