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Judgment
This appeal is directed against the judgment and order dated 18.11.2022 passed by the learned Additional Sessions Judge (Special Judge, POCSO), Bhandara, in Special Case (Child Protection) No. 04 of 2018, whereby the present appellant came to be convicted for the offences punishable under Sections 354-A(1)(i), 323 and 452 of the Indian Penal Code (In short “IPC”) read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (In short, “POCSO Act”).
The prosecution case, in brief, is that on 27.05.2017, the informant (mother of the victim) lodged a report alleging that on the day of incident, at about 8.00 a.m., her elder daughter along with her husband had gone for work. Around 3-00 p.m., she along with her two other daughters went to the field, leaving behind the victim girl, who is mentally retarded, at home. At around 4.00 p.m., upon returning home, the informant heard cries emanating from the kitchen. On proceeding there, she noticed the present appellant hugging her daughter, who was struggling to free herself. On seeing the informant, the appellant immediately released the victim.
Upon being questioned, the victim conveyed that the appellant, known to her as “Nanakaka”, had entered the house on the pretext of having lunch, caught hold of her stomach and breasts, and when she resisted, pushed her. The appellant allegedly threatened the victim with a kerosene can, stating that he would pour kerosene on the informant. Owing to the incident, the victim sustained injuries on her right hand and near her right eye, and her health deteriorated. The informant narrated the incident to her husband in the evening, and consequently the informant lodged the report on 27-05-2017.
On the basis of the said report, FIR No. 113/2017 came to be registered for the offences punishable under Sections 354-A(2), 451 and 323 of the IPC and Section 10 of the POCSO Act. The victim was medically examined, statements of witnesses were recorded, spot panchnama was prepared, and after completion of investigation, charge-sheet was filed before the competent Court.
Charge (Exh. 10) was framed against the appellant for the offences punishable under Sections 354-A(1)(i), 323 and 452 of the IPC, read with Section 10 of the POCSO Act. The appellant pleaded not guilty and claimed to be tried. The prosecution examined nine witnesses in support of its case. After closure of prosecution evidence, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure. The appellant denied the allegations and claimed false implication. No defence evidence was led.
Learned Counsel for the appellant assailed the impugned judgment primarily on the ground of delay of two days in lodging the FIR, contending that such delay has not been satisfactorily explained and renders the prosecution case doubtful. The submission that as the victim was not well, the report was not lodged immediately, cannot be accepted as it is not necessary that the victim of the crime has to approach the police station, the police could also come to the house to register an offence.
It was further submitted that the medical examination does not conclusively support the prosecution case, particularly since the victim did not cooperate during examination and the doctor failed to specify the age of the injuries. Learned Counsel contended that the birth certificate indicates the date of birth as 25.05.2000, and since the incident occurred in May 2017, the victim was about 17 years of age, and therefore capable of protecting herself. It was urged that discrepancies exist between the statements recorded under Section 164 Cr.P.C. and the oral testimony.
Learned Counsel also pointed out that PW 2-panch witness, was not given any notice to act as a panch and she was unable to tell the time of the panchanama, or as to how much time it took to the police to prepare panchanama, nor she was able to tell area of the house and the other incidental material facts. It clearly reveals that PW 2 was not present at the place of incident. It was further submitted that when the offence occurred, the victim screamed and mother of the victim being outside the house heard the noise. It is quite evident from the spot panchnama that there are other two houses beside the house of the victim, which belong to the paternal uncles, but none of them including the neighbours staying in the said vicinity of the victim were examined. It is quite natural that when the mother could hear the noise, the other persons in the vicinity could have definitely heard the voice of the victim. However, the prosecution failed to record the statements of all those witnesses. The investigation, according to the appellant, was one-sided and confined only to family members.
It was further argued that the appellant was a frequent visitor to the house of the victim, with no prior allegations of misconduct against him, and had merely visited to wish the victim on her birthday. The Investigating Officer admitted that the informant was illiterate and unaware of the contents of the FIR, and that neighbouring witnesses were not examined. It was also urged that the appellant sustained no injuries, which militates against the prosecution version of resistance by the victim. Reliance was placed on the judgment of the Hon’ble Supreme Court in Manoj Kumar Sharma & Ors. vs. State of Chhattisgarh and Anr., Criminal Appeal No. 775 of 2013, to contend that unexplained delay in FIR often results in embellishment.
Per contra, the learned Additional Public Prosecutor supported the impugned judgment, contending that the delay in lodging the FIR stands satisfactorily explained in view of the deteriorating health of the victim. It was emphasized that the victim was a minor and mentally retarded, a fact well within the knowledge of the appellant, who took advantage of her vulnerability. The medical evidence corroborates the injuries sustained by the victim while resisting the appellant. The birth certificate and disability certificate conclusively establish the applicability of the POCSO Act. It was submitted that no material contradictions or omissions have been elicited so as to discredit the prosecution case.
