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JUSTICE M.S.RAMESH and THE HONOURABLE MR. JUSTICE N.SENTHILKUMAR Criminal Appeal Nos.1128 of 2022 and 255 of 2023 and Crl. M.P. No.19507 of 2023 Sanjana        … Appellant in Crl.A.  No.1128/2022/A2 Balaji … Appellant in Crl.A.  No.255/2023/A1 Vs. State represented by Inspector of Police, W-25, All Women Police Station, T. Nagar, Chennai. (Crime No.6/2019)      .. Respondent in both the appeals

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Crl Appeal .MS Ramesh judge N.Senthilkumar judge

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON

17.03.2025

PRONOUNCED ON

28.04.2025

CORAM

THE HONOURABLE MR. JUSTICE M.S.RAMESH and THE HONOURABLE MR. JUSTICE N.SENTHILKUMAR

Criminal Appeal Nos.1128 of 2022 and 255 of 2023 and Crl. M.P. No.19507 of 2023

Sanjana        … Appellant in Crl.A.  No.1128/2022/A2 Balaji … Appellant in Crl.A.  No.255/2023/A1

Vs.

State represented by

Inspector of Police,

W-25, All Women Police Station, T. Nagar, Chennai.

(Crime No.6/2019)      .. Respondent in both the appeals

Prayer: Criminal Appeals filed under Section 374(2) of the Criminal Procedure

Code against the judgment of the learned Sessions Judge, Special Court for Exclusive Trial of cases under POCSO Act, 2012, Chennai in Spl. S.C. No.08 of 2020 dated 18.07.2022.

 

For Appellant in

: Mr.R.John Sathyan, Senior Cousel

Crl.A. No.1128/2022

For Appellant in

For Mr.Swami Subramanian

 

Crl.A.No.255/2023

: Mr.V.Neeranjan

For Respondent in

: Mr.S.Raja Kumar

both Crl. Appeals

Additional Public Prosecutor

COMMON JUDGMENT

N.SENTHILKUMAR, J., INDEX

Sl.No.

Subject

Page Nos.

I

Introduction

(a) Evolution of Women and Child Rights

  • International Conventions
  • International Legislations

5

6

6

7

II

Evolution of Law on Child Rights in India

10

III

Facts

14

IV

Principles on Credibility of child witness

24

V

Presumption under POCSO Act

36

VI

Analaysis on Facts and Law

A.Contradictions in the evidence of the            Prosecutrix (PW1)

B.Inconsistencies in the evidence of

Prosecution Witnesses: (PW1 to PW3)

C.Effect of Defective Investigation

37

37

41

44

VII

Relevancy of Defence Witnesses and documents

46

VIII

Evidentiary Value of 313 Questions

48

IX

Conclusion

51

The essence of truth and wisdom in the words of the famous Tamil saint

Thiruvalluvar in the below captioned Thirukkural assumes greater importance:

“vg;bghUs; ahh;ahh;tha;f; nfl;gpDk; mg;bghUs; bka;g;bghUs; fhz;g jwpt[/”

(jpUts;Sth;)

Translated Version:

“Though things diverse from divers sages’ lips we learn  Tis wisdom’s part in each the true thing to discern”

(G.U.Pope)

Meaning :

To discern the truth in everything, by whomsoever spoken, is wisdom.

The core principle of our criminal justice system is to uncover the truth behind the crime committed against the victim while preserving the rights of the accused.

  • These appeals are filed by the accused A2 and A1, respectively, challenging the judgment of conviction and sentence passed against them by the learned IV Additional District and Sessions Judge, Special Court for Exclusive Trial of cases under POCSO Act, 2012, Chennai in Spl. S.C. No.08 of 2020 dated 18.07.2022. They were convicted and sentenced as follows:

Sl.

No.

Named of the Accused

Conviction and Sentence u/s

1.

Sanjana (A2), appellant in Crl.A. No.1128 of

2022

1)Section 376(3) r/w 109 of IPC – Life imprisonment for the remaining period of natural life and also a fine of Rs.50,000/-, in default, to undergo 6 months simple imprisonment;

2)Under Section 366 of IPC – Sentenced to undergo 10 years rigorous imprisonment and also imposed a fine of Rs.10,000/-, in default, to undergo 3 months simple imprisonment;

3)Under Section 389 IPC – Sentenced to undergo 10 years rigorous imprisonment and also imposed a fine of Rs.10,000/-, in default, to undergo 3 months simple imprisonment; and

4)Under Section 506(ii) IPC, Sentenced to undergo 6 months rigorous imprisonment.

All the sentences shall run concurrently.

2

Balaji (A1), appellant in Crl.A. No.255 of 2023

1)Section 376(3) of IPC and under

Section 366 of IPC and Section 4 of

POCO Act, 2012 alternatively under Section 376(3) of IPC – Life imprisonment for the remaining period of natural life and also a fine of

 

 

Rs.50,000/-, in default, to undergo 6 months simple imprisonment; and

2)Under Section 366 of IPC – Sentenced to undergo 10 years rigorous imprisonment and also imposed a fine of Rs.10,000/-, in default, to undergo 3 months simple imprisonment;

All the sentences shall run concurrently.

Introduction:

  • The Sangam Tamil Literature had portrayed women as the predominant head of the family and the women had played pivotal role in human relationships as well as in the family administration. Kurunthogai, Purananuru, Silappathikaram were some among the epics, which had demonstrated the women’s leadership in this soil and acknowledged their intellects and predominance in the society. The said literatures would demonstrate that women had led the entire society and men had no quarrel over the gender and he did not consider himself to be dominant on the basis of muscle power. Men had given utmost respect for women.
  • Tamil Nadu is the cradle of countless brave hearts, where the spirit of freedom was born and nurtured. Thillaiyadi Valliammai, a courageous daughter of Tamil Nadu had inspired Mahatma Gandhi in the freedom struggle. This is the sacred land where women of valour rose in the freedom struggle, and where the flame of women’s rights was kindled, growing into a beacon of strength and progress. Protection of women’s rights paved the way for protection of children’s rights, creating a world where both women and children could thrive in freedom and dignity.

(a) Evolution of Women and Child Rights:

  1. International Conventions:
  2. India was a founding member of Geneva Declaration of the Rights of the Child, 1924 which is the first international convention to address child rights. Article 4 of the convention is the 1stinternational principle which urges the member states to protect the children from all forms of exploitation. Article

25 (2) ofthe Universal Declaration of Human Rights, proclaimed by UN General Assembly on 10.12.1948, emphasises that motherhood and childhood requires special care and assistance.The Declaration of the Rights of the Child, 1959 adopted by the UN General Assembly on 20 November 1959 focuses on physical and mental wellbeing of the child including recreational activities and free education. Principle 9 of the declaration covers rights of the child for protection against all forms of neglect, cruelty and exploitation.

