HC Opines: In POCSO Cases, description of incident assumes significance as a child can’t be expected to know what sexual assault is [Read Judgment]:

While dismissing the appeal filed by the appellant-accused of Section 5(m) and 6 of the POCSO, the Madras High Court held that the victim child can’t be expected to have an idea about a sexual assault and it will be a very terrifying experience for a child, who will only get an impression that someone is trying to physically assault her.

Hence, from the perspective of a child, a sexual assault will be understood at that age, only as a physical assault like hitting or pinching. Therefore, the description of the incident assumes a lot of significance for the Court to come to a conclusion as to whether there was penetrative sexual assault in a given case.

Brief Facts:

The prosecution’s case is that the victim child aged about 6 years was lewd by the appellant (A-1) and on that pretext, the appellant took her and removed her inner garments, and committed penetrative sexual assault on her. The appellant also threatened the child not to inform about this incident to anyone. After this incident, the child came back home and slept. She was woken up by her mother and the child was running temperature. After a lot of persuasion, the victim's child informed her mother about the incident. The mother of the victim child went and questioned the sister of the appellant viz., Manjula (A-2) about this incident and the said Manjula (A-2) is said to have abused the parents of the victim child in filthy language and threatened them. The mother of the victim child gave a complaint (Ex. P1) before the AWPS, Vridhachalam at 09.00 a.m. on 15.02.2019, and an FIR (Ex. P6) came to be registered in Crime No.2 of 2019 for the offences under Sections 5(m) and 6 of the POCSO Act and Section 376-AB, 294(b) and 506(I) IPC as against the appellant and his sister Manjula.

The victim's child was sent for medical examination and the examiners gave an opinion that there is a possibility of sexual offence/assault. The appellant was arrested and remanded to judicial custody. The appellant was also subjected to a medical examination. The Court framed the following charges against the accused persons: Section 5(m) and 6 of the POCSO Act read with Section 376-AB IPC and 506(I) IPC; Section 294(b) IPC and 506(I) IPC. The Court, on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to a conclusion that the prosecution has proved charges beyond reasonable doubts against the appellant and proceeded to convict and sentence the appellant in the manner stated supra. A-2 was acquitted of all the charges.

Contentions of the Appellant:

The main ground that was raised by the learned counsel for the appellant is that a false case has been foisted against the appellant, since P.W.1. viz., the mother of the victim child had an illicit relationship with a person and they were seen together in a compromising position by the appellant hence, P.W.1 had orchestrated a false complaint against the appellant. It was further urged that the victim child was made to improve the case while giving evidence before the Court and the evidence of the victim child in the Court was invariance from the statement that was recorded from the victim child under Section 164 Cr.P.C. The learned counsel for the appellant further contended that even if the statement recorded from the victim child under Section 164 Cr.P.C. is taken as it is and it is read along with the report given by P.W.5, at the best, it will only constitute an offence of sexual assault under Section 7 of the POCSO Act. This submission was made on the ground that there is absolutely no proof to establish that there was a penetrative sexual assault against the victim child. The learned counsel for the appellant further contended that the incident could not have happened in a public place as was sought to be projected by the prosecution and hence, the entire case of the prosecution is unbelievable.

Contentions of the Prosecution:

The evidence of the victim girl was natural and there is no ground to doubt the veracity of the submission made by the victim's child. Further, the evidence of the victim child was corroborated by the evidence of the mother of the victim child (P.W.1) and the Doctor (P.W.5), through whom Ex. P5 was marked. The learned Additional Public Prosecutor also placed reliance upon Section 29 of the POCSO Act, which provides for reverse burden and it is contended that the appellant failed to discharge his burden hence, the Court has to necessarily presume that the offence has been made out. To substantiate this submission, the learned Additional Public Prosecutor placed reliance upon the judgment of Madras Court in Udhyanithi vs. State [2020 -1-LW(Crl) 95].

Observations of the Court:

The court observed that when the victim child's statement was recorded under Section 164 Cr.P.C., she had stated about the incident almost in the same manner, in which, she deposed before the Court. The victim child did not give any description as to how the sexual assault took place when her statement was recorded under Section 164 Cr.P.C. and that by itself, cannot lead to a conclusion that the victim child had improved her version, while deposing before the Court. The victim child was hardly aged about 6 years and she did not possess the maturity to improve upon her statement and particularly when it involved a sexual assault. The victim child had perfectly identified the appellant and had also stated about the incident in a very natural way, while recording the statement under Section 164 Cr.P.C. as well as when she was examined before the Court. The evidence of the victim's child was not discredited, during the cross-examination.

The court relied upon the judgment in State of Punjab v. Gurmit Singh (1996 SCC Crl. 316) where the Apex Court had cautioned that in cases involving sexual molestation, it is the duty of the Court to deal it with utmost sensitivity, hence minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. The testimony of the victim child inspired the confidence of the Court and was found to be reliable and the judges held that it was not even necessary for the Court to even look for corroboration. The evidence of the victim child has been corroborated by her mother and the medical examiner. On examination, the doctor found that there was reddishness over the genitalia and that there is a possibility of consensual offence committed against the victim child.

The learned counsel for the appellant submitted that there are absolutely no signs of penetrative sexual assault and at the best, the report only shows that there could have been a sexual assault. The victim child has described the incident, when she deposed before the Court and she has specifically stated that the appellant had placed his penis over the vagina of the victim child. Section 3 of the POCSO Act explains penetrative sexual assault and Section 3(a) of the POCSO Act makes it clear that there is no requirement that the penis should have completely penetrated the vagina. Hence, sexual assault as described by the victim child clearly satisfies the requirement under Section 3(a) of the POCSO Act.

The court also acknowledged that the victim child can’t be expected to have an idea about a sexual assault and it will be a very terrifying experience for a child, who will only get the impression that someone is trying to physically assault her. Hence, from the perspective of a child, a sexual assault will be understood at that age, only as a physical assault like hitting or pinching. Therefore, the description about the incident assumes a lot of significance for the Court to come to a conclusion as to whether there was penetrative sexual assault in a given case. In the instant case, going by the description given by the victim's child about the incident and carefully considering the evidence of P.W.5 and the medical report marked as Ex. P5, the court was convinced that the victim child was subjected to penetrative sexual assault.

The victim child was six years old at the time of incident and hence, the offence of aggressive penetrative sexual assault is clearly established under Section 5(m) of the POCSO Act, which is punishable under Section 6 of the POCSO Act. Further, in the present case, the appellant has not discharged the burden that was cast up on him under Section 29 of the POCSO Act and hence, the legal presumption is that the prosecution has proved the offence under Section 5(m) of the POCSO Act. Hence, apart from the prosecution proving the case against the appellant beyond reasonable doubt, there is also a legal presumption against the appellant that he has committed the offence.

Decision of the Court:

The Criminal appeal was dismissed and the trial court’s judgment was upheld.

Case Title: Manikandan vs State rep. by The Inspector of Police

Coram: Mr. Justice P.N. Prakash and Mr. Justice N. Anand Venkatesh

Case No./Citation: CRL.A.No.44 of 2021

Advocate for the Appellant: Mr. P. Muthamizh Selvakumar

Advocate for the Respondent: Mr. Babu Muthumeeran

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