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Judgment
The appellant herein has been convicted under Section 376 (2) (i) of Indian Penal Code (IPC) and Section 6 of Protection of Children From Sexual
Offences Act, 2012 (POCSO Act) and he has been sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/Â. The
Sessions Court, Chandrapur (Trial Court) has, by the impugned judgment and order, imposed aforesaid conviction and sentence on the appellant in
Special (Child) Case No.30/2015.
The prosecution case in brief is that on 08.01.2015, prosecutrix (PW4), victim in the present case, was playing under a tree near the house of the
appellant (accused) which was under construction. When the friends of the prosecutrix went to answer call of nature, the appellant lured her into
the said house by offering her Rs.2/Â. Friends of the prosecutrix (PW4) returned and upon hearing the voice, they went to the house and peeped in
from a hole in the wall, where they saw that knicker of the prosecutrix (PW4) had been removed and the appellant was sleeping on her body. One
of the friends i.e. Sneha (PW5) then went to the house of Shila Meshram (PW2)Â and told her about the incident whereupon Shila (PW2) went near
the house of the appellant and she saw through a hole in the wall that the appellant was committing sexual intercourse with the prosecutrix (PW4).
The said Shila (PW2) then took the prosecutrix (PW4) to her mother i.e. the first informant; Diksha Meshram (PW1) and told her about the
incident. It was the case of the prosecution that since father of the prosecutrix was not at home, report pertaining to the said incident was not
immediately lodged by the mother Diksha (PW1) and that the oral report was submitted on the next day i.e. on 09.01.2015 at Police Station,
Sindewahi, which is the reason for late registration of the offence against the appellant.
After registration of the offence, the prosecutrix (PW4) was sent for medical examination and she was examined by Dr.Jaya Bhongle (PW9).Â
Clothes of the prosecutrix (PW4) were seized and sent for anlaysis. Police recorded statements of witnesses and on the basis of the same as also
the medical examination report, the police submitted chargeÂsheet and the appellant was made to face the trial.
In support of its case, the prosecution examined 10 witnesses, out of whom the material witnesses were Diksha (PW1) i.e. informant and mother of
the prosecutrix, Shila Meshram (PW2), neighbour and eye witness to the incident, Narendra Gahane (PW3), Police Patil of village, prosecutrix herself
(PW4), Sneha Meshram (PW5), friend of the prosecutrix who was also eye witness, Dr. Jaya Bhongle (PW9) and API Bansu Kodape (PW10) the
investigating officer.
On the basis of the oral and documentary evidence on record, the trial Court found that the prosecution had been able to prove its case beyond
reasonable doubt against the appellant and accordingly, the trial Court convicted and sentenced the appellant by the impugned judgment and order.Â
The present appeal has been filed challenging the same.
Mr. M. N. Ali, learned counsel appearing on behalf of the appellant, submitted that conviction and sentence imposed against the appellant by the
trial Court was unsustainable because there was lack of evidence to prove the prosecution case. It was pointed out that there were material
omissions and contradictions in the evidence of the prosecution witnesses, particularly the two alleged eye witnesses;Â Shila (PW2) and Sneha
(PW5). It was further contended that the evidence of informant Diksha (PW1), when compared with the evidence of the aforesaid alleged eye
witnesses, demonstrate material contradictions. It was further contended that the evidence of the prosecutrix shows that she was a tutored child
witness and that the entire prosecution case was based on such tutored version given by the prosecutrix, who was only 6 years old. It was further
contended that medical evidence on record also does not support the prosecution case as there was no injury found on the genitals or body of the
prosecutrix and that the crossexamination of API Kodape (PW10), the investigating officer, demonstrated that the material omissions in the evidence
of the other prosecution witnesses stood proved. It was also pointed out that the evidence of Sneha (PW5) was rendered unbelievable because of
admission made in the crossÂexamination that before deposing in the Court, police had read over her statement to her. On this basis, it was contended
that the impugned judgment and order deserves to be set aside. The learned counsel placed reliance on the judgment of Division Bench of this Court in
the case of Suresh s/o Purushottam Ashtankar Vs. State of Maharashtra and anr.; reported in 2015 (3) Mh.L.J. (Cri) 424 and judgment of the learned
Single Judge of this Court in the case of Rustam s/o Ukarda Jadhav Vs. State of Maharashtra; reported in 2016 ALL MR (Cri) 248.
