Madras HC confirms conviction in POCSO case; says delay in lodging FIR not fatal to victim’s testimony

Read Judgment: Raja v. State Rep. By Inspector of Police

Pankaj Bajpai

Chennai, August 2, 2021: While dismissing a criminal appeal, the Madras High Court has upheld the conviction of a man for the sexual assault of a minor girl primarily on the strength of the victim’s testimony about the incident. 

While upholding the conviction under the POCSO Act, a Bench of Justice P. Velmurugan modified the conviction and sentence imposed by the Special Judge for the offence u/s 5(m) punishable u/s 6 of the POCSO Act (penetrative sexual assault), into Section 9 (m) of the POCSO Act, which is punishable u/s 10 of the POCSO Act (aggravated sexual assault), and convicted and sentenced him to undergo rigorous imprisonment for 7 years

The case of the prosecution was that the minor girl, while playing along with her brother, was approached by the appellant who then took her behind thorn bushes and committed sexual assault. Although he threatened her not to reveal it to anybody, the survivor informed her parents which led to filing of the police complaint. 

The police after making enquiry arrested the accused and laid the charge sheet before the trial court who found the appellant guilty for the charges framed for offences u/s 366 & 506(1) of IPC as also Section 5(m) of POCSO Act by the Special Court, and passed judgment of conviction and sentence. 

“A combined reading of evidence deposed before court, earlier statement given before the Magistrate which was recorded u/s 164 CrPC and before doctor while conducting the medical examination, show that victim has clearly named the appellant and also clearly narrated the act committed by the appellant,” found Justice Velmurugan. 

The High Court highlighted that neither eye witness nor corroborative evidence is expected in such cases of sexual assault of a minor and since the culprits in such cases took chances of aloofness of the children, they try to exploit their innocence and illiteracy for committing the offence.

The Bench also made it clear that mere delay in filing FIR and delay in sending the FIR to the Court, non-examination of another child Selvakumar (survivor’s brother) with whom she was playing, are not fatal to the case of the prosecution. 

Although the doctors who examined the girl have stated that there is no external injury either on the private part of the survivor or the appellant, the High Court ruled that the said opinion of doctor as not conclusive ground to disbelieve the case of the prosecution and the evidence of the victim.

When delay is explained and there is no contra evidence to show that the case was registered against the appellant only after deliberation and discussion, and therefore, sent the FIR to the court with delay, it is plausible that it will take some time for the survivor to come out of the trauma and reveal the occurrence, opined the High Court. 

“The discrepancy regarding group of the blood and semen is concerned, it is not within the control of the victim or the defacto complainant. When it is collected and sent for lab, there will be so many possibilities and reasons that it might get tampered or it may occur in changing the sample or misplacement, or some other mistake might have occurred. Therefore, mere technicalities should not be allowed to stand in the way of administration of justice, unless the defence establish that the samples are purposefully tampered,” observed the Bench. 

The High Court therefore, said the trial court rightly appreciated the entire evidence and came to the conclusion that the appellant has committed the offence and presumption u/s 29 & 30 of POCSO Act would come into play and the burden falls on the appellant/accused to rebut the same.