POCSO Acquittal as Evidence of Child Victim was Result of Tutoring

DELHI HIGH COURT

JUSTICE VINOD YADAV

State Vs. Sohan Lal @ Sonu On 9 April 2015

Law Point:
Evidence of child victim should not be result of tutoring – Highly unsafe to convict the accused merely on the basis of her evidence – Benefit of doubt is accorded to the accused & stands acquitted of the charges in the matter.

JUDGEMENT

BRIEF FACTS OF THE CASE:

The facts of the case, as borne out from the record are that on 23.08.2013, at about 11.35 PM, one Mohd. Hanif alongwith his brother­in­law (Jeeja), Mohd.Sannu, sister Smt.Salma and niece child A (aged about five years) went to PS Aman Vihar with the complaint of “galat kaam” having been done upon child A by accused Sohan Lal @ Sonu. The said arrival of the aforesaid persons was recorded as DD No.39A in the PS and a copy whereof was handed over to WSI Sunita, who was present in court. U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 1 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015 Considering the age of child A (hereinafter referred to as “child victim”) WSI Neeraj (hereinafter referred to as the “IO”), called a counsellor from NGO, got the child victim counselled and thereafter recorded the statement of Mohd.Hanif, the maternal uncle of the child victim, to the effect that on 20.08.2013 he had gone to the house of his sister Salma, which was nearby to his house. There, he found the child victim alongwith the accused in the tenanted room of the accused. At that time, the hand of accused was inside the wearing nikar of child victim. On his asking, the accused told him that he was getting the rakhi tied on his hand from the child victim. At that time, the child victim also did not tell him anything, as she appeared under a state of alarm and she also confirmed to him that the accused was only getting tied the rakhi from her. However, after three days, i.e on 23.08.2013, child victim told Guddu, son of her uncle that on the day of rakhi accused had put his hand into her nikar and had put his finger in her vagina and anus. Thereafter, when he asked child victim about this, she confirmed this fact.

2. On the basis of aforesaid statement of Mohd.Hanif, case FIR in the matter was registered. IO got the medical examination of child victim done. The mother of child victim namely Smt.Salma did not accord permission for the internal gynaecological examination of child victim. Thereafter, the IO prepared site plan of the place where sexual assault upon the child victim had taken place. The statement of child victim U/s 161 Cr.P.C was recorded in question answer form. On the same day, statement of child U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 2 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015 victim U/s 164 Cr.P.C was also got recorded. Thereafter, on 27.08.2013, the brother­in­law of accused namely Mohd.Abdul produced him in PS, where he was interrogated by the IO, arrested and his medical examination was got conducted. Thereafter, on 29.08.2013, the child victim was produced before Child Welfare Committee (CWC) where again her counselling was done.

3. After filing of the chargesheet in the matter, copy thereof alongwith documents was supplied to the accused and after hearing arguments on the point of charge, vide order dated 19.02.2014, charges U/s 376(2)(i)/506 IPC r/w Section 5 (m) of Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”), punishable U/s 6 of POCSO Act, 2012 were framed against the accused, to which he pleaded not guilty and claimed trial.

4. In order to prove the charges against the accused, prosecution examined as many as 11 witnesses, whereafter the PE in the matter was closed and statement of accused U/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the matter by the maternal uncle of child victim on account of a fight which had taken place between him and the accused. However, the accused did not lead any evidence in the matter despite opportunity.

U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 3 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015

5. I have heard arguments advanced at bar by the Ld.APP and Shri Jitender Kumar, Ld. Counsel for the accused and have perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter which is as under.

6. PW­1 Ms.Rita Darira, member CWC in her evidence has stated that child victim was produced before her on 29.08.2013, on which date she counselled her. The report of this witness Ex.PW1/A is very material in this case, to which I would advert to a little later in this judgment.

7. PW­2 SI Janak Raj was lying posted as Duty Officer in PS Aman Vihar on 23.08.2013 and he has deposed about recording DD No.39A at about 11.35 PM.

8. PW­3 ASI Satbir Singh was posted as Duty Officer in PS Aman Vihar on 24.08.2013 and he has proved the case FIR in the matter as Ex.PW3/A.

9. PW­4 Smt.Salma, the mother of child victim has not deposed anything about the manner in which the incident happened and has only deposed that after registration of the case she had taken the child victim to the hospital where she herself had refused for child victim’s internal gynaecological examination.

