Inconsistency in Child Witness Testimony and Reaffirmation of Innocence in Acquittal Appeals Warrant Sustaining Acquittal

The State appealed an order of acquittal dated 08.11.2017 passed by the Special POCSO Court.

The prosecution alleged that on 07.03.2014, the respondent kidnapped an 8-year-old girl (PW2) from a wedding venue, took her to a gallery on the first floor of a nearby house, and sexually assaulted her by touching and kissing.

The accused claimed false implication due to a drunken quarrel with the victim's brother (PW4) at the wedding.

The trial court acquitted the respondent citing inconsistencies in the evidence.

1. Whether there was any infirmity or perversity in the trial court’s judgment of acquittal that warrants interference by the Appellate Court.

2. Whether the trial court’s procedure of disallowing the defense from cross-examining the child witness on contradictions was legally sound.

The court applied Section 378 of the Cr.P.C. regarding appeals against acquittal, guided by the principles in Babu Sahebogouda Rudragoudar v. State of Karnataka, which mandate a double presumption of innocence in favor of an acquitted accused.

It examined the definitions of "kidnapping" under Sections 361 and 363 of the IPC.

The court interpreted Section 33 of the POCSO Act, which dictates that while the court must ensure a child-friendly atmosphere and prevent character assassination, it must still allow cross-examination through the court as per Section 33(2) to satisfy Section 145 of the Evidence Act.

The Court found the prosecution’s evidence riddled with material contradictions that the State failed to reconcile. PW2 (the victim) gave three different accounts of the abduction: playing outside in the FIR, being blindfolded inside a tent in her Section 164 statement, and being taken while eating dinner in her oral testimony.

A direct conflict existed between PW2 and PW4 regarding the aftermath; PW2 claimed her brother (PW4) caught and beat the accused at the scene, whereas PW4 testified he was at home watching TV and never met the accused that night.

The Court critiqued the trial judge for "disallowing" cross-examination based on the child's age, noting that Section 33(2) of the POCSO Act requires the court to facilitate questions rather than bar them, as the defense cannot otherwise prove falsehoods or omissions.

The High Court dismissed the appeal and upheld the acquittal, concluding that while the trial court's procedure in restricting cross-examination was irregular, the existing inconsistencies were sufficient to maintain the doubt in the prosecution's case.