Isolated Assault Is Not ‘Child Abuse’: Goa Children’s Act Cannot Be Invoked for Every Quarrel: Bombay High Court Sets Aside Conviction under Section 8(2)

“Testimony of Injured Child Has an Inbuilt Guarantee of Truth” – Bombay High Court  confirmed the conviction of the appellant under Section 323 IPC for voluntarily causing hurt to a minor boy, but set aside his conviction under Section 8(2) of the Goa Children’s Act, 2003, holding that the incident was an “isolated quarrel” and did not satisfy the statutory ingredients of ‘child abuse’ as defined under Section 2(m).

Justice Shirsat held that the “ocular testimony of the injured child is wholly reliable and unshaken”, but emphasised that the Goa Children’s Act aims at prosecuting serious, deliberate or exploitative harm, not momentary flare-ups.

The Court remanded the matter to the Trial Court to examine the appellant’s entitlement to probation under Section 4 of the Probation of Offenders Act, 1958, declaring that courts have a mandatory duty to consider probation for first-time offenders when statutory conditions are met.

“Child Abuse Under Goa Act Requires Deliberate Cruelty, Not a One-Off Outburst” – Supreme Court’s Santosh Khajnekar Applied

The prosecution alleged that on 23 February 2015, the appellant assaulted PW1, a minor boy, by slapping and kicking him, chasing him on a Vespa scooter, forcibly taking him to another spot, and hitting him with a coconut stalk (“piddo”).

The mother of the child lodged a delayed complaint—explained by her attending to the child’s pain and household circumstances.

The Children’s Court convicted the appellant under Section 323 IPC and Section 8(2) of the Goa Children’s Act, sentencing him to imprisonment and a fine of ₹1,00,000.

“Injured Witness Comes With an Inbuilt Guarantee of Presence” – Court Reposes Trust in PW1

Re-appreciation of Evidence

Justice Shirsat laid strong emphasis on the reliability of PW1, observing that his testimony was detailed, consistent, and untouched by cross-examination.

The Court quoted the Supreme Court’s settled rule: “The testimony of an injured witness is accorded a special status in law; it carries an inbuilt guarantee of his presence at the scene.”

PW1 identified the appellant, the scooter, and the coconut stalk, and denied suggestions of false implication due to alleged enmity.

Justice Shirsat noted that no contradiction, omission or motive was established to undermine his credibility.

PW2, the mother, corroborated PW1’s injuries and emotional state immediately after the incident.

Although she was not an eyewitness, her testimony was held admissible under Section 6 of the Evidence Act, being part of the res gestae: “Facts so connected with the incident that they form part of the same transaction.”

PW3, the teacher, despite initially wavering about identity, corroborated the core circumstances and later identified the appellant in court.

The Investigating Officer, PW4, proved the panchanama even without the pancha witnesses being examined—a principle endorsed by the Supreme Court in Mallikarjun v. State of Karnataka.

“Ocular Evidence Prevails Unless Medical Evidence Makes It Impossible” – Court Upholds Conviction Under Section 323 IPC

Although the doctor who issued the medical certificate was not examined, Justice Shirsat held that: “Ocular evidence will have primacy over medical evidence unless the latter completely rules out the prosecution case.”

Since the defence never challenged PW1’s injuries in cross-examination, and PW2 offered corroboration, the Court found no basis to discard the prosecution’s case.

The conviction under Section 323 IPC was accordingly affirmed.

“A Sudden Reaction in Heat of the Moment Is Not ‘Child Abuse’” – Goa Children’s Act Conviction Quashed

The Court reproduced and relied heavily on the Supreme Court’s authoritative judgment in Santosh Sahadev Khajnekar v. State of Goa (2023), particularly the observation: “The offence of ‘child abuse’ cannot be attracted to every trivial or isolated incident involving a child… it must involve cruelty, exploitation, deliberate ill-treatment, or conduct intended to cause serious harm.”

Applying this standard, Justice Shirsat held: “This is an isolated incident. Merely because the victim is a child, by itself, cannot be sufficient to constitute an offence under Section 8.”

Even if PW1’s version was accepted in its entirety, the Court concluded that: “The facts do not satisfy the essential ingredients of ‘child abuse’ under Section 2(m).”

Thus, the conviction under Section 8(2) of the Goa Children’s Act was set aside in full.

“Courts Have a Mandatory Duty to Consider Probation for Offenders Under Section 323 IPC”

Justice Shirsat invoked the Supreme Court’s recent ruling in Chellammal v. State (2025), which declared: “Unless excluded, courts have no discretion to omit considering release of the offender on probation; a mandatory duty is cast upon the court.”

Since Section 323 IPC carries a maximum sentence of one year, Section 4 of the Probation of Offenders Act squarely applied.

The Court observed: “All offenders are not dangerous criminals; some surrender to temptation or provocation. The stigma of imprisonment can be avoided through probation in suitable cases.”

Accordingly, the matter was remanded to the Trial Court solely to examine the grant of probation after obtaining a Probation Officer’s report.

Justice Shirsat concluded by declaring that: “The conviction under Section 323 IPC is confirmed… The conviction under Section 8(2) of the Goa Children’s Act is set aside.”

The appellant’s fine was ordered to be refunded, and the case remanded for consideration of probation.

The ruling affirms vital principles:

– the high evidentiary value of injured witnesses,

– the primacy of reliable ocular evidence,

– the limited scope of ‘child abuse’ under the Goa Act, and

– the mandatory judicial duty to consider probation for minor offences.

Date of Decision: 11 November 2025