A Single Judge Bench of Justice S.K. Panigrahi reinstated that the testimony of child witness can be relied upon along with other circumstances and corroborative evidence to convict the accused. However, it is not the law that his evidence, without corroboration, shall be rejected, even if it is found reliable.
The petitioner has filed the present application under Section 439 of CrPC seeking bail in a case pending before the Additional Sessions Judge-cum-Special Court under the POCSO Act. The petitioner is the accused under offenses punishable under Sections 342 and 376(AB) of I.P.C. read with Section 10 of the POCSO Act.
The case of the prosecutrix is that on 24.04.2018 at about 2.00 P.M., the petitioner tried to lure the minor victim, took her inside his house, and raped her by forcibly keeping her mouth shut. The victim started crying loudly, hearing which some of her sisters came and found the house locked from inside. Getting concerned about the situation, they intimated the mother of the victim. Accordingly, her mother came and knocked on the door of the petitioner and called him. Hearing no response, she smashed the door clip and found her daughter in a precarious condition while the petitioner was trying to commit a sexual act upon the victim. She rescued her daughter and intimated the situation to her husband (complainant).
The petitioner has also filed another bail application under Section 439 of CrPC seeking bail in connection under a similar case. The petitioner is the accused under the same offenses. The case of the prosecutrix is that on 27.04.2018 at about 9.30 A.M., the informant lodged a written report before the Police alleging therein that the present petitioner committed sexual intercourse with his minor daughter. It is a matter of great concern that the petitioner committed a similar act just three days prior to this incident on another minor daughter of the complainant.
In course of examination of the mother of the victim, it came to light that the accused has also tried to exploit the elder daughter of the complainant. Both the victims are minors. The local witnesses and villagers have proved the complicity of the petitioner as many of them were present when the complainant’s wife rescued the victim. The petitioner appears to be habitual child abuser and targets children for sexual purposes.
The medical officer, who examined the victim, opined that there were no recent signs or symptoms or bodily injuries suggestive of sexual intercourse. It is well settled that the victim of a sexual assault is not an accomplice. Nor is it an immutable rule of law that the testimony of a survivor cannot be acted without corroboration in material particulars. The injury suffered by the minor victim of a sexual abuse is deeply physical, psychological and emotional. In a given case, if the Court finds it difficult to accept the version of the victim, on its own, the Court would be justified in searching for evidence, direct or circumstantial, which lends assurance to her testimony. Such assurance, short of corroboration, is sufficient.
The Bombay High Court in the case of Fazal Mehmud Jilani Dafedar vs State of Masharashtra relied on the judgment of the Supreme Court in thecase of Mohd. Imran Khan v. State Government (NCT of Delhi) where the legal position was postulated as under:
“It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Evidence Act, 1872 nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.
Thus, the law that emerges on the issue is to the effect that statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.”
Further, it is also a well settled principle of law that the testimony of child witness can be relied upon along with other circumstances and corroborative evidence to convict the accused. Undoubtedly, the settled proposition of law that the evidence of a child witness is required to be scrutinized and appreciated with great caution. In this regard, reference can be made to the case of Yogesh Singh v. Mahabeer Singh where the Apex Court held that:
“22. It is well settled that the evidence of a child witness must find adequate corroboration, before it is relied upon as the rule of corroboration is of practical wisdom than of law.
23. However, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.”
In the instant case, it appears that offences under the Indian Penal Code, are definitely made out, which may be required to be further investigated. It is not, as if, the allegations are casual and sweeping against all the accused generally. Moreover, in the report submitted, he mentioned that the accused has also tried to exploit the elder daughter of the complainant. He further attempted to rape the minor victim just three days after the complainant lodged the first FIR. The petitioner seems to be a habitual sexual offender and should not be granted bail at least until the investigation is complete.
It is not possible to come to the conclusion that they do not make out even a prima face case against the Petitioners for the offences in question. Moreover, the allegations are specific qua each of them.
The court declined to grant bail in both the bail applications and they were subsequently rejected.