Sunday, 3 May 2020

How to appreciate evidence in case under POCSO Act?

A delicate balance is required to be maintained between the judicial perception of the anguish of the victim and the presumption of innocence of the accused and an inequitable tilt either way may not render sound justice. The evidence of a sole prosecutrix, if it inspires confidence, can definitely, as submitted by the learned Assistant Public Prosecutor, be the sole basis for conviction. However, the evidence in such cases must be of sterling quality. The defence has brought out the animosity between the complainant (PW-1) and the sole prosecutrix on the one side and the respondent and his daughter on the other. The negative result of both the medical and forensic evidence collected immediately after the alleged assault does not help the prosecution case further, more so, when she alleged forceful penetrative sexual assault. Although, we hasten to add that in some cases dependent upon the degree of violation, the lack of injury alone may not be a safe gauge. The defence has also been able to bring out certain facts

about the altercations and fight between them immediately preceding the lodging of the FIR (Exhibit-2) which also leans towards the claim of the innocence of the respondent.
15. Section 29 of the POCSO Act invoked by the learned Assistant Public Prosecutor at the appeal stage provides a reverse burden upon the accused in a prosecution under sections 3, 5, 7 and 9 of the POCSO Act. Charge was framed against the respondent under section 5(l) of the POCSO Act and therefore, section 29 of the POCSO Act may be attracted. We are, however, of the view that in order to shift the onus upon the accused by invoking the provision of section 29 of the POCSO Act, the foundational facts of the prosecution case must be established by leading evidence. In the present case, the learned Special Judge has disbelieved the deposition of penetrative sexual assault made by the minor prosecutrix. The disbelief is firmly based on the evidence in cross-examination of the complainant (PW-1), the minor prosecutrix and PW-3, the main witnesses. The disbelief was also fortified by the medical as well as forensic evidence which did not support the oral testimony of forceful penetrative sexual assault by the respondent and in fact overruled it. Sans the deposition of the minor prosecutrix, there is no other oral or material evidence. If, therefore, the deposition of the minor prosecutrix is disbelieved, there is no evidence in support of the prosecution‟s story. In such circumstances, the question of putting the onus upon the accused to prove his

innocence would be contrary to well settled principles of criminal jurisprudence. Had the testimony of the minor prosecutrix sustained judicial scrutiny, the mere lack of injuries alone may not have persuaded us to discard it. We, therefore, refrain from invoking the provision of section 29 of the POCSO Act on examination of the materials on record.

THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)

DIVISION BENCH:  MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
 MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE 
Crl. A. No. 07 of 2019
State of Sikkim Vs   Karna Bahadur Rai, 
Date of judgment : 14.03.2020

Bhaskar Raj Pradhan, J.

1. The sole testimony of a minor prosecutrix that she was sexually assaulted repeatedly by the respondent was disbelieved by the learned Special Judge. The judgment of acquittal dated 28.06.2018 is under challenge by the State.

According to the learned Assistant Public Prosecutor, the sole testimony of the minor prosecutrix had not been demolished during her cross-examination and as such the learned Special Judge erred in discarding it. Attention was also drawn to section 29 of the Protection of Children from Sexual Offences Act, 2012 (for short „the POCSO Act‟) under which, where a person is prosecuted for committing any offence under sections 3, 5, 7 and 9 of the POCSO Act, the Special Court shall presume, that such person has committed the offence unless, the contrary is proved.
2. The indictment against the respondent was initiated on a complaint filed by PW-1, the aunt of the minor prosecutrix. The First Information Report (for short „the FIR‟) (Exhibit-2) was recorded by Jigmee W. Bhutia (PW-14) on 01.06.2016 itself. She alleged that on 01.06.2016 when she returned home she found the minor prosecutrix crying. The minor prosecutrix was staying with the complainant (PW-1) since last four months. The FIR (Exhibit-2) stated that when the complainant (PW-1) enquired from the minor prosecutrix, she was informed that the respondent had been assaulting and raping her for many days.
3. The investigation by Prashant Rai (PW-15), the Investigating Officer, could not get any positive medical or forensic evidence. Dr. S.N. Adhikari (PW-7) who examined the minor prosecutrix on 01.06.2016 itself did not find any injury on either the “groin” or any part of the body of the minor

