Karnataka High Court
Basappa @ Basavaraj S/O Chandappa ... vs The State Of Karnataka on 25 August, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.200069/2017
Between:
Basappa @ Basavaraj S/o Chandappa Ukkali
Age: 20 Years, Occ: Agriculture
R/o Hallur Village,
Tq. Muddebihal, Dist. Vijayapur
... Appellant
(By Sri Nandkishore Boob, Advocate)
And:
The State of Karnataka
Rep. by the PSI
Muddebihal PS
Rep. by the Addl. State Public Prosecutor
High Court of Karnataka
Kalaburagi Bench
... Respondent
(By Sri Sharanabasappa Patil, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to set aside the judgment of conviction
dated 16.03.2017 and order of conviction dated 18.03.2017
passed in Special Case (POCSO) No.10/2016 by the Special
Judge & II Addl. Sessions Judge, Vijayapur and acquit the
appellant.
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This appeal coming on for hearing this day, the Court
delivered the following:
JUDGMENT
This appeal is by the convicted appellant-accused calling in question the judgment of conviction dated 16.03.2017 and order of sentence of sentence dated 18.03.2017 in Spl. Case (POCSO) No.10/2016 passed by the II Addl. Sessions & Special Judge, Vijayapur ('Special Court', hereafter).
2. The appellant was facing charges under Sections 5(m) of POCSO Act, 2012 which is punishable under Section 376 of IPC read with Section 6 of POCSO Act, 2012 and Section 3(2)(v) of SC/ST (PA) Act, 1989 and after trial, the Special Court had convicted the appellant for the offence punishable under Section5(m) of Protection of Children from Sexual Offences Act, 2012 which is punishable under Section 6 of Protection of Children from Sexual Offences Act, 2012 and sentenced him to undergo rigorous imprisonment for a period of 3 10 years with fine of Rs.10,000/- and with a default clause that in default of payment fine, he shall further undergo simple imprisonment for six months.
3. Brief facts:
In the present case, minor-child ('victim' hereafter), aged 07 years at the time of commission of offence i.e., on 10.01.2016, on which date it is alleged that the victim and her brother P.W.16-Shivanand had gone for collecting fire wood at about 4.30 p.m. It is further stated that appellant-Basappa knowing fully well the caste of the victim that she belongs to scheduled community, came over there in the guise of helping the victim and her brother P.W.16., while collecting fire wood, had taken the victim to the land bearing R.S.No.15, which is owned by P.W.13 and committed penetrative sexual assault on the victim.
The complainant being mother of the victim had returned to the house at 6.00 p.m. after attending coolie 4 work along with her sister-in-law and spotted her daughter on the lap of her grandmother and the victim was found crying, upon enquiry, the victim told that the appellant had taken her to the land by saying that he would help her in collecting fire wood and under that pretext committed rape on her and then P.W.16 upon hearing the screaming, came towards her and upon his coming, the appellant ran away from the place and upon perusing the inner wear of the victim, it was stained with blood, then the victim was taken to the Government Hospital, Muddebihal. Thereafter, the mother of the victim lodged a complaint as per Ex.P-1 and accordingly a case came to be registered in Crime No.8/2016 for the offences punishable under Section 376 of IPC and Section 5(m) of the Protection of Children from Sexual Offences Act, 2012 (hereafter, 'POCSO') & Sections 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter 'SC/ST' Act).5
4. After thorough investigation, charge sheet came to be filed for the aforesaid offences.
5. The Special Court after receiving the charge sheet, took cognizance of the offences referred to above against the appellant as per Section 190 of Cr.P.C and furnished copy of the charge sheet to the appellant as required under Section 207 of Cr.P.C., thereafter framed charges against the appellant for the offences as stated above, read over to him, who pleaded not guilty and claims to be tried, accordingly his plea was recorded and trial was fixed.
6. During the course of the trial, the prosecution has got examined 19 witnesses as P.Ws.1 to 19 and got marked Exs.P.1 to 26 and got marked 04 material objects as M.Os.1 to 4. After completion of prosecution evidence, appellant was examined under Section 313 of Cr.P.C. and appellant has denied all the incriminating circumstances and evidence put to him 6 and it is total denial of the case of the prosecution. The appellant did not choose to lead defence evidence and also has not produced any documents before the court during the course of 313 Cr.P.C. examination.
7. After considering and evaluating the evidences on record, the Special Judge had convicted the appellant for the offence under Section 6 of the POCSO Act and awarded sentence of Rigorous Imprisonment of 10 years and also sentenced him to pay fine of Rs.10,000/- with default clause, if failure of payment of fine, appellant shall undergo further simple imprisonment for a period of 06 months.
8. I have heard the learned counsel Sri Nandkishore Boob, appearing for the appellant and Sri Sharanabasappa M. Patil, learned High Court Government Pleader, appearing for the State. I have carefully gone through the materials available on record.
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9. Before making analysis of the evidence of prosecution, let me make a cursory look on the role of the witnesses and relations with the prosecutrix.
P.W.1 is the mother of the victim; P.W.2 is the spot panch witness; P.W.3 is the another panch witness; P.W.4 is the recovery panch witness to M.O.1 to 4; P.W.5 is the father of the victim and husband of P.W.1; P.W.6 is another panch to recovery as per Ex.P-7; P.W.7 is the grandmother of the victim and mother of P.W.5; P.W.8 is the sister of the P.W.1; P.Ws.9 & 10 are the relatives of P.Ws.1 & 5; P.W.11 is the independent witness; P.W.12 is the relative of the P.Ws.1 & 5 who had scribed the complaint; P.W.13 is the owner of the land on which the alleged offence was taken place; P.W.14 is the doctor; P.W.15 is the victim; P.W.16 is the brother of the P.W.15; P.W.17 is the PSI, who registered the crime and conducted part of investigation; P.W.18 is the PSI who conducted 8 investigation; P.W.19 is the Dy.S.P. who conducted substantial part of investigation and filed charge sheet.
