Prayer
Criminal Appeal filed under Section 374 Cr.P.C., to call for the records pertaining to the judgment dated 14.12.2022, in Spl.S.C.No.6 of 2020, on the file of the Sessions Judge (Special Court of POCSO Act Cases), Virudhunagar District at Srivilliputhur and to set aside the same.
Appeal
Appeal against the conviction passed in POCSO case
The Criminal Appeal is directed against the judgment of conviction passed in Spl.S.C.No.6 of 2020 dated 14.12.2022 on the file of the Special Court for POCSO Act cases, Srivilliputhur.
Facts
The incident happened by providing mango juice laced with brandy to the victim causing intoxication
2. The Inspector of Police, All Women Police Station, Rajapalayam, Virudhunagar District has laid the final report against the accused alleging the following facts:
The accused is a fruit vendor, in a push cart near Thalavoipuram opticals. The defacto complainant is the mother of the victim girl. The victim girl, who has studied upto 5th std., is aged 13 years 13 days on the date of occurrence, her date of birth is 04.03.2005. The victim’s brother was in the habit of receiving fruits for free from the accused. On 17.03.2018, when the brother and sister went to the push cart of the accused, he gave them fruits free of costs and informed that he would give more fruits if they come to his home on that night. The victim and her brother without informing their parents went to the house of the accused at about 09.00 p.m. On their entry, the accused locked his house from inside and gave mango juice laced with brandy, both drank the same and when they requested the accused to allow them to go to their home, the accused had beaten the victim girl on her thighs and right hand. Due to the intoxication, both had then slept off, the accused had thereafter removed the dress of the victim girl and committed penetrative sexual assault. When the victim girl woke up by 05.00 a.m., the accused gave Rs.500/- and directed them not to disclose the occurrence and in case of disclosure, he threatened to kill them and their family members. Such incidents continued to happen thrice and the accused committed penetrative sexual assault, therefore, the accused has committed the offences punishable under Sections 366, 328 and 506(ii) I.P.C., and under Section 5(l) r/w 6 of POCSO Act.
Final report to charge framing: 3. After the receipt of the final report, the case was taken on file in Spl.S.C.No.6 of 2020, on the file of the Special Court for POCSO Act cases, Srivilliputhur. After appearance of the accused, copies of records were furnished to him under Section 207 Cr.P.C., on free of cost. The learned Sessions Judge, on perusal of records and on hearing both the sides, being satisfied that there existed a prima facie case against the accused, framed charges under Sections 366, 328 and 506(i) I.P.C., and under Section 5(l) r/w 6 of POCSO Act and the same were read over and explained to him and on being questioned, the accused denied the charges and pleaded not guilty.
Examination of witnesses: 4. The prosecution, in order to prove its case, had examined 14 witnesses as P.W.1 to P.W.14 and exhibited 24 documents as Ex.P.1 to Ex.P.24.
Trial and conviction under POCSO Act
6. The learned Sessions Judge, upon considering the evidence adduced and on hearing the arguments of both sides, has passed the impugned judgment, on 14.12.2022, convicting the accused for the offences under Sections 363 and 506(i) I.P.C., and under Section 5(l) r/w 6 of POCSO Act and sentenced him to undergo 3 years Rigorous Imprisonment and to pay a fine of Rs.5,000/-, in default to undergo 3 months Simple Imprisonment for the offence under Section 363 I.P.C., sentenced him to undergo 2 years Rigorous Imprisonment and to pay a fine of Rs.5,000/-, in default to undergo 3 months Simple Imprisonment for the offence under Section 506(i) I.P.C., and sentenced him to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.10,000/-, in default to undergo 2 years Simple Imprisonment for the offence under Section 5(l) r/w 6 of POCSO Act and acquitted the accused for the offence under Section 328 I.P.C. Aggrieved by the said conviction and sentence, the accused has preferred the appeal, now under consideration.
Analysis
Point for consideration
8. Whether the impugned judgment dated 14.12.2022, made in Spl.S.C.No.6 of 2020 on the file of the Special Court for POCSO Act cass, Srivilliputhur is liable to be set aside ?, is the point for consideration.
