Delhi District Court
State vs . Laxmi Kant Tiwari on 22 May, 2014
State Vs. Laxmi Kant Tiwari
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 134 of 2013
ID No. : 02401R0321492013
FIR No. : 137/13
Police Station : Pahar Ganj
Under Section : 8/12 of POCSO Act
State
Versus
Laxmi Kant Tiwari
S/o Late Sh. Bachhu Lal Tiwari
R/o 5272, Gali Bharat Nagar
Sora Kothi, Pahar Ganj,
Delhi.
.........Accused
Date of Institution : 03.07.2013
Date of judgement reserved on : 09.05.2014
Date of judgment : 22.05.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Raj Kumar Rajput, Advocate, counsel for accused
SC No. 134/13 Page 1 of 21
State Vs. Laxmi Kant Tiwari
JUDGMENT:-
1. Briefly stated facts of prosecution case are that on May 22, 2013 at about 7.20 PM an intimation was received at Police Station Pahar Ganj from police control room that one pandit was doing galat kaam with children at 4889, Laddo Ghati Chowk. Said intimation was recorded vide DD 29A (Ex.PW10/A) and same was assigned to SI Vishnu Dutt (PW10), who along with constable Bhupender left for the place of occurrence.
(i) On reaching the spot, complainant along with his father met there, consequently, IO made inquiry from them (since the complainant is a victim of sexual assault, his identity is withheld and hereinafter he is referred to as victim or complainant and in order to withhold the identity of victim, identity of his father is also withheld and hereinafter he is referred to as father of victim).Thereafter IO recorded the statement of complainant (victim) who in his statement Ex. PW4/B alleged that one week ago, one pujari type person who was wearing only lungi met him and made inquiry from him and stated that your moustaches were growing and asked him whether hairs are also growing at the private part or whether white liquid came out. After hearing the same, victim went away. It was alleged that after two days, again said person met him at Railway Colony and started touching his penis and thereafter he caught hold his hand and got touched his penis by his hand and asked him to suck it. Victim got rid himself and run away. It was alleged on May 22, 2013 at about 7.00 PM when he was standing outside his house, said person came there and passed indecent gestures and stated aaja lele and pointed out towards his penis.
Accordingly, he informed his father on phone, consequently, his father came there and apprehended that person. It was alleged that public SC No. 134/13 Page 2 of 21 State Vs. Laxmi Kant Tiwari persons also gathered there and they started beating the accused. Consequently, his father informed the police, consequently police reached there and apprehended the accused.
(ii) On his statement, an endorsement was made and constable Bhupender was sent to lodge an FIR. It was alleged that thereafter another lady (PW1) came there along with her son (PW2) and informed the IO that accused had also misbehaved with her son. Accordingly, IO made inquiry from her son also and recorded his statement wherein he alleged that in 2010, on Tuesday, when he was going to Hanuman Temple at Ladoo Ghati to offer prayer, one pujari type person, who was wearing only lungi, came to him and made inquiry about his age and asked whether moustache have grown up. Thereafter, he (PW2) came to his house. It was alleged that in 2012, the said person again met him and asked him whether his beard had also grown up. When he said, yes, the said person asked neeche ke i.e. at his private part. It was alleged that about few days ago, when he was going to shora kothi to buy some articles, said person again met him and asked whether he liked girls and further asked whether he would do something with him but he denied and went away. It was further alleged that one day when he was going to school with his friend (PW4), said person again met him and started touching his penis and thereafter went away. It was alleged that the said person again met him and asked whether white liquid came out from his penis. It was alleged that one day when another person addressed him as panditji, he came to know that the said person was pandit. It was alleged that the said panditji used to follow him, consequently, he scolded that panditji. Thereafter, the said pandit started harassing his friend (PW4). It was alleged that PW1 and PW2 also identified the accused.
(iii) During investigation, statement of both the victims were got SC No. 134/13 Page 3 of 21 State Vs. Laxmi Kant Tiwari recorded under Section 164 Code of Criminal Procedure (Cr. P.C. in short). Since accused had sustained injury, he was got medically examined thereafter, he was arrested.