  1. International Covenant on Economic, Social and Cultural Rights, which was ratified by India on 10.04.1979, also states that children and young persons should be protected from economic and social exploitation. Under Article 24 ofthe International Covenant on Civil and Political Rights, which was ratified by India on 10.04.1979, every child is entitled to be protected by the family, society and state. Convention on the Rights of the Child which was adopted by United Nations General Assembly on 20.11.1989 and ratified by India on 11.12.1992 is a comprehensive framework which covers wide aspects of child rights. Under this convention, every human being below the age of 18 years is considered as child. The member countries are duty bound to protect the child from all forms of sexual exploitation and sexual abuse under Article

34 of the convention.

  1. International Legislations:

a)USA

  1. In accordance with the International Conventions on child rights, Title 18 of the U S Code provides for crimes and criminal procedure. Chapter 109A enlists the sexual offences, under which, sexual abuse of a minor, a ward, or an individual in Federal custody is punishable with imprisonment for 15 years or with fine or with both.

b) Singapore

  • The Children and Young Persons Act provides for welfare, care and protection of children and young persons as well as the treatment and rehabilitation of children and young persons who are convicts.  Section 8 of the act ensures that children and young persons are protected from all kinds of sexual exploitation by prescribing punishments such as 5 years imprisonment and fine.
  • The Child Care Centres Act, 1988 provides the framework for regulating childcare centres, ensuring they meet specific standards and requirements including staff-child ratios, program guidelines, health, nutrition, safety, teacher qualifications, and parent involvement. The Singapore Penal Code, 1871 lists out various sexual offences which are strictly punishable under the Code from sections 375 to 377D including sexual offences against children such as rape, sexual penetration of minors below 16 years of age, exploitative sexual penetration of minor of or above 16 years and below 18 years of age, producing child abuse material, distributing or selling child abuse material etc.

c)Japan

 

  1. The Child welfare Act, 1947 seeks to ensure that children are born and brought up in good mental and physical health. It emphasizes that all children be treated with kindness. Article 2 of the Act holds the national and local governments responsible for bringing up children in good mental and physical health, along with their guardians. It thus, guarantees children’s welfare and makes sure that the policy of child welfare is consistently respected and followed throughout the country.

 

 

  1. Child Abuse Prevention and Treatment Act, 2000 is enacted for prevention of child abuse by outlining the responsibilities of both national and local governments, implementing precautions and early detection methods, and providing protection and support for children who have been abused. The Act also emphasizes the importance of helping these children in regaining their independence. It takes into account the severe violation of children’s human rights, the significant effects of abuse on their physical and mental development, as well as its negative impact on their future well-being and the upbringing of future generations, ultimately contributing to the protection of children’s rights and interests.

d) Germany

  1. The German Criminal code or Strafgesetzbuch (StGB) penalises Child abuse and aggravated child abuse under sections 176 and 176a, thereby, striving to protect children from sexual cruelty and prescribes imprisonment to the offenders. When such abuse has caused the death of the child, the code prescribes life imprisonment or imprisonment for not less than 10 years under Section 176b.
  2. Evolution of Law on Child Rights in India:
  1. State is empowered to make special provisions for women and children under Article 15(3) of Constitution of India. Section 317 of Indian Penal Code, 1860 and Section 93 of The Bharatiya Nyaya Sanhita, 2023 protects the children under the age of twelve years from exposure and abandonment by the parents or the person having care of such child. In cases of abduction or unlawful detention of a woman, or a female child under the age of eighteen years for any unlawful purpose, Sec 98 of Code of Criminal Procedure and Section 101 of The Bharatiya Nagarik Suraksha Sanhita, 2023 empowers the District Magistrate, Sub-divisional Magistrate or Magistrate of the first class to make an order for the immediate restoration of such woman and female child and to compel compliance with such order, using such force as may be necessary.
  2. As per the report of the Juvenile Justice Committee on The Juvenile

Justice Act, 1986, the first legislation covering children wasthe Apprentice Act, 1850 enacted under the British regime which protects the rights of the children between the age of 10 years and 18 years who are bound as apprentices to their father, guardian and the Governor in case of poor child brought up by any public charity. The Reformatory Schools Act was enacted in the year 1897. As per the report, the Indian Jail Committee (1919-1920) emphasized the need for square trial and treatment of young offenders.

  1. The recommendations of Indian Jail Committee prompted the enactment of The Madras Children Act, 1920 which provided for custody, trial, maintenance, welfare, education, character training for the children etc.. Under sec 36-H of the act, if it appears to a court, on the complaint of any person that a girl under the age of sixteen years is with or without the knowledge of her parent or guardian, exposed to the risk of seduction or prostitution, the court may direct the parent or guardian to enter into a recognisance to exercise due care and supervision in respect of such girl.
  2. The Child Marriage Restraint Act, 1929 which was enacted in British

India was amended in the year 1978. Under the Prohibition of Child Marriages Act, 2006, a child or minor is a person up to 18 years in the case of girls and 21 years in the case of boys. The solemnization of child marriages is a cognizable and nonbailable offence.

  1. The Children Act, 1960 was enacted for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children. Child Labour (Prohibition and Regulation) Act, 1986 prohibits engagement of children under the age of 14 years in certain specific hazardous occupations and manufacturing processes. The Juvenile Justice Act, 1986, and the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Juvenile

Justice (Care and Protection of Children) Act, 2015, have replaced the Children Act, 1960 in terms of juvenile justice and child welfare.

  1. The Government of India appointed an Expert Committee under the chairmanship on Justice V R Krishna Iyer for drafting the National Commission for Children Bill 2000, based on which, Commissions for Protection of Child Rights Act, 2005 was enacted. The Act provides for establishing National Commission and the State Commission which are authorized to initiate suo motu steps to ensure child rights protection. The Supreme Court of India on 1st  December, 2000, directed the State to ensure “that children are not subjected to corporal punishment in schools and they receive education in an environment of freedom and dignity, free from fear”. The Right of Children to Free and Compulsory Education Act, 2009 aims to provide free and compulsory education to all children between the age of 6 to 14 years.
  2. The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is the special law which addressed the issue of sexual offences against children. It protects the children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography. The act criminalizes various sexual offences against children, ensuring their protection. The key provisions of the Act include Section 3, which prohibits any act of penetrative sexual assault on a child; Section 5 of the act, which defines Aggravated Penetrative Sexual Assault can be invoked, when the offence of penetrative sexual assault is committed by someone in a position of trust or authority.
  3. The definition of Sexual Assault under Section 7 of the act, includes the act of touching the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration. Whoever commits such offence shall be punished with imprisonment for not less than 3 years. Aggravated Sexual Assault is covered under Section 9; and Section 11 defines Sexual Harassment.
  4. These provisions are designed to safeguard children from

exploitation and abuse, reinforcing the necessity for immediate action. The act is based on the Doctrine of Reverse Onus, where the burden of proof lies on the accused to prove that he is not guilty. Such presumption in favour of the victim is dealt under Sections 29 and 30 of the act.

