HC says 4-yr-old not competent witness in Pocso case, frees man

HC says 4-yr-old not competent witness in Pocso case, frees man

‘Lower Court Gave Undue Importance To Girl’s Statement’

Swati.Deshpande@timesgroup.com

Mumbai:15.11.2021

Quashing a 2019 conviction under the Protection of Children from Sexual Offences Act (Pocso), the Bombay high court said the sessions court had given “undue importance to a stray statement’’ of a four-year-old without ascertaining first whether the child could be a competent witness.

Mumbai sessions court had convicted the accused to five years’ rigorous imprisonment in 2019. He was one of two accused in the case. The co-accused had been acquitted by the trial court.

The HC said, “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 high court added.

The prosecution’s case was that the accused, who was hired to paint a room, had made the child sit on his lap. It was alleged that at 9.30pm, he then touched her private part and that the other man had slapped her.

The child, who did not have the cognitive skills to remember, recollect and narrate an alleged sexual abuse by a painter-workman, had later in her cross-examination by the defence lawyer also said she was deposing as told by her mother, observed Justice Anuja Prabhudessai while acquitting the man convicted in the 2017 case.

The prosecution’s case was based mainly on the child’s testimony. “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,’’ said the HC.

The man had been convicted under section 10 of Pocso for aggravated sexual assault, where minimum punishment is five years’ RI. Both the accused had pleaded they were not guilty.

Observing that the trial court had “failed to evaluate competency’’ of the child as a witness, the HC scrutinised her evidence to ascertain whether her deposition can be relied on. The HC judgment noted that the child “was not trying to conceal the truth’’ and the tenor of her answers during trial indicate she lacked the intellectual capacity and maturity to understand the nature of questions and to give rational answers, hence she “cannot be considered to be a competent witness.” Besides, there is no confirmation of the identification of the accused in the case, the HC noted as the date of painting work was a day after the alleged crime, said the room owner.

The Bombay high court judgment noted that the four-year-old girl ‘was not trying to conceal the truth’ and the tenor of her answers during trial indicated she lacked the intellectual capacity and maturity to understand the nature of questions and to give rational answers