Sikkim HC Acquits Man in POCSO Case | Reliance on Victim’s Vacillating Testimony Would Be a Travesty of Justice
Safiya Malik
The High Court of Sikkim Division Bench of Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan set aside a conviction under the Protection of Children from Sexual Offences Act, 2012, and directed the immediate release of the appellant. The Court held that the prosecution failed to prove the charges beyond reasonable doubt, particularly citing inconsistencies in the victim's testimony and the absence of credible evidence establishing the paternity of the child born from the alleged incident.
The Court concluded that despite the minor status of the alleged victim, her testimony could not be relied upon due to inherent contradictions. Furthermore, the lack of DNA evidence linking the appellant to the child and the non-examination of a crucial prosecution witness raised serious questions about the reliability of the prosecution's case. The Court directed that the appellant be acquitted of all charges and released forthwith if not required in any other case. The sentence imposed by the Trial Court was also ordered to be set aside, along with reimbursement of any fine paid by the appellant.
The case stems from an incident reported on November 5, 2020, when the mother of the victim lodged a First Information Report (FIR) alleging that her 15-year-old daughter had been sexually assaulted by the appellant, leading to pregnancy. The FIR, marked as Exbt P3/PW1, indicated that the victim had concealed the incident for several months due to fear of social stigma.
Following registration of the FIR under Section 6 of the POCSO Act, 2012, the case was investigated by PW-11, the Investigating Officer. Upon completion of the investigation, a charge sheet was filed before the Learned Trial Court under Section 6 of the POCSO Act, 2012. The appellant was subsequently charged under Section 5(j)(ii) of the POCSO Act, 2012, punishable under Section 6, and also under Section 376(3) of the Indian Penal Code, 1860.
The appellant pleaded not guilty, and eleven prosecution witnesses were examined. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, and denied all allegations, claiming false implication.
The Trial Court found the appellant guilty under Section 3, punishable under Section 4 of the POCSO Act, 2012, and sentenced him to twenty years of rigorous imprisonment along with a fine of ₹2,000. The conviction was based on the testimony of the victim and other corroborative evidence including a birth certificate and entries in the Live Birth Register.
The appeal was filed by the appellant challenging the conviction and sentence. The appellant contended that the prosecution failed to prove the victim's age, with PW-1 (victim’s mother) being unable to specify the exact year of birth. She contradicted herself under cross-examination by stating both that she knew the birth date and that her daughter turned 18 in June 2020, whereas PW-2 (the victim) claimed to be 17 years old. The appellant further argued that the Anganwadi worker who allegedly witnessed the birth registration was not examined. Questions were also raised about the authenticity of the birth certificate and discrepancies in the place of birth.
The appellant also cited that the DNA report was not furnished by the prosecution. While the victim claimed blood samples of both her and the child were taken, the Investigating Officer stated that the baby had already been adopted by the time blood samples could be collected, thereby failing to establish paternity.
Additionally, PW-3, a prosecution witness, stated that the victim was his former girlfriend, a fact unchallenged during cross-examination, yet not investigated further by the prosecution. The appellant maintained that these lapses rendered the prosecution case unproven in terms of law.
The State contended that the victim's age was substantiated through her mother’s testimony, the birth certificate (Exbt P1/PW1), and corroboration from the Live Birth Register (Exbt. P-10/PW-8). The gestational timeline as per the FIR also supported the claim of the appellant's involvement. The prosecution argued that the victim’s reluctance to disclose the incident initially explained the delay in filing the FIR and stated that there was no reason to disbelieve her version of the events.
The Court observed that the entire case hinged on the victim's testimony, as there were no eye-witnesses. The Court stated: "In such circumstances, her evidence fails to qualify as that of a sterling witness. Consequently, in view of her vacillating evidence, we are constrained to observe that reliance on it for convicting the Appellant would be a travesty of justice."
In assessing whether the victim qualified as a "sterling witness," the Court cited Rai Sandeep alias Deepu vs. State (NCT of Delhi) [(2012) 8 SCC 21], where it was held: "The 'sterling witness' should be of a very high quality and calibre whose version should, therefore, be unassailable... There should not be any prevarication in the version of such a witness."
The Court found multiple inconsistencies in the victim’s statements. In her Section 164 Cr.P.C. statement, she claimed the appellant visited her at 9 p.m. and took her for a ride before assaulting her. However, in court, she said she was given beer and raped in an isolated dumping ground. The beer and forced intoxication narrative did not appear in the Section 164 statement.
Additionally, the Court recorded: "Before the Court she has made every effort to improve upon her statements vis-à-vis, the statement given by her before the Magistrate under Section 164 Cr.P.C."
The Court also questioned the credibility of the claim regarding the victim’s age. While noting that oral testimonies of PW-1 and PW-2 were inconsistent, the Court acknowledged that the birth certificate (Exbt P1/PW1) and corroboration by PW-8 from the Live Birth Register confirmed the date of birth as 26-06-2005.
Despite concluding that the victim was a minor, the Court held: "We are disinclined to take into consideration her evidence pertaining to the sexual assault for the detailed reasons discussed and the fact that the paternity of the child borne of the alleged sexual assault has not been proved beyond reasonable doubt."
Regarding the paternity issue, the Court found that the DNA test was not conclusive. The Court noted: "The contradictory evidence of PW-1 and PW-11 regarding the drawing of the blood samples leads this Court to draw an adverse inference against the Prosecution on this facet."
The unexplored testimony of PW-3 further weakened the prosecution's case, especially as his claim that the victim was his girlfriend went unchallenged: "The Prosecution failed to investigate into this aspect to examine his complicity or otherwise in the victim’s pregnancy."
The High Court ultimately allowed the appeal and issued several directives:
"The conviction and sentence imposed on the Appellant, vide the impugned Judgment and Order on Sentence of the Trial Court are set aside."
"The Appellant is acquitted of the offence under Section 3 punishable under Section 4 of the POCSO Act, 2012."
"He be set at liberty forthwith, if not required to be detained in any other case."
"Fine, if any, deposited by the Appellant in terms of the impugned Order on Sentence, be reimbursed to him."
"Copy of this Judgment be forwarded to the Learned Trial Court for information along with its records."
"A copy of this Judgment be made over to the Appellant/convict through the Jail Superintendent, Central Prison, Rongyek and to the Jail Authority for information."
Advocates Representing the Parties:
For the Appellant: Mr. Sajal Sharma, Advocate
For the Respondents: Mr. S.K. Chettri, Additional Public Prosecutor for the State
Case Title: XXX vs. State of Sikkim
Case Number: Crl.A. No.07 of 2024
Bench: Justice Meenakshi Madan Rai, Justice Bhaskar Raj Pradhan
[Read/Download order]