9. The trial Court, though charged the accused for the offences under Sections 363, 328, 506(i) I.P.C., and under Section 5(l) r/w 6 of POCSO Act, while acquitting the accused for the offence under Section 328 I.P.C., convicted him for the offences 363, 506(i) I.P.C., and under Section 5(l) r/w 6 of POCSO Act. The main charges against the appellant/accused are that on 17.03.2018, he directed P.W.2 and P.W.3 to come to his house at about 09.00p.m., promissing to offer more fruits and when both of them visited his house as directed by him, he committed penetrative sexual assault on the victim girl – P.W.2, that the accused had also threatened the victim girl that he would kill her and family if the occurrence is revealed to others and he again committed penetrative sexual assault on the victim girl thrice.
10. At the outset, it is necessary to refer the events chronologically:
“………”
Though the family of the victim came to know about pregnancy complaint was lodged after the child born
11. Considering the above, it is pertinent to note that though the family of P.W.2 came to know about her pregnancy on 23.08.2018, the complaint was lodged on 06.12.2018 after the birth of female child on 01.12.2018 and that though the F.I.R., came to be registered on 06.12.2018, the accused was identified only on 11.12.2018.
Discussion the scope of enacting POCSO Act with relevant sections to the case on hand
12. Before entering into further discussion, it’s the time to consider the legal position. The Protection of Children from Sexual Offences Act (POCSO) came to be enacted with an intention to protect children from offences of sexual assault, sexual harassment and pornography. Sections 29 and 30 have been inserted in the POCSO Act in order to provide better teeth to the prosecution, empowering the Court to draw presumption of guilt against the accused. As already pointed out, this is a case with an allegation of commission of offence under Section 5(l) of POCSO Act, which is punishable under Section 6 of the said Act. In a case under POCSO Act, the prosecution is required to prove some foundational facts, not beyond reasonable doubt, but by prepondrance of probability. If the prosecution is not able to prove the foundational facts of the offence based on a prepondrance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused.
Discussing section 29 POCSO Act and its application
13. At this juncture, it is necessary to refer Section 29 of POCSO Act, which deals with reverse burden and the same reads as follows :
“Section 29: Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.”
14. The above section begins with the words “Where a person is prosecuted” covering a complete exercise on the part of prosecution to prove the charge framed against the accused during the course of trial, which is rebuttable subject to developing a strong defence contrary to that established by prosecution till cross examination by defence.
Discussion on onus to prove the case and reverse burden
15. It is settled law that establishing the fundamental facts by leading evidence by prosecution, is an essential pre-requisite before the statutory presumption under Section 29 of POCSO Act is triggered so as to shift the onus on the accused to prove the contrary. It is pertinent to note that no presumption is absolute and every presumption is rebuttable. It cannot be stated that the presumption under Section 29 of POCSO Act, is absolute and it would come into operation only when the prosecution is able to establish the facts that would form foundation, for the presumption under Section 29 of POCSO Act to operate.
NDPS Act: 16. The Hon’ble Supreme Court, while considering the validity of Section 35 and 54 of NDPS Act, which also deals with the reverse burden in the case of Noor Aga Vs. State of Punjab and another reported in (2008)16 SCC 417 upheld the constitutional validity of the above said provisions and also reiterated that more serious the offence, the stricter is the degree of proof to convict the accused. The Hon’ble Apex Court has further held that an initial burden would lie upon the prosecution and only when it stands satisfied, the legal burden would shift upon the accused and declared the legal position that notwithstanding the concept of reverse burden envisaged by Sections 35 and 54 of NDPS Act, the burden upon the prosecution to prove the foundational fact would still exist.
17. The Gauhati High Court in Bhupen Kalita Vs State of Assam reported in (2020)3 GLT 403, after referring to various judgments, has listed out the principles applicable in POCSO Act for drawing presumption under Sections 29 and 30 of the Act and the same are extracted hereunder:
“71. In the light of the discussions above, the following legal positions emerge in any proceeding under the POCSO Act.
(A) The prosecution has to prove the foundational facts of the offence charged against the accused, not based on proof beyond reasonable doubt, but on the basis of preponderance of probability.
(B) Accordingly, if the prosecution is not able to prove the foundational facts of the offence based on preponderance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused.
