[POCSO case] False allegations of child molestation lethal to accused: Kerala High Court acquits father

False allegations of child molestation against a person, especially a parent, can have ruinous and destructive impact on the accused, the Kerala High Court observed on Wednesday while overturning the conviction of a father accused of molesting his child [ K Raghavan v. State of Kerala ].

. A Division Bench of Justices K Vinod Chandran and C Jayachandran stated that even though child molestation is a shame for society as a whole, false allegations of the same can be lethal to the accused, even if he is later acquitted, as in the present case.

" Forensic and semantics apart, child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused, more so if the accused is a parent; even if he is eventually acquitted. Here we have the case of a child raising such accusation against her father with the active support of the stepmother; sheer instigation by the latter, pleads the accused, " the order stated.

. The Court issued the order on an appeal filed by a man who was accused of molesting his minor daughter and was convicted for the same by a trial court.

The accused was booked after his minor daughter alleged that he had repeatedly sexually molested her and even committed penetrative assault. His wife, who is his daughter's step mother, claimed that the child had narrated the ordeal to her and thereafter a complaint was registered with the police.

. Advocate Sai Pooja, who was appointed as amicus curiae , assailed the conviction of the accused on the following grounds:

the date of the alleged act is not specified and there is delay in reporting the offence;

there are discrepancies in the testimonies of the child and her step mother who are prosecution witnesses 1 and 2 respectively;

the Supreme Court in Santosh Prasad @ Santosh Kumar v. State of Bihar held that when there are material contradictions in the evidence of the prosecutrix and when there is delay in lodging the FIR, a conviction cannot be entered;

the prosecution has failed to corroborate the version of events as alleged by the child which is warranted since the discrepancies require such corroboration;

the medical evidence shows no injury to genitals and there is absolutely no evidence of a penetrative sexual assault;

the letter said to have been written first by the stepmother to the class teacher has not been produced despite the Police having seized it;

the complaint to the Childline is suppressed from the Court;

the Kerala High Court in Royson v. State of Kerala, held that suppression of material facts in the FIR was very serious and fatal.

Pooja asserted that the embellishments in the testimonies of the step mother indicated her malafide intention to somehow remove the accused from the house.

. Pertinently, she argued that there is nothing to attract the Protection of Children from Sexual Assault (POCSO) Act as the age of the child was not proven by the prosecution as per law.

. Special Government Pleader S Ambikadevi countered by stating that the child spoke of penetrative assault and that her narration of molestation, to the stepmother is res gestae under Section 6 of the Evidence Act. The incident which led to the complaint was at noon and immediately thereafter at 5.45 p.m, there was a disclosure, she added

The decisions in State of Himachal Pradesh v. Asha Ram & Wahid Khan v. State of Madhya Pradesh were relied on to contend that the testimony of a rape victim has the same sanctity of an injured witness and can be solely relied on to base a conviction without any corroboration.

The Special GP further contended that the trial Judge had seen the child and that was enough proof of minority especially since the child was only seven years old.

. At the outset itself, the Court declined to accept the contention of the Special GP that the trial judge had seen the victim and that would suffice.

Moreover, the evidence of the certificate from the school that the child was studying in was also not from the school first attended as required under the POCSO Act.

The Court adverted to the decision of the Kerala High Court in Alex v. State of Kerala in which it was held that the provision of the Juvenile Justice (Care and Protection) Act, 2015 - Section 94(2) - requiring only a date of birth certificate from a school, cannot be imported to determine the age of a victim under the POCSO Act

It also referred to the judgement of the Supreme Court in Ravinder Singh Gorkhi v. State of U.P, which specifically spoke of the necessity and sufficiency of proof, to be the one available in the statute itself.

The Court opined that the benefit conferred on an accused in one statute, the JJ Act in this case, cannot be imported into another statute, the POCSO Act, so as to prejudice the accused in a prosecution under the other statute.

" In this context, we cannot but notice that the fundamental principles of criminal jurisprudence requires every benefit to be conferred on the accused and no prejudice being visited on him/her," the Court said.

. Upon considering the facts and evidence of the case, the Court agreed with the amicus curiae that there are inconsistencies and discrepancies in the accusation and the testimonies proffered before Court.

Pertinently, it pulled up the prosecution for asking leading questions to the child which has been held as illegal and unfair to the accused, offending his right to fair trial, as held by the apex court in Varkey Joseph v. State of Kerala

. The Court also observed that the evidence from the medical examination also showed no proof of any penetrative assault.

. Further, it found that the judgments in Asha Ram and Wahid Khan , relied on by the special GP, held that conviction can be founded on the testimony of the prosecutrix alone, unless there are compelling reasons for seeking corroboration. The testimonies in the instant case warranted further corroboration, the Court opined.

. The Court concluded that " in the teeth of the inconsistencies pointed out by us and the incident having been elicited by way of leading questions, we find it difficult to uphold the conviction as entered into by the trial court."

It therefore, overturned the conviction of the appellant and ordered that he be set at liberty.

[Read Order]

[POCSO case] False allegations of child molestation lethal to accused: Kerala High Court acquits father

Giti Pratap

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