Per contra, Mrs. Geeta Tiwari, learned A.P.P. appearing on behalf of the State, submitted that the omissions and contradictions, if any, in the
evidence of the prosecution witnesses were minor in nature and perusal of the evidence demonstrates that there was ring of truth in the prosecution
case and that the impugned judgment and order deserves to be confirmed. It was submitted that when there were eye witnesses to the incident and
the appellant had not denied presence of the prosecutrix in his house, there was no reason why the prosecution case could be disbelieved. It was
further submitted that, suggestion of enmity between Shila (PW2) with the appellant regarding property dispute as the basis for false implication, was
not supported by any material on record. It was further submitted that, in any case, the informant Diksha (PW1), mother of the prosecutrix, did not
have any enmity with the appellant, who was her own brotherÂinÂlaw and that it was beyond belief that a mother would allow her six years old
daughter to be used for false implication. On this basis, the learned A.P.P submitted that the appeal deserves to be dismissed. Reliance was
placed on judgment of the Hon'ble Supreme Court in Rammi alias Rameshwar Vs. State of M.P.; reported in (1999) 8 SCC 649.
Heard learned counsel for the parties. Before examining the evidence on record, it would be appropriate to analyse the basis of conviction and
sentence imposed by the trial Court in the impugned judgment and order. Perusal of the impugned judgment and order passed by the trial Court
shows that emphasis has been placed on the evidence of the two eye witnesses to the incident i.e. Shila (PW1) and Sneha (PW5). The trial Court
has found that the evidence of these two eye witnesses was wholly believable. In fact, as regards the evidence of Sneha (PW5), the trial Court has
gone to the extent of saying that her sole testimony was enough to bring home the guilt of the accused. It has been found by the trial Court that
these two witnesses had corroborated the evidence of each other, which unmistakably pointed towards guilt of the appellant. Apart from this, the
trial Court has examined the evidence of prosecutrix (PW4) and upon noticing certain contradictions, the trial Court has held that this was perhaps
because of the tender age of the prosecutrix (PW4). It is opined that the sole testimony of the prosecutrix could not be sufficient to hold the
appellant guilty but the evidence of Shila (PW2), Sneha (PW5) and that of Diksha (PW1), was sufficient to prove the prosecution case.
The trial Court has referred to the medical evidence on record and it is found that the same supported the prosecution case. It is found by the
trial Court that hymen was found to be torn, although there were no injuries on the genitals and the body of the prosecutrix. As regards absence of
swelling on the genitals, the trial Court has found that the medical examination of the prosecutrix (PW4) was conducted beyond 48 hours and that,
therefore, absence of swelling or injury on the genitals of the prosecutrix (PW4) could not be said to be fatal to the prosecution case. In this context,
as regards delay in registration of FIR, the trial Court has not found it to be adverse to the prosecution case. The trial Court has also referred to
presumption that operates against the appellant under Section 29 of the POCSO Act and it has been found that the appellant has failed to discharge
the burden of proving the contrary once the presumption operated against him. These are the factors taken into consideration and relied upon by the
trial Court while convicting and sentencing the appellant in the aforesaid manner.
In this backdrop, it becomes necessary to examine the evidence of the prosecution witnesses. Diksha (PW1) was the informant and mother of
the prosecutrix. Her evidence, as regards the manner in which the incident took place, is necessarily hearsay in nature. This is because she
acquired knowledge about details of the incident on the basis of what was narrated to her by the prosecutrix (PW4) and Shila (PW2). Therefore, to
that extent, her evidence would not be of much avail to the prosecution. The only relevant portion of the evidence of this witness is her explanation
regarding delay in approaching the police for lodging the report regarding the incident. It has come on record that while the incident allegedly took
place at about 12.00 noon on 08.01.2015, the oral report leading to registration of FIR was lodged by Diksha (PW1) at about 8.00 p.m. on
09.01.2015. Ostensible reason given by Diksha (PW1) for such a delay was that her husband (father of the prosecutrix) was not available but it is
relevant that when the report was actually lodged with the police on 09.01.2015, only Diksha (PW1) and Shila (PW2) went with the prosecutrix
(PW4) to the police station. Therefore, explanation for delay in approaching the police does not appear to be convincing.
