Karnataka High Court
Sri G S Venkatesh vs The State Of Karnataka on 25 February, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL No.845 OF 2017
BETWEEN:
SRI G S VENKATESH
S/O NARAYANASWAMY
AGED 23 YEARS
R/AT GUNDLAHALLI VILLAGE
MURUGAMALLA
CHINTAMANI - 563125
NOW HOUSE OF J C
CENTRAL PRISON
PARAPPANA AGRAHARA
BENGALURU - 560100
...APPELLANT
(BY SRI: S BALAKRISHNAN, ADVOCATE)
AND:
THE STATE OF KARNATAKA
CHIKKABALLAPURA POLICE CIRCLE
CHIKKABALLAPURA
REP BY SPP
HIGH COURT OF KARNATAKA
BANGALORE - 560001
...RESPONDENT
(BY SMT: K.P.YASHODHA, HCGP)
THIS CRL.A IS FILED U/S 374(2) CR.P.C. PRAYING TO SET
ASIDE THE JUDGEMENT OF CONVICTION DATED 31.3.2017 AND
SENTENCE DATED 5.4.2017 PASSED BY THE I ADDITIONAL DISTRICT
AND SESSIONS JUDGE, CHIKKABALLAPUR IN SPL.S.C.NO.12/2016-
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
2
PUNISHABLE UNDER SECTION 376 OF IPC AND UNDER SECTION 4 OF
POCSO ACT, 2012.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Appellant before this Court is convicted for the offences punishable under section 376 of IPC and section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act"). He is sentenced to rigorous imprisonment for a period of ten years and a fine of Rs.25,000/- for the offence punishable under section 4 of the POCSO Act.
2. The case of the prosecution is that the victim (PW.5), then aged about 15 years, was residing in a shed along with her parents. Her parents were construction labourers. On 06.12.2015, as usual, they had left for work leaving the victim girl alone in the shed. At about 1.00 p.m., while the victim girl was taking bath in the bathroom behind the Stadium under construction, the accused is stated to have committed rape on the victim girl and again on 09.12.2015 at about 2.00 p.m., he 3 committed rape on her in the same place. The victim disclosed this incident to her mother on 11.12.2015 when she had pain in her abdomen. The mother of the victim PW.6 lodged the first information as per Ex.P14 based on which FIR was registered against the appellant/accused in Crime No.454/2015 as per Ex.P18.
3. Investigation was taken up. Victim was subjected to medical examination. FSL report - Ex.P8 was obtained and on ascertaining that PW.5 was the victim of penetrative sexual assault, charge sheet was laid before the court. Charges were framed against the accused under section 376 of IPC and section 4 of the POCSO Act. The accused having denied the charges, the prosecution examined 14 witnesses as PW.1 to PW.14 and got marked 31 documents as Ex.P1 to Ex.P31 and four material objects as MO.1 to MO.4. Accused denied all the incriminating circumstances brought out in the prosecution evidence and did not choose to produce any rebuttal evidence.
4. Considering the material produced by the prosecution and upon hearing the learned Public Prosecutor and 4 learned counsel for appellant/accused, by the impugned judgment, the Sessions Court found the accused guilty of the offence punishable under section 376 IPC and section 4 of the POCSO Act and accordingly sentenced him as stated above. Aggrieved by the same, accused has preferred this appeal.