2. After completing investigation, challan was filed against the accused for the offence punishable under Section 8/12 of Protection of Children from Sexual Offence Act (POCSO Act is short).
3. After complying with the provisions of Section 207 Cr. P.C., a charge for the offence punishable under Section 8/12 of POCSO Act was framed vide order dated July 29, 2013 to which accused pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution has examined as many as following 10 witnesses:-
PW1 Mother of PW2
PW2 Second victim
PW3 Father of complainant
PW4 Victim/complainant
PW5 Ms. Shehnaz, Principal, Vidya Public School,
Bangla Sahib Road, proved the date of birth of
PW4
PW6 Ms. Manju Majumder, Principal of The Union
Academy, Sr. Secondary School, proved the
date of birth PW2.
PW7 HC Ramesh Chander, duty officer, proved the
FIR.
PW8 Const. Jyoti, proved the PCR form.
SC No. 134/13 Page 4 of 21
State Vs. Laxmi Kant Tiwari
PW9 Const. Bhupender, joined investigation with
investigating officer.
PW10 SI Vishnu Dutt, investigating officer.
5. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he denied each and every incriminating evidence led by prosecution and submitted that he was taken to the police station by PCR officials by stating that they would register an FIR on his complaint against the father and brother of victim and their other companions but later on police falsely implicated him in this case. It was submitted that he was not taken anywhere else except hospital. It was submitted that his brother also reached the spot while searching him and he made PCR calls when he saw that the above said persons were beating him. In order to prove his innocence, accused has examined SI Prem Singh as DW1, who proved the PCR calls made by his brother.
6. Learned counsel appearing for the accused sagaciously contended that prosecution has set up a case against the accused that on receipt of a call from police control room, police officials reached there and they completed all investigation at the spot and thereafter brought the accused to the police station. It was astutely contended that the said prosecution version was completely demolished by prosecution witnesses themselves as they categorically deposed that PCR Van took them to the police station where inquiry was made and thereafter FIR was lodged. It was further contended that as per provisions of POCSO Act, child victim cannot be examined in the police station and at the time of inquiry, the police officials should not be in uniform but in this case, police officials have violated all the provisions of POCSO Act as they detained the victim in the police station till night and interrogated him in the police station in police SC No. 134/13 Page 5 of 21 State Vs. Laxmi Kant Tiwari uniform and thereafter recorded his statement. It was contended that no investigation was ever conducted at the spot as PCR officials had already taken the accused to the police station and thereafter due deliberation and consultation with PW3, IO has registered a false case against the accused. It was further astutely contended that prosecution version is that PW1 and PW2 also came at the spot and they got recorded their statement to the IO but this version is also completely razed by prosecution witnesses themselves as they deposed that their statement was not recorded at the spot. PW2 categorically deposed that his statement was recorded on the next day and thereafter statement of his mother was recorded. Similarly, PW1 deposed that her son was not at the spot when police arrested the accused as he had gone to the house of his Bua. Thus, it was argued that there was no occasion for the IO to record the statement of PW1 and PW2 at the spot. It was further contended that there is also contradiction on the point how the accused was apprehended. Prosecution has set up a case that after seeing the accused, victim (PW4) made a call to his father thereafter his father (PW3) reached there and apprehended the accused then public persons gathered there and they had given beating to the accused but during trial, this version was not supported by prosecution witnesses. According to the witnesses, initially unknown public persons apprehended the accused and thereafter they had given beating to him and then PW3 reached there. It was contended that PW3 in his cross- examination admitted that he knew all the residents of Ladoo Ghati as he has been residing there since his childhood. Despite that he failed to recognise any person who had given beating to the accused. It was argued but it is highly impossible that PW3 would not be able to recognize any such person even by face. It was contended that in fact PW3 and his family members had given merciless beating to the accused and thereafter he with the collusion of police falsely implicated the accused in this case. It SC No. 134/13 Page 6 of 21 State Vs. Laxmi Kant Tiwari was further contended that there is material contradictions between PW3 and PW4. It was further argued that no reliance can be placed on the testimony of PW2 as the same is hit by Section 162 Cr. P.C.
