Hardev Singh vs Ut Of J&K And Another
2022 Latest Caselaw 96 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                             Crl. A (S) No.08/2020
                                             CrlM Nos. 1236 & 1237 of 2021


                                              Reserved on: 04.12.2021
                                              Pronounced on: 07 .02.2022


Hardev Singh                                                    ...Appellant(s)




             Through: - Mr. Sunil Sethi, Sr. Advocate with
                           Mr. Waheed Choudhary, Advocate.
      Vs.

UT of J&K and another
...Respondent(s)

             Through: - Mr. Bhanu Jasrotia, GA.

CORAM:
      HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.

                           JUDGEMENT

1. This Criminal Appeal is directed against the judgment of conviction

dated 28.02.2020 and order of sentence dated 28.02.2020 passed by the

learned Principal Sessions Judge, Rajouri ( „the trial Court‟) in Criminal

Challan File No. 171/Session titled State of J&K vs. Hardev Singh, whereby

the appellant Hardev Singh has been convicted for commission of offence

under Section 10 of the Jammu and Kashmir Prevention of Children from

Sexual Violence Ordinance, 2018 ( for short „POCSO‟) and has been

sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.

10,000/-. In the order of sentence it is further provided that in case of default

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of payment of fine, the appellant shall further undergo rigorous

imprisonment for six months.

2. With a view to better appreciate the grounds of challenge urged by

learned senior counsel to assail the judgment of conviction and order of

sentence, it would be necessary to give brief resume of the prosecution case,

as was put up before the trial Court.

3. As per prosecution story, the complainant Shaheen Akhter (PW1)

submitted an application on 22.06.2018 in the Police Station Kandi, making

allegations of molestation of her minor daughter by the appellant. It was

averred in the application that complainant‟s husband had gone to Kuwait

for labour work. Her daughter, the victim, is studying in Class IV in Primary

School Kotranka. On the fateful day i.e. 22.06.2018 the victim had gone to

the school as usual but did not return up to 2.30 P.M whereas other students

had come back from the school. Due to this reason, the complainant went to

the school and found that the victim was in the ground weeping and coming

towards the house. The complainant asked victim the reason for weeping.

The victim told the complainant that her teacher, Hardev Singh, after the

school time was over, allowed all other students to leave the school but kept

her inside by catching hold of her breast. She was let out only when she

raised hue and cry. It was prayed in the application that since the victim was

a child and the appellant-teacher had committed offence of outraging her

modesty as such action under law be taken against him.

4. On the basis of this written application submitted by the mother of the

victim, FIR No. 71/2018 for offence under Section 354-A/341 RPC and

Section 9 POCSO was registered in the Police Station Kandi. The

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investigation was entrusted to ASI Nazir Husain, who, during the course of

investigation, visited the spot, prepared the site plan and recorded the

statements of the witnesses under Section 161 Cr.P.C. He also obtained the

date of birth certificate of the victim from Government Primary School

Kotranka and found that the victim was only 8 years old. Subsequently the

Investigating Officer also got the statement of the victim and the

complainant recorded under Section 164 Cr.P.C. The investigating officer

completed the investigation and found the offences under Section 354-A/341

RPC and Section 9 of the POCSO established against the appellant and

accordingly presented the final report in the Court on 02.08.2018.

5. The trial Court took cognizance of the complaint and after hearing the

prosecution and the defence framed charges under Section 354-A, 341 RPC

and Section 9 of the POCSO vide its order dated 10.08.2018.

6. As is apparent from perusal of order dated 10.08.2018, the charge was

framed primarily on the basis that the evidence collected by the prosecution

which prima facie established that the appellant had inappropriately touched

the breast of the minor and, therefore, committed offence under Section 354-

A of the RPC. The trial Court was also of the opinion that the appellant

being a teacher and guardian of the minor during school hours had also

prima facie committed offence under Section 9 of the POCSO.