prosecutrix. He also examined the respondent but could not find any evidence of recent sexual intercourse. The blood sample, dry and wet penile swab and undergarment of the respondent collected by Dr. Silesh Rai (PW-9) on 02.06.2016 could also not provide any forensic evidence against the respondent.
4. Dr. Sangay Pelzang Tamang (PW-10), the gynaecologist, who examined the minor prosecutrix, found an old hymenal tear at 3 o‟clock and 9 o‟clock position. There was no fresh injury over her breasts, neck, perineum, vulva or any other part of her body. The pregnancy test was negative. The vaginal swab and the vaginal wash specimen collected from the minor prosecutrix by her also could not provide any forensic evidence against the respondent. There was no presence of motile or non-motile spermatozoa, blood or any other body fluid. The gynaecologist opined that clinical and cytopathological report was not suggestive of recent forceful sexual intercourse. She admitted that hymen can tear and rupture from so many other things besides sexual intercourse.
5. PW-4, PW-5, PW-6 and PW-8 are seizure witnesses during the process of investigation. Dr. Anusa Lama (PW-11), Registrar, Births and Deaths, proved the birth certificate of the minor prosecutrix in which her date of birth was recorded as 07.02.2002. The Headmaster (PW-12) of the Government Secondary School attended by the minor prosecutrix, proved that

the original admission register maintained by the school also recorded her date of birth as 07.02.2002.
6. Sonam Denka Wangdi (PW-13) was the Chief Judicial Magistrate who recorded the statement under section 164 of the Code of Criminal Procedure, 1973 (for short „the Cr.P.C‟) of the minor prosecutrix on 09.06.2016.
7. The crucial witnesses for the prosecution to succeed, therefore, are the complainant (PW-1), the minor prosecutrix (PW-2), minor witness (PW-3) and the wife of the respondent (DW-1).
8. The minor prosecutrix deposed that during her stay for four months in the house of the complainant (PW-1), she was sexually assaulted by the respondent who would often visit and show her obscene scenes on his mobile phone. Although, the respondent‟s mobile had been seized there was no further investigation. According to the minor prosecutrix, although the complainant (PW-1) and her husband slept together in the same house but nobody noticed the respondent sexually assaulting her as they would be fast asleep due to tiredness. She deposed that the respondent used to bring contraceptives with him and used the same for sexually assaulting her. According to the minor prosecutrix when she attempted to raise an alarm he used to put his hand on her mouth and so she could not scream for help. The minor prosecutrix stated that she was raped by the

respondent innumerable times and also explained that he used to put his penis into her vagina. According to the minor prosecutrix, she could not disclose this fact to the complainant (PW-1), her uncle or her brother. The minor prosecutrix deposed about the minor witness (PW-3), the daughter of the complainant (PW-1), and daughter of the respondent attending the same school. According to her, on the relevant day of quarrel, the daughter of the respondent and PW-3 had gone to school. There, the daughter of the respondent told PW-3 that the minor prosecutrix was a girl of immoral character. The minor prosecutrix deposed that she was deeply hurt and mentally affected after hearing this and started crying when the complainant (PW-1) saw her. At this moment, the minor prosecutrix told the complainant (PW-1) about the sexual assault. The FIR (Exhibit-2) was lodged immediately thereafter.
9. The cross-examination of the minor prosecutrix brought out several important facts. She admitted that she and the daughter of the respondent had a hot discussion on the night of 30.05.2016 after which they did not have cordial relationship. She also admitted that on 01.06.2016 after an altercation, the respondent hit the complainant (PW-1) with a stick after which they all returned home and proceeded to the police station. More importantly, the minor prosecutrix admitted that five of them used to sleep in a single room; the respondent had a wife and three children; she did not discuss the incident to her close

