Child survivor’s ‘vocabulary’ prompts Delhi High Court to uphold man’s POCSO conviction

The court added that the core allegation of sexual assault by the appellant has remained consistent, and a minor variation in expression does not affect the credibility of the witness.

Vocabulary limit of child can’t be overlooked

1. Making a small child touch the private part with sexual intent amounts to aggravated sexual assault and therefore, the offence under Section 10 (punishment for aggravated sexual assault) POCSO Act was established.
2. The testimony of the survivor has also been recorded in the question-answer form, which shows it was recorded conscientiously with sensitivity, in accordance with the guidelines for recording the statement of a child survivor.
3. Trial court rightly held that the age of the victim has to be kept in mind while appreciating her statement, and the limits on the vocabulary of the child survivor at the age of three years and or even five years, cannot be overlooked.
4. The child may have been counselled by the counsellor as mandated under law and the guidelines, but essentially, the purpose of counselling is to help the child in dealing with trauma and for mental health.”
5. The additional solicitor general rightly observed that when the abuser is a known person, it is very difficult to report the matter.
6. The normalisation of abuse in society has become so endemic that it is only when the abuse is perceived to be gruesome and serious, involving penetration or bad touch, that both children and families pay attention and speak up or report.

Background

The convict filed a plea against the trial court’s 2024 conviction order of seven years of rigorous imprisonment under Section 10 (punishment for aggravated sexual assault) of the POCSO Act and Section 354 of the Indian Penal Code (IPC).

According to the prosecution, the FIR was registered for sexual assault of a three-year-old child in 2022 against the convict, who was known to the survivor.

After the trial in the case, the petitioner was found guilty and convicted under Section 9(m) (whoever commits sexual assault on a child below twelve years), punishable under Section 10 (punishment for aggravated sexual assault) of the POCSO Act and Sections 354 (assault or criminal force to woman with intent to outrage her modesty)/ 354A (Sexual harassment and punishment for sexual harassment)/ 354B (assault or use of criminal force to woman with intent to disrobe) of the IPC.

Decision

“The trial court rightly convicted and sentenced the petitioner under Section 10 POCSO Act; however, no charge under Sections 354/354A/354B IPC was framed, and therefore, the appellant could not have been convicted under these Sections,” the court held.

The court added that the trial court has rightly held that once the entire incident was established on cogent evidence and the presumption of Section 29 POCSO Act arose, then the onus was on the appellant to prove his defence, which, in the present case, he has miserably failed to do so.

“There is no merit in the plea, which is hereby dismissed along with pending applications,” the court ruled.