7. On the other hand, learned Additional Public Prosecutor refuted the said contentions and submitted that though there is some discrepancy in the prosecution case but the same is not sufficient to discard the entire prosecution case. It was contended that mere fact that IO has not conducted the investigation in accordance with law and tried to set up a case that the entire investigation was conducted at the spot whereas prosecution witnesses deposed that entire investigation was done in the police station is itself not sufficient to discard the testimony of victims of crime. It was contended that under Section 29 of the POCSO Act, onus is upon the accused to establish that he had not committed the alleged offence. It was argued that since accused failed to adduce any evidence to prove his innocence, presumption shall be drawn in favour of prosecution that accused had committed the alleged incident. It was further contended that the contradictions pointed out by learned defence counsel are insignificant to discard the prosecution case.
8. I have heard rival submissions advanced by learned counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
9. Prosecution has set up a case against the accused that on receipt of DD No. 29A at about 7.20 PM, PW9 and PW10 reached the spot on motorcycle. First question arises to whom the said motorcycle belonged to?
SC No. 134/13 Page 7 of 2110. PW10 in his cross-examination deposed that the said motorcycle was arranged by PW9 whereas PW9 deposed the said motorcycle did not belong to him. Thus, it becomes clear that the alleged motorcycle neither belonged to PW9 nor to PW10. Both the witnesses also failed to disclose its registration number, make, colour. Since, DD No. 29A was recorded at 7.20 PM and thereafter it was assigned to PW9 and PW10 and according to the testimony of PW9 and PW10, they reached the spot sometime between 7.25 PM to 7.30 PM. If it was so, it means that they had no sufficient time to arrange the said motorcycle from outside. It is also not the prosecution case the said motorcycle was belonged to their colleague. Admittedly, the registration number of motorcycle is not mentioned in the rukka. As already stated that from the testimony of PW9 and PW10, it becomes clear that the said motorcycle did not belong to them. It is also clear that the said motorcycle was not official motorcycle. Had it been so, its registration number would have been mentioned in DD No. 29A. Thus, during trial even prosecution failed to establish how police officials (PW9 and PW10) reached the spot. In these circumstances, the defence version that they did not remember the registration number of the motorcycle because there was no occasion for them to reach the spot as PCR Van had brought the accused to the police station appears more plausible.
11. It is admitted case of prosecution that initially the call was received at police control room and thereafter the same was forwarded to local police station i.e. Police Station Pahar Ganj. Though, it is admitted case of prosecution that on receipt of the call, PCR officials reached there, yet there is discrepancy in the prosecution version whether the PCR officials met at the spot when PW10 reached there or not. PW9 in his cross-examination deposed that when he along with PW10 reached the spot, PCR officials were present there but admitted that this fact is not SC No. 134/13 Page 8 of 21 State Vs. Laxmi Kant Tiwari mentioned in the rukka. On the contrary, PW10 in his cross-examination deposed that PCR officials did not meet at the spot. However, he deposed that on inquiry, it was revealed that PCR Van had already left from the spot. Thus, PW10 intended to say that though PCR Van reached the spot, yet without taking any action, PCR left from the spot. Is it believable? It is pertinent to state that PW10 did not state that PCR Van left from the spot after handing over the accused to them. According to PW10 PCR Van left from the spot before his reaching. In his cross-examination, he failed to tell any reason how PCR Van can left the spot without taking any action. Though he admitted that he had collected PCR form and further admitted that in the PCR form it is mentioned that PCR was taking the accused to the police station and it is further mentioned that galat kaam wali koi baat nahi hai. But during investigation, he failed to examine the PCR officials to contradict the version mentioned in the PCR record that they were taking the accused to police station. Needless to say that the documentary evidence prevails over the oral evidence. During investigation, PW10 himself collected the PCR form Ex.PW8/A wherein it is recited that pandit ko police station le ja rahe hai or galat kaam wali koi baat nahi. Thus, it was admitted case of prosecution that the PCR Van was taking the accused to the police station and no substance was found in the allegation of galat kaam. Despite that IO did not deem it appropriate to examine the PCR officials, who conveyed the said message to the police control room. In these circumstances, the case of prosecution becomes doubtful that the IO had conducted the investigation at the spot. Thus, in these circumstances, defence version gets further strength that PW9 and PW10 did not remember the registration number of the said motorcycle because they had no occasion to reach the spot as PCR Van brought the accused to the police station.