  III.   Facts

  • The brief facts of the prosecution case are as follows:
    • The appellants (A2 and A1) resided in an apartment in opposite houses. A2 had completed her postgraduate studies and pursued her Ph.D. A1 was residing in his mother-in-law’s house which is situated opposite to A2’s flat for medical treatment.
    • Before the Trial Court, the victim child was examined as PW1 and her father and mother were examined as PW2 and PW3 respectively. PW1 had returned from Dubai to Chennai and continued her studies. She got admitted to 7th Standard in Shrine Velankanni Higher Secondary School.
    • A2 was the class teacher of PW1. After two months from the date of joining the school, A2 had asked PW1 to attend the tuition conducted by her as PW1 was not performing well in her studies. PW1 started attending the tuition conducted by A2.
    • PW1 and A2 developed affection for each other. A2 gave comfort and solace to PW1 and thereby PW1 had great respect, love and affection towards A2. PW1’s father was working in Bangalore. PW1 has a younger sister and brother who were also studying in the same school.
    • According to PW1, on a Saturday, when she was

climbing the stairs to A2’s house, A1 forcibly kissed PW1, and the said fact was informed to A2 by PW1. However, A2 had scolded PW1, by stating that PW1 is a bad girl and she might have only misbehaved with A1 and also threatened PW1 by stating that she will commit suicide if PW1 informs about this incident to her parents.

  • A2 took permission from PW2, the father of PW1 for taking his daughter, namely PW1, to watch a Tamil movie, namely, ‘Irumbu Thirai’. A2 took PW1 in the train. When PW1 asked why they were taking the train instead of going to the movie, A2 replied that they are not going to the movie and they are going to meet A1 at Urapakkam. As PW1 refused to accompany A2, she threatened to commit suicide.
    • Therefore, PW1 went along with A2 and met A1, who was in his shop at Urapakkam. At the instance of A2, PW1 asked A1, when he would marry A2. But A1 did not give a proper response, and they returned home. Two months later, A2 had shown a text message to PW1 which was sent by A1 to A2’s mobile phone and requested PW1 to join them for “dating” to which PW1 asked what “dating” meant. A2 convinced PW1 by saying that A1 and A2 would be chatting, and PW1 could simply accompany them.
    • A2 informed PW3, the mother of PW1 about an exam at the university where she was pursuing her Ph.D and requested to take PW1 along with her. In response, PW3 agreed to send PW1 and dropped her near Shrine Velankanni Global School at 9 AM on 10.07.2018 as per A2’s request and left the spot. Thereafter, A1 arrived in a car and picked up PW1 and A2, drove them to a

location that appeared to be a hotel.

  • PW1 was taken to a hotel room in which, there was a hall, bedroom and a kitchen. A1 and A2 forcefully pushed PW1 into the room. A1 went inside the room and A2 waited in the hall.

A1 had committed rape on PW1. The victim/PW1 was aged about 14 years at the time of occurrence. After the penetrative sexual assault by A1, PW1 washed herself and her clothes and came out of the room.

  • Upon seeing A2, PW1 cried out of pain and asked her why she had done this. A2 threatened to expose the photographs and videos taken in the hotel room to PW1’s parents if she disclosed the incident. At the instance of A2, PW1 had attended the tuition conducted by A2 on the date of occurrence also.
    • Despite the incident, PW1 felt a sense of affection towards A2. Taking advantage of this emotional attachment, A2 started demanding PW1 to bring cash and jewels from her house. According to PW1, A2 also induced PW1 to have a love affair with one Shubam (not examined), who was the classmate of PW1.

As Shubam’s father was transferred to Delhi in the middle of the academic year, his family was relocated.

  • A2 had informed PW1 that, Shubam’s father lost his job and he is in need of money to pay his school fee. A2 insisted PW1 to steal money from her house and threatened to commit suicide if PW1 failed to meet her demands. Yielding to such threats, PW1 started bringing money, foreign currency and jewels from her house, which was pledged by A2.
    • PW3 noticed that Rs.10,000/- kept by her father, 13,000 Riyals kept by her husband/PW3, Rs. 4000 and Rs. 4500 withdrawn from ATM had gone missing from the house and she initially blamed the maids. When she questioned PW1, no

satisfactory reply was given.

  • On 26.10.2019, a function was held at PW1’s house. Two days after the function, PW1 revealed PW2 and PW3 that, at the instance of A2, she had been taking the cash, foreign currency and jewels which had gone missing from the house and also informed them about the incident of sexual assault at the hands of

A1.

  • PW2 preferred a complaint with the respondent police,which was treated as Ex.P5. The police started their investigation and arrested A1 and A2. Both the accused confessed that A1 indulged in forced sexual intercourse with PW1 and A2 had abetted the crime in the hope of marrying A1.
    • The respondent police had registered an FIR for offences under Section 375, 376, 383, 386, 387, 503 of IPC and

Sections 4 and 6 of the POCSO Act, 2012 against A1 and A2.

Charge sheet was filed for offences under Section 366(A) IPC and

Section 4 of the POCSO Act against A1 and under Sections 366(A), 389, 503 IPC and Section 4 r/w POCSO Act against A2.

  • The Special Court, after taking cognizance of the offence, questioned the accused on the charges levelled against them and the accused had denied the charges. The prosecution, had examined as many as 12 witnesses as PWs.1 to 12, marked 20 documents as Exs.P1 to P20. On the side of defence, the first accused was examined as DW1 and the wife of the first accused was examined as DW2 and the doctor, who had treated A1 and his wife was examined as DW3 and 14 documents were marked as

Exts.D1 to D14.

  • The Regional Officer of CBSE Board, ChennaiRegion was examined as Court witness and Ex.C1 was marked through the court witness which is the digital document of class 10 mark statement of PW1 along with a certificate under Section 65B of the Indian Evidence Act. The prosecution had marked M.O.1, gold jewels, 7 in number.
  • The trial court, taking into consideration, the evidence of PW1 to PW3 and the recovery pursuant to the confession of A2, marked as M.O.1, gold jewels (7 in Nos.), convicted the appellants for the offences stated supra.
  • Mr.V.Neeranjan, the learned counsel appearing for A1/appellant in Crl.A. No.255 of 2023 would contend that the prosecution had failed to prove the place of occurrence and the witnesses who were examined as PWs.7, 8 and 9, the employees of the hotel, has not stated anything about witnessing the accused in the place of occurrence of the alleged offence.
  • Mr. John Sathyan, the learned senior counsel appearing for

A2/appellant in Crl.A. No.1128 of 2022 would contend the following:

a)The evidence of PW1 is highly improbable, as PW1 had not stated the true version either before the police when her statement was recorded under Section 161 Cr.P.C. or before the court under sec. 164(5) Crpc and during the chief examination and cross-examination.

b)The evidence of P.W. 2 and 3 is nothing but narration of facts as stated by PW1 which is hearsay evidence. The evidence of PW2 and PW3 would reveal that they had no personal knowledge of the occurrence and they did not have a semblance of doubt until the said occurrence was put forth by PW1.

c)The documents produced on the side of the defence, more specifically Ex. D1 and Ex. D2 would show that, even after the alleged date of occurrence, in the personal letters written by PW1 to A2 and one Subham, PW1 had addressed A2 as “Amma” (mother) and “Akka” (sister) which would prove that the allegations made against A2 are false and baseless.

d)The evidence of PW2 and PW3 would show that there was a long unreasonable delay in preferring the complaint and more weightage was given to the missing cash and jewels as opposed to the sexual assault undergone by PW1. The conduct of the father and mother of the victim was unnatural and the same is fatal to the case of the prosecution.

e)Though it is alleged that the crime had occurred on 10.07.2018, the prosecution has not produced any evidence to prove that the occurrence has taken place on 10.07.2018. The complaint was given on 05.11.2019, with a delay of nearly one and half years. In the absence of any explanation for the delay and in the absence of any corroboration to establish the date of occurrence, it is unsafe to rely on the statements of the prosecution witnesses.