7. Be that as it may, after framing of the charge, the trial Court called

upon the prosecution to commence its evidence. The prosecution examined

seven out of eight listed witnesses. The evidence of the prosecution was

closed on 27.10.2018 and on 02.11.2018 the statement of the appellant under

Section 342 Cr.P.C was recorded. The matter was heard by the trial Court

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under Section 273 Cr.P.C and since it was not found a case of no evidence,

the appellant was given liberty to lead his evidence. The appellant also

produced seven witnesses in his defence. On 15.03.2019 the defence

evidence was closed and the matter was posted for final hearing.

8. The trial Court, after having regard to the arguments advanced at the

Bar and having perused the material on record, came to the conclusion that

prosecution had failed to prove the charge of Section 341 RPC but had

proved beyond any reasonable doubt the offence under Section 10 of the

POCSO. Consequently vide judgment impugned dated 28.02.2020 the

appellant was convicted and on the same date, after hearing both sides on

sentence, the appellant was imposed the sentence of rigorous imprisonment

for ten years and a fine of Rs. 10,000/-. It was further provided that in case

of failure to deposit the fine, the appellant would further undergo rigorous

imprisonment for six months. It is this judgment of conviction and order of

sentence passed by the trial Court which is assailed in this appeal before this

Court.

9. Mr. Sunil Sethi, learned senior counsel appearing for the appellant has

attacked the impugned judgment and order inter alia on the following

grounds:-

(a) That the original story, as projected in the FIR and which was

subject matter of investigation, has been subsequently changed during

the trial and in this way the prosecution has suppressed the genesis of

the crime.

(b) That in the original story, the complainant has claimed that she

came to know about the alleged incident when she visited the school

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on finding that her daughter, the victim, had not returned whereas

other students had come back from the school. During trial the place,

where the complainant met the victim, has been changed. During her

examination in the trial Court the complainant has stated that she

heard the cries of her daughter and then went to the school where she

met the victim on the way.

(c) That as per the allegations in the FIR, which was registered

pursuant to a written application submitted by the complainant, the

allegation was that the appellant had touched the breast of the victim

but during the course of the trial the said story was entirely changed

and instead it was stated that the appellant had inserted his hand in the

Shalwar of the victim.

(d) That in view of highly contradictory nature of evidence on

record, it was not safe for the trial Court to convict the appellant. The

trial Court also did not appreciate that the alleged incident, as per

prosecution, had taken place in the school where there were other

students, teachers and the staff present but the prosecution did not cite

any of them as witnesses except PW Ruksana, a minor student, who

came to be declared as hostile by the prosecution during the trial.

(e) That, interestingly, the witnesses to the incident are alleged

victim, her sister, complainant and relatives and their version is so

contradictory in nature that the trial Court could not have relied upon

the same, particularly, in view of clear defence of false implication of

the appellant at the behest of PW Mohd Shabir having been fully

established by leading defence evidence.

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(f) That the Investigating Officer has himself admitted that the

alleged incident of appellant, putting his hand inside the Shalwar of

the victim, was not alleged in the original story nor the same was

made subject matter of investigation. The allegation was later on

introduced to pad up the prosecution story.

(g) That the defence raised by the appellant was not only probable

but was fully substantiated and corroborated by the defence witnesses

and, therefore, it was not correct on the part of the trial Court to ignore

the defence and accept highly contradictory versions of the

prosecution witnesses.

10. These, in a nut shell, are the arguments raised by Mr. Sunil Sethi,

learned senior counsel, to assail the impugned judgment and order passed by

the trial Court.

11. Per contra, Mr. Bhanu Jasrotia, learned GA, appearing for the

respondents submits that the evidence led by the prosecution is cogent and

sufficiently implicates the appellant with the offence under Section 9 of the

POCSO. He argues that minor contradictions here and there, which do not

put any dent on the credibility of the prosecution story, are required to be

ignored. The genesis of the crime has been proved beyond any reasonable

doubt. The statement of the complainant, the victim and her sister are natural

and clearly point to the guilt of the appellant. The minor contradictions in

the statements, or for that matter, some exaggerations in the statements of

the witnesses with regard to such incidents are natural and bound to occur

and unless such contradictions impinge upon the credibility of the witnesses,

the same are required to be ignored. This is exactly what has been done by

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the trial Court. He argues that appellant was a teacher in the school and,

therefore, guardian of the minor during the school hours. Commission of

offence by a person in fiduciary relationship or in the position of a trustee is

highly condemnable and, therefore, severely punishable under Section 10 of

the POCSO. He, therefore, prays for the dismissal of the appeal and

upholding of the order of conviction and sentence.