friends or her sisters and did not disclose about the incident although she had ample opportunities to do so.
10. The complainant (PW-1) deposed that she heard about the sexual assault from the minor prosecutrix. Her cross-examination by the defence is in great detail. She admitted that she had no personal knowledge about the sexual assault. She also admitted that the minor prosecutrix and the daughter of the accused had had some hot discussion and they had also pushed each other. The complainant (PW-1) corroborated the admission by the minor prosecutrix about the hot discussion and the bad relationship between them thereafter. The complainant also admitted that it was she who had asked the respondent to buy lipstick which she gave to the minor prosecutrix; there were three rooms in their house and there were no doors in the said three rooms; nine of them resided in the said house; she and her husband slept in one room and the minor prosecutrix along with her two daughters slept in the same room; the rooms were small and if anything happened inside the room someone sleeping would come to know; the minor prosecutrix never discussed anything incriminating against the respondent prior to the incident; her daughter and other friends were also not informed by the minor prosecutrix; the complainant (PW-1) and the respondent used to have some differences; after the quarrel when the complainant (PW-1) went to the house of the respondent to drop his daughter she was crying and the respondent saw them,

after which he hit the complainant (PW-1) with a stick twice; thereafter she came back home, looked for the minor prosecutrix and went to the „thana‟ and that although they all slept in the same room she did not see the respondent sexually assaulting the minor prosecutrix.
11. PW-3 was declared hostile. She deposed about the altercation between the daughter of the respondent and the minor prosecutrix. PW-3 did not depose anything beyond the fact that the minor prosecutrix had started crying when her mother had talked to her. During her cross-examination by the prosecution, she admitted that the minor prosecutrix and the respondent used to talk till late at night both inside and outside the house. She also admitted that on the relevant day, her mother had beaten her and the minor prosecutrix for causing trouble at which time she had disclosed about the bad relationship she had with the respondent. When PW-3 was cross-examined on behalf of the defence she admitted that the daughter of the respondent and the minor prosecutrix had had a discussion and did not enjoy a good relationship. She also admitted that she did not know anything about the bad relationship. She admitted further that the minor prosecutrix and the other children used to sleep together in a room and if somebody forces or does something the others would come to know about it. She admitted that prior to the fight between the minor prosecutrix and the daughter of the respondent, the minor

prosecutrix had never told them about such bad relationship. She admitted that she had never heard of any such incident about the respondent in the village.
12. The depositions of the minor prosecutrix, the complainant (PW-1) and PW-3 churned out after the elaborate cross-examination by the defence does reflect that immediately before the complainant (PW-1) lodged the FIR (Exhibit-2) there was altercation not only between the minor prosecutrix and the daughter of the respondent but between the complainant and the respondent themselves. The altercation between the respondent and the complainant had in fact resulted in the respondent physically assaulting the complainant (PW-1). The complainant (PW-1) admitted of having lodged the FIR (Exhibit-2) immediately after the physical assault on her. It is no doubt true that the minor prosecutrix has deposed about penetrative sexual assault committed upon her by the respondent. However, the deposition is about forceful penetrative sexual assault within the confines of a small room with five persons sleeping therein and the complainant (PW-1) and her husband sleeping in the immediate next room without any door between the two rooms, by an outsider. There is no evidence as to who allowed the respondent into the house in the night into a room with three nubile girls, two of whom were the complainant‟s (PW-1) own daughters. More importantly, the allegation of forceful sexual assault is not of an isolated incident but of several such assaults within a period of

four months. The minor prosecutrix deposed that as the respondent would close her mouth while committing the sexual assault she was unable to scream for help. However, she also admitted that she did not disclose about it to anybody thereafter even though she had opportunities to do so.
13. The parameters and contours of hearing an appeal against acquittal is no longer res integra. The Supreme Court in numerous judgments has defined the scope. Although, this Court while hearing an appeal against an order of acquittal possess all the powers it has while hearing an appeal against an order of conviction to reconsider the whole issue, reappraise the evidence and come to its own conclusion if the findings are against the weight of the evidence on record, before reversing such a finding of acquittal this court has to consider each ground of acquittal and to record its reasons for not accepting those grounds. We are also bound in such circumstance to keep in view the fact that the presumption of innocence is still available in favour of the respondent which now stands fortified by the order of acquittal passed by the learned Special Judge. On a fresh scrutiny of the materials on record even if we are of the opinion that there is another view which can be reasonably taken, the view in favour of the respondent should be adopted. We are to keep in mind that the trial court had had the advantage of looking at the demeanour of the witnesses and observing their conduct and even at this stage the respondent is entitled to benefit of doubt

which is such a reasonable person would honestly and conscientiously entertain as to the guilt of the respondent.
14. Keeping in mind the ambit and scope of the judicial examination in the present appeal against acquittal, we are of the view that judgment of acquittal passed by the learned Special Judge is neither perverse nor against the weight of the evidence on record. The learned Special Judge, as a Judge of facts had duly applied a common sense rule while testing the reasonability of the prosecution case. A delicate balance is required to be maintained between the judicial perception of the anguish of the victim and the presumption of innocence of the accused and an inequitable tilt either way may not render sound justice. The evidence of a sole prosecutrix, if it inspires confidence, can definitely, as submitted by the learned Assistant Public Prosecutor, be the sole basis for conviction. However, the evidence in such cases must be of sterling quality. The defence has brought out the animosity between the complainant (PW-1) and the sole prosecutrix on the one side and the respondent and his daughter on the other. The negative result of both the medical and forensic evidence collected immediately after the alleged assault does not help the prosecution case further, more so, when she alleged forceful penetrative sexual assault. Although, we hasten to add that in some cases dependent upon the degree of violation, the lack of injury alone may not be a safe gauge. The defence has also been able to bring out certain facts

about the altercations and fight between them immediately preceding the lodging of the FIR (Exhibit-2) which also leans towards the claim of the innocence of the respondent.
15. Section 29 of the POCSO Act invoked by the learned Assistant Public Prosecutor at the appeal stage provides a reverse burden upon the accused in a prosecution under sections 3, 5, 7 and 9 of the POCSO Act. Charge was framed against the respondent under section 5(l) of the POCSO Act and therefore, section 29 of the POCSO Act may be attracted. We are, however, of the view that in order to shift the onus upon the accused by invoking the provision of section 29 of the POCSO Act, the foundational facts of the prosecution case must be established by leading evidence. In the present case, the learned Special Judge has disbelieved the deposition of penetrative sexual assault made by the minor prosecutrix. The disbelief is firmly based on the evidence in cross-examination of the complainant (PW-1), the minor prosecutrix and PW-3, the main witnesses. The disbelief was also fortified by the medical as well as forensic evidence which did not support the oral testimony of forceful penetrative sexual assault by the respondent and in fact overruled it. Sans the deposition of the minor prosecutrix, there is no other oral or material evidence. If, therefore, the deposition of the minor prosecutrix is disbelieved, there is no evidence in support of the prosecution‟s story. In such circumstances, the question of putting the onus upon the accused to prove his

innocence would be contrary to well settled principles of criminal jurisprudence. Had the testimony of the minor prosecutrix sustained judicial scrutiny, the mere lack of injuries alone may not have persuaded us to discard it. We, therefore, refrain from invoking the provision of section 29 of the POCSO Act on examination of the materials on record.
16. In such circumstances, we are of the considered view that the judgment of acquittal passed by the learned Special Judge is a reasoned one, based on materials on record and we cannot venture against it.
17. Consequently, the State‟s appeal is dismissed and the judgment of acquittal dated 28.06.2018 in Sessions Trial (POCSO) Case No. 15 of 2016 passed by the learned Special Judge (POCSO) South Sikkim at Namchi, is upheld.
18. A certified copy of this Judgment be sent to the learned Trial Court along with the records.
( Bhaskar Raj Pradhan ) ( Arup Kumar Goswami )

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