Reg. Age of the Victim-P.W.15:
10. It is the case of the prosecution as per the complaint averment that the victim is 7 years old girl as on the date of the incident. This fact is not disputed by the appellant. P.W.1 in her complaint had stated that her daughter is aged about 7 years and the Special Judge has recorded the statement of the evidence of victim by mentioning her age as 8 years as at the time of the recording of evidence. Further, the prosecution has produced the Birth Certificate of the victim issued by the Headmaster of the Government Kannada Medium, Higher Primary School, Hallur as per Ex.P-23 in which date of birth of the victim is shown as 21.08.2008. The incident was occurred on 10.01.2016. Therefore, as on the date of the incident it is proved that the victim has not crossed 8 years of age and it is found 9 that the victim was hardly 7 and ½ years old as on the date of the incident. This factum is not disputed by the appellant. Therefore, the age of the victim stand proved to be less that 8 years and more particularly the victim was found to be 7 and ½ years as on the date of the alleged incident.
Reg. Evidences of Prosecution:
11. P.W.1 is the mother of the victim. As per evidence of P.W.17, PSI, who on the basis of complaint lodged by P.W.1, registered FIR as per Ex.P.25 against the appellant, Complaint is marked at Ex.P-1. P.W.12 is the Scribe of Ex.P-1. P.W.12, the Scribe deposed that P.W.1 is his cousin brother's wife and Ex.P-1 is in his writing and it bears his signature. P.W.12 had stated that he has written Ex.P-1 in Muddebihal P.S. But, stated that he did not know the contents of Ex.P-1 and further stated that he does not know whether P.W.1 has put her thumb impression to Ex.P-1 or not. P.W.1 had 10 completely turned hostile negating the prosecution case that the appellant had ravished her daughter-victim.
P.W.1 had completely resiled her previous complaint given before the police and stated that the police had come to her house and asked her to put her thumb impression on a white paper and accordingly she put her thumb impression on the paper. The complaint was confronted to her which is marked at Ex.P-1. Therefore, based on Ex.P-1, criminal law was set into motion and investigation was conducted.
12. P.W.1 turned hostile and after obtaining permission from the court, the learned Special Public Prosecutor cross-examined P.W.1 and suggestions were put to her which she denied. But, upon considering the evidence of P.W.17-PSI and P.W.12-Scribe of Ex.P.1 and evidence of P.W.1, one thing is least proved that FIR (Ex.P-25) was registered on the basis of the complaint- Ex.P1, which is written by the P.W.12 and Ex.P-1 11 contains the thumb impression of the P.W.1. Therefore, the genesis of the investigation based on this complaint is proved. P.Ws.2 and 3 are the spot panchas to Ex.P6 and P.Ws.4 & 6 are the panchas of recovery of M.Os.1 to 4 have turned hostile and did not support the prosecution case even though they have been put into cross-examination by the Special Public Prosecutor after obtaining permission from the court and suggestions were made to them, but these witnesses have denied the same.
13. P.W.5 is the father of the victim and husband of P.W.1, P.W.7 is the grandmother of the victim and mother of P.W.5, P.W.8 is the sister of the P.W.1, P.Ws.9 & 10 are relative of the P.Ws.1 & 5, all of them have turned hostile and have not supported the case of the prosecution.
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14. P.W.11 is the independent witness and she has narrated the relationship between herself, P.Ws.1, 5, 7, 8 and the victim. She has also turned hostile.
Reg. Evidence of P.W.15-Victim:
15. P.W.15 is the victim girl who had suffered sexual assault at the hands of appellant. As per the prosecution case, P.W.15 was aged 8 years when she has given evidence before the court and during the examination-in-chief she has turned hostile by saying that she does not know the appellant and had not committed anything against her and she has not stated anything before the police and had not gone to the hospital. But, P.W.15 had admitted in the examination- in-chief by identifying the photo when she has shown the place of offence committed by the appellant and also admitted to the fact that the persons who appears in the photograph are her brother, mother and two other persons along with the police and the police have written panchanama at the place and even though 13 P.W.15 had not stated that police have written the panchanama at the spot, but she has stated that the police have written something at the subject place and considering the tender age of P.W.15, she did not know what is the meaning of 'panchanama', therefore with all innocence P.W.15 stated that the police have written at the place of offence, which is shown by her to the police.
Cross-Examination:
16. P.W.15 was put into cross-examination since she turned hostile. During the course of cross- examination by the learned Special Public Prosecutor, she had admitted that she and her elder brother Shivnand and Prashant had been to near Kashi Muthya Temple for the purpose of collecting fire wood and it was 4.30 p.m. by then. Further P.W.15, admitted that the house of the appellant is situated behind the said temple. She further admitted that she and his brother and Prashant were collecting the firewood at that time appellant came. Further to the next question P.W.15 14 had stated with all emotions that the appellant be put into jail and when a question posed that why the appellant be put into jail, the victim with all her innocence stated that since the appellant had given trouble to her. Then putting a specific question what the appellant did, P.W.15 had stated that she does not remember since after the appellant giving trouble to her, her memory power is decreased. The above said evidence was recorded on 10.11.2016.
17. Once again P.W.15 was recalled to the court on 05.12.2016 and the Special Public Prosecutor had cross-examined P.W.15, who denied all the suggestions put to her. I am surprised that why once again the prosecutrix was called on 05.12.2016 when her evidence is completed on 10.11.2016 itself. The learned Special Public Prosecutor had violated the mandatory provision which is enunciated in Section 33 of the POCSO Act. Sub-section 5 of Section 33 of the Act 15 stipulates that the Special Court shall ensure that the child shall not be called repeatedly to testify in the court. Perhaps the learned Special Judge and learned Special Public Prosecutor have lost sight of these glaring provisions.
