Case Repository

The court held that a statement under the POCSO Act can be made only to a police officer or magistrate. Counsellors and NGOs can merely play a facilitative role and cannot take a statement from the child. Further, the court clarified that the notes of the counsellor or the expert are confidential and cannot be…

Para 6-8, 10, 12, 14-17, 19-21, 77-78, 87-89, 93-94

The court interpreted Section 118 of the Indian Evidence Act, 1872 (“IEA”) in reference to POCSO cases and held that evidence of child survivors cannot be rejected per se but merits close scrutiny by the court as a rule of prudence. The court further discussed the various aspects of determining the competence of child survivor,…

Para 45, 46, 47, 48, 49, 50-52, 57, 58

Applications for recalling a child survivor under Section 311 of the Code of Criminal Procedure, 1973 (“CrPC”) are subject to Section 33(5) of the POCSO Act on the principle of generalia specialibus non-derogant. The conflicting rights of the accused and the survivor have to be balanced when considering such an application.

Para 25; Page 17

The conviction can be based even on the uncorroborated evidence of the child survivor, if the same inspires confidence. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the child survivor, which are not of a fatal nature, to throw…

Para 11-21, 17, 22-23, 26,28 Page 3, 4, 5-7

If the statement of the survivor inspires confidence, then the court may convict on the statement alone.

Para 18-19; Page 4

It is well settled that in a case of rape, the finding of guilt can be recorded even on the basis of uncorroborated testimony of the child survivor provided it is cogent and reliable. Even in a case of penetration, the consistent judicial diktat is that absence of injuries may not always be fatal to…

Para 16-18, 20; Page 4

The child survivor being of tender age may have contradictions in their testimony. However, if they are consistent in their testimony as to the incident and are able to identify the accused, they would be considered a competent witness and their testimony may be admitted.

para 19, 23 & 24.

Testimony of a child can only be relied on if it is intelligible. A testimony is intelligible based on (a) the ability to understand questions put to the witness and (b) give answers to those questions that can be understood. If evidence is in the favour of the survivor, mere lapses in the survivor's statement…

Para 29-31, 34-37, 39-41, 42-44, 50, 61, 72-75; Page 5-8, 11, 14

When the prosecution fails to establish a strong preponderance of probability sufficient to raise a presumption under Section 29 POCSO, the negative burden to prove their innocence will not shift to the accused if the defence effectively discredits the prosecution's case, the accused will be discharged of their onus under Section 29 POCSO.

Para 43, 50, 52, 53; Page 5, 6, 7