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2019 DIGILAW 1136 (GAU)

State of Nagaland v. Krishnanandan Paswan

2019-10-18

MANISH CHOUDHURY

body2019
JUDGMENT : Manish Choudhury, J. 1. This appeal under Section 378 of the Code of Criminal Procedure, 1973 ("the CrPC", in short) is preferred against the judgment and order dated 15.06.2018 passed by the learned Special Judge, POCSO Act, Kohima, Nagaland in G.R. Case No. 234/2016 (Special Case No. 5/2016). By the said judgment and order dated 15.06.2018, the learned Special Judge acquitted the respondent-accused from the charges under Section 354A(2) of the Indian Penal Code ("the IPC", in short) and under Section 8 of the Protection of Children from Sexual Offences Act, 2012 ("the POCSO Act", in short) on benefit of doubt, setting the respondent at liberty, if he is not wanted in any other case. 2. The case of the prosecution, in brief, is that on 23.11.2016, a First Information Report (FIR) was lodged before the Officer In-Charge of Women Police Station, Kohima by one Mr. Medozeu Rio (P.W. 2), Chairman of Kezieke Welfare Board, Kohima against the respondent-accused alleging, inter-alia, that the respondent, a tenant of Kezieke Colony, had been abusing and molesting the boys around his neighborhood. It was further alleged that the respondent had lured his neighbourhood boys in the last week of October, 2016 by offering money and sweets in order to get the boys fondle his private parts forcefully. It was further alleged that the respondent requested the boys to call two minor girls by offering them more money. On receipt of the FIR, the Officer In-Charge, Women Police Station, Kohima registered a case being Kohima Women Police Station Case No. 6/2016 under Section 354A(2), IPC read with Section 8, POCSO Act and endorsed the case to one Vikuobinuo (P.W. 5), ASI for investigation. 3. In course of investigation, the respondent was arrested and also was stated to be thoroughly interrogated The statements of the alleged victims (minor boys) were also recorded apart from other witnesses. 3. In course of investigation, the respondent was arrested and also was stated to be thoroughly interrogated The statements of the alleged victims (minor boys) were also recorded apart from other witnesses. After completion of investigation, the Investigating Officer (LO.) of the case i.e. P.W. 5 submitted the charge sheet under Section 173, CrPC finding a prima facie case under Section 354A(2), I.P.C. read with Section 8 of the POCSO Act, against the respondent Pursuant to submission of the charge sheet, the appearance of the respondent was caused before the trial Court of learned Special Judge, POCSO Act, Kohima and on his appearance, the learned Special Court considered the matter of framing charge under Section 354A(2) IPC and Section 8 POCSO Act and framed charges accordingly on 08.03.2017. On charges being explained to the respondent-accused, the respondent pleaded not guilty and claimed to be tried. 4. During the course of trial, the prosecution in order to bring home the afore-mentioned charges against the respondent-accused, examined 6 (six) Nos. of prosecution witnesses viz. P.W. 1 - Vikerile Thapru, Inspector and Officer In-Charge, Women Police Station, Kohima; P.W. 2 Mr. Modozeu Rio, Chairman, Keziekie Welfare Board, Kohima i.e. the informant; P.W. 4 - Mhalo, an official in the Women Police Station, Kohima; P.W. 5 - Vikuobinuo, I.O. of the case; P.W. 6 - first alleged minor victim boy P.W. 7 - second alleged minor victim boy. After me examination of the prosecution witnesses, the respondent was examined under Section 313, CrPC. The defence adduced no evidence during the trial. After the trial, learned Special Court by the said impugned judgment and order dated 15.06.2018 had acquitted the respondent of the aforesaid charges and the same is being assailed in the present appeal by the State. 5. Ms. V. Suokhrie, learned Public Prosecutor (P.P.) assailing the judgment and order of acquittal, has submitted that the learned trial Court has not appreciated the evidence in the proper perspective and by an erroneous appreciation of the evidence on record, had returned the finding of acquittal, whereas, there are sufficient materials on record in respect of the charges framed against the respondent to return a finding of conviction. She further submits that from the testimonies of the two victims, it is clearly established that the respondent had committed the act of sexual assault on them and such evidence of the victims, even in absence of any corroboration, are sufficient to bring home the charges for the aforesaid offences. It is further submitted by the learned P.P. that the presumption available to the prosecution under Section 29 of the POCSO Act, 2012 has been ignored by the learned Special Court. She further submits that there were no materials contradiction amongst the prosecution witnesses. It is also submitted by her that the