(C) If the prosecution is successful in establishing the foundational facts and the presumption is raised against the accused, the accused can rebut the same either by discrediting the prosecution witnesses through crossexamination or by adducing his own evidence to demonstrate that the prosecution case is improbable based on the principle of preponderance of probability. However, if it relates to absence of culpable mental state, the accused has to prove the absence of such culpable mental state beyond reasonable doubt as provided under Section 30(2) of the Act.
(D) However, because of legal presumption against the accused, it may not suffice by merely trying to discredit the evidence of the prosecution through cross-examination, and the defence may be required to adduce evidence to dismantle the legal presumption against him and prove that he is not guilty. The accused would be expected to come forward with more positive evidence to establish his innocence to negate the presumption of guilt.”
Applying the judicial and legal references in the case on hand
18. Considering the facts and circumstances of the case and the allegations raised by the prosecution, the foundational facts which the prosecution would be required to prove are:
(i) that the victim was a child below 18 years of age;
(ii) that the victim was subjected to penetrative sexual assault; and
(iii) that the accused was the one who committed penetrative sexual assault on the victim.
19. If the basic and foundational facts of the prosecution case is laid by adducing legally admissible evidence, then the burden shifts on to the accused to rebut it, by establishing from the evidence on record that he did not commit the offence or that no such incident occurred or that the victim is not a child.
Appellant has not specifically disputed the finding of the trial court with regard of the age of the victim
20. In the case on hand, the learned trial Judge, by relying on the evidence of P.W.12 – Headmaster and the documents produced under Exs.P.11 and P.12, has come to a decision that the victim girl was born on 04.03.2005 and as such, she was aged 13 years and 13 days on the date of occurrence. The appellant/accused has not specifically disputed the finding of the trial Court with regard to the age of the victim girl.
Contradiction of the victim regarding visiting appellant in her evidence
24. As rightly pointed out by the learned Counsel for the accused, P.W.2 in her evidence would say that subsequent to the first occurrence, the accused had intercourse with her several times. But P.W.3 would say that subsequent to the first occurrence, he had taken her sister thrice to the house of the accused. But during the cross-examination of P.W.3, a suggestion was made that he had never visited the house of the accused, he would reply that he went to the house of the accused once and that he went to his house previous night and returned on the next day. P.W.3, in his cross-examination, would say that he had studied 4th std., 7 years prior to his examination before the trial Court. Admittedly, P.W.3 was examined before the trial Court on 14.09.2021 and if 7 years period is calculated, the concerned year would be 2014. But according to the prosecution, the first incident was allegedly occurred on 17.03.2018.
25. As rightly contended by the learned Counsel for the appellant, P.W.2 in her evidence before the trial Court, has nowhere whispered that she had witnessed the commission of penetrative sexual assault by the accused on her or she was conscious enough to understand that such an offence was committed on her. As already pointed out, even according to her, after consuming the juice given by the accused, she has become unconscious and when she woke up on the next day morning, she found that her dresses were removed and that she experienced bodily pain and also found some sticky fluids on her body.
Admission of accused to the victim about the incident that he had intercourse with her can be admitted in evidence as res gestae u/s 6 of IEA
26. No doubt, P.W.2, in her evidence, would say that the accused had informed her that he had intercourse with her on that night. No doubt, such admission of the accused immediately after the occurrence can be admitted in evidence as res gestae as contemplated under Section 6 of the Indian Evidence Act. But the same was allegedly spoken by the accused to the victim. Moreover, the victim has not disclosed the same to her mother or others immediately or subsequently. It is pertinent to note that though P.W.2 was examined under Section 164 Cr.P.C., she has not chosen to disclose the same before the Judicial Magistrate. As already pointed out, the accused was named and identified only on 11.02.2018 and that too after the birth of her child and registration of the case. The other direct witness P.W.3 has nowhere stated that he had witnessed the occurrence.
DNA analysis test report excluded the accused as the biological father of the victim’s child
28. It is pertinent to say that P.W.2 has stated that the accused alone was responsible for her pregnancy and it is not her case that she was subjected to penetrative sexual assault by some other person also. As already pointed out, P.W.2 and the child born to her and the accused were subjected to DNA analysis test and a report was received, concluding that the accused is excluded from being the father of the female child born to the victim girl.