18. Even P.W.15 has turned hostile, but whatever part of the evidence which supports the prosecution case can be relied and believed. The maxim false in uno falsus in omnibus is not applicable in India. It cannot be said that if the prosecution witnesses have turned hostile and then entire prosecution case washed away. During the course of the chief-examination or in cross-examination of that hostile witness, whatever evidence supports the prosecution case then that can be relied and believed. The hostile witness cannot take away the entire prosecution case and liable to be thrown away. In this regard, the learned Special Judge had relied on the principle of law laid down by the Hon'ble 16 Apex Court while considering the evidence of the witnesses who have turned hostile. In this regard, I place reliance on the judgment of Hon'ble Apex Court in the case of Sat Paul v. Delhi Administration [AIR 1976 SC 294], wherein, at paras 28 to 38, 45, 46, 48, 49, 50 and 51, Their Lordships were pleased to observe as follows ;-
"28. Relying on Jagir Singh v. State (AIR 1975 SC 1400) ibid, Mr. Anthony submits that when a prosecution witness, being hostile, is cross-examined by the Public Prosecutor with the leave of the Court, his entire evidence is to be discarded, as a matter of law.
29. Since this vexing question frequently arises, and the observations made by this Court in Jagir Singh's case (ibid) do not appear to have been properly understood, it will be appropriate to clarify the law on the point.
29A. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English Law. At Common Law, if a witness exhibited manifest antipathy, by his demeanour, answers and attitude, to the cause of the party calling him, the party was not, as a general rule, permitted to contradict him with his previous inconsistent statements, nor allowed to impeach his credit by general evidence of bad character. This rule had its foundation on the theory that by calling the witness, a party represents him to the Court as worthy of credit, 17 and if he afterwards attacks his general character for veracity, this is not only mala fides towards the Court, but, it "would enable the party to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him with the means in his hand of destroying his credit if he spoke against him" (see Best on Evidence, p. 630, 11th Edn.). This theory or assumption gave rise to a considerable conflict of opinion as to whether it was competent for a party to show that his own witness had made statements out of Court inconsistent with the evidence given by him in court. The weight of the ancient authority was in the negative.
30. In support of the dominant view it was urged that to allow a party directly to discredit or contradict his own witness would tend to multiply issues and enable the party to get the naked statement of a witness before the jury, operating in fact as substantive evidence, that this course would open the door wide open for collusion and dishonest contrivance.
31. As against this, the exponents of the rival view, that a party should be permitted to discredit or contradict his own witness who turns unfavourable to him argued that this course is necessary as a security against the contrivance of an artful witness, who otherwise might recommend himself to a party by the promise of favourable evidence and afterwards by hostile evidence ruin his cause. It was reasoned further "that this is a question in which not only the interests of litigating parties are involved, but also the more important general interests of truth, in criminal as well as in civil proceedings, that the ends of justice are best attained by allowing a free and ample scope for scrutinising evidence and estimating its real value, and that in the administration of criminal justice more especially, 18 the exclusion of the proof of contrary statements might be attended with the worst consequences".
Besides, it by no means follows that the object of a party in contradicting his own witness is to impeach his veracity, it may be to show the faultiness of his memory" (see Best, page 631, 11th Edn.).
32. The rigidity of the rule prohibiting a party to discredit or contradict its own witness was to an extent relaxed by evolving the terms "hostile witness" and "unfavourable witness" and by attempting to draw a distinction between the two categories. A "hostile witness" is described as one who is not desirous of telling the truth at the instance of the party calling him, and an 'unfavourable witness' is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves an opposite fact (see Cross on Evidence, p. 220, 4th Edn., citing Stephen's Digest of the Law of Evidence).
33. In the case of an 'unfavourable witness', the party calling him was allowed to contradict him by producing evidence aliunde but the prohibition against cross-examination by means of leading questions or by contradicting him with his previous inconsistent statements or by asking questions with regard to his discreditable past conduct or previous conviction, continued. But in the case of a 'hostile' witness, the Judge could permit his examination-in-chief to be conducted in the manner of cross-examination to the extent to which he considered necessary in the interests of justice. With the leave of the court, leading questions could be put to a hostile witness to test his memory and perception or his knowledge of the facts to which he was deposing. Even so, the party calling him, could not question him about his bad antecedents or previous 19 convictions, nor could he produce evidence to show that the veracity of the witness was doubtful. But the position as to whether a previous inconsistent statement could be proved against a hostile witness, remained as murky as ever.
34. To settle the law with regard to this matter, Section 22 of the Common Law Procedure Act, 1854 was enacted. It was originally applicable to civil proceedings, but was since re- enacted in Section 3 of the Criminal Procedure Act, 1865 and extended in identical terms to proceedings in criminal courts as well.
35. Section 3 provides:
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the Judge, prove adverse, contradict him by other evidence, or by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.
(Emphasis added)
36. The construction of these provisions, however, continued to cause difficulty, particularly in their application to 'unfavourable' witnesses. In Greenough v. Eccles (1859) 5 CBNS 786 these provisions were found so confusing that Cockburn C. J. said that "there has been a great blunder in the drawing of it, and on the part of those who adopted it.
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37. To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross- examine his own witness by a party is not conditional on the witness being declared "adverse" or "hostile". Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-
examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v.
Prasannamoyi AIR 1922 PC 409. The discretion conferred by Section 154 on the court is unqualified and untrammelled and is apart from any question of "hostility". It is to be liberally exercised whenever the court from the witnesse's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as "declared hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.
