Chaini Parwani –
Published On: November 15, 2021 at 12:32 IST
The Bombay High Court stated that the Sessions Court had given excessive importance to a stray statement of a four-year-old without determining if the child could be a suitable Witness and overruled a 2019 Conviction under the Protection of Children from Sexual Offences Act (POSCO).
The High Court stated “A child is a competent witness provided he is capable of understanding the questions put to him and is able to give rational answers. But in this case, the child was barely four years old and of a tender age, and it was obligatory on the Judge to ascertain first whether the child can depose as a competent witness, which the Trial Judge had not done”
The Prosecution claimed that the Accused, was hired to paint a room, made the child sit on his lap. It was claimed that at 9.30 pm, he touched her private part and that the other man had Slapped her.
Further, the Mumbai Sessions Court Convicted the Accused of five years’ Rigorous Imprisonment in 2019. The co-Accused had been acquitted by the Trial Court.
The Sessions Court held the Accused liable under Section 10 of Protection of Children from Sexual Offences Act (POSCO) for aggravated Sexual Assault, where minimum punishment is five years’ Rigorous Imprisonment.
Moreover, the Court observed, “Conviction can be based on the sole testimony of a child witness provided the witness is competent to depose to the facts and is a reliable witness.”
Furthermore, the High Court Judgment noted that the child “Was not trying to conceal the truth’’ and the drift of Complainant replies during the hearing indicated she lacked the intellectual capacity and maturity to understand the nature of questions and to give reasonable answers, therefore cannot be considered to be a suitable Witness.
The High Court highlighted that identification of the Accused is not yet confirmed as the date of painting work was a day after the claimed Crime.
The High Court further noted that the Trial Court had “Grossly erred” in pronouncing its Guilty Verdict.
Also Read: Madras HC directs Schools to keep Complaint Box after Convicting a Pastor under POSCO Act