  • Per Contra, Mr.S.Raja Kumar, the learned Additional Public Prosecutor appearing for the prosecution would contend that, PW1 has categorically narrated the incident with regard to the nature of offence and the delay in informing the parents was only because of the emotional threat given by A2 that she will commit suicide if PW1 discloses the incident to her parents. The evidence of PW2 and PW3 corroborates the evidence of PW1. PW2 had preferred the complaint immediately after the factum of rape was brought to his knowledge and the said factum was reiterated by PW3. PW3 has explained the theft of Indian and foreign currency apart from the jewels. The narration of facts by PW1 has been corroborated with the evidence of PW2 and PW3 along with recovery of M.O.1, gold jewels (7 in numbers) which would clearly demonstrate that the crime was committed by A1 and A2 and more preferably because of the abetment of A2, the said crime has taken place.
  • The learned Additional Public Prosecutor would lament on the presumptive clause as per Sections 29 and 30 of the POCSO Act, which clearly demonstrates that it is for the accused A1 and A2 to dispel the case of the prosecution under the POCSO Act and that the conviction can be sustained on the sole testimony of Prosecutrix, if it inspires confidence. In this regard, the learned Additional Public Prosecutor relied upon the following judgments:

i)State (NCT of Delhi) vs. Pankaj Chaudhary and others reported in

(2019) 11 SCC 573; ii)Ganesan vs. State Inspector of Police reported in (2020) 10 SCC 573; iii)State of U.P. vs. Pappu alias Yunus and Another reported in (2005) 3

SCC 594; iv)State of Maharashtra vs. Chandraprakah Kewalchand Jain reported in (1990) 1 SCC 550;

v)State of Punjab vs. Gurmit Singh and others reported in (1996) 2 SCC

384; vi)State of Orissa Vs. Thakara Besra and Another reported  (2002) 9 SCC 86;

vii)State of Himachal Pradesh vs. Raghubir Singh reported in (1993) 2

SC 622;

viii)Rai Sandeep Alias Deepu vs. State (NCT of Delhi) reported in (2012)

8 SCC 21; ix)Sham Singh vs. State of Haryana reported in (2018) 18 SCC 34; and

x)Phool Singh vs. State of Madhya Pradesh reported in (2022) 2 SCC 74.

  • Heard the learned counsels on both sides and perused the materials available on record. The credibility of PW1 is the frontal attack by the appellants. Though PW1 had stated that A1 had kissed her on a particular date, the said date was not substantiated by any evidence. Similarly, the evidence of PW1 regarding the date and place of occurrence was not substantiated by any corroborating documentary evidence or any ocular evidence.
  • When the law was set in motion by launching a complaint with the respondent police on 05.11.2019, there was a delay of one and half years from date of occurrence i.e., 10.07.2018. In the absence of any cogent reasons for the inordinate delay in preferring the complaint, the evidence of PW1 needs substantial corroboration.
  • The prosecution has failed to establish the vital aspects of date and place of occurrence and the evidence of the prosecutrix suffers from various contradictions. There are several inconsistencies between the statements of PW1 made before the Trial Court and the statement recorded U/s. 164 Crpc. The other important prosecution witness including PW2 and PW3 does not corroborate the evidence of PW1.
  1. Principles on Credibility of child witness:
  2. A child is competent to testify before the courts of law under Section

118 of the Indian Evidence Act, 1872 and Section 124 of The Bharatiya

Sakshya Adhiniyam, 2023. The principles laid down by the Hon’ble Supreme Court on reliability of child witness are as follows:

(a) In State of Madhya Pradesh Vs. Balveer Singh, reported in 2025

SCC OnLine SC 390, the Hon’ble Supreme Court held as follows:

  1. We summarize our conclusion as under: –

1.(I)  The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and his or her evidence and cannot be rejected outrightly.

4.(II)  As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the Trial Court to ascertain if the child-witness is capable of understanding sanctity of giving evidence and the import of the questions that are being put to him.

5.(III)  Before the evidence of the child witness is recorded, the Trial Court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion.

6.IV)  The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the Trial Court. The correctness of the opinion formed by the Trial Court as to why it is satisfied that the child witness was capable of giving evidence may be gone into by the appellate court by either scrutinizing the preliminary examination conducted by the Trial Court, or from the testimony of the child witness or the demeanour of the child during the deposition and cross-examination as recorded by the Trial Court.

7.(V)  The testimony of a child witness who is found to be competent to depose i.e., capable of understanding the questions put to it and able to give coherent and rational answers would be admissible in evidence.

8.(VI)  The Trial Court must also record the demeanour of the child witness during the course of its deposition and crossexamination and whether the evidence of such child witness is his voluntary expression and not borne out of the influence of others.

9.(VII)  There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever.

(VIII)Corroboration of the evidence of the child witness may be insisted upon by the courts as measure of caution and prudence where the evidence of the child is found to be either tutored or riddled with material discrepancies or contradictions. There is no hard and fast rule when such corroboration would be desirous or required, and would depend upon the peculiar facts and circumstances of each case.

10.(IX)  Child witnesses are considered as dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded and as such the courts must rule out the possibility of tutoring. If the courts after a careful scrutiny, find that there is neither any tutoring nor any attempt to use the child witness for ulterior purposes by the prosecution, then the courts must rely on the confidence-inspiring testimony of such a witness in determining the guilt or innocence of the accused. In the absence of any allegations by the accused in this regard, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition.

11.(X)  The evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the same may possibly produce two broad effects in their testimony; (i) improvisation or (ii) fabrication.

  • Improvisation in testimony whereby facts have been altered or new details are added inconsistent with the version of events not previously stated must be eradicated by first confronting the witness with that part of its previous statement that omits or contradicts the improvisation by bringing it to its notice and giving the witness an opportunity to either admit or deny the omission or contradiction. If such omission or contradiction is admitted there is no further need to prove the contradiction. If the witness denies the omission or contradiction the same has to be proved in the deposition of the investigating officer by proving that part of police statement of the witness in question. Only thereafter, may the improvisation be discarded from evidence or such omission or contradiction be relied upon as evidence in terms of Section 11 of Evidence Act.
  • Whereas the evidence of a child witness which is alleged to be doctored or tutored in toto, then such evidence may be discarded as unreliable only if the presence of the following two factors have to be established being as under:
  • Opportunity of Tutoring of the Child Witness in questionwhereby certain foundational facts suggesting ordemonstrating the probability that a part of the testimony of the witness might have been tutored have to be established. This may be done either by showing that there was a delay in recording the statement of such witness or that the presence of such witness was doubtful, or by imputing any motive on the part of such witness to depose falsely, or the susceptibility of such witness in falling prey to tutoring. However, a mere bald assertion that there is a possibility of the witness in question being tutored is not sufficient.
  • Reasonable likelihood of tutoringwherein the foundational facts suggesting a possibility of tutoring as established have to be further proven or cogently substantiated. This may be done by leading evidence to prove a strong and palpable motive to depose falsely, or by establishing that the delay in recording the statement is not only unexplained but indicative and suggestive of some unfair practice or by proving that the witness fell prey to tutoring and was influenced by someone else either by cross-examining such witness at length that leads to either material discrepancies or contradictions, or exposes a doubtful demeanour of such witness rife with sterile repetition and confidence lacking testimony, or through such degree of incompatibility of the version of the witness with the other material on record and attending circumstances that negates their presence as unnatural.