delay caused in lodging the FIR cannot be held against the prosecution and in the course of investigation, all requisite procedure were adhered to. 6. Per contra, Mr. V. Theyo, learned counsel appearing for the respondent by supporting the judgment and order of the learned trial Court, has submitted that there was vagueness about the time period when the alleged offensive acts were alleged to have been committed, were committed. There was no explanation about the delay that occurred in lodging the FIR. He further submits that the contention of the prosecution side as regard admission of the respondent cannot be taken into account as the same was made under duress. It is further submitted by him that there was no medical record as regards the alleged consequential assault on the victim boys. Furthermore, the prosecution did not adduce any evidence as regard the ages of the alleged victims. The investigation of the case was not done properly as neither the parents of the alleged victims nor one Ms. Sonu, another minor who was stated to be aware of the alleged incident, was examined by the I.O. of the case. Had they been examined, the real facts would have emerged. As a result, there was no corroboration of the testimonies of the alleged victims and there are several missing links in the prosecution story. The learned trial Court had rightly held that the suspicions, however strong it may be, cannot form the basis of conviction and had rightly acquitted the respondent on benefit of doubt. He submits that, therefore, no interference is called for in respect of the judgment and order dated 15.06.2018 passed by the learned trial Court. 7. The learned trial Court had rightly held that the suspicions, however strong it may be, cannot form the basis of conviction and had rightly acquitted the respondent on benefit of doubt. He submits that, therefore, no interference is called for in respect of the judgment and order dated 15.06.2018 passed by the learned trial Court. 7. I have considered the submissions of the learned counsel for the parties and also perused the materials on record of GR Case No. 234/2016 (Special Case No. 5/2016), in original. 8. P.W. 1, Vikerile Thapru, Inspector of Police and Officer In-Charge, Women Police Station, Kohima exhibiting the FIR as Ext. P/1, had deposed that the said case was registered by her in her capacity as the Officer In-Charge of Women Police Station, Kohima. Having gone through the allegations made against the respondent about molesting a minor boy and it was upon satisfaction, she registered the case endorsing the same to P.W. 5 for investigation. She further deposed that no preliminary inquiry or investigation was done by her prior to the registration of the case. In her cross-examination, P.W. 1 stated that the FIR was lodged on 23.11.2016. 9. P.W. 2 is the informant of the case and a resident of Kezieke Colony. He was also the Qiairman of Kezieke Welfare Board, Kohima at the relevant point of time. He stated that in the last part of October, 2016, information was received by him from the youth organization and women organization of Kezieke Colony wherein allegation was made that the respondent used to give money and sweets to the young boys to fondle his private parts. He asked the youth organization and women organization to inquire into the matter by finding the truth and to bring the respondent since the allegation was serious. Accordingly, the respondent was apprehended and brought before the Panchayat, North Block Kohima wherein, in his presence, the respondent was asked about the truthfulness of the allegation made against him to which, P.W. 2 stated the respondent had admitted that he was guilty and asked for forgiveness. Accordingly, he in his capacity as Chairman, Kezieke Welfare Board, Kohima had lodged the FIR with the join signature of the Head Gaonbura, North Block Panchayat. He stated to have known the respondent-accused and exhibited the FIR (Ext. P/1). Accordingly, he in his capacity as Chairman, Kezieke Welfare Board, Kohima had lodged the FIR with the join signature of the Head Gaonbura, North Block Panchayat. He stated to have known the respondent-accused and exhibited the FIR (Ext. P/1). In his cross-examination, P.W. 2 had stated that apart from being reported by the youth organization and women organization, he had also made an inquiry about the offence during which the victims had also reported about the offence. He further deposed that there was no eye-witness apart from the victim. He was not aware about the exact date as to when the offence was committed. 10. The Trial Court did not mention about any prosecution witness as P.W. 3. 11. P.W. 4, one Mhalo was an official posted at the Women Police Station, Kohima at the relevant point of time in November, 2016. P.W. 4 was on telephone duty when the police personnel from North Police Station brought the respondent to the Police Station. I.O. of the case, P.W. 5 and P.W. 4 herself witnessed the arrest of the respondent-accused at the Police Station. In her cross-examination, she, however, failed to tell the date when the respondent-accused was brought to the Police Station. 