[POCSO]: Conviction Can Be Based On Sole Testimony Of Victim If Reliable And Trustworthy: SC
In a bold, brilliant and blunt judgment titled Ganesan vs State Represented by its Inspector of Police in Criminal Appeal No. 680 of 2020 (Arising from S.L.P.(Criminal) No. 4976/2020), a three Judge Bench of the Supreme Court comprising of Justices Ashok Bhushan, MR Shah and R Subhash Reddy has clearly and convincingly held that there can be a conviction based on the sole testimony of the sexual assault victim if she is found to be reliable and trustworthy. This was reiterated by the Supreme Court while upholding conviction in a POCSO case. Ganesa was convicted for sexually assaulting a girl aged 13 years and was sentenced to undergo three years rigorous imprisonment.
To start with, the ball is set rolling in para 2 of this latest, landmark and laudable judgment authored by Justice MR Shah for himself, Justice Ashok Bhushan and Justice R Subhash Reddy after granting leave in para 1 wherein it is put forth that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 29.04.2019 passed by the High Court of Judicature at Madras in Criminal Appeal No. 844 of 2018, the appellant-original accused has preferred the present appeal.”
While elaborating on the proceedings of the case, the Bench then goes forth to state in para 3 that, “That the appellant herein – original accused was tried by the learned Fast Track Mahila Court, Dharmapuri for the offences punishable under Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the ‘POCSO Act’). That relying upon the deposition of PW3 – victim, who at the relevant time was studying in 5th standard and aged 13 years, convicted the accused for the offence under Section 7 of the POCSO Act and sentenced him to undergo three years rigorous imprisonment, which is the minimum sentence provided under Section 8 of the POCSO Act. The learned trial Court also passed an order to pay rupees one lakh to the victim girl, by way of compensation, under Rule 7(2) of the Protection of Children from Sexual Offences Rules, 2012.”
Going ahead, it is then envisaged in para 4 that, “Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned trial Court, the accused preferred appeal before the High Court being Criminal Appeal No. 844 of 2018. The appeal was taken up for further hearing on 24.04.2019. The High Court noted that there was no representation on behalf of the appellant and therefore by order dated 24.04.2019 directed to remove the name of the appellant’s counsel and further directed the High Court Legal Aid Committee to appoint Legal Aid Counsel for the appellant. The appeal was listed for further hearing on 29.04.2019. On 29.04.2019, the learned Legal Aid Counsel appearing for the appellant made only submission with respect to compensation of rupees one lakh awarded by the learned trial Court awarded to the victim girl under Rule 7(2) of the Protection of Children from Sexual Offences Rules, 2012. It was submitted on behalf of the accused that he is unable to pay the compensation of rupees one lakh to the victim girl and pleaded leniency and requested to set aside the order of compensation awarded by the learned trial Court. That by the impugned judgment and order dated 29.04.2019, the High Court partly allowed the said appeal and modified the judgment and order passed by the learned trial Court with respect to compensation only and modified the said order to the effect that compensation amount shall be paid by the State to the victim girl and thereafter if the State finds that the accused has got sufficient means, the same can be recovered from the accused under the Revenue Recovery Act. The High Court dismissed the appeal so far as the conviction and imposition of sentence of three years rigorous imprisonment is concerned.”
As a corollary, what ensues is as stated in para 5 that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 29.04.2019 passed by the High Court, the original accused has preferred the present appeal.”
Truth be told, after hearing both the parties at length and perusing the case thoroughly, the Bench then observes in para 8.1 that, “Learned counsel appearing on behalf of the appellant has very much emphasized on disposal of the appeal within four days from the date of providing legal assistance to the accused. It is the case on behalf of the appellant-accused that on 24.04.2019, his advocate remained absent and the High Court directed the Legal Aid Committee to provide legal assistance to the appellant-accused and the matter was adjourned to 29.04.2019 and on the very date, i.e., on 29.04.2019, the learned legal aid counsel did not argue the appeal on merits and has confined the appeal with respect to order of compensation awarded by the learned trial Court. Therefore, it is the case on behalf of the accused that no fair and sufficient opportunity was given to the accused. Heavy reliance is placed on the decision of this Court in the case of Anokhilal (supra). However, it is required to be noted that as such nothing is on record that the legal aid counsel was not having any papers. There cannot be any dispute with respect to proposition of law laid down by this Court in the case of Anokhilal (supra). However, in the facts and considering the fact that the High Court has given partial relief to the accused and considering the fact that out of the sentence of three years R.I., the appellant has already undergone two years and three months (approximately), instead of remanding the matter to the High Court for a fresh decision, we have called upon to the learned counsel for the respective parties to submit the case on merits, and the learned counsel on behalf of the respective parties have made their submissions on merits, noted hereinabove.”
It must be mentioned here that in the case of Anokhilal v State of Madhya Pradesh AIR 2020 SC 232 just mentioned above, the Supreme Court held that failure to afford hearing to the accused violates even minimum standards of due process of law. It is also further held in this case that the legal services provided to the accused should be meaningful and not an empty formality.
To put things in perspective, para 9 then holds that, “In the present case, the appellant-accused has been convicted by the learned trial Court for the offence under Section 7, punishable under Section 8 of the POCSO Act. We have gone through the entire judgment passed by the learned trial Court as well as the relevant evidence on record, more particularly the deposition of PW1-father of the victim, PW2-mother of the victim and PW3-victim herself. It is true that PW2-mother of the victim has turned hostile. However, PW3-victim has fully supported the case of the prosecution. She has narrated in detail how the incident has taken place. She has been thoroughly and fully cross-examined. We do not see any good reason not to rely upon the deposition of PW3-victim. PW3 aged 15 years at the time of deposition is a matured one. She is trustworthy and reliable. As per the settled proposition of law, even there can be a conviction based on the sole testimony of the victim, however, she must be found to be reliable and trustworthy.”
Finally and far most importantly, for the sake of brevity, it is then held as the key point in para 9.3 that, “On evaluating the deposition of PW3-victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we are of the opinion that the sole testimony of the PW3-victim is absolutely trustworthy and unblemished and her evidence is of sterling quality. Therefore, in the facts and circumstances of the case, the learned trial Court has not committed any error in convicting the accused, relying upon the deposition of PW3 – victim. The learned trial Court has imposed the minimum sentence provided under Section 8 of the POCSO Act. Therefore, the learned trial Court has already shown the leniency. At this stage, it is required to be noted that allegations against the accused which are proved from the deposition of PW3 are very serious, which cannot be permitted in the civilized society. Therefore, considering the object and purpose of POCSO Act and considering the evidence on record, the High Court has rightly convicted the accused for the offence under Section 7 of the POCSO Act and has rightly sentenced the accused to undergo three years R.I. which is the minimum sentence provided under Section 8 of the POCSO Act.”
In a nutshell, we thus see that the Supreme Court while upholding conviction in a POCSO case has clearly and convincingly held that there can be a conviction based on the sole testimony of the sexual assault victim if she is found to be reliable and trustworthy. The court particularly referred to the decisions of Vijay alias Chinee v. State of Madhya Pradesh, (2010) 8 SCC 191 in which it was held that there can be a conviction on the sole testimony of the victim. The Apex Court thus in this noteworthy case thus very rightly holds in para 12 that, “In view of the above and for the reasons given above, the present appeal deserves to be dismissed and is accordingly dismissed.” There can be no denying it!
By Adv. Sanjeev Sirohi