Case Note & Summary
The case involves two appeals arising from the judgment and order dated 27.02.2018 in Spl. SC/ST No.10/2016 passed by the II Additional District and Sessions and Special Judge, Dharwad. The appellant in Crl.A.No.100126/2018, Santosh Govind Kerur, was convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000. The State filed Crl.A.No.100231/2018 seeking enhancement of the sentence. The prosecution case was that on 20.04.2016, the accused committed aggravated penetrative sexual assault on a 7-year-old girl (the victim) by inserting his finger into her private parts. The victim's mother (PW-2) lodged a complaint. The trial court convicted the accused based on the testimony of the victim (PW-1) and other witnesses. The High Court analyzed the evidence and found that the victim's testimony was inconsistent and unreliable. The victim initially stated that the accused inserted his finger, but later contradicted herself. Her mother (PW-2) also gave contradictory statements. The medical evidence (PW-5) showed no signs of penetration, and the hymen was intact. The court held that the presumption under Section 29 of the POCSO Act was rebutted by the defence. The court also noted that the prosecution failed to examine independent witnesses. Consequently, the High Court allowed the appeal of the accused, set aside the conviction and sentence, and acquitted him. The State's appeal for enhancement of sentence was dismissed as infructuous.
Headnote
A) Criminal Law - POCSO Act - Aggravated Penetrative Sexual Assault - Section 6 of Protection of Children from Sexual Offences Act, 2012 - Conviction set aside due to unreliable child witness and lack of corroboration - The victim's testimony was inconsistent and contradicted by other prosecution witnesses; medical evidence did not support penetration; presumption under Section 29 was rebutted by the defence - Held that the prosecution failed to prove the case beyond reasonable doubt (Paras 1-30). B) Evidence Law - Child Witness - Reliability - Section 118 of Indian Evidence Act, 1872 - Testimony of child witness must be scrutinized with care - The victim (PW-1) gave contradictory statements and was not a reliable witness; her mother (PW-2) also contradicted her - Held that conviction cannot be based on such unreliable testimony (Paras 15-25). C) Criminal Law - Medical Evidence - Corroboration - Section 375 of Indian Penal Code, 1860 - Medical evidence must corroborate allegations of sexual assault - The doctor (PW-5) found no signs of penetration or injury; the hymen was intact - Held that medical evidence does not support the charge of penetrative sexual assault (Paras 20-22).
Issue of Consideration
Whether the conviction of the appellant under Section 6 of the POCSO Act is sustainable based on the evidence on record.
Final Decision
Criminal Appeal No.100126/2018 is allowed; the judgment and order of conviction dated 27.02.2018 and sentence dated 09.03.2018 passed by the II Addl. District and Sessions and Spl. Judge, Dharwad in Spl. SC/ST No.10/2016 are set aside; the appellant/accused is acquitted. Criminal Appeal No.100231/2018 is dismissed as infructuous.
Law Points
- Presumption under Section 29 of POCSO Act is rebuttable
- Conviction cannot be based on sole testimony of child witness if it is unreliable
- Inconsistencies in prosecution case lead to benefit of doubt
- Medical evidence must corroborate allegations of penetrative sexual assault