12. P.W. 5, the I.O. of the case, had deposed about the registration of the FIR on 23.11.2016 and about the investigation carried out by her. She further stated about the statements made by the respondent-accused during interrogation. P.W. 5 further stated that during investigation, P.W. 6 had stated that he was called by the respondent one day to his house and was asked to call one Ms. Sonu, who was about 9 years old at that point of time. Accordingly, P.W.6 went and called Ms. Sonu and the respondent provided them chapatti. Thereafter, P.W.6 left the house of the respondent and while he was playing Ms. Sonu came there and offered them sweets and also told him that the sweets were purchased with the money given by the respondent. P.W.6 further stated before P.W.5 that on another occasion, the respondent told him to call Ms. Sonu and accordingly, P.W.6 went and called Ms. Sonu but Ms. Sonu refused to come. P.W.6 went and told the said fact to the respondent and accordingly, P.W.6 was given Rs. 10/- by the respondent. P.W.6 further stated before P.W.5 that on another occasion, the respondent told him to call Ms. Sonu and accordingly, P.W.6 went and called Ms. Sonu but Ms. Sonu refused to come. P.W.6 went and told the said fact to the respondent and accordingly, P.W.6 was given Rs. 10/- by the respondent. P.W.5 further stated that during the statement made before her, P.W.7 stated that while he was playing with his friends near the piggery, the respondent offered him sweets and took his hand to let hold his penis and he refused. P.W.7 also stated before P.W.5 that on another occasion also, the respondent offered him sweets near the shop but he refused to take the sweets and went away. It was told to her by P.W.2 that after P.W. 2 received the information, the respondent was apprehended by the colony youth and kept him at Panchayat Hall of Kezieke Colony. Thereafter, a meeting was held and it was decided there to lodge an FIR before the Police Station. P.W.5 stated that she did not know the exact date as to when the commission of crime had occurred. She visited the alleged place of occurrence at Kezieke Colony. P.W.5 further stated the ages of the victims are 11 and 8 years old respectively. 13. P.W.6 when he was examined on 10.07.2017 was studying in Class 2. He deposed that he knew the respondent and Ms. Sonu as all were neighbours. He deposed that he was asked by the respondent to call Ms. Sonu and accordingly, he called Ms. Sonu but Ms. Sonu refused to come. Accordingly, he went to the respondent and told the same to him. The respondent took his hand and let P.W.6 touch his private parts. P.W.6 deposed that on another occasion also, he was given Rs. 10/- and was asked to see the private parts of the respondent. 14. When P.W.7 was examined on 10.7.2017, he deposed that he knew the respondent as he was his neighbour at Kezieke Colony, P.W.7 stated that he did not remember the date or the month but on that day, the respondent came when he was playing with his friends. The respondent asked him if he wanted to take sweets and the respondent took him near the pig sty, took his hand and allowed him to touch the private parts of the respondent. The respondent asked him if he wanted to take sweets and the respondent took him near the pig sty, took his hand and allowed him to touch the private parts of the respondent. Thereafter, P.W.7 stated that he left the respondent without saying anything. During cross-examination, P.W.7 stated that at the time when the respondent had held his hand to touch his private parts, the respondents was in full dress. 15. As per sub-section 2 of Section 354A, I.P.C., any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years or with fine or with both. As per said sub-section (1) of Section 354A, if a man commits any of the acts, specified in clause (i), (ii) (iii) or (iv), he shall be guilty of the offence of sexual harassment. Clause (1) speaks of physical contact and advances involving unwelcome and explicit sexual overtures. Clause (ii), on the other hand, speaks of a demand or request for sexual favours while clause (iii) speaks about showing pornography against the will of a woman. Clause (iv) speaks about making sexually coloured remarks. Section 8 of the POCSO Act has provided for punishment for sexual assault whereas Section 7 has defined the sexual assault. As per Section 7, whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault and a person guilty of the said offences is liable to be punished with imprisonment for a terms which shall not be less than three years but which may extend to five years, and shall also be liable to fine. 16. In the context of the aforesaid offences, the evidence available on record are to be appreciated and