Learned Counsel appearing for respondent No.2 adopted the submissions of the learned Addl.P.P. and further submitted that the victim, though mentally challenged, conveyed the incident through gestures, which was properly appreciated by the learned trial Court. It was urged that the conviction is based on cogent and reliable evidence and does not warrant interference.
In support of its case, the prosecution examined nine witnesses. The evidence of PW1 – the mother of the victim, who is the first informant, is natural, cogent, and trustworthy. She has categorically deposed that on the relevant afternoon, upon returning home, she heard the cries of her daughter and found the appellant holding the victim forcibly in the kitchen. Her immediate presence at the spot, the appellant fleeing upon being noticed, and the prompt disclosure by the victim regarding the assault lend assurance to her version. Minor discrepancies relating to time or peripheral details are clearly attributable to her illiteracy and passage of time and do not go to the root of the prosecution case. The delay of two days in lodging the FIR stands satisfactorily explained, considering the trauma suffered by the victim, her mental condition, and the fear generated by threats extended by the appellant. It is well settled that delay in cases involving sexual assault, particularly upon a minor and mentally challenged victim, cannot be equated with delay in ordinary criminal cases.
The testimony of PW3–the victim, though brief and simple, unequivocally implicates the appellant. Her deposition that the appellant beat her and touched her breasts remains consistent with the allegations. Though her statement is brief and expressed in simple language, it is consistent on material particulars. The gestures made by the victim during deposition further corroborate the act complained of. The fact that the victim is mentally retarded does not render her testimony unreliable; rather, it calls for careful scrutiny, which, upon such scrutiny, is found to be truthful and spontaneous. Her evidence receives substantial corroboration from PW1 and the medical evidence.
The spot panchnama proved through PW2-Rajshri Kanekar, an independent witness, establishes that the incident occurred inside the kitchen of the informant’s house. Nothing material has been brought on record to doubt the authenticity of the panchnama. The evidence of Investigating Officers PW4, PW5, and PW6 demonstrates that the investigation was conducted fairly and in accordance with law. The delay in arrest stands reasonably explained due to the appellant absconding after the incident.
The defence plea of false implication due to political rivalry or previous dispute over land is wholly unsubstantiated. No credible evidence has been adduced to show animosity of such magnitude that a mother would falsely implicate a person in a serious offence involving her mentally retarded minor daughter. Mere suggestions in cross-examination, without proof, do not discredit otherwise reliable prosecution evidence.
The age of the victim is conclusively established by the birth certificate issued by the Gram Panchayat, proved through PW7 and marked at Exh.20. The said document records the date of birth of the victim as 25.05.2000. The incident having occurred on 25.05.2017, the victim was a child within the meaning of Section 2(d) of the POCSO Act. Therefore, the provisions of Sections 7 and 8 of the POCSO Act are clearly attracted.
The psychiatric evidence of PW8-Dr. Bandebuche establishes that the victim was suffering from moderate mental retardation with 60% temporary disability. This evidence has remained unchallenged. The mental condition of the victim explains her limited expression and simple narration of facts. The law is well settled that the testimony of a mentally retarded victim cannot be discarded merely on that ground and must be appreciated with sensitivity. The defence has failed to elicit anything in cross-examination to discredit this expert testimony.
The medical evidence of PW9-Dr. Madhuri Mathurkar provides further corroboration. Multiple abrasions and lacerated wounds were found on the hands, wrist, eyebrow, and knee of the victim. These injuries are consistent with physical assault and resistance. The doctor has opined that the injuries are possible due to sexual assault and nail scratching. The absence of genital injuries or gynaecological examination does not discredit the prosecution case, as the charge pertains to sexual assault involving outraging the modesty and physical violence, and not penetrative sexual assault.
The delay of two days in lodging the FIR has been satisfactorily explained. The victim was mentally retarded, the appellant had threatened the complainant, and there was fear and social stigma attached to the incident. It is well settled that in cases of sexual offences, especially involving mentally retarded and minors, delay in lodging the FIR cannot be treated as fatal to the prosecution.
The defence contention of false implication due to political rivalry or prior dispute is not supported by any evidence. No material has been brought on record to establish such motive. It is highly improbable that a mother would falsely implicate a person in a serious offence involving her mentally retarded minor daughter. The reliance placed by the appellant in Manoj Kumar Sharma (supra) regarding inconsistencies, absence of independent witnesses, and delay in FIR is misplaced. The incident occurred inside the house, and therefore absence of independent witnesses is natural. Minor discrepancies do not demolish an otherwise credible prosecution case.