11.(XI)  Merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed. A child witness who has withstood his or her cross-examination at length and able to describe the scenario implicating the accused in detail as the author of crime, then minor discrepancies or parts of coached deposition that have crept in will not by itself affect the credibility of such child witness.

12.(XII)  Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored or untainted part inspires confidence. The untutored part of the evidence of the child witness can be believed and taken into consideration or the purpose of corroboration as in the case of a hostile witness.

  • In Ratansingh Dalsukhbhai Nayak v. State of Gujarat reported in (2004) 1

SCC 64, the following observation has been made:

“7. […] The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”

  • Suryanarayana v. State of Karnataka reported in (2001) 9 SCC

129,  Dattu Ramrao Sakhare v. State of Maharashtra reported in (1997) 5

SCC 341, Arbind Singh v. State of Bihar reported in (1995) Supp (4) SCC 416, in the above cases, the Hon’ble Supreme Court laments that the evidence of child witness cannot be eschewed just because the child is repeating the facts of the case.

  1. 32.The Hon’ble Supreme Court, in thefollowing precedents has clarified under which circumstance; the testimony of child witness cannot be relied upon:
  • In Vijay v. State of Maharashtra, 2024 SCC OnLine Bom 3066, the Bombay High Court, held as follows:

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.

  • In yet another judgment in Bhaiyya v. State of Maharashtra, 2024

SCC OnLine Bom 2553, the Bombay High Court has observed as follows:

  1. It is a settled legal position that delay per se cannot be a ground to give clean chit to the accused in a heinous crime. However, the delay in lodging report must be explained to the satisfaction of the Court. Whether the explanation put forth for delay in lodging report is sufficient or not, is a question of fact to be addressed by the Court in the backdrop of the facts, circumstances and evidence brought on record. A minute scrutiny of the evidence on record is required to be undertaken to find out that the reasons put forth in support of the delay are worth acceptable. It is a pure question of fact and has to be addressed keeping in mind the facts and evidence of individual case.
  2. This question was repeated, but her answer did

not change. It is pertinent to note that the child witness is a very easy pray for tutoring. The child is bound to follow the elders. The child victim in this case was under the control of the mother and the interpreter. In my view, overall perusal of the evidence of the victim creates a doubt in the mind of the Court as to the occurrence of the incident and involvement of the accused. Three friends of the victim, to whom she allegedly narrated the incident, did not support the case of the prosecution. Appreciation of the evidence of PW1-mother and PW3-victim, coupled with the aspect of delay in lodging report and the reasons explaining delay, create a doubt in the mind of the Court.

(c). In the case of Bhagwan Singh v. State of M.P., reported in (2003) 3 SCC 21, the Hon’ble Supreme court has considered the factual aspects and took a view that in cases involving unnatural conduct of child, it is dangerous to rely on sole testimony of child witness unless it is available immediately after the occurrence.

  • In Digamber Vaishnav v. State of Chhattisgarh reported in (2019) 4

SCC 522, the Hon’ble Supreme court has held as follows:

This Court discarded the testimony of the child witness therein on the ground of being tutored as it found the same to be fraught with inconsistencies and in direct contradiction of the ocular evidence of other prosecution witnesses.

  • In State of M.P. vs. Ramesh reported in (2011) 4 SCC 786, the

Hon’ble Supreme Court has categorically held as follows:

“11. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross- examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. (Vide Himmat Sukhadeo Wahurwagh v. State of Maharashtra (2009) 6 SCC 712.)”

“13. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness.”

  • In Panchhi Vs. State of U.P. reported in (1998) 7 SCC 177, the

Hon’ble Supreme court has held as follows:

“11. Shri R.K. Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of PW 1, he being a child witness. According to the learned counsel, the evidence of a child witness is generally unworthy of credence. But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. 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 to tutoring.

  1. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law.”

(g). In Radhey Shyam v. State of Rajasthan, (2014) 5 SCC 389, the Hon’ble Supreme court has relied upon the above observations and disbelieved the child witness on factual aspects.

(h) In State of Bihar v. Kapil Singh, 1968 SCC OnLine SC 88 : AIR

1969 SC 53, the Hon’ble Supreme court has held as follows:

While such a child witness can often be expected to give out a true version because of her innocence, there is always the danger in accepting the evidence of such a witness that, under influence, she might have been coached to give out a version by persons who may have influence on her. In this case there are a number of circumstances which, in our opinion, indicate that it will not be quite safe to rely on her evidence. She stated that she was lying on a cot close to the cot on which her aunt Rohini Kuer was sleeping. She actually saw her aunt being killed and, according to her, there was a threat to her life also when Deo Singh said that she should also be killed, though she was saved when Kapil Singh asked that she should be spared because she was a child. It does not seem to be very likely that a child in such circumstances could have continued to pretend that she was asleep.

  1. Presumption under POCSO Act:
  • Under section 29 of POCSO Act, the special court is duty bound to presume that the accused had committed the offence if the accused is prosecuted for committing offences under section 3,5,7 and 9 of the act, unless the contrary is proved. It is well established that the presumption under Sec. 29 is available where the foundational facts exist for commission of offence under the POCSO act.
    • The Hon’ble Supreme Court in the case of Just Rights For Children

Alliance and Another Vs. S. Harish and Others, reported in 2024 SCC Online

SC 2611,  has held as follows: 

“173. Since a negative cannot be proved, an accused cannot be asked to disprove his guilt even before the foundational allegations with supporting material thereof are placed and duly established by the prosecution before the court. Unless the prosecution is able to prove foundational facts in the context of the allegations made against the accused under any specific provision of the POCSO as the case may be, the statutory presumption of culpable mental state under Section 30 of the POCSO will not come into the picture”.

