Madras High Court
Sanjana vs State Represented By on 28 April, 2025
Author: M.S.Ramesh
Bench: M.S.Ramesh
Crl.A. Nos.1128 of 2022 & 255 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 17.03.2025
PRONOUNCED ON 28.04.2025
CORAM
THE HONOURABLE MR. JUSTICE M.S.RAMESH
and
THE HONOURABLE MR. JUSTICE N.SENTHILKUMAR
Criminal Appeal Nos.1128 of 2022 and 255 of 2023
and Crl. M.P. No.19507 of 2023
Sanjana ... Appellant in Crl.A. No.1128/2022/A2
Balaji ... Appellant in Crl.A. No.255/2023/A1
Vs.
State represented by
Inspector of Police,
W-25, All Women Police Station,
T. Nagar, Chennai.
(Crime No.6/2019) .. Respondent in both the appeals
Prayer: Criminal Appeals filed under Section 374(2) of the Criminal Procedure
Code against the judgment of the learned Sessions Judge, Special Court for
Exclusive Trial of cases under POCSO Act, 2012, Chennai in Spl. S.C. No.08
of 2020 dated 18.07.2022.
For Appellant in : Mr.R.John Sathyan, Senior Cousel
Crl.A. No.1128/2022 For Mr.Swami Subramanian
For Appellant in
Crl.A.No.255/2023 : Mr.V.Neeranjan
For Respondent in : Mr.S.Raja Kumar
both Crl. Appeals Additional Public Prosecutor
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COMMON JUDGMENT
N.SENTHILKUMAR, J.,
INDEX
Sl.No. Subject Page Nos.
IV Principles on Credibility of child witness 24
Prosecutrix (PW1)
Prosecution Witnesses: (PW1 to PW3)
VII Relevancy of Defence Witnesses and documents 46
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The essence of truth and wisdom in the words of the famous Tamil saint
Thiruvalluvar in the below captioned Thirukkural assumes greater importance:
“vg;bghUs; ahh;ahh;tha;f; nfl;gpDk; mg;bghUs;
bka;g;bghUs; fhz;g jwpt[/”
(jpUts;Sth;)
Translated Version:
"Though things diverse from divers sages' lips we learn
Tis wisdom's part in each the true thing to discern"
(G.U.Pope)
Meaning :
To discern the truth in everything, by whomsoever spoken, is wisdom.
The core principle of our criminal justice system is to uncover the truth behind
the crime committed against the victim while preserving the rights of the
accused.
2. These appeals are filed by the accused A2 and A1, respectively,
challenging the judgment of conviction and sentence passed against them by
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the learned IV Additional District and Sessions Judge, Special Court for
Exclusive Trial of cases under POCSO Act, 2012, Chennai in Spl. S.C. No.08
of 2020 dated 18.07.2022. They were convicted and sentenced as follows:
Sl.
Named of the Accused Conviction and Sentence u/s
No.
1. Sanjana (A2), appellant 1)Section 376(3) r/w 109 of IPC – Life
in Crl.A. No.1128 of imprisonment for the remaining period
2022 of natural life and also a fine of
Rs.50,000/-, in default, to undergo 6
months simple imprisonment;
2)Under Section 366 of IPC -
Sentenced to undergo 10 years
rigorous imprisonment and also
imposed a fine of Rs.10,000/-, in
default, to undergo 3 months simple
imprisonment;
3)Under Section 389 IPC - Sentenced
to undergo 10 years rigorous
imprisonment and also imposed a fine
of Rs.10,000/-, in default, to undergo 3
months simple imprisonment; and
4)Under Section 506(ii) IPC,
Sentenced to undergo 6 months
rigorous imprisonment.
All the sentences shall run
concurrently.
2 Balaji (A1), appellant in 1)Section 376(3) of IPC and under
Crl.A. No.255 of 2023 Section 366 of IPC and Section 4 of
POCO Act, 2012 alternatively under
Section 376(3) of IPC – Life
imprisonment for the remaining period
of natural life and also a fine of
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Rs.50,000/-, in default, to undergo 6
months simple imprisonment; and
2)Under Section 366 of IPC -
Sentenced to undergo 10 years
rigorous imprisonment and also
imposed a fine of Rs.10,000/-, in
default, to undergo 3 months simple
imprisonment;
All the sentences shall run
concurrently.
Introduction:
3. The Sangam Tamil Literature had portrayed women as the
predominant head of the family and the women had played pivotal role in
human relationships as well as in the family administration. Kurunthogai,
Purananuru, Silappathikaram were some among the epics, which had
demonstrated the women’s leadership in this soil and acknowledged their
intellects and predominance in the society. The said literatures would
demonstrate that women had led the entire society and men had no quarrel over
the gender and he did not consider himself to be dominant on the basis of
muscle power. Men had given utmost respect for women.
4. Tamil Nadu is the cradle of countless brave hearts, where the spirit of
freedom was born and nurtured. Thillaiyadi Valliammai, a courageous daughter
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of Tamil Nadu had inspired Mahatma Gandhi in the freedom struggle. This is
the sacred land where women of valour rose in the freedom struggle, and where
the flame of women’s rights was kindled, growing into a beacon of strength and
progress. Protection of women’s rights paved the way for protection of
children’s rights, creating a world where both women and children could thrive
in freedom and dignity.
(a) Evolution of Women and Child Rights:
i.International Conventions:
5. India was a founding member of Geneva Declaration of the Rights of
the Child, 1924 which is the first international convention to address child
rights. Article 4 of the convention is the 1st international principle which urges
the member states to protect the children from all forms of exploitation. Article
25 (2) of the Universal Declaration of Human Rights, proclaimed by UN
General Assembly on 10.12.1948, emphasises that motherhood and childhood
requires special care and assistance. The Declaration of the Rights of the
Child, 1959 adopted by the UN General Assembly on 20 November 1959
focuses on physical and mental wellbeing of the child including recreational
activities and free education. Principle 9 of the declaration covers rights of the
child for protection against all forms of neglect, cruelty and exploitation.
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6. International Covenant on Economic, Social and Cultural Rights,
which was ratified by India on 10.04.1979, also states that children and young
persons should be protected from economic and social exploitation. Under
Article 24 of the International Covenant on Civil and Political Rights, which
was ratified by India on 10.04.1979, every child is entitled to be protected by
the family, society and state. Convention on the Rights of the Child which was
adopted by United Nations General Assembly on 20.11.1989 and ratified by
India on 11.12.1992 is a comprehensive framework which covers wide aspects
of child rights. Under this convention, every human being below the age of 18
years is considered as child. The member countries are duty bound to protect
the child from all forms of sexual exploitation and sexual abuse under Article
34 of the convention.
ii.International Legislations:
a)USA
7. In accordance with the International Conventions on child rights, Title
18 of the U S Code provides for crimes and criminal procedure. Chapter 109A
enlists the sexual offences, under which, sexual abuse of a minor, a ward, or an
individual in Federal custody is punishable with imprisonment for 15 years or
with fine or with both.
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b) Singapore
8. The Children and Young Persons Act provides for welfare, care and
protection of children and young persons as well as the treatment and
rehabilitation of children and young persons who are convicts. Section 8 of the
act ensures that children and young persons are protected from all kinds of
sexual exploitation by prescribing punishments such as 5 years imprisonment
and fine.
9. The Child Care Centres Act, 1988 provides the framework for
regulating childcare centres, ensuring they meet specific standards and
requirements including staff-child ratios, program guidelines, health, nutrition,
safety, teacher qualifications, and parent involvement. The Singapore Penal
Code, 1871 lists out various sexual offences which are strictly punishable under
the Code from sections 375 to 377D including sexual offences against children
such as rape, sexual penetration of minors below 16 years of age, exploitative
sexual penetration of minor of or above 16 years and below 18 years of
age, producing child abuse material, distributing or selling child abuse
material etc.