The testimony of the prosecutrix is the foundation of the prosecution case. The Hon’ble Supreme Court in Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74 and State of Himachal Pradesh v. Sanjay Kumar Alias Sunny, (2017) 2 SCC 51, has held that the evidence of the victim of a sexual offence stands on a higher pedestal than that of an ordinary witness and, if found trustworthy, can form the sole basis of conviction without the need for corroboration. The observations made by the Hon’ble Supreme Court in the Phool Singh (supra) are as under :
“8.In Ganesan, this Court has observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. In the aforesaid case, this Court had an occasion to consider the series of judgments of this Court on conviction on the sole evidence of the prosecutrix. In paras 10.1 to 10.3, it is observed and held as under : (Ganesan case, SCC pp. 578-82)
“10.1.Whether, in the case involving sexual harassment, molestation, etc. can there be conviction on the sole evidence of the prosecutrix, in Vijay, it is observed in paras 9 to 14 as under : (SCC pp. 195-98)
‘9. In State of Maharashtra v. Chandraprakash Kewalchand Jain this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under : (SCC p. 559, para 16)
“16.A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.”
10.In State of U.P. v. Pappu this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under : (SCC p. 597, para 12)
“12.It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.”
11.In State of Punjab v. Gurmit Singh, this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under : (SCC pp. 394-96 & 403, paras 8 & 21)
“8.… The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. … The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. … Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. … Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. … * * *
21.… The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”
12.In State of Orissa v. Thakara Besra, this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
13.In State of H.P. v. Raghubir Singh, this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan.
14.Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.’
10.2.In Krishan Kumar Malik v. State of Haryana, it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
10.3.Who can be said to be a “sterling witness”, has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi). In para 22, it is observed and held as under : (SCC p. 29)
‘22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” (emphasis in original)”
The Hon’ble Supreme Court in Sanjay Kumar (supra) observed as follows :
“31.After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance (See Bhupinder Sharma v. State of H.P.). Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.”
In the present case, the testimony of PW3, though brief due to her mental condition, is consistent on material particulars and inspires confidence. Her version is further corroborated by PW1 and the medical evidence.
It is well settled principle of law that minor inconsistencies or lack of detailed narration in the testimony of a child witness are natural and cannot be a ground to discard such evidence. Applying the said principle, the simple and spontaneous deposition of the mentally retarded victim in the present case cannot be disbelieved merely because of her limited expressive ability.
With regard to the delay in lodging the First Information Report, the Hon’ble Supreme Court in State of H.P. v. Gian Chand, (2001) 6 SCC 71, has held that delay in filing the FIR in sexual offence cases is not fatal if the delay is satisfactorily explained. It has been held that hesitation and delay are natural due to fear, trauma, and social stigma. The observations made in the said judgment are as under :
“12.Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. ......”
In the present case, the delay of two days stands adequately explained due to the mental condition of the victim and the threats extended by the appellant.
The defence plea of false implication on account of political rivalry or personal enmity has no evidentiary support. A plea of false implication must be substantiated by cogent evidence and cannot be accepted on mere suggestions. In the present case, no material has been produced to support such a defence.
It is well settled that an appellate Court, while exercising jurisdiction against a judgment of conviction, does not ordinarily interfere with findings of fact recorded by the learned trial Court unless such findings are shown to be perverse, wholly unsupported by evidence, or vitiated by patent illegality. In the present case, this Court finds that the learned trial Court has meticulously evaluated the entire evidence on record and has returned findings based on sound reasoning and settled principles of law.
The evidence led by the prosecution, when examined in its entirety and in the backdrop of the legal position enunciated by the Courts as mentioned supra, constitutes a complete and coherent chain leading inexorably to the conclusion of the guilt of the appellant. No material contradiction, omission, or infirmity has been demonstrated so as to discredit the prosecution version or to render the conclusions of the learned trial Court unsustainable.
This Court has independently re-assessed the oral and documentary evidence and has carefully examined the grounds urged in appeal. The prosecution has succeeded in proving its case beyond reasonable doubt by adducing credible and trustworthy evidence, which has been duly appreciated by the learned trial Court. The challenge raised by the appellant does not merit acceptance.
On an overall and cumulative appreciation of the evidence, this Court is satisfied that the appellant committed sexual assault upon a minor girl suffering from mental disability, used criminal force with intent to outrage her modesty, and voluntarily caused hurt. The ingredients of the offences punishable under Sections 7 and 8 of the POCSO Act and Sections 354 and 323 of the IPC stand fully established.
The judgment and order dated 18-11-2022 passed in Special Case (Child Protection) No. 4/2018 does not disclose any perversity, illegality or miscarriage of justice warranting interference by this Court. The findings of the learned trial Court are well-reasoned and legally sustainable.
Consequently, the appeal is devoid of merit and is accordingly dismissed. The conviction and sentence awarded to the appellant are hereby confirmed.