Acceptance Of Child Witness Evidence Dangerous As It Appears To Be A Result Of Tutoring: Telangana HC Acquits POCSO Convict

The appellant/Accused had filed the appeal questioning the conviction recorded by the Additional Sessions Judge, in a criminal case registered under Sections 452 and 376 AB of Indian Penal Code and Section 5(i)(j)(m) read with Section 6 of the POCSO Act. He was sentenced to undergo Rigorous Imprisonment for five years for the offence under Section 452 of IPC and Rigorous Imprisonment for a period of 20 years for the offence under Section 5(i)(j)(m) read with Section 6 of the POCSO Act. All the sentences were ordered to run concurrently.

The Single-Judge Bench of Justice K.Surender said, “The version projected by the prosecution that the appellant without being seen by PW.1 entered into the house, forcibly committed rape on the victim girl in the presence of four other family members sleeping side by side and thereafter coming out of the house and asking PW.1 to go into the house appears to be made up and the appellant was falsely implicated.”

Legal Aid Counsel P. Krishna Keerthana appeared for the appellant while Assistant Public Prosecutor appeared for the respondent state.

The victim’s mother had complained with the police stating that after having dinner her elder son slept on the cot. Her husband, the victim daughter, her other son and grandfather slept side by side in a row. The mother went outside to the temple to chit-chat with neighbouring ladies and slept at the temple for some time. When she came back home, her daughter complained that the appellant threatened her not to make any noise, closed her mouth and committed sexual intercourse forcibly. There was blood all over the victim’s clothes. Immediately, the appellant was called and questioned. The appellant having confessed to the rape of the girl threatened the mother and others and went away.

One of the contentions raised by the appellant was that the version of the witnesses was highly improbable and unbelievable. If at all five persons were in the house sleeping side by side in one room, the question of the appellant entering into the house and committing rape on the victim girl did not arise. It was also contended that there was no DNA analysis of the semen and spermatozoa found on the wearing apparel of the victim.

On the contrary, the Public Prosecutor submitted that there was no reason as to why the victim girl, aged around 10 years, would speak against the appellant. Further, no mother would involve her ten-year-old child in such incidents at the risk of social stigma that is attached to such incidents.

It was noticed by the Bench that the prosecution failed to examine the father, grand-father and also another brother of the victim girl, who were sleeping in the very same room, beside the victim girl. It was also noted that the temple is a very small place adjacent to the room of PW.1-complainant and an open temple with one statue of God. Anybody sitting in the temple would be at a distance of hardly 20 feet as seen from the sketch from the door of the complainant’s house. If one person entered the house, it would be visible to the persons sitting at the temple. None of the women with whom the complainant was chatting in the night were examined by the Police, nor identified during the investigation.

Though the Doctor stated that blood stains were found on the frock of the victim girl, however, the FSL report didn’t reflect that there were any blood stains on the wearing apparel (frock) which was sent. No DNA test was conducted to ascertain the blood group of the semen found.

Coming to the facts of the case, it was noticed that the victim’s father Gangaram is the own brother of the appellant’s father. The appellant’s father and the victim’s father had a joint family agricultural lands situated at Veerannakatta temple and there were disputes between them. After the death of the father of the appellant, the appellant demanded a share of his father from the victim’s father. On the said issue several quarrels took place in between the family members. The relation of appellant was not disputed. However, the suggestion regarding property disputes was denied.

“The version projected by the prosecution that the appellant without being seen by PW.1 entered into the house, forcibly committed rape on the victim girl in the presence of four other family members sleeping side by side and thereafter coming out of the house and asking PW.1 to go into the house appears to be made up and the appellant was falsely implicated”, the Bench said.

The Court further clarified, “The evidence of a child witness can easily be influenced by the elders in the family. Acceptance of the child witness evidence would be dangerous in the present circumstances of the case as the evidence appears to be a result of tutoring. Not examining the father and grandfather of the victim, who were sleeping by the side of the victim girl is fatal to the prosecution case.”

Reference was also made to the judgments of the Apex Court in State of U.P. v. Krishna Master (2010) and Allahabad High Court in Panchhi v. State of U.P (1998) wherein it has been stressed that evidence of a child witness must be evaluated more carefully and with greater circumspection.

Thus, allowing the Criminal Appeal, the Bench acquitted the appellant.

Cause Title: Begari Ravi Kumarv State of Telangana (Case No.: CRIMINAL APPEAL No. 88 OF 2024)

Appearance:

Appellant: Legal Aid Counsel P. Krishna Keerthana

Respondent: Assistant Public Prosecutor

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