Sikkim High Court
State Of Sikkim vs Suresh Pradhan on 8 July, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 8th July, 2024
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DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl.A. No.32 of 2023
Appellant : State of Sikkim
versus
Respondent : Suresh Pradhan
Appeal under Section 378(1)(b) of
the Code of Criminal Procedure, 1973
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Appearance
Mr. Yadev Sharma, Additional Public Prosecutor for the State-
Appellant.
Mr. Umesh Ranpal, Advocate (Legal Aid Counsel) for the
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The minor victims, PW-1 aged about 16 years and PW-
2 aged about 14 years, are said to have been the victims of sexual
assault perpetrated on them by their biological father, aged about
44 years. The last incident having occurred on 25-08-2020. This
allegation came to light on the lodging of the FIR, Exhibit 3, by PW-
3 and PW-7, Team Members of the Childline Sub-Centre of the
concerned area, on 26-08-2020. It was informed therein that the
two minor girls were rescued by the relevant Childline Sub-Centre
on information received at the Childline Helpline No.1098 at 11
a.m. the same day. Pursuant thereto, the matter came to be
registered at the concerned Police Station under Section 376 of the
Indian Penal Code, 1860 (hereinafter, "IPC"), read with Sections
4/6 of the Protection of Children from Sexual Offences Act, 2012
(hereinafter, "POCSO Act") against the Respondent.
2. The matter was investigated into by PW-14 the IO of
the case, who submitted Charge-Sheet against the Respondent
under the afore-mentioned legal provisions. Charge was framed by
the Learned Trial Court against the Respondent under Sections
5(n)/6, 9(n)/10, 9(l)/10 of the POCSO Act, Sections 376(2)(f),
376(3), 354 and 506 of the IPC. The trial commenced as the
Respondent pleaded "not guilty" to any of the charges. The
Prosecution examined fourteen witnesses to prove its case.
Thereafter, the Respondent was examined under Section 313 of the
Code of Criminal Procedure, 1973 (hereinafter, "Cr.P.C."), where he
claimed innocence and stated that he had not committed the
alleged offences against his minor daughters. That, as he was a
strict father, they had falsely implicated him. The Learned Trial
Court on marshalling the entire evidence on record concluded that
the evidence of the Prosecution witnesses did not support the
Prosecution case and the Respondent was entitled to the benefit of
doubt, consequently, he was acquitted of all the offences charged
with.
3. Learned Additional Public Prosecutor, assailing the
Judgment of acquittal in Sessions Trial (POCSO) Case No.26 of
2020, dated 16-11-2022, of the Court of the Special Judge,
Protection of Children from Sexual Offences (POCSO) at Namchi,
urged that in fact the Prosecution had established that the offence
on the minor victims were perpetrated since the year 2011. That,
the acts of sexual assault continued against both the victims till
2018/2019 and both victims had complained before PW-8 their
school Principal and PW-9 their school teacher, both the authorities
failed to take steps in the matter. Consequently, having summoned
up adequate courage they called the Childline Helpline number and
reported the matter. That, the evidence of both the victims are
consistent with regard to the sexual assault perpetrated on them
by their father and hence, the Judgment of the Learned Trial Court
be set aside and the Respondent be convicted for the offences
charged with and sentenced as per law.
4. Per contra, Learned Counsel for the Respondent
submitted that the Prosecution failed to establish its case beyond
reasonable doubt and merely because it is a case under the POCSO
Act, the Respondent cannot be submitted to the rigors of
incarceration, sans proof of commission of offence. Hence, no
interference is essential in the impugned Judgment.
5. We have heard Learned Counsel for the parties in
extenso and carefully examined all evidence on record.
6. On the anvil of the submissions put forth, we are to
consider whether the Learned Trial Court failed to appreciate the
evidence of the victims in its correct perspective, which thereby led
to the acquittal of the Respondent.
7. The Learned Trial Court formulated inter alia the
following points for determination;
a. that the accused, being the father of the victims, committed
penetrative sexual assault upon the victims.
b. that the accused, being the father of the victims, sharing
the same household, committed sexual assault upon the
victims.
c. that the accused committed sexual assault upon the victims,
repeatedly.
d. that the accused, being the father of the victims, committed
rape upon the victims.
e. that the accused committed rape upon the victims who were
under 16 years of age.
f. that the accused assaulted and used criminal force against
the victims in order to outrage their modesty.
g. that the accused intimidated the victims, criminally.