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c)Japan
10. The Child welfare Act, 1947 seeks to ensure that children are born
and brought up in good mental and physical health. It emphasizes that all
children be treated with kindness. Article 2 of the Act holds the national and
local governments responsible for bringing up children in good mental and
physical health, along with their guardians. It thus, guarantees
children’s welfare and makes sure that the policy of child welfare is
consistently respected and followed throughout the country.
11. Child Abuse Prevention and Treatment Act, 2000 is enacted for
prevention of child abuse by outlining the responsibilities of both national and
local governments, implementing precautions and early detection methods, and
providing protection and support for children who have been abused. The Act
also emphasizes the importance of helping these children in regaining their
independence. It takes into account the severe violation of children's human
rights, the significant effects of abuse on their physical and mental
development, as well as its negative impact on their future well-being and the
upbringing of future generations, ultimately contributing to the protection of
children's rights and interests.
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d) Germany
12. The German Criminal code or Strafgesetzbuch (StGB) penalises
Child abuse and aggravated child abuse under sections 176 and 176a, thereby,
striving to protect children from sexual cruelty and prescribes imprisonment to
the offenders. When such abuse has caused the death of the child, the code
prescribes life imprisonment or imprisonment for not less than 10 years under
Section 176b.
II. Evolution of Law on Child Rights in India:
13. State is empowered to make special provisions for women and
children under Article 15(3) of Constitution of India. Section 317 of Indian
Penal Code, 1860 and Section 93 of The Bharatiya Nyaya Sanhita, 2023
protects the children under the age of twelve years from exposure and
abandonment by the parents or the person having care of such child. In cases of
abduction or unlawful detention of a woman, or a female child under the age of
eighteen years for any unlawful purpose, Sec 98 of Code of Criminal Procedure
and Section 101 of The Bharatiya Nagarik Suraksha Sanhita, 2023 empowers
the District Magistrate, Sub-divisional Magistrate or Magistrate of the first
class to make an order for the immediate restoration of such woman and female
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child and to compel compliance with such order, using such force as may be
necessary.
14. As per the report of the Juvenile Justice Committee on The Juvenile
Justice Act, 1986, the first legislation covering children was the Apprentice Act,
1850 enacted under the British regime which protects the rights of the children
between the age of 10 years and 18 years who are bound as apprentices to their
father, guardian and the Governor in case of poor child brought up by any
public charity. The Reformatory Schools Act was enacted in the year 1897. As
per the report, the Indian Jail Committee (1919-1920) emphasized the need for
square trial and treatment of young offenders.
15. The recommendations of Indian Jail Committee prompted the
enactment of The Madras Children Act, 1920 which provided for custody, trial,
maintenance, welfare, education, character training for the children etc.. Under
sec 36-H of the act, if it appears to a court, on the complaint of any person that
a girl under the age of sixteen years is with or without the knowledge of her
parent or guardian, exposed to the risk of seduction or prostitution, the court
may direct the parent or guardian to enter into a recognisance to exercise due
care and supervision in respect of such girl.
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16. The Child Marriage Restraint Act, 1929 which was enacted in British
India was amended in the year 1978. Under the Prohibition of Child Marriages
Act, 2006, a child or minor is a person up to 18 years in the case of girls and 21
years in the case of boys. The solemnization of child marriages is a cognizable
and nonbailable offence.
17. The Children Act, 1960 was enacted for the care, protection, mainte-
nance, welfare, training, education and rehabilitation of neglected or delinquent
children. Child Labour (Prohibition and Regulation) Act, 1986 prohibits en-
gagement of children under the age of 14 years in certain specific hazardous oc-
cupations and manufacturing processes. The Juvenile Justice Act, 1986, and the
Juvenile Justice (Care and Protection of Children) Act, 2000, and the Juvenile
Justice (Care and Protection of Children) Act, 2015, have replaced the Children
Act, 1960 in terms of juvenile justice and child welfare.
18. The Government of India appointed an Expert Committee under the
chairmanship on Justice V R Krishna Iyer for drafting the National Commission
for Children Bill 2000, based on which, Commissions for Protection of Child
Rights Act, 2005 was enacted. The Act provides for establishing National Com-
mission and the State Commission which are authorized to initiate suo motu
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steps to ensure child rights protection. The Supreme Court of India on 1 st De-
cember, 2000, directed the State to ensure "that children are not subjected to
corporal punishment in schools and they receive education in an environment
of freedom and dignity, free from fear". The Right of Children to Free and
Compulsory Education Act, 2009 aims to provide free and compulsory educa-
tion to all children between the age of 6 to 14 years.
19. The Protection of Children from Sexual Offences Act, 2012 (POCSO
Act) is the special law which addressed the issue of sexual offences against
children. It protects the children under the age of 18 years from the offences of
sexual assault, sexual harassment and pornography. The act criminalizes
various sexual offences against children, ensuring their protection. The key
provisions of the Act include Section 3, which prohibits any act of penetrative
sexual assault on a child; Section 5 of the act, which defines Aggravated
Penetrative Sexual Assault can be invoked, when the offence of penetrative
sexual assault is committed by someone in a position of trust or authority.
20. The definition of Sexual Assault under Section 7 of the act, includes
the act of touching the vagina, penis, anus or breast of the child or makes the
child touch the vagina, penis, anus or breast of such person or any other person,
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or does any other act with sexual intent which involves physical contact
without penetration. Whoever commits such offence shall be punished with
imprisonment for not less than 3 years. Aggravated Sexual Assault is covered
under Section 9; and Section 11 defines Sexual Harassment.
21. These provisions are designed to safeguard children from
exploitation and abuse, reinforcing the necessity for immediate action. The act
is based on the Doctrine of Reverse Onus, where the burden of proof lies on the
accused to prove that he is not guilty. Such presumption in favour of the victim
is dealt under Sections 29 and 30 of the act.
III. Facts
22. The brief facts of the prosecution case are as follows:
(i) The appellants (A2 and A1) resided in an apartment in
opposite houses. A2 had completed her postgraduate studies and
pursued her Ph.D. A1 was residing in his mother-in-law’s house
which is situated opposite to A2’s flat for medical treatment.
(ii) Before the Trial Court, the victim child was examined as
PW1 and her father and mother were examined as PW2 and PW3
respectively. PW1 had returned from Dubai to Chennai and
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continued her studies. She got admitted to 7th Standard in Shrine
Velankanni Higher Secondary School.
(iii) A2 was the class teacher of PW1. After two months
from the date of joining the school, A2 had asked PW1 to attend
the tuition conducted by her as PW1 was not performing well in
her studies. PW1 started attending the tuition conducted by A2.
(iv) PW1 and A2 developed affection for each other. A2
gave comfort and solace to PW1 and thereby PW1 had great
respect, love and affection towards A2. PW1’s father was working
in Bangalore. PW1 has a younger sister and brother who were also
studying in the same school.
(v) According to PW1, on a Saturday, when she was
climbing the stairs to A2’s house, A1 forcibly kissed PW1, and the
said fact was informed to A2 by PW1. However, A2 had scolded
PW1, by stating that PW1 is a bad girl and she might have only
misbehaved with A1 and also threatened PW1 by stating that she
will commit suicide if PW1 informs about this incident to her
parents.
(vi) A2 took permission from PW2, the father of PW1 for
taking his daughter, namely PW1, to watch a Tamil movie,
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namely, ‘Irumbu Thirai’. A2 took PW1 in the train. When PW1
asked why they were taking the train instead of going to the
movie, A2 replied that they are not going to the movie and they are
going to meet A1 at Urapakkam. As PW1 refused to accompany
A2, she threatened to commit suicide.
