During the hearing of one of the cases in a criminal appeal against the convict under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the Sikkim High Court observed that it is indeed astonishing and unbelievable to consider that a three and half year of child will be able to understand the import of a person touching her private part and how she would be in a state of panic having comprehended that it was a sexual assault.According to the sources, the statement from the court came during the while hearing of a case against the appellant who was convicted by the Special Trial Court conviction under Section 5(m) of the POCSO Act for committing penetrative sexual assault against a three-and-half years old girl. The appellant was found not guilty by the Division Bench of Justice Bhaskar Raj Pradhan and Justice Meenakshi Madan Rai because the prosecution was unable to establish even a remote possibility that the offence had been committed.It is also to be noted that the First Information Report (FIR) in the case was filed when an investigation into another POCSO case involving the appellants sexual assault of a nine-year-old boy, who happens to be the victims brother in this instance, was underway.The court observed that the evidence of the prosecution witnesses was inconsistent and it is not plausible that three-and-a-half years old would comprehend what a sexual assault is.The prosecution was found to have failed to prove its case beyond a reasonable doubt by the court. The prosecution was unable to prove even the likelihood that the crime was committed, in spite of Section 29 of the POCSO Act, which establishes an assumption of guilt for the accused.
