Madras HC Upholds Neighbour’s 20-Year POCSO Sentence, Citing Child’s Unchallenged Account And Medical Corroboration

The appellant, a neighbour of the survivor, was accused of taking her—then aged four years and eleven months—to his house on 5 September 2021 and committing oral and vaginal penetration. The child disclosed the incident to her mother on 9 September, and an FIR was lodged the following day.

The Special Court convicted the appellant under Section 6 of the POCSO Act and Section 363 IPC, sentencing him to 20 years’ rigorous imprisonment and three years’ rigorous imprisonment, respectively, with the sentences to run concurrently. The appellant appealed under Section 374(2) CrPC, principally seeking reduction of the POCSO conviction to Section 10.

Section 3 of the POCSO Act treats penetration to any extent as penetrative sexual assault; Section 5(m) makes such assault aggravated where the child is below twelve years, and Section 6 prescribes its punishment.

Under Section 29, once the prosecution establishes the foundational facts, the statutory presumption applies unless rebutted.

A child witness’s reliable testimony may sustain a conviction without corroboration, though corroboration is a rule of prudence.

Section 10 punishes aggravated sexual assault, while Sections 361 and 363 IPC address kidnapping from lawful guardianship and its punishment; Section 366 applies where a woman is kidnapped or abducted to compel or seduce illicit intercourse.

A Section 164 CrPC statement is not substantive evidence and may be used to corroborate or contradict its maker under Sections 157 and 145 of the Evidence Act, respectively; wholesale marking of such statements was deprecated by the Supreme Court in Suo Motu W.P. No. 1 of 2017, decided 20 April 2021.

The judgment also applied Section 207 CrPC concerning supply of prosecution documents and Section 428 CrPC concerning set-off.

The survivor gave clear, reliable and unchallenged evidence that the appellant penetrated her mouth and vagina; the doctor’s finding of a ruptured hymen corroborated vaginal penetration, and the absence of other injuries did not negate the offence.

Because the survivor was under twelve, the proved penetrative assault fell within Section 5(m), attracting Section 6; the authorities relied on by the appellant were distinguishable because they lacked evidence of penetration.

The Court rejected the Section 164 objection because the Trial Judge recorded that documents had been supplied, no request for the statement was shown, and its non-marking caused no demonstrated prejudice.

It considered Section 366 the appropriate provision on the facts but declined to alter the Section 363 conviction in an appeal brought only by the accused.

The Court found no basis to interfere with either sentence; the POCSO sentence was the statutory minimum applicable under Section 6.

The sentences were to run concurrently, with set-off under Section 428 CrPC.