SC No. 134/13 Page 9 of 2112. Prosecution has set up a case against the accused that after reaching the spot, IO made inquiry and recorded the statement of victim (PW4) and thereafter prepared a rukka and sent the same to the police station at about 9.10 PM through PW9. Thus, prosecution intends to establish that there was no inordinate delay in lodging the FIR. However, the said version is completely demolished by the prosecution witnesses themselves.
13. PW3 in his examination-in-chief deposed that police took the accused, him and his son to the police station and police recorded their statement in the police station. Similarly, PW4 in his examination-in-chief deposed that police took the accused to the police station and later on police also took him to the police station and further testified that his statement was recorded in the police station. It is pertinent to state here that the deposition of said witnesses were not challenged by the prosecution during trial, thus, prosecution did not dispute the fact that the statement of PW3 and PW4 was not recorded in the police station. Thus, PW3 and PW4 did not support the prosecution version that their statement was recorded at the spot. On the contrary, they categorically deposed that they were taken to the police station and their statement was recorded in the police station.
14. It is admitted case of prosecution that victim (PW4) was a child in terms of provisions of POCSO Act. According to the POCSO Act, statement of child should be recorded at a place convenient to the child but his statement cannot be recorded in the police station and at the time of recording of the statement of victim, police officer should not be in police uniform but this mandatory provision was violated in the present case without any reasonable explanation. From the testimony of PW3 and PW4, SC No. 134/13 Page 10 of 21 State Vs. Laxmi Kant Tiwari it becomes clear that victim (PW4) was examined in the police station and his statement was recorded in the police station. PW4 in his cross- examination further testified that at the time of examination, the police officer was in uniform. Even PW9 and PW10 also admitted in their cross- examination that they were in police uniform. Thus, PW10 has violated the mandatory provisions of POCSO Act without any just and reasonable explanation.
15. Prosecution has set up a case that when PW10 had sent a rukka through PW9, PW1 along with her son PW2 came there and informed the IO that accused had also misbehaved with her son. Thereafter, IO made inquiry from her son and recorded his statement. In order to prove this fact, prosecution has relied upon the testimony of PW1, PW2 and PW10. But PW1 andPW2 did not support the prosecution case in any manner.
16. PW10 in his cross-examination deposed that PW1 along with her son reached there and informed him that accused had also misbehaved with her son. He also testified that as per the statement of PW1 recorded under Section 161 Cr. P.C., PW1 was present at the spot since beginning. It means that PW1 was present at the spot when police reached there and police made inquiry from PW3 and PW4. Despite that PW1 did not inform the IO about the incident that had taken place with her son prior to sending the rukka. PW10 admitted in his cross-examination that before sending the rukka, neither PW1 nor PW2 informed him about any such incident and further deposed that as soon as he sent the rukka, PW1 informed him about the incident that had taken place with her son and also identified the accused.
SC No. 134/13 Page 11 of 2117. However, the testimony of PW10 is not supported by PW1 and PW2. PW1 in her examination-in-chief deposed that her son (PW2) was not at the spot as he had gone to the house of his Bua. It is pertinent to state that her testimony to that extent was not challenged by the prosecution during trial. It means that prosecution has not disputed her testimony to the extent that PW2 was not present at the spot. If PW2 was not present at the spot, how PW10 could record his statement at the spot. Further, PW2 in his cross-examination testified that his statement was not recorded by the police when police arrested the accused; rather deposed that his statement was recorded on the next day. He further deposed that his statement was recorded in the police station and further testified that firstly police recorded his statement thereafter police recorded the statement of his mother. Thus, according to PW2, his statement was recorded on the next day in the police station. Firstly, his statement was recorded thereafter statement of his mother. In other word, investigating officer has manipulated the record by showing that PW1 and PW2 appeared at the spot and they made a complaint against the accused. Had PW1 and PW2 be present at the spot as projected by prosecution, it is highly unbelievable that they would not have made the complaint to the police at the very first instance despite the fact that PW2 and PW4 are friends, classmate and neighbour to each other and both families knew to each other. Thus, the possibility that PW1 and PW2 were planted later on just to strengthen the prosecution case cannot be ruled out.