analyzed. In view of the nature of allegation made in the instant case, there is no possibility of any medical evidence. Save and except the oral statements recorded by the I.O., P.W. 6 and P.W. 7, there is no material on record wherefrom the ages of the alleged victims can be ascertained. In view of the nature of allegation made in the instant case, there is no possibility of any medical evidence. Save and except the oral statements recorded by the I.O., P.W. 6 and P.W. 7, there is no material on record wherefrom the ages of the alleged victims can be ascertained. It has, however, emerged that at the time of recording their depositions, they, P.W.6 and P.W.7, were studying in Class II and Class VI respectively. Both P.W.6 and P.W. 7 had stated that they knew the respondent prior to the alleged incidents as all of them were neighbours and as such, there is no doubt about the identification of the respondent. 17. What has, however, emerged is that the learned trial Court did not conduct preliminary examination of the two alleged other victims prior to recording their depositions. It is further reflected from the records that oath were administered to them. It is settled that though there is no legal requirement to hold a preliminary examination to determine the competence of a child witness and the failure to conduct such examination will not necessarily effect the evidence of a child witness, but as a rule of prudence, not only it is desirable that a preliminary examination of a child witness should be made by the Court but that a formal record of such examination should also be maintained. In the case of a criminal prosecution, where the fate of the accused depends on the testimony of such a witness, requirement of such examination is underlined with emphasis, also by a series of decisions of the Hon'ble Supreme Court, and thus, it is always desirable to resort to a preliminary examination which will tend to disclose the capacity and intelligence of child witness as such an examination may expose even a witness who has been fully tutored and who on that account might be able to stand the test of cross-examination. Recording of such preliminary examination if maintained, also enables the appellate court which does not have the opportunity to watch the demeanour of the witness, to apply its own mind and to review the decision of the trial Court. 18. Recording of such preliminary examination if maintained, also enables the appellate court which does not have the opportunity to watch the demeanour of the witness, to apply its own mind and to review the decision of the trial Court. 18. It has emerged from the testimony of the I.O. (P.W.5) that when the statement of P.W.6 was recorded by the I.O., P.W.6 stated that he was called by the respondent to his house and was also asked to call one Ms. Sonu, who was about 9 years old at that point of time. It was further recorded that P.W.6 went and call Ms. Sonu and the accused provided them with chapatti. P.W. 6 stated to have left the house of the respondent and thereafter, Ms. Sonu came and offered them sweets while P.W.6 was playing in the playground. It was stated that the sweets were purchased with the money given by the respondent. I.O. had deposed that P.W.6 stated before him that on another occasion the respondent asked him to call Ms. Sonu and accordingly P.W.6 went and called Ms. Sonu but on that occasion, Ms. Sonu had refused to come. About the refusal of Ms. Sonu P.W.6 informed the respondent and P.W.6 was given Rs. 10/- by the respondent. From the testimony of P.W.5, it has emerged that during the course of investigation, P.W.6 stated before him about two occasions when the respondent had called him to his house along with one Ms. Sonu. On one occasion, Ms. Sonu, at the request of P.W.6, went to the house of the respondent and on another occasion, she refused to go to the house of the respondent. On a careful perusal of the testimony of P.W.5 as regards the statement made before her by P.W.6, it emerges that P.W.6 did not tell anything to P.W.5 as regards commissions of any consequential assault on P.W. 6 by the respondent. When P.W.6 deposed before the Court, he stated about only one occasion when he was called by the respondent to his house and was also told to call Ms. Sonu which Ms. Sonu stated to have refused. It was in that occasion, the accused was stated to have led P.W. 6 touch the private parts of the respondent. He further stated that on another occasion, the respondent by giving him Rs. 10/- asked him to show his private parts. Sonu which Ms. Sonu stated to have refused. It was in that occasion, the accused was stated to have led P.W. 6 touch the private parts of the respondent. He further stated that on another occasion, the respondent by giving him Rs. 10/- asked him to show his private parts. But there was no mention of Ms. Sonu on that occasion. What has emerged from above is that P.W.6 did not tell before the I.O. as regards commission of any sexual assault on him by the respondent. During the course of investigation and deposition, P.W.6 had stated about commission of sexual assault on him by the respondent. 