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Synopsis

In a recent decision, the Meghalaya High Court has overturned a conviction under the Protection of Children from Sexual Offences (POCSO) Act, underscoring the imperative for courts to meticulously scrutinize the prosecution's case rather than merely rubber-stamping it.

Justice B. Bhattacharjee, presiding over the case, emphasised that “The Court cannot mechanically accept whatever the prosecution version of the case is and give an approval to it without even analyzing the admissibility and acceptability of the evidence relied on by the prosecution.” This approach is rooted in the principle that the presumption under Section 29 of the POCSO Act becomes operative only when foundational facts are firmly established through legally tenable evidence. In this case, the High Court found that the trial court had failed to perform this essential judicial function, leading to a miscarriage of justice.

In the instant case, an appeal was filed against the judgment dated 18-05-2022, where the accused was convicted under Section 3(a)/4 of the POCSO Act by the Special Judge (POCSO), East Jaintia Hills District, Khliehriat. The accused/appellant was sentenced to seven years of rigorous imprisonment along with a fine of Rs. 10,000 and an additional one month's simple imprisonment was imposed, in default of failure to pay fine.

The case originated from a complaint lodged on August 19, 2018, alleging that on the midnight of August 17, 2018, a 10-year-old boy was sexually assaulted by the accused, who was a familiar figure in the victim's household. In his statement under Section 164 Cr.P.C., the survivor stated that after having dinner, he went to sleep, and around midnight, the accused, a friend of his father's, came over to stay. The accused slept next to the survivor, then committed the assault by removing the survivor's pants and engaging in non-consensual anal penetration. This traumatic event woke the survivor due to the pain experienced, prompting him to go to the kitchen for water. Upon his return, he found the accused asleep next to him and, traumatised, the survivor went back to sleep.

After the alleged incident, the survivor was unable to attend school for two weeks due to the pain and bleeding he suffered. It was not until the following night that the survivor felt able to disclose the harrowing ordeal to his mother, revealing the extent of the trauma inflicted by the accused. Following the accusation, the accused was presented before the trial court, and charged under Section 5(m)/6 of the POCSO Act, and after the prosecution's presentation, a conviction was pronounced.

The defence counsel, presented several critical arguments against the conviction from the trial court. First, he pointed out discrepancies in the identification of the accused, noting the differences in names used in the arrest memo and by witnesses, which raised questions about the legitimacy of the identification process. Allegedly, during the test identification parade, the accused, generally referred to as ‘Bhutt’ was identified as ‘Ksuid’.

The counsel also criticised the trial court's reliance on the survivor's statements, highlighting contradictions with the medical report, which did not corroborate signs of assault.

Furthermore, he argued that the lack of direct examination of the survivor deprived the appellant of a crucial opportunity to contest the allegations. The credibility of key witness testimonies, particularly that of mother of the survivor, was also questioned; the mother of the survivor admitted to noticing no unusual activity on the night of the incident, casting doubt on the prosecution's narrative. Additionally, the absence of the survivor's father as a witness and the delay in filing the FIR were highlighted as significant flaws, undermining the urgency and credibility typically expected in such cases.

In response to the defence's arguments, the learned Government Advocate, clarified that there was no confusion regarding the identity of the appellant. The arrest memo correctly identified the accused as Arjun Boro, and she explained that 'Bhutt' and 'Ksuid', terms used by witnesses, translate to 'Ghost' in the local dialect, a nickname also acknowledged by the appellant himself in his statement under Section 313 Cr.P.C.

Furthermore, the prosecution defended the consistency and reliability of the survivor's statement under Section 164 Cr.P.C., aligning it with the medical report and the testimony of medical expert. It was highlighted that the medical findings showed tenderness over the survivor's anus, a clinical indication supporting the claim of recent sexual anal intercourse.

Addressing the issue of the delay in filing the FIR, it was argued that there was no significant delay that would undermine the credibility of the prosecution's case. It was pointed out that the incident occurred at midnight on August 17, 2018, and the FIR was lodged at 1:30 AM on August 19, 2018. This timeline falls within a reasonable period of 24 hours after the incident, considering the gravity of the crime and the potential shock and distress experienced by the survivor and his family.

The court, in addressing the appeal, made specific observations noted that, “There is no dispute to the fact that term ‘Bhutt’ and ‘Ksuid’ refer to one and the same meaning i.e. ‘Ghost’.” Thus, clearly establishing the identity of the accused.

Regarding the delay in lodging the FIR, the court observed that the materials presented showed the incident occurred at midnight on August 17, 2018, and the FIR was lodged at 1:30 AM on August 19, 2018. The appellant did not dispute the timings of the incident and the lodging of the FIR. The perceived delay was based on the dates mentioned without considering the actual times. After examining the timeline, the court concluded that there was only a gap of about 24 hours between the incident and the lodging of the FIR, thus determining no unreasonable delay.

The court further noted the absence of the survivor's direct testimony before the Trial Court. The conviction was mainly based on the testimony of the survivor's mother, the survivor's statements under Sections 164 and 161 Cr.P.C., the medical expert's evidence, the appellant's statement under Section 313 Cr.P.C., and the presumption under Section 29 of the POCSO Act.

Notably, the survivor's father, who was present at the time of the incident, was not examined by the investigating authorities under Section 161 Cr.P.C. nor called as a witness for the prosecution.

The medical expert stated that the survivor had complained of bleeding from the anus. However, upon examination, no visible injuries or bleeding were observed. However, the medical expert opined that “the findings are consistent with recent sexual intercourse.”

Regarding the trial court's judgment, the High Court noted that the court heavily relied on the survivor's statement recorded under Section 164 Cr.P.C., corroborated by the medical evidence. However, “a statement under Section 164 Cr.P.C is not substantive evidence and can be utilized only to corroborate or contradict the witness vis-`a-vis statement made in Court.”, the court observed.

Holding that the reliance of the learned Trial Court on such statements, bolstered only by medical evidence, was misguided, the court said, “The opinion of a medical expert is not direct evidence, but it has corroborative value.”

In conclusion, the court ruled that the trial court's order failed to “stand the scrutiny of law” and was, therefore, set aside and quashed. The accused was also directed to be released immediately.

 

Cause title: Arjun Boro vs State of Meghalaya [Crl. A. No. 21 of 2023]