 

  • The Hon’ble Supreme Court in Sambhubhai Raisangbhai Padhiyar v. State of Gujarat, reported in (2025) 2 SCC 399 observed that “the injury on the prepuce of the penis of the accused along with the matching of the blood group coupled with other circumstantial evidence clearly constitute foundational facts for raising presumption under sections 29 and 30 of the POCSO Act”. The Hon’ble Supreme Court being satisfied that the circumstances enumerated are fully established and the circumstances so established are consistent only with the hypothesis of the guilt of the accused upheld the conviction imposed by the trial court.
  1. ANALYSIS ON FACTS AND LAW:

A.Contradictions in the evidence of the Prosecutrix (PW1):

  • There is a paradigm shift in the stand of PW1 before the trial court and in the statement under Section 164(5) of Cr.P.C. In the said statement, PW1 had categorically stated that after the date of occurrence, when the family of PW1 and A2 went to a restaurant, A2 stated that she will take PW1 to a tamil movie namely “Irumbu Thirai”. However, A2 informed PW1 that they are going to Urapakkam to meet A1 at his shop and not going to the movie. Then A2 and PW1 took a train to Urapakkam and at the instance of A2, she asked

A1, when he would marry A2. On a careful analysis of statements of PW1, there was no remorse or hatred towards A2. In fact, the above mentioned statements of PW1 would only show that PW1 has voluntarily accompanied A2 to meet A1 at his shop in Urapakkam.

  • On the contrary, in the evidence of PW1 before the Trial Court, PW1 has deposed that before the date of occurrence, when A2 had come to the house of PW1, A2 requested PW2 by saying that she wants to take PW1 to the tamil movie namely “Irumbu Thirai”, for which PW2 agreed. However, instead of going to the movie, A2 and PW1 boarded the train, when PW1 asked why they are taking the train, A2 informed that they are going to Urapakkam to meet A1 at his shop. PW1 further deposed that when she refused to accompany A2 to Urapakkam, A2 threatened to commit suicide by jumping from the train. Therefore, out of fear, PW1 accompanied A2 and at the instance of A2, PW1 asked A1 when he would marry A2.  It is to be noted that, PW1 has narrated the same incident in entirely different manner before the Trial Court as opposed to the narration made before the Judicial Magistrate under sec. 164(5) Crpc.

Therefore, this court is unable to gain confidence in the evidence of PW1.

  • This vital contradiction shakes the credibility of the PW1’s evidence. It is not clear as to whether the meeting was prior to the occurrence or after the occurrence. While considering the statements of PW1 recorded U/s. 164(5) Cr.P.C., it is to be noted that, no prudent person will ever venture to meet A1 voluntarily after she was subjected to rape at the hands of A1.
    • There was no semblance of evidence adduced by the prosecution to establish that PW1 was unwilling to meet A1 as she was subjected to rape at the hands of A1 and she felt aversion towards A2 for driving her towards A1. Before the Judicial Magistrate, PW1 has categorically stated that, she was with the hope that atleast after committing the offence on PW1, A1 would be inclined to marry A2 so that A2 will be happy. But such version does not form part of the deposition made before the Trial Court.
    • On a careful analysis of the statements made before the court and the statements made before the Magistrate under sec. 164(5) Crpc, it is clear that PW1 was psychologically dependent on A2. However, the prosecution has not produced even a semblance of evidence to suggest that A2 had influenced PW1 and insisted her to bring money and jewels from her house. Until PW3 questioned PW1 with regard to missing Indian and foreign currencies along with jewels, PW1 had not disclosed the same to PW3.
    • PW1 has not recollected the date of occurrence by pointing out thedate as the one relating to any festival, any happy occasion like birthday, wedding day or a day of celebration. This factum cannot be ignored, since the complaint was preferred only after a period of 1½ years from the date of commission of offence. When the complaint itself was preferred after 1½ years, the date which has been consistently projected by the prosecution without any substantial evidence to establish that the occurrence had taken place on the said date, cannot be taken into consideration.
    • As PW1 had great affection for A2, PW1 had addressed A2 as ‘Akka’ (sister) and ‘Amma’ (mother). When such a person like A2, had abetted the offence of penetrative sexual assault on PW1 by pushing PW1 inside the room and waited in the hall during the commission of offence, the conduct of PW1, who continuously attended tuition and wrote personal letters to A2 even after the occurrence is unnatural.
    • Even assuming for a moment that due to obsession, PW1 acceded to fulfil the desire of A2 by subjecting herself to A1, the subsequent conduct of PW1, after the occurrence, is abnormal and unacceptable. PW1 has not disclosed any of the incidents including the act of taking money, foreign currencies and jewels from her house to anyone. The evidence of PW1 before the Trial Court and before the judicial magistrate is not consistent and the conduct of PW1, subsequent to the occurrence is abnormal, therefore, the evidence of PW1 does not inspire confidence.
  1. Inconsistencies in the evidence of Prosecution Witnesses: (PW 1 to

PW3)

  • Evidence of PW2 and PW3 are nothing but hearsay evidence. The statement that the unaccounted Indian and foreign currency along with jewels went missing from the house is not established by any materials. Though Pw3 had stated that she enquired with the maids regarding the missing jewels and cash, the prosecution had failed to examine the maids working at PW3’s house to corroborate oral evidence of PW3. PW1 has mentioned the date of occurrence as 10.07.2018. As per the prosecution, the function in the house of PWs.1 to 3 had taken place on 26.10.2019 after which PW1 disclosed the incident. Except the oral evidence of PWs 1 to 3, no documentary evidence was produced to substantiate that such events had occurred on the dates stated supra.
    • It is not the case of the prosecution that the delay in preferring thecompliant was because of the social stigma that would arise in giving the complaint. Per contra, the reason given by PW2, the father, that he was unwell cannot be countenanced. Any father will have a knee jerk reaction, the moment he comes to know that his daughter was subjected to rape. In the evidence of PW3, apart from narration of facts as stated by PW1, there is no other statement forthcoming about the suspicious activity of PW1. While examining the evidence of PW1 to PW3, it is clear that two different versions are deposed by PW2 and PW3 on how PW1 disclosed the incident of sexual assault by A1 and money demands by A2.
    • While considering the oral evidence of PW1 to PW3 and while examining Ex. P5, which is the complaint given by P.W.2, it is clear that the case of the prosecution suffers from serious inconsistencies and inherent improbabilities with regard to the exact quantum of jewels that had gone missing from the victim’s house. Inconsistencies in the statements of prosecution witnesses with regard to the quantum of money and jewels that went missing are tabulated hereunder:

S.No.

Witness/Exhibit

Quantum of Money and Jewels Missing

1.

PW1

1.Unaccounted Jewels

2.Unaccounted Saudi Riyals

3.Unaccounted Indian currency

4.Money withdrawn by PW1 from ATM

5.Rs.4,000/-

6.Rs.4,500/-

7.Money sent through Aravind, Saif by

keeping it inside tuition note

2.

Ex.P5,                   the

Complaint given by

PW2

1.13,000 Saudi Riyals

2.Rs. 50,000/-

3.30 Sovereigns of gold jewels

3.

PW2

1.Rs. 10,000/- had gone missing from the house when he was in Saudi.

2.Rs.10,000/- had gone missing from the house when he was in Bangalore

3.Unaccounted Riyals kept in front of Pooja stand had gone missing

4.Rs.4,000/- given to PW1 in the morning had gone missing in the evening.

4.

