THE HON'BLE SMT JUSTICE K. SUJANA
CRIMINAL APPEAL No.115 of 2020
JUDGMENT:
Aggrieved by the Judgment dated 05.02.2020 passed by the learned I Additional Metropolitan Sessions Judge-cum-Special Judge for trial of Cases under Protection of Children from Sexual Offences Act, Hyderabad in S.C.P.C.S.No.30 of 2019, the present Criminal Appeal is filed.
2. Heard Sri Apurva M Gokhale, learned counsel appearing on behalf of the appellant as well as Smt. Shalini Sakena, learned Assistant Public Prosecutor appearing on behalf of the respondent.
3. The trial Court convicted and sentenced the appellant/accused for the offence punishable under Sections 354- A and 506 of the Indian Penal Code, 1860 (for short 'the IPC') and Section 9(m) read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act') and he was imposed seven years rigorous imprisonment and to pay fine of Rs.1,000/- and in default of payment of fine amount, he has to undergo simple imprisonment for a period of three (3) months for the offence punishable under Section 506 of IPC.
4. Aggrieved by the said conviction and sentence, the present appeal is preferred by the appellant stating that the Judgment of 2 SKS,J Crl.A.No.115 of 2020 the learned Sessions Judge is contrary to the evidence on record and the learned Sessions Judge erred in convicting the appellant under Section 9(m) read with Section 10 of the POCSO Act even though there are several discrepancies in the statement of the witnesses. The learned Sessions Judge erred relying upon the evidence of the victim where it is evident that the witness/P.W.1 has been tutored which is evident from her admission and demeanour. The opinion of the doctor is also not conclusive to state that there is possibility of sexual assault, as such, the same cannot be read against the accused. The case of the prosecution itself was highly improbable. Therefore, prayed the Court to set aside the judgment.
5. Learned counsel for the appellant submitted that the evidence on record is not sufficient to prove the guilt of the accused. The scene of offence itself is not proper and there is delay of registering the case and P.W.3 is the interested witness. The statement of the victim was recorded after arrest of the accused, and thereafter, registered the case which is against the settled principles of law. There are several contradictions in the evidence of the victim and she was examined two (2) months after the incident. Therefore, there are several lapses in prosecution case. As such, he prayed the Court to set aside the impugned judgment and acquit the appellant by allowing the appeal. 3
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6. On the other hand, learned Assistant Public Prosecutor would submit that the prosecution proved the evidence beyond the reasonable doubt. The offence alleged is heinous in nature and victim is of 5 ½ years old girl and the statement of the victim is recorded after two (2) months of the incident and therefore, minor discrepancies cannot be taken into consideration in these type of cases. The evidence on record is sufficient to prove the guilt of the accused. Therefore, there are no infirmities in the judgment passed by the trial Court and there are no merits in the appeal and the same is liable to be dismissed.
7. The facts of the case are that on 02.04.2018 at about 6:15PM., P.W.1 lodged a complaint to the police stating that she is having a son aged about 10 years and a daughter, who is the victim, aged about 5 ½ years studying first class and in their opposite house, one person by name Ashok/accused is staying since 10 years with his wife Asmitha, who is a teacher and that her daughter/PW2 is going to tuition since three (3) years prior to the incident and on 02.04.2018 at about 02:00 P.M., when her daughter went to a shop near their house, the said Ashok/accused called her daughter on the pretext of providing her food and took her into his bed room and made her to sit on his thighs, removed her underwear and touched her private parts with his right hand index finger and rubbed for two minutes. Due to which, her 4 SKS,J Crl.A.No.115 of 2020 daughter sustained severe pain and asked him to leave her. For which, he threatened her not to tell her parents and sent her away. At about 2:15 P.M., her daughter/P.W.2 came home and informed her/P.W.1 about pain in her private parts and on enquiry, P.W.2 revealed the above facts. Hence, she requested to take necessary action against the said Ashok/accused as per law.
8. Basing on the above complaint, a case in Crime No.86 of 2018 was registered by the concerned police and charge sheet was filed against the accused for the offence punishable under Sections 354, 354-A and 506 of the IPC and Section 9 read with Section 10 of the POCSO Act.
9. To prove the case of the prosecution, they examined P.Ws.1 to 11 and got marked Exs.P1 to P9. Basing on the evidence on record and after hearing both sides, the learned Sessions Judge convicted the appellant as stated supra.