12. Having heard learned counsel for the parties and perused the material

on record it is necessary to first set out the relevant extract of the statements

of the material witnesses examined by the prosecution as well as the

defence.

Prosecution Witnesses:

13. PW1 Shaheen Akhter: She was examined by the trial Court on

28.08.2018. In her examination-in-chief she has stated that she does not

know the appellant accused present in the Court. It was a friday and she was

at her home where she heard the cries of her daughter Adina. She ran half

way where she met both her daughters, Adina and the victim. On enquiry,

the victim narrated that her teacher, after closing the door of the class room,

inserted his hand inside her Shalwar. She raised cries due to which other girl

students also raised cries. On this happening, the teacher opened the door.

She got an application written and submitted the same before the Police

Station. The witness proved the application exhibited as EXTP 1/1 and

admitted its contents. She also admitted the contents of her statement

recorded under Section 164 Cr.P.C as correct. In cross-examination by the

defence counsel, she has submitted that she has six daughters and two sons.

Her husband has been in Saudi Arabia for the last six years. Her husband has

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three brothers, namely, Shafiq Dar, Hanief Dar and Majid Dar, who are

residing in her neighbourhood. PW6, Shabir Ahmad, is also an elder brother

of her husband in relation. On being asked, she has also stated that Aslam is

the Numberdar of her village but she does not know the name of the

Chowkidar. She admits that she did not inform the Numberdar or Chowkidar

regarding the incident. She also admits that during those days the school

timings was from 9 A.M to 3 P.M. On being questioned, she further submits

that she did not go to the Police Station on the same day before 4 P.M. She

also states that her statement was not recorded by the police on the date she

visited the Police Station. Her first statement was recorded by the Court. She

has also admitted that right from the date of occurrence till her statement

was recorded under Section 164 Cr.P.C, she did not narrate to anybody that

the appellant had caught hold of the hand of the victim and put his hand in

her Shalwar. She also admits in her cross examination that Razia is the cook

of the school and that it takes five minutes on foot to reach the school from

the house of Razia. She claims that she has never met Razia. The witness

also states that the victim was accompanying her when she went to the

Police Station for lodging the report, where the statement of the victim was

recorded by the police on that date. She further deposes that she is not an eye

witness of the incident and has stated what was narrated to her by the victim.

The witness has denied the suggestion of the defence that the application,

which was submitted by her for lodging of FIR, was written at the instance

of police. She, however, states that she got the application written at a shop

situated in the market of Koteranka. This is in a nutshell the deposition of

the complainant.

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14. PW2, the child victim, who was examined by the trial Court on

18.08.2018 after declaring her competent to depose, during her examination-

in-chief narrates that she knows the appellant present behind the screen. He

is her school teacher. The occurrence took place on 22.06.2018 on friday

when the school time was over. The appellant sent the other students one by

one from the class room but restrained her inside the class room. She was

gathering her books in the class room to go home but the teacher came there

and closed the door from inside. He pulled her from her arm as a result of

which the school bag fell on ground. During this period the appellant put his

hand in her Shalwar. She raised hue and cry as a result of which her sister

Adina and other girl Ruksana also cried from outside and the teacher opened

the door and she came out. She thereafter went to her house with her sister

and narrated the occurrence to her mother. Her statement was recorded in the

Court which is correct and bears her signatures. During cross-examination

by the defence, she states that they are five brothers and sisters. Her elder

sister Safina is a dropout of 10th Class. There are houses of her uncles and

cousin near her house. It takes six minutes to reach school from their house.