18. Further, the statement of PW2 recorded under Section 161 Cr. P.C. is hit by Section 162 Cr. P.C as the same is not related to the present incident, thus, the same cannot be looked into for any purpose other than contradiction. Admittedly, the statement of PW2 recorded under Section 161 Cr. P.C. pertains to an independent incident. If there is any SC No. 134/13 Page 12 of 21 State Vs. Laxmi Kant Tiwari substance in the allegations made by PW2 in his statement got recorded under Section 161 Cr. P.C., same pertains to another independent incident and said incident has no concern with the present case. Thus, it was the duty of IO to record separate FIR on the complaint of PW2. But he preferred to record his statement under Section 161 Cr. P.C. Since, the said statement is hit by Section 162 Cr. P.C, his statement is not helpful to the prosecution in any manner to prove the guilt of accused.
19. Prosecution has set up a case that on May 22, 2013 at about 7 PM when PW4 came out from his house, he saw that accused was standing there and passed some indecent gestures, consequently, he informed his father on phone, who also reached the spot and apprehended the accused. Public persons also gathered there and they had given beating to the accused. Thus, as per prosecution version, accused was apprehended by PW3 thereafter public persons gathered there and they had given beating to the accused. However, during trial prosecution witness did not support the said version.
20. PW4 in his examination-in-chief deposed that accused passed indecent gestures from his eyes. Public persons apprehended him. He went to his house and informed his father on phone. Thus, according to PW4, he informed his father when accused had already been apprehended by public person. He further deposed that his father asked him to reach the spot, accordingly, he reached there. His father also reached the spot. He further deposed that when his father reached the spot, public persons were beating him. Thus, according to PW4, accused was already apprehended and he was beaten by public person when his father reached the spot, which is contrary to the prosecution case. It is also pertinent to mention here that the testimony of PW4 to that extent is not challenged by the SC No. 134/13 Page 13 of 21 State Vs. Laxmi Kant Tiwari prosecution. It means that prosecution did not dispute the claim of PW4 that accused was apprehended by public persons before reaching his father.
21. PW4 in his cross-examination deposed that his father reached the spot within 10-15 minutes. He further deposed that at that time accused was standing at the chowk and he also reached the chowk and told his father about the accused and incident. He further testified that thereafter his father apprehended the accused and called the police. Thus, in his cross-examination, he made a contradictory statement that his father apprehended the accused. But he failed to explain how the accused had sustained injury. According to his deposition made in cross-examination, accused was apprehended by his father. But PW3 did not support this version.
22. PW3 in his examination-in-chief deposed that in May 2013 between 5.30 PM to 6 PM, his son PW4 informed him on phone about the accused, consequently, he asked PW4 to reach the spot and kept an eye over the accused. In the meantime, PW3 also reached the spot from the market and further deposed that when he reached the spot, accused was already apprehended by public persons and they were beating him. He further deposed that PW4 told him about the accused. He further deposed that he rescued the accused from public persons and informed the police. Thus, he intended to convey that he did not beat the accused rather accused was beaten by public person. But his testimony to that extent does not appear to be trustworthy. According to PW3, he received the call between 5.30 PM to 6 PM and he reached the spot within 10-15 minutes. If it was so he must have reached the spot by 6.15 PM. But in his cross- examination, he deposed that he made a call to police after an hour. It SC No. 134/13 Page 14 of 21 State Vs. Laxmi Kant Tiwari means that accused was beaten at least for an hour in his presence. But he did not deem it appropriate to make a call to the police. PW3 also admitted that accused was beaten in front of the temple and also admitted that his house is located near temple. PW3 further deposed when his son made a call to him, he asked him to take the help of public persons, thus accordingly, PW4 must have taken the help of someone. Consequently, public persons apprehended the accused and started beating to him. Thus, PW3 intended to say that at the request of his son, some unknown persons apprehended the accused and they started beating the accused. But it is seldom to digest the said version. PW4 admitted in his cross-examination that he is residing in the said locality since his birth as his forefathers were also residing in the said locality. He further deposed that due to said reason, he knew all the residents of the locality i.e. Ladoo Ghati. But he also deposed that the persons who were beating the accused were unknown to him. Thus, he intended to say that the locality persons neither apprehended the accused nor were beating the accused and accused was apprehended and beaten by some unknown person. It is highly unbelievable that unknown public persons would not only come forward to help PW4 but they would also start beating accused mercilessly just at the asking of PW3. On the contrary, it appears more plausible that the accused was apprehended by known persons of PW3 and PW4 and firstly they beaten the accused mercilessly for about an hour and thereafter they informed the police and handed over the accused to the police. Thus, there is no reason to say that PW3 and PW4 have made a false statement to the extent that the accused was beating by unknown public persons.
