The credibility of the victim's testimony in sexual assault cases and the substantive value of eyewitness testimony.

JUDGMENT :

S.K. MISHRA, J.

1. The appellant, having been convicted by the learned Special Judge (POCSO)/Fast Track Court/Additional Sessions Judge, Haldwani, District Nainital under Sections 376(2)(i), 506 and 504 of the Indian Penal Code, 1860 (hereinafter referred to as the “Penal Code” for brevity), and Section 5(m)/6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act” for brevity), has assailed his conviction. He has been sentenced to undergo rigorous imprisonment for twelve years for the offence under Section 376(2)(i) of the Penal Code, and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo two months’ additional simple imprisonment. He has further been sentenced to undergo two years’ rigorous imprisonment for the offence under Section 506 of the Penal Code, and to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo two months’ additional simple imprisonment.

2. The case of the prosecution, in short, is that the father of the victim (name withheld) presented a report before the Revenue Officer, Patti Patliya, District Nainital on 11.02.2015 that, after coming back from the school, his daughter went to the forest in the evening at about 04:00 P.M. along with a girl residing in her neighbour for collection of the firewood. The F.I.R. further reveals that when they were going on the road leading to Village Nai, a boy came and pointed a gun at the victim girl and forcefully committed rape upon her. As a result of the incident, the victim girl became senseless. The appellant gave threat to the victim girl and her companion that he will commit their murder if this fact is revealed before anybody.

3. The complainant further mentioned in the F.I.R. that the said boy belongs to Village Bhumka and is aged about 20-28 years. After the incident, the victim girl narrated this incident before the complainant and his wife. Thereafter, the F.I.R. has been lodged. After receipt of the F.I.R. a criminal case was registered in the Mukteshwar Police Station, and investigation of the case was taken up by the Investigating Officer. The statements of the complainant and other witnesses, including the victim girl and her companion, were recorded under Section 164 of the Code of Criminal Procedure (hereinafter referred to as the “Code” for brevity). The culprit was identified by the Investigating Officer and he was arrested and brought to the Court. Upon completion of the investigation, charge-sheet was submitted for the aforesaid offences.

4. The prosecution, in order to prove its case, examined ten witnesses. PW-7 (name withheld) is the prosecutrix. PW-6 (also name withheld) is the eyewitness to the occurrence, who was accompanying the prosecutrix to the forest for collection of the firewood. PW-1 (name withheld) is the father of the prosecutrix as well as the complainant in this case. Rest of the witnesses are either official witnesses or formal witnesses, including the Investigating Officer and the Doctor, who has examined the victim girl.

5. The learned Special Judge (POCSO)/Fast Track Court/Additional Sessions Judge, Haldwani, District Nainital, mainly relying upon the evidence of the prosecutrix which is supported by PW-6, has come to the conclusion that the prosecution has proved its case beyond reasonable doubt and, therefore, proceeded to convict the appellant for the offences as mentioned above. However, while inflicting sentence, the learned Special Judge (POCSO)/Fast Track Court/Additional Sessions Judge, Haldwani, District Nainital, by resorting to Section 42 of the POCSO Act, sentenced the appellant under Section 376(2)(i) of the Penal Code, as it prescribed a higher punishment than the relevant provisions of the POCSO Act as mentioned earlier in this case.

6. In assailing the findings of fact recorded by the learned Special Judge (POCSO)/Fast Track Court/Additional Sessions Judge, Haldwani, District Nainital, Ms. Manisha Bhandari, the learned