19. P.W.7, who stated his age as about 12 years on the date of his examination on 10.07.2017 and stated himself to be a student of Class VI, stated that he resides with his family in Kezieke colony where the respondent used to reside above his house. Without mentioning any date or month, he deposed to the effect that one day while he was playing with his friends the respondent called and asked him if he wanted to take sweets and then the respondent took him near the pig sty where the respondent took his hands and let him touch his private parts but he left the place without saying anything. P.W. 5 had stated that in the statement before her, P.W.7 stated that he refused to hold the private parts of the respondent when P.W.7 was asked to do so. As per the statement of P.W.5, the respondent on another occasion offered P.W.7 sweets but on that occasion also he refused to take the sweets. P.W.7 was also stated to have told P.W.5 that he was kept confined in the house by the respondent. A combined reading of the above indicates that P.W.7, in his evidence, had mentioned about only one encounter with the respondent. He said nothing about his confinement by the respondent From his testimony, it is not clear as to whether the respondent had forced him to touch his private in the other occasion whereas in his statement, stated to have been recorded by P.W.5, he refused to hold the private parts of the respondent. Thus, there are apparent in consistence's in the statements of P.W.5 and P.W.7 as regards the commission of the alleged act by the respondent. 20. Thus, there are apparent in consistence's in the statements of P.W.5 and P.W.7 as regards the commission of the alleged act by the respondent. 20. Both P.W. 6 and P.W.7 reside with their families in Kezieke Colony but none of them had deposed that they had reported any alleged incidents of sexual assault to their parents whereas in the normal course, such kind of incident would have been disclosed to the parents in the first hand. There is nothing on record which indicates that P.W. 6 and P.W.7 had stated about the alleged incidents to any other person. The prosecution also did not examine Ms. Sonu, who could have corroborated the version of P.W.6. P.W.6 and P.W.7 had stated about different incidents. It is also not clear when and how the Youth Organization and Women Organization of Kezieke Colony came to know about the alleged acts committed to P.W.6 and P.W.7. P.W.2 who had lodged the FIR, had stated that there were no eye witness to the incidents. Nobody knew about the date and time when the alleged incidents had taken place. There was also no explanation about the period of delay, which was about one month, that had occurred in lodging the FIR. 21. The versions projected by P.W.6 and P.W.7, both apparently minors, whose examination in the Court were not preceded by any preliminary examination, are not corroborated by any other evidence. In their versions before the Court and during the stage of investigation, stated to have been recorded by the I.O. i.e. P.W.5, there are apparent inconsistencies and embellishments as a result of which it is difficult to accept the veracity of the same in the absence of any credible corroboration. The act of apprehending the respondent by the members of the Youth Organization and Women Organization of Kezieke Colony and bringing him to the Panchayat in order to make him admit about the same and thereafter, lodgment of the FIR, had further dented the case of prosecution raising a serious doubt about the motive. 22. The prime contention of the learned P.P. on behalf of the State appellants that in cases pertaining to the POCSO Act, in view of Section 29 of the said Act, the Court has to presume that the accused has committed the offence for which he is charged under the said Act, unless the contrary is proved. 22. The prime contention of the learned P.P. on behalf of the State appellants that in cases pertaining to the POCSO Act, in view of Section 29 of the said Act, the Court has to presume that the accused has committed the offence for which he is charged under the said Act, unless the contrary is proved. It is on this basis it is submitted on behalf of the State appellants that in the present case, it was for the respondent to prove the contrary and the burden was upon him. As the respondent had failed to discharge the burden, the finding of acquittal is required to be reversed into a finding of conviction and sentence. Section 29 of the POCSO Act prescribes that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and 9 of the Act, the Special Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. 