IMPORTANT POINT
The importance of adhering to legal procedures for recording confessional statements and assessing the credibility of witness testimony.

JUDGMENT

Sanjib Banerjee, CJ. - The appellant has been convicted for having committed an offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to rigorous imprisonment for 10 years. In addition, the appellant has been fined Rs.10,000/- and required to suffer a further month's simple imprisonment upon failing to pay the fine.

2. Several grounds have been raised by the appellant in assailing the judgment of conviction of February 24, 2021 and the resultant sentence. For a start, the appellant says that the foundational fact for invoking the provisions of the Act of 2012 was not established as the age of the survivor was not ascertained. In such regard, the appellant says that it was only a photocopy of the birth certificate that was relied upon though the appellant had indicated that the appellant perceived the survivor to be 18 years old and the appellant also claimed that the survivor had informed the appellant that she was 18 years old.

3. The second ground urged is the delay in the lodging of the first information report on or about April 11, 2016 when the incident complained of was in early January of 2016. While on the aspect of delay, the appellant seeks to bring out the perceived contradiction in the statements rendered by the survivor and her mother as to when the survivor informed the mother of the alleged incident of January, 2016. The appellant reads the survivor's testimony to imply that she had complained of the incident to her mother a week after it occurred; while the mother consistently claimed in her several statements that she came to know of the incident only on April 8, 2016.

4. Though there was a clear confession of the appellant recorded by a Judicial Magistrate under Section 164 of the Code of Criminal Procedure, 1973, the appellant claims to have retracted the statement. At any rate, the appellant asserts that the manner in which such statement was extracted was in complete derogation of the safeguards indicated in the relevant provision. In particular, the appellant claims that the appellant was given no time to reflect on the statement.

5. The appellant also points out that though the FIR was lodged by the father and mother of the survivor jointly, the father of the survivor was neither questioned by the investigating officer nor was the father cited as a witness. The appellant submits that an adverse inference should be drawn from such fact and it must be understood that the father did not support the case of the prosecution.

6. Finally, the appellant refers to a line in the testimony of the survivor at the trial. Upon a question being put to the survivor in course of her cross-examination, the survivor admitted that she had been tutored by her mother before she came to court. The appellant suggests that the entire edifice of the case falls in the light of the candid admission on the part of the survivor that she had been tutored to make her statement in court.

7. Several judgments have been cited on the legal aspects canvassed by the appellant. A judgment reported at (2003) 3 SCC 21 (Bhagwan Singh v. State of MP) has been placed for the observation therein that the safeguards indicated in Section 164 of the Code must be stringently followed before a confessional statement is recorded and unless the trial court finds all parameters of the provision adhered to, it should not take into account the purported confessional statement. On similar lines a later judgment reported at (2011) 2 SCC 490 (Rabindra Kumar Pal alias Dara Singh v. Republic of India) has been placed for the summary of the law evident at paragraph 64 of the report.

8. An incidental argument made pertains to the language in which the statement of the appellant was recorded by the Judicial Magistrate in course of the confession. The appellant says that while the appellant is alleged to have spoken in Khasi language, the statement recorded is in English and it was the English statement that ma