8. The Learned Trial Court then proceeded to address the
issue regarding the age of the victims and in Paragraphs 23, 24
and 25 of the impugned Judgment discussed Exhibits 25 and 26
the Birth Certificates of the victims. It was inter alia noted that to
prove the contents thereof, the Prosecution examined PW-4 Izak
Rai and IO of the case PW-14. The Learned Trial Court observed
inter alia as follows:
"23. ................. In order to prove the seizure of
Exhibit 25 and Exhibit 26, and also to prove the
contents thereof, the prosecution examined PW 4
(Ijek Rai) and IO of the case (PW 14). ......... in view of
the evidence of PW 4, it is difficult to belief (sic) that
the original Birth Certificate was seized by the IO in
the presence of PW 4 and Baldev Chettri, who as
argued by Ld Defence Counsel was not arrayed as a
witness. Further, PW 4 has not stated anything in his
evidence about the IO seizing the Birth Certificate of
the victims, Baldev Chettri and PW 4 standing as
witness, during his examination before the Court.
..................."
(i) In this context, on meticulously examining the
evidence of PW-4, it is seen that he is a Childline Member and had
received the call from a staff of a Childline Centre of another area,
who informed him that, a minor child had complained about sexual
abuse by her father. The witness mentioned that counselling was
extended to both children after they were rescued by PW-4. He
makes no mention whatsoever of the seizure of Exhibits 25 and 26
in his presence or knowledge of its contents.
(ii) It is therefore unfathomable as to how the Learned
Trial Court arrived at the finding that the Prosecution had furnished
PW-4 to prove the contents of Exhibits 25 and 26 as neither his
deposition reveals such facts nor was he listed as the witness who
was to prove the said documents. The Charge-Sheet in the records
of the case, reads as "FINAL FORM/REPORT -- Section 173 Cr.P.C. --
PART III" wherein at Sl. No.5, the name of PW-4 appears as "Izak
Rai" and in Column No.7 under the heading "Type of evidence to be
tendered" it is recorded as; "FIR & statement 161 Cr.P.C & 164
Cr.P.C (victim)". Therefore flagging the above two points, the
observation of the Learned Trial Court that PW-4 was to prove
Exhibits 25 and 26 is clearly an erroneous observation.
(iii) That having been said, while continuing the discussion
pertaining to the victims‟ age, the Learned Trial Court was of the
view that the wife of the Respondent, who is the mother of the
victims was tendered by the Prosecution, without so much as
enquiring of her of the date of birth of the victims, neither was
such enquiry made from PW-5, the victims‟ brother. The evidence
of PW-8 the school Principal, who identified Exhibit 5, photocopy of
details entered in the school admission records of the victims was
disregarded by the Court, for the reason that, the original Register
was not furnished before the Court. The Learned Trial Court was
also unimpressed with the evidence of PW-10, the Registrar, Births
& Deaths of the concerned PHC, who identified Exhibits 8 and 9 as
the relevant page of the Birth Register, pertaining to the victims, as
the witness was unaware of the basis of the entries therein. The
Learned Trial Court disregarded the evidence of PW-11 as she had
only received the requisition, Exhibit 10 from the IO, requesting for
the photocopy of the Admission Register along with date of birth
recorded in the Register, but such documents evidently were not
furnished before the Court. After discussing the evidence of the
witnesses supra, the Court concluded that in light of the evidence
furnished it was difficult to conclude that PW-1 and PW-2 were
„children‟ as defined under the POCSO Act.
(iv) Apart from the error with regard to PW-4 discussed
(supra), we are of the considered opinion that no error arises on
the reasoning and finding of the Learned Trial Court with regard to
the age of the victims as discussed supra.