As per the Supreme court judgment DNA test is almost scientifically accurate method or procedure ascertaining the paternity of the child
29. Hon’ble Supreme Court, in a catena of decisions, has reiterated the legal position that the result of DNA test is almost scientifically accurate method or procedure for ascertaining the paternity of the child and the disputing parent. In the present case, between the accused and the child born to the victim girl. Admittedly, neither the prosecution nor the defacto complainant has specifically disputed the DNA test and the results therefor. Considering the above, the contention of the victim girl that the accused was responsible for her pregnancy has been completely belied by the DNA result.
Neither the DNA report nor the witness testimonies have proven the prosecution’s case against the accused
30. The case of the prosecution can be approached in two ways and the first one, according to them is, the accused had committed penetrative sexual assault on the victim girl thrice and the second one, is that the victim girl has become pregnant through the accused. The contention that the victim girl became pregnant through the accused has already been belied by the DNA report. As already pointed out, P.W.2 and P.W.3 had never deposed that they witnessed the occurrence. No doubt, as rightly pointed out by the learned Additional Public Prosecutor, even assuming that there is no direct witness, the Court is duty bound to consider the circumstantial evidence. But it is settled law that in case of circumstantial evidence, the chain has to be complete in all respects to indicate guilt of the accused.
31. The learned Additional Public Prosecutor would submit that P.W.8 – neighbour of the accused would depose that she saw the accused bringing a girl and a boy to his house at about 09.00p.m., in the night and when she had enquired, the accused informed that they were his relatives. In cross-examination, P.W.8 would say that the owner of the accused is residing in the next house, that she is residing two houses away from the accused’s house and that there was a distance of one kilometre between the house of the accused and the house of P.W.2.
Practice of courts marking statements recorded under Section 164 of the Cr.P.C is deprecated
39. It is pertinent to mention that though P.W.1, P.W.2 and P.W.4 were examined by the learned Magistrate under Section 164 Cr.P.C., they have not disclosed about the person responsible for P.W.2’s pregnancy. As already pointed out, the entire statements recorded under Section 164 Cr.P.C., from P.W.1 to P.W.5 came to be marked as Exs.P.2 to P.6 respectively.
40. The Hon’ble Supreme Court in a suo motu Writ (Criminal) No.1 of 2017 has deprecated the practice of omni-bus marking of Section 164 Cr.P.C., statement of witness. The statement under Section 164 Cr.P.C., is not a substantial evidence, but the same can be used to corroborate or contradict the evidence of author recorded subsequently. It is pertinent to note that the relevant portion of such prior statements of living persons used for contradiction or corroboration under Section 145/157 of the Evidence Act deserves to be marked separately and specifically. Previously there was a practice in the criminal courts of marking the entire confession statement of the accused and after coming down heavily on the said practice by this Court, the same has been stopped. But the practice of marking the entire statements under Section 164 Cr.P.C., by the Criminal Courts is on the rise. It is high time for the criminal Courts to understand the scope and evidentiary value of the statement recorded under Section 164 Cr.P.C., and to stop the practice of marking the entire statements,.The criminal court should permit the prosecution as well as defence, only to mark the particular potion of the statement recorded under Section 164 Cr.P.C., either for corroboration or for contradiction.
41. The general rule that the statement recorded under Section 164 Cr.P.C., is not a substantive evidence, after amendment to the Code of Criminal Procedure in 2013, is now having an exception, as contemplated under Section 164(5-A) which states that if the maker of the statement is temporarily or permanently, mentally or physically disabled, the statement made by such a person shall be considered as substantive evidence by the trial Court and the maker of the statement need not be examined by chief, but can be subjected to cross-examination directly on the basis of the staement recorded under Section 164(5-A) of Cr.P.C. 42. It is pertinent to note that the newly inserted clause(a) of Subsection 5-A of 164 Cr.P.C., is made applicable to the statement of the person against whom the sexual offences referred in that clause has been committed and that clause (b) states that a statement recorded under clause(a) of a person who is temporarily or permanently, mentally or physically disabled shall be considered a statement in lieu of examinationin-chief and that the maker of the statement can be cross-examined without the need for recording the chief examination at the time of trial.