5. Heard learned counsel for appellant and learned HCGP.
6. Sri.S.Balakrishnan, learned counsel for appellant, at the outset, submitted that the Sessions Court failed to appreciate the evidence of the prosecutrix in proper perspective. Her evidence even if accepted in its entirety, does not make out the ingredients of penetrative sexual assault. Even with regard to the identity of the accused, the evidence of the prosecutrix PW.5 is not clear and specific. In her chief-examination she answered that she did not see the accused. It is only on the goading of the Public Prosecutor when accused was pointed out, she identified the accused. This identification cannot stand judicial test. Added to that, she did not narrate details of the alleged acts. Even the medical evidence relied on by the 5 prosecution does not corroborate the statement of the victim. On the other hand, the medical evidence suggests that there was no sexual assault on the victim. Elaborating on this aspect, learned counsel pointed out that the victim was subjected to medical examination on the third day of the alleged sexual act. But the Medical Officer (PW.3) has unequivocally stated that there were no traces of recent sexual intercourse on the victim. Even the FSL report is contrary to the ocular testimony of the prosecutrix. Under the said circumstances, the Special Court has committed grave error in convicting the accused for the offence under section 376 of IPC and section 4 of the POCSO Act. Regarding appreciation of evidence of child witness, learned counsel placed reliance on the decision of the Hon'ble Supreme Court in the case of YOGESH SINGH vs. MAHABEER SINGH & Others (Criminal Appeal No.1482/2013 dated 20.10.2016) and prayed for acquittal of the appellant/accused.
7. Per contra, learned HCGP argued in support of the impugned judgment contending that the victim has not only identified the accused in the witness-box, but has also deposed 6 on oath that she was raped by the accused on two occasions. This evidence has not been discredited in the cross-examination. The prosecution evidence is not rebutted. Hence, in view of the presumption engrafted under sections 29 and 30 of the POCSO Act, learned Magistrate was justified in convicting the accused and thus prayed for dismissal of the appeal.
8. I have bestowed my careful thought to the submissions made by the learned counsels appearing for the parties and have carefully scrutinized the material on record.
9. In the light of the contentions urged by the parties, the question that arises for consideration is..
"Whether the evidence produced by the prosecution is sufficient to convict the appellant/accused for the offence punishable under section 376 of IPC and/or section 4 of the POCSO Act?"
AGE OF THE VICTIM:
10. Insofar as the age of the victim is concerned, there seems to be no serious dispute that the victim was aged 7 between 16 to 17 years as on the date of commission of the alleged offences. The evidence of PW.4 - the Medical Officer who examined the victim for determination of her age has not been challenged in the cross-examination. PW.4 in her examination has stated that based on the growth of teeth, she determined the age of the victim and issued the Certificate - Ex.P12. This certificate is not disputed in the cross-examination and no plea is canvassed before this Court disputing the age of the victim, as such, it has to be held that the victim was a "child" within the meaning of section 2(d) of the POCSO Act. BACKGROUND OF VICTIM:
11. Before proceeding to deal with the contentions urged in the appeal, it is relevant to note that the facts brought out in the evidence of the prosecution witnesses indicate that the victim was an illiterate and rustic girl. The Trial Court in the impugned judgment has recorded that she was an illiterate minor girl and she did not even know to sign, and was struggling to speak before the Court. In the deposition sheet it is noted that she was answering every question in the cross examination 8 as "ºÀÆA" (huun). There is no dispute with regard to the fact that the parents of the victim were construction labourers and were residing in a shed provided by the Contractor near the construction site. In the course of cross-examination of PW.5 it is elicited that while examining her, the Medical Officer (PW.3) was speaking to her in Kannada and the victim was replying in Telugu language. Learned Magistrate who recorded the statement of the victim under section 164 Cr.P.C., as per Ex.P13, has noted therein that answers were given by the victim in Telugu language indicating that the victim was a Telugu speaking girl. Though her deposition is recorded in Kannada language, there is nothing in the deposition sheet to indicate that she was conversant in Kannada or any translator was appointed by the court to translate her statement. She had affixed her LTM to the deposition sheet which indicates that she was not in a position even to subscribe her signature either in Kannada or in Telugu. All these circumstances, therefore, go to show that the victim was illiterate and her mother tongue was Telugu and that she was not fully conversant in Kannada 9 language. These aspects have to be kept in mind while appreciating the case set up by the prosecution. THE MATERIAL FOR CONSIDERATION:
12. On examination of the material produced by the prosecution, I find that the prosecution has rested its case on the following pieces of evidence namely,
(i) Oral testimony of the victim examined as PW.5.
(ii) Statement of the victim PW.5 recorded by the Magistrate under section 164 Cr.P.C.
(iii) Evidence of PW.3 - Medical Officer who examined the victim and issued the Certificate as per Ex.P3.
