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Duo cleared of POCSO case as court finds survivor’s deposition unreliable
A Mumbai POCSO court acquitted two men accused of sexually assaulting a minor relative after noticing inconsistencies in the survivor's testimony, which appeared to have been coached by the prosecution and police. The court found the victim's evidence unreliable and said the accused could not be convicted under the POCSO Act, as the prosecution failed to provide strict proof of her date of birth. The complaint was filed out of family feuds.
charul.shah@htlive.com
MUMBAI: A special POCSO (Protection of Children from Sexual Offences Act) court last week acquitted two men booked for sexually assaulting a minor relative after noticing that the survivor was tutored by the prosecution and police to depose in a particular way.
The two men – the brother of survivor’s sister-in-law and her brother-in-law — were booked on June 29, 2020, following a complaint lodged by the survivor that they had sexually assaulted her on separate occasions. The Mankhurd police had arrested the duo the same day.
While the survivor’s brother-in-law was granted bail after three months of the arrest, the other man got bail after spending almost one and a half years behind bars.
The court last week acquitted the duo after noticing several discrepancies in the prosecution case, observing there was no consistency in the statements of the survivor.
On the day when the survivor was called to depose, the court observed that she was not in a mood to allow the court to record her testimony. She first told the court that she was born in 2002 but did not remember her exact date of birth, and that she had studied up to class VII.
Since she was reluctant, she was given a break. However, after the break when she started deposing again, she told the court that she was born in a village on June 24, 2004.
“My attention is drawn to her cross examination wherein she has agreed that she was given a break and went out of the Court Hall, her memory was refreshed by the prosecutor and the police. She agreed that she is deposing as taught to her. This was her answer, and she was smiling. It is clear that she was tutored during the break about her date of birth and what to depose,” said the court.
“It is clear that she is deposing that she is 17 years old and was born in the year 2004, which is an improvement, as she has already deposed that she was born in the year 2002 and that she was not aware of her exact date of birth,” court observed stating that victim’s evidence was not reliable.
The court held that the accused could not be convicted under POCSO Act, as the prosecution had failed to provide strict proof of the date of birth of the survivor.
The court said the accused cannot be convicted for rape, under section 376 of the Indian Penal Code (if it is assumed that the girl was a major at the time of the claimed assault) based on her sole testimony, as she was unreliable, and the complaint was filed out of family feuds.
