While discrediting the ‘tutored’ testimony of a child victim, the Delhi High Court, in the case of Altaf Ahmed @ Rahul v. State (GNCTD of Delhi), held that presumptions u/s 29 POCSO Act applies when the prosecution establishes foundational facts by leading evidence. The presumption was held to be rebuttable by either discrediting the witnesses through cross-examination or by leading defence evidence.
Brief Facts
The present appeal was filed u/s 374(2) r.w. Sec. 383 Cr.P.C. on behalf of the appellant against the judgment dated 30.11.2019 and order on sentence dated 10.12.2019 passed by Special Judge: POCSO Act, Rohini Courts, Delhi.
This judgement and order was passed in respect of an FIR registered u/s 5(m)/6 of the POCSO Act whereby the appellant was convicted for the offence punishable u/s 6 of the POCSO Act. The appellant has been sentenced to undergo RI for a period of 10 years along with payment of fine of Rs.10,000/-, in default whereof to further undergo SI for 30 days.
Case of the Appellant
The Appellant assailed the impugned judgment on the ground that the trial court failed to appreciate that the testimony of the child victim and her mother were not creditworthy as there were material improvements not only in the statements of the child victim but also, her mother Ms. ‘RV’.
Further, it was contended that: the testimony of the child victim was also not creditworthy and admissible as the child victim was tutored and material witnesses were not examined.
It was also the case of the Appellant that there was no medical corroboration in as much as no blood stain or blood spot was observed on the underwear of the child victim during her medical examination.
Case of the State
The APP for the State, on the other hand, supported the impugned judgment. It was contended that the child victim consistently stated about the offence committed by the appellant and that her testimony is both creditworthy and admissible.
It was further submitted that: the statements of the child victim were corroborated by her MLC as during her medical examination, her hymen was found to be partially torn. Lastly, it was submitted that the presumptions u/Ss. 29 and 30 of the POCSO Act were applicable against the appellant which he was unable to rebut.
Reasoning and Decision of the Court
1. Statement of Child and her mother: whether trustworthy?
“A perusal of the statement of the child victim under Section 164 Cr.P.C. and her in-court examination would show that the child victim has slightly improved her version.
The creditworthiness and the admissibility of the statement of child victim and her mother is under challenge not only on the aspect of improvements but also on the aspect of tutoring. It is no longer res integra that the sole testimony of a child victim, before being accepted should be evaluated very carefully. It should be devoid of any embellishment, improvement or tutoring.”
“In the present case, not only there are material improvements in the statements of the child victim and her mother but there are also material contradictions as already observed. Furthermore, the child victim categorically stated that she was told by her mother about what to say in the Court.”
2. Corroboration by MLC
“So far as corroboration in the form of MLC is concerned, it is noted that although the MLC records that the child victim’s hymen was found partially torn but neither any injury nor any blood was noticed either in the vagina or on her clothes.
It was specifically recorded that the child victim had not changed her clothes. Also, no opinion was given as to whether the partial hymen tear was fresh or old. Even as per the FS report, no blood was detected on her clothes.”
3. Presumption u/S 29 of POCSO Act
“So far as the contention by learned APP for the State with respect to presumption under Section 29 of the POCSO Act is concerned, it is no doubt true that in a trial under POCSO Act, the accused is liable to rebut the aforesaid presumptions against him. However, at the same time, for the said presumptions to come into play, the prosecution first has to establish the foundational facts by leading evidence. The presumption is rebuttable by either discrediting the witnesses through cross-examination or by leading defence evidence.”
HELD
Child and her mother’s testimony: not trust worthy
“In light of the above discussion, this Court is of the opinion that the creditworthiness of the testimony of the child victim is in doubt. It cannot be said with certainty that her testimony does not suffer from the vice of tutoring. The testimony of the mother of the child victim is full of material improvements. There is no corroboration in the form of MLC or the FSL. In these circumstances, the appellant’s ‘false implication’ cannot be ruled out.
Resultantly, the appellant is granted benefit of doubt and his appeal is allowed. The impugned judgment and order on sentence, as referred to earlier, are set aside. The appellant is directed to be immediately set free if not required in any other case.”
The appeal was, thus, disposed of in the above terms.
Case Details
Case Name: ALTAF AHMED @ RAHUL v STATE (GNCTD OF DELHI)
Bench: Hon’ble Justice Manoj Kumar Ohri
Date of Decision: December 3, 2020
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