(iv) FSL report Ex.P8
(v) Spot mahazar Ex.P15.
13. The other material witnesses examined by the prosecution namely mother of the victim PW.6 who lodged the complaint and her father PW.7 have turned hostile to the case of the prosecution and it is elicited that on account of the 10 compromise entered into with the accused, they have resiled from their previous statement.
FINDINGS OF THE TRIAL COURT:
14. The Trial Court has believed the evidence of the victim as well as the medical evidence let in by the prosecution and has held that the hymen of the victim girl was missing and mouth of her vagina was expanded; the victim girl during her evidence pointed finger at the accused as the person who raped her and there was no reason to disbelieve her evidence; this evidence coupled with the medical evidence conclusively establishes the guilt of the accused for the offence charged against him under sections 376 of IPC and section 4 of POCSO Act.
REASONS FOR DISAGREEMENT WITH THE FINDINGS OF THE TRIAL COURT:
15. On reconsidering the entire evidence on record, in the backdrop of the circumstances highlighted above, I am of the considered opinion that the conclusions arrived at by the Special 11 Court and the reasoning assigned in support thereof do not stand the test of judicial scrutiny for the following reasons:-
Undeniably, the accused was charged for the offence punishable under section 375 IPC and section 4 of POCSO Act.
Section 376 of IPC provides for punishment for the offence of "rape". The offence is defined under section 375 of IPC. The section reads as under:-
375. Rape- A man is said to commit "rape" if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or 12
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
First-Against her will.
Secondly-Without her consent.
Thirdly-With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly-With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly-With or without her consent, when she is under eighteen years of age.
Seventhly-When she is unable to communicate consent.13
Explanation 1.For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-
verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1-A medical procedure or intervention shall not constitute rape.
Exception 2-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
Section 4 of the POCSO Act provides for punishment for penetrative sexual assault. "Penetrative sexual assault" is defined under section 3 of the POCSO Act as under:-
3. Penetrative sexual assault.-
A person is said to commit "penetrative sexual assault" if-
14
a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
DIFFERENCE BETWEEN SECTION 375 IPC AND SECTION 4 POCSO ACT:
16. A reading of the above two provisions in juxtaposition demonstrate certain common elements in both these offences namely;
15
(i) penetration of penis, to any extent, into the vagina, mouth, urethra or anus of a child;
(ii) insertion of any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child;
(iii) manipulation of any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child;
(iv) application of mouth to the penis, vagina, anus, urethra of the child.
17. The difference discernable from these provisions is that, in a prosecution for the offence under section 375 IPC, in addition to the above common ingredients, the prosecution has to further prove the seven circumstances enumerated in section 375 IPC, namely, the absence of will and consent by the victim etc., whereas, in an offence under section (4) of the POCSO Act, the prosecution is relieved of establishing these circumstances. On the other hand, the prosecution is aided with the presumptions provided under sections 29 and 30 of the POCSO Act. Nevertheless, in order to make out the offence either under 16 section 375 IPC or under section 4 of the POCSO Act, prosecution must necessarily prove the basic ingredients namely penetration, insertion, manipulation or application of the mouth to the penis, vagina, anus, urethra of the child. Penetration, insertion, manipulation or application of mouth therefore is a sine qua non to constitute the offences either under section 375 IPC or section 4 of the POCSO Act.
