Read Order: ASHRAFF ALI Vs, STATE REP. BY: INSPECTOR OF POLICE 

Mansimran Kaur 

Chennai, April 18, 2022: In a case pertaining to the Protection of Children from Sexual Offences Act , 2012, the Madurai Bench of the Madras High Court has held that when the Court finds the child competent to depose to the facts and such evidence does not suffer from any tutoring, then there is no bar for the Court to act upon the evidence of the child of tender age. 

The Division Bench of Justice R.Subramanian and Justice N.Sathish Kumar was considering the present appeal which was instituted by the appellant-accused pursuant to the judgment dated August 3, 2019 pronounced by the Court of Principal Sessions Judge, sentencing him to life imprisonment u/s 6 of the POCSO Act. 

Brief facts for the perusal of the present appeal were that the victim(third prosecution witness, PW-3) on  September 3, 2019 complained to her  mother, PW-2, of pain in her gential areas. Her mother assuming it to be some infection, gave the victim some water with sugar. The vitim child eventually confessed to her mother that the accused was abusing her sexually and was causing pain in her private parts. After repeated complaints made by the vitim regarding pain in her private parts, her mother and the Doctor, Assistant Professor of MGM Government Hospital, Trichy after examining her found hymenal tear over 1 ‘o’ clock and 8 ‘o’ clock position and issued AR copy in this regard. The victim child has stated that the accused used to lift her to his room and used to press her genital organs with his hands.

The Inspector of Police, on receipt of the intimation from Government Hospital, Trichy, recorded the statement from P.W.1 and registered a case  for the offences under Sections 5(l), 5(m) 5(n) and 6 of the ‘Protection of Children from Sexual Offences Act, 2012 and  forwarded the FIR to the Court. He thereafter examined P.W.2 and the victim child and forwarded the child to the hospital for treatment. 

Thereafter, the doctor  working in the Government Hospital, Pudukkottai examined the child at 9.00 p.m. on October 10, 2018 and she did not find any external injury and issued Accident Register Copy.

The prosecution  was able to establish the guilt of the accused beyond reasonable doubt and in pursuant to the same, the Trial Court  after considering the oral and documentary evidence or record, convicted the accused under the charges framed and sentenced him to undergo life imprisonment. 

The Counsel for the appellant submitted that he was falsely implicated in the case. It was further submitted that  there were serious  discrepancies  in the evidence of the victim child before the Medical Officer , 164 Cr.P.C statement before Judicial Magistrate and also in the substantive evidence before the Cour.  It was submitted that  the medical examination of P.W. 7 did not find any external injuries on the victim, therefore it was contended that the entire prosecution theory was flawed. It was also submitted that the presumption under Section 29 of POCSO Act does not absolve the prosecution to prove the guilt of the accused beyond reasonable doubt. 

The Prosecution on the other hand, submitted that the contentions of the appellant were baseless.  It was further contended that some vague assumption or denial forms no basis to assail the statutory presumptions mentioned under Section 29 and 30 of the POCSO Act.  Further, the evidence of the victim child, her mother and aunt  vividly showed that the child was subjected to sexual assault by the elder member in the family. It was also stated that there are bound to be some contradictions in statements made by a child, who is aged about 7 to 8 years at the time of occurrence, such minor contradictions hold no relevance  for perusal of appeal filed in pursuant to  commission of  offences of such gravity . 

The Court after considering all the materials on record, observed that the evidence of the victim’s mother clearly indicated that she was under the control of her mother-in-law and being a pardanashin lady, she was afraid of her family members. The evidence of ther mother and maternal aunt vividly indicated that the child complained some pain in the private parts and there was some injury also noted by the Trichy Doctor. The victim child in her examination had also clearly stated that the accused used to put his hand on her private parts besides penetrating a small stick into her vagina. Even in the cross examination of the victim child nothing could be elicited by the accused. 

It was further observed that merely because the mother did not report about the incident immediately, did not give the leverage to the accused to challenge the same. Also, the victim child at the time of occurrence of the offence was a minor of 7-8 years of age and thus the Court couldnot expect  her to give all  minute details of the incident.

It was  noted that in the absence of rebuttal evidence it becomes mandatory under Section 29 of  the POCSO Act  for the Court to presume that the accused had committed an offence. Further, no contradictory evidence was placed on record or brought on record by way of cross examination.

The Court cited the case of  the Gauhati High Court in Saiful Islam Vs. State of Assam and Anr. wherein it was held that no accused can be saddled with the reverse burden by virtue of presumption under Section 29 of POCSO Act, unless the prosecution succeeds in establishing the foundational fact beyond reasonable doubt as to the commission of offence.

Further, the Bench held that merely because one of the doctors did not find any external injuries, it coundnot be concluded that there was no sexual abuse at all.The Court asserted, “…merely because there are some inconsistencies in the statements of the child before the Medical Officer, 164 Cr.P.C. statement and her substantive evidence, her evidence cannot be ignored.”

According to the Bench, the accused residing in the same house as relative and an aged person, his act certainly fell  within the ambit of Section 9 of sub-clause (l) of the POCSO Act.  However, this Court noted that the Trial Court awarded the sentence in accordance with the amended Act, though the occurrence of the incident took place before the amendment of Section 6 of the POCSO Act 25 of 2019, which came into effect from August 16, 2019. 

Consequently, allowing the Criminal Appeal, the Bench modified the  sentence to 10 years of rigorous imprisonment seeing that the accused was already 70 years of age. It was further directed that the period of sentence already undergone by the appellant/sole accused should be set off under Section 428 of the Code of Criminal Procedure.

The Bench also added a word of caution by saying,“ We also noted that the trial Court has failed to ensure that the identity of the child is not disclosed during trial, which is contrary to the mandate of the POCSO Act. Section 33 of sub-clause (7) of POCSO Act makes it mandatory for the Special Court not to disclose the identity of the child during the trial. The trial Court have not maintained the same in the judgment and while recording the evidence, the child name has been typed in the deposition form without adhering to the mandatory provisions. The trial Courts must be more cautious in future and adhere to the provision of the statute.”

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