The Court while hearing a criminal appeal against the judgment of conviction has observed that major discrepancies appearing in the evidence of the prosecution have the effect of eroding the credibility of the prosecution case.
Presumption under Section 29 of POCSO Act is not absolute and it gets triggered only when prosecution is able to prove the foundational facts in the first place, bench of Justice Sanjeev Kumar observed.
In the instant case, the appellant was convicted by the Principal Sessions Judge, Rajouri for commission of offence under Section 10 of the Jammu and Kashmir Prevention of Children from Sexual Violence Ordinance, 2018 and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 10,000/-. Being aggrieved with the judgment and order of sentence, the appellant had filed the instant criminal appeal.
As per the prosecution, the mother of the victim had submitted an application in the Police Station Kandi wherein she alleged molestation of her minor daughter by the appellant-teacher and prayed for action under law against the appellant for outraging the modesty of her minor daughter.
On the basis of the complaint, FIR No. 71/2018 for offence under Section 354-A/341 RPC and Section 9 of the POCSO Act was registered in the Police Station Kandi. After completing the investigation, the investigating officer found the offences under Section 354-A/341 RPC and Section 9 of the POCSO established against the appellant and accordingly presented the final report in the Court.
After the completion of trial, the Court vide it’s impugned judgment found the appellant guilty for the commission of offence under Section 10 of the POCSO Act and imposed the sentence of rigorous imprisonment for ten years and a fine of Rs. 10,000/-.:
Being aggrieved, the appellant has challenged the judgment of conviction and order of sentence passed by the trial Court in this appeal.
Arguments on behalf of the Appellant:
Mr. Sunil Sethi, learned senior counsel appearing for the appellant has attacked the impugned judgment and order inter alia on the following grounds: –
(a) That the original story, as projected in the FIR and which was subject matter of investigation, has been subsequently changed during the trial and in this way the prosecution has suppressed the genesis of the crime.
(b) That in the original story, the complainant has claimed that she came to know about the alleged incident when she visited the school Crl. A (S) No. 08/2020 on finding that her daughter, the victim, had not returned whereas other students had come back from the school. During trial the place, where the complainant met the victim, has been changed. During her examination in the trial Court the complainant has stated that she heard the cries of her daughter and then went to the school where she met the victim on the way.
(c) That as per the allegations in the FIR, which was registered pursuant to a written application submitted by the complainant, the allegation was that the appellant had touched the breast of the victim but during the course of the trial the said story was entirely changed and instead it was stated that the appellant had inserted his hand in the Shalwar of the victim.
(d) That in view of highly contradictory nature of evidence on record, it was not safe for the trial Court to convict the appellant. The trial Court also did not appreciate that the alleged incident, as per prosecution, had taken place in the school where there were other students, teachers and the staff present but the prosecution did not cite any of them as witnesses except PW Ruksana, a minor student, who came to be declared as hostile by the prosecution during the trial.
(e) That, interestingly, the witnesses to the incident are alleged victim, her sister, complainant and relatives and their version is so contradictory in nature that the trial Court could not have relied upon the same, particularly, in view of clear defence of false implication of the appellant at the behest of PW Mohd Shabir having been fully established by leading defence evidence.
(f) That the Investigating Officer has himself admitted that the alleged incident of appellant, putting his hand inside the Shalwar of the victim, was not alleged in the original story nor the same was made subject matter of investigation. The allegation was later on introduced to pad up the prosecution story.
Arguments on behalf of the respondents:
Mr. Bhanu Jasrotia, learned GA, appearing for the respondents submits that the evidence led by the prosecution is cogent and sufficiently implicates the appellant with the offence under Section 9 of the POCSO. He argues that minor contradictions here and there, which do not put any dent on the credibility of the prosecution story, are required to be ignored. The genesis of the crime has been proved beyond any reasonable doubt. The statement of the complainant, the victim and her sister are natural and clearly point to the guilt of the appellant. The minor contradictions in the statements, or for that matter, some exaggerations in the statements of the witnesses with regard to such incidents are natural and bound to occur and unless such contradictions impinge upon the credibility of the witnesses, the same are required to be ignored.
Observations of the Court:
At the outset the Court observed that the trial Court, after appreciating the evidence on record, came to the conclusion that the prosecution has not been able to prove, by leading any sufficient evidence, that the appellant had pressed the breast of the victim, but has proved beyond reasonable doubt that appellant restrained the victim in the class room and then put his hand in her Shalwar. The trial Court has come to this conclusion on the basis of the statement of the victim, as corroborated by the statements of PW1, PW3, PW5 and PW6. The trial Court has neither taken note of the contradictions pointed out by the defence nor has it given any credence to the defence evidence led by the appellant.