U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 4 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015

10. PW­5 child victim A in her evidence has deposed as under:

xxxxx Q. Batao beta kya hua tha ?
Ans. Susu ki jagah me ungali de raha tha.
Q. Kaun ungali de raha tha ?
Ans. Sonu.
Q. Beta Sonu kaun hai ?
Ans. Hum pehle jaha par rehte the Sonu bhi wahi par rehta tha.
Q. Beta yeh batao Sonu ne aisa kab kiya tha ? Ans. Mein Rakhi wale din Sonu ke ghar khelne gayi thi, tab Sonu ne aisa kiya tha.
Q. Beta Sonu ne pehle bhi kabhi aisa kiya tha ? Ans. Nahi.
Q. Sonu ne aur bhi kahi hath lagaya tha ? Ans. Nahi.
At this stage, learned Additional PP for the State seeks permission to ask a leading question from this witness regarding other acts of the accused. Heard. Allowed.).
Q. Kya Sonu ne apki latrine ki jagah par bhi ungali dali thi ?
Ans. Nahi.
Q. Kya apko dard hua tha ?
Ans. Ha.
U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 5 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015 Q. Kya aap Sonu ko bhaiya ke naam se bulati thi ?

Ans. Ha.

xxxxx

11. PW­6, Ms.Meenu Kaushik, Ld.MM, Rohini District Courts in her evidence has proved the statement of child victim recorded by her U/s 164 Cr.P.C as Ex.PW6/B.

12. PW­7 Mohd.Sannu, the father of child victim in his evidence has stated that he was a plumber by profession and at the relevant time he was residing as a tenant at the back side room whereas, in the front room the family of accused was residing. On the day of Rakshabandhan, his wife had told him when he returned back from his work in the evening that child victim had told her that accused Sonu had put his finger in her private parts. Thereafter, he asked about the same to the child victim, but she did not tell anything to him out of fear, however, on 23.08.2013, she told to his nephew (being son of his elder brother) namely Guddu that the accused had put his finger in her private parts. He again made enquiries from the child victim, who at that time confirmed the same. On that day, his brother­in­law (saala) Mohd.Hanif also came to his residence and told him that he had seen the accused doing the same with the child victim on 20.08.2013. Thereafter, the child victim was taken to PS where the FIR in the matter was registered and the medical examination of the child victim was conducted. U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 6 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015 In his cross­examination, this witness admitted that he, his brother­in­law Mohd.Hanif and accused are plumbers by profession, however, he pleaded ignorance about some quarrel between the accused and his brother­in­law having taken place 10­12 days prior to the incident.

13. PW­8 Shri Dilshad @ Guddu in his evidence has stated that on 23.08.2013, at about 1.30/2.00 PM, child victim had told him about the accused having put his finger in his private parts (susu ki jagah aur piche ungali daali). He disclosed these facts to PW­7 and his mama Mohd.Hanif. His mama Mohd.Hanif confirmed the fact that he had also seen the accused doing the same with the child victim on the Raksha Bandhan Day.

In his cross­examination, he also pleaded ignorance about any quarrel having taken place between the accused and his mama Mohd.Hanif 10­12 days prior to the registration of case regarding some money transaction.

14. PW­9, Dr.M. Dass has proved the MLC of accused as Ex.PW9/A and has also opined about the sexual potency of accused.

15. PW­10, Dr.Supriya Parashar, SR (Gynae) in her evidence has proved the MLC of child victim as Ex.PW9/B.

U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 7 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015

16. PW­11, Mohd.Hanif in his evidence has stated that on 20.08.2013, i.e on the day of Raakhi, he had gone to the house of his sister, where he saw the accused doing “galat harkat” with his niece. Accused had put his hand in the “nikar” of his niece. When he confronted the accused with the same, then his niece ran away to her room, but she did not tell as to what was being done to her by the accused as she was under a threat from the accused. However, on 23.08.2013 child victim told about the “galat harkat” of accused to PW­8 Guddu as well as the threat given to her by the accused.

In his cross­examination, he stated that on 20.08.2013 he had seen the incident from a distance of about five feet. He admitted that he did not make complaint about the incident to the police on the same day. He, however, denied the suggestion that 10/12 days prior to the incident, a quarrel had taken place between him and the accused.

17. PW­12 WSI Neeraj in her evidence has deposed that on 23.08.2013, after receipt of DD No.39A, she called a counsellor from NGO, got the child victim counselled and thereafter recorded the statement of PW­11 Mohd.Hanif, on the basis of which case FIR in the matter was registered. Thereafter, she got the child victim medically examined. She also got the statement of child victim U/s 164 Cr.P.C recorded. On 27.08.2013, accused was arrested in the matter and his medical examination was also got conducted. Thereafter, she produced the child victim before Child Welfare Committee (CWC) and got her counselled again.