(vii) Therefore, PW1 went along with A2 and met A1, who
was in his shop at Urapakkam. At the instance of A2, PW1 asked
A1, when he would marry A2. But A1 did not give a proper
response, and they returned home. Two months later, A2 had
shown a text message to PW1 which was sent by A1 to A2’s
mobile phone and requested PW1 to join them for “dating” to
which PW1 asked what “dating” meant. A2 convinced PW1 by
saying that A1 and A2 would be chatting, and PW1 could simply
accompany them.
(viii) A2 informed PW3, the mother of PW1 about an exam
at the university where she was pursuing her Ph.D and requested
to take PW1 along with her. In response, PW3 agreed to send PW1
and dropped her near Shrine Velankanni Global School at 9 AM
on 10.07.2018 as per A2’s request and left the spot. Thereafter, A1
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arrived in a car and picked up PW1 and A2, drove them to a
location that appeared to be a hotel.
(ix) PW1 was taken to a hotel room in which, there was a
hall, bedroom and a kitchen. A1 and A2 forcefully pushed PW1
into the room. A1 went inside the room and A2 waited in the hall.
A1 had committed rape on PW1. The victim/PW1 was aged about
14 years at the time of occurrence. After the penetrative sexual
assault by A1, PW1 washed herself and her clothes and came out
of the room.
(x) Upon seeing A2, PW1 cried out of pain and asked her
why she had done this. A2 threatened to expose the photographs
and videos taken in the hotel room to PW1's parents if she
disclosed the incident. At the instance of A2, PW1 had attended
the tuition conducted by A2 on the date of occurrence also.
(xi) Despite the incident, PW1 felt a sense of affection
towards A2. Taking advantage of this emotional attachment, A2
started demanding PW1 to bring cash and jewels from her house.
According to PW1, A2 also induced PW1 to have a love affair
with one Shubam (not examined), who was the classmate of PW1.
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As Shubam's father was transferred to Delhi in the middle of the
academic year, his family was relocated.
(xii) A2 had informed PW1 that, Shubam’s father lost his
job and he is in need of money to pay his school fee. A2 insisted
PW1 to steal money from her house and threatened to commit
suicide if PW1 failed to meet her demands. Yielding to such
threats, PW1 started bringing money, foreign currency and jewels
from her house, which was pledged by A2.
(xiii) PW3 noticed that Rs.10,000/- kept by her father,
13,000 Riyals kept by her husband/PW3, Rs. 4000 and Rs. 4500
withdrawn from ATM had gone missing from the house and she
initially blamed the maids. When she questioned PW1, no
satisfactory reply was given.
(xiv) On 26.10.2019, a function was held at PW1’s house.
Two days after the function, PW1 revealed PW2 and PW3 that, at
the instance of A2, she had been taking the cash, foreign currency
and jewels which had gone missing from the house and also
informed them about the incident of sexual assault at the hands of
A1.
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(xv) PW2 preferred a complaint with the respondent police,
which was treated as Ex.P5. The police started their investigation
and arrested A1 and A2. Both the accused confessed that A1
indulged in forced sexual intercourse with PW1 and A2 had
abetted the crime in the hope of marrying A1.
(xvi) The respondent police had registered an FIR for
offences under Section 375, 376, 383, 386, 387, 503 of IPC and
Sections 4 and 6 of the POCSO Act, 2012 against A1 and A2.
Charge sheet was filed for offences under Section 366(A) IPC and
Section 4 of the POCSO Act against A1 and under Sections
366(A), 389, 503 IPC and Section 4 r/w POCSO Act against A2.
(xvii) The Special Court, after taking cognizance of the
offence, questioned the accused on the charges levelled against
them and the accused had denied the charges. The prosecution,
had examined as many as 12 witnesses as PWs.1 to 12, marked 20
documents as Exs.P1 to P20. On the side of defence, the first
accused was examined as DW1 and the wife of the first accused
was examined as DW2 and the doctor, who had treated A1 and his
wife was examined as DW3 and 14 documents were marked as
Exts.D1 to D14.
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(xviii) The Regional Officer of CBSE Board, Chennai
Region was examined as Court witness and Ex.C1 was marked
through the court witness which is the digital document of class 10
mark statement of PW1 along with a certificate under Section 65B
of the Indian Evidence Act. The prosecution had marked M.O.1,
gold jewels, 7 in number.
23. The trial court, taking into consideration, the evidence of PW1 to
PW3 and the recovery pursuant to the confession of A2, marked as M.O.1, gold
jewels (7 in Nos.), convicted the appellants for the offences stated supra.
24. Mr.V.Neeranjan, the learned counsel appearing for A1/appellant in
Crl.A. No.255 of 2023 would contend that the prosecution had failed to prove
the place of occurrence and the witnesses who were examined as PWs.7, 8 and
9, the employees of the hotel, has not stated anything about witnessing the
accused in the place of occurrence of the alleged offence.
25. Mr. John Sathyan, the learned senior counsel appearing for
A2/appellant in Crl.A. No.1128 of 2022 would contend the following:
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a)The evidence of PW1 is highly improbable, as PW1 had not stated
the true version either before the police when her statement was
recorded under Section 161 Cr.P.C. or before the court under sec.
164(5) Crpc and during the chief examination and cross-examination.
b)The evidence of P.W. 2 and 3 is nothing but narration of facts as
stated by PW1 which is hearsay evidence. The evidence of PW2 and
PW3 would reveal that they had no personal knowledge of the
occurrence and they did not have a semblance of doubt until the said
occurrence was put forth by PW1.
c)The documents produced on the side of the defence, more
specifically Ex. D1 and Ex. D2 would show that, even after the
alleged date of occurrence, in the personal letters written by PW1 to
A2 and one Subham, PW1 had addressed A2 as “Amma” (mother)
and “Akka” (sister) which would prove that the allegations made
against A2 are false and baseless.
d)The evidence of PW2 and PW3 would show that there was a long
unreasonable delay in preferring the complaint and more weightage
was given to the missing cash and jewels as opposed to the sexual
assault undergone by PW1. The conduct of the father and mother of
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the victim was unnatural and the same is fatal to the case of the
prosecution.
e)Though it is alleged that the crime had occurred on 10.07.2018, the
prosecution has not produced any evidence to prove that the
occurrence has taken place on 10.07.2018. The complaint was given
on 05.11.2019, with a delay of nearly one and half years. In the
absence of any explanation for the delay and in the absence of any
corroboration to establish the date of occurrence, it is unsafe to rely
on the statements of the prosecution witnesses.
26. Per Contra, Mr.S.Raja Kumar, the learned Additional Public
Prosecutor appearing for the prosecution would contend that, PW1 has
categorically narrated the incident with regard to the nature of offence and the
delay in informing the parents was only because of the emotional threat given
by A2 that she will commit suicide if PW1 discloses the incident to her parents.
The evidence of PW2 and PW3 corroborates the evidence of PW1. PW2 had
preferred the complaint immediately after the factum of rape was brought to his
knowledge and the said factum was reiterated by PW3. PW3 has explained the
theft of Indian and foreign currency apart from the jewels. The narration of
facts by PW1 has been corroborated with the evidence of PW2 and PW3 along
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with recovery of M.O.1, gold jewels (7 in numbers) which would clearly
demonstrate that the crime was committed by A1 and A2 and more preferably
because of the abetment of A2, the said crime has taken place.