38. It is important to note that the English statute differs materially from the law contained 21 in the Indian Evidence Act in regard to cross- examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Section 155. Under the English Act of 1865, a party calling the witness, can "cross- examine" and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be 'adverse.' As already noticed, no such condition has been laid down in Sections 154 and 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the Court, the exercise of which is not fettered by or dependent upon the "hostility" or "adverseness" of the witness. In this respect, the Indian Evidence Act is in advance of the English law. The Criminal Law Revision Committee of England in its 11th Report, made recently, has recommended the adoption of a modernised version of Section 3 of the Criminal Procedure Act. 1865, allowing contradiction of both unfavourable and hostile witnesses by other evidence without leave of the court. The Report is, however, still in favour of retention of the prohibition on a party's impeaching his own witness by evidence of bad character."
xxxxxxx "45. After answering in the negative, the three questions viz., whether the evidence of a witness treated as 'hostile' must be rejected in whole or in part, whether it must be rejected so far it is in favour of the party calling the witness, whether it must be rejected so far as it is in favour of the opposite party, the learned Chief Justice proceeded:
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"...the whole of the evidence so far as it affects both parties favourably or unfavourably must go to the jury for what it is worth... ... ... If the previous statement is the deposition before the committing Magistrate and if it is put in under Section 288, Criminal Procedure Code, so as to become evidence for all purposes, the jury may in effect be directed to choose between the two statements because both statements are evidence of the facts stated therein. But in other cases the jury may not be so directed, because prima facie the previous statement of the witness is not evidence at all against the accused of the truth of the facts stated therein. The proper direction to the jury is that before relying on the evidence given by the witness at the trial the jury should take into consideration the fact that he made the previous statement, but they must not treat the previous statement as being any evidence at all against the prisoner of the facta therein alleged.
... ... ... ... In a criminal case, however, the previous unsworn statement of a witness for the prosecution is not evidence against the accused of the truth of the facts stated therein save in very special circumstances, e. g., as corroboration under Section 157 of his testimony in the witness- box on the conditions therein laid down. If the case be put of the previous statement having been made in the presence and hearing of the accused, this fact might under Section 8 alter the position; but the true view even then is not that the statement is evidence of the truth of what it contains, but that if the jury think that the conduct, silence or answer of the prisoner at the time amounted to an acceptance of the statement or some part of it, the jury may consider that acceptance as an admission (The King v. Norton, Percy William Adams, (1910) 2 KB 496 and (1923) 17 Cri App Rep 77). But apart from such special cases, which attract special principles, the 23 unsworn statement, so far as the maker in his evidence does not confirm and repeat it, cannot be used at all against the accused as proof of the truth of what it asserts."
46. We are in respectful agreement with this enunciation. It is a correct exposition of the law on the point."
xxxx "48. In the case of an unfavourable witness, even in England the better opinion is that where a party contradicts his own witness on one part of his evidence, he does not thereby throw over all the witness's evidence, though its value may be impaired in the eyes of the court. (Halsbury, 3rd Edn. Vol. 15, Para 805).
49. In Bradley v. Ricardo (1831) 8 Bing 57 when it was urged as an objection that this would be giving credit to the witness on one point after he has been discredited on another, Tindal C. J. brushed it aside with the observation that "difficulties of the same kind occur in every cause where a jury has to decide on conflicting testimony".
50. In Narayan Nathu Naik v. Maharashtra State the court actually used the evidence of the prosecution witnesses who had partly resiled from their previous statements, to the extent they supported the prosecution, for corroborating the other witnesses.
51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as Washed off the record altogether. It is for the Judge of fact to consider in each case whether as 24 a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.""
19. Further, I place reliance on the decision of Hon'ble Apex Court on the principle that the court to consider both favourable and unfavourable part of the evidence of the hostile evidence, in the case of State v.
Sashibhusan Harichandan and another reported in 1963(1) Crl.LJ. 550, wherein at para 13, Their Lordships were pleased to observe as follows ;-
"13. If the evidence of a witness is partly false, would the evidence be discarded as a whole? This is embodied in the maxim "falsus in uno fal-sus in omnibus". The answer to this was admirably presented in Sukha v. State of Rajasthan (S) AIR.1956 SC 513. Mr. Justice Bose speaking for the Court put it as follows:25
"The argument, for all its repetition, length and eloquence, was the hackneyed one that when one part of a witness's evidence is disbelieved, it is unsafe to act on the rest of his testimony. The answer is equally hackneyed, namely, that Judges of fact have the right to do this."
In Nisar Ali v. State of U.P. their Lordships laid down that this maxim has not received general acceptance in different jurisdictions in India; nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to that in such cases the testimony may be disregarded and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances but it is not what may be called a mandatory rule of evidence. This principle is expressed in another form by saying that the Court must be careful to examine the entire evidence and must distinguish the chaff from the grain and must not take to an easy course of discarding the entire prosecution case merely because a part of the story is false. Judged in this light it cannot be said from the evidence on record that the evidence of the prosecution witnesses implicating Parsuram is false. From the mere fact that the evidence regarding poking and trampling has not been corroborated by the medical evidence, the entire prosecution case cannot be said to be false."
20. Therefore, based on the principle of law laid down by the Hon'ble Apex Court in the cases stated supra, just because the witnesses have turned hostile that cannot be made a ground to reject the entire 26 prosecution case and whatever evidence which supports the prosecution case can be accepted. I am also of the conscious of the fact that whatever portion of evidence of P.W.15 supports the case of the prosecution cannot be out-rightly be accepted, but the said evidence revealed in favour of the prosecution shall be corroborated by other evidences. Considering the factors that the witness who had stated both aspects one is negating the prosecution case and another one is incident of crime was occurred, therefore, under these circumstances, corroboration of other evidence is necessary before taking the decision of accepting the evidence of P.W.15, which supports the prosecution case.