The evidence of Shila (PW2) who claims to be an eye witness to the incident shows that when Sneha (PW5) told her about the appellant
committing the act of sexual intercourse with the prosecutrix, she reached the place of the incident, which was an underÂconstruction house of the
appellant. This witness claims to have seen the incident from a hole in the wall. A perusal of the the photos of the house placed on record show
that the house was under construction and windows and door were open and incomplete. The hole in the wall, from which this witness claimed to
have seen the incident, is below the window and just above the height of the said witness. It is also claimed by the said witness i.e. Shila (PW2) that
there were other children also present at the place when the incident took place and that she took the prosecutrix after the incident to her house where
another child namely; Prajakta Meshram called mother of the prosecutrix i.e. Diksha (PW1) to the house of Shila (PW2) where the victim had not told
anything as she was crying. This is contradictory to the statement of Diksha (PW1) that the prosecutrix (PW4) came along with Shila (PW2) and
told her about the incident. It is stated in the evidence of Shila (PW2) that she had tried to encroach on the land belonging to the appellant. This is
significant in the context of suggestion given by the evidence that there was dispute pertaining to property between the appellant and Shila (PW2),
leading to false implication. It has further come in the evidence of Shila (PW2) that at the time of the incident, Police Patil of the village; Narendra
(PW3) and another person were measuring paddy crops nearby. It is further admitted by this witness that the said Police Patil Narendra (PW3)
was at a shouting distance from her when the incident took place but she claimed that as she had panicked, she failed to inform the Police Patil about
the said incident. In the crossÂexamination of this witness, it has come on record that there were omissions noticed in her statement given to police
pertaining to Sneha (PW5) informing her about the appellant committing sexual intercourse with the prosecutrix, that she asked the prosecutrix to
remove her knicker but the prosecutrix refused to do so and that she had asked the other child Prajakta to call Diksha (PW1) to her house where the
incident was narrated to Diksha (PW1). These omissions were put to the investigating officer and they stood proved. Evidence of this witness,
therefore, shows that there were improvements made in her evidence before the Court and that there were material contradictions between the
evidence of this witness as compared to that of Diksha (PW1).
The prosecution examined Police Patil Narendra (PW3). The evidence of this witness shows that he was, indeed, present near the spot of the
incident and that Shila (PW2) did not inform him anything about the said incident.
The evidence of prosecutrix (PW4) was crucial for the prosecution case. A perusal of her evidence shows that she has admitted in the crossÂ‐
examination that she was told how she was to give her statement in the Court and that whatever she deposed in the Court was as per the directions of
her mother Diksha (PW1) and Shila (PW2). Although, this witness has stated in her examinationÂinÂchief in support of the prosecution case
regarding the manner in which the incident took place, she has not specifically stated about the appellant having committed sexual intercourse with her
and she has simply stated that he slept on her body. Apart from this, in crossÂexamination, the prosecutrix (PW4) has stated that she along with her
friend went inside the house of the appellant where he was resting on sand. She has stated that she has played for some time and, thereafter, upon
hearing voice of her friends, she came out of house. This is in complete contradiction to the prosecution case regarding sexual assault by the appellant
on the prosecutrix when she entered the house. The admissions given in the crossÂexamination demonstrate that this witness, who was only about
6 years of age, was tutored to make statement in the Court.
Sneha (PW5) was friend of the prosecutrix who claimed to be an eye witness to the incident. She claimed to have seen the incident from a hole
in the wall of the underÂconstruction house from which Shila (PW2) had also seen the incident. It has been already noted above that the hole in the
wall was just above the height of Shila (PW2). Sneha (PW5), in her crossÂexamination, has admitted that her height was about 3.5 Ft. This clearly
demonstrates that the claim of the prosecution that Sneha (PW5) saw the incident from the hole in the wall, is wholly unbelievable. Apart from this, in
crossÂexamination, this witness had admitted that she was accompanied by her father at the time of her deposition and that police had read over her
statement to her before giving the evidence. This admission on the part of the said witness discredits her evidence before the Court. She was a
10 years old child deposing before the Court and statements made in the crossÂexamination do show that she could not be said to be an eye witness
to the incident.
Dr. Jaya (PW9) is the doctor who had medically examined the prosecutrix on 10.01.2015 at about 1.50 p.m. i.e. about 48 hours after the alleged
incident. Perusal of the medical examination report (Exh.Â46) and the answers to the queries given by Dr. Jaya (PW9), show that although there
was tear of hymen, there were no injury marks seen over the body or genitals of the prosecutrix. The said witness has stated that there was no
swelling found on the genitals of the prosecutrix, but she opined that such swelling could have been observed if sexual intercourse occurred within 24
hours. It was also stated by the said witness that she had not seen any stains of sand, mud or semen on the clothes of the prosecutrix and further
that there may be several reasons for a tear in the hymen. Thus, the medical evidence did not show any sign of injury on the genitals of the
prosecutrix or on her body.