U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 8 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015

18. This is all as far as prosecution evidence in the matter is concerned.

19. Ld.Addl.PP for the State has very vehemently argued that the evidence of child victim PW­5 is consistent in her statement recorded U/s 161 Cr.P.C, her statement recorded U/s 164 Cr.P.C (Ex.PW6/B) and her evidence recorded in the court and as such, the ingredients of offences punishable U/s 6 of POCSO Act and Section 506 IPC have been duly proved. She has further argued that the evidence of child victim has also been duly corroborated by the evidence of PW­7, PW­8 and PW­11. It is next argued that even if the mother of child victim did not permit internal gynaecological examination of the child victim, that is not fatal to the prosecution case in view of the presumption U/s 29 and 30 of POCSO Act. Per contra, learned defence counsel has pointed out few contradictions in the evidence of child victim and evidence of PW­8 and PW­11. It is argued that the accused has been falsely implicated in the present case.

20. Finding no valuable assistance from the learned defence counsel, I myself meticulously went through the evidence recorded in the matter as well as the documents proved on record. From the material on record, the possibility of false implication of accused in the matter on behest of PW­11 cannot be ruled out for the following reasons:

U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 9 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015

(a) That the FIR in the matter was registered at the instance of PW­11, whereas admittedly at the time of recording of FIR, the parents of child victim as well as the child victim was present in the PS. A deep analysis of the evidence of parents of child victim reveals that the father of child victim namely Mohd.Sannu, i.e PW­7 got information about the penetrative sexual assault committed upon child victim by the accused through his wife Ms.Salma, i.e PW­4 on 20.08.2013 itself, but PW­4 has not stated a word when she donned the witness box about the penetrative sexual assault and in fact she started her evidence from the time after the registration of FIR in the matter. Therefore, the knowledge of the father of child victim about penetrative sexual assault upon the child victim is getting falsified.

(b) PW­11 in his testimony before the court has exagerrated the version over and above his statement Ex.PW11/A recorded in the matter in as much as in his testimony before the court he categorically deposed that the child victim had specifically told him on 23.08.2013 that she had been threatened by the accused not to tell about the incident to anybody. He further explained the exact words used by the child victim, but the child victim has not stated about any kind of threat being given to her by the accused ever;

U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 10 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015

(c) The evidence of PW­8 Shri Guddu is also not free from blemish, as he has also talked about the child victim having told him that the accused had threatened her in case she told the incident to anybody, but the child victim in her evidence has not talked about any kind of threat being given by the accused;

(d) The tutoring of the child victim in the matter cannot be ruled out in as much as there is vide variations stated by her in her statement recorded U/s 161 Cr.P.C, in her statement recorded U/s 164 Cr.P.C and her evidence recorded in the court;

(e) That the prosecution has not examined the counsellor from NGO, who had counselled the child victim on 23.08.2013 itself. The said counsellor would have been the best person to explain the condition of child victim, as to whether she was under any kind of shock or trauma on account of penetrative sexual assault having been committed upon her by the accused on 20.08.2013 on the occasion of Rakhi;

21. The first evidence available on record of a duly trained child psychologist is of PW­1 Ms.Rita Darira, before whom the child victim was produced by the IO. The report of PW­1 dated 29.08.2013 is on record as Ex.PW1/A, wherein she has explained the physical and mental condition of the child as under:

U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 11 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015 “A is an intelligent girl. She communicates well. She appeared cheerful and without under any trauma”.

After analyzing the general, physical and mental condition of the child victim, the Ld.Member of CWC went on to state as under:

xxxxx Strangely, the Mama who got the FIR lodged did not appear in our office. Moreover, question arises what was his first reaction when he saw what he claims to have seen. Also there is a gap or delay of almost four days in lodging a formal complaint. IO is being directed to find out what was transpiring in these four days between the culprit and the family of the victim. Somehow, the whole complaint seems unconvincing. Father of A has been counselled to admit the child to regular school and be very very vigilant of the welfare of the child.
xxxxx (underlining emphasized)
22. It is common knowledge that the members of CWC are well versed in the field of child psychology and they have vast experience in dealing with the children of tender age, their behaviour and on the basis of their experience and knowledge, they can very well give a fair opinion about the child as to whether he or she had been subjected to some kind of sexual assault or not.

In this matter, the expert has given a fair idea that the child victim was probably not subjected to sexual assault. U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 12 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015

23. Even otherwise, there is nothing on record either in the evidence of mother of child victim (PW­4) and father (PW­7) that from 20.08.2013 till 23.08.2013 the child victim was under any kind of distress, trauma or shock and she did not perform her daily pursuits in a normal manner.