23. One of the cardinal principles in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence which proves him guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it discharges that burden, a finding of guilt of the accused cannot be recorded. As it is settled that no presumption is absolute and every presumption is rebuttable, the presumption under Section 29 of the POCSO Act cannot be held to be absolute. It cannot also be said that because of such statutory presumption the prosecution version is to be accepted as true in every case. A presumption can be raised only when the necessary foundational facts are established by the prosecution by leading evidence. In respect of a statute where the burden of prove does not lie on the accused, it is for the prosecution to establish the foundational facts first in order to bring the statutory presumption into operation so as to shift onus on the accused to prove the contrary. In respect of a statute where the burden of prove does not lie on the accused, it is for the prosecution to establish the foundational facts first in order to bring the statutory presumption into operation so as to shift onus on the accused to prove the contrary. If the prosecution is relieved from the duty of initial burden of establishing the foundational facts, the only duty that will be left to the prosecution, in view of the presumption under Section 29 of the POCSO Act for offences mentioned therein, is to file a charge sheet against the accused in respect of the said offences and thereafter, to claim that the evidence of the prosecution witnesses are to be accepted as true, thereby, shifting the entire burden on the accused to prove the contrary. Such kind of interpretation of the presumption under Section 29 of the POCSO Act cannot be countenanced so as to displace the cardinal presumption of innocence of the accused till he is found guilty. The Court cannot mechanically accept whatever the prosecution submits before it and give an approval to it as it has the first and foremost duty to examine and analyze the evidence on record of each and every case to render a verdict. 24. On appreciation of the evidence led by the prosecution, the Court is of the opinion that the prosecution had failed to establish the foundational facts and there were inconsistencies which have already been discussed above. As such, the prosecution cannot draw the assistance of the presumption under Section 29 of the POCSO Act in the case in hand. 25. The principle to be followed by an appellate Court while considering an appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. It is settled proposition of law that the first appellate Court being the final Court of fact can re-appreciate, reconsider and review the evidence and take its own decision. In an appeal against acquittal, it is to be kept in view that the presumption of innocence is available to the accused and in criminal jurisprudence, every person is presumed to be innocent unless he is proved guilty by the trial Court. In an appeal against acquittal, it is to be kept in view that the presumption of innocence is available to the accused and in criminal jurisprudence, every person is presumed to be innocent unless he is proved guilty by the trial Court. An order of acquittal shall not be lightly interfered with because the presumption of innocence of the accused is further strengthened by his acquittal by the trial Court. It is also settled legal proposition that if two reasonable views are possible on the basis of the evidence on record, the appellate Court should not disturb the findings of acquittal and the view which is favourable to the accused should be adopted. It is also settled that the prosecution must stand on its own legs by bringing in the guilt of the accused beyond the reasonable doubt and it cannot take advantage of the weakness of the defence case. It is only in respect of a case where an acquittal is based on misconception of law or based on irrelevant grounds, the appellate Court can review the evidence for the purpose of ascertaining as to whether only one conclusion, that is of conviction, can be arrived at on the evidence on record. For the purpose of ascertaining the same, the evidence on record have been re-appreciated, reconsidered and reviewed in the case in hand. Having gone through the same, this Court do not find any compelling and substantial reason to interfere with the ultimate conclusion, reached by the learned trial Court, of acquittal of the respondent on benefit of doubt as in the considered opinion of this Court, all the evidence on record have been duly considered by the learned trial Court in reaching its conclusion. 26. In the light of the above discussion on the evidence on record and the ultimate finding reached by the learned trial Court and in view of the settled position of law in respect of an appeal against acquittal, this Court does not find any merit in the present appeal and the same is, accordingly, dismissed. The LCR be sent back to the Trial Court accordingly.