Victim After Facing Ordeal Of Such Incident Couldn’t Have Behaved Normally: Bombay HC Acquits POCSO Accused

The Court has said that if the person had committed such an act with the victim girl, then it would not have gone unnoticed by the villagers and the victim, after facing the ordeal of such an incident at the hands of the man, could not have behaved normally.

The Bench of Justice G.A. Sanap held, “If the accused had committed such an act with the victim girl, then it would not have gone unnoticed by the villagers. Similarly, the victim after facing the ordeal of such an incident, at the hands of the accused, could not have behaved normally. If she was subjected to penetrative sexual assault, then she would have ran towards her house and narrated the incident to her mother. The victim has nowhere stated that after this gruesome act committed by the accused she was threatened by the accused with dire consequences in case incident was disclosed to anybody. The evidence of informant therefore, is not beyond the pale of doubt. It is true that mother in the ordinary circumstances, would not involve a girl child in such incident. But in my view, in order to satisfy the Court about the actual occurrence of the incident, the evidence on record must be cogent and concrete.”

Advocate AM Jaltare appeared for the Appellant, and APP RV Sharma appeared for the Respondent.

An appeal was filed assailing a judgment passed by the Sessions Judge convicting the Appellant for the offences punishable under Section 376AB of the IPC and under Section 6 of the POCSO and sentencing him to suffer rigorous imprisonment for 20 years.

The brief facts of the case were that the Informant, who was the mother of the victim, registered an FIR. It was stated by her that the victim, on the date of the commission of the crime, was eight years old. One night, she went to play near the temple of their village but did not come back. The Informant-mother went out looking for her and brought her back. The next day, the informant noticed that the victim was dull and uncomfortable. Later, when the informant asked the victim to get ready for school, she was reluctant and started weeping. On inquiry by the informant, she said that she had pain in her private part and that yesterday, while she was playing at the temple, the appellant offered her sweets and took her inside the temple. It was stated that she told her that the appellant forcibly touched his penis to her private part, and therefore, she had server pain.

The Court said that the benefit of the doubt created on the basis of the evidence led by the prosecution could not be denied to the appellant on the spacious plea advanced by the prosecution by relying upon Section 29 of the POCSO Act. It reiterated that the presumption under Section 29 of the POCSO Act is not an absolute presumption. The presumption would operate only upon the prosecution first proving foundational facts against the Appellant beyond reasonable doubt. In order to trigger the presumption under Section 29 of the POCSO Act, the prosecution is duty-bound to prove the foundational facts in the context of the charge framed against the accused, the Court added.

The Court said, “Her cross-examination is very relevant. Before proceeding to consider the vital answers given by her in her cross-examination, it is necessary to state that child witness is susceptible to tutoring. In the case of child witness the Court has to be on guard and ensure that child is not in any manner tutored. The court must be satisfied that the account of the incident narrated by the child witness is not the result of tutoring. She has stated that on returning from school, her mother taught her. She has stated that her mother told her as to what types of questions would be asked to her and how to answers those questions.”

The Court observed that after perusing the cross-examination, it would show that the victim completely demolished the evidence of her mother as well as her statement in examination-in-chief. The cross-examination of the victim would show that she was tutored to depose against the accused. The victim had claimed ignorance about the dispute between her father and the Appellant on account of cutting grass from the field of the accused.

The Court concluded, “On re-appreciation of the evidence, I am satisfied that learned Judge has failed to consider the above stated vital facts. The evidence adduced by the prosecution is not cogent, convincing, and trustworthy. The evidence is not sufficient to prove the guilt of the accused beyond reasonable doubt. The attending circumstances are sufficient to doubt the credibility and trustworthiness of the witnesses. The evidence has not been corroborated by the medical evidence. It is true that the conviction in such a crime can be based on the sole testimony of the victim of rape. However, for placing implicit reliance on the sole testimony of the victim the same must be of stellar quality. In this case, the evidence could not be said to be of stellar quality to place implicit reliance on the same.”

Accordingly, the Court allowed the criminal appeal and set aside the judgment and order of conviction passed by the Sessions Court.

Cause Title: Vijay v. State of Maharashtra (Neutral Citation: 2024:BHC-NAG:10709)

Appearances:

Appellant: Advocates AM Jaltare and ND Dawada

Respondent: APP RV Sharma

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