25 Nov 2020

The evidence of prosecutrix stands at a higher pedestal than an injured witness and it needs no corroboration - Bombay High Court

Case : Suresh Angloswami Naidu v. State of Maharashtra Appeal No. 865 of 2017

Court : Bombay High Court

Bench : Justice A. S. Gadkari

Decided on : 25 Nov 2020

Relevant Statutes

Sections 4, 5(l), 6, 33(7) and 42 of the Protection of Children from Sexual Offences (POCSO) Act, 2012

Sections 164, 313 and 428 of the Code of Criminal Procedure, 1973

Sections 109, 228A, 363, 366, 366A, 375, 376 and 34 of the Indian Penal Code, 1860

Brief Facts and Procedural History

1. The prosecutrix, a minor lived with her father (PW1) in the house of Kiran Mokashi (Accused No. 2). The appellant (Accused No. 1) worked in the office of Accused No. 2 and lived in a house adjacent to the former. The appellant and prosecutrix were alleged to have been talking on the phone quite often.

2. On 4 July 2013, the prosecutrix went missing and on suspicion PW1 lodged a complaint in the police station. It was later discovered that Appellant induced, lured and with a promise to marry prosecutrix, took her to Chikkodi in Karnataka, thereafter village Sipla Puttur in Tamil Nadu. During that period, the Appellant established physical relations with the prosecutrix.

3. The charge sheet was filed before the Trial Court on 26 October 2013. Additional Sessions Judge and Special Judge under the POCSO Act, 2012 convicted the appellant u/s 363, 366, 376 of the Indian Penal Code, 1860; offence u/s 5(l) punishable u/s 6 of POCSO Act, 2012 and directed that all the substantive sentences shall run concurrently. Accused No. 2 was acquitted of all these charges.

4. The appellant challenged this decision against him in the High Court.

The Issue of the Case

Whether the appellant is guilty under Section 4 or Section 6 of the POCSO Act, 2012?

The Observations of the Court

The Honourable Supreme Court observed that:

1. Though the prosecutrix had attained the age of understanding and discrimination, however, it does not absolve the Appellant from the offences charged against him. The statement of the prosecutrix and her father that, her date of birth is 4th May 2000 remained unchallenged. The Appellant failed to bring on record any material even to infer that, on the date of commission of the offence; the prosecutrix was more than 18 years of age and was not a minor as per the provisions of POCSO Act, 2012.

2. The High Court referred to two decisions of the Honourable Supreme Court in State of Himachal Pradesh v. Shree Kant Shekari, AIR 2004 SC 4404 and Aman Kumar & Ors. v. The State of Haryana, AIR 2004 SC 1497 to explain that, the prosecutrix is not an accomplice in the crime. Mere delay in lodging the FIR does not render the prosecution version brittle. The evidence of prosecutrix stands at a higher pedestal than an injured witness and it needs no corroboration. Thus, it is clear that, the prosecutrix is not an accomplice in the crime of sexual assault.

3. The examination of the evidence of the prosecutrix, her father and Dr. Vijay Koparde (PW5) indicate that her testimony is fully reliable and trustworthy. The offence of rape as contemplated under Section 375 of the Indian Penal Code, 1860 has been made out. The Appellant took undue advantage of the family background and adolescent age of the prosecutrix0, promised her of marriage, enticed her to leave her house and abducted her from the lawful guardianship of her father. Even if it is presumed that, on the date of commission of the present offence, the prosecutrix had attained the age of understanding and discrimination and she joined the company of the Appellant without any demur, technically an offence under the provisions of POCSO Act, 2012 is made out and proved by the prosecution against the Appellant.

4. The charge for an offence under Section 5(l) punishable under Section 6 of the POCSO Act, 2012 was not framed and the Appellant was not given an opportunity to defend the same by the Trial Court. Thus, the High Court held the Appellant guilty for an offence of lesser gravity i.e., under Section 4 of the POCSO Act, 2012 of which he was originally charged.

5. The offence was committed on 4 July 2013. The prosecutrix was in the company of Appellant from 4 July 2013 to 29 July 2013. Prior to 16th August 2019, the minimum punishment prescribed under Section 4 of the POCSO Act, 2012 was seven years of imprisonment of either description.

The Decision Held by the Court

The Honourable Bombay High Court partly allowed the appeal and held that:

1. The conviction of the Appellant is modified from Section 6 to Section 4 of the POCSO Act, 2012 and is sentenced to suffer rigorous imprisonment for seven years.

2. The rest of the operative Order of the Trial Court remain unaltered.

3. All the sentences shall run concurrently and the Appellant will be entitled to the benefit of Section 428 of the Code of Criminal Procedure, 1973.

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