There are about 50 students in the school. Besides the appellant there are

also two lady teachers. Mid-day meal is served to the students in the school

which is prepared by a cook, namely, Razia. She further deposes that behind

the school, there are some houses and the surrounding area of the school is

open. The school consists of two rooms. The school timing in those days

was from 9 A.M to 3 P.M. There is a thoroughfare outside the school and the

school does not have any fencing wall. She also states that it takes only half

a minute to reach the house of Razia from the school and the rooms of the

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school are visible from the thoroughfare. On being asked, she submits that

there are only 7 students, namely, Ruksana, Saima, Shahnaz, Asia, Somia

and Razak, besides her, in her class. On the date of occurrence only half of

the students of her class, namely, Ruksana, Razak, Asia and she were

present. She further deposes that half of the students of Class I, II, III and V

too were present on the date of occurrence and their classes were in another

class room. She reiterates during her cross examination that after the

occurrence she went home and narrated the incident to her mother and told

her that the appellant had put his hand in her Shalwar and threatened her to

come to school on the next day by referring her as "kharkania Bujnia". She

has also admitted during her cross examination that when she visited the

Police Station along with her mother, she was enquired by the police with

regard to the occurrence and she narrated the same to the police. She further

admits that she was all along available at the home till her statement was

recorded under Section 164 Cr.P.C. She, however, submits that she was

brought to the Court for recording statement by the police but before the

Judge only her mother was present. She has denied the suggestion of the

defence that she deposed before the Court under Section 164 Cr.P.C at the

instance of her mother.

15. PW 3: Adina Dar: She is also a child witness and was examined on

20.08.2018 after she was declared competent by the Court to depose. She

claims that she is student of Class 2 nd in Government Primary School

Kotranka and the victim is her sister. School timing was up to 3 P.M even on

friday. She states that on the date of occurrence when other students were

coming out of the school after school hours, the victim stayed in the class

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and in the meanwhile the appellant closed the door of the room. She was

outside the room and when she heard her sister crying, she too cried. On this,

the appellant opened the door and thereafter she along with her victim sister

returned home. When they were on way, at the water spring her mother met

them. She and her sister, the victim, told their mother regarding the cries and

occurrence. On being cross examined by the defence, she states that it is

correct that they told their mother regarding the crying of the victim at

home. There are only two rooms in the school. Mid-day meal is served to the

students by the lady teacher. Razia is the cook who prepares food in the

school. She further denies the suggestion of the defence that it is Razia who

locks the school after the school hours. She further admitted that there are

2/3 houses situated near the school. She also admits that students of Class 3 rd

and 4th were also sitting in the same class room where the victim was sitting.

She deposes that police did not record her statement and that it is not correct

that she is deposing in the Court at the instructions of her mother.

16. PW4: Ruksana Kouser: She too is a child witness and was examined

by the trial Court after being declared competent to depose. This witness has

not supported the prosecution case and is, therefore, declared hostile. She, in

her deposition, has stated that the appellant and Bilal Ahmad, a student of

Class 5th, had locked the school on the said date. She also states that on the

date of occurrence the school closed at 1 P.M. She has categorically deposed

in her examination-in-chief that when the victim came out of the class room

of the school, she did not tell her that the appellant had outraged her

modesty. With the permission of the Court the Public Prosecutor was

permitted to cross-examine the witness. On being asked by learned PP, the

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witness states that police recorded her statement at her house in presence of

her mother, father and Master Razaq. Her statement was recorded on

23.07.2018 under Section 161 Cr.P.C. She has clarified in her cross-

examination by the PP that it is incorrectly mentioned in her statement

recorded under Section 161 Cr.P.C that the victim was called back by the

appellant to the room from the ground and that she also denies her statement

to the effect that the victim had told her that the accused had caught hold of

her breast. She denies the suggestion of the PP that she is deposing falsely to

save the appellant. To sum up, this witness, who is none other than cousin of

the victim, has not supported the prosecution case.

