The court held that in sexual assault cases under the POCSO Act, the prosecution must establish foundational facts with credible evidence, and discrepancies in testimonies can undermine a conviction.

JUDGMENT

Vinod Chandran,J.

Forensic and semantics apart, child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused, more so if the accused is a parent; even if he is eventually acquitted. Here we have the case of a child raising such accusation against her father with the active support of the stepmother; sheer instigation by the latter, pleads the accused.

2. The case was scheduled for hearing earlier and on consecutive days there was no appearance. We hence had to direct the State Legal Services Authority to contact the accused to ascertain whether he required legal assistance. The appellant, who was contacted in the prison, gave us the details of the lawyer he engaged. Later Smt.Sajitha R.N. appeared on behalf of the accused and informed us that a more experienced lawyer whom she entrusted the case with, is now unable to appear. Considering the nature of the offence, we thought it fit that an amicus curiae be appointed and we requested Smt.Sai Pooja, who regularly appears before us, to assist the Court. Smt.S.Ambikadevi, Special Government Pleader (Atrocities against Women and Children) appeared for the State.

3. Adv. Sai Pooja argued that the date of the alleged act is not specified and there is delay in reporting the offence. The testimonies were read over to pertinently challenge the versions of PWs.1 and 2, the prosecutrix and her step mother. The discrepancies pointed out creates a serious doubt in any reasonable mind, argues learned Counsel. The prosecution has failed to corroborate the version of the prosecutrix; which is warranted since the discrepancies require such corroboration. The medical evidence is sketchy and there is absolutely no evidence of a penetrative sexual assault. The letter said to have been written first by the stepmother to the class teacher has not been produced despite the Police having seized it. Likewise, the complaint to the Childline is suppressed from the Court. The crime mentioned is only of one instance and both the witnesses do not remember the date. A casual reference to earlier instances was not followed up by the prosecution or deposed by the witnesses. The period spoken of by the witnesses is vague and so are the actions of the accused not clearly stated. What actually occurred is not clear from the evidence of the prosecutrix. It is submitted that there is no injury proved on the genitals of the victim and the testimony of the victim is a tutored testimony. The malafide intention to somehow remove the accused from the house, is clear from the embellishments of PW2. The scene plan does not show two entrances into the house and the incident spoken of differs at every stage. There is nothing to attract the POCSO Act. The foundational facts required to be proved are the age and the penetrative sexual act, which the prosecution has miserably failed to prove.

4. The learned amicus curiae would rely on the following decisions: Santosh Prasad @ Santosh Kumar v. State of Bihar [ (2020) 3 SCC 443 ] held that when there are material contradictions in the evidence of the prosecutrix and when there is delay in lodging the FIR, a conviction cannot be entered. Kappinaiah v. Emperor [AIR 1931 Madras 233] found a statement made of ravishment, immediately after the incident, not to be part of res gestae and inadmissible under Sec.6. In Royson v. State of Kerala [2017 KHC 1056] suppression of material facts in the FIR was declared to be very serious and fatal. In Justin @ Renjith v. Union of India & Others [2020 (6) KHC 546] a learned Single Judge of this Court held that the prosecution is not absolved of its duty to establish foundational facts merely by reason of the presumption cast on the accused by S.29 & 30 of the POCSO Act. Adv.Sajitha argued that the prosecution miserably failed to prove the charges and the guilt of the accused has not been brought home, beyond all reasonable doubt. The first information is in three installments - one by