In a gruesome case of sexual assault of a child with disabilities, iProbono panel lawyer Faraz Maqbool successfully assisted the prosecution to represent Disha*, now 17, before a POCSO Court in New Delhi. The accused, her 23-year-old neighbour, was found guilty of kidnapping and aggravated penetrative sexual assault and was sentenced to 12 years of rigorous imprisonment. The Court also awarded compensation of Rs. 6,00,000 for Disha’s rehabilitation.
Disha, who has acute intellectual and physical disabilities, was abused when she was 11 years old. She had gone out to look for her father when the accused lured her into his house and sexually assaulted her. Disha’s sister witnessed the assault taking place through the window and, with the help of a few neighbours, broke open the door to save her.
Disha described the abuse in detail in her testimony. However, the defense argued that considering Disha’s intellectual disability and the inconsistencies in her statement, her testimony cannot be relied upon. The defense further argued that the medico-legal case (MLC) report, which revealed that the hymen was intact, did not support her claim.
Faraz pointed out to the Court that Disha is a competent witness, that the only inconsistencies in her statements were minor, and that her statements regarding the assault remained consistent. He also argued that it is settled law that the factum of hymen being intact is not a ground to disbelieve the entire testimony. The prosecution was also supported by the statement of a doctor who testified that despite her disabilities, Disha could have been able to understand the wrong that was done to her, and by the testimony of Disha’s sister, who was an eyewitness.
The Court noted that Disha had given a detailed description of the incident and stated that “Her statement aspire (sic) confidence of the Court and her testimony remains unshattered”. On the basis of Disha’s deposition, statements given by other witnesses and the medical record, the Court observed that “Nothing has been stated by the defense as to why the victim should not be believed or why she would falsely implicate the accused. Prosecution has proved the guilt of the accused beyond reasonable doubt. Prosecution has proved that the victim is a minor girl suffering from physical and mental disability who is below the age of 12 years was taken from the lawful guardianship of her parents and she was forced into illicit intercourse and therefore the accused has committed the offense under section 366 IPC, 1860.”
In March 2022, the accused was convicted under Section 376(2)(i) and (l) of IPC and under Section 5(k) and (m) of the POCSO Act and was sentenced to 12 years of rigorous imprisonment.
While deciding the quantum of final compensation, Faraz made submissions to the Court regarding the physical and mental trauma Disha suffered as a result of the incident, that she is scared of entering any room alone and often suffers from fits and seizures. Taking into account these facts and the circumstances, the needs of the child as well as the financial condition of the family, the Court awarded Rs. 6,00,000 as compensation under Delhi Victim Compensation Scheme. This amount will go a long way in Disha’s rehabilitation.
This judgment is important for its discussion of some recurrent issues that frequently emerge during POCSO trials, such as minor inconsistencies in children’s statements, with a particular focus on children with disabilities, and fair analysis of medical records. It reiterated that a cogent statement of a child survivor holds paramount importance and can be the basis of conviction.
*Name changed to protect identity.
 Protection of Children from Sexual Offences (POCSO) Act, 2012
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