The investigating officer API Kodape (PW10) has deposed about the manner in which he carried out the investigation. In the crossÂ‐
examination, he has made statement that proved the omissions in the evidence of the prosecution witnesses. It is also stated by the said witness that
it was not true that Shila (PW2) had come along with the prosecutrix and the informant Diksha (PW1), while lodging the report. This also
contradicted the claims made by Diksha (PW1), Shila (PW2) and the prosecutrix (PW4).
The aforesaid analysis and perusal of the evidence of the material prosecution witnesses, shows that the prosecution has not been able to place on
record convincing evidence to prove its case beyond reasonable doubt against the appellant. The evidence of Shila (PW2) and Sneha (PW5), the
alleged eye witnesses, shows that there are not only omissions but material contradictions in the manner in which they have described the very same
incident. The evidence of Diksha (PW1) informant, also shows some variance in her statement, as compared with that of Shila (PW2). The delay
in lodging report before the police has also not been satisfactorily explained in the present case. The ostensible reason given was that the husband
of Diksha (PW1) i.e. father of the prosecutrix, was not at home due to which the report could not be made. But record shows that even when the
report was eventually lodged on 09.01.2015 at about 8.00 p.m. it was only Diksha (PW1) who approached to the police along with the prosecutrix.
This is also a factor which goes against prosecution.
Apart from this, evidence of prosecutrix (PW4) itself renders prosecution unreliable. The crossÂexamination of the said witness shows that she
is a tutored witness because she has conceded to the fact that she had deposed in the Court as per the directions of her mother Diksha (PW1) and
Shila (PW2). She has also given a version regarding what had happened on the date of the incident, which was completely contradictory to the
prosecution case and what she herself had stated in her examinationÂinÂchief. In this situation, it would not be safe to rely upon the evidence of
the said child witnessÂprosecutrix. In this context, the law laid down by the Hon'ble Supreme Court in Radhey Shyam Vs. State of Rajasthan;
reported in (2014) 5 SCC 389, becomes relevant, which reads as follows:
“12. In Panchhi, (1998 SCC (Cri) 1561) after reiterating the same principles, this Court observed that the evidence of a child witness must be
evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus, a child witness
is an easy pray to tutoring. This Court further observed that the courts have held that the evidence of a child witness must find adequate corroboration
before it is relied upon. But, it is more a rule of practical wisdom than of law. It is not necessary to refer to other judgments cited by learned counsel
because they reiterate the same principles. The conclusion which can be deduced from the relevant pronouncements of this Court is that the evidence
of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness
has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the
child witness’s evidence. If found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation. We
will scrutinize PWÂ2 Banwari’s evidence in light of the above principles.â€
The Hon'ble Supreme Court has also held in the case of Lallu Manjhi and another Vs. State of Jharkhand; reported in (2003) 2 SCC 401, that
witness could be categorised in three categories namely; (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable.
In case of the third category, Hon'ble Supreme Court has laid down that, corroboration of evidence of such witness is extremely necessary. In the
present case, at the most, the prosecution witnesses, particularly prosecutrix (PW4) herself, fall in the category of the witness that was neither wholly
reliable nor wholly unreliable. In this situation, corroboration of her evidence becomes crucial for proving the prosecution case. In the present
case, there is lack of evidence to corroborate the claim made by the prosecutrix (PW4) and Shila (PW2) as well as Sneha (PW5) who claimed to be
the eye witnesses to the said incident. The evidence of Sneha (PW5) is rendered unreliable due to crucial admission made in her crossexamination
that police had read over her statement to her before deposing in the Court. The law in this regard, as laid down by a series of judgments, shows
that if a witness is permitted to stealthily refresh his or her memory before entering the Court and deposing then the evidence of such a witness is
rendered unreliable.   This dictum has been laid down as far back as in the judgment of the Privy Council reported in  Zahiruddin Vs.
