Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Online)(Bom) 7840

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.

2024:BHC-NAG:11106

CRIMINAL APPEAL NO. 303 OF 2022

Kisan s/o Bhaiyyalal Harinkhede
Aged 48 years, Occupation:- Mason,
R/o- Ward No.3, Gidhadi, Tq. Goregaon,
District Gondia .... APPELLANT
(In jail)

// V E R S U S //

1. State of Maharashtra,
Through PSO. Goregaon,
Tah. and District: Gondia
... RESPONDENT
2. XYZ mother of the victim in
Crime No.257/2017, registered with
P.S.O., Goregaon, District : Gondia

Mr Mahesh Rai, Advocate for appellant.
Mrs. R.V. Sharma, APP for respondent No.1/State.
Ms S.H. Bhatia, Advocate (Appointed) for respondent No.2.

CORAM : G. A. SANAP, J.

DATE : 12.09.2024

Advocates:
For the Appellants/Petitioners: Mahesh Rai
For the Respondents: R.V. Sharma, S.H. Bhatia

In criminal cases involving minor victims, prosecution must prove foundational facts before invoking statutory presumptions. When medical evidence is inconsistent with alleged assault and testimony suggests tutoring, failure to prove guilt beyond reasonable doubt necessitates an acquittal.

Headnote:(A) Criminal Law - Sexual Offences - Evidence of child witness - Burden of proof - Even where statutory presumptions apply, the prosecution must establish foundational facts before shifting the burden to the accused. Courts must carefully evaluate the testimony of child witnesses to ensure it is independent and free from tutoring. (Paras 20, 23, 26)

(B) Evidence - Medical Corroboration - Absence of physical injury - Where medical evidence significantly contradicts the oral allegations of physical assault, such a discrepancy is a crucial factor for the court to consider in determining the reliability and trustworthiness of the evidence. (Paras 16, 21)

(C) Appeal - Criminal - Reasonable Doubt - If the prosecution's account is rendered improbable by material inconsistencies and the absence of corroborative evidence, the accused is entitled to the benefit of the doubt. (Paras 24, 27)

Facts of the case:
The appellant was convicted for committing sexual assault against a young child. The conviction was based on oral testimony provided by the victim and her mother. Medical examinations conducted shortly after the alleged incident indicated no physical injuries or indications of penetration. The defense argued that the accusation originated from a property dispute and denied the allegations entirely.

Findings of Court:
The court determined that the victim's testimony showed signs of coaching and tutoring. Furthermore, the medical findings were inconsistent with the allegations of physical force. The prosecution failed to provide sufficient evidence, including physical or corroborative proofs, to sustain the burden of proof required for a conviction.

Issues: The main issues were whether the evidence of a child witness, in the absence of independent corroborative evidence, was sufficient to support a conviction, and whether the prosecution successfully established the foundational facts required by law to sustain the charge.

Ratio Decidendi: The court held that while special legislative provisions exist to facilitate the prosecution of such offenses, the fundamental principle of proving guilt beyond a reasonable doubt remains paramount. When medical evidence is inconsistent with the allegations and the testimony of the victim suggests external influence or tutoring, the conviction cannot be maintained.

Result: Appeal allowed; conviction set aside; accused acquitted.

O R A L J U D G M E N T :

In this appeal, challenge is to the judgment and order dated 28.03.2022 passed by the learned Ad-Hoc Special Judge-1, Gondia, whereby the learned Judge convicted the appellant for the offences punishable under Section 376 (2)(i) of the Indian Penal Code (for short, “the I.P.C.”) and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, “the POCSO Act”) and sentenced him to suffer rigorous imprisonment for a period of 20 years and to pay a fine of Rs.10,000/-, in default to suffer rigorous imprisonment for six months for the offence punishable under Section 6 of the POCSO Act. No separate sentence has been awarded under Section 376 (2)(i) of the I.P.C.

The facts are as follows:-

The informant (PW-2) is the mother of the victim girl, who on the date of the incident was three years and eleven months old. The incident occurred on 04.11.2017. The case of the prosecution, which can be gathered from the report and other materials, is that on 04.11.2017, the victim was playing with Meena, Trupti, Gattu, Sheela and Dada in lane between two houses. The mother had gone to the field for harvesting the crop. She came back at 3.30 p.m. After returning from the field, she was washing her lunch box. At that time the victim came to her crying and told her that while playing with Meena, Trupti, Gattu, Sheela and Dada she went for urin. While she was urinating, the accused came there and put his finger in her place of urin. She started crying. It is stated that after hearing this account of an incident from the victim, when she and her sister in-law were discussing this incident, her father-in-law came there and asked them about the subject of their talk. At that time the informant narrated the incident that had occurred with the victim to him. On hearing this account of the incident, father-in-law went to house of the appellant and questioned him. Thereafter, the daughter of the appellant, by name Sonali, 16 years old, came to their house and started pulling the victim and slapped her. The informant narrated this incident to her husband. They went to the police station and the informant lodged the report. On the basis of the report, crime bearing No.257 of 2017 came to be registered against the appellant.

Sachin Thorat (PW-10) carried out the investigation. He referred the victim for medical examination. He recorded the statements of the witnesses. He drew the spot panchanama. He seized the clothes of the victim and the clothes of the accused. On the request of the investigating officer, the learned Magistrate recorded the statements of the victim, the informant and Meena. On completion of the investigation, PW-10 filed the charge-sheet against the accused in the Court.

Learned Sessions Judge framed the charge against the accused. The accused pleaded not guilty. It is his defence that he had constructed the house. It was the allegation of the informant that while constructing the house he encroached on their plot. On account of this enmity, he has been falsely implicated. The prosecution, in order to bring home guilt of the accused, examined eleven witnesses. Learned Judge, on consideration of the evidence, held the accused guilty of the charge and convicted and sentenced him as above. Being aggrieved by the judgment and order, the appellant has come before this Court in appeal.

I have heard Mr. Mahesh Rai, learned Advocate for the appellant and Mrs. R.V. Sharma, learned APP for respondent No.1/State. and Ms S.H. Bhatia, learned Advocate appointed for respondent No.2. Perused the record and proceedings.

Learned Advocate for the appellant submitted that except the interested version of the victim and her mother, there is no other corroborative evidence. An important witness Meena, who according to the prosecution was an eye witness to the incident, has not supported the case of the prosecution. The prosecution has not examined the child witnesses. Similarly, the prosecution has not exam

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