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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHANDRA SHEKHAR JHA, J.
Vivek Tiwari, son of Dhanjee Tiwari - Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (SJ) No.3293 of 2023
Decided On : 08-02-2024
POCSO - Protection of Children from Sexual Offences - Section 2(1)(d), Section 4 of POCSO Act, Section 374(2) of Cr.P.C., Section 376, Section 506 of IPC - The court discussed the definition of a child under Section 2(1)(d) of the POCSO Act, emphasizing the prosecution's burden to establish the victim's age. The court found that the prosecution failed to provide sufficient evidence to prove the victim was a child at the time of the alleged offence. The court also highlighted the lack of corroborative evidence, such as photographs or video clips, which were central to the allegations of blackmail and sexual assault. The interpretation of the victim's testimony as not being credible led to the conclusion that the conviction was not supported by the evidence presented.
Fact of the Case:
The appellant/convict, Vivek Tiwari, was accused of raping his cousin, who was allegedly a minor at the time of the incident. The prosecution claimed that the appellant threatened the victim with the release of nude photographs and videos, leading to a series of sexual assaults. The victim later married the appellant, which raised questions about the nature of the allegations.
Finding of the Court:
The court found that the prosecution failed to establish the victim's age as a child under the POCSO Act. The lack of corroborative evidence, including the absence of the alleged photographs and the victim's own contradictory statements, led the court to question the credibility of the victim's testimony. The court concluded that the conviction was based solely on the victim's testimony, which was insufficient to uphold the charges.
Issues: 1. Whether the victim was a child under the POCSO Act at the time of the alleged offence. 2. Whether the evidence presented was sufficient to support a conviction for the charges of rape and sexual assault.
Ratio Decidendi: The court emphasized that the prosecution bears the burden of proving the victim's age and the occurrence of the alleged crime. The absence of corroborative evidence and the victim's contradictory statements rendered her testimony unreliable, leading to the conclusion that the conviction could not be sustained.
Final Decision: The appeal was allowed, the conviction and sentence were quashed, and the appellant was acquitted of all charges.
JUDGMENT :
(Chandra Shekhar Jha, J.) :
Heard Mr. Ajay Kumar Thakur, learned counsel duly assisted by Mr. Rajeev Ranjan, learned counsel for the appellant/convict and Mr. A.M.P. Mehta, learned A.P.P. for the State duly assisted by Mr. Ravi Shankar Sahay, learned counsel for the informant.
2. The instant memo of appeal has been filed on behalf of the appellant/convict under section 374(2) of the Code of Criminal Procedure (in short the “Cr.P.C.”) against the judgment of conviction dated 12.04.2023 and order of sentence dated 18.04.2023 passed by learned 7th Additional District & Sessions Judge-cum-Exclusive Special Judge (POCSO), Sasaram, Bihar in connection with POCSO Case No. 13/2019 arising out of Natwar P.S. Case No. 16 of 2019, whereby and whereunder the appellant/convict has been fount guilty for offences under Section 506 of the Indian Penal Code (in short the ‘I.P.C.’) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”) and sentenced to undergo rigorous imprisonment for 10 years and fine of Rs. 10,000/-payable to victim for offences punishable under Section 4 of POCSO Act and in default of payment of fine, further to undergo simple imprisonment of three (3) months.
3. The case of the prosecution registered on the basis of written information of the informant namely ‘X’ (PW-4) that on 10th of April, 2017 her cousin brother namely, Vivek Tiwari (appellant/convict) came to her house situated at village – Karmani at about 2:00 P.M., while she was alone, where he after pressing her mouth committed rape upon her. It further appears from narration that the occurrence was videographed and certain nude photographs were also taken by the appellant/convict. Subsequently, a threat was advanced by appellant/convict to make it viral and on the basis of said threat, informant was blackmailed on several occasions to establish physical relations with her. It further appears from the narrations that appellant/convict on last occasion i.e. 13th November, 2018 at about 11:30 P.M. established physical relation with her and threatened to make all photographs and video viral by uploading it to social media platform including Facebook. A threat was also advanced to kill the family members. As per written information, soon before lodging of F.I.R. appellant/convict also made an attempt to establish physical relation but same was denied by informant/PW-4, consequent upon objectionable photographs were uploaded on Facebook and when said uploading was objected by her on 10.02.2019, she was threatened to kill.
4. On the basis of aforesaid information police registered Natwar P.S. Case No. 16 of 2019 dated 10.02.2019 under Section 376/354(C)/506 of the I.P.C. and Section 4/8/12 of the POCSO Act along with offence under Section 67-B of the I.T. Act. against appellant/convict, where after investigation police submitted the charge-sheet. The learned trial court/POCSO Court, which is the special court having original jurisdiction took cognizance of the offence on the basis of materials collected during investigation. Charges were explained to the appellant/convict, which he denied and claimed trial by pleaded ‘not guilty’.
5. In support of case, prosecution examined altogether eight witnesses, who are PW-1 Meera Devi, PW-2 Kamalkant Tiwari, PW-3 Banarsi Tiwari (father of victim), PW-4 (informant/victim), PW-5 Shivji Singh, PW-6 Rampravesh Kumar, PW-7 Dr. Ajay Kumar Singh and PW-8 Dr. Bina Rani. Prosecution also relied upon written information signed by victim/informant as Exhibit ‘P-1’ and statement under Section 164 Cr.P.C. as Exhibit ‘P-2’ respectively. Exhibit ‘P-1/1’, Exhibit ‘P-3’ and ‘P-4’ are the medical reports.
6. The statement of appellant/convict was recorded under Section 313 Cr.P.C., where he denied the occurrence and all incriminating evidences/circumstances explained to him as surfaced during course of trial. Appellant/convict further shows his complete innocence.
7. The app
The prosecution must establish the victim's age and provide corroborative evidence in cases involving allegations under the POCSO Act; a conviction cannot be based solely on the uncorroborated testim....
The conviction was quashed due to insufficient evidence and credibility issues with the victim, highlighting the necessity of establishing a solid evidentiary foundation in sexual assault cases.
Point of Law – Kidnapping and abduction – Conviction - victim, who is found to be an unreliable witness - appellant is entitled for benefit of doubt
The prosecution failed to establish the case beyond reasonable doubt due to contradictions in the victim's testimony and lack of corroborative medical evidence.
The prosecution evidence must prove the charge beyond reasonable doubt, and the unreliability of the victim's testimony requires corroboration from independent evidence in cases of sexual offences.
The prosecution must establish guilt beyond a reasonable doubt, with sufficient and credible evidence; failure to do so invalidates a conviction.
The prosecution must prove guilt beyond reasonable doubt, and the quality of evidence is essential in criminal law.
The conviction under the POCSO Act requires substantial evidence beyond mere suspicion; failure to prove such evidence necessitates acquittal.
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