Delhi High Court Acquits Step-Father, Citing Unreliable 'Tutored' Child Witness Testimony in POCSO Case

New Delhi: The Delhi High Court has overturned the conviction and life sentence of a man accused of sexually assaulting and raping his minor step-daughter, finding the victim's testimony unreliable after she retracted her allegations during cross-examination conducted at the appeal stage. The court emphasized that while a child witness's testimony can be the sole basis for conviction, it is unsafe to rely upon it if there are signs of tutoring.

A Division Bench of HON'BLE MR. JUSTICE SURESH KUMAR KAIT and HON'BLE MR. JUSTICE MANOJ JAIN allowed the appeal (CRL.A.-1056/2019) filed by the appellant, Manvir @ Manish, setting aside his conviction under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Section 506 of the Indian Penal Code (IPC).

Case Background:

The case stemmed from an incident reported on November 3, 2014, involving 'S', the step-daughter of the appellant. According to the initial complaint and statement under Section 164 Cr.P.C., 'S' alleged that her step-father had sexually assaulted her three months prior during a village visit (dismissed by her mother as possible drunken behaviour) and later raped her one night at their Mubarakpur home, threatening her silence. She reported the incident to her cousin and maternal grandmother upon returning to the grandmother's home, leading to the FIR.

Based primarily on 'S''s testimony, which the trial court found consistent and reliable despite other key witnesses turning hostile, the appellant was convicted and sentenced to life imprisonment under Section 6 of the POCSO Act and two years rigorous imprisonment under Section 506 IPC.

Grounds of Appeal:

The appellant challenged the conviction citing several reasons, including: * Key prosecution witnesses not supporting the case. * Allegation of false implication due to his alcoholism. * Denial of fair trial due to alleged inadequate cross-examination of 'S' by the previous defence counsel. * Medical evidence (MLC) showing only an 'Old Torn' hymen with no fresh injury.

Crucial Development: Re-examination Under S. 391 CrPC

A pivotal moment in the appeal was the appellant's application under Section 391 Cr.P.C. read with Section 482 Cr.P.C., seeking permission to re-cross-examine 'S'. The High Court, noting that 'S''s testimony at trial remained virtually uncontroverted due to lack of material cross-examination, allowed the application to prevent a potential failure of justice. The cross-examination was conducted directly before the High Court.

Victim Retracts Allegations, Cites Tutoring:

During this re-examination, 'S' made a startling admission. She claimed that her earlier statements, including the one recorded under Section 164 Cr.P.C. and her deposition in court, were made at the behest of her maternal grandmother . The motivation, she stated, was her grandmother's desire to force the accused to quit drinking alcohol.

She stated: "It is correct that whatever I stated in the statement under Section 164 Cr.P.C. was at the behest of my mother and maternal grandmother so that my father would leave the drinking habit... when my deposition was recorded, whatever I said was at the behest of my maternal grandmother as she wanted our father to leave alcohol. (Vol. We felt that if he remained in jail, he would stop drinking)."

Despite re-examination by the prosecution, she remained firm on this stand.

High Court's Analysis:

The High Court critically analyzed the evidence, particularly in light of the victim's changed stance:

• Victim's Testimony: The court found the victim's subsequent testimony, where she attributed her previous allegations to tutoring by her grandmother, to be consistent and did not find it unreliable, particularly given the motivation cited (stopping the accused's drinking).
• Hostile Witnesses: The court noted that all other key witnesses – the victim's cousin, mother, and maternal grandmother – had turned hostile and did not support the prosecution's case regarding sexual assault. The court dismissed the prosecution's argument that the cousin or mother deposed under pressure, finding their depositions before the court free from coercion. The grandmother, despite admitting taking 'S' to the police station, denied knowing why the accused was arrested and later denied even the 'chhed-chhad' allegation. The mother stated the quarrel was given a "wrong colour".
• Forensic Evidence: The court found the recovered dupatta with semen unreliable as evidence. The victim's mother claimed it was used by the accused with her, the victim was never shown the cloth piece during her testimony, and significantly, no semen was detected on the victim's vaginal swab.
• Inconsistent Conduct: The court also found it inconsistent with the alleged incident that the victim had regularly visited the accused in jail after his arrest.

Legal Principle on Child Witnesses:

Citing precedents like Pradeep vs. State of Haryana , State of Madhya Pradesh v. Ramesh and Another , and Pramila v. State of Uttar Pradesh , the court reiterated that while a child witness can be the sole basis of conviction, courts must be cautious of the possibility of tutoring. If signs of tutoring are evident, corroborating evidence is crucial, and it becomes unsafe to rely solely on such testimony.

Decision:

Based on the totality of the evidence, particularly the victim's retraction, the complete lack of support from other key witnesses, and the unhelpful forensic evidence, the High Court concluded that the prosecution had failed to prove the charges beyond reasonable doubt.

"In view of our foregoing discussion, there are multiple reasons which compel us to grant benefit of doubt to the accused," the court stated. The court found the victim's testimony unreliable due to her categorical claim of being tutored by her grandmother.

The appellant was acquitted of all charges and ordered to be set at liberty forthwith. The court observed that the grandmother's attempt to use the justice system to curb the accused's alcoholism was a "dangerous and hazardous" plot.