Punjab-Haryana High Court
Gopi@Kala vs State Of Punjab on 15 March, 2024
Neutral Citation No:=2024:PHHC:039698
2024:PHHC:039698
CRA-S-1653-SB-2014 1
210
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-1653-SB-2014
Date of decision: 15.03.2024
Gopi @ Kala
...Petitioner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Ms. Sumanjit Kaur, Advocate
Legal Aid counsel for the petitioner.
Mr. Rishabh Singla, AAG, Punjab
****
HARPREET SINGH BRAR, J. (ORAL)
1. The present revision petition is preferred against judgment dated
14.10.2013 passed by learned Special Judge, Sangrur in FIR No. 41 dated
04.04.2013 registered under Sections 363, 377 of the IPC and Section 3, 4, 6 of the
Protection of Children from Sexual Offences Act, 2012 (hereinafter 'the POCSO
Act') at Police Station Ahmedgarh whereby the petitioner has been convicted and
sentenced as under:
Offence Sentence
Section 4 of the POCSO Act Rigorous imprisonment 10 years and a
fine of Rs. 10,000/- in default of
which, rigorous imprisonment of 1
year
2. Briefly, the facts are that on 03.04.2013, the petitioner-accused visited
the rehri of the Rati Ram, grandfather of the victim, where the victim was also
present. The petitioner took the victim, a 5 years old boy, to a jhuggi, removed his
pants and sodomised him. The victim was kept there for the whole night and only
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returned home in the morning of 04.04.2013. He informed his grandfather of the
incident and the matter was reported to the police.
3. The prosecution examined 5 witnesses to establish its case while the
accused failed to lead any evidence in his defence. After assessing all the material
on record, the learned trial Court convicted the accused vide judgment dated
14.10.2013. Aggrieved by the same, the petitioner has preferred the present appeal
before this Court.
4. Learned counsel for the petitioner contends that there is a significant
difference between the medical and the ocular evidence as the victim in his
statement had claimed that the petitioner took of his clothes, sexually assaulted
him and gagged his mouth. However, the medico-legal report as proved by PW1-
Dr. Gurdeep Singh, states that no contusion, bleeding or pain was observed in the
perianal area, which rules out acute penetration of the anus. In his cross
examination, PW1- Dr. Gurdeep Singh had categorically stated that there were no
visible signs of carnal intercourse. She further contends that PW-2 victim is a
child witness who can easily be tutored. The victim has improved his version to
add that he was beaten and gagged by the accused. Moreover, in his statement
under Section 164 Cr.P.C., PW2-victim had stated that he did not know the
petitioner while his name is duly mentioned in the FIR.
5. Learned counsel further submits that the grandfather of the victim
PW3-Rati Ram did not lodge a missing complaint when his 5 years old grandson
went missing. The petitioner has only been implicated due to old animosity
between him and son of PW3-Rati Ram, as also stated by him in his statement
under Section 313 Cr.P.C. Lastly, PW5-Investigating Officer did not verify the
ownership of the jhuggi where the alleged incident took place.
6. Per contra learned State counsel submits that the learned trial Court
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has correctly appreciated the facts and the law to arrive at a guilty verdict qua the
petitioner and as such the impugned judgement warrants no interference by this
Court.
7. Having heard the learned counsel for the parties and after perusing
the record of the case with their able assistance, it transpires that the victim was 5
years old at the time of the alleged offence, therefore, Section 29 of the POCSO
Act will be attracted, creating a presumption against the petitioner. In spite of his
young age, PW2-victim maintained his stance during cross-examination, inspiring
confidence in his testimony. While PW1-Dr. Gurdeep Singh has stated that
charges of penetrative sexual assault are ruled out, his testimony is in the nature of
an opinion. In view of the facts and circumstances of the case, where the petitioner
took the victim to a secluded place, kept him there all night, removed his trousers
and his own, and the consistent stand of the young victim, no other inference can
be drawn. It is settled law that the evidence is not liable to be rejected merely
because it has been led by a child witness. A two Judge bench in State of
Karnataka v. Shantappa Madivalappa Galapuji and Ors. (2009) 12 SCC 731,
speaking through Justice Dr. Arijit Pasayat, made the following observations:
"6. The Indian Evidence Act, 1872 (in short "the Evidence Act") does
not prescribe any particular age as a determinative factor to treat a
witness to be a competent one. On the contrary, Section 118 of the
Evidence Act envisages that all persons shall be competent to testify,
unless the court considers that they are prevented from understanding
the questions put to them or from giving rational answers to these
questions, because of tender years, extreme old age, disease - whether
of mind, or any other cause of the same kind. A child of tender age
can be allowed to testify if he has intellectual capacity to understand
questions and give rational answers thereto. This position was
concisely stated by Brewer, J. in Wheeler v. United States, (159 US
523). The evidence of a child witness is not required to be rejected per
se, but the court as a rule of prudence considers such evidence with
close scrutiny and only on being convinced about the quality thereof
and reliability can record conviction, based thereon.
[See Suryanarayana v. State of Karnataka, 2001(1) RCR (Criminal)
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602 : (2001(9) SCC 129)]
7. In Dattu Ramrao Sakhare v. State of Maharashtra, 1997(3) RCR
(Criminal) 227 : [(1997)5 SCC 341] it was held as follows : (SCC p.
343, para 5):
"A child witness if found competent to depose to the facts
and reliable one such evidence could be the basis of conviction.
In other words even in the absence of oath the evidence of a
child witness can be considered under Section 118 of the
Evidence Act provided that such witness is able to understand
the questions and able to give rational answers thereof. The
evidence of a child witness and credibility thereof would
depend upon the circumstances of each case. The only
precaution which the court should bear in mind while assessing
the evidence of a child witness is that the witness must be
a reliable one and his/her demeanour must be like any other
competent witness and there is no likelihood of being tutored."
8. Furthermore, no evidence has been produced on the record to rebut
the presumption under Section 29 of the POCSO Act or prove that the complainant
party knew the petitioner before hand. As such, the allegation of previous enmity
between the petitioner and uncle of the victim remains unsubstantiated.
9. Therefore, in view of the discussion above the present appeal is
dismissed and the impugned judgment dated 14.10.2013 passed by learned Special
Judge, Sangrur is upheld.
(HARPREET SINGH BRAR)
JUDGE
15.03.2024
Ajay Goswami
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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