Case Repository

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

The court held that the child’s statement recorded under Section 164 of the CrPC in the course of investigation cannot be considered as substantive evidence under Section 35 of the POCSO Act. The court further held that the requirement of expeditious recording of a child victim’s evidence under Section 35 of the POCSO Act is…

Para 21-27, 41- 44, 49, 50, 56-61

The court took note of the problem of long delays in recording testimonies of child survivors and the adverse effects it has on the child and the prosecution’s case. In light of these observations, the court framed and issued guidelines to be followed to ensure expeditious recording of testimonies of child survivors. The court stressed…

Para 11 - 15; Page 2 - 5

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 Court held that Sections 33(5) and 36(1) of the POCSO Act mandate that a child survivor ought not to be called repeatedly to testify in the Court. While Section 311 of the CrPC gives power to the Court to recall any witness to serve the cause of justice, but the said section is subject…

Para 19, 23; Page 3,4

The child may have a parent or other trusted person present at the time of testifying and can call for assistance from an interpreter, special educator, or other professional while giving evidence. Further, the Court held that the child is not to be called repeatedly to testify in Court and may testify through a video…

Para 2, 15, 17, 19, 22; Page 1, 3, 4

While sexual intent under S. 8 POCSO is a question of fact, the Court is entitled to raise the presumption under S. 30 POCSO with regard to the culpable state of mind of the accused when the court is satisfied with the existence of a fact beyond reasonable doubt.

Para 36-37, 42; Page 15, 17

Where foundational facts have been established, the presumption under section 29 POCSO becomes operational and the accused is bound to rebut the presumption.

Para 32; Page 39 & 40.

The presumption clause of Section 29 POCSO is applicable to both the offender and the abettor of the offence. When foundational facts have been established, the accused must discharge the reverse burden cast by Sections 29 and 30 POCSO.

Para 16-17; Page 8