43. Generally, the statement recorded under Section 164 Cr.P.C., cannot be considered or treated as the evidence of the maker of the statement, but as per the amended provision under Section 164(5-A), the statement recorded from a person against whom the sexual offence was committed, can be considered as their chief examination provided the conditions stated in Section 164(5-A)(a) and (b) are satisfied. Even if the conditions under Section 164(5-A) Cr.P.C., are satisfied, the trial Court cannot mark the entire statement of the victim as an exhibit while examining the maker of the statement, but the statement itself has to be treated as chief examination evidence of the maker.
44. In the case on hand, though the learned trial Judge has exhibited the entire statements recorded under Section 164 Cr.P.C., of P.W.1 to P.W.5, neither the prosecution nor the defence has made any attempt to mark any specific portion therein for corroborating or for contradicting the evidence given by the author of the statements. In the absence of eliciting any corroboration or contradictions, the documents exhibited as Exs.P.2 to P.6 remain as mere documents without any evidentiary value.
Section 53(A) & 54 Cr.P.C: Potency examination of accused not done in this case
45. The learned Counsel for the appellant would submit that even after the arrest of the appellant on 11.12.2018, he was not at all taken to potency test in order to establish that he is capable of committing the alleged crime. Sections 53, 53(A) and 54 Cr.P.C., deal with the examination of the accused. Section 53(A) Cr.P.C., provides specifically for examination of person accused of rape by medical practitioner. Section 53(A) contemplates that when a person is arrested for a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission such offence, which shall be lawful for a registered medical practitioner acting at the request of the police officer to make such an examination of arrested person and to use such force as is necessary for that purpose and that the registered medical practitioner shall without delay forward the report to the Investigating Officer who shall forward to the Magistrate.
46. In the case on hand, as rightly pointed out by the learned Counsel for the appellant, the prosecution has not taken any steps for conducting potency test for the accused, despite charging him for the offence of penetrative sexual assault. In Siva Vallabhaneni Vs. State of Karnatana and another (popularly known as Nithyananda’s case) reported in (2015)3 SCC 2128, the Hon’ble Supreme Court has confirmed the dismissal of the petitions by the High Court of Karnataka, confirming the orders passed by the trial Court directing the accused to give his blood sample for test and his voice sample for analysis and also to subject himself for medical examination to assess his sexual potency. The Hon’ble Supreme Court has questioned Nithyananda’s reluctance to undergo potency test in a rape case and observed that the accused are expected to cooperate with the Court or else adverse inference may have to be drawn against them.
47. In the case on hand, it is the specific case of the prosecution that the accused has committed penetrative sexual assault and made the victim pregnant. But they have miserably failed to take steps for subjecting the accused to potency test. The prosecution has not offered any reason or explanation for non taking the steps in this regard.
Failure to conduct the potency test and a negative DNA report create a great suspicion over the entire prosecution case
48. Considering the inordinate delay in lodging the complaint, fixing the accused belatedly, non-conducting of potency test and the negative DNA report, this Court has no hesitation to hold that these aspects indeed create a great suspicion over the entire prosecution case. But the learned trial Judge, mainly relying on the chief examination of P.W.2 and P.W.3 and by simply observing that there was no explanation from the defence as to why a false complaint came to be lodged by the victim’s mother against him, has mechanically recorded a decision that the prosecution has proved the charges under Section 5(l) r/w 6 of POCSO Act. Consequently, this Court concludes that the prosecution has miserably failed to prove the main charge under the POCSO Act and the incidental charges under Sections 363 and 506(i) I.P.C., and as such, the judgment of conviction and sentence passed by the trial Court is liable to be set aside.
Further investigation is directed to find out the real culprit
50. It is quite painful to note that the respondent police, had stopped its investigation with the accused, even after knowing that he is not the biological father of the child born to the victim girl .The respondent police has failed in its lawful duty of finding out the real culprit who made the victim girl pregnant. As no child could be allowed to be bastardised, the respondent police is hereby directed to proceed with further investigation to find out the real culprit within a period of four months from the date of receipt of copy of this judgment.