27. The learned Additional Public Prosecutor would lament on the
presumptive clause as per Sections 29 and 30 of the POCSO Act, which clearly
demonstrates that it is for the accused A1 and A2 to dispel the case of the
prosecution under the POCSO Act and that the conviction can be sustained on
the sole testimony of Prosecutrix, if it inspires confidence. In this regard, the
learned Additional Public Prosecutor relied upon the following judgments:
i)State (NCT of Delhi) vs. Pankaj Chaudhary and others reported in
(2019) 11 SCC 573;
ii)Ganesan vs. State Inspector of Police reported in (2020) 10 SCC 573;
iii)State of U.P. vs. Pappu alias Yunus and Another reported in (2005) 3
SCC 594;
iv)State of Maharashtra vs. Chandraprakah Kewalchand Jain reported
in (1990) 1 SCC 550;
v)State of Punjab vs. Gurmit Singh and others reported in (1996) 2 SCC
384;
vi)State of Orissa Vs. Thakara Besra and Another reported (2002) 9
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SCC 86;
vii)State of Himachal Pradesh vs. Raghubir Singh reported in (1993) 2
SC 622;
viii)Rai Sandeep Alias Deepu vs. State (NCT of Delhi) reported in (2012)
8 SCC 21;
ix)Sham Singh vs. State of Haryana reported in (2018) 18 SCC 34; and
x)Phool Singh vs. State of Madhya Pradesh reported in (2022) 2 SCC
28. Heard the learned counsels on both sides and perused the materials
available on record. The credibility of PW1 is the frontal attack by the
appellants. Though PW1 had stated that A1 had kissed her on a particular date,
the said date was not substantiated by any evidence. Similarly, the evidence of
PW1 regarding the date and place of occurrence was not substantiated by any
corroborating documentary evidence or any ocular evidence.
29. When the law was set in motion by launching a complaint with the
respondent police on 05.11.2019, there was a delay of one and half years from
date of occurrence i.e., 10.07.2018. In the absence of any cogent reasons for the
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inordinate delay in preferring the complaint, the evidence of PW1 needs
substantial corroboration.
30. The prosecution has failed to establish the vital aspects of date and
place of occurrence and the evidence of the prosecutrix suffers from various
contradictions. There are several inconsistencies between the statements of
PW1 made before the Trial Court and the statement recorded U/s. 164 Crpc.
The other important prosecution witness including PW2 and PW3 does not
corroborate the evidence of PW1.
IV. Principles on Credibility of child witness:
31. A child is competent to testify before the courts of law under Section
118 of the Indian Evidence Act, 1872 and Section 124 of The Bharatiya
Sakshya Adhiniyam, 2023. The principles laid down by the Hon’ble Supreme
Court on reliability of child witness are as follows:
(a) In State of Madhya Pradesh Vs. Balveer Singh, reported in 2025
SCC OnLine SC 390, the Hon’ble Supreme Court held as follows:
58. We summarize our conclusion as under: -
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1.(I) The Evidence Act does not prescribe any minimum age for
a witness, and as such a child witness is a competent witness
and his or her evidence and cannot be rejected outrightly.
4.(II) As per Section 118 of the Evidence Act, before the
evidence of the child witness is recorded, a preliminary
examination must be conducted by the Trial Court to ascertain
if the child-witness is capable of understanding sanctity of
giving evidence and the import of the questions that are being
put to him.
5.(III) Before the evidence of the child witness is recorded, the
Trial Court must record its opinion and satisfaction that the
child witness understands the duty of speaking the truth and
must clearly state why he is of such opinion.
6.IV) The questions put to the child in the course of the
preliminary examination and the demeanour of the child and
their ability to respond to questions coherently and rationally
must be recorded by the Trial Court. The correctness of the
opinion formed by the Trial Court as to why it is satisfied that
the child witness was capable of giving evidence may be gone
into by the appellate court by either scrutinizing the preliminary
examination conducted by the Trial Court, or from the testimony
of the child witness or the demeanour of the child during the
deposition and cross-examination as recorded by the Trial
Court.
7.(V) The testimony of a child witness who is found to be
competent to depose i.e., capable of understanding the
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questions put to it and able to give coherent and rational
answers would be admissible in evidence.
8.(VI) The Trial Court must also record the demeanour of the
child witness during the course of its deposition and cross-
examination and whether the evidence of such child witness is
his voluntary expression and not borne out of the influence of
others.
9.(VII) There is no requirement or condition that the evidence
of a child witness must be corroborated before it can be
considered. A child witness who exhibits the demeanour of any
other competent witness and whose evidence inspires
confidence can be relied upon without any need for
corroboration and can form the sole basis for conviction. If the
evidence of the child explains the relevant events of the crime
without improvements or embellishments, the same does not
require any corroboration whatsoever.
(VIII)Corroboration of the evidence of the child witness may be
insisted upon by the courts as measure of caution and prudence
where the evidence of the child is found to be either tutored or
riddled with material discrepancies or contradictions. There is
no hard and fast rule when such corroboration would be
desirous or required, and would depend upon the peculiar facts
and circumstances of each case.
10.(IX) Child witnesses are considered as dangerous witnesses
as they are pliable and liable to be influenced easily, shaped
and moulded and as such the courts must rule out the possibility
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of tutoring. If the courts after a careful scrutiny, find that there
is neither any tutoring nor any attempt to use the child witness
for ulterior purposes by the prosecution, then the courts must
rely on the confidence-inspiring testimony of such a witness in
determining the guilt or innocence of the accused. In the
absence of any allegations by the accused in this regard, an
inference as to whether the child has been tutored or not, can be
drawn from the contents of his deposition.
11.(X) The evidence of a child witness is considered tutored if
their testimony is shaped or influenced at the instance of
someone else or is otherwise fabricated. Where there has been
any tutoring of a witness, the same may possibly produce two
broad effects in their testimony; (i) improvisation or (ii)
fabrication.
(i) Improvisation in testimony whereby facts have been altered
or new details are added inconsistent with the version of events
not previously stated must be eradicated by first confronting the
witness with that part of its previous statement that omits or
contradicts the improvisation by bringing it to its notice and
giving the witness an opportunity to either admit or deny the
omission or contradiction. If such omission or contradiction is
admitted there is no further need to prove the contradiction. If
the witness denies the omission or contradiction the same has to
be proved in the deposition of the investigating officer by
proving that part of police statement of the witness in question.
Only thereafter, may the improvisation be discarded from
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evidence or such omission or contradiction be relied upon as
evidence in terms of Section 11 of Evidence Act.
(ii) Whereas the evidence of a child witness which is alleged to
be doctored or tutored in toto, then such evidence may be
discarded as unreliable only if the presence of the following two
factors have to be established being as under:
Opportunity of Tutoring of the Child Witness in
question whereby certain foundational facts suggesting
ordemonstrating the probability that a part of the
testimony of the witness might have been tutored have to
be established. This may be done either by showing that
there was a delay in recording the statement of such
witness or that the presence of such witness was doubtful,
or by imputing any motive on the part of such witness to
depose falsely, or the susceptibility of such witness in
falling prey to tutoring. However, a mere bald assertion
that there is a possibility of the witness in question being
tutored is not sufficient.
Reasonable likelihood of tutoring wherein the
foundational facts suggesting a possibility of tutoring as
established have to be further proven or cogently
substantiated. This may be done by leading evidence to
prove a strong and palpable motive to depose falsely, or
by establishing that the delay in recording the statement
is not only unexplained but indicative and suggestive of
some unfair practice or by proving that the witness fell
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prey to tutoring and was influenced by someone else
either by cross-examining such witness at length that
leads to either material discrepancies or contradictions,
or exposes a doubtful demeanour of such witness rife with
sterile repetition and confidence lacking testimony, or
through such degree of incompatibility of the version of
the witness with the other material on record and
attending circumstances that negates their presence as
unnatural.
11.(XI) Merely because a child witness is found to be repeating
certain parts of what somebody asked her to say is no reason to
discard her testimony as tutored, if it is found that what is in
substance being deposed by the child witness is something that
he or she had actually witnessed. A child witness who has
withstood his or her cross-examination at length and able to
describe the scenario implicating the accused in detail as the
author of crime, then minor discrepancies or parts of coached
deposition that have crept in will not by itself affect the
credibility of such child witness.