18. Law is now well settled that to constitute an offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Even partial or slightest penetration of male organ in the labia majora or the valva and even an attempt of penetration into the private parts of the victim would be enough to make out the offence under section 375 of IPC or section 4 of POCSO Act. There can be an offence of rape without injury to the genitals but it must be remembered that there cannot be an offence of rape within the meaning of section 375 of IPC or penetrative sexual assault within the meaning of section 4 of the POCSO Act 17 without penetration or an attempt of penetration, manipulation, insertion or application of mouth etc. APPRECIATION OF EVIDENCE:
19. In the instant case, on careful examination of the evidence of the prosecutrix (PW.5) and on scrutiny of the entire material on record, I do not find any worthwhile evidence, either direct or circumstantial, in proof of penetrative sexual assault on the victim so as to render the accused guilty of the offence under section 375 of IPC or section 4 of the POCSO Act. No doubt in her evidence before the Court, the victim has identified the accused by show of finger, but coming to the proof of the ingredients of the offence is concerned, she has merely stated that about one year prior to her examination before the court, one day in the afternoon while she was taking bath, the accused caught hold of her from behind and made her to lie down and slept over her and committed rape on her and like this he did twice. The exact words of the victim as recorded in the deposition sheet read as under:-
18
¸ÀĪÀiÁgÀÄ MAzÀÄ ªÀµð À zÀ »AzÉ ªÀÄzsÁåºÀß £Á£ÀÄ ¸ÁߣÀ ªÀiÁqÀĪÁUÀ DgÉÆæ §A¢zÀÝ£ÀÄ. F ºÀAvÀz° À è ¸ÁQëAiÀÄÄ vÀqª À j À ¹zÀÄÝ, CªÀ¼ÀÄ DgÉÆæ ºÉ¸g À £ À ÀÄß ºÉýgÀĪÀÅ¢®è, DgÉÆæAiÀÄ£ÀÄß vÉÆÃj¸À¯ÁV CªÀ£ÃÉ §A¢zÀÝ£ÀÄ JAzÀÄ ºÉýzÁݼ,É £À£ÀߣÀÄß »A¢¤AzÀ vÀ©â »rzÀ£ÀÄ ªÀÄvÀÄÛ PɼU À É ªÀÄ®V¹zÀ£ÀÄ ªÀÄvÀÄÛ £À£Àß ªÉÄÃ¯É CªÀ£ÀÄ ªÀÄ®VPÉÆAqÀ£ÀÄ ªÀÄvÀÄÛ CvÁåZÁgÀ ªÀiÁrzÀ£ÀÄ. F jÃw JgÀqÀÄ ¨Áj ªÀiÁrzÁÝ£.É ...
She has not narrated any other details of the incident. She further deposed that out of fear that her parents might scold her, she did not divulge this incident to them and it was only when she developed pain in her abdomen, she informed the matter to her mother.
20. This evidence, in my view, falls short of the legal requirements of section 375 of IPC/section 4 of POCSO Act as explained above. There is nothing in her evidence to show that there was any penetration, insertion, manipulation of her private parts, which are the essential concomitants of the offences charged against the accused. No doubt, in her evidence, she has maintained that the accused committed "CvÁåZÁgÀ" on her. Whether the expression "CvÁåZÁg" by itself is sufficient to make 19 out the ingredients of the above offences is the crucial question that requires to be considered in extenso.
21. The term "CvÁåZÁgÀ" literally means "rape". "Rape" is a legal term or nomenclature of an offence. Needless to say that is the very offence for which the accused is charged. If so, it does not serve the legal purpose if the victim or the witness asserts in his or her evidence that the accused committed the very offence for which he is charged without narrating the acts or the facts by which the alleged offence was committed. For example, in a prosecution for the offence of dacoity, if the witness merely states on oath, that the accused committed dacoity, without disclosing the acts by which the said offence was committed, the statement made before the court cannot be treated as evidence leading to the proof of the offence. Likewise, in a prosecution for the offence of murder if the witness asserts in evidence that he or she saw the accused committing the murder without narrating the actual facts that were seen or heard or felt by the witness, the same cannot be characterized as evidence in the eye of law.
20
22. "Offence" generally denotes an act or omission made punishable by the IPC or any other special penal statute in force. Section 2(n) of the Criminal Procedure Code defines the term "offence" as under:
"Offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle- trespass Act, 1871 (1 of 1871).
The essential elements of an "offence" therefore is a wrongful act i.e., actus reus and wrongful intention i.e., mens rea.
"Offence" therefore essentially consists of 'wrongful act' and 'wrongful intention'.
23. Evidence, as is well settled, can be adduced only with reference to facts. Section 3 of the Indian Evidence Act, 1872 defines "evidence" as under:-
"Evidence. - Evidence means and includes -
(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, 21 such statements are called oral evidence;
(2) all documents including electronic records
produced for the inspection of the Court,
such documents are called documentary
evidence."