24. It is also apparent from the evidence of PW­11 that he had himself seen the accused doing “galat kaam” with the child victim on 20.08.2013 from some distance. Even then, he neither made any attempt to communicate about the same to the parents of child victim or to the police, however, PW­7, i.e father of child victim in his evidence has stated that his wife had the knowledge about the “galat kaam” on 20.08.2013 itself and she had communicated the same to him on that day itself.

25. As if this was not enough, the mother of child victim did not permit the internal gynaecologial examination of child victim, which would have given some indication about the fact as to whether penetrative sexual assault had in fact taken place with the child victim or not.

26. From the cumulative reading of all the points mentioned herein above, it is apparent that the FIR in the matter is an after thought and it cannot be ruled out that the gullibility of child victim might have been used by PW­7 for his own personal gains. The Hon’ble High Court of Delhi in case reported as, “1998 (1) JCC (Delhi) 217”, titled as, “Samey Singh V/s State”, U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 13 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015 after analysis of some decisions of Hon’ble Supreme Court as well as Hon’ble High Court of Delhi, it was held that in the facts and circumstances of the said case, it was highly unsafe for the court to have based conviction upon the sole testimony of witness of a tender age. The relevant part of the decision of the Hon’ble High Court is reproduced as under:

xxxxx
8. …..She has referred to the decision of the Apex Court reported as, “State of Assam V/s Mafizuddin Ahmed, (1983)2 SCC 14”. In this case, the Supreme Court approved the observation the High Court. Those observations read as under:­ “………………. the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring.”
9. She had also placed reliance on para 17 of the said judgement in which the court came to the conclusion that the fact that he was tutored is fully borne out by his own statement, as will be clear from the following portion of his deposition:
“Nana” accompanied me when I came to depose in the lower Court, but stayed outside. I stated in that Court that I had stated what “Nana” asked me to. The day before I came to depose, had told “Nana” what I would say.
U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 14 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015
10. Ms. Thakur submitted that this case is fully applicable to the facts of this case. In the instant case, instead of Nana, the mother and father of the prosecutrix coached and tutored her and her statement is the outcome of that tutoring and coaching.
11. She has also placed reliance on “Arbind Singh V/s State of Bihar, 1994 SCC (Crl) 1418”. In this case, the court observed:
“Having taken a careful look at the evidence of this child witness, we are of the opinion that implicit faith and reliance cannot be placed on her testimony since it is not corroborated by any independent and reliable evidence.”
12. It is well settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring. We, therefore, think that appellant I was entitled to a benefit of doubt.
13. Ms. Thakur also placed reliance on Division Bench judgment of this court “Vijay Kumar V/s State, ILR (1981) II Delhi, 449”. In this case, the well settled principle of law has been reiterated.
The Court observed that if a person is to be convicted on the testimony of a child, it has to be ensured that the child had not been tutored and there is some corroboration available. Ms. Thakur submitted that this case also had great bearing on the facts of this case because in the instant case, U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 15 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015 the prosecutrix has been coached and tutored and there is no corroboration of her testimony The entire conviction is based solely on the testimony of this minor girl Sunita.

14. I have heard the learned counsel appearing for the appellant and I find considerable force in the submission of the learned amicus curiae. The learned counsel for the State could not support the prosecution story. The testimony of baby sunita gives a clear impression that she was coached and tutored before she gave the statement and it is also clear from the number of questions she had answered in the cross ­ examination runs counter to her examination in­chief. The medical evidence also proves the innocence of the accused. There is no plausible explanation for undue delay in filing the first information report in this case. On consideration of all these factors, the benefit of doubt must go to the accused. The appeal is accordingly allowed and disposed of. The appellant is acquitted of all the charges. The bail bonds are cancelled.

xxxxx

27. There is no dispute that the conviction can be based upon the sole testimony of a child witness in the cases of sexual assault, but the necessary pre­condition thereof is that the evidence of child victim should not be result of tutoring. In this case, circumstances clearly point out that the evidence of child victim is not free from blemish and as such, it would be highly unsafe to convict the accused merely on the basis of her evidence. U/s 6 POCSO Act r/w Section 376(2)(i)/506 IPC: “Acquitted” Page 16 of 17 SC No.185/2013: FIR No.361/2013: PS Aman Vihar: State V/s Sohan Lal @ Sonu DOD: 09.04.2015

28. In view of the above discussion, the false implication of accused in the matter cannot be ruled out. Therefore, the benefit of doubt is accorded to the accused. Accused Sohan Lal @ Sonu accordingly stands acquitted of the charges in the matter. He be released forthwith, if not required to be detained in any other case.

29. A copy of this judgment be supplied to the accused free of cost. Accused is directed to produce Bail Bond in the sum of Rs.20,000/­ with one surety in the like amount U/s 437­A Cr.P.C. Thereafter, file be consigned to Record Room.

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