23. There is also inconsistency in the testimony of PW3 and PW4 on material aspects. PW3 deposed that his son (PW4) made a complaint about the accused on the previous night when accused was apprehended.
SC No. 134/13 Page 15 of 21State Vs. Laxmi Kant Tiwari Accordingly, he asked his son to inform him on phone if accused again harassed him. He further deposed that on the next day, his son made a call to him between 5.30 PM to 6 PM and at that time he was in the market. Thus, according to PW3, his son (PW4) did not inform him about the accused prior to May 21, 2013. On the contrary PW4 deposed that he informed his friend (PW2) about the incident that had taken place about 1½ year ago. However, he conceded that he did not tell him about the subsequent incidents but deposed that he told the said subsequent incidents to his brother. (In order to conceal the identity of victim, his name is not mentioned herein). He further testified that he did not tell the incident to any other person. Thus, PW4 did not depose that he told the incident to his father on the previous night. Thus, the testimony of PW3 to the extent that PW4 made a complaint to him on the previous night does not inspire any confidence.
24. Further, there is material contradiction between the testimony of PW4 and prosecution version.
25. Prosecution has set up a case that the first incident had taken place with PW4 about one week prior to May 22, 2013. Thereafter, second incident had taken place after about two days and thereafter the incident had taken place on May 22, 2013. Thus, according to prosecution version first incident had taken place sometimes around May 15, 2013; second incident had taken place around May 17, 2013; third and last incident had taken place on May 22, 2013. However, when PW4 graced the witness box, he in his cross-examination deposed that the first incident had taken place about 1 ½ year ago. In his examination-in-chief PW4 deposed that he did not remember date, month and year when the first time accused met him. However, he deposed that first time accused met him at Pahar SC No. 134/13 Page 16 of 21 State Vs. Laxmi Kant Tiwari Ganj Railway Colony and at that time he had only passed some indecent gestures from distance. Thereafter, accused again met him in the railway colony and at that time, he asked him whether hairs have grown up at his private part or whether any white liquid came out or not. He further deposed that after 10-15 days, accused again met him outside the railway colony and at that time time accused touched his penis and he also had taken his hand and got touched his penis. Thereafter, accused met him in his gali. Thus, according to the testimony of PW4, there was a gap of about 10-15 day between second and third incident i.e. when accused asked him whether hairs have grown up at his private part and when accused touched his penis and got touched him his penis, which is contrary to the prosecution case because as per prosecution case, both the said incidents had taken place within a span of seven day whereas PW4 deposed that there was a gap of at least 10-15 days between both the incidents. Admittedly, PW4 did not disclose the date and time of the alleged incidents. Even no such attempt was made by the IO to know about the same. No doubt, PW4 is a child of 13 years old at the time of incident but it was the duty of IO to make inquiry from the witness to know about the approximate date and time of the incident. It is pertinent to state that in the absence of any particular date and time of incident, it becomes difficult for the accused to prove his innocence. The age of 13 years is not so tender that the witness could not disclose the approximate date and time of the incident particularly when the FIR was lodged within a week of the alleged incidents. This further indicates that investigation was not conducted diligently.
26. In case State of A.P. v. Punati Ramulu, 1994 Supp (1) SCC 590 at page 591 it was held:
".......... Once we find that the investigating officer has SC No. 134/13 Page 17 of 21 State Vs. Laxmi Kant Tiwari deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stopped to fabricate evidence and create false clues...."