10. Now the point for consideration is whether the judgment of trial Court needs any interference?
11. To prove the offence, the evidence on record is P.W.1 the complainant and mother of P.W.2 and she deposed about the incident and gave complaint to the police. P.W.2 is the crucial witness. She is the victim and her evidence is that she knows the accused and she used to go to the house of the accused to take 5 SKS,J Crl.A.No.115 of 2020 tuition from the wife of the accused. While she was in first class, on one day, in the afternoon hours, she went to shop which was opposite to their house to purchase polo rings and at that time, the accused called her to his house and she returned home after 15 minutes. When the mother noticed that the victim girl is nervous and she enquired, she did not disclose anything and told that the accused asked her not to disclose to anyone and on her further enquiry, the victim disclosed to her mother that the accused took her into his house, bolted the door, made her to sit on his lap and put his finger in her private part, on that she informed the matter to her family members and thereafter, she lodged a complaint. Victim girl also deposed the same.
12. P.W.3 is the father of the victim girl and he deposed on the same lines of P.Ws.1 and 2. He further deposed that he received a phone call on the date of incident from P.W.1 asking him to come home immediately and when he came to his house, he came to know about the incident. In cross examination of P.W.3, he denied the suggestion that no incident was occurred as alleged and no sexual assault was happened. He also denied that false case filed against the accused due to the disputes with his family with regard to the tuition fee.
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13. P.W.4 is the circumstantial witness. She deposed that on the date of incident, she saw the victim girl going to the house of the accused and after few minutes, she saw the victim girl coming out of the house of the accused. After sometime, she heard cries of P.W.1 and on enquiry she informed that the accused misbehaved with her daughter. In cross-examination, P.W.4 deposed that she borrowed Rs.10,000/- from the wife of the accused through a friend and there were disputes with the family of the accused in this regard. She also denied that the house of the accused is not visible from her house.
14. P.Ws.5 and 8 are the panch witnesses for scene of offence conducted by the police. P.W.6 is the lady Police Constable, who recorded the statement of the P.W.1 and handed over the same to P.W.11. P.W.7 recorded the statement of victim girl at Barosa centre. P.W.9 is the Medical Officer who examined the victim girl on 03.05.2018 and gave report that there is a possibility of sexual assault. P.W.10 is the Investigating Officer who deposed about the investigation done by him. P.W.11 took over the investigation from P.W.10 and filed charge sheet. Basing on the above evidence, accused was convicted.
15. The contention of the learned counsel for the appellant is that there is a delay in lodging the complaint and issuance of FIR. 7
SKS,J Crl.A.No.115 of 2020 As seen from the record, the incident took place at about 02:00 P.M. and complaint was lodged at about 06:15 P.M., there is a four hours delay. Admittedly, the police station is within 200 meters from the incident. This delay can be taken into consideration in any other offence but this is an offence against the girl child who is aged about 5 ½ years and this offence is heinous in nature.
16. On the other hand, the learned Assistant Public Prosecutor submits that the delay of four hours is not fatal to the prosecution case. It affects the honor and career of the child. Therefore, the delay in four hours cannot be taken into consideration when the evidence is laid in these types of offences.
17. Secondly, the contention of the learned counsel for the appellant is that according to the victim, the scene of offence is a Pan shop, whereas Investigating Officer deposed that it is a Kirana shop. Though there are discrepancies with regard to the shop, the victim girl went to purchase polo rings in the shop opposite to her house and such discrepancies cannot be taken into consideration. He further submitted that the owner of the shop was not examined. If the offence is committed by the accused and the victim told the same to her mother, in these types of offences, there may not be eye witness to prove the offence. As such, there is no force in the contention of the appellant. The further contention of the learned 8 SKS,J Crl.A.No.115 of 2020 counsel for the appellant is that the evidence on record is demeanor of victim, which itself shows that the victim is tutored.
18. Going through the evidence of P.W.2, who is the victim girl, she identified the accused through video linkage and she deposed that she is going to the accused house to take tuitions with the wife of accused. The tuition teacher name is Asmitha. At the time of incident, she was in first class and she went to purchase polo rings to a shop which was opposite to their house. The learned Sessions Judge recorded the demeanor stating that the victim girl is silent for a long time and appears to be little fear and confusion on repeatedly asking her as to if anything happened, then she gave the answer which itself shows that the girl is not tutored. If really she is tutored, she may not be silent for such a long time. As such, the contention of learned counsel for the appellant is having no force. Therefore, the same may not be considered.
19. The further contention of learned counsel for the appellant is that as per Section 24 of POCSO Act, statement of the victim has to be recorded at her home or at the place of choice of the victim. Whereas in the present case, the statement of the victim was recorded in Barosa center, as such, there is a clear violation of Section 24 of the POCSO Act. The Barosa centre is run by the police wherein they created the atmosphere of child friendly 9 SKS,J Crl.A.No.115 of 2020 atmosphere. They recorded the statement of girl child in Barosa center, which is not fatal to the prosecution. Moreover, Section 24 of POCSO Act is to facilitate the victim and nowhere will it produce the accused for recording of the statement in Barosa center. Therefore, the contention of the learned counsel for the appellant has no force.
