Monday, October 2, 2023

No Child’s Play

The Delhi High Court recently observed that it was not expected that the victim, a child of tender age, would behave like an adult by raising the alarm promptly. It noted that the child, with his level of vocabulary and comprehension was able to describe the incident and present a clear picture

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By Dr Swati Jindal Garg

It has been said that “Pretty much all the honest truth-telling in the world is done by children!” Taking this quote to heart, the Delhi High Court recently passed a judgment upholding five years’ imprisonment awarded to a man for sexually assaulting a seven-year-old boy in his house. The Court also went a step ahead holding that the statement of the child victim was of “sterling quality” and his testimony inspired confidence. Clarifying its stance, the Court said that it was not expected that a child of such a tender age would behave like an adult by raising the alarm promptly and added that in this case, the victim, with his level of vocabulary and comprehension was able to describe the incident and had a clear picture in describable words.

Justice Jasmeet Singh on hearing the convict’s plea that he had been falsely implicated in the case because of a previous animosity between him and the victim’s mother, firmly rejected it, saying: “The court cannot lose sight of the fact that alleged offence was committed with the child victim of tender age who got frightened by the threats extended to him by the accused as well as the alleged act of the accused and it is not expected that a child of such a tender age would behave like an adult by raising the alarm promptly”. The accused in this case was convicted of the offences of aggravated sexual assault, sexual harassment of a child under the Protection of Children from Sexual offences (POCSO) Act, house trespass and criminal intimidation under the Indian Penal Code.

The Court was also mindful of the fact that a seven-year-old boy is not expected, nor is it possible for a child of his age to recapitulate the harrowing incidents with mathematical precision. It said: “The statement of the child victim is of sterling quality. The combined evidence of the prosecution lays down the foundational facts which disclose the commission of offence and this court finds no reason to disbelieve or discredit the statement of the child victim. Hence the testimony inspires confidence.”

Stating that the child’s testimony was clear, reliable and trustworthy and the trial court’s judgment was also well reasoned, the High Court clarified that the trial court had rightly relied upon the set judgments to state that the testimony of the victim alone is sufficient to prove the guilt of the accused and minor contradictions or insignificant discrepancies in the statement of the minor victim should not be a ground for throwing out an otherwise reliable prosecution case.

This is not the first case wherein a court has reiterated that if the testimony of the child victim inspires confidence, it is sufficient to record the conviction. In fact, there have been many instances wherein the courts have concluded that if prior to recording the testimony of the child victim, the trial court has recorded its satisfaction as to his/her maturity and competency for understanding the questions and giving their answers, then, in absence of submissions to the contrary, the courts will have no difficulty in holding that the child victim was competent to stand as a witness.

However, just like every coin has a flip side, it cannot be overlooked that a child witness is prone to tutoring and hence the court should look for corroboration, particularly when the evidence betrays traces of tutoring. The unbiased approach of law demands that if a person has to be convicted on the testimony of a child, it has to be ensured that the child had not been tutored and that there is at least some corroboration available.

Child sexual abuse is a worldwide phenomenon, and India is not an exception. In fact, the reality is that the incidence of child sexual abuse has reached epidemic proportions in India. In 2021, there were only 53,874 cases registered under the POCSO Act, 2012. To enable all-around protection of children, the government administrated the POCSO Act, which is a comprehensive piece of legislation designed to protect children from crimes, including sexual assault, sexual harassment, and pornography.

Before the introduction of the POCSO Act, the sole legislation in India that aimed at protecting the rights of a child was the Goa’s Children’s Act, 2003 and Rules, 2004. Under the Indian Penal Code, 1860, child sexual abuse accounted for an offence under Sections 375, 354 and 377. These provisions, however, neither protect male children from sexual abuse nor protect their modesty. Also, definitions of the terms like “modesty” and “unnatural offence” are not provided in the Code.

The POCSO Act has many salient features that make it unique—it provides for the procedure of media reporting and imposes the duty to maintain the child victim’s identity unknown unless the special court allows disclosure. Another glaring feature of the POCSO Act is that it does not create any distinction between the victim or the perpetrators on the basis of their gender. This overcomes one of the biggest shortcomings of the Indian Penal Code’s provisions. The definition of child includes anyone below 18 years of age, and in several cases, the courts have even convicted women for engaging in child sexual abuse. One of the biggest advantages/strengths of the Act, however, is that it makes mandatory the reporting of child abuse cases.

Sexual abuse most often happen behind closed doors and the family members attempt to hide these incidents due to the stigma attached to these crimes. Consequently, for the proper implementation of the POCSO Act, reporting of these incidents by the third parties, who have the knowledge or apprehension of such offences, has been made mandatory under the Act. These laws have been made on the basis of assumptions that children are vulnerable and helpless and society has the duty to protect the interests of the children. The Act also makes applicable, “The Last Seen Theory”, wherein the person who is last seen with the victim is assumed to be the perpetrator of the offence when the time gap between the point when they were last seen alive is so minute that it is not possible that any other person could have committed the crime.

The Act further lays down the procedure of investigation and trial which has been formulated keeping in mind the needs of a child. The following points are taken into consideration while investigating any crime under the POCSO Act:

  • The statement of the child is to be recorded at his/her place of residence and generally by a woman police officer.
  • The officer who is to record the statement of the child should not be wearing a uniform.
  • The officer should ensure that the child does not come in contact with the accused during the examination.
  • A child is not to be detained in the police station at night.
  • The officer should ensure that the identity of the child is not revealed.
  • The statement of the child is to be recorded in the presence of a person in whom the child has trust. For example, the parents.
  • The statement of the child is to be recorded via audio-video electronic means.
  • The assistance of the translators or interpreters should be taken wherever necessary.
  • Frequent breaks are to be allowed during the trial.
  • The special court has to ensure that the child is not called to repeatedly testify in the trial court.
  • Aggressive questioning of the child is not permitted during the trial.

Most importantly, under Section 29 of the POCSO Act, there is a presumption regarding the guilt of an accused. The objective behind the legislation is to ensure that the actual offenders are behind bars. Hence, one of the approaches adopted to ensure this is to reduce the burden on the prosecution to prove certain things by introducing presumptions. Sections 29 and 30 of the POCSO Act lay down the provision with respect to the burden of proof. According to Section 29, the person who is prosecuted for the commission of the child sexual abuse offence is presumed to have committed or abetted or attempted to commit such an offence.

However, this issue is not without problems. The main issue that arises while implementing this provision is that the nature of presumption that has to be applied is at the whims and fancies of the courts. Also, this provision has been challenged to be unconstitutional in a number of cases as it intervenes with the right to be presumed innocent, right against self-incrimination and the right to remain silent. In order to combat this problem, Section 30 has been incorporated which provides the opportunity to the accused to prove his/her innocence, thereby making the presumption under Section 29 rebuttable.

All said and done, it cannot be denied that evidence has to be weighed and not counted, hence even the sole testimony of a child victim can be relied upon to convict a person. That testimony however, should be of sterling quality so that there is no doubt regarding the complicity of the accused as stated by the witnesses in the commission of the crime. As a result, the prosecution has to lay down and prove the fundamental facts regarding the guilt of the accused, but the burden of proof on the prosecution is not of “beyond reasonable doubt”.

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

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