Assessment of the competency and reliability of a child witness is crucial in cases involving allegations of sexual abuse.

JUDGMENT

1. The Appellant herein has assailed the judgment dtd. 01/04/2019 in POCSO Special Case No.328/2017. By the impugned judgment, the learned Designated Judge under Protection of Children from Sexual Offences (POCSO) Act, 2012, Greater Bombay has held the Appellant guilty of offences punishable under Ss. 354, 354-A r/w. 34 of the Indian Penal Code and Sec. 10 of POCSO Act, 2012. He has been sentenced to undergo rigorous imprisonment for five years with fine of Rs.10,000.00 in default to undergo rigorous imprisonment for one month for offence punishable under sec. 10 of POCSO Act. No separate sentence has been imposed for offences under Sec. 354 and 354-A of the Indian Penal Code.

2. It is the case of the prosecution that the Appellant herein was engaged to paint a room of one Shaikh Mohd. Rafique (PW6). On 11/05/2017, at about 09:30 p.m., the victim (PW2) complained to her mother (PW1) that she was having pain in her private part. On the same night, when PW1 took the victim to the washroom for bath, the victim told her not to apply soap on her private part. Upon inquiry, the victim informed PW1 that when she had gone to the room of PW6 - Shaikh Mohd. Rafique, the painter made her sit on his lap and touched her vagina. She also complained that the other person present in the room had slapped her. Based on the said information given by the victim, PW1 lodged the FIR on 12/05/2017, pursuant to which PW4 - PSI Rahul Baban Kshirsagar registered the crime and referred the victim to KEM Hospital for medical examination. PW5 - PSI Nalini Shankar Shinde recorded the statement of the victim in presence of her mother. PW4 collected the birth certificate of the victim, conducted the scene of offence panchnama, arrested the Appellant and the co-accused under the arrest panchnama at Exhibit 17 and 18 and referred them for medical examination. He recorded statements of the witnesses and filed the charge sheet upon completion of investigation.

3. The charge was framed against the Appellant and the co-accused for offences under Ss. 354, 354-A, 323 r/.w 34 of the Indian Penal Code and Sec. 6 and 10 of POCSO Act. They pleaded not guilty to the charge and claimed to be tried. The prosecution in support of its case examined six witnesses. The statement of the Appellant and the co-accused was recorded under Sec. 313 of Criminal Procedure Code. The defence of the Appellant and the co-accused was of total denial. The learned Special Judge after considering the evidence on record, acquitted the co-accused - Sajid Mirul Hasan Ali and convicted and sentenced the Appellant as stated above. Being aggrieved by the conviction and sentence, the Appellant has preferred this Appeal.

4. Heard Mr. S.P. Singh, learned counsel for the Appellant, Mr. P.H. Gaikwad, learned APP for the State and Ms. Ameeta Kuttikrishnan, learned counsel for Respondent No.2. I have perused the records and considered the submissions advanced by the learned counsel for the respective parties.

5. The case of the prosecution is based mainly on the testimony of the victim girl who at the time of the incident, was barely 04 years of age. It is well settled that 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. Sec. 118 of the Indian Evidence Act, 1872, which deals with competency of a person to testify, provides that -" All persons shall be competent to testify unless Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation .-A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them."

6. In the case of State of Karnataka v/s. Shantappa Madivalappa Galapuji and ors. (2009) 12 SCC 731, the Hon'ble