Child Cannot Be Prosecuted For Perjury For Making False Rape Complaint: J&K& L High Court

The High Court of Jammu and Kashmir and Ladakh recently observed that a child cannot be prosecuted for perjury for making a false rape complaint.

The Court noted that the Section 22(2) of the Protection of Children from Sexual Offences Act (POCSO) prohibits the punishment of a child in respect of false information provided by a child, the child cannot be prosecuted for commission of offence of perjury.

The Single Judge Bench of Justice Rajnesh Oswal was dealing with a Criminal Appeal filed by the Union Territory of Jammu and Kashmir challenging the order of the Principal Sessions Judge refusing to initiate proceedings under Section 340 of the Criminal Procedure Code (Cr.P.C) against the minor girl and her parents for perjury, due to their retraction from their initial statements.

Background: In March 2020, the minor and her father filed a complaint at Ramnagar Police Station, alleging a sexual assault by the accused, Des Raj. The charge sheet included Sections 376 and 341 IPC, as well as Section 4 of the POCSO Act. However, during the trial, the prosecutrix, her father, and her mother retracted their statements, leading to the dismissal of the charge sheet. The trial court declined to prosecute them for perjury.

The prosecutrix, in her examination-in-chief, denied the sexual assault, stating that the accused slapped her. The mother and father echoed similar statements, with the prosecutrix mentioning external influence in her cross-examination regarding the complaint. The minor stated in her cross-examination that the application was written by one person who was sitting outside the Police Station and he advised her to make certain additions, as the Police could not arrest the accused in a simple case of slapping.

The UT before the High Court submitted that as per the provisions contained in Section 340 Cr.P.C, the trial court should have either made an enquiry into the truthfulness of the version given by the hostile witnesses or made a complaint to the court for initiating proceedings against the hostile witnesses but could not have rejected the prayer of the appellant without assigning any plausible reason.

Noting the submissions, the High Court referred to Section 22 of the Protection of Children from Sexual Offences Act where clause 2 of the Section stated, "(2) Where a false complaint has been made or a child has provided false information, no punishment shall be imposed on such child."

Relying on the afore-said provision the High Court observed, "A perusal of the Section 22(2) of the Protection of Children from Sexual Offences Act would reveal that if a false complaint has been made or false information has been provided by a child, no punishment shall be imposed upon such child. In the present case, the prosecutrix was admittedly 17 years of age, meaning thereby she was a minor child and because of this reason only the accused was prosecuted for commission of offence under Section 4 of POCSO Act. Once, the special Act prohibits the punishment of a child in respect of false information provided by a child, the child cannot be prosecuted for commission of offence of perjury."

The High Court further stated, "Otherwise also, in order to prosecute and punish a witness for offence of perjury, it must be established that the statement was made by him deliberately and consciously, which subsequently, was found to be false as a result of comparing it with other un-impeachable evidence on record. So far as the instant case is concerned, there is absolutely no other evidence on record which may establish the fact that the witnesses made false statements deliberately before the trial court contrary to the statements made during investigation before the learned Magistrate."

Accordingly noting that respondent No.1 cannot be prosecuted as being a minor, then respondent No.2 also cannot be prosecuted as she had deposed before the Magistrate only, what was disclosed to her by her daughter and she was not an eye witness at all, the High Court dismissed the appeal.

Cause Title: Union Territory of Jammu and Kashmir v. Miss X & Ors. [Crl A(S) No. 11/2022 CrlM No. 1490/2022]

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