Criminal Law & Sexual Offences: Court Explains Legal Aspects of POCSO Act, 2012

Criminal Law & Sexual Offences: Court Explains Legal Aspects of POCSO Act, 2012

In a recent case, the issue was centred around offence under Section 6 of the POCSO Act, 2012. 

Allegations and Occurrence

On 14/04/2018 informant Latifa Bibi lodged an ejahar before the O/C, Nalbari PS, stating inter alia that, on that day at about 3:00 PM, when her 7- year-old daughter (hereinafter referred to as victim or X') went to see TV in the house of Altaf Ali, taking the advantage of absence of other people in the house, the accused raped the victim.

On receipt of the FIR, police registered the case as Belsor PS Case No. 247/2018 u/s 376 IPC r/w s. 4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act) against the accused person Altaf Ali. The police went to the place of occurrence and examined the available witnesses. Once the victim was recovered, her medical examination was done and her statement u/s 164 Cr.PC. was duly recorded.

Evidence and Depositions

Court noted the evidence. 

The Evidence: PW 1 deposed that the accused called her to his home & at his home he touched her 'nunu' (vagina) entered his penis into it. In her evidence, PW-1 further deposed that it pained & bled because of the said act. PW-1 also stated that she told her mother. PW-1 stated that the accused entered into her 'nunu', and that, she bled.

PW – 2 deposed that she went to the house of the accused in search of the victim & found the victim unconscious in the bed & saw the accused come out. PW-2 also saw sperm on the floor near the bed. She brought the victim back home & saw that PW-1 was bleeding from her private parts. On being asked, PW-1 told that the accused entered his penis into her vagina. PW-2 told the neighbours Sahida Begum, Rahima Bibi & Meriza. PW-2 also told her husband when he reached home. During cross-examination PW-2 stated that, in the morning of the day of incident her husband, accused and few others went to buy fish. She also stated that he accused returned at around 2-3 PM. PW-2 also stated during the cross-examination that, when she went to the pond to inform the incident to her husband, she saw the accused there. Later, PW-2 says that she called her husband home and informed him about the incident & showed him injuries of the victim. PW-2 denied the suggestion that she didn't tell the I/O or in her statement u/s 164 Cr.P.C. that when she went in search of the victim, she found her unconscious in the house of accused, and that, the accused came out from the room, and that, sperm was on the floor near the bed.

Observations and Element of Criminality

Court noted that it appears that there is a slight discrepancy between her evidence in Court and the statement of the PW 2 recorded under Section 164 Cr.P.C, where she stated that she saw the victim semi conscious in the house of the accused and that the accused was naked. However, during her deposition in Court, she stated that she saw the accused coming out of the room. This is not to be taken as totally discrediting the evidence of PW 2. Witnesses are prone to make some improvements/variations in their evidence before the Court and on that account alone, the entire evidence cannot be discarded.

What must not be lost sight of is that the victim PW 1 was aged only 7 years and being a very young child, some variation in her deposition can not only be accepted but also disregarded.

When so far as the evidence with regard to the prime factum of the offence is concerned, the same has been consistent throughout from the stage of recording of her statement before the Magistrate, Police and before the Court in most material particulars. Furthermore, the Medical Officer, who examined the victim on the day of the offence, would also reveal that the victim sustained injuries on her private parts. It is to be noted that the Medical Officer, who was examined as PW 3 deposed that in the labia minora of the victim there was an abration of redish colour measuring 1 cm X 1 cm on the right side. She also deposed that the hymen was intact and no sperm could be detected and an attempt at insertion can be said to have taken place. Therefore, the medical evidence also corroborates the evidence of PW 1 and 2.

With reference to the definition of penetrative sexual assault, even slightest amount of penetration is sufficient to constitute the offence of penetrative sexual assault and it is not necessary that full insertion must take place. Therefore, the evidence of the FSL expert, who was examined as PW 9, that the examination gave negative tests for human semen, is not of any significance. Furthermore, it appears from the evidence of PW 5, that the PW 2 immediately after the incident knocked on her door and reported to her that the accused committed a bad act on her daughter and that her daughter had told her about the incident. She also deposed that she examined the private part of the victim and saw read mark on her urinal part. Her evidence could not be shaken in cross-examination. Therefore, the evidence of PW 5 also corroborates the evidence of the victim PW-1 as well as PW- 2. 

Ultimately conviction for offence under S.6 of POCSO Act, 2012 was found to be valid. 

For more details refer Altaf Ali v. State of Assam [2025] GCtR 1688 (Gauhati).