The Special Court Wanted The Child Backed Up. That Is Not The Law.
An acquittal under the POCSO Act has been reversed, the Division Bench calling the trial judgment perverse and convicting on the lesser offences without ordering a fresh trial.
The Court held the judgment palpably wrong, manifestly erroneous, blatantly illegal and thoroughly perverse. A child found competent to depose needs no corroboration where the evidence contains the ingredients of the offence without improvement or embellishment. The acquittal was set aside and the accused convicted under Sections 7 read with 8, and 9(n) read with 10 — lesser offences, so no fresh trial was needed.
- Competence is tested first, by a preliminary examination to see whether the child understands the sanctity of evidence and the questions.
- Once competent, no corroboration is required — there is no such condition in law.
- Evidence can be separated. An unconvincing part may be set aside and the consistent, untutored remainder believed.
- No de novo trial, because the offences convicted of are lesser than the one charged.
- Court
- High Court at Calcutta, Circuit Bench at Jalpaiguri
- Bench
- Justice HON'BLE JUSTICE ARIJIT BANERJEE, Justice HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS)
- Citation
- CRA No. 34 of 2021
- Case
- CRA No. 34 of 2021
- Decided
- 3 September 2026
- Outcome
- State's appeal allowed; acquittal set aside and accused convicted
The State's complaint about the trial
The State appealed against an acquittal from the charge under Section 6 of the POCSO Act, on the ground that the judgment proceeded on a fundamental misconception of the scheme of the Act.
How a child's evidence is to be treated
Where a child is to be examined, a preliminary examination is conducted by the trial court to ascertain whether the witness is capable of understanding the sanctity of giving evidence and the import of the questions put.
Here the child victim was found competent to depose. There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. If the evidence contains the relevant ingredients of the crime without improvement or embellishment, it requires no corroboration whatsoever.
Further, in order to find out the truth, a part of a witness's statement which is unconvincing or immaterial may be separated from the rest; if the remaining part does not appear tutored, is consistent and inspires confidence, it can be believed and taken into consideration. The Special Judge failed to consider that.
The order
The Court found the judgment palpably wrong, manifestly erroneous, blatantly illegal and thoroughly perverse, and liable to be set aside.
The appeal was allowed and the acquittal set aside. The accused was held guilty under Section 7 read with Section 8, and Section 9(n) read with Section 10, of the POCSO Act. Because these are lesser offences than the one charged under Section 6, there was no need to remit the matter for a fresh trial.
He was directed to surrender before the trial judge within three days, failing which a warrant of arrest is to issue, with the matter reported to the Bench within three days of surrender. The State was directed to produce him on 8 September 2026 for a hearing on sentence, virtually or in person.
Who argued it
Appearances as recorded in the judgment of the Court.
Frequently asked
Must a child's evidence be corroborated?
No. Once the child is found competent, and the evidence contains the ingredients without embellishment, no corroboration is required.
Can an appellate court convict without a retrial?
Yes, where the offences convicted of are lesser than the one charged, as here.
Appearing where a child's testimony is the case
- Ensure the preliminary examination on competence is recorded properly; everything downstream depends on it.
- Resist any submission that corroboration is a precondition — it is not.
- Where parts of the testimony are weak, address them separately rather than conceding the whole.
- Prepare for a sentence hearing on short notice; the conviction and the sentence come at different sittings.
Source. High Court at Calcutta, Circuit Bench at Jalpaiguri, CRA No. 34 of 2021, decided 3 September 2026 by Justice HON'BLE JUSTICE ARIJIT BANERJEE, Justice HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS). This explainer is written from the judgment text as reported.
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