The Bombay High Court has reaffirmed that minor inconsistencies in the testimony of a child victim in a POCSO case do not automatically undermine the prosecution’s case, provided the core narrative remains consistent, credible, and corroborated by independent evidence. This judgment reinforces the judiciary’s evolving understanding of child psychology and the unique challenges in prosecuting sexual offences against minors.
Background & Facts
The Dispute
The appellant, Suresh Vithobaji Gabhane, was convicted under Section 3(b) read with Section 4 and Section 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), along with Section 376(AB) and Section 506 of the Indian Penal Code. The victim, a nine-year-old girl, alleged that on 24 December 2019, while playing near a temple in her locality, the appellant pulled her leg, pressed her breasts, inserted his fingers into her vagina and anus, gagged her mouth, and threatened her with death if she disclosed the incident.
Procedural History
The case progressed through the following stages:
- 24 December 2019: Alleged incident occurs.
- 25 December 2019: Victim discloses incident to neighbour Phulabai Wankhade (PW-4), who informs the victim’s mother.
- 25 December 2019: First Information Report (FIR) registered at Police Station Arvi.
- 26 December 2019: Medical examination of victim conducted; medical report (Exh.52) notes limping gait but no visible genital injuries.
- 2020: Special POCSO Court frames charges.
- 6 June 2023: Additional Sessions Judge convicts appellant and sentences him to 10 years for penetrative sexual assault under POCSO, 20 years for aggravated penetrative sexual assault, and 1 year for criminal intimidation.
- 2023: Appeal filed before Bombay High Court under Section 374(2) Cr.P.C.
Relief Sought
The appellant sought acquittal, arguing that the victim’s testimony was unreliable due to omissions, alleged tutoring by her mother, lack of medical corroboration for injuries, and absence of independent eyewitnesses. He also relied on a defence witness claiming he was at work during the incident.
The Legal Issue
The central question was whether minor inconsistencies and omissions in the testimony of a child victim, coupled with the absence of visible physical injuries, are sufficient to cast reasonable doubt and warrant acquittal under the POCSO Act, particularly when the testimony is consistent with the first disclosure and corroborated by medical and circumstantial evidence.
Arguments Presented
For the Appellant
The appellant’s counsel contended that:
- The victim’s testimony contained material omissions, such as not mentioning being bitten or the presence of other children during the incident.
- The victim admitted to being tutored by her mother before testifying before the Magistrate.
- The medical report did not confirm injuries to the genital area or bite marks on the appellant’s hand, undermining the victim’s account.
- The defence witness testified that the appellant was working on the day of the incident, and the prosecution failed to rebut this.
- The prosecution did not examine witnesses to prove the authenticity of the victim’s birth certificate (Exh.57-58), though age was not formally disputed.
For the Respondent/State
The State and the victim’s counsel argued that:
- The victim’s testimony was consistent in its core details across statements and during cross-examination.
- Minor inconsistencies are natural in child witnesses due to trauma, age, and time lapse.
- The victim’s demeanor - crying during cross-examination - was consistent with a traumatized child.
- The first disclosure to Phulabai Wankhade (PW-4) was spontaneous and corroborated the victim’s account.
- The medical evidence of limping gait corroborated the victim’s claim of physical trauma.
- The absence of visible injuries does not negate sexual assault, especially in cases involving digital penetration.
- The defence witness lacked documentary proof and was an interested party.
The Court's Analysis
The Court undertook a meticulous evaluation of the evidence, emphasizing the unique nature of child testimony in POCSO cases. It held that Section 29 of the POCSO Act creates a rebuttable presumption of guilt once the prosecution establishes the victim’s age and the occurrence of the act. The burden then shifts to the accused to prove innocence.
"Being a child witness, some minor inconsistencies are not fatal. The evidence of the victim shows that her evidence in respect of the incident was consistent with her previous statement."
The Court noted that while the victim admitted to being tutored before her Magistrate statement, she had earlier denied it, and the admission did not invalidate her entire testimony. The Court emphasized that tutoring does not equate to fabrication, especially when the core narrative remains unchanged.
The Court distinguished between material contradictions and minor omissions. The victim’s failure to mention being bitten or the presence of other children during initial testimony was explained as fear and trauma, not falsehood. The Court relied on State of Maharashtra v. Suresh and State of U.P. v. Suresh to affirm that the law does not demand perfection from child witnesses.
The medical evidence, though lacking visible injuries, corroborated the victim’s claim of physical distress through the documented limping gait. The Court held that absence of injuries is not fatal in cases of digital penetration, particularly where the victim is young and the assault brief.
The Court rejected the defence witness’s testimony as uncorroborated and lacking documentary support. The appellant failed to rebut the presumption under Section 29 POCSO Act.
The spot panchnama corroborated the location of the incident, and the first disclosure to PW-4 was consistent with the victim’s account, satisfying the legal requirement of prompt disclosure.
The Verdict
The appellant’s appeal was dismissed. The Court upheld the conviction and sentence under the POCSO Act, holding that the prosecution proved the offence beyond reasonable doubt. The Court affirmed that minor inconsistencies in a child victim’s testimony, when explained and corroborated, do not invalidate the prosecution’s case.
What This Means For Similar Cases
Child Testimony Is Not Held to Adult Standards
- Practitioners must argue that natural variations in recall, fear, and trauma are inherent in child witnesses and cannot be weaponized to discredit testimony.
- Courts must evaluate child testimony through the lens of developmental psychology, not rigid evidentiary norms.
- Cross-examination should not be used to trap children into contradictions over trivial details.
Medical Evidence Is Not the Sole Arbiter of Credibility
- Absence of visible injuries, especially in cases of digital penetration or non-physical force, cannot be grounds for acquittal.
- Corroboration through behavioral indicators (e.g., limping, emotional distress, delayed disclosure) is legally sufficient.
- Medical reports must be interpreted in context, not as binary proof of assault.
Defence of Alibi Must Be Documented
- Unsubstantiated alibi claims by unregistered employers or oral testimony without pay slips, attendance records, or witness corroboration will not rebut the presumption under Section 29 POCSO Act.
- Practitioners must advise clients to secure documentary evidence for alibi claims in POCSO cases.
- Failure to produce such evidence will be fatal to the defence.