27. In the instance case also the investigation is tainted as during trial it is established that all investigation was conducted in the police station whereas it was projected by the investigating officer that the same was conducted at the spot. FIR was recorded in the police station after due deliberation and consultation while it was projected that the same was got recorded immediately after recording the statement of victim. Statement of PW1 and PW2 were projected to be recorded on the same day whereas the same were recorded on the next day. Applying the above case law in the facts and circumstances of the case in hand, I am of the view that no reliance can be placed on the prosecution case.
28. Now question arises as to whether in these circumstances any reliance can be placed on the uncorroborated testimony of PW4?
29. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 at page 343 it was held:-
The entire prosecution case rested upon the evidence of Sarubai (PW 2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child witness if found competent to depose to the facts and reliable one such evidence could be the SC No. 134/13 Page 18 of 21 State Vs. Laxmi Kant Tiwari basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well-settled principle we March proceed to consider the evidence of Sarubai (PW 2).
(emphasis supplied)
(i) In Panchhi v. State of U.P., (1998) 7 SCC 177 at page 181 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.
(emphasis supplied)
(ii) In Hamza v. Muhammedkutty, (2013) 11 SCC 150 at page 161 The learned counsel for the State is right that the SC No. 134/13 Page 19 of 21 State Vs. Laxmi Kant Tiwari consistent version of PW 1 is that A-1 and A-2 have committed murder of the deceased. But the High Court has rightly relied on the observations of this Court in Suresh v. State of U.P. [(1981) 2 SCC 569 : 1981 SCC (Cri) 559] that children mix up what they see and what they like to imagine to have seen. Glanville Williams says in his book The Proof of Guilt, 3rd Edn., published by Stevens & Sons:
"Children are suggestible and sometimes given to living in a world of make-believe. They are egocentric, and only slowly learn the duty of speaking the truth."
Hence, the proposition laid down by the courts that as a rule of practical wisdom, the evidence of child witness must find adequate corroboration. (Panchhi v. State of U.P. [(1998) 7 SCC 177 : 1998 SCC (Cri) 1561] (emphasis supplied)
30. In the light of above settle proposition of law, I am of the view that no reliance can be placed on the uncorroborated testimony of PW4. There is no other cogent evidence to prove the guilt of accused.
31. Now coming to the issue as to whether presumption under Section 29 of POCSO Act is helpful to the prosecution to prove the guilt of accused?
32. No doubt under Section 29 of the POCSO Act, presumption lies in favour of prosecution and onus is upon the accused to establish that he had not committed the said offence. But it is also settled law that presumption can be rebutted by referring the evidence led by the prosecution and there is no requirement to lead any independent evidence to rebut the presumption. As already discussed, in the present matter, accused has demolished the prosecution case by referring the evidence led by prosecution. Thus, to my mind, Section 29 of the POCSO Act is also SC No. 134/13 Page 20 of 21 State Vs. Laxmi Kant Tiwari not helpful to the prosecution in any manner.
33. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has miserably failed to bring home the guilt of accused for the offence for the offences punishable under Section 8 and 12 of the Protection of Children from Sexual Offences Act, 2012, thus I hereby acquit the accused Laxmi Kant Tiwari from thereunder.
34 Before parting with the matter, it is pertinent to state that there is no requirement under the law to conduct the entire investigation at the spot. The only requirement of law is that the investigation should be fair, transparent and unbiased. In the zeal of projecting that entire investigation was conducted at the spot, investigating officers commit inherent defects in the investigation as committed in the present case which ultimately create hurdles for the prosecution to prove the guilt of accused. This attitude is not in the interest of administration of criminal justice and this requires to be changed. Accordingly, copy of judgment be sent to Commissioner of Police to take appropriate steps to stop this malpractice and to enable him to take appropriate action against the erring investigating officer as he deems fit.
Announced in the open Court on this 22nd day of May, 2014 (PAWAN KUMAR JAIN) Additional Sessions Judge-01 Central district, Tis Hazari, Delhi/sm SC No. 134/13 Page 21 of 21