17. Statement of PW5 is not very relevant and the extract thereof is not

being reproduced. However, PW6, Shabir Ahmad, against whom there is

allegation of defence that it is who at whose instance false and frivolous case

has been registered against the appellant, was examined on 10.10.2018. He

states that on 22.06.2018 at about 2 or 2.30 P.M he heard hue and cry near

the school and went there. He enquired from the victim who deposed that the

appellant had rubbed her breast with hand and also put her hand inside her

Shalwar. He states that victim was weeping where after he went to his home

and the victim went to the police Station. He was subjected to cross-

examination by the defence. In his cross-examination, he states that his own

children are not the students of Primary School Kotranka. He states that

when he reached the spot there were about 8/10 persons including the

mother of the victim already present on the spot. He admits that he was

contesting the Panchayat Elections. He has also stated that he had in his

statement under Section 161 Cr.P.C told the police that the victim had told

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him that the appellant had put his hand in her Shalwar but that is somehow

not recorded by police. He admits that the appellant was BLO in his ward

where he was contesting election. He denies the suggestion of the defence

that it is on the basis of enmity regarding the casting of votes that a false

case has been registered against the appellant. He reiterates that he had

stated before the police that when he reached the spot, the mother of the

victim was near the school but it is not mentioned in his statement recorded

under Section 161 Cr.P.C.

18. PW7, ASI, Nazir Hussain, who has investigated the matter, was

examined by the trial Court on 16.10.2018. In his examination-in-chief he

has briefly given the mode and the manner in which he conducted the

investigation. On being cross-examined by the defence he states that FIR

was lodged at 7.30 P.M on the date of occurrence. He states that the distance

of the Police Station from the Court of Judicial Magistrate First Class,

Kotranka is only 20 feet. He claims that investigation was entrusted to him

on 22.06.2018 at 8.30 P.M and due to darkness he could not visit the spot at

that time. He did not even visit the house of the complainant on that date. He

further submits that due to his busy schedule he could not visit the spot on

the next day morning. He has also admitted that when he reached on spot on

23.06.2018 he enquired from the complainant and the victim orally but did

not record their statements. He also enquired from other students of the

school regarding the occurrence but could not record their statements as the

school time was over. He could not procure the attendance certificates of the

students from the school. He also admits in his cross examination that in the

arrest form the date of arrest of the appellant is not mentioned. He did not

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make enquiry as to who was the scribe of the written complaint. He admits

that in the written complaint filed, there is no mention of the appellant

putting hand in the Shalwar of the victim. He admits that statements of

Adina and Ruksana were recorded after one month of occurrence and in

their statements there is no mention of putting of hand by the appellant in the

Shalwar of the victim. He also admits that there is no mention of putting of

hand in the Shalwar of the victim by the appellant in the statements of PW

Mohd Shafiq and Mohd Shabir. He also admits that there is nothing like

raising alarm by Adina and Ruksana in the statement of the complainant

recorded under Section 164 Cr.P.C but there is a mention that children made

cries. The investigating officer also admits that in his investigation it has not

been proved as to at what time the school was closed on the date of

occurrence. He arrested the appellant on 24.06.2018 from Kotranka Bazar.

This is in a nutshell the prosecution evidence led in the matter.

19. The statement of the appellant was recorded under Section 342

Cr.P.C. The appellant in his statement has stated that prosecution witnesses

are relatives of the uncle of the victim, namely, Shabir Ahmad, who too is a

prosecution witness and the appellant has been involved at his instance in a

false case. He submits that said Shabir Ahmad was contesting Panchayat

elections and he was the BLO in his Ward. He wanted the appellant to

include some non-resident persons in the voter lists, which the appellant

refused. On his refusal to accommodate him said Shabir Ahmad, threatened

the appellant that he would involve him in a false case. He also stated that so

far as the victim was concerned, he was admonishing her only when she

would not do her home work. With a view to substantiate his defence, the

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appellant also led evidence and recorded the statements of DWs Razia

Begum, Mohd Shabir, Mohd Amin, Naseeb Singh, Suba Singh and Bilal

Ahmad. He has also examined DW7 ZEO Sulah Mohd. All the defence

witnesses have supported the defence of the appellant which he had

disclosed while recording his statement under Section 342 Cr.P.C.

