Case title: 

Xyz Versus The State Of Assam

Date of Order: 

7-11-2023

Bench: 

Honourable Mrs. Justice Susmita Phukan Khaund

SUBJECT

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a legislation enacted by the Government of India to protect children from sexual abuse and exploitation. The Act came into force on November 14, 2012, replacing the existing laws on child sexual abuse. The primary objective of the POCSO Act is to prevent the commission of offences against children, to provide for the swift investigation and prosecution of such offences, and to provide for the establishment of special courts for the speedy trial of cases relating to child sexual abuse.

IMPORTANT PROVISIONS

Protection of Children from Sexual Offences Act, 2012 (POCSO Act)

• Section 4
• Section 6

OVERVIEW

• The appellant in this case was found guilty of committing rape on a 13-year-old victim, referred to as -X, on 7.11.2017 at approximately 03:00 p.m.
• The victim's father, known as Y, reported the incident and also mentioned that his daughter had physical disabilities.
• The FIR was registered as Rowta PS Case No. 134 of 2017, under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
• The Investigating Officer (IO) conducted a thorough investigation and gathered enough evidence to file a charge sheet against the appellant under Section 6 of the POSCO Act.
• Through the Judgment and Order dated 23.07.2019 in Special POCSO Case No. 3/2018, the appellant was convicted under Section 376 (2) (l) of the IPC to undergo Rigorous Imprisonment of ten years and to pay a fine of Rs. 10,00,000/- (Rupees Ten Lacs).
• This decision by the court was challenged in the present matter.

ISSUE RAISED

1. Whether the learned trial court erred in convicting the appellant under Section 376 (2) (l) of the IPC?

ARGUMENTS ADVANCED BY THE APPELLANT

• The learned counsel for appellant emphasized in her argument that the evidence presented clearly indicates that the key witnesses PW-5 and PW-6 are unable to speak Assamese or Bodo. The interpretation of their statements was conducted without following the proper procedure outlined in the Oaths Act, 1969. Neither the interpreter nor the advocate present during the interpretation had taken an oath.
• The counsel stressed upon the point that the testimony of PW-3 clearly indicates that the victim has difficulty speaking. The victim is physically disabled, which suggests that their speech may be impaired. Therefore, it would be risky to place trust in the testimony of two young witnesses, especially considering that the victim seems to have special needs.
• Furthermore, it was contended that there is no medical evidence supporting the claim of rape. The doctor's findings clearly indicate that the victim did not experience any sexual assault, as her hymen was found to be intact.
• The counsel cited the case of Ranjit Hazarika versus State of Assam, reported in 2018 (2) GLJ 585 where the accused of a sexual assault case was acquitted due to absence of any injury on the private parts of the victim and because the hymen of the victim was found to be intact.

ARGUMENTS ADVANCED BY THE RESPONDENT

• The Additional Public Prosecutor emphasized in his argument that despite the lack of medical evidence supporting the charge of rape, the testimony of the victim should not be disregarded.
• It is argued that the victim's testimony alone is enough to establish a case of sexual assault, even if her hymen is found to be intact.
• Furthermore, it is asserted that the victim's statement is deemed credible and is supported by her sister's deposition, PW-5. The ruling of the trial court is deemed valid and does not necessitate any intervention.

JUDGEMENT ANALYSIS

• The Gauhati High Court set aside the order passed by the Trial Court and the appellant was set at liberty on benefit of doubt.
• The court held that this particular case is filled with inconsistencies and the evidence is abundant with opposing statements. In situations where two perspectives are plausible, the one that supports the accused should be adopted. Since the fundamental facts have not been sufficiently proven, presumption should not work against the appellant.
• The court found that during the cross-examination of the father of the victim, he testified that the First Information Report (FIR) was authored by an individual from Rowta, but he was unaware of its contents. Furthermore, he acknowledged that he had not previously informed the police about his other daughter, Z, who witnessed the incident and informed the local community, nor did he mention that his son had contacted him from his workplace. This glaring inconsistency in the informant's testimony constitutes a significant contradiction.
• The Court reiterated that in the case of sexual assault, it is commonly understood that the victim's testimony alone can be sufficient evidence to hold the perpetrator accountable. However, in the present case, the sole evidence provided by two minor witnesses, without any additional supporting evidence, cannot be considered as a basis for conviction. It is important to take into account significant omissions in the examination of witnesses and the lack of corroborating evidence.
• Finally, the court held that despite the absence of any statement from the Medical Officer and the Magistrate regarding the victim's physical condition, supposing that the victim is indeed physically challenged, it would be even more dangerous to convict the appellant solely based on the victim's testimony, especially when the evidence is riddled with contradictions.

CONCLUSION

The present case was an appeal against conviction of the appellant under Section 376 (2) (l) of IPC for raping a 13-year old physically challenged girl. The prosecution relied on the testimonies of the victim, her sister who witnessed the incident, her parents, MO and judicial magistrate. However, there were contradictions in the testimonies of the witnesses. The medical report also did not find any injury on the victim. Considering the discrepancies, contradictions and medical evidence, the High Court acquitt