Emperor; reported in AIR 1947 PC 75 and in one of the recent judgments of Division Bench of this Court in the case of Suresh s/o Purushottam
Ashtankar, supra. In the said case, while approving the view taken by a learned Single Judge of this Court, the Division bench has held as under:
“32. In para 10 of the said reported Judgment, the learned Single Judge found that Pundlik (PWÂ1) has admitted that the police had read over his
statement to him and also told him to tender the evidence as per his statement. The learned Single Judge has observed thus: ""There would indeed be
nothing wrong in the witness refreshing his memory, but that ought to be done before the Court and not outside the Court. In order to test the veracity
of a witness, he would be required to recollect the incident out of his own memory and should he falter on some material aspect, he could be allowed
to refresh his memory with reference to the contemporaneous records of the incident created by the police. It would not be permissible for such
witness to stealthily refresh his memory before entering the Court and deposing about the entire evidence giving minute details as if he was reeling
them out from his memory. Therefore, the objection to the reliability of evidence of PWÂ2 Prabhakar taken by learned Counsel for the appellant is
valid"".  (emphasis is supplied by us.) We approve the dictum of the learned Single Judge in that behalf.â€
Applying the said position of law to the present case, it becomes evident that testimony of Sneha (PW5) is rendered unreliable. Yet, the trial
Court has erroneously held in the impugned judgment and order that the evidence of Sneha (PW5) would itself be sufficient to bring home the guilt of
the appellant. Therefore, it is only the evidence of the remaining alleged eye witness Shila (PW2) that could support the prosecution case. But, as
noted above, there are material omissions in her testimony, duly proved in the crossÂexamination of the investigating officer (PW10), and there are
material contradictions rendering her evidence unreliable. These contradictions could not be said to be mere variations in the narration of the
incident. Therefore, the learned A.P.P. was not justified in relying upon judgment of the Hon'ble Supreme Court in the case of Rammi alias
Rameshwar Vs. State of M.P., (supra).
In the face of such nature of evidence of prosecution witnesses, it becomes difficult to accept that the prosecution could prove foundational facts
of its case beyond reasonable doubt. The absence of proof of such foundational facts would have the result of presumption under Section 29 of the
POCSO Act, not being triggered at all in the facts of the present case. Although, Section 29 of the POCSO Act raises a presumption and the
accused is required to prove contrary, but no presumption can be absolute. The presumption would arise only upon the prosecution first proving the
basic foundational facts of its case before the Court beyond reasonable doubts. Any other interpretation would do violence to the fundamental
principle enshrined in Article 21 of the Constitution of India that no person should be deprived of his liberty without procedure established by law.
In any case, the nature of presumption in Section 29 of the POCSO Act would be rebuttable on the touchstone of preponderance of
probabilities. A presumption can be rebutted by defence either by leading defence evidence or by discrediting the evidence of the witnesses
produced by the prosecution. In the present case, perusal of crossÂexamination of the prosecution witnesses shows that all the material witnesses;
Diksha (PW1) informant, Shila (PW2), prosecutrix (PW4) and Sneha (PW5) stands discredited. The prosecution case is not made out and in that
backdrop, suggestion of false implication of the appellant due to property dispute with Shila (PW2) assumes significance. In her crossÂexamination,
Shila (PW2) has conceded to the fact that she had indeed tried to encroach upon the land of the appellant. Learned A.P.P. forcefully argued that
there was nothing to show that there was enmity between Diksha (PW1) informantÂmother of the prosecutrix and the appellant who was her
brotherÂinÂlaw. On this basis, it was submitted that suggestion of false implication deserved to be discarded. But evidence of Diksha (PW1)
informant itself shows that she believed about the manner in which the incident took place on the basis of what was told to her by Shila (PW2). It is
possible for the mother of the prosecutrix to have believed what was told to her and that she acted on said narration of the incident made by Shila
(PW2). Therefore, the said submission made on behalf of the State cannot be accepted.
A perusal of the impugned judgment and order shows that the trial Court has been perhaps moved by seriousness and heinous nature of the
allegations made against the appellant as he was alleged to have committed sexual intercourse with his own niece, who was a child of tender age of
six years. There is no doubt that the allegation made against the appellant was of serious nature but the Court is not supposed to analyse the
evidence only in the backdrop of seriousness of allegations in its mind. The evidence needs to be convincing and if it does not prove case of the
prosecution against the accused beyond reasonable doubt, the benefit has to go to the accused. In the present case, the evidence of prosecution
witnesses has fallen way short of proving the prosecution case beyond reasonable doubt. The medical evidence does not support the case of the
prosecution at all. There was no injury found on the body and genitals of the prosecutrix despite the fact that the allegation of the prosecution was
that the appellant, who was a fully grown man, had sexual intercourse with the prosecutrix, who was a child of mere six years of age. Â A perusal of
the entire evidence and material on record shows that the prosecution case was not proved against the appellant beyond reasonable doubt and that,
therefore, he could not have been convicted and sentenced under the provisions of the Indian Penal Code and the POCSO Act.
In the light of the above, the instant appeal is allowed. The impugned judgment and order is set side and the appellant is acquitted of the offence
with which he was charged. The appellant shall be released from custody, if not required in any other case.