Reg. Evidence of Doctor-P.W.14:
21. In this regard, the evidence of P.W.14, Doctor is to be considered. In her evidence, P.W.14 deposed that she was working as Senior Specialist at District Hospital, Vijayapura. On 11.01.2016, a Women 27 Head Constable brought the victim in the present case aged about 7 years accompanied by her mother with history of alleged sexual assault on 10.01.2016 at 4.30 p.m. Further deposed that the victim and her mother gave history that when the victim along with her brother were collecting the firewood, the victim was called by one Basappa (appellant) by saying that he would give logs/sticks and forcibly took her to the field and her brothers were beaten by him and had sexual intercourse with her. Further, P.W.14 had examined the victim and upon examination of genital she has noticed that swelling of labia majora were present, redness and odema of mucous membrance of vagina. Abrasions 3 to 4 CMs over the inner aspect of forchetta. Hymen irregular tear present. Bleeds on touch present. Accordingly, she has issued Medical Certificate as Ex.P-15 and later on after receipt of the FSL report, she has given final opinion as per Ex.P-17 that there is a clinical signs of penetration present. As per Ex.P-16- 28 FSL report article Nos.3 and 4 were detected with presence of blood, these article Nos.3 and 4 are the one panti and one frock. Upon considering this evidence of P.W.14, there is no much cross-examination to the effect of discrediting the evidence of P.W.14. There is only one suggestion put to P.W.14 that due to itching also redness is possible and also abrasions. The said suggestion is found to be general in nature, but the evidence given by P.W.14 in her examination-in-chief is found to be intact and believable that what victim has suffered was noticed and accordingly she has given report as per Ex.P-15 and deposed before the court. The evidence of the P.W.14, the doctor is found to be relevant as per Section 6 of the Indian Evidence Act on the principle of res gestae. On 10.01.2016 at 4.30 p.m. the alleged incident was happened against the victim and then on 11.01.2016 (time of examination is not mentioned), P.W.14 had received history of assault and it was told that on 10.01.2016 at 4.30 p.m. the 29 appellant had ravished the victim and accordingly she has noted down in the Ex.P-15 and stated before the court which proves the facts forming part of same transaction attracting the principle of res gestae. P.W.14 stated that the mother of the victim and victim both have stated the history of assault and accordingly she has noted down the report as per Ex.P.15 and accordingly deposed before the court. Therefore, even though the clinical examination conducted by the doctor is not fact in issue which is disputed, but this fact that the victim was taken to doctor-P.W.14 and she had received the history of sexual assault and upon examination she has found that the victim was found having suffered sexual assault. Therefore, this piece of evidence as stated by the doctor, P.W.14 and as recorded in the certificate Ex.P-15 corroborates the evidence of victim what she has told in the cross- examination that the victim by telling that the appellant had given trouble to her and appellant be put into jail. 30 This is during utterance of words made by the P.W.15 victim during the trial before the Special Court that the appellant be put into jail and since the appellant had given trouble to her and which she has given with innocence at her tender age and therefore this part of evidence of P.W.15 is corroborated by the evidence of P.W.14.
22. The learned counsel for the appellant argued that P.W.15 had not stated clearly what the appellant did to her and simply P.W.15 had deposed that the appellant has given trouble to her and appellant be put into jail, this deposition of P.W.15 does not prove that the appellant committed the offence alleged. I am unable to accept this submission made by the learned counsel for the appellant for the reason as discussed above the victim is only 7 and ½ years at the time of alleged incident and she does not know anything about the sexual assault that at that tender age victim having full of innocence, therefore just because P.W.15 had not 31 specifically stated what has been committed against her that does not mean that the appellant had not committed the offence alleged against him. The evidence of child witness in this regard is considered carefully and cautiously. Therefore, in this regard, the Special Court has rightly appreciated the evidence of P.W.15 along with evidence of doctor P.W.14 in the right perspective keeping the principle laid down by the Hon'ble Apex Court. Therefore, from the evidence of P.W.15 coupled with the evidence of P.W.14, the prosecution is able to prove the guilt of the appellant for the charges leveled against him.
Evidence of PW.13 ( Owner of land) :-
23. P.W.13 is the owner of the land and she has turned hostile, during the examination-in-chief, but when the Special Public Prosecutor had put the P.W.13 to cross-examination after obtaining the permission from the court, P.W.13 had admitted the suggestions as true that she came to know on 10.01.2016 that the 32 victim has been raped on her land by the appellant and also she had admitted the suggestions as true that regarding this incident the police had enquired her and recorded her statement. Upon considering this portion of admission given by P.W.13 in the course of cross- examination by the Special Public Prosecutor that it is revealed and proved that P.W.13 had come to know this fact of ravishing P.W.15 on 10.01.2016 itself on her land by the appellant. Therefore, the evidence of this witness is also found to be relevant as per Section 6 of the Indian Evidence Act based on the principle of res gestae because immediately after the incident P.W.13 came to know of this incident that the appellant had ravished the victim and there is no gap of time between the occurrence of the incident and receiving the information by P.W.13, who stated in her evidence that she came to know this fact on 10.01.2016 and the incident was occurred on 10.01.2016 at 04.30 p.m. Therefore, this is also one of the circumstances proves 33 the prosecution case that the appellant had committed the offence alleged against P.W.15. The evidence of P.W.15-victim is corroborated by the evidence of P.W.13.
