Courts have often supported those falsely accused in POCSO cases and said that while wrongful acquittal shakes the confidence of people, wrongful conviction is worse as the accused faces social stigma
The Delhi High Court, while acquitting a man convicted under the Protection of Children from Sexual Offences (POCSO) Act, observed that a child abuser if accused falsely, also suffers the blot of social stigma, which is more painful than the rigours of a trial and imprisonment.
Justice Anoop Kumar Mendiratta of the High Court allowed an appeal and set aside the judgment of the trial court, under Section 376/354/506/509 IPC and Section 8/10 of POCSO Act. The petitioner was sentenced for the offence punishable under Section 10 of POCSO Act, 2012 to rigorous imprisonment for five years and fine. He was also directed to pay compensation of Rs 20,000 to the victim.
In September 2016, a written complaint was given by the victim, aged about 12 years, claiming that she was living with her grandmother, uncle and aunty as her father had expired. Her aunt’s brother used to visit their house and teach her wrong things, she alleged.
In September 2016, when he came to their house, she went to meet him where he started kissing her and pressing her chest. She somehow released herself and ran away. In the evening, the appellant threatened to kill her in case she made any complaint against him. She remained upset for many days and disclosed the incident to her grandmother. An FIR was accordingly registered under Section 354/509/506 IPC and Section 8/10 of the POCSO Act.
The Court noted that there was a matrimonial dispute between the uncle and aunt of the victim, due to which the appellant along with his father and other persons had visited the house for resolution of the matrimonial dispute. A call was made to the police after the quarrel. After the visit of the police, the aunt, along with her child, appellant and other persons, proceeded to her parental home. The fact that the police visited the site due to the quarrel on a call made by the victim is not disputed.
Keeping in mind this state of affairs, the delay in lodging the FIR along with variations and contradictions in the statement of the victim assumes significance. The Court noted that the victim had made a written complaint and made calls after the incident, and this shows that she was fully capable of understanding the facts and consequences of the incident.
Though the police reached the spot, the incident was never revealed to them for five days. The reasons extended by the victim for the delay in lodging the complaint did not match with the contradictions brought out in her testimony and the grandmother’s.
In her statement under Section 164 CrPC, the victim categorically stated that the appellant had touched her inappropriately and she had disclosed this to her grandmother, after which he beat up the grandmother and the uncle. In case such an incident had occurred, there was no reason that grandmother or uncle would not have disclosed this to the police officials who had visited the home. Complete silence for five days after the incident cast a deep shadow of doubt on the prosecution case, the Court said. Further, it noted that the victim has been changing her version.
In the light of the contradictions, the Court said that it cannot be ruled out that the case was based on tutoring or fabrication due to animosity and matrimonial dispute. The bench noted that the victim also refused an internal medical examination. The High Court said that the trial court completely missed appreciating the contradictions. The appellant’s defence was also supported by police entries, and deposition of witnesses who were there to resolve the disputes was trustworthy.
The Court said that if the victim was told dirty things by the appellant, she would not have gone to meet him on her own. The fact that the aunt was not examined by the investigating agency to even confirm if such an incident had happened, reflects that the allegations were accepted at face value. The appellant was convicted by the trial court despite strong evidence to the contrary. The High Court observed that the quarrel at the time of the incident and matrimonial differences provided a strong motive for falsely implicating him.
Section 29 of the POCSO Act provides that the Court shall presume that the accused committed the offence for which he was charged until the contrary is proved. However, the presumption would operate only when the prosecution proves the foundational facts in the context of the allegation against the accused beyond reasonable doubt. After that, the presumption against the accused can be rebutted by discrediting the prosecution witnesses through cross-examination and demonstrating the gaps in the prosecution version.
The Court said that as per the evidence and statements during the investigation, different dates of the alleged communication of the incident throw doubt on the prosecution version. “The presumption of guilt under Section 29 & 30 of POCSO Act taken by the learned Trial Court could not be an edifice to convict the appellant since testimony of victim is unreliable and there are serious flaws and gaps in the prosecution case. As a wrongful acquittal shakes the confidence of people, a wrongful conviction is far worse. A child abuser in the eventuality of false implication even continues to suffer a blot of social stigma which is much more painful than the rigours of a trial and imprisonment. Prosecution case is marred by inadequacies and contradictions which strike to the root of prosecution case and, as such, prosecution has failed to bring home the charge against the accused beyond reasonable doubt,” the order read.
Other cases of a similar nature abound. Recently, the Delhi High Court acquitted two individuals accused of a murder committed over 26 years ago. Justices Suresh Kumar Kait and Manoj Jain expressed doubts about the reliability of the witnesses’ testimonies. The victim’s body was discovered on a railway track in July 1997, leading to the subsequent arrest of the appellants.
In another case, the Supreme Court acquitted a man who was convicted in a 1998 murder case. A bench of Justices BR Gavai and Sandeep Mehta allowed an appeal by a man challenging the verdict of the Punjab and Haryana High Court which had affirmed the trial court’s May 1999 order convicting and sentencing him to life imprisonment.
In February this year, the Supreme Court acquitted a man charged with abetting the suicide of his wife after 30 years. A bench of Justice JB Pardiwala and Justice Manoj Misra said that a man cannot be held guilty for abetment of his wife’s suicide within seven years of marriage unless there is cogent evidence of harassment or cruelty.
Vishnu Tiwari, a UP man, was arrested on September 16, 2000, for rape and atrocities under the SC/ST Act. However, in January 2021, he was pronounced innocent by the Allahabad High Court.
So justice should not only be done, but should also be seen to be done.
—By Shivam Sharma and India Legal Bureau