PW3

1.3 Nos gold Aaram,

2.5 Nos Bangles

3.2 Nos. Necklace

4.2 Nos. Chain

5.Rings

Total : 30 sovereigns

6.13,000 Riyals

7.Rs.10,000 kept by PW3’s father

8.Rs.4,000/- withdrawn from ATM

9.Rs.4,500/- withdrawn from ATM

  • As pointed out above, the oral evidence of PW 1 to PW3 suffers from several contradictions and inconsistencies. Therefore, this court cannot reach any conclusion based on the oral evidence of PW1 to PW3 which is not supported and corroborated by any material.
    • According to the prosecution, an extra judicial confession was given by A2. However, the extra judicial confession given by A2 cannot be sustained in the absence of any cogent evidence to establish that PW1 was taken by A1 and A2 on 10.07.2018.
    • PW4, the doctor who deposed regarding the examination of PW1 did not state that PW1 had recent sexual intercourse. PW4 had admitted in a suggestion that hymen tear in the private part of the victim may occur as a result of physical activity including sports such as badminton. Therefore, the medical evidence has not strengthened the case of the prosecution and there is no trace of sexual assault as projected by the prosecution.
  1. Effect of Defective investigation :
  2. It is to be noted that the prosecution had not taken PW1 to the scene of occurrence and no recovery was made from PW1 to establish the commission of offence. Though it could be inferred that recovery of P.W.1’s innerwear or any other dress may not substantiate the prosecution’s case as

P.W.1 had washed her clothes and had cleaned herself after the incident, the prosecution ought to have recovered the mobile phone in which text messages sent by A1 was alleged to have been received by PW1.

  • In the evidence of PW3 and statement of PW1 recorded under sec. 164 Crpc, the prosecution witnesses have categorically deposed that A1 had sent certain text messages to PW1 and insisted not to share the same with A2. However, the prosecution has not taken any steps to corroborate the evidence of PW1 and PW3 by producing the text message of A1 or by recovering the said mobile phone of PW1.
    • The evidence of PW1 is not supported by the evidence of PWs.7, 8 and 9, who are the employees of the hotel, which is projected to be the place of occurrence. The prosecution could not establish the presence of A1, A2 and PW1 on the date of occurrence in the said hotel and there is no trace of evidence to show that A1 and A2 had taken PW1 to the hotel, where the crime has taken place. As per the evidence of PW1, she was not clear about the place of occurrence. The unassertive statement of PW1 that she was taken to a place which looks like a hotel cannot be accepted as the court cannot lose its sight with regard to the financial and educational background of PW1’s family and the fact that she was brought up in Dubai.
    • The sketch which was marked as Ex.P17, which explains the place of occurrence is not supported by any independent witness and the Investigating Officer had also categorically admitted during the cross examination that PW1 was not taken to the place of occurrence and no recovery was made. Apart from the said fatal flaws in the investigation, the primary contention of the prosecution that A1 had sent certain messages to PW1 which was the starting point of exhibiting A1’s mind towards PW1, was not at all demonstrated and proved by the prosecution before the trial court.
    • As stated supra, the mobile phone used by PW1 was neither seized nor were the contents of the text messages by A1 to PW1 produced. The entire case of the prosecution as against A1 and A2 is abnormal as the prosecution circles back to the theory of PW1’s obsession over A2 to fill up every lacuna in the case.
    • It is the duty of the prosecution to bring out the crime committed by the accused in a given case to establish that the accused has committed the crime and the duty is cast on the prosecution to establish their case (i) beyond reasonable doubt; (ii) by pointing out the guilt of the accused; (iii) preponderance of probabilities;

                   VII. Relevancy of Defence witnesses and documents:

  • Under Chapter XVIII of the code of criminal procedure, 1973, when a trial takes place in a Court of Session, the accused is entitled under Section 233 to adduce evidence and to mark documents. In this case, the first accused had examined himself as DW1 and deposed that he is suffering from decreased semen count which renders him incapable of performing continuous sexual intercourse. The doctor who had treated A1 was examined as DW3. She had deposed about the treatment given to A1/DW1. The evidence of DW2, the wife of A1 cannot be brushed aside. DW2 had deposed before the Trial Court that her husband is taking medical treatment for impotency and the child born out of their wedlock was through IVF treatment.
    • The court should not forget the importance of fair trial which is available not only to the prosecution, but also equally available to the accused persons. In the course of trial, the court has to consider the evidence of defence witnesses and the documents also to arrive at a conclusion. The court has to give a finding with regard to the consistencies and inconsistencies in the evidence adduced by the defence to dispel the case of the prosecution.
    • DW3, Dr.Shanmugapriya, had denied the alibi plea taken by A1, attempting to prove his absence from the scene of occurrence. Adverse inference cannot be taken against the accused simply because the defence witness had turned hostile. The prosecution has to independently establish the allegations levelled against A1 and A2. The said hostility of DW3 who had treated A1 and DW2 is not fatal to the defence. DW3 had admitted the signatures in the documents produced by the defence and had only denied the presence of A1 on 10.07.2018, namely, the date of occurrence.
    • Ex.D2, the letter written by PW1, would manifest that she had equal respect, affection and love for A2 and one Shubam. The fulcrum of the investigation had become flawed as the said Shubam was not examined.  In spite of suggestions made to PW1, with regard to her friendship with Shubam, neither the prosecution nor the trial court had adequately focused on the said suggestions. For brevity, Ex.D2 is reproduced hereunder:

VIII. Evidentiary Value of 313 Question:

  1. The material objects M.O.1 (gold jewels) pledged by A2 were recovered from Muthoot FinCorp Ltd. The prosecution claims that M.O.1 (gold jewels) were recovered based on the confession statement given by A2. For the sake of convenience, let us look into Section 27 of the Indian Evidence Act which is extracted hereunder:
  2. How much of information received from accused may be proved.––Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of any offence, in the custody of a policeofficer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
  • Based on the confession statement of A2, only the receipts issued by Muthoot Fincorp were recovered. Ex.P11 is the seizure mahazar of mortgaged receipts and Ex.P12 is Muthoot Fincorp Receipt. Ex.P12 and the corresponding evidence of PW10, the manager of Muthoot Fincorp speaks about the jewels pledged by A2.
    • A2, in her reply to the questions under Section 313 Cr.P.C., had given the following answer:

“rpWkpapd; mk;kh te;jjd; nghpnyna mtUld; brd;W mtUf;fhf mlF itj;J

bfhLj;njd;/ ”

Translated version of the above statement:

“As soon as the girl’s mother came, I went with her and pawned it for her.”

  • The reasonable and possible explanation given by A2 to the questions put forth under Section 313 Cr.P.C assumes greater significance and such evidence is un-rebuttable evidence. The Trial Court had miserably failed to consider such probability. When there is a probability attached to the reply given by A2 in her 313 Cr.P.C. questions, the same cannot be ignored. There is no reason to disbelieve the reply of A2, as PW3, the mother of the victim had identified the jewels. The Hon’ble Supreme Court in Raj Kumar v. State (NCT of Delhi), reported in (2023) 17 SCC 95 has made the following observations on the importance of 313 questioning:

“22. The law consistently laid down by this Court can be summarised as under:

22.1. It is the duty of the trial court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction.

22.2. The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence.

22.3. The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused.

22.4. The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused.

22.5. If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident.

22.6. In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him.

22.7. In a given case, the case can be remanded to the trial court from the stage of recording the supplementary statement of the accused concerned under Section 313 CrPC.