9. While disbelieving the victims on the aspect of sexual
assault, the Learned Trial Court in the following Paragraphs of the
impugned Judgment observed as extracted hereunder;
"26. Having dealt with the age of the victims, now
this court has to consider whether the sexual assault
against the victims by the accused has been proved by
the prosecution. The most important witnesses
produced by the prosecution in order to establish the
sexual assault against the accused were PW 1 and PW
2, respectively. The evidence of PW 1 and PW 2,
including their statements under Section 164 CrPC has
been considered by this court carefully. The 164 CrPC
statements of the victims do not corroborate to their
depositions before the court. The statements of PW 1
and PW 2 corroborates to the extend (sic) that both of
them have stated: It is true that before lodging the
FIR my father (accused) had warned me if I failed in
my academic curriculum he would buy me a cow and
that I would have to look after it and take it for
grazing... (emphasis supplied). It this court considers
the evidence of PW 1 and PW 2, respectively, this
court is inclined to except (sic) the argument of Ld
Defence Counsel that the accused was a strict father
and that he may have been punishing the victims, if
they do not complete the chores assigned by him. This
court also cannot overlook the evidence of PW 1 and
PW 2, respectively, which corroborates to the extend
(sic) that the accused deposited a sum of Rs 2,000/-
(Rupees Two Thousand) Only in the bank accounts of
the victims. The other point which remains
unanswered is why did PW 1 as well as PW 2 did not
reveal about the incident, to their mother (PW 6) and
their brother (PW 5). The exact PO, number of
incident(s) of assault, the whereabout of the mother,
during the time of the alleged assault upon the
victims, also remained unanswered before this court.
27. The evidence of PW 5 (brother of the victims)
and PW 6 (mother of the victims) belies the case of
the prosecution, so does the evidence of PW 12 (the
doctor who examined the victims). The only evidence
which was placed before this court with regard to
sexual assault was of PW 9 (teacher of PW 1). PW 9
has stated, during the year 2018-2019, PW 9 came
to know from PW 1 that PW 1 was subjected to bad
touch by the accused who was her father. As per
PW 9, on hearing this PW 9 informed the principal
who later called PW 1‟s mother (PW 6) and
confronted her however, PW 6 denied the said
allegation, and instead defended the accused. Thus,
in view of the contradictory evidence of PW 9 and PW
6 this court cannot consider their evidence(s) to be
vital evidence to establish the charge of sexual
assault.
28. ........................ Further the evidence of PW 14 (IO
of the case) also does not lend credence to the case
of the prosecution, as the IO has specifically stated
he did not array Baldev Chettri as a witness in this
case. Further, PW 14 has also stated that he did not
array the paternal uncle of the victims, as a witness in
the present case. The evidence brought before this
court by the defence is that the accused was a strict
father however, the IO has failed to investigate the
present case on that aspect, thus, has left this court
with unanswered questions.
..................................................................
30. The case of the prosecution is that the victims
were sexually assaulted by the accused, continuously
for many years ie when PW 1 was in Class-II, and PW
2 was in Class-VII, respectively. It is relevant to note
the FIR came to be lodged only on 26.08.2020, ie
years after the continuous sexual abuse of the accused
upon the victims. It is difficult thus, to believe that
neither the mother, nor the brother(s) of the victims
were unaware of the incident, living under the same
roof. Further, the prosecution, as discussed above, did
not examine the mother and the brother on that
aspect, nor did the prosecution inquire the age of the
victims, from the mother and the brother(s)."
Having thus meticulously perused the observations, the
reasoning and the conclusion of the Learned Trial Court on the
question of sexual assault, we are inclined to disagree with the
findings of the Learned Trial Court.
10. Indeed, before delving into further discussions on the
afore-mentioned point, it is relevant to record here that we are
aware of the position of law regarding the scope of intervention in
a case of acquittal in criminal appeals. Section 386 Cr.P.C. clearly
lays down that in an appeal from an order of acquittal, the
Appellate Court may reverse such order and direct that further
enquiry be made or that the accused be re-tried or committed for
trial as the case may be, or find him guilty and pass sentence on
him according to law. We cannot loose sight of the provisions of
Section 386(e) of the Cr.P.C. which reads as follows;
"386. Powers of the Appellate Court.--After
perusing such record and hearing the appellant or his
pleader, if he appears, and the Public Prosecutor if he
appears, and in case of an appeal under section 377
or section 378, the accused, if he appears, the
Appellate Court may, if it considers that there is no
sufficient ground for interfering, dismiss the appeal,
or may--
.......................................................................................
(e) make any amendment or any
consequential or incidental order that
may be just or proper;
................................................................................."
The provision thus urges the Appellate Court to ensure that
evenhanded justice is meted out to the parties concerned.
