Date of Judgment:
3rd March 2022
Bench:
Mohd. Aslam, J.
Parties:
Appellant – Amrita Nand @ Tribhuvan Arjariya.
Respondents – The State of Uttar Pradesh & Anr.
Subject
The Hon’ble High Court (hereinafter referred to as ‘Hon’ble High Court’ or ‘the Court’), has held that is not mandatory for the child witness to provide a competency certificate if the child is giving a rational answer that suffices the requirement meted out regarding the competency. In this case, the court noticed that during cross-examination of witnesses, the juvenile witness in issue was responding adequately to all of the questions given to him, thus ruling that competency was of no problems in this case and further statements made by him were declared acceptable.
Legal Provisions
Protection of Children from Sexual Offences Act, 2012
- Section 10 – which states that a serious sexual assault must be punished by imprisonment of either kind for a time not less than five years but not less than seven years, and shall also be subject to a fine.
- Section 4 – which states that whoever commits a penetrative sexual assault will be punished by imprisonment of either kind for a time not less than seven years, but which may be extended to life imprisonment, and shall also be penalized.
Indian Penal Code, 1860
- Section 376 – states the punishment for rape where whosoever commits rape shall be punished with imprisonment of either description for a term not less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his wife and is not under twelve years of age, shall be punished with imprisonment of either description for a term not less than two years or with fine or with both.
- Section 511 – states the penalty for attempting to commit offenses punishable by life imprisonment or additional imprisonments.
Criminal Procedure Code, 1873
- Section 374(2) – states that Any individual convicted on a trial conducted by a Sessions Judge or an Additional Sessions Judge, or on a trial conducted by any other Court, and sentenced to imprisonment for more than seven years against him or any other person convicted at the same trial], may file an appeal with the High Court.
- Section 164 – states any Metropolitan Magistrate or Judicial Magistrate may record any confession or statement given to him during an inquiry.
BRIEF FACTS
- The current appeal was filed in response to the POCSO Court's decision of conviction of a 60-year-old male for sexually abusing a 4-year-old girl child, the appellant/accused was charge-sheeted U/s. 376, 511 of the Indian Penal Code and Section 4 of the POCSO Act, to which he was sentenced to 7 years of rigorous imprisonment.
- The appellant/accused after being arrested by the police the arrested accused was produced before the learned Additional Sessions Judge, the accused pleaded not guilty and requested to be tried for the offense charged U/s 376, 511 of the Penal Code and Section 8 of the POCSO Act, after due observation in the case the charges were amended by the learned Add. Sessions Judge to convicting the accused U.s. 10 of the POCSO Act, to which also the appellant/accused pleaded not guilty.
- Further, to establish their case, the prosecution examined the witnesses and primary informant including the mother and father of (Victim X), additionally to prove the authenticity of the medical reports attested in the submissions, the prosecution called upon the Doctor (PW-5).
- Per contra, the accused denied the allegations made against him by the learned prosecution and has stated that (Victim X) was falsely deposing against the appellant/accused in duress and under influence of her mother, further contending that he was wrongly charge-sheeted under wrong sections and all other allegations made against him were due to personal enmity persisting between him and the victim’s family.
ISSUES RAISED
- Whether a child witness who is below the age of twelve years be considered a competent and rational witness while adjudicating a matter of sexual assault?
ARGUMENTS ADVANCED BY THE APPELLANTS
- The Counsel appearing on behalf of the Appellant contended that the lower court had not issued a certificate of competency to the minor witness, who was also the victim, additionally stating that the PW-1 and PW-4 are not eye-witnesses claiming that they had not given any statements to the Investigating officers, also as per the statement given by Dr. Usha Singh (PW-5) no actual injury was discovered on the body and the private parts of the (Victim X).
- Further, the Counsels for the appellant pleaded that the deposition by (Victim X) was inadmissible since the lower court has not given any certificate regarding intellectual competency of the (Victim X).
- Likewise, the Counsels for the appellant to substantiate their contentions relied on the case of P. Ramesh v. The state represented by Inspector of Police.
- Additionally, learned counsel has contended that as per the statements recorded of the (Victim X) she has told her that she was lured into the accused house where after asking the victim to take offer her clothes the accused went on to get ropes and in between that the (Victim X) fled the premises in which she was taken thus indicating that there was no sexual assault committed on the part of the accused because none of the private parts touched in the sequence.
ARGUMENTS ADVANCED BY THE RESPONDENTS
- The Counsel appearing on behalf of the respondents contended that the prosecution examined the witnesses and primary informant including the mother and father of (Victim X), additionally to prove the authenticity of the medical reports attested in the submissions, the prosecution called upon the Doctor (PW-5).
- Furthermore, the counsel for the respondents has examined witnesses of the fact, informant Avadhesh Kumar Soni as PW-1 (father of the victim X), who has also proven the Tahrir report Ex.Ka-1, Smt. Khusbu (mother of victim X) as PW-2, victim X as PW-3, and witness Ajay Kumar as PW-4, who has turned hostile in cross-examination. In secondary evidence, the prosecution examined Dr. Usha Singh as PW-5 to prove the medical report and Ct. Anup Kumar Sachan to prove the charge-sheet Ex.Ka-4 and site plan Ex.Ka-5.
ANALYSIS BY THE COURT
- The Hon’ble High Court was of the opinion that the Judge was free to test the capacity of the child witness by questioning him/her in order to determine whether the child is capable of understanding the circumstances that had occurred and speaking the truth in front of the Court.
- Furthermore, the Court opined that the Oral testimony of a witness can be valued by weighing his testimony against the testimonies of the other witnesses and considering his cross-examination if he remains uncontroverted in the cross-examination.
- The Court relied on the Supreme Court's decision in Dattu Ramrao Sakhare vs State of Maharashtra, which held that if the Court is satisfied that a child witness under the age of 12 is a competent witness, he or she can be examined without oath or affirmation.
- Additionally, the Court observed that there is no absolute presumption, and every presumption is rebuttable. The presumption under Section 29 of the POCSO Act cannot be said to be absolute it would go into effect only after the prosecution was able to establish the fact, which would serve as the foundation for the presumption to operate under Section 29 of the POCSO Act.
- Likewise, observing that the presumption under Section 29 of the POCSO Act cannot be accepted because it would clearly violate the constitutional mandate that no one can be deprived of liberty except in accordance with the legal procedure.
- Thus, The appeal was denied, and the lower court's decision was upheld.
CONCLUSION
Rejecting the appeal and upholding the decision given by the lower court the Hon’ble High Court stated that the POCSO Act was enacted to eliminate the threat of children especially girl children becoming a victim of sexual offenses, and the provisions of the POCSO Act shall be interpