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IN THE HIGH COURT OF BOMBAY
Anil S.Kilor, J.
Vishal - Appellant
Versus
State of Maharashtra - Respondent
Criminal Appeal No. 589 of 2022
Decided On : 11-04-2023
POCSO - Protection of Children from Sexual Offences Act, 2012 - Sections 6, 10, 27, 29 of POCSO Act, 2012; Section 164 of Cr.P.C. - The court discussed the provisions of the POCSO Act, particularly Sections 6 and 10, which pertain to sexual assault against children, emphasizing the need for corroborative evidence in cases involving child witnesses. The court highlighted the importance of medical examination within 24 hours as mandated by Section 27 of the POCSO Act and the implications of the presumption of guilt under Section 29. The court ultimately found that the evidence presented was insufficient to uphold the conviction due to inconsistencies and lack of corroboration.
Fact of the Case:
The appellant was convicted under Sections 6 and 10 of the POCSO Act for sexually assaulting a 6-year-old girl. The incident occurred while the victim was playing near her home, where the accused allegedly lured her into his house and committed the acts. The victim reported the incident to her mother, leading to the filing of an FIR the same day.
Finding of the Court:
The court found significant inconsistencies in the testimonies of the victim and her family members, raising doubts about the reliability of the victim's account. The medical examination conducted over two months after the incident showed no signs of trauma, contradicting the allegations. The court concluded that the prosecution failed to provide corroborative evidence to support the conviction.
Issues: Whether the conviction under Sections 6 and 10 of the POCSO Act was justified based on the evidence presented, particularly the reliability of the child witness and the absence of corroborative medical evidence.
Ratio Decidendi: The court emphasized that the evidence of a child witness must be scrutinized carefully, especially in light of potential tutoring. It reiterated that a conviction cannot be based solely on the testimony of a child without corroboration, particularly when inconsistencies arise. The court also highlighted the necessity of timely medical examination as per the POCSO Act.
Final Decision: The appeal was allowed, the conviction was quashed, and the appellant was acquitted of all charges under Sections 6 and 10 of the POCSO Act.
JUDGMENT/ORDER
1. Heard Shri S.V. Bhutada, learned counsel for the appellant, Shri N.R. Rode, learned A.P.P. for the respondent No.1/State and Ms A.S. Mishrikotkar, learned counsel for the respondent No.2/victim.
2. This appeal takes exception to the Judgment and order dtd. 22/8/2022 passed by the Extra Joint Additional Sessions Judge, (Special Judge, POCSO Court), Nagpur in Spe.Cri.(Child) Case No.302 of 2018, convicting the appellant for the offence punishable under Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the Act of 2012") and sentenced to suffer Rigorous Imprisonment for 20 years and to pay fine of Rs.15, 000.00 in default to suffer further Rigorous Imprisonment for one year. The appellant is further convicted for the offence punishable under Sec. 10 of the Act of 2012 and sentenced to suffer Rigorous Imprisonment for five years and to pay fine of Rs.5, 000.00 in default to suffer further Rigorous Imprisonment for three months.
3. The prosecution case is that, the incident in question took place on 22/9/2018 around 7.30 p.m. at Shantinagar, Bagde Plot, Nagpur. The First Information Report is lodged by the mother of the victim on very day.
4. The victim is a girl child of 6 years. The accused is resident of same area where victim resides. It is stated that, the victim was playing with her girl friends near her house at the time of incident. They were playing 'hide and seek' game.
5. It is further stated that, the victim came crying to her home and informed that the accused pulled her inside his house while she was hiding in front of his house and he closed the door of his house. Then he removed his clothes and gave his penis in her hand. Thereafter, he removed legging of the victim and touched and sucked her vagina. The victim then informed the accused that she is having a wee and started crying. The accused asked her to come next day again.
6. Thereafter, the victim forced open door of the house by giving push and went to her house. She narrated incident to her mother. The mother thereupon, informed her husband, mother in law and sister.
7. Thereafter, informant with her husband went to the house of the accused to question him about the incident. The accused kept mum without giving answer. While inquiry was being made with the accused, the public in the locality gathered. The public locked him inside the house.
8. Thereafter, informant with her husband went to the police Station and lodged the report.
9. Whereupon, the First Information Report (FIR) came to be registered. On filing of the charge-sheet, the case was registered as Spe.Cri.(Child) Case No.302 of 2018. The charges were framed at Exh.2 against the appellant under Ss. 6 and 10 of the Act of 2012 and the contents of the charge was read over and explained to the accused in vernacular. Whereupon, he refused to plead guilty. Hence, the trial was conducted.
10. The trial Court after marshaling oral as well as documentary evidence passed by the impugned judgment and order convicting the appellant for the offence punishable under Ss. 6 and 10 of the Act of 2012 and thereby, sentenced to suffer Rigorous Imprisonment for 20 years and 5 years respectively. The said judgment and order dtd. 22/8/2022, is under challenge in this appeal.
11. Shri Bhutada, learned counsel for the appellant submits that there is a variation in oral evidence of prosecution witnesses particularly PW-1 mother of the victim, PW-2 the victim and PW-7 the sister of the mother of the victim, as regards the incident.
12. It is submitted that in absence of any corroborative evidence particularly, in view of the fact that, the victim was tutored which resulted into improvisation in her version in oral testimony, it is not safe to base the conviction of the appellant merely on the oral evidence of the victim.
13. He further submits that, there was no compliance of Sec. 27 Act of 2012 read with Sec. 164-A of the Cr.P.C. as the victim was not medically
The court established that the testimony of a child witness requires careful scrutiny and corroboration, particularly in sexual assault cases, and that failure to comply with statutory requirements f....
For offences punishable under Section 376 of IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012, evidence of victim itself is sufficient – It does not need corroboration of te....
Sexual Assault - Recording of confessions and statements - Conviction upheld - Evidence of prosecution witnesses as well as initial statement given by victim child under Section 164 of Cr.P.C. substa....
The presumption of guilt under Section 29 of the POCSO Act is not absolute and requires the prosecution to establish foundational facts before the burden shifts to the accused to rebut the presumptio....
The testimony of a child witness can be relied upon if corroborated by other evidence, and the presence of support persons does not imply tutoring.
The need for corroboration of evidence, especially in cases involving child witnesses, and the rebuttable nature of the presumption under Section 29 of the POCSO Act.
Prosecution must establish foundational facts beyond reasonable doubt; mere reliance on victim’s inconsistent testimony is insufficient for conviction.
Statutorial presumption u/s 29 and 30 of POCSO Act certainly places a persuasive burden on appellant to show that he does not possess requisite culpable mental state for offence for which he is prose....
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