Delhi High Court: Emphasising the reliability on the child victim’s testimony, Manoj Kumar Ohri, J., dismissed the appeal filed and the conviction and sentence awarded under Section 10 of POCSO At was maintained.
The present appeal was filed under Section 374(2) CrPC.
Subject matter of the appeal was that the appellant was convicted for the offences punishable under Section 354 Penal Code, 1860 and Section 10 of the POCSO Act.
Brief Facts
Appellant pulled the child victim and started kissing her and removing her underwear upon which she started shouting. Child victim’s younger brother saw her and, in the meantime, the mother of the child victim also arrived. She apprehended the appellant, and the police was called.
High Court concurred with the Trial Court’s finding that the child victim on the date of the incident was about 8 years old and thus a ‘child’ within the meaning of Section 2(d) of the POCSO Act.
Analysis and Law
What did the child victim state?
Child victim during her examination stated that the alleged incident occurred at about 9-9.30 a.m. She had gone to buy some vegetables. When she reached her house back, the appellant who was standing at the ground floor pulled her in a corner and started kissing her. He also started to remove her underwear. In the meanwhile, her younger brother came at the spot. She screamed, on which her mother also reached the ground floor. Her mother apprehended the appellant and her father informed the police. During the course of examination, the child victim correctly identified the appellant as the accused.
Bench noted that it is well settled that the testimony of a victim of sexual assault can be relied upon by the Courts.
Equally, the law on the testimony of the child victim is well encapsulated.
In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341, Supreme Court held that the conviction of an accused on the sole evidence of a child witness is permissible, if the witness is found competent and the testimony trustworthy.
In the present matter, Bench stated that it is worthwhile to note that at the time of her in-Court examination, the child victim was of tender age, i.e. about 10 years, yet she not only narrated the incident in terms of her previous statement, but also identified the appellant as the person who had committed the offence.
Further, appellant did not deny his presence at the spot on the day of the incident. In fact, he was caught at the spot. Even in his statement recorded under Section 313 CrPC, it was stated by the appellant that he only asked for the child victim’s mobile phone and on that premise, he was falsely implicated.
High Court appreciating the testimony of the child victim was of the opinion that the same was consistent, truthful and reliable. Being a competent witness, her testimony was admissible in evidence against the appellant.
Under Section 29 of the POCSO Act, there is also a presumption regarding the guilt of an accused. As a result, the prosecution has to lay down and prove the fundamental facts regarding the guilt of the accused but the burden of proof on the prosecution is not of ‘beyond reasonable doubt’. Once the facts are proved, the onus is on the accused to lead evidence to rebut the presumption raised under Section 29 of the POCSO Act.
It was noted that the appellant failed to dislodge the statutory presumption as stated above.
Therefore, the appeal was dismissed, and the conviction and sentence awarded to the appellant was maintained. [Mohan Kumar v. State (NCT of Delhi), 2021 SCC OnLine Del 4380, decided on 15-09-2021]