20. DW1 Razia Begum, who is cook in the school, has denied any

occurrence having happened on 22.06.2018. She, in her statement deposes

that she was in the school on the said date from 9 A.M to 1 P.M when the

school was closed. She claims that school on the said date was closed by

Bilal Ahmad. Bilal Ahmad too has been examined as defence witness and he

has supported the statement of DW Razia Begum. The defence projected by

the appellant, that it is because of his enmity with Mohd Shabir in

connection with Panchayat elections, is also supported and proved by the

defence witnesses. Bilal Ahmad DW6 in his statement has mentioned that on

22.06.2018 he was in the school and he and the victim were sitting in the

same class room. After closing the school, firstly the victim and PW 3 and 4

left the school and thereafter he and his mother, Razia Begum and the

appellant left the school after locking it. He was cross examined by the

prosecution but he firmly stood by his statement. This is in a nut shell the

defence evidence led by the appellant.

21. The trial Court, after appreciating the evidence on record, came to the

conclusion that the prosecution has not been able to prove, by leading any

sufficient evidence, that the appellant had pressed the breast of the victim,

PW2, but has proved beyond reasonable doubt that appellant restrained the

victim in the class room and then put his hand in her Shalwar. The trial

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Court has come to this conclusion on the basis of the statement of the victim,

as corroborated by the statements of PW1, PW3, PW5 and PW6. The trial

Court has neither taken note of the contradictions pointed out by the defence

nor has it given any credence to the defence evidence led by the appellant.

22. Undisputedly, as per the first version of the incident, the occurrence

took place on 22.06.2018 in a class room of Government Primary School,

Kotranka. The first version of the incident is contained in an application

submitted by the complainant to the police. It is interesting to note that the

complainant, who got the complaint written by somebody in Kotranka

Bazar, has not disclosed the name of the scribe nor the investigating officer

made any attempt to trace out the scribe.

23. Be that as it is, the complainant in her examination-in-chief has

clearly admitted the contents of the application. This is the first version of

the incident on the basis of which the police registered the FIR and

embarked upon the investigation. It is also pertinent to note that though the

victim was accompanying the complainant, neither the statement of the

complainant nor that of the victim was recorded by the police to substantiate

the contents of the complaint. The victim, in her cross examination, has

stated that her statement was recorded by the police on the date when she

went to the Police Station with the complainant but one would not find any

such statement having been recorded by the police. Rather, the statement of

the victim was, for the first time, recorded before the Judicial Magistrate

First Class under Section 164 Cr.P.C on 06.07.2018. It has also not been

explained by the Investigating Officer as to why it took him almost 14 days

to get the statement of the victim as well as of the complainant recorded by

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the learned Magistrate under Section 164 Cr.P.C, when the Court of learned

Magistrate was only twenty feet away.

24. There is another important aspect to be noticed. It was, for the first

time when the statements under Section 164 Cr.P.C were recorded, the story,

as was projected in the first version i.e. written application, was changed. In

the written complaint the allegation against the appellant was that he had

caught hold of the breast of the victim child, whereas in the subsequent

version in the statement under Section 164 Cr.P.C it was mentioned that the

appellant had put his hand in the Shalwar of the victim. This needs to be

seen as to whether such change in the narrative is only an exaggeration or

embellishment or it is a major contradiction impinging upon the veracity of

story itself.

25. There are more than one versions coming out of the prosecution

evidence even with regard to the place where the victim child narrated the

occurrence to her mother. In the written complaint filed by the complainant

on the basis of which the police registered the FIR, the story projected is that

the complainant when found that other children had returned from school

and her daughter had not come, went towards the school. She found the

victim daughter weeping in the ground and was coming towards the house.

On enquiry she narrated the incident. In her statement recorded before the

trial Court, the complainant states that on the date of occurrence she was at

her home and she heard the cries of her daughter Adina, she ran half way

when she met both her daughters, Adina and the victim. When we look to

the statement of PW3 Adina, the younger sister of the victim, she, in her

statement, has deposed that after the incident she along with her sister, the

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victim, returned home and when they were on way, they met their mother at

the water spring. So far as the statement of the child victim is concerned, her

version is that after the incident happened, she went to her house along with

her sister and narrated the occurrence to her mother. Interestingly we have

also the statement of PW6 Mohd Shabir, who in his statement recorded

before the trial Court has deposed that he also heard the hue and cry near the

school at about 2-2.30 P.M and went there. He claims that he also enquired

from the victim who deposed that the teacher had rubbed her breast with

hand and also put it inside her Shalwar. He further submits that he went to

his home whereas the victim went to the Police Station. It has also come in

his statement that there were eight to ten more persons present there.