12.(XII) Part of the statement of a child witness, even if tutored,
can be relied upon, if the tutored part can be separated from the
untutored part, in case such remaining untutored or untainted
part inspires confidence. The untutored part of the evidence of
the child witness can be believed and taken into consideration
or the purpose of corroboration as in the case of a hostile
witness.
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(b) In Ratansingh Dalsukhbhai Nayak v. State of Gujarat reported in (2004) 1
SCC 64, the following observation has been made:
“7. [...] The decision on the question whether the child
witness has sufficient intelligence primarily rests with the trial
Judge who notices his manners, his apparent possession or lack
of intelligence, and the said Judge may resort to any
examination which will tend to disclose his capacity and
intelligence as well as his understanding of the obligation of an
oath. The decision of the trial court may, however, be disturbed
by the higher court if from what is preserved in the records, it is
clear that his conclusion was erroneous. This precaution is
necessary because child witnesses are amenable to tutoring and
often live in a world of make-believe. Though it is an established
principle that child witnesses are dangerous witnesses as they
are pliable and liable to be influenced easily, shaped and
moulded, but it is also an accepted norm that if after careful
scrutiny of their evidence the court comes to the conclusion that
there is an impress of truth in it, there is no obstacle in the way
of accepting the evidence of a child witness.”
(c) Suryanarayana v. State of Karnataka reported in (2001) 9 SCC
129, Dattu Ramrao Sakhare v. State of Maharashtra reported in (1997) 5
SCC 341, Arbind Singh v. State of Bihar reported in (1995) Supp (4) SCC
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416, in the above cases, the Hon’ble Supreme Court laments that the evidence
of child witness cannot be eschewed just because the child is repeating the facts
of the case.
32. The Hon’ble Supreme Court, in the following precedents has clarified
under which circumstance; the testimony of child witness cannot be relied
upon:
(a) In Vijay v. State of Maharashtra, 2024 SCC OnLine Bom 3066,
the Bombay High Court, held as follows:
It is necessary to state that child witness is
susceptible to tutoring. In the case of child witness the Court
has to be on guard and ensure that child is not in any manner
tutored. The court must be satisfied that the account of the
incident narrated by the child witness is not the result of
tutoring.
(b) In yet another judgment in Bhaiyya v. State of Maharashtra, 2024
SCC OnLine Bom 2553, the Bombay High Court has observed as follows:
14. It is a settled legal position that delay per se cannot
be a ground to give clean chit to the accused in a heinous crime.
However, the delay in lodging report must be explained to the
satisfaction of the Court. Whether the explanation put forth for
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delay in lodging report is sufficient or not, is a question of fact to
be addressed by the Court in the backdrop of the facts,
circumstances and evidence brought on record. A minute
scrutiny of the evidence on record is required to be undertaken
to find out that the reasons put forth in support of the delay are
worth acceptable. It is a pure question of fact and has to be
addressed keeping in mind the facts and evidence of individual
case.
21. This question was repeated, but her answer did
not change. It is pertinent to note that the child witness is a very
easy pray for tutoring. The child is bound to follow the elders.
The child victim in this case was under the control of the mother
and the interpreter. In my view, overall perusal of the evidence
of the victim creates a doubt in the mind of the Court as to the
occurrence of the incident and involvement of the accused. Three
friends of the victim, to whom she allegedly narrated the
incident, did not support the case of the prosecution.
Appreciation of the evidence of PW1-mother and PW3-victim,
coupled with the aspect of delay in lodging report and the
reasons explaining delay, create a doubt in the mind of the
Court.
(c). In the case of Bhagwan Singh v. State of M.P., reported in
(2003) 3 SCC 21, the Hon’ble Supreme court has considered the factual
aspects and took a view that in cases involving unnatural conduct of
child, it is dangerous to rely on sole testimony of child witness unless it
is available immediately after the occurrence.
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(d) In Digamber Vaishnav v. State of Chhattisgarh reported in (2019) 4
SCC 522, the Hon’ble Supreme court has held as follows:
This Court discarded the testimony of the child witness
therein on the ground of being tutored as it found the same to
be fraught with inconsistencies and in direct contradiction of
the ocular evidence of other prosecution witnesses.
(e) In State of M.P. vs. Ramesh reported in (2011) 4 SCC 786, the
Hon’ble Supreme Court has categorically held as follows:
“11. The evidence of a child must reveal that he was able
to discern between right and wrong and the court may find out
from the cross-examination whether the defence lawyer could
bring anything to indicate that the child could not differentiate
between right and wrong. The court may ascertain his
suitability as a witness by putting questions to him and even if
no such questions had been put, it may be gathered from his
evidence as to whether he fully understood the implications of
what he was saying and whether he stood discredited in facing
a stiff cross- examination. A child witness must be able to
understand the sanctity of giving evidence on oath and the
import of the questions that were being put to him. (Vide
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Himmat Sukhadeo Wahurwagh v. State of Maharashtra (2009)
6 SCC 712.)”
“13. Part of the statement of a child witness, even if
tutored, can be relied upon, if the tutored part can be
separated from the untutored part, in case such remaining
untutored part inspires confidence. In such an eventuality the
untutored part can be believed or at least taken into
consideration for the purpose of corroboration as in the case
of a hostile witness.”
(f) In Panchhi Vs. State of U.P. reported in (1998) 7 SCC 177, the
Hon’ble Supreme court has held as follows:
“11. Shri R.K. Jain, learned Senior Counsel, contended
that it is very risky to place reliance on the evidence of PW 1,
he being a child witness. According to the learned counsel, the
evidence of a child witness is generally unworthy of credence.
But we do not subscribe to the view that the evidence of a child
witness would always stand irretrievably stigmatized. It is not
the law that if a witness is a child, his evidence shall be
rejected, even if it is found reliable. The law is that evidence of
a child witness must be evaluated more carefully and with
greater circumspection because a child is susceptible to be
swayed by what others tell him and thus a child witness is an
easy prey to tutoring.
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12. Courts have laid down that evidence of a child witness
must find adequate corroboration before it is relied on. It is
more a rule of practical wisdom than of law.”
(g). In Radhey Shyam v. State of Rajasthan, (2014) 5 SCC 389, the
Hon’ble Supreme court has relied upon the above observations and disbelieved
the child witness on factual aspects.
(h) In State of Bihar v. Kapil Singh, 1968 SCC OnLine SC 88 : AIR
1969 SC 53, the Hon’ble Supreme court has held as follows:
While such a child witness can often be expected to
give out a true version because of her innocence, there is
always the danger in accepting the evidence of such a witness
that, under influence, she might have been coached to give
out a version by persons who may have influence on her. In
this case there are a number of circumstances which, in our
opinion, indicate that it will not be quite safe to rely on her
evidence. She stated that she was lying on a cot close to the
cot on which her aunt Rohini Kuer was sleeping. She actually
saw her aunt being killed and, according to her, there was a
threat to her life also when Deo Singh said that she should
also be killed, though she was saved when Kapil Singh asked
that she should be spared because she was a child. It does not
seem to be very likely that a child in such circumstances
could have continued to pretend that she was asleep.
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V. Presumption under POCSO Act:
33. Under section 29 of POCSO Act, the special court is duty bound to
presume that the accused had committed the offence if the accused is
prosecuted for committing offences under section 3,5,7 and 9 of the act, unless
the contrary is proved. It is well established that the presumption under Sec. 29
is available where the foundational facts exist for commission of offence under
the POCSO act.
34. The Hon’ble Supreme Court in the case of Just Rights For Children
Alliance and Another Vs. S. Harish and Others, reported in 2024 SCC Online
SC 2611, has held as follows:
“173. Since a negative cannot be proved, an accused cannot be asked to
disprove his guilt even before the foundational allegations with
supporting material thereof are placed and duly established by the
prosecution before the court. Unless the prosecution is able to prove
foundational facts in the context of the allegations made against the
accused under any specific provision of the POCSO as the case may be,
the statutory presumption of culpable mental state under Section 30 of
the POCSO will not come into the picture”.
