Uncorroborated Testimony Of Victim Sustains POCSO Conviction Where Sexual Overtures Evidence Remains Unchallenged In Cross-Examination

In brief

The question

1. Whether the Special Court was justified in finding the accused guilty under Section 7 read with 8 of the POCSO Act despite the victim's denial of sexual intercourse

The court held

The High Court answered the issues in the affirmative, holding that the testimony of PW1 was reliable for the purposes of Section 7 POCSO

It also directed

The conviction and the sentence of three years (the statutory minimum) were upheld. The appeal was dismissed

01Facts

The Appellant was accused of committing sexual assault against a 17-year-old victim (PW1) on multiple occasions in April and May 2016. The prosecution alleged offences under Section 376(2)(n) IPC and various sections of the POCSO Act

p. 3

The Special Court, Ernakulam, via judgment dated 14.11.2017, convicted the accused under Section 7 read with Section 8 of the POCSO Act, sentencing him to three years of rigorous imprisonment

pp. 3-4

The Appellant challenged this on grounds including the victim's partial hostility regarding sexual intercourse, lack of proof of minority, and the alleged unconstitutionality of the POCSO age threshold

pp. 4-6

02Issues

i.1. Whether the Special Court was justified in finding the accused guilty under Section 7 read with 8 of the POCSO Act despite the victim's denial of sexual intercourse

p. 6 / para. 8

ii.2. Whether the prosecution successfully established the minority of the victim at the time of the offence

p. 6 / para. 8

iii.3. Whether a potency test conducted without the express consent of the accused violates Article 21 of the Constitution

p. 5 / para. 6

03Law Applied

The court primarily applied Section 7 of the POCSO Act, which defines 'sexual assault' as acts involving physical contact with sexual intent without penetration, such as touching a child's private parts

pp. 12-13

It relied on the principle that the evidence of a "hostile" witness is not eschewed in toto if the parts supporting the prosecution remain unchallenged in cross-examination

p. 10

Regarding age, the court applied the evidentiary value of birth certificates issued by local authorities

p. 10

It further held that medical tests like potency tests are legally permissible without explicit consent and do not infringe upon the right to privacy under Article 21 in criminal investigations

p. 11

Provisions in the judgment · 8 · Linked ones open on LawLens

Code of Criminal Procedure, 1973 Section 374 Section 313

Indian Penal Code, 1860 Section 376

Protection of Children from Sexual Offences Act, 2012 Section 3 Section 5 Section 6 Section 7 Section 8

04Reasoning

The court reasoned that while the victim (PW1) turned hostile regarding the allegation of sexual intercourse (Section 376 IPC), her testimony regarding the accused kissing, hugging, and touching her private parts remained consistent and was not challenged by the defense during cross-examination

p. 8, 10

Under Section 7 of the POCSO Act, such physical contact is sufficient to constitute sexual assault regardless of penetration

p. 13

The court dismissed the challenge to the victim's age, noting that the birth certificate (Ext.P4) proved she was 17 at the time of the incident

pp. 10-11

The court also rejected the constitutional challenge to the age threshold and the claim of "ineffective assistance of counsel," noting the accused was represented by a lawyer of his choice

p. 11