Court while noting the contradictions in the statement made by the victim observed:
24. There is another important aspect to be noticed. It was, for the first time when the statements under Section 164 Cr.P.C were recorded, the story, as was projected in the first version i.e. written application, was changed. In the written complaint the allegation against the appellant was that he had caught hold of the breast of the victim child, whereas in the subsequent version in the statement under Section 164 Cr.P.C it was mentioned that the appellant had put his hand in the Shalwar of the victim. This needs to be seen as to whether such change in the narrative is only an exaggeration or embellishment or it is a major contradiction impinging upon the veracity of story itself.
The Court observed that there are thus serious contradictions in the manner the version with regard to the incident has been narrated by the prosecution witnesses, which makes the story projected by the prosecution highly doubtful. The earlier version, that the appellant had touched the breast of the victim child was given a go bye and a story, that he has put his hand in the Shalwar, was projected. It is because of the evidence on record the trial Court has concluded that the initial case set out by the prosecution with regard to the act of the appellant that he has touched breast of the child victim, has not been established and proved. The trial Court, however, finds the new version having been proved by the prosecution witnesses. What the trial Court ignores is the serious contradictions in the statement of the prosecution witnesses. Even there are different versions with regard to the school timings and the time of actual closure of the school on the date of occurrence.
The Court observed that in the face of such shaky and doubtful evidence on record, it was the duty of the trial Court to carefully evaluate the defence evidence to find out as to whether the evidence led by the defence was sufficient enough to probablise the defence.
Minor Discrepancies vs. Major Discrepancies
In this regard the Court observed thus:
“31. I am aware that if there are no material contradictions or discrepancies in the testimony of a witness/witnesses, his/their evidence cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies or exaggerations. However, distinction is required to be made between the material contradictions or discrepancies and the normal/natural contradictions/discrepancies. While minor contradictions do not corrode the credibility of the prosecution case, but material contradictions do so. There is marked difference between the exaggerated version and a false version. An exaggerated statement contains both truth and falsity whereas a false statement has no grain in it, being “opposite‟ of “truth‟. It is well said that to make a mountain out of a molehill, the molehill should have to exist primarily. A Court of law being mindful of such distinction is dutiful to disseminate truth from falsehood and sift the grain from chaff in case of exaggeration. It is only in case where grain and chaff are so inextricably intertwined that in their separation no evidence survives, that the whole evidence can be discarded.”
The Court while deliberating upon the issue of contradictions, referred to the Judgment of Hon’ble Supreme Court in case of Sunil Kumar Sambhudayal Gupta v. State of Maharashtra, (2010)13 SCC 657 wherein it was held: –
“30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. (State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152).
31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106).
32. The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334).
33. In case, the complainant in the FIR or the witness in his statement under section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar, (2008) 15 SCC 440))
The Court after re-evaluation of the evidence on record found that the discrepancies and the contradictions appearing in the evidence of the prosecution are not normal but material discrepancies which have the effect of eroding the credibility of the prosecution case. The trial Court has not appreciated this aspect and has cursorily and mechanically accepted the prosecution version as narrated by the prosecution witnesses.
The Court further observed that the trial Court has even picked up the single lines from the statement of PW4 Ruksana Kousar, who has not supported the prosecution case at all, though she was claimed by the complainant and the child victim present on spot. Picking up of one line out of context is not permissible. The only statement of PW4 Ruksana Kousar, that the appellant has restrained the victim while other students were allowed to leave the school, cannot lead to the conclusion that the victim was restrained for commission of the offence. Her statement is very specific and categoric that when the child victim came out of the class and accompanied her to home, she did not narrate to her anything with regard to the alleged occurrence.
Presumption of Guilt gets triggered only when prosecution is able to prove the fundamental facts:
While disagreeing with submission of the learned Government counsel, that in view of provisions of Section 29 POCSO Act, it was for the appellant to rebut the presumption of guilt by leading cogent defence evidence. In this regard the Court observed that presumption under Section 29 of POCSO Act is not absolute and it gets triggered only when prosecution is able to prove the foundational facts in the first place. When we examine the prosecution evidence, as I have done hereinabove, it clearly comes out that prosecution has miserably failed to establish foundational facts that may give rise to presumption of guilt of appellant who is accused of commission of offence under Section 9 and punishable under Section 10 of the POCSO Act. The foundational facts are required to be established by the prosecution by leading evidence beyond any reasonable doubt. The burden on the accused is not to rebut the presumption beyond reasonable doubt. It is sufficient for the accused if he is in a position to create a serious doubt about veracity of prosecution case. This he can do by preponderance of probabilities. In the instant case the appellant has led sufficient evidence in defense which renders the prosecution version highly doubtful and improbable.
The Court ultimately held that the major contradictions appearing in the statements of the prosecution witnesses and the slipshod manner in which the investigation has been conducted badly dents the credibility and reliability of the prosecution case.
The Court while allowing the appeal set aside the judgment of conviction and acquitted the appellant of the charges.