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35. The Hon’ble Supreme Court in Sambhubhai Raisangbhai Padhiyar
v. State of Gujarat, reported in (2025) 2 SCC 399 observed that “the injury on
the prepuce of the penis of the accused along with the matching of the blood
group coupled with other circumstantial evidence clearly constitute
foundational facts for raising presumption under sections 29 and 30 of the
POCSO Act”. The Hon’ble Supreme Court being satisfied that the
circumstances enumerated are fully established and the circumstances so
established are consistent only with the hypothesis of the guilt of the accused
upheld the conviction imposed by the trial court.
VI. ANALYSIS ON FACTS AND LAW:
A.Contradictions in the evidence of the Prosecutrix (PW1):
36. There is a paradigm shift in the stand of PW1 before the trial court
and in the statement under Section 164(5) of Cr.P.C. In the said statement, PW1
had categorically stated that after the date of occurrence, when the family of
PW1 and A2 went to a restaurant, A2 stated that she will take PW1 to a tamil
movie namely “Irumbu Thirai”. However, A2 informed PW1 that they are
going to Urapakkam to meet A1 at his shop and not going to the movie. Then
A2 and PW1 took a train to Urapakkam and at the instance of A2, she asked
A1, when he would marry A2. On a careful analysis of statements of PW1,
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there was no remorse or hatred towards A2. In fact, the above mentioned
statements of PW1 would only show that PW1 has voluntarily accompanied A2
to meet A1 at his shop in Urapakkam.
37. On the contrary, in the evidence of PW1 before the Trial Court, PW1
has deposed that before the date of occurrence, when A2 had come to the house
of PW1, A2 requested PW2 by saying that she wants to take PW1 to the tamil
movie namely “Irumbu Thirai”, for which PW2 agreed. However, instead of
going to the movie, A2 and PW1 boarded the train, when PW1 asked why they
are taking the train, A2 informed that they are going to Urapakkam to meet A1
at his shop. PW1 further deposed that when she refused to accompany A2 to
Urapakkam, A2 threatened to commit suicide by jumping from the train.
Therefore, out of fear, PW1 accompanied A2 and at the instance of A2, PW1
asked A1 when he would marry A2. It is to be noted that, PW1 has narrated the
same incident in entirely different manner before the Trial Court as opposed to
the narration made before the Judicial Magistrate under sec. 164(5) Crpc.
Therefore, this court is unable to gain confidence in the evidence of PW1.
38. This vital contradiction shakes the credibility of the PW1’s evidence.
It is not clear as to whether the meeting was prior to the occurrence or after the
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occurrence. While considering the statements of PW1 recorded U/s. 164(5)
Cr.P.C., it is to be noted that, no prudent person will ever venture to meet A1
voluntarily after she was subjected to rape at the hands of A1.
39. There was no semblance of evidence adduced by the prosecution to
establish that PW1 was unwilling to meet A1 as she was subjected to rape at the
hands of A1 and she felt aversion towards A2 for driving her towards A1.
Before the Judicial Magistrate, PW1 has categorically stated that, she was with
the hope that atleast after committing the offence on PW1, A1 would be
inclined to marry A2 so that A2 will be happy. But such version does not form
part of the deposition made before the Trial Court.
40. On a careful analysis of the statements made before the court and the
statements made before the Magistrate under sec. 164(5) Crpc, it is clear that
PW1 was psychologically dependent on A2. However, the prosecution has not
produced even a semblance of evidence to suggest that A2 had influenced PW1
and insisted her to bring money and jewels from her house. Until PW3
questioned PW1 with regard to missing Indian and foreign currencies along
with jewels, PW1 had not disclosed the same to PW3.
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41. PW1 has not recollected the date of occurrence by pointing out the
date as the one relating to any festival, any happy occasion like birthday,
wedding day or a day of celebration. This factum cannot be ignored, since the
complaint was preferred only after a period of 1½ years from the date of
commission of offence. When the complaint itself was preferred after 1½ years,
the date which has been consistently projected by the prosecution without any
substantial evidence to establish that the occurrence had taken place on the said
date, cannot be taken into consideration.
42. As PW1 had great affection for A2, PW1 had addressed A2 as ‘Akka’
(sister) and ‘Amma’ (mother). When such a person like A2, had abetted the
offence of penetrative sexual assault on PW1 by pushing PW1 inside the room
and waited in the hall during the commission of offence, the conduct of PW1,
who continuously attended tuition and wrote personal letters to A2 even after
the occurrence is unnatural.
43. Even assuming for a moment that due to obsession, PW1 acceded to
fulfil the desire of A2 by subjecting herself to A1, the subsequent conduct of
PW1, after the occurrence, is abnormal and unacceptable. PW1 has not
disclosed any of the incidents including the act of taking money, foreign
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currencies and jewels from her house to anyone. The evidence of PW1 before
the Trial Court and before the judicial magistrate is not consistent and the
conduct of PW1, subsequent to the occurrence is abnormal, therefore, the
evidence of PW1 does not inspire confidence.
B. Inconsistencies in the evidence of Prosecution Witnesses: (PW 1 to
PW3)
44. Evidence of PW2 and PW3 are nothing but hearsay evidence. The
statement that the unaccounted Indian and foreign currency along with jewels
went missing from the house is not established by any materials. Though Pw3
had stated that she enquired with the maids regarding the missing jewels and
cash, the prosecution had failed to examine the maids working at PW3’s house
to corroborate oral evidence of PW3. PW1 has mentioned the date of
occurrence as 10.07.2018. As per the prosecution, the function in the house of
PWs.1 to 3 had taken place on 26.10.2019 after which PW1 disclosed the
incident. Except the oral evidence of PWs 1 to 3, no documentary evidence was
produced to substantiate that such events had occurred on the dates stated
supra.
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45. It is not the case of the prosecution that the delay in preferring the
compliant was because of the social stigma that would arise in giving the
complaint. Per contra, the reason given by PW2, the father, that he was unwell
cannot be countenanced. Any father will have a knee jerk reaction, the moment
he comes to know that his daughter was subjected to rape. In the evidence of
PW3, apart from narration of facts as stated by PW1, there is no other statement
forthcoming about the suspicious activity of PW1. While examining the
evidence of PW1 to PW3, it is clear that two different versions are deposed by
PW2 and PW3 on how PW1 disclosed the incident of sexual assault by A1 and
money demands by A2.
46. While considering the oral evidence of PW1 to PW3 and while
examining Ex. P5, which is the complaint given by P.W.2, it is clear that the
case of the prosecution suffers from serious inconsistencies and inherent
improbabilities with regard to the exact quantum of jewels that had gone
missing from the victim’s house. Inconsistencies in the statements of
prosecution witnesses with regard to the quantum of money and jewels that
went missing are tabulated hereunder:
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S.No. Witness/Exhibit Quantum of Money and Jewels Missing
1. PW1 1.Unaccounted Jewels
2.Unaccounted Saudi Riyals
3.Unaccounted Indian currency
4.Money withdrawn by PW1 from ATM
5.Rs.4,000/-
6.Rs.4,500/-
7.Money sent through Aravind, Saif by
keeping it inside tuition note
2. Ex.P5, the 1.13,000 Saudi Riyals
Complaint given by 2.Rs. 50,000/-
PW2 3.30 Sovereigns of gold jewels
3. PW2 1.Rs. 10,000/- had gone missing from the
house when he was in Saudi.
2.Rs.10,000/- had gone missing from the
house when he was in Bangalore
3.Unaccounted Riyals kept in front of Pooja
stand had gone missing
4.Rs.4,000/- given to PW1 in the morning
had gone missing in the evening.