24. The another circumstances to be considered in the present case is that soon after the incident the police have made arrangement of recording of the statement of the victim as per Section 164(5) of Cr.P.C. and as per Section 25 of the POCSO Act. The prosecution has produced the statement of the victim as per Ex.P-19, which is recorded by the learned Magistrate. No doubt, the statement given by the victim as per Section 25 of the POCO Act r/w Section 164(5) of Cr.P.C. is not substantive piece of evidence, but this can be used for the purpose of corroboration by the prosecution or for the purpose of contradictions by the defence. The Hon'ble Supreme Court was pleased to deal with regard to recording of statement under Section 164 of Cr.P.C. elaborately in the case of Ram Kishan 34 Singh vs. Harmit Kaur reported in AIR 1972 SC 468. There is no necessity of examining the learned Judicial Magistrate before the Special Court during the trial testifying that the learned Magistrate has recorded the statement of the victim. The learned Judicial Magistrate has recorded such statement either under Section 25 of the POCSO Act or under Section 164(5) of Cr.P.C during the course of his official capacity. Therefore, whatever statement recorded by him is a public document and in such an event such statement is to be construed as public document, then to prove the aspect of recording the said statement, summoning of the learned Judicial Magistrate before the Special Court is not necessary and essential. The production of such statement recorded either under Section 25 of the POCSO Act or under Section 164(5) of Cr.P.C. alone is sufficient during the trial. I am of the conscious of the fact and law that such statement recorded either under Section 25 of the POCSO Act or under Section 164(5) of Cr.P.C. is not a 35 substantive piece of evidence as per the dictum of the Hon'ble Apex Court that such statement can be used for the purpose of corroborating statement of witness or for contradiction purpose by the defence (Ram Kishan Singh vs. Harmit Kaur [1972) 3 SCC 280]. Therefore, considering the Ex.P-19, statement which has been recorded by the learned Judicial Magistrate in his official capacity, the prosecution has used this statement to corroborate the evidence of P.W.15-victim that what she has told during her evidence that the appellant had given trouble to her, what trouble the appellant has given can be gathered from the statement given by the victim-PW.15 as per Ex.P-19. This Ex.P-19 for corroborative purpose as required under Section 157 of Evidence Act. and at the same time the defence has not used this statement for contradiction purpose. It is only the defence of the appellant that the victim has not given such statement before the learned Judicial Magistrate. Just because the denial of recording the 36 statement by the appellant is not amounting to contradicting the statement. Even though the said suggestion may be amounting to contradiction, but at the same time the evidence of P.W.15 is corroborated by this Ex.P-19, statement which has been recorded at the say of P.W.15 by the learned Judicial Magistrate.
25. Upon considering the Ex.P-19, it is revealed that P.W.15 has clearly stated what the appellant had committed against her. This statement was recorded on 14.01.2016 after four days from the date of commission of offence. Therefore, this previous statement of the P.W.15 given before the learned Judicial Magistrate corroborates the version of the P.W.15 what she has deposed against the appellant by uttering the words as discussed above. To prove that such statement is recorded either as per Section 25 of the POCSO Act or under Section 164 of Cr.P.C., summoning of the Judicial Magistrate and examining before the Special 37 Court during the trial is not necessary and essential as stated above.
26. P.W.15 had stated in the evidence that she has shown the place of the offence when the police had come to the place of incident and in the photograph she along with her mother, brother and two other persons and police were there. Therefore, the evidence of P.W.15 showing the place of incident as per the photograph taken at Ex.P-2 is corroborated by the evidence of P.W.13, who is the owner of the land on which the alleged incident was taken place.
27. Further upon considering the evidence of other circumstantial witnesses and the police officer, P.W.17 is the PSI, who had deposed that on 10.01.2016 at 21.00 hours he received MLC intimation from the Muddebihal Hospital and immediately he went to the Hospital and enquired the complainant-P.W.1 and she has given her written complaint, scribed by P.W.12 and 38 received the same and came back to the police and registered the case at 10.30 p.m. and accordingly issued FIR to the court. Regarding this, there is no much cross-examination to disbelieve this evidence regarding registration of crime against the appellant.
28. P.W.18 is PSI who deposed that on 13.01.2016 as per the direction of the P.W.19, he has recorded the statement of P.W.1 as per Ex.P-18. Nothing much is revealed during her cross-examination to discredit this evidence.
29. P.W.19 is Dy.S.P. who conducted the investigation and filed charge sheet stating that on 11.01.2016 as per orders of the Superintendent of Police, Vijayapura took up further investigation from P.W.17, PSI and recorded the statement of P.Ws.7 to 12. Further on 13.01.2016, the victim was discharged from the hospital and she took him to the scene of occurrence and drawn panchanama as per Ex.P-2 39 between 9.30 a.m. and 10.30 a.m. in the presence of P.Ws.2 and 3. Further stated that during the course of panchanama, photographs Exs.P-2 to 4 were taken. Further, he had recorded further statement of P.Ws.1 and 13, and 5 and also got recorded additional statement of the victim and further made arrangement to get statement from learned Judicial Magistrate under Section 164 of Cr.P.C., then he had obtained document of record of right in which the alleged offence had taken place and also received the medical report and FSL report and submitted charge sheet.
30. The sequence of events stated by the P.W.19- Investigating Officer are not found to be having discredited during the course of cross-examination. The investigation conducted by P.W.19 is found to be a fair one without there being any embellishment. P.W.19 who deposed regarding the sequence of events in the course of investigation. Therefore, the official evidence of P.Ws.17 to 19 are found to be believable. Therefore, 40 from the evidence as discussed above, the prosecution is able to prove the guilt of the appellant beyond all reasonable doubt that the appellant had committed the offence alleged and in this regard the learned Special Court had rightly appreciated the evidence placed on record and correctly came to the conclusion that the appellant had committed the offence alleged as per charges leveled against him.