(i) It goes without saying that the presumption
commences with the innocence of the accused, unless, the
Prosecution is able to establish its case, by proving the guilt of the
accused beyond all reasonable doubt. While considering an Appeal
against acquittal the Supreme Court in Jagan M. Seshadri vs. State of
T.N. has held as follows;
"9. ...................... We are constrained to observe
that the High Court was dealing with an appeal
against acquittal. It was required to deal with various
grounds on which acquittal had been based and to
dispel those grounds. It has not done so. Salutary
principles while dealing with appeal against acquittal
have been overlooked by the High Court. If the
appreciation of evidence by the trial court did not
suffer from any flaw, as indeed none has been pointed
out in the impugned judgment, the order of acquittal
could not have been set aside. The view taken by the
learned trial court was a reasonable view and even if
by any stretch of imagination, it could be said that
another view was possible, that was not a ground
sound enough to set aside an order of acquittal."
(ii) In Sanjeev and Another vs. State of Himachal Pradesh2 it
was observed by the Supreme Court is as follows;
"7. It is well settled that:
7.1. While dealing with an appeal against
acquittal, the reasons which had weighed with the
trial court in acquitting the accused must be dealt
with, in case the appellate court is of the view that
(2002) 9 SCC 639
(2022) 6 SCC 294
the acquittal rendered by the trial court deserves to
be upturned .........
7.2. With an order of acquittal by the trial
court, the normal presumption of innocence in a
criminal matter gets reinforced .........
7.3. If two views are possible from the
evidence on record, the appellate court must be
extremely slow in interfering with the appeal against
acquittal ............"
(iii) More recently, in Mallappa and Others vs. State of
Karnataka the Supreme Court held that:
"26. No doubt, an order of acquittal is open to
appeal and there is no quarrel about that. It is also
beyond doubt that in the exercise of appellate
powers, there is no inhibition on the High Court to
reappreciate or re-visit the evidence on record.
However, the power of the High Court to reappreciate
the evidence is a qualified power, especially when the
order under challenge is of acquittal. The first and
foremost question to be asked is whether the trial
court thoroughly appreciated the evidence on record
and gave due consideration to all material pieces of
evidence. The second point for consideration is
whether the finding of the trial court is illegal or
affected by an error of law or fact. If not, the third
consideration is whether the view taken by the trial
court is a fairly possible view. A decision of acquittal
is not meant to be reversed on a mere difference of
opinion. What is required is an illegality or
perversity.
27. It may be noted that the possibility of two
views in a criminal case is not an extraordinary
phenomenon. The "two-views theory" has been
judicially recognised by the courts and it comes into
play when the appreciation of evidence results into
two equally plausible views. However, the
controversy is to be resolved in favour of the
accused. For, the very existence of an equally
plausible view in favour of innocence of the accused
is in itself a reasonable doubt in the case of the
prosecution. Moreover, it reinforces the presumption
of innocence. And therefore, when two views are
possible, following the one in favour of innocence of
the accused is the safest course of action.
Furthermore, it is also settled that if the view of the
trial court, in a case of acquittal, is a plausible view,
it is not open for the High Court to convict the
accused by reappreciating the evidence. If such a
course is permissible, it would make it practically
impossible to settle the rights and liabilities in the
eye of the law." [emphasis supplied]
(iv) In Sadhu Saran Singh vs. State of Uttar Pradesh and
Others the Supreme Court observed as follows;
(2024) 3 SCC 544
(2016) 4 SCC 357
"20. ...................... In an appeal against acquittal
where the presumption of innocence in favour of the
accused is reinforced, the appellate court would
interfere with the order of acquittal only when there is
perversity of fact and law. However, we believe that
the paramount consideration of the Court is to do
substantial justice and avoid miscarriage of justice
which can arise by acquitting the accused who is
guilty of an offence. A miscarriage of justice that may
occur by the acquittal of the guilty is no less than
from the conviction of an innocent. ...................
21. This Court, in several cases, has taken the
consistent view that the appellate court, while
dealing with an appeal against acquittal, has no
absolute restriction in law to review and relook the
entire evidence on which the order of acquittal is
founded. If the appellate court, on scrutiny, finds that
the decision of the court below is based on erroneous
views and against settled position of law, then the
interference of the appellate court with such an order
is imperative." [emphasis supplied]
(v) In Harijan Bhala Teja vs. State of Gujarat5 the Supreme
Court held as follows;
"12. No doubt, where, on appreciation of
evidence on record, two views are possible, and the
trial court has taken a view of acquittal, the appellate
court should not interfere with the same. However,
this does not mean that in all the cases where the
trial court has recorded acquittal, the same should not
be interfered with, even if the view is perverse. Where
the view taken by the trial court is against the weight
of evidence on record, or perverse, it is always open
for the appellate court to express the right conclusion
after reappreciating the evidence if the charge is
proved beyond reasonable doubt on record, and
convict the accused. ................................."