Prosecution has not cited any of them as witnesses.

26. There are thus serious contradictions in the manner the version with

regard to the incident has been narrated by the prosecution witnesses, which

makes the story projected by the prosecution highly doubtful. The earlier

version, that the appellant had touched the breast of the victim child was

given a go bye and a story, that he has put his hand in the Shalwar, was

projected. It is because of the evidence on record the trial Court has

concluded that the initial case set out by the prosecution with regard to the

act of the appellant that he has touched breast of the child victim, has not

been established and proved. The trial Court, however, finds the new version

having been proved by the prosecution witnesses. What the trial Court

ignores is the serious contradictions in the statement of the prosecution

witnesses. Even there are different versions with regard to the school timings

and the time of actual closure of the school on the date of occurrence.

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27. It has not been explained by the prosecution as to why the incident,

which allegedly occurred somewhere in the middle of the day, was reported

to the Police late in the evening nor there is any explanation coming forward

as to why FIR was registered at 7.30 P.M, when, as per the statement of PW

Shabir Ahmad, the victim along with the complainant left for the Police

Station from the place of occurrence itself. Even the complainant in her

statement submits that after she got the application written, she went to the

Police Station at about 4 P.M. That apart, when the story was changed, it

was incumbent upon the Investigating officer to find out the scribe of the

application and record his statement to find out as to whether he had written

in the application the matter as was narrated to him by the complainant.

Otherwise also the complainant in her statement recorded before the trial

Court has admitted the contents of the application but has not explained the

change of the prosecution story. The only allegation that was levelled

against the appellant, as per the trial Court, has not been established and the

subsequent story introduced by the witnesses during the trial has been

accepted without any explanation or reason.

28. In the face of such shaky and doubtful evidence on record, it was the

duty of the trial Court to carefully evaluate the defence evidence to find out

as to whether the evidence led by the defence was sufficient enough to

probablise the defence.

29. It has clearly come in the defence evidence, be it in the statement of

Razia Begum or Bilal Ahmad, that they along with the appellant were the

last to come out of the school on the date of occurrence and it was the

student, namely, Bilal Ahmad who closed the school at 1 P.M. Both these

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defence witnesses have denied any occurrence having happened in the

school on the said date. It is not coming forth from the judgment of the trial

Court as to how the defence version proved by the appellant by leading

evidence has not been accepted. Needless to say that the defence evidence is

also required to be given as much importance as is required to be given to

the prosecution evidence. If, on the basis of the evidence led by the defence,

the trial Court finds the defence probable, it would evaluate the evidence of

the prosecution accordingly and find out as to whether the prosecution has

succeeded in establishing the guilt of the accused beyond any reasonable

doubt. The prosecution evidence led is full of contradictions and the

contradictions are such as would seriously corrode the credibility of the

prosecution case. In the face of such shaky, unreliable and highly self

contradictory evidence of the prosecution on record, the trial Court should

have accepted the defence of the appellant.

30. It may be pertinent to take note that the appellant in the instant case

was arrested on 24.06.2018 and has been in incarceration since then though

the prosecution has not been able to establish any case against him beyond

any reasonable doubt.

31. I am aware that if there are no material contradictions or discrepancies

in the testimony of a witness/witnesses, his/their evidence cannot be

disbelieved merely on the basis of some normal, natural or minor

contradictions, inconsistencies or exaggerations. However, distinction is

required to be made between the material contradictions or discrepancies

and the normal/natural contradictions/discrepancies. While minor

contradictions do not corrode the credibility of the prosecution case, but

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material contradictions do so. There is marked difference between the

exaggerated version and a false version. An exaggerated statement contains

both truth and falsity whereas a false statement has no grain in it, being

„opposite‟ of „truth‟. It is well said that to make a mountain out of a molehill,

the molehill should have to exist primarily. A Court of law being mindful of

such distinction is dutiful to disseminate truth from falsehood and sift the

grain from chaff in case of exaggeration. It is only in case where grain and

chaff are so inextricably interwined that in their separation no evidence

survives, that the whole evidence can be discorded.