31. Further, the legal provisions as articulated in the POCSO Act are to be considered herein in the background of the case as the Special Court omitted to apply its mind in the present case.
32. Section 29 of the POCSO Act stipulates regarding presumption as to certain offences. For ready reference, Section 29 of the POCSO Act is extracted 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, 41 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
33. Section 30 of the POCSO Act stipulates regarding presumption regarding culpable mental State which reads as follows;
"30. Presumption of culpable mental state.1(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 charges as an offence in that prosecution.
(2) For the purpose 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 42 and the belief in, or reason to believe, a fact"
34. Therefore, as per Section 29 of the POCSO Act, a presumption can be raised so far as commission of offences under Section 3, 5, 7 & 9 of the POCSO Act and the Special Court shall presume that such person has committed or abetted or attempted to commit the offence unless the contrary is proved. In the present case, the special Court has not discussed anything about this legal provision as enunciated under the provisions of the POCSO Act.
35. Upon considering the factual matrix involved in the present case, a presumption can be raised that the accused has committed the offence alleged, this presumption can be raised after the facts in issue are proved by the prosecution as discussed above. There is no straightaway jacket formula to raise the presumption, but the prosecution has to establish the fact in issue that such and such offence has been 43 committed, then presumption can be raised. Accordingly, the prosecution in the present has established the fact that the appellant has committed the offence. If the accused is able to rebut presumption by way of placing probable evidence that is sufficient to say that presumption is successfully rebutted. For rebutting presumption by accused, there is no need to rebut beyond reasonable doubt, but mere believable probable evidence is/are sufficient. But the appellant has not placed any contra evidence to rebut this presumption in the present case.
36. Further Section 30 of the POCSO Act deals regarding culpable mental State of the accused and raising the presumption as per explanation provided therein that culpable mental state includes intention, motive, knowledge of a fact and belief therein or reasons to believe a fact. The culpable mental state is a collective intention or knowledge or motive in the mind of the 44 person who is prosecuted before the court having committed such crime. The culpable mental state of the appellant can be presumed on the basis of proven facts which is proved in the given case which can be by beyond reasonable doubt. But such culpable mental state cannot be presumed by preponderance of probability. Applying this legal provision in the present case, the prosecution has proved the fact in issue that the appellant had committed offence beyond all reasonable doubt and therefore a presumption can be raised regarding culpable mental state of the appellant. As discussed above, culpable mental state is intention or motive or knowledge. In the present case, P.W.15 had been to collect firewood near Kashi Muthya temple and therein the appellant approached her as it is proved by the evidence of P.Ws.13 and 15 and the appellant had told the victim that he would give more sticks and has taken the victim along with him on the land of P.W.13 and ravished the victim therein. When P.W.15 45 had been to collect firewood then the appellant had lured a tender aged victim of 7 and ½ years old by telling he would give more sticks and accordingly P.W.15 by respecting the words of the appellant went along with appellant, this shows the intention on the part of the appellant to take away the victim from others and to lonely place to ravish the P.W.15 and this is culpable mental state on the part of the appellant to commit crime on the victim in the present case.
37. The Special Court had failed to apply its mind on these two legal provisions. But this court being the appellate Court, considering the entire prosecution case as discussed above on examination of the records, is of the opinion that the appellant had failed to rebut the presumption which are accrued in favour of the prosecution, as discussed above.
38. Furthermore, the said court had not applied its mind regarding providing legal assistance to the 46 victim or parents of the victim as per Section 40 of the POCSO Act, which confers a right on the victim or her parents to take assistance of the legal counsel of their choice of any offence committed under the POCSO Act or if the family or guardian of the victim child are unable to appoint their own legal counsel, then it is the duty cast on the Legal Services Authority to appoint an advocate on behalf of the victim from the stage of registration of crime till its logical conclusion. But, in the present case, the Special Court has not made any such endeavour in this regard upon perusing the entire records put forth before this court while considering the present appeal. Because of this reason, the parents of the victim, grandmother of the victim and other relatives might have been turned hostile. A right conferred on the guardian, parent of the child to take assistance of an advocate from the Legal Services Authority, but the Special Court has failed to pass order in this regard, 47 which resulted into turning the witnesses hostile in the present case.