4. PW3 1.3 Nos gold Aaram,
2.5 Nos Bangles
3.2 Nos. Necklace
4.2 Nos. Chain
5.Rings
Total : 30 sovereigns
6.13,000 Riyals
7.Rs.10,000 kept by PW3’s father
8.Rs.4,000/- withdrawn from ATM
9.Rs.4,500/- withdrawn from ATM
47. As pointed out above, the oral evidence of PW 1 to PW3 suffers from
several contradictions and inconsistencies. Therefore, this court cannot reach
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any conclusion based on the oral evidence of PW1 to PW3 which is not
supported and corroborated by any material.
48. According to the prosecution, an extra judicial confession was given
by A2. However, the extra judicial confession given by A2 cannot be sustained
in the absence of any cogent evidence to establish that PW1 was taken by A1
and A2 on 10.07.2018.
49. PW4, the doctor who deposed regarding the examination of PW1 did
not state that PW1 had recent sexual intercourse. PW4 had admitted in a
suggestion that hymen tear in the private part of the victim may occur as a
result of physical activity including sports such as badminton. Therefore, the
medical evidence has not strengthened the case of the prosecution and there is
no trace of sexual assault as projected by the prosecution.
C. Effect of Defective investigation :
50. It is to be noted that the prosecution had not taken PW1 to the scene
of occurrence and no recovery was made from PW1 to establish the
commission of offence. Though it could be inferred that recovery of P.W.1’s
innerwear or any other dress may not substantiate the prosecution’s case as
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P.W.1 had washed her clothes and had cleaned herself after the incident, the
prosecution ought to have recovered the mobile phone in which text messages
sent by A1 was alleged to have been received by PW1.
51. In the evidence of PW3 and statement of PW1 recorded under sec.
164 Crpc, the prosecution witnesses have categorically deposed that A1 had
sent certain text messages to PW1 and insisted not to share the same with A2.
However, the prosecution has not taken any steps to corroborate the evidence of
PW1 and PW3 by producing the text message of A1 or by recovering the said
mobile phone of PW1.
52. The evidence of PW1 is not supported by the evidence of PWs.7, 8
and 9, who are the employees of the hotel, which is projected to be the place of
occurrence. The prosecution could not establish the presence of A1, A2 and
PW1 on the date of occurrence in the said hotel and there is no trace of
evidence to show that A1 and A2 had taken PW1 to the hotel, where the crime
has taken place. As per the evidence of PW1, she was not clear about the place
of occurrence. The unassertive statement of PW1 that she was taken to a place
which looks like a hotel cannot be accepted as the court cannot lose its sight
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with regard to the financial and educational background of PW1’s family and
the fact that she was brought up in Dubai.
53. The sketch which was marked as Ex.P17, which explains the place of
occurrence is not supported by any independent witness and the Investigating
Officer had also categorically admitted during the cross examination that PW1
was not taken to the place of occurrence and no recovery was made. Apart from
the said fatal flaws in the investigation, the primary contention of the
prosecution that A1 had sent certain messages to PW1 which was the starting
point of exhibiting A1’s mind towards PW1, was not at all demonstrated and
proved by the prosecution before the trial court.
54. As stated supra, the mobile phone used by PW1 was neither seized
nor were the contents of the text messages by A1 to PW1 produced. The entire
case of the prosecution as against A1 and A2 is abnormal as the prosecution
circles back to the theory of PW1’s obsession over A2 to fill up every lacuna in
the case.
55. It is the duty of the prosecution to bring out the crime committed by
the accused in a given case to establish that the accused has committed the
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crime and the duty is cast on the prosecution to establish their case (i) beyond
reasonable doubt; (ii) by pointing out the guilt of the accused; (iii)
preponderance of probabilities;
VII. Relevancy of Defence witnesses and documents:
56. Under Chapter XVIII of the code of criminal procedure, 1973, when
a trial takes place in a Court of Session, the accused is entitled under Section
233 to adduce evidence and to mark documents. In this case, the first accused
had examined himself as DW1 and deposed that he is suffering from decreased
semen count which renders him incapable of performing continuous sexual
intercourse. The doctor who had treated A1 was examined as DW3. She had
deposed about the treatment given to A1/DW1. The evidence of DW2, the wife
of A1 cannot be brushed aside. DW2 had deposed before the Trial Court that
her husband is taking medical treatment for impotency and the child born out of
their wedlock was through IVF treatment.
57. The court should not forget the importance of fair trial which is
available not only to the prosecution, but also equally available to the accused
persons. In the course of trial, the court has to consider the evidence of defence
witnesses and the documents also to arrive at a conclusion. The court has to
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give a finding with regard to the consistencies and inconsistencies in the
evidence adduced by the defence to dispel the case of the prosecution.
58. DW3, Dr.Shanmugapriya, had denied the alibi plea taken by A1,
attempting to prove his absence from the scene of occurrence. Adverse
inference cannot be taken against the accused simply because the defence
witness had turned hostile. The prosecution has to independently establish the
allegations levelled against A1 and A2. The said hostility of DW3 who had
treated A1 and DW2 is not fatal to the defence. DW3 had admitted the
signatures in the documents produced by the defence and had only denied the
presence of A1 on 10.07.2018, namely, the date of occurrence.
59. Ex.D2, the letter written by PW1, would manifest that she had equal
respect, affection and love for A2 and one Shubam. The fulcrum of the
investigation had become flawed as the said Shubam was not examined. In
spite of suggestions made to PW1, with regard to her friendship with Shubam,
neither the prosecution nor the trial court had adequately focused on the said
suggestions. For brevity, Ex.D2 is reproduced hereunder:
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VIII. Evidentiary Value of 313 Question:
60. The material objects M.O.1 (gold jewels) pledged by A2 were
recovered from Muthoot FinCorp Ltd. The prosecution claims that M.O.1 (gold
jewels) were recovered based on the confession statement given by A2. For the
sake of convenience, let us look into Section 27 of the Indian Evidence Act
which is extracted hereunder:
27. How much of information received from accused
may be proved.––Provided that, when any fact is deposed to
as discovered inconsequence of information received from a
person accused of any offence, in the custody of a police-
officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered, may be proved.
61. Based on the confession statement of A2, only the receipts issued by
Muthoot Fincorp were recovered. Ex.P11 is the seizure mahazar of mortgaged
receipts and Ex.P12 is Muthoot Fincorp Receipt. Ex.P12 and the corresponding
evidence of PW10, the manager of Muthoot Fincorp speaks about the jewels
pledged by A2.
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62. A2, in her reply to the questions under Section 313 Cr.P.C., had
given the following answer:
“rpWkpapd; mk;kh te;jjd; nghpnyna
mtUld; brd;W mtUf;fhf mlF itj;J
bfhLj;njd;/ ”
Translated version of the above statement:
“As soon as the girl’s mother came, I went with her and
pawned it for her.”
63. The reasonable and possible explanation given by A2 to the questions
put forth under Section 313 Cr.P.C assumes greater significance and such
evidence is un-rebuttable evidence. The Trial Court had miserably failed to
consider such probability. When there is a probability attached to the reply
given by A2 in her 313 Cr.P.C. questions, the same cannot be ignored. There is
no reason to disbelieve the reply of A2, as PW3, the mother of the victim had
identified the jewels. The Hon’ble Supreme Court in Raj Kumar v. State (NCT
of Delhi), reported in (2023) 17 SCC 95 has made the following observations
on the importance of 313 questioning:
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“22. The law consistently laid down by this Court can be summarised
as under:
22.1. It is the duty of the trial court to put each material
circumstance appearing in the evidence against the accused specifically,
distinctively and separately. The material circumstance means the
circumstance or the material on the basis of which the prosecution is
seeking his conviction.
22.2. The object of examination of the accused under Section 313
is to enable the accused to explain any circumstance appearing against
him in the evidence.