22.8. While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered”.

 

  1. In view of the above observations, the evidentiary value of A2’s reply to the questions posed by the Trial Court under section 313 Cr.P.C. by putting forth the material object recovered and marked against A2 cannot be ignored.
  2. Conclusion:
  • The uncorroborated evidence of PW1 which is a bundle of contradictions and PW1’s subsequent conduct of continuously consorting with A2 without any semblance of regret for the incident that had happened in her life, does not inspire confidence. PW1 had deposed that she had accompanied A2 and met A1, after being subjected to rape at the hands of A1. It is highly dangerous to rely upon the sole testimony of PW1.
    • The evidence of PW2 and PW3 cannot be considered as credible evidence as PW2 failed to furnish any reasonable explanation for the delay in preferring the complaint and PW3 had admitted in the cross examination that the complaint was given after consulting the lawyer. That apart, there are several inconsistencies in the versions of PW1 to PW3 with regard to disclosure of incident by PW1 to PW2 & PW3, text messages sent by A1 to PW1, valuables found missing from the house etc. The inconsistent evidence of PW2 & PW3, and the manner in which the complaint was preferred, creates doubt on the very genesis of the offence and complaint.
    • The prosecution is duty bound to prove the case beyond reasonable doubt. There is no semblance of evidence to establish the date and place of occurrence. PW1 was not even taken to the place of occurrence and the prosecution failed to produce any materials to establish that A1 and A2 had taken PW1 to the place of occurrence on 10.07.2018. Also, the medical evidence does not aid the prosecution.
    • At this juncture, we are reminded of the presumptive clause available under sections 29 and 30 of the POCSO Act. As the presumption is in favour of the victim, it is for the defence to establish that the occurrence had not taken place, as claimed by the prosecution. It is well settled that presumption under the act is rebuttable by the accused and the legal presumption is not attracted if the foundational facts are not established by the prosecution.
    • In the case in hand, the prosecution has miserably failed to establishthe genesis of complaint, the date and place of occurrence and there are serious contradictions in the evidence of PW1 with regard to the events which took place immediately before and after the date of occurrence. Undoubtedly, the foundational facts are not established by the prosecution and the legal presumption cannot be invoked against the appellants.
    • Nevertheless, the theory of the prosecution has been nullified by the evidence of defence witnesses and letters written by PW1, marked as Exts.D1 and D2. The evidence adduced by the defence creates reasonable doubt on the case of the prosecution. Therefore, it would be highly improbable to convict A1 and A2 based on the evidence of PW1.
    • The only evidence available as against A2, is the recovery of pledged jewels based on the confession given by A2. Out of the confession, the jewels pledge receipt with Muthoot Fincorp was marked as Ex.P12 and based on Muthoot Fincorp receipt, the jewels were recovered, which was spoken to by PW10,  the Manager of Muthoot Finance. When the occurrence was taken place on 10.07.2018 and the alleged extortion has taken continuously, PW1 and PW3 had not stated from which period or on what date, PW1 had given money and jewellery to A2. As the complaint itself was given 1½ years later from the alleged date of occurrence, the confession and recovery of jewels creates a serious doubt because of the inordinate delay in recovering the jewels from the date of complaint. Therefore, the recovery of MO1 (gold jewels) though it is a factum of evidence which signifies the recovery under Section 27 of the Indian Evidence Act without taking into the delay in preferring the complaint and coupled with the explanation given by the A2, it is not safe to rely that evidence of PW1 and PW3 to be a trustworthy to rely upon the factum of pledging the jewels, as demonstrated by the prosecution. In the judgment cited supra, the Hon’ble Supreme Court has reiterated the essence and importance of the answer given under Section 313 Cr.P.C. by the accused. It is unfortunate that the Trial Court has not taken note of the said possible explanation.
    • By virtue of the international conventions and declarations, in various countries including India, the protection of child rights has taken a front seat. In paragraphs 5 to 21 of this judgment, we have taken note of all the international conventions and legislations across the globe, enacted to protect the rights of women and children. The special enactment, namely, The Protection of Children from Sexual Offences Act, 2012 had come into existence to protect the children from sexual assault, sexual harassment and pornography. No doubt, the provisions of the act are to be interpreted in a manner which protects the interest of the child victims and ensures that the legislative intent is not defeated.  At the same time, it is equally important to analyse whether the evidence of PW1, the child witness inspires confidence to impose conviction.
    • It is incumbent on the courts to examine the credibility of the child witnesses, whose deposition cannot be relied upon, if found to be tutored, malafide and inconsistent. If the testimony of the child is found to be affected by any of the above parameters, then certainly, the courts have to look for materials which corroborate the testimony of the child witness to gain confidence on the evidence of the victim/child witness.
    • In the judgments discussed supra, the Hon’ble Supreme Court had consistently held that the evidence of the child witness can be relied upon if it inspires confidence. On the other hand, if the testimony of the child witness is found to be tutored or malafide or inconsistent, the courts must be more cautious in relying upon such witness.
    • The evidence of PW1 which is self-contradictory in the statements made before the Trial Court and before the learned Judicial Magistrate under Section 164(5) of Cr.P.C creates a serious doubt with regard to the credibility and trustworthiness of PW1.
    • The narration of PW2 and PW3 with regard to PW1 disclosing the nature of crime committed by A1 and A2, does not inspire confidence as there are contradictions between the statements of PW2 and the statements of PW1 & PW3. In the absence of any evidence to connect the place of occurrence and the presence of PW1 along with A1 and A2, the case of the prosecution is highly doubtful.
    • In view of the foregoing discussions, we are convinced with the submissions made on behalf of the appellants and are inclined to set aside the judgment of conviction and sentence passed against the accused. Accordingly, both the criminal appeals are allowed. The judgment of conviction and sentence imposed on the appellants by the learned Sessions Judge, Special Court for Exclusive Trial of cases under POCSO Act, 2012, Chennai in Spl.S.C. No.08 of 2020 dated 18.07.2022, is set aside. The fine amount, if any, paid by the appellants, may be returned to them. The appellants may be set at liberty, if their presence is not required in connection with any other case.

[M.S.R., J.]       [N.S., J.]

      28.04.2025

Asr

Index : Yes

Neutral Citation                   : Yes

To

1.The Sessions Judge,

Special Court for Exclusive Trial of cases under POCSO Act, 2012,    Chennai

2.The Inspector of Police    W-25, All Women Police Station    T.Nagar, Chennai.

(Crime No.6/2019)

3.The Public Prosecutor, High Court, Madras

4.The Superintendent    Central Prison

Puzhal, Chennai – 66

M.S.RAMESH, J. and N.SENTHILKUMAR, J.

Asr

Criminal Appeal Nos.1128 of 2022 and 255 of 2023 and Crl.M.P. No.19507 of 2023 Dated :  28 .04.2025

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