(A) Protection of Children from Sexual Offences Act, 2012 – Section 5(1)/6 – Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 407 (Section 366 of Cr.P.C.) – Sexual assault on children – Death sentence – In Death Reference, High Court has statutory as well as constitutional obligation to scrutinize entire material, both on facts and law, uninfluenced by conclusions of Trial Court, and to satisfy itself whether conviction is sustainable and whether case falls within category of “rarest of rare” warranting imposition of capital punishment – Graver the crime, greater should be the standard of proof – Burden of proof never shifts from prosecution merely because allegation is grave – POCSO Act does not, either expressly or by necessary implication, dispense with cardinal principle of criminal jurisprudence that prosecution must prove its case beyond reasonable doubt. (Paras 6.2, 6.4, 6.4 and 6.5)

(B) Protection of Children from Sexual Offences Act, 2012 – Section 5(1)/6 – Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 407 (Section 366 of Cr.P.C.) – Sexual assault on children – Death sentence – While Court must zealously protect genuine victims of child sexual abuse, it must also remain vigilant against false or motivated accusations – Testimonies of victims have not corroborated with either contemporaneous circumstances or medical evidence – No independent witness has been examined to establish that cries were heard or that any attempt was made by neighbours to rescue children – Defence theory that families conspired to falsely implicate accused by presenting tutored and rehearsed versions cannot be brushed aside as improbable – While delay cannot be mechanically treated as a ground to discard prosecution case, unexplained or suspicious delay, when considered in context of surrounding circumstances and conduct of parties, may assume significance in assessing credibility of prosecution version – Absence of hymen, by itself, is not sufficient to hold that penetrative sexual assault had been committed – Accused acquitted of all charges. (Paras 10, 11.4, 12.2, 13.4,

14.5, 17.6 and 30.3)

(C) Indian Evidence Act, 1872 – Section 118 [Section 124 of BSA, 2023] – Child witness – Every criminal case must ultimately be decided on the basis of quality of evidence and not on assumptions either in favour of or against prosecution – Ordinarily, in criminal trials, assessing truthfulness and credibility of witnesses is one of the most difficult judicial functions – Task becomes even more arduous when witnesses are children – Owing to their tender age, children are susceptible to influence and may merely repeat what has been tutored to them – While genuine victims deserve full protection under law, Constitutional guarantee of fair trial equally demands that accused should not be convicted on the basis of tutored, embellished, or inherently unreliable testimony. (Para 10.4)

Per N. Anand Venkatesh, J. [Concurring View]

Protection of Children from Sexual Offences Act, 2012 – Section 5(1)/6 – False cases – POCSO Act is intentionally stringent, designed as a shield to protect children from exploitation – Yet, it is deeply painful to witness instances where vulnerable children are used as pawns by adults to settle private scores, rendering the child a victim twice over – Reaching a final conclusion in a matter of life and liberty cannot be rushed – Crafting a judgment that stands up to scrutiny requires time, precision, and immense Judicial restraint. (Paras 34 and 36)

Result: Criminal Appeal allowed.