32. Hon‟ble the Supreme Court in the case of Sunil Kumar Sambhudayal

Gupta v. State of Maharashtra, (2010)13 SCC 657 has brought out this

distinction very beautifully in paragraph Nos. 30 to 35 of the judgment,

which, for facility of reference are reproduced herein below:-

"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152).

31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide : State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106).

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32. The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334).

33. In case, the complainant in the FIR or the witness in his statement under section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide: State Represented by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar, (2008) 15 SCC 440).

34. In State of Rajasthan v. Smt. Kalki & Anr., (1981)2 SCC 752, while dealing with this issue, this Court observed as under ( see P 754, Para 8):

"In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."

35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (see: Syed Ibrahim v.State of A.P., (2006) 10 SCC 601; and Arumugam v. State, (2008) 15 SCC 590)."

33. Viewed thus, on re-evaluation of the evidence on record, I find that

the discrepancies and the contradictions appearing in the evidence of the

prosecution are not normal but material discrepancies which have the effect

of eroding the credibility of the prosecution case. The trial Court has not

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appreciated this aspect and has cursorily and mechanically accepted the

prosecution version as narrated by the prosecution witnesses. The trial Court

has even picked up the single lines from the statement of PW4 Ruksana

Kousar, who has not supported the prosecution case at all, though she was

claimed by the complainant and the child victim present on spot. Picking up

of one line out of context is not permissible. The only statement of PW4

Ruksana Kousar, that the appellant has restrained the victim while other

students were allowed to leave the school, cannot lead to the conclusion that

the victim was restrained for commission of the offence. Her statement is

very specific and categoric that when the child victim came out of the class

and accompanied her to home, she did not narrate to her anything with

regard to the alleged occurrence.

34. I also find no substance in the contention of the learned Government

counsel, that in view of provisions of Section 29 POCSO Act, it was for the

appellant to rebut the presumption of guilt by leading cogent defence

evidence. In this regard let me point out that presumption under Section 29

of POCSO Act is not absolute and it gets triggered only when prosecution is

able to prove the foundational facts in the first place. When we examine the

prosecution evidence, as I have done hereinabove, it clearly comes out that

prosecution has miserably failed to establish foundational facts that may

give rise to presumption of guilt of appellant who is accused of commission

of offence under Section 9 and punishable under Section 10 of the POCSO

Act. The foundational facts are required to be established by the prosecution

by leading evidence beyond any reasonable doubt. The burden on the

accused is not to rebut the presumption beyond reasonable doubt. It is

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sufficient for the accused if he is in a position to create a serious doubt about

veracity of prosecution case. This he can do by preponderance of

probabilities. In the instant case the appellant has led sufficient evidence in

defence which renders the prosecution version highly doubtful and

improbable. [ see Dharampal Singh v. State of Punjab (2010) 9 SCC 608 and

Bhota Singh v. State of Punjab (2011) 11 SCC 653].

35. Be that as it is, I am of the considered view that in view of the major

contradictions pointed out herein above, the prosecution case falls in the

category where the appellant is at least entitled to the benefit of doubt. The

major contradictions appearing in the statements of the prosecution

witnesses and the slipshod manner in which the investigation has been

conducted badly dents the credibility and reliability of the prosecution case.

36. In view of the preceding analysis, I find merit in this appeal. The same

is accordingly allowed. The impugned judgment of conviction as well as the

sentence imposed is set aside and the appellant is acquitted of the charges.

The In-charge Jail concerned shall release the appellant forthwith.

(Sanjeev Kumar) Judge

JAMMU .02.2022 Anil Raina, Addl. Reg/Secy

Whether the order is speaking: Yes Whether the order is reportable: Yes