11. The above Judgments therefore clearly lay down the
parameters which the High Court is to be alive to when considering
an appeal against acquittal and the scope for intervention thereof.
While bearing in mind the above enunciated principles it is worth
noticing that the introduction to the POCSO Act provides inter alia
that, sexual offences against children are not adequately addressed
by the existing laws. That, a number of such offences are neither
specifically provided for nor are they adequately penalized. Such
offences against children need to be defined explicitly and
(2016) 12 SCC 665
State of Sikkim vs. Suresh Pradhan 11
countered through adequate penalties as an effective deterrence.
The Statement of Objects and Reasons inter alia provides that the
data collected by the National Crime Records Bureau shows that
there has been an increase in cases of sexual offences against
children. Therefore, it was proposed to enact a self-contained
comprehensive legislation to provide for protection of children from
the offences of sexual assault, sexual harassment and pornography
with due regard to safeguarding the interest and well being of the
child at every stage of the judicial process. The introduction to the
Act itself states that sexual exploitation and sexual abuse of
children are heinous crime and need to be effectively addressed.
The intent and purport of the POCSO Act have been thus
delineated succinctly.
12. While concluding that the Prosecution failed to prove its
case of sexual assault on the minor by the Respondent, the
Learned Trial Court was of the view that the Section 164 Cr.P.C.
statement of the victims do not corroborate their depositions
before the Court. Having walked through the statement of the
depositions referred to above, we are of the considered view that
the crux of the case has been mentioned unequivocally, sans
exacerbation and embellishments by both the victims in their
Section 164 Cr.P.C. statements and depositions before the Court.
(i) PW-1 categorically stated in her Section 164 Cr.P.C.
statement that, since she was in Class II the Respondent used to
fondle her breasts, touch her vagina and sometimes place his
genital on the side of her vaginal opening. Before the Learned Trial
Court she has, in her deposition in consonance with her Section
164 Cr.P.C. statement, stated that "Since I was in Class-II, my
father (accused) used to touch and squeeze my breasts and also
used to touch my vagina with his hands and penis. These acts
continued till the year 2020 when I was studying in Class-XI."
Despite a prolix cross-examination, the statements made by her
were not decimated.
(ii) PW-2 in her Section 164 Cr.P.C. statement has stated
that when she reached Class VII her father started touching her
body. He used to squeeze her breasts by putting his hands
underneath her clothes, remove her t-shirt look at her breasts and
would ask her as to who else was touching her breasts. He also
inserted his finger inside her vagina. In her evidence before the
Court, she has with consistency reiterated that when she was in
Class VII her father touched her breasts, by putting his hand
underneath her clothes. Her father used to ask her who was
touching her breasts and making it grow. The cross-examination
did not decimate her evidence and has extracted the fact that the
Respondent used to beat her, her mother and elder sister whenever
he was drunk.
(iii) Thus, in view of the persistence in the evidence of PW-
1 and PW-2 in their Section 164 Cr.P.C. statements and depositions
before the Court which are cogent, articulate and stated with
clarity, there is absolutely no reason to conclude that their
evidence was concocted or unbelievable. The provision of Section
29 of the POCSO Act is also to be borne in mind at this juncture
while considering the evidence of the minor victims. For easy
reference the provision is extracted below;
"29. Presumption as to certain offences.--
Where a person is prosecuted for committing or
abetting or attempting to commit any offence under
sections 3, 5, 7 and section 9 of this Act, the Special
Court shall presume, that such person has committed
or abetted or attempted to commit the offence, as the
case may be, unless the contrary is proved."
(iv) The Learned Trial Court was of the view that the father
was strict and hence the allegations against him, besides, he also
deposited money in the account of the victims. Merely depositing
money in the account of the victims would not absolve or render
the Respondent not guilty of the repulsive and reprehensible acts
perpetrated by him not only one daughter but both daughters
begotten by him. It would be profitable to peruse the
pronouncement of the Supreme Court on the aspect of character of
an individual as laid down in Harvinder Singh alias Bachhu vs. State
of Himachal Pradesh at Paragraphs 17 and 18 as follows;
"17. A court of law cannot declare the
reputation of a person based upon its own opinion
merely because a person is educated and said to be
God-fearing, that by itself will not create a positive
reputation.