From this definition it is clear that evidence could be given only in relation to the matters of fact under inquiry.
24. "Fact" is defined under section 3 of the Indian Evidence Act. It reads as under:-
"Fact" means and includes, as defined under section 3 of the Evidence Act, "(1) any thing, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious."
This definition is explained by way of illustrations as herebelow:
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.22
25. As per section 3 of the Indian Evidence Act, fact is said to be "proved" when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
26. Thus, from the above provisions, it is clear that on considering the evidence produced by the parties, court decides whether the evidence produced before it, proves a particular fact or not. When it is held that a certain fact is proved (of course with the standard of preponderance of probability), court proceeds to consider whether that fact leads to the inference of guilt of the accused person (with the standard of proof beyond reasonable doubt). There can be no inference of guilt or otherwise, unless the facts constituting the offence are proved either by direct or circumstantial evidence.
27. Applying these basic principles of criminal jurisprudence, to the facts of our case, on examining the entire material on record, I do not find even remote evidence in proof 23 of penetration, insertion or manipulation of the private parts of the victim, which are the essential constituents of the offences charged against the accused. Even the medical evidence does not prove any act of penetration. PW.3 has unequivocally stated that during the examination of the victim, she did not find any traces of recent sexual intercourse on her. Even the FSL report (Ex.P8 ) does not support the case of the prosecution. It is stated therein that seminal stains were not detected on vaginal wash, vaginal swab, pubic hairs, churidhar top, churidhar bottom of PW.5. That apart, having regard to the background of the victim, it is difficult to believe that by the expression "CvÁåZÁg" she meant penetration, insertion or manipulation of her private parts. As already highlighted above, she was not conversant in Kannada and while narrating the incident before the Magistrate during her examination under section 164 Cr.P.C., she appears to have used Telugu language apparently for the reason that she was unable to express it in Kannada. Under the said circumstance, it was necessary rather incumbent upon the Special Court recording her evidence to have asked her to 24 clarify as to what was meant by the expression "CvÁåZÁg". Without eliciting these essential facts, court cannot give flight to its imagination and presume that "CvÁåZÁg" means penetrative sexual assault especially when the definition itself lays down that the said offence could be committed in either of the four ways enumerated therein. When the evidence brought on record is ambiguous and susceptible to different interpretations and does not spell out the essential facts or ingredients of the offence, such an evidence cannot be made the basis for conviction of the accused.
28. Of course, I am conscious of the difficulties faced by the prosecution in examining a child witness and that too a rustic witness. Given the tender age and lack of experience, such a witness may not be in a position to express herself. But, that does not relieve the prosecution of its primary burden to prove the basic facts constituting the offence. Moreover, when the case is decided mainly on the testimony of a child witness alone, the evidence brought on record should be convincing, fully reliable and free of any ambiguities. It should not only satisfy 25 the judicial conscience but should also meet the legal standards. Child witness no doubt is a competent witness and she being a victim of sexual assault, her evidence cannot be viewed with suspicion and her evidence must be treated at par with the evidence of an injured witness. But at the same time it should not be forgotten that a child witness is highly vulnerable and is susceptible to tutoring and manipulation. She may also be a victim of threat and intimidation and not able to depose correctly in a court of law and therefore, it is the duty of the Judge presiding over the Special Court to elicit truth from the witness.
29. The Officers manning the Special Court constituted under the provisions of the POCSO Act are imparted intensive training in the Judicial Academy with a view to develop sensitivity to children and understand child sexual abuse dynamics. Extensive training has been given to the Officers in the art of eliciting evidence and appreciating the evidence of child witnesses which by its very nature requires utmost skill and empathy in the Officers manning these courts. But it is unfortunate to see that the result of this training is not reflected 26 either in the conduct of trial or in recording evidence or in rendering judgment in the instant case.