20. Further, contention of learned counsel for the appellant is that the victim deposed about the Mena Aunty. The said Mena was not examined by the prosecution. Whereas the prosecution case said that Mena is the shop owner and Malathi is eye witness, who was examined in the Court.
21. Learned counsel for the appellant further contended that the victim was examined by the Medical Officer after two (2) months after the incident. According to Section 164-A of Cr.P.C., victim has to be examined within 24 hours of the offence, whereas, in the present case, it is not a sexual intercourse, but it is a sexual assault. Therefore, examination of witness after two (2) months is not fatal to the prosecution case, as it is only sexual assault. Therefore, there is no force in the contention of the appellant.
22. Making his submission, learned counsel for the appellant/accused relied upon the decision of the Hon'ble Apex 10 SKS,J Crl.A.No.115 of 2020 Court in "K. Venkateshwarlu vs. State of Andhra Pradesh 1" wherein the Hon'ble the Supreme Court dealing with the aspect at paragraph Nos.9 and 11 of the Judgment held as follows:
"9. Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to close scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it.
11. Having perused the evidence of all the witnesses, we find it difficult to rely on them. We feel that the trial Court had rightly discarded their evidence as unworthy of reliance and the High Court erred in taking it into consideration. This, in our opinion, is a case where neither the evidence of the parents of the victim P.W.2 Aruna nor the evidence of P.W.2 Aruna, nor the evidence of the child witnesses, who claim to have witnessed the incident, not the medical evidence supports the prosecution case. Besides, all the pancha witnesses have turned hostile, a fact which we have noted will some anguish. A needle of suspicion does point out to the appellant because he is a police constable and in a small village where the incident took place, witnesses may be scared to depose against him because of his clout. There are certain circumstances which do raise suspicion about the appellant's involvement in the crime. The children were playing on the terrace of the appellant. The appellant was not arrested by the police till 04.09.1998. The demeanor of P.W.2 Aruna, the tears in her eyes, her walking out of the court after looking at the appellant, pricks the judicial 1 (2012) 8 Supreme court Cases 73 11 SKS,J Crl.A.No.115 of 2020 conscience. But convictions cannot be based on suspicion, conjectures and surmises. We are unable to come to a conclusion that the trial Court's judgment is perverse. For want of legal evidence we will have to set aside the appellant's conviction and sentence. But we make it clear that we are doing so only by giving him benefit of doubt."
23. The Supreme Court observed that child witness can be easily tutored either by threat, coercion or inducement. Therefore, the Court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion.
24. In the present case, the evidence of P.W.2 is convincing and cogent and demeanor of the victim recorded by the learned Sessions Judge shows that she was not tutored and she remained silent for sometime after repeated questions and she deposed only about the incident.
25. Learned counsel for the appellant/accused further relied upon the decision of the High Court of Delhi in "Altaf Ahmed vs. State (GNCTD of Delhi) 2" wherein the High Court of Delhi dealing with the aspect at paragraph No.17 of the Judgment held as follows:
"17. At this stage, I deem it apposite to refer to another aspect of the cross-examination of the child victim, wherein she had admitted that before coming to the Court, her mother told her as to what is to be stated in the Court. While answering the Court questions, the child victim also stated that before being taken to the hospital, her mother had told her as to what is to be stated to the doctor. The 2 2021(1)RCR(criminal)296 12 SKS,J Crl.A.No.115 of 2020 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."
26. Learned counsel for the appellant/accused further relied upon the decision of the High Court of Karnataka in "The State of Karnataka and ors. Vs. Shivanaik 3"wherein the High Court of Karnataka dealing with the aspect at paragraph No.27 of the Judgment held as follows:
"27. The testimony of the victim, or the testimony of her mother, are not in consonance with each other's testimony and their testimonies are not corroborated by the medical or other circumstantial evidence. Further, their testimony do not appear natural or trustworthy in view of the material infirmities as discussed supra. Therefore, it cannot be concluded that the prosecution has been able to establish all the ingrediants or segments of its case to bring the culpability. In addition, the improvements in the testimony of the victim's mother, the categorical medical evidence about the lack of any injury to the victim, a very fragile and unsubstantiated explanation for the delay in lodging the complaint and the victim's testimony in complete tandem with her statement recorded under Section 162 Cr.P.C., indicates that the victim's testimony could be alacritous testimony, and therefore, tutored and influenced."