18. Character and reputation do have an
element of interconnectivity. Reputation is predicated
on the general traits of character. In other words,
character may be subsumed into reputation. Courts
are not expected to get carried away by the mere
background of a person especially while acting as an
appellate forum, when his conduct, being a relevant
fact, creates serious doubt. In other words, the
conduct of a witness under Section 8 of the Evidence
Act, is a relevant fact to decide, determine and prove
the reputation of a witness. When the conduct
indicates that it is unnatural from the perspective of
normal human behaviour, the so-called reputation
takes a back seat.
..............................................................."
13. The Learned Trial Court was swayed by the fact that
the victims did not disclose the incident to their mother PW-6 and
brother PW-5 and that it was difficult to believe that neither the
brother nor the mother were aware of the incidents when they
were living under the same roof. The Learned Trial Court was of
the view that the non-reporting of the incidents by PW-1 and PW-2
2023 SCC OnLine SC 1347
to their mother PW-6 and their brother PW-5 also raised suspicions
about the incidents. Although it is true that the Prosecution has
tendered PW-6 being the mother of the victim, the evidence of PW-
2 reveals that both PW-6 and herself used to be assaulted by the
Respondent when he was inebriated and we can only assume at
this stage that PW-6 had opted for silence as she could have been
dependant in various ways on the Respondent. Be that as it may,
we are not making any observation on this point. The Learned Trial
Court was also impressed with the denial by PW-6 to PW-9 about
the occurrence of any such incident and chose to rely on such
denial, observing that the evidence of PW-9 and PW-6 were
contradictory. The non-arraignment of the paternal uncle of the
victims also weighed with the Learned Trial Court in disbelieving
the victims, although no reasons for such conclusion have been
disclosed in the impugned Judgment.
(i) The evidence of PW-9, the school teacher indicates that
one of the friends of PW-1 came to her and told her that PW-1 had
told her that her father had subjected her to "bad touch". She
called PW-1 and spoke to her privately and enquired whether she
had told her friend about the "bad touch" perpetrated on her by
her father. The victim PW-1 confirmed it as true. When PW-9
enquired as to how severe it was, she told her that her father just
subjected her to "bad touch". PW-9 then informed PW-8 the school
Principal, who directed her to call PW-6 her mother. PW-6 however
denied such incidents. It is relevant to remark that PW-6 made no
effort to even question her daughter PW-1 about her allegations
but straightway denied that such incidents were occurring in their
house which, in our considered opinion, reveals that the mother
was aware of it and as a knee jerk reaction instantly denied it.
PW-8 corroborated the evidence of PW-9.
(ii) In Vadivelu Thevar and Another vs. State of Madras7 the
Supreme Court held as follows;
"[12] .................................. There is another
danger in insisting on plurality of witnesses.
Irrespective of the quality of the oral evidence of a
single witness, if courts were to insist on plurality of
witnesses in proof of any fact, they will be indirectly
encouraging subornation of witnesses. Situations may
arise and do arise where only a single person is
available to give evidence in support of a disputed
fact. The court naturally has to weigh carefully such a
testimony and if it is satisfied that the evidence is
reliable and free from all taints which tend to render
oral testimony open to suspicion, it becomes its duty
to act upon such testimony. The law reports contain
many precedents where the court had to depend and
act upon the testimony of a single witness in support
of the prosecution. There are exceptions to this rule,
for example, in cases of sexual offences or of the
testimony of an approver; both these are cases in
which the oral testimony is, by its very nature,
suspect, being that of a participator in crime. But,
where there are no such exceptional reasons
operating, it becomes the duty of the court to convict,
if it is satisfied that the testimony of a single witness
is entirely reliable. We have therefore, no reasons to
refuse to act upon the testimony of the first witness,
which is the only reliable evidence in support of the
prosecution."
14. It was further opined by the Learned Trial Court that
the case of the Prosecution is that the victims were sexually
assaulted by the accused continuously for many years, i.e., when
PW-1 was in Class II and PW-2 was in Class VII. That, it was
relevant to note that the FIR came to be lodged only on 26-08-
2020, i.e., years after the continuous sexual abuse of the accused
upon the victims. Besides, the mother and brother were not
examined on this aspect by the Prosecution. The Learned Trial
Court also observed that the Respondent during his examination
under Section 313 Cr.P.C. pleaded false implication. Hence, in such
circumstances, it would be a travesty of justice to shift the
AIR 1957 SC 614
presumption of culpable mental state as defined under Section 29
of the POCSO Act upon the Respondent.
15. It may be pertinently noted here that every person has
a different reaction to the circumstances that they are faced with.