SPECIAL PROCEDURE UNDER THE POCSO ACT:
30. The POCSO Act has devised special procedure for recording evidence in a criminal trial for the offences under the POCSO Act. Chapter VIII of the POCSO Act prescribes the procedure for recording the evidence and the powers of Special Courts. I do not find it necessary to extract these provisions as they are required to be followed by the Special Court without any excuse. However, it needs to be emphasized that under the Act, it is mandatory for the Special Court to record entire evidence of the child within thirty days from the date of taking cognizance of the offence and conclude the trial within a period of one year from the date of taking cognizance of the offence. Section 36 of the Act requires the Special Court to ensure that the child is not exposed to the accused and the trial under the Act will have to be held in camera. The Special Court is also empowered to record the evidence of the child in any place other than the court after forming a prior opinion to this effect as per 27 section 284 of Cr.P.C. The Special Court has the power to take the assistance of interpreter or expert while recording the evidence of the child. As the provisions of Cr.P.C. are made applicable to the proceedings under the Act, the Special Court is also required to record the demeanor of the witnesses and it is always desirable that the Presiding Officer makes a record of his opinion that the child examined by him was in a position to understand the duty of speaking the truth.
31. It is regrettable to note that the Presiding Officer conducting the trial in the instant case has exhibited ignorance of the above procedures and the salutary guidelines laid down under the POCSO Act. It is really shocking to note that the evidence of the victim was recorded on 14.12.2019 eventhough the accused was taken into custody on 12.12.2015 and the charges were framed against him on 12.05.2016. (The order sheet does not specify the date of taking cognizance of the alleged offences). There is nothing in the order sheet or in the deposition sheet indicating that the trial was conducted in camera as prescribed in section 37 of the POCSO Act and the 28 victim was not exposed to the accused. On the other hand, the facts noted in the deposition of PW.5 indicate that she was in direct contact with the accused. Eventhough the circumstances brought out in her evidence indicated that she was not conversant in Kannada, no translator was appointed to assist the witness. This appears to be the reason as to why in the cross- examination, she has answered almost every question put to her by the defence advocate by saying "ºÀÆA''. I have extracted the portion of the cross-examination of PW.5 only to highlight the manner in which the Presiding Officer has casually recorded the evidence of PW.5.
DgÉÆæAiÀÄÄ £Á£ÀÄ ¸ÁߣÀ ªÀiÁqÀĪÀ PÁ®PÉÌ §A¢zÀÝ£ÀÄ JAzÀÄ ¥ÉưøÀgÀÄ ºÉýPÉÆnÖzÀÝjAzÀ £Á£ÀÄ ºÉüÀÄwÛzÉÝÃ£É JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë ºÀÆA JAzÀÄ ºÉüÀÄvÁÛ¼.É DgÉÆæAiÀÄÄ ¸ÉPÀÆåjn UÁqïð JAzÀÄ £Á£ÀÄ ¥ÉưøÀgÀ ªÀÄÄAzÉ ºÉý®è JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë ºÀÆA JAzÀÄ GvÀÛj¸ÀÄvÁÛ¼.É DgÉÆæAiÉÄà ¸ÁߣÀ PÉÆoÀrAiÀÄ°è §A¢zÀÝ£ÀÄ JAzÀÄ UÀÄwð¸À®Ä ¥ÉưøÀgÀÄ ºÉýPÉÆlÖgÉ JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë ºÀÆA JAzÀÄ GvÀÛj¸ÀÄvÁÛ¼.É ªÉÊzÀågÀÄ £À£ÀߣÀÄß ¥ÀjÃQë¹zÁÝgÉ JAzÀÄ £ÁåAiÀiÁ®AiÀÄzÀ°è ºÉüÀĪÀAvÉ ¥ÉưøÀgÀÄ ºÉýPÉÆlÖgÉ JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë ºÀÆA JAzÀÄ GvÀÛj¸ÀÄvÁÛ¼.É 29 £ÁåAiÀiÁ¢üñÀgÀÄ K£ÀÄ PÉýzÀgÀÆ ºÀÆA JAzÀÄ ºÉüÀÄ JAzÀÄ ¥ÉưøÀgÀÄ ºÉýPÉÆnÖzÀÝgÀÄ JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë ºÀÆA JAzÀÄ GvÀÛj¸ÀÄvÁÛ¼.É DgÉÆæAiÀÄ£ÀÄß ªÉÆzÀ® ¨ÁjUÉ £ÁåAiÀiÁ®AiÀÄzÀ°è £ÉÆÃqÀÄwÛ¢ÝÃAiÀÄ JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë ºÀÆA JAzÀÄ GvÀÛj¸ÀÄvÁÛ¼.É
32. "ºÀÆA" can mean anything. A short "ºÀÆA" may mean yes. It may also be an indication to go on or to proceed further. A long "ºÀÆA" is generally taken as "yes". But with little inflection of sound, it may also mean "no". It all depends upon the modulation of the sound and the tone of the voice and the context in which the utterance was made. By all means, it can be misleading. The tone of voice in which the witness makes the statement, look of the witness, his gesture, the hesitation or readiness with which such answers are given, the movement of the eyes, glance or shrugs, the pitch of the voice together add upto the demeanour of the witness. The Trial Judge having an opportunity to note the body language and the behaviour of the witness should note this demeanour carefully and make a note in this regard as it can be one of the indices to assess the credibility of the testimony given before the Court. 30 DEMEANOUR OF WITNESS:
33. Section 280 of the Code requires that, "When a presiding Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination." This directive is required to be followed with more vigour and circumspection while recording the evidence of a child witness and the Judge should make it a point to note the demeanour of the witness in the deposition sheet. It is a character evidence which by itself is not a substantive or corroborative evidence, but certainly is the best guide to determine the credibility of the witness and the veracity of the statement made before a court of law. It therefore requires expertise as well as experience on the part of the Presiding Officer to observe and note the demeanour of the witness during his examination before the Court. Researchers have demonstrated that, "deception clues are found more often in voice, than in facial or other visual expressions." Therefore, it is always desirable to record the behaviour of the witness as to 31 whether during his examination, the witness was nervous, avoided eye contact, demonstrated pain, shed tears, fluctuated the tone of his speech and other non-verbal ticks or communication, of course, with a caution not to readily rely on the impression created in the mind of the Judge without testing it against the whole evidence, as appearances can generally be deceptive. The Trial Judge must also be cautious not to form an opinion and express it in the course of recording evidence lest he may be accused of bias and prejudice.
34. Of course it can be argued that demeanour means a witness's body and facial expression and not the vocal characteristic, but when faced with ambiguous testimony brought on record, the demeanour of the witness as observed in the deposition sheet would undoubtedly help the Trial Judge as well as the Appellate Court to determine the credibility of conflicting testimony. In the instant case, the Trial Judge having failed to elucidate and clarify from the witness as to whether the answers given by her in the form of "ºÀÆA" is either a "yes" or "no" to the question posed to her, the benefit of this ambiguity 32 must necessarily go to the accused and consequently, it has to be held that, by eliciting the said answers in the course of her cross-examination, the defence has succeeded in demolishing the statements made by her in the chief-examination. The answers extracted above would lead to the inevitable conclusion that she has deposed before the court as tutored and instructed by the police. As such, no credence could be given to the testimony of PW.5 to hold that she was raped by the accused as contended by the prosecution. In view of the ambiguities and doubtful circumstances brought out in the course of her cross- examination, her testimony is not fully reliable and cannot be made the sole basis to convict the accused without corroboration. As the prosecution has failed to produce any independent corroboration to the testimony of PW.5, there is no other alternative than to hold that the prosecution has failed to prove its case beyond reasonable doubt.
35. That apart, the evidence of PW.5, even if believed, would not establish the fact that during the occurrence, there was any penetration or insertion or manipulation of her private 33 parts so as to render the accused guilty of the offence of penetrative sexual assault punishable under section 4 of the POCSO Act or for the offence of rape punishable under section 376 of IPC. This evidence in my view at the most would make out the ingredients of the offence of "sexual assault" as defined under section 7 of POCSO Act and therefore, on ultimate analysis of the entire material on record, I am of the view that based on the evidence produced by the prosecution, the accused is liable to be convicted for the minor offence under section 7 punishable under section 8 of the POCSO Act.
