Failure to test child witness competency and conduct mandatory medical examination of accused vitiates POCSO conviction.

In brief

The question

1. Whether the prosecution suppressed the earliest version of the occurrence and whether there was an unexplained delay in lodging the FIR.

The court held

The High Court allowed the appeal, setting aside the judgment of conviction and order of sentence.

It also directed

The Court held that it is unsafe to convict an accused solely on the testimony of a child witness without a competency assessment, especially when contradicted by medical evidence and procedural lapses.

The Appellant was acquitted of all charges and ordered to be released forthwith.

01Facts

The Informant (PW-5) alleged that on June 10, 2018, she took her 11-year-old daughter (PW-1) to the Appellant for occult healing (‘totama’) for a stomachache.

¶ 4

On June 12, 2018, the Appellant allegedly took the victim to a litchi orchard and committed sexual assault.

¶ 4

The Trial Court convicted the Appellant under Section 376(2) of the IPC and Section 6 of the POCSO Act, sentencing him to 20 years of rigorous imprisonment.

¶ 3

The Appellant challenged this, citing a 20-hour delay in the FIR, suppression of the earliest statement, lack of medical corroboration, and failure to test the child witness's competency.

¶ 14-23

02Issues

i.1. Whether the prosecution suppressed the earliest version of the occurrence and whether there was an unexplained delay in lodging the FIR.

¶ 14, 29

ii.2. Whether the medical evidence corroborated the ocular testimony of the victim and witnesses regarding penetrative sexual assault.

¶ 17-18, 30

iii.3. Whether the conviction could be sustained based on the testimony of a child witness whose competency was not tested under Section 118 of the Evidence Act.

¶ 21, 32

iv.4. Whether the Trial Court erroneously applied the 2019 amendment of the POCSO Act to an offence committed in 2018.

¶ 22, 35

03Law Applied

The Court applied Section 118 of the Indian Evidence Act, 1872, regarding the competency of witnesses.

¶ 32

Section 4 of the Oaths Act, 1969, concerning child witnesses.

¶ 32

It relied on *P. Ramesh v. State* (2019) to emphasize that a trial judge must test a child witness's capacity to understand questions and the duty to speak the truth before admitting their evidence.

¶ 32

The Court also noted Section 53A of the CrPC regarding the mandatory medical examination of the accused.

¶ 28

Article 20(1) principles regarding the non-retroactivity of enhanced criminal penalties.

¶ 35

Provisions in the judgment · 12 · Linked ones open on LawLens

Indian Penal Code, 1860 Section 376

Protection of Children from Sexual Offences Act, 2012 Section 6 Section 4 Section 8 Section 10 Section 42

Seaward Artillery Practice Act, 1949 Section 3 Section 4

Code of Criminal Procedure, 1973 Section 164 Section 313

Oaths Act, 1969 Section 4 Section 5

04Reasoning

The Court found that the prosecution suppressed the first statement given by the victim to the police, creating doubt about the veracity of the later FIR.

¶ 29

Critically, the Trial Court and the Magistrate failed to conduct a competency test for the 11-year-old victim as required by Section 118 of the Evidence Act, making her sole testimony unreliable for conviction.

¶ 32-33

Medical evidence (Exhibit ‘4’) contradicted the oral testimony; though witnesses claimed there was blood on clothes, the doctor found no external injuries or spermatozoa, and the victim had told the doctor she escaped before penetration.

¶ 30

The I.O. failed to seize physical evidence (clothes/towel) or conduct a medical exam of the 68-year-old appellant under Section 53A CrPC, causing prejudice to the defense.

¶ 27-28, 35

Finally, the Trial Court illegally applied a 2019 sentencing amendment (20 years minimum) to a 2018 incident.

¶ 35