Conclusion
Criminal appeal allowed and accused acquitted
53. In the result, the Criminal Appeal is allowed and the impugned judgment of conviction and sentence imposed by the learned Sessions Judge, (Special Court of POCSO Act cases), Virudhunagar District at Srivilliputhur om Spl.S.C.No.6 of 2020, dated 14.12.2022 is set aside and the accused is acquitted from the charges levelled against him. It is represented that the appellant is in Jail. The appellant is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. Fine amount if any paid, shall be refunded to him. Bail bond, if any, shall stand cancelled. The respondent police is directed to conduct further investigation to find out the real accused and to complete the same within a period of four months from the date of receipt of a copy of this judgment by following the directions issued above.
References
Case Law Cited
- Noor Aga vs. State of Punjab and Another (2008) 16 SCC 417: Cited regarding the concept of reverse burden in special statutes. The Court emphasized that even with provisions like Sections 35 and 54 of the NDPS Act (analogous to POCSO), the initial burden remains on the prosecution to prove foundational facts.
- Bhupen Kalita vs. State of Assam (2020) 3 GLT 403: The Court extracted four specific legal principles from this judgment regarding the application of Sections 29 and 30 of the POCSO Act, particularly that the prosecution must prove foundational facts by a preponderance of probability before the presumption of guilt is triggered.
- Siva Vallabhaneni vs. State of Karnataka and Another (2015) 3 SCC 2128: Referenced (noting the “Nithyananda Case”) to highlight that an accused in a rape case can be directed to undergo a potency test, and a refusal to cooperate may lead to an adverse inference.
- Suo Motu Writ (Criminal) No. 1 of 2017: Cited by the Supreme Court to deprecate the “omni-bus marking” of Section 164 CrPC statements, clarifying that these are not substantive evidence and should only be used for corroboration or contradiction.
Statutory Provisions Analysed
The judgment heavily analysed the interaction between the following sections:
- POCSO Act: Sections 29 and 30 (Presumption of certain offences and culpable mental state).
- Indian Evidence Act: Section 6 (Res gestae), Section 53-A (Irrelevance of character in certain cases), and Section 145/157 (Contradiction and Corroboration).
- CrPC: Section 164(5-A) (Recording of statements of persons with disabilities/sexual assault victims as substantive evidence in specific conditions) and Section 53-A (Medical examination of the accused).
Arguments of the Counsel for the Appellant
- Lack of Direct Evidence: The counsel argued that the victim (P.W.2) never stated in her evidence that she had witnessed the penetrative sexual assault or was conscious enough to understand it was happening, as she claimed to have become unconscious after drinking juice provided by the accused.
- Contradictory Testimonies: The counsel pointed out inconsistencies between the testimonies of the victim and her brother (P.W.3) regarding the number of times they visited the accused’s house. Furthermore, the counsel highlighted a timeline discrepancy, noting that P.W.3’s calculation of his school grade placed the alleged event in 2014, whereas the prosecution claimed the first incident occurred in 2018.
- Flaws in Circumstantial Evidence: The counsel challenged the testimony of the neighbor (P.W.8), who claimed to have seen the accused bring the children to his house, by pointing out that P.W.8’s house was not even recorded in the investigating officer’s observation mahazar or rough sketch.
- Inordinate Delay: The counsel emphasized the significant, unexplained delay in lodging the complaint. The victim’s family discovered her pregnancy in August 2018 but chose not to report it to the police until December 2018, after the child was born and the hospital authorities alerted the Child Welfare Committee.
- Failure to Conduct Potency Test: The counsel submitted that the police never subjected the accused to a potency test following his arrest to establish if he was capable of committing the alleged crime, which was a major investigative lapse.
Arguments of the Additional Public Prosecutor
- Duty to Consider Circumstantial Evidence: The prosecutor argued that even if there was no direct witness to the crime, the Court is still duty-bound to consider the circumstantial evidence in the case.
Party
Mariappan vs. The Inspector of Police - Criminal Appeal (MD) No. 78 of 2023 - 2023:MHC:4113 - September 8, 2023 - The Honourable Mr. Justice K. Murali Shankar.