PRESUMPTION UNDER SECTIONS 29 AND 30 OF THE ACT:
36. Coming to the contention urged by the learned HCGP that by virtue of the presumption engrafted under sections 29 and 30 of the POCSO Act, the trial Court was justified in holding the accused guilty of the offence under section 4 of the POCSO Act is concerned, at the outset it should be noted that presumption is not proof. "Presumption" is only an inference of certain facts drawn from other true facts. In the words of the Hon'ble Supreme Court in APS FOREX SERVICES PVT. LTD. VS.34
SHAKTI INTERNATIONAL FASHION LINKERS & Others, AIR 2020 SC 945, "Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence." Presumption does not relieve the prosecution of discharging its burden to prove the guilt of the accused with the standard of proof laid down under the general law. It is only when the foundational facts constituting the offence charged against the accused is proved by the prosecution, the presumption gets attracted. It is trite law that merely on the basis of presumption, a finding of guilt cannot be recorded against an accused facing prosecution for criminal offences.
37. Insofar as the presumptions provided under section 29 and 30 of the POCSO Act are concerned, they are not absolute or conclusive presumptions. The sections read as under:-
29. Presumption as to certain offences.
Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the 35 Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
30. Presumption of culpable mental state.
(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation: In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
38. The use of expression "unless the contrary is proved"
appearing in section 29 makes it clear that the presumption raised under this section is rebuttable. A rebuttable presumption can be raised only when the foundational facts constituting the offence are established by the prosecution. In a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the 36 prosecution, as every man is presumed to be innocent until the contrary is proved. In a case where an offence is committed against a child, having regard to the very nature of the offence where it is difficult for the prosecution to prove the facts and circumstances in which the offence had taken place, the Act has cast the burden on the accused to prove the facts within his knowledge as it is easier for the innocent accused to produce evidence contrary to the case proved by the prosecution. This is called reverse burden whereby the burden is shifted to the accused to disprove the facts established by the prosecution.
The question of discharging the reverse burden by the accused would arise only when the initial burden cast on the prosecution is discharged to the satisfaction of the court. Therefore it follows that without the proof of basic facts constituting the offence charged against the accused, the accused cannot be called upon to disprove the case of the prosecution.
39. In the instant case, as the prosecution has failed to establish the basic facts constituting the ingredients of the offence charged against the accused, the presumption created 37 under section 29 of the POCSO Act cannot be invoked by the prosecution. For the same reason, the culpable mental state including the intention, motive or knowledge of the alleged offence cannot be imputed to the accused merely on the basis of the presumption under section 30 of the POCSO Act. It is only when the prosecution proves the basic facts constituting the offence charged against the accused, the prosecution is relieved of establishing the culpable mental state of the accused like the intention, motive and knowledge, by virtue of the presumption engrafted in section 30 of the POCSO Act. That being the legal position, the presumptions provided under sections 29 and 30 of the Act is of no avail to the prosecution to sustain the impugned judgment insofar as the conviction of the accused for the offences punishable under section 376 of IPC and section 4 of the POCSO Act is concerned.
In the light of the above discussion, the impugned judgment passed by the I Addl. District and Sessions Judge, Chikkaballapur in Spl.Sessions Case No.12/2016 dated 31.03.2017 insofar as convicting the accused for the offences 38 punishable under section 376 of IPC and section 4 of POCSO Act and the consequent order on sentence dated 05.04.2017 is set aside. For the reasons assigned in para 35 of this judgment, the accused is held guilty of the offence under section 7 punishable under section 8 of the POCSO Act and is sentenced to rigorous imprisonment for a period of five years and a fine of Rs.25,000/-. In default of payment of fine, the accused is sentenced to undergo further imprisonment for a period of one year.
On deposit or realization of the fine amount, the same shall be made over to the victim/PW.5 by way of compensation.
The accused is entitled to the benefit of section 428 of Cr.P.C.
The appeal stands allowed-in-part in terms of the above order.
Sd/-
JUDGE Bss.