22.3. The Court must ordinarily eschew material circumstances
not put to the accused from consideration while dealing with the case of
the particular accused.
22.4. The failure to put material circumstances to the accused
amounts to a serious irregularity. It will vitiate the trial if it is shown to
have prejudiced the accused.
22.5. If any irregularity in putting the material circumstance to
the accused does not result in failure of justice, it becomes a curable
defect. However, while deciding whether the defect can be cured, one of
the considerations will be the passage of time from the date of the
incident.
22.6. In case such irregularity is curable, even the appellate court
can question the accused on the material circumstance which is not put
to him.
22.7. In a given case, the case can be remanded to the trial court
from the stage of recording the supplementary statement of the accused
concerned under Section 313 CrPC.
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22.8. While deciding the question whether prejudice has been
caused to the accused because of the omission, the delay in raising the
contention is only one of the several factors to be considered”.
64. In view of the above observations, the evidentiary value of A2’s reply
to the questions posed by the Trial Court under section 313 Cr.P.C. by putting
forth the material object recovered and marked against A2 cannot be ignored.
IX. Conclusion:
65. The uncorroborated evidence of PW1 which is a bundle of
contradictions and PW1’s subsequent conduct of continuously consorting with
A2 without any semblance of regret for the incident that had happened in her
life, does not inspire confidence. PW1 had deposed that she had accompanied
A2 and met A1, after being subjected to rape at the hands of A1. It is highly
dangerous to rely upon the sole testimony of PW1.
66. The evidence of PW2 and PW3 cannot be considered as credible
evidence as PW2 failed to furnish any reasonable explanation for the delay in
preferring the complaint and PW3 had admitted in the cross examination that
the complaint was given after consulting the lawyer. That apart, there are
several inconsistencies in the versions of PW1 to PW3 with regard to disclosure
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of incident by PW1 to PW2 & PW3, text messages sent by A1 to PW1,
valuables found missing from the house etc. The inconsistent evidence of PW2
& PW3, and the manner in which the complaint was preferred, creates doubt on
the very genesis of the offence and complaint.
67. The prosecution is duty bound to prove the case beyond reasonable
doubt. There is no semblance of evidence to establish the date and place of
occurrence. PW1 was not even taken to the place of occurrence and the
prosecution failed to produce any materials to establish that A1 and A2 had
taken PW1 to the place of occurrence on 10.07.2018. Also, the medical
evidence does not aid the prosecution.
68. At this juncture, we are reminded of the presumptive clause available
under sections 29 and 30 of the POCSO Act. As the presumption is in favour of
the victim, it is for the defence to establish that the occurrence had not taken
place, as claimed by the prosecution. It is well settled that presumption under
the act is rebuttable by the accused and the legal presumption is not attracted if
the foundational facts are not established by the prosecution.
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69. In the case in hand, the prosecution has miserably failed to establish
the genesis of complaint, the date and place of occurrence and there are serious
contradictions in the evidence of PW1 with regard to the events which took
place immediately before and after the date of occurrence. Undoubtedly, the
foundational facts are not established by the prosecution and the legal
presumption cannot be invoked against the appellants.
70. Nevertheless, the theory of the prosecution has been nullified by the
evidence of defence witnesses and letters written by PW1, marked as Exts.D1
and D2. The evidence adduced by the defence creates reasonable doubt on the
case of the prosecution. Therefore, it would be highly improbable to convict A1
and A2 based on the evidence of PW1.
71. The only evidence available as against A2, is the recovery of pledged
jewels based on the confession given by A2. Out of the confession, the jewels
pledge receipt with Muthoot Fincorp was marked as Ex.P12 and based on
Muthoot Fincorp receipt, the jewels were recovered, which was spoken to by
PW10, the Manager of Muthoot Finance. When the occurrence was taken place
on 10.07.2018 and the alleged extortion has taken continuously, PW1 and PW3
had not stated from which period or on what date, PW1 had given money and
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jewellery to A2. As the complaint itself was given 1½ years later from the
alleged date of occurrence, the confession and recovery of jewels creates a
serious doubt because of the inordinate delay in recovering the jewels from the
date of complaint. Therefore, the recovery of MO1 (gold jewels) though it is a
factum of evidence which signifies the recovery under Section 27 of the Indian
Evidence Act without taking into the delay in preferring the complaint and
coupled with the explanation given by the A2, it is not safe to rely that evidence
of PW1 and PW3 to be a trustworthy to rely upon the factum of pledging the
jewels, as demonstrated by the prosecution. In the judgment cited supra, the
Hon’ble Supreme Court has reiterated the essence and importance of the answer
given under Section 313 Cr.P.C. by the accused. It is unfortunate that the Trial
Court has not taken note of the said possible explanation.
72. By virtue of the international conventions and declarations, in various
countries including India, the protection of child rights has taken a front seat. In
paragraphs 5 to 21 of this judgment, we have taken note of all the international
conventions and legislations across the globe, enacted to protect the rights of
women and children. The special enactment, namely, The Protection of
Children from Sexual Offences Act, 2012 had come into existence to protect
the children from sexual assault, sexual harassment and pornography. No
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doubt, the provisions of the act are to be interpreted in a manner which protects
the interest of the child victims and ensures that the legislative intent is not
defeated. At the same time, it is equally important to analyse whether the
evidence of PW1, the child witness inspires confidence to impose conviction.
73. It is incumbent on the courts to examine the credibility of the child
witnesses, whose deposition cannot be relied upon, if found to be tutored,
malafide and inconsistent. If the testimony of the child is found to be affected
by any of the above parameters, then certainly, the courts have to look for
materials which corroborate the testimony of the child witness to gain
confidence on the evidence of the victim/child witness.
74. In the judgments discussed supra, the Hon’ble Supreme Court had
consistently held that the evidence of the child witness can be relied upon if it
inspires confidence. On the other hand, if the testimony of the child witness is
found to be tutored or malafide or inconsistent, the courts must be more
cautious in relying upon such witness.
75. The evidence of PW1 which is self-contradictory in the statements
made before the Trial Court and before the learned Judicial Magistrate under
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Section 164(5) of Cr.P.C creates a serious doubt with regard to the credibility
and trustworthiness of PW1.
76. The narration of PW2 and PW3 with regard to PW1 disclosing the
nature of crime committed by A1 and A2, does not inspire confidence as there
are contradictions between the statements of PW2 and the statements of PW1 &
PW3. In the absence of any evidence to connect the place of occurrence and the
presence of PW1 along with A1 and A2, the case of the prosecution is highly
doubtful.
77. In view of the foregoing discussions, we are convinced with the
submissions made on behalf of the appellants and are inclined to set aside the
judgment of conviction and sentence passed against the accused. Accordingly,
both the criminal appeals are allowed. The judgment of conviction and sentence
imposed on the appellants by the learned Sessions Judge, Special Court for
Exclusive Trial of cases under POCSO Act, 2012, Chennai in Spl.S.C. No.08 of
2020 dated 18.07.2022, is set aside. The fine amount, if any, paid by the
appellants, may be returned to them. The appellants may be set at liberty, if
their presence is not required in connection with any other case.
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[M.S.R., J.] [N.S., J.]
28.04.2025
Asr
Index : Yes
Neutral Citation : Yes
To
1.The Sessions Judge,
Special Court for Exclusive Trial of cases under POCSO Act, 2012,
Chennai
2.The Inspector of Police
W-25, All Women Police Station
T.Nagar, Chennai.
(Crime No.6/2019)
3.The Public Prosecutor, High Court, Madras
4.The Superintendent
Central Prison
Puzhal, Chennai - 66
M.S.RAMESH, J.
and
N.SENTHILKUMAR, J.
Asr
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Criminal Appeal Nos.1128 of 2022 and 255 of 2023
Dated : 28 .04.2025
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