Dharagula Yadagiri vs State Of Telangna

The appellant is convicted under Section 376 AB and sentenced to undergo Rigorous Imprisonment for a period of 20 years. Questioning the said conviction, present appeal is filed.

Briefly, the case of the prosecution is that P.W.1, who is the father of victim girl-P.W.2, aged 5 years at the time of incident lodged complaint Ex.P1 to the police stating that his wife LW-2 (not examined) called P.W.1 and asked him to come home stating that the appellant has misbehaved with the child and when LW2 saw the accused, the accused was leaving room pulling up the zip of his pant. Then, immediately, P.W.1 went to the house and when enquired with P.W.2, she stated that the appellant came to the house and gave Rs.2/- to her brother for purchasing chocolates and licked her moth and slapped her. Further, he removed the drawer of P.W.2 and also unzipped his pant. When LW2, mother came and abused the appellant, the appellant, then left and for the reason of misbehaving with the child, action was sought to be taken by the police.

On the basis of the said complaint, the Police registered an offence under Section 448, 354 IPC, Section 7 r/w Section 8 of the Protection of Children from Sexual offences Act, 2012 (for short ‘the Act’). The said compliant was given at 8.30 P.M on 30.05.2018.

During the course of trial, both PW.1, father and victim girl, P.W.2 stated that the appellant removed the drawer of P.W.2 and licked her vagina, the appellant kissed P.W.2’s lips and when P.W.2 did not cooperate, appellant slapped P.W.2 and on seeing L.W.2 entering into the room, the appellant came out by pulling up his pant zip. On the very same day, P.W.2 victim was also examined in the court, who stated that the appellant licked her ‘toilet part’ and the appellant asked her to hold his ‘toilet part’ and when she was crying, the accused slapped P.W.2.The trial Court, on the basis of the said statements, convicted the appellant.

Heard learned counsel for the appellant and learned Assistant Public Prosecutor appearing for the respondent-State.

Learned counsel for the appellant argued that there are no eye witnesses to the said incident and the mother, who was present at the scene was not examined for the reasons best known to the prosecution. Further, a child of five years would repeat whatever elders say and the only probability for improvement in the statement in the Court was only on the basis of tutoring by the father-P.W.1.

On the other hand, learned Public Prosecutor submits that the victim is five years old child and it cannot be said that five year old kid would falsely implicate the appellant. A presumption under Section 29 of the POCSO Act arises and the burden which shifted to the accused is not discharged, for which reason, the conviction cannot be interfered with.

In Harim Om v. State of Uttar Pradesh (2021) 4 SCC 345, and Panchhi vs. State of Uttar Pradesh and others (1998) 7 SCC 177, the Hon’ble Supreme Court held that the law is that 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 prey of tutoring.

Having perused the record, the statement of licking vagina of the child is not mentioned in Ex.P1 and in the statement made before P.W.3 in Bharosa Centre, which is marked as Ex.P3. ExP1 was made on the basis of the eye-witness account of LW.2 and after asking information from the child P.W.2. As seen from the history in Ex.P3 at column No.15-A, history of sexual violence, the statement of P.W.2 was recorded on her narration. The mother was also examined wherein she stated that the accused removed the panty of P.W.2 and tried to kiss her and when he unzipped his pant, LW2 entered the room and there was no sexual assault. However, at column No.15-F on the side of the table, it was written as follows:

“Accused asked the victim to hold his pvt part & he licked her pvt. parts after pulling her panty.”

It is evident that two different persons have written column 15A and column 15F. For the said reason, it is the duty of the prosecution to give reasons for not stating the factum of licking in Ex.P1 and also in column 15-A of ExP3. As seen from the evidence of P.W.3 apart from marking the documents, the witness did not state about the writings at column 15-A and 15-F. However, no cross-examination was conducted regarding the statements at column 15-A and 15-F. In the event of any explanation by the prosecution regarding the said omission in Ex.P1 and at column 15-A of Ex.P3, the statement made in the court could be accepted. For the reason of such non explanation, the earliest version under Ex.P1 and the statement at column 15-A of Ex.P3 and in the back ground of non examination of the eye witness-LW2, who is the mother of P.W.2 has to be accepted.

The alleged incident occurred on 30.05.2018 and the child P.W.2 deposed before the court on 11.11.2019 after a period of 1 ½ years. As already stated, there is no reason as to why her mother was given up by the prosecution. A child of 5 years stating something which was not stated 1 ½ years prior to her statement in the court i.e., vide Exs.P1 and P3, such evidence should be subjected very close scrutiny. Apparently, in the back ground of the mother being given up, who was the eye-witness, the improvement made by five year old child whose memory would fade with lapse of 1 ½ years stating something which was not stated before when the complaint was lodged and even before P.W.3 at the Barosa Centre has to be viewed with caution. The only conclusion that can be drawn is that the statement in the court was a result of tutoring.

As already discussed when the hand writing in Ex.P3 differed and something that was not stated in column 15-A was written at the side of the table at column 15-F, it is the duty of the prosecution to explain the said different writings and under what circumstances they were written when specifically there is mention at column 15F which was not written at column 15-A meant for the statement.

The Hon’ble Supreme Court in the case of Girish Singh v. State of Uttarakhand AIR 2019 Supreme Court 4529 observed that it is the duty of the appellate court to carefully go through the evidence of witnesses, both chief and cross-examination and also analyze such evidence to come to a conclusion. Further it was also held that the appellate court should not be oblivious to the facts and duty bound to find out whether an offence is committed or not, by applying its mind to the evidence as a whole and arrive at conclusions as to facts and draw inferences therefrom.

From the evidence produced by the prosecution, it is apparent that the appellant had indulged in improper behaviour and his act of removing the panty of the victim and kissing and further unzipping his pant would amount to offence punishable under Section 8 of the POCSO Act and the appellant is sentenced to undergo three years rigorous imprisonment. In consequence, the conviction under Section 376AB is set aside. The fine and compensation remain unaltered.

Accordingly, the appeal is allowed in part. As a sequel thereto, miscellaneous petitions, if any, pending, shall stands closed.