Lack of witnesses not enough to let accused off the hook in POCSO cases, says Meghalaya HC

GUWAHATI — Lack of witnesses in sexual assault cases brought under the Protection of Children from Sexual Offence Act (POCSO Act) cannot be a defence used to absolve the guilty in such situations, the Meghalaya High Court recently ruled.

A bench consisting of Chief Justice Sanjib Banerjee and Justice W. Diengdoh emphasised that because of the nature of these offences, they frequently take place behind closed doors after the accused lure the survivors to remote locations.

In an order on Wednesday, the court stated that it is unlikely that a story about such an incident would be made up when the survivor is a child.

The order reads: “The law that has developed requires the allegation of the survivor to be taken seriously and, if found to be credible, to accept the same … When the survivor is a child, it is difficult to imagine that a story would be conjured up out of nothing and the same would be consistently repeated.

“Thus, when the survivor is a child of, say, up to 11-12 years of age, unless the court finds the child to be precocious enough to make out a story and consistently repeat the same, the fact that there may not have been any witness to the incident of sexual assault may not, by itself, let the accused off the hook.”

The court also debunked the idea that unsubstantiated claims and vehement denials by the accused in such situations should imply that the survivor’s story is false.

“It is time to completely discredit a routine line of defence often taken by an accused facing a charge of rape or sexual assault… For a start, however depraved a person may be to sexually molest another person, he may not be foolish enough to indulge in such act in open public view. Such offences are committed stealthily or surreptitiously when the survivor is alone or by luring the survivor to a secluded spot,” the court order added.

The observations were made while rejecting the appeal of a tutor who had been found guilty of aggravating sexual assault against a nine-year-old student.

During the course of the investigation, a medical check revealed tears and abrasions in the survivor’s private parts.

The petitioner’s case focused on the lack of an examination during the trial to corroborate the charges against his brother and another student who were paying tuition at the time.

The court ruled that the case was “open-and-shut” due to the survivor’s credible and clear testimony, the medical documentation, and the absence of any flaws in the trial court’s order and processes.