The mandatory procedures to be followed by the Special Courts :-
39. Further, upon considering the records of the Special Court, it is found that the Special Court had not followed the mandatory provisions as enunciated in Section 35 of the POCSO Act. Section 35 of the POCSO Act stipulates that the Special Court shall record the evidence of the child within a period of 30 days after taking the cognizance of the offence and if not recorded the evidence within a period of 30 days from the date of cognizance of offence, then the Special Court has to assign reasons in writing for such delay. In the present case, upon considering the records, the Investigating Officer had filed charge-sheet and the learned Special Judge has taken the cognizance of offences as against the accused on 23.03.2016, taking into account the said 48 date, the Special Court ought to have recorded the evidence of the victim-P.W.15 on or before 23.04.2016, but the Special Court recorded the evidence of victim on 10.11.2016, i.e., after lapse of eight months. Therefore, this mandatory provision is also not followed by the Special Court. Under these circumstances as stated supra, certain guidelines are necessarily to be issued to the Special Courts while trying the offences under the provisions of POCSO Act, which are articulated as follows;
i) Soon after receipt of the complaint and FIR, the Special Judge, shall pass order providing necessary medical treatment and if necessary to pass order of awarding interim compensation so as to meet the medical expenses and necessary rehabilitation of the child [Sec. 27 and Rule 7 of POCSO Rules, 2012];
ii) Soon after taking cognizance of the offence alleged against the accused, the Special Court shall record the evidence of the child 49 within a period of 30 days from the date of taking cognizance of the offence. If there is delay in recording the evidence of child within a period of 30 days then the Special Court shall assign reasons for delay in writing [Sec.35 of POCSO Act];
iii) The Special Court shall explain the parents or guardian of the child of their right to take assistance of any legal counsel of their choice. If the family or guardian of the child are unable to take the legal assistance of their choice, then the Special Court shall provide services of a lawyer from the Panel List of District Legal Services Authority from the date of registration of crime till delivery of judgment upon conclusion of trial. [Sec.40 of POCSO Act and Rule 4(7) of POCSO Rules];
iv) The Special Court shall conduct the trial in camera and in the presence of the parents of the child or in presence of any other persons under whom the child has trust or 50 confidence [Sec. 37 of POCSO Act & Section 327(2) of Cr.P.C];
v) The Special Court may take assistance of Translator or interpreter having such qualifications, experience and on payment of such fees as prescribed, while recording the evidence of the child and if the child has a mental or physical disability, the Special Court may take the assistance of the special educator or any person familiar with the manner of communication of the child or an expert in that field, having such qualifications, experience and on payment of such fees, while recording the evidence of the child. [Sec.38 of POCSO Act];
vi) The Special Court shall take assistance of non-governmental organizations, professionals and experts or persons having knowledge of psychology, social work, physical health, mental health during the pre-trial and at the trial stage to assist the child. [Sec.39 of POCSO Act];
51
vii) While recording the evidence of child, it shall
be ensured that the Special Public
Prosecutor and counsel appearing for the accused shall not directly put questions to the child, but communicate the questions to the Special Court and then the Special Court put those questions to the child. [Sec.33 (2) of POCSO Act];
viii) The Special Court, if it considers necessary, permit frequent breaks for the child during the trial. [Sec. 33(3) of POCSO Act];
ix) The Special Court shall create a child-
friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court and also ensure that the child should not see the accused at the time of recording the evidence [Sec. 33(4) of POCSO Act];
x) The Special Court shall ensure that the child should not be called repeatedly to testify in the court [ Sec. 33 (5) of POCSO Act];
52
xi) The Special Court shall not permit aggressive questioning or character assassination of the child and shall ensure the identity of the child and dignity to be maintained at all times during the trial. The Special court shall ensure that the identity of the child shall not be disclosed at any time during the course of the investigation or trial. If such disclosure is in the interest of child then, the Special Court may permit such disclosure. [Sec. 33(6) and 33(7) of POCSO Act];
xii) The Special Court is having power of all the powers of Court of Sessions and shall try as if it is a Court of Sessions as per the provisions of the Code of Criminal Procedure, 1973. (Sec.33(9) of POCSO Act];
xiii) Where an offence is committed under this Act by a child, such child shall be dealt with under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 and if any question arises before the Special Court whether person is child or not such 53 question shall be determined by the Special Court and record its reasons in writing for such determination [Sub-section (1) and (2) of Section 34 of POCSO Act];
xiv) The Special Court shall follow Rule 7 of the POCSO Act scrupulously while determining and awarding interim compensation also recommendation for awarding compensation after conclusion of trial and while delivering the judgment [Rule 7 of POCSO Rules].
40. As per the dictum of the Hon'ble Apex Court in the case of Mahender Chawla & Ors. vs. Union of India & Ors. reported in 2019 (14) SCC 615 that during every trial, witnesses are to be protected as per Witness Protection Scheme, 2018 as per the guidelines issued by the Hon'ble Apex Court. The Hon'ble Apex Court while expressing its anguish that the witnesses are turning hostile frequently and are resiling from their previous statements, which results in collectively crumbling down the criminal justice system in the 54 country. The Hon'ble Apex Court has observed the important role of witnesses by saying that "the witnesses are eyes and ears of justice". Therefore, when these eyes and ears of justice are not properly protected then the entire criminal trial would be a mere farce. Therefore, under these circumstances, the Hon'ble Apex Court while dealing with elaborately the importance of witnesses and their role in the trial and turning hostility how it affects entire criminal justice system and affect the health condition of the society and nation. Therefore, considering all these facts, the Hon'ble Apex Court were pleased to issue direction to the State, Center and Union Territories to prepare Witness Protection Scheme to be followed by all the trial courts in the country. There are various responsibilities fixed on the Deputy Commissioner, Principal District & Sessions Judges, the Judges. Public Prosecutors and other concerned Stake Holders to take recourse of following the Witness Protection Scheme, 2018 as 55 observed by the Hon'ble Apex Court in the said judgment. Therefore, I am of the opinion that all the concerned in the State shall scrupulously make arrangement for implementation of Witness Protection Scheme in every trial.
41. For the foregoing reasons and observations made, I am of the opinion that the prosecution has proved the guilt of the appellant beyond all reasonable doubt and the Special Court had rightly appreciated the evidence on record and therefore the conviction recorded by the Special Court is liable to be confirmed along with the order of sentence imposed against the appellant. Therefore, the present appeal is liable to be dismissed as devoid of merits. Hence, I pass following:
ORDER The appeal filed by the appellant is hereby dismissed.
The judgment of conviction dated 16.03.2017 and order of sentence dated 56 18.03.2017 passed by the II Addl. Sessions & Special Judge, Vijayapura in Special Case (POCSO) No.10/2016 is hereby confirmed.
In view of disposal of appeal, I.A.1/2019 for suspension of sentence and bail does not survive for consideration, accordingly same stands disposed off.
The Registrar General of this court is hereby requested to circulate this judgment to all the Courts in District Judiciary for taking recourse in their respective Districts making arrangement for implementation of Witness Protection Scheme, 2018 as per the guidelines of the Hon'ble Apex Court in Mahender Chawla's case (supra).
Sd/-
JUDGE BL