One person may act impulsively, at the spur of the moment while
another may mull over the circumstance and take steps belatedly.
In Lahu Kamlakar Patil and Another vs. State of Maharashtra8 the
Supreme Court observed that :
"26. From the aforesaid pronouncements, it is
vivid that witnesses to certain crimes may run away
from the scene and may also leave the place due to
fear and if there is any delay in their examination, the
testimony should not be discarded. That apart, a
court has to keep in mind that different witnesses
react differently under different situations. Some
witnesses get a shock, some become perplexed,
some start wailing and some run away from the
scene and yet some who have the courage and
conviction come forward either to lodge an FIR or get
themselves examined immediately. Thus, it differs
from individuals to individuals. There cannot be
uniformity in human reaction. While the said
principle has to be kept in mind, it is also to be borne
in mind that if the conduct of the witness is so
unnatural and is not in accord with acceptable
human behaviour allowing variations, then his
testimony becomes questionable and is likely to be
discarded." [emphasis supplied]
(i) These observations can also be employed for the
purposes of considering the position and circumstances of the
victims in the instant case. It is their father who committed the
offence which could have made them reticent about complaining to
their mother. PW-1 based on her evidence could have been around
12 years when the offence was first perpetrated on her. The
POCSO Act was enforced only in the year 2012. Awareness of the
Act came to be generated 4/5 years thereafter. The victims were
children and not living in an urban area. They belong to a remote
rural area. These circumstances coupled with other unknown
(2013) 6 SCC 417
circumstances could have caused the delay in reporting the
incident. The circumstances of the case are therefore material to
the delay that occurred. The consistent evidence of PW-1 and PW-
2 is that they did run from pillar to post in their quest for reliefs
and justice, till finally being aware of the Childline Helpline No.1098
which they called.
(ii) In the context of delay in lodging the FIR, in Ravinder
Kumar and Another vs. State of Punjab the Supreme Court observed
as follows;
"13. ............................... It has to be remembered
that law has not fixed any time for lodging the FIR.
Hence a delayed FIR is not illegal. Of course a prompt
and immediate lodging of the FIR is the ideal as that
would give the prosecution a twin advantage. First is
that it affords commencement of the investigation
without any time lapse. Second is that it expels the
opportunity for any possible concoction of a false
version. Barring these two plus points for a promptly
lodged FIR the demerits of the delayed FIR cannot
operate as fatal to any prosecution case. It cannot be
overlooked that even a promptly lodged FIR is not an
unreserved guarantee for the genuineness of the
version incorporated therein.
...........................................................................
15. We are not providing an exhaustive
catalogue of instances which could cause delay in
lodging the FIR. Our effort is to try to point out that
the stale demand made in the criminal courts to treat
the FIR vitiated merely on the ground of delay in its
lodgment cannot be approved as a legal corollary. In
any case, where there is delay in making the FIR the
court is to look at the causes for it and if such causes
are not attributable to any effort to concoct a version
no consequence shall be attached to the mere delay
in lodging the FIR. ..................................."
(iii) The Supreme Court in State of Himachal Pradesh vs.
Prem Singh inter alia laid down as follows;
"6. So far as the delay in lodging the FIR is
concerned, the delay in a case of sexual assault,
cannot be equated with the case involving other
offences. There are several factors which weigh in the
mind of the prosecutrix and her family members
before coming to the police station to lodge a
complaint. In a tradition-bound society prevalent in
(2001) 7 SCC 690
(2009) 1 SCC 420
India, more particularly, rural areas, it would be quite
unsafe to throw out the prosecution case merely on
the ground that there is some delay in lodging the
FIR. ............"
(iv) Further, in the recent pronouncement on the delay of
lodging the FIR, the Supreme Court in Sekaran vs. State of Tamil
Nadu held as follows;
"14. We start with the FIR, to which exception
has been taken by the appellant urging that there has
been no satisfactory explanation for its belated
registration. It is trite that merely because there is
some delay in lodging an FIR, the same by itself and
without anything more ought not to weigh in the mind
of the courts in all cases as fatal for the prosecution.
A realistic and pragmatic approach has to be adopted,
keeping in mind the peculiarities of each particular
case, to assess whether the unexplained delay in
lodging the FIR is an afterthought to give a coloured
version of the incident, which is sufficient to corrode
the credibility of the prosecution version.
15. In cases where delay occurs, it has to be
tested on the anvil of other attending circumstances.
If on an overall consideration of all relevant
circumstances it appears to the court that the delay in
lodging the FIR has been explained, mere delay
cannot be sufficient to disbelieve the prosecution
case; however, if the delay is not satisfactorily
explained and it appears to the court that cause for
the delay had been necessitated to frame anyone as
an accused, there is no reason as to why the delay
should not be considered as fatal forming part of
several factors to vitiate the conviction."
16. It was the observation of the Learned Trial Court that
apart from the evidence of PW-5 and PW-6 belying the Prosecution
case, the evidence of PW-12 the Doctor, who examined the
victims, also did not support it. In this context, it is appropriate to
notice that when PW-2 was examined by PW-12 the Doctor, it was
stated that;
".....................................................
On the same day, the minor victim was
brought to CHC Jorethang at around 8:35 p.m. with
alleged history of sexual assault by her biological
father since past two years on multiple occasions.
She gave a history of her father groping her breasts.
(2024) 2 SCC 176
She did not give a history of forceful penetrative
sexual assault. Last history of sexual assault was
two to three days ago.
............................................................"
While examining PW-1, the Doctor has recorded as follows;
".....................................................
On the same day, the minor victim was
brought to CHC Jorethang at around 7:55 p.m. with
alleged history of sexual assault by her biological
father since she was studying in Class-II. She did not
give a history of forceful penetrative sexual assault.
Last history of sexual assault was on 21.08.2020.
She also gave a history of her father exposing his
genitalia and rubbing it on her private part.
............................................................"
(i) Thus, both the minor victims had given a history of
sexual assault to PW-12, but not of penetrative sexual assault. In
this circumstance, it stands to reason that there would be no
injuries on their person or genital, on their examination by the
Doctor but as clearly stated by the Doctor sexual assault on both
the victims could not be ruled out.
17. For the foregoing reasons and the legal provision
extracted above, we are inclined to hold that the appreciation of
the Prosecution evidence by the Learned Trial Court is flawed and
there was perversity in the observation of the Learned Trial Court
that the Respondent did not perpetrate the offence against his
children, this observation being against the weight of evidence.
18. Besides, keeping in mind the intent and purport of the
POCSO Act and the specific mandate of Section 29 of the said Act,
in our considered opinion, in the instant case, there is no reason
whatsoever to disbelieve the victims who have been the recipients
of the depravity of their own father.
19. The impugned Judgment deserves to be and is
accordingly set aside.
20. In view of the fact that the Prosecution failed to
establish that the victims were minors the Respondent cannot be
convicted of the offences under the POCSO Act which he was
charged with.
(i) The Respondent was charged with the offences under
Sections 376(2)(f) and 376(3) of the IPC. As no offence of rape
has been made out, he is convicted of the offence under Section
354A(1)(i) and Section 506 of the IPC.
(ii) However, as no specific charge under Section
354A(1)(i) of the IPC was framed against the Respondent, in the
foregoing circumstance, it is apposite to invoke the provisions of
Section 222(2) of the Cr.P.C. which reads as follows;
"222. When offence proved included in offence
charged.--(1) .........................................
(2) When a person is charged with an
offence and facts are proved which reduce it to a
minor offence, he may be convicted of the minor
offence, although he is not charged with it.
(3) ............................................................
(4) ............................................................"
(iii) It may be clarified here that the object of a charge is to
give the accused notice of the offence and the allegation that he is
to meet. If the necessary information is conveyed to him, then no
prejudice can be said to have been caused to him merely because
of the absence of a specific charge as in the instant case, where he
has been convicted under Section 354A(1)(i) of the IPC, sans
charge. The Court is not to be restricted by technicalities as its
main concern is to assess whether the accused had a fair trial and
was aware of the offence that he was being tried for. The offences
of rape for which charges were framed against the Respondent
have been reduced to a minor offence in consequence of the
evidence on record.
21. The Respondent is acquitted of the following offences;
(a) under Section 5(n) punishable under Section 6 of the
POCSO Act;
(b) under Section 9(l) punishable under Section 10 of the
POCSO Act;
(c) under Section 9(n) punishable under Section 10 of the
POCSO Act;
(d) under Section 354 of the IPC.
(e) under Section 376(2)(f) of the IPC; and
(f) under Section 376(3) of the IPC;
22. Appeal is allowed.
23. The matter be posted for hearing on Sentence.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
08-07-2024 08-07-2024
Approved for reporting : Yes
ds
