Keywords: POCSO, Sexual assault, Witness, Child.
The bench, consisting of Chief Justice Sanjib Banerjee and Justice W Diengdoh, emphasized that when the survivor is a child, it is highly unlikely for them to fabricate a story about such incidents. The court emphasized the need to take the survivor’s allegations seriously and accept them if found credible. It further explained that it is difficult to imagine a young child, up to 11 or 12 years of age, creating a false story and consistently repeating it. Therefore, the absence of witnesses to the sexual assault incident does not automatically absolve the accused when the survivor is a young child, unless the court determines that the child is unusually precocious in concocting and repeating such a story.
The court dismissed the idea that the survivor’s account should be considered untrue simply because there were no corroborating allegations or complete denials from the accused in such cases. It urged the complete discrediting of the common defense strategy employed by accused individuals facing rape or sexual assault charges. The court noted that individuals who engage in such heinous acts are unlikely to commit them openly in public view, Instead, they commit these acts in secret, when the survivor is alone or by persuading them to go to isolated places.
These observations were recorded during the rejection of an appeal made by a private tutor who had been found guilty of committing aggravated penetrative sexual assault against a 9-year student. The survivor’s medical examination revealed lacerations and tears in the anus. The accused based his defense on the argument that his brother and another student, who were also attending the tuition class, were not examined during the trial to verify the allegations.
The High Court, considering the survivor’s clear and credible statement, the medical evidence, and the absence of errors in the trial court proceedings, deemed the case to be “open-and-shut.” The court stated that the failure to call the brother and other students as defense witnesses, despite having the opportunity to do so, prevented the accused from speculating about what they might have stated to undermine the survivor’s consistent account.
Consequently, the appeal was dismissed by the court.
Written By- Muskan Vyas, Legal Journalist under Legal Vidhiya