27. The High Court of Karnataka observed that the testimony of the victim or the testimony of her mother are not in consonance with each other's testimony and their testimonies are not corroborated by the Medical Officer or other circumstantial evidence.
3 Crl.A.Nos.100219 of 2014 & 100275 of 2017 13 SKS,J Crl.A.No.115 of 2020
28. In the present case, the evidence of P.Ws.1 and 2 is corroborated with each other. Further, for the offences punishable under Section 376 of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012, the evidence of victim itself is sufficient. It does not need corroboration of the testimony. In the present case, P.Ws.1 and 2 evidence is corroborating with each other.
29. Learned counsel for the appellant/accused further relied upon the decision of the Supreme Court in "Sham Singh vs. State of Haryana" 4 wherein the Supreme Court dealing with the aspect at paras 23 and 24 of the Judgment held as follows:
"23. The evidence of the victim/prosecutrix and the aunt P.W.10 are unreliable, untrustworthy inasmuch as they are not credible witnesses. Their evidence bristles with contradictions and is full of improbabilities. We cannot resist ourselves to place on record that the prosecution has tried to rope in the appellant merely on assumptions, surmises and conjectures. The story of the prosecution is built on the materials placed on record, which seems to be neither the truth, nor wholly the truth. The findings of the Court below, though concurrent, do not desire the merit of acceptance or approval in our hands with regard to the glaring infirmities and illegalities vitiating them, and the patent errors apparent on the face on record resulting in serious and grave miscarriage of justice to the appellant.
24. We find that the trial court and the High Court have convicted the accused merely on conjectures and surmises. The Courts have come to the conclusion based on assumptions and not on legally acceptable evidence, but such assumptions were not well founded, inasmuch as such assumptions are not corroborated by any reliable evidence. Medical evidence does not support the case of the prosecution relating to offence of rape."4
(2018) 18 Supreme Court Cases 34 14 SKS,J Crl.A.No.115 of 2020
30. In the present case, P.W.1 and P.W.2 evidence is corroborating with each other supporting by P.W.4 evidence. Further, it is a case of sexual assault therefore medical evidence does not have much effect.
31. The contention of the learned counsel for the appellant is that there are disputes between the accused and victim's family. The quarrel between the accused and victims family is due to the tuition fee and he also contended that P.W.4 borrowed an amount of Rs.10,000/- from the accused and not paid the amount and that they filed a false case, which is baseless allegation, against the accused. No parent will give a false complaint against the person alleging such a heinous allegation against the accused at the cost of reputation of their daughter.
32. In the light of the said submission, it is relevant to extract Sections 29 and 30 of the Protection of Children from Sexual Offences Act, 2012 which is held as follows:-
"29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5 and 7 and Section 9 of this Act, the Special court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
30. Presumption of Culpable mental state - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.15
SKS,J Crl.A.No.115 of 2020 (2) for the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability."
33. There is no reason to depose against the accused by the victim girl. Therefore, the defence of the accused is not tenable. Further, the counsel for the appellant mentioned about the Section 30 of POCSO Act and his contention is that Section 30 (2) wherein it is stated for the purpose of the fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely preponderance of probability. In Section 29 of POCSO Act, there is a presumption as to certain offence where a person is committed or abetted commission of offence under Section 3, 5, 7 and 9 of POCSO Act. There is a presumption that as the person has committed or tortured or admitted to commit the offence as the case unless contrary is proved. The evidence of the prosecution proves that the offence against accused beyond reasonable doubt, the evidence of P.W.2 proves the offence against the accused. Therefore, the presumptions can be taken against the accused. As such, there is no force in the contention of the appellant.
34. In view of the above discussion, there are no infirmities in the judgment of the trial Court. There are no merits in the appeal and the appeal is liable to be dismissed. Whereas in view of the submissions made by the appellant, considering the facts and 16 SKS,J Crl.A.No.115 of 2020 circumstances of the case, this Court deems it appropriate to reduce the sentence of imprisonment maintaining the conviction against the appellant for the offence punishable under Sections 354, 354-A and 506 of the IPC and Section 9(m) read with Section 10 of the POCSO Act.
35. IN THE RESULT, the present Criminal Appeal is partly allowed. The sentence imposed on the appellant/Accused in SC.P.C.S.No.30 of 2019, dated 05.02.2020 by the learned I Additional Metropolitan Sessions Judge-cum-Special Judge for Trial of Cases under Protection of Children from Sexual Offences Act, Hyderabad, is reduced to rigorous imprisonment for a period from seven (7) years to five (5) years.
As a sequel, miscellaneous petitions, pending if any, shall stand closed.
______________ K.SUJANA, J DATE:
SAI