[POCSO cases] Victim's testimony sufficient for conviction unless there is strong reason to discard it: Madras High Court

The Madras High Court recently affirmed the conviction of a man for the sexual assault of a girl aged about 7-9 years old primarily on the strength of the victim's testimony about the incident (Raja v. State). .While confirming the conviction under the Protection of Children from Sexual Offences Act (POCSO Act), 2012 Justice P Velmurugan also observed that in cases of this nature, no eyewitness can be expected. The evidence of the sole witness can be considered unless there is strong reason to discard or disbelieve the same, he added..The settled proposition of law is that if the evidence of the sole witness is cogent, credible and trustworthy, conviction is permissible, the Court said..The present case was one such case where the Court found that the victim child had clearly identified the convict/appellant as having sexually assaulted her. The judge overruled certain discrepancies alleged in other evidence by giving primacy to the victim's statement, once it was found that he statement was clear.."The girl is aged about 7 years. She knows what is good things and what is bad things and also she knows who has committed offence. She named the appellant and identified the appellant. Therefore, in cases of this nature, no eye witness can be expected. No corroborative evidence is also expected," the Court said. .The Court in its judgment also addressed contentions that there was a delay in lodging the FIR.."Since the culprits will take chance of aloofness of the children and try to exploit their innocence and illiteracy, they used to threaten and also commit the offence. Therefore, the children normally will not reveal the incident immediately soon after the occurrence. So after some time, after recovering from the shock and fear and sometimes on the advise of the parents they will come out of the shock and they will reveal the same to the kith and kin who trust on them. Therefore, in this case, delay in filing FIR and delay in sending the FIR, non-examination of another child ... with whom she was playing, are not fatal to the case of the prosecution. It would depend upon facts of each case.".Case Background.The case concerned an incident that took place in 2016, when the victim was about 7-9 years old. As per the prosecution, the child was playing with her brother near a temple (kovil) when they set fire to some coir. The appellant is stated to have seen what was happening and offered to help the victim set the fire out. .However, he allegedly took her behind an idol thereafter where he sexually assaulted her. As per the prosecution, the appellant made the child lie on the floor, lifted her clothes, laid on her, embraced her and asked her to embrace him. The accused then told her not to reveal the incident to anyone. The child further stated her clothes got "wet" before the appellant let her go. .A Special Court convicted the appellant of offences under Sections 366 (kidnapping, abducting etc.) and 506 (punishment for criminal intimidation) of the Indian Penal Code (IPC), along with POCSO Act charges..The verdict was challenged before the High Court by the appellant. The High Court, ultimately, dismissed the appeal. Key findings of the High Court include the following..Absence of external Injuries does not imply there was no sexual assault.Among other grounds, the appellant pointed out that a medical examination found that there were no injuries on the child victim. .The High Court, however, observed that the victim has not stated that the appellant had forcibly penetrated her or that she had pain or sustained injuries on any part of her body.."Therefore, mere injury not sustained by either the appellant or the victim may not be the ground to disbelieve the case of the prosecution and the evidence of the victim. Therefore, the opinion of the doctors also not conclusive proof and will not be helpful to take a different view.".The Court added that there is no hard and fast rule that sexual assault should result in injuries. It depends on the force used by the perpetrator and the act committed by him, it was observed. .Non-presence of injuries is not fatal to the case of the prosecution, the Court concluded..Possible mix up in forensic analysis of semen, blood not sufficient to dislodge victim's testimony: Court.Another ground raised concerned a mismatch between the appellant's blood group and the blood group attributed to the semen stated to have been found from the victim's clothes..The Court was informed that the appellant's blood group was B positive. However, when the semen found on the churidar of the victim was analysed by a forensic lab, the report showed that it belonged to someone of the O positive group. Therefore, it was argued that the perpetrator of the crime was someone else and not the appellant. .In this regard, the appellant also argued that there was another person who was suspected of having committed the act and who was not prosecuted. As such, the appellant contended that he had been falsely implicated in the case. .To examine the allegation, the Court directed that the blood sample of the appellant as well as the other suspect pointed out by the appellant be taken. The appellant's blood group was found to be B and the other person's blood group was found to be AB positive. .The Court opined that "at the time of analysis, there is possibility of mismatch or misplacement by mistake occurring" owing to which the semen sample found in victim's clothes and the earlier blood group sent was reported as 'O positive'..The Judge concluded that such discrepancy is not within the control of the complainant and should not be cited to throw away the prosecution's case.."There will be so many possibilities and reasons that it might get tampered or it may occur in changing the sample or misplacement, or some other mistake might have occurred. Therefore, mere technicalities should not be allowed to stand in the way of administration of justice, unless the defence establish that the samples are purposefully tampered ... whether the same clothe was tested by forensic department or not, is highly doubtful. Therefore, on this sole ground, it is not fair to throw away entire case of the prosecution ... the evidence of the victim cannot be discarded and disbelieved", the judgment stated..The Court also added that the opinion of experts is not conclusive proof and is only a piece of evidence to aid the Court in arriving at a just conclusion. ."In this case, this court does not find any reason to disbelieve the evidence of the victim who is only aged about 7 years. She need not show the appellant that he has committed the offence. The defence also not established that for good reason, the victim girl wrongly identified the person and also has given a false case", the Court said. .While the appeal was dismissed, the High Court found that the appellant had been erroneously convicted under Sections 5 (m) and 6 of the POCSO Act which deals with penetrative sexual assault on a child below twelve years. .The High Court found that the appellant had not committed penetrative sexual assault, but was guilty of aggravated sexual assault under Section 9 (m) of the POCSO Act (dealing with sexual assault on a child below 12 years)..Accordingly, the conviction of appellant was modified and he was convicted under Sections 9 (m) of the POCSO Act and Sections 366 and 506 of the IPC..Advocate CD Johnson appeared for the appellant whereas government advocate (criminal side) TP Savitha appeared for the State. .[Read Judgment]