[POCSO Act] Time to discredit a routine line of defence taken by accused facing charge of rape or sexual assault: Meghalaya HC

The Meghalaya High Court in its recent decision held that when the survivor is a child, the fact that there was no witness to the incident of sexual assault, by itself, cannot let the accused go off the hook, unless the court finds that the child is precocious enough to concoct a story and consistently repeat the same.

The court further added that it is time to move past the patterned line of defence taken by accused in such cases.

A division bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh, while dismissing the appeal, observed, “… however depraved a person may be to sexually molest another person, he may not be foolish enough to indulge in such act in open public view. Such offences are committed stealthily or surreptitiously when the survivor is alone or by luring the survivor to a secluded spot. It is for such reason that the law that has developed requires the allegation of the survivor to be taken seriously and, if found to be credible, to accept the same. There are, of course, recognised exceptions; as when there are serious contradictions or a motive for leveling the allegation is clearly made out.”

The court was hearing an appeal by a convict under Section 6 of the POCSO Act, 2012 read with Section 506 of the Penal Code, 1860. It was the contention of the petitioner that the trial court erred in completely relying on the statement of the survivor to convict the appellant herein.

“A further aspect may be specifically noticed in this context. When the survivor is a child, it is difficult to imagine that a story would be conjured up out of nothing and the same would be consistently repeated. Thus, when the survivor is a child of, say, up to 11-12 years of age, unless the court finds the child to be precocious enough to make out a story and consistently repeat the same, the fact that there may not have been any witness to the incident of sexual assault may not, by itself, let the accused off the hook”, Court further added.

The FIR in the present case was lodged by the father of the survivor on April 10, 2017.

The complainant alleged that his son, then aged 9 and a student in class III, had been sexually molested by the appellant, to whom the survivor used to go for tuition.

According to the FIR, on April 10, 2017 when the boy’s mother asked him to go for tuition he denied stating that he was not interested. Later, it was discovered that the appellant would keep the survivor back at the end of every session and sexually abuse him. The FIR also referred the boy complaining of pain in his rectum.

The 9-year-old survivor gave his statement under Section 164 CrPC, 1973, stating that the appellant did “dirty acts” with him and that he was also scared by the appellant not to reveal such incidents to anyone.

A medical examination was conducted and the statements as alleged, were found true.

In the course of trial, the survivor repeated, in substance, what he had indicated previously in his statement under Section 164 of the Code and in his brief description to the medical practitioner at the time of his examination. No anomaly of any kind was pointed out on behalf of the appellant in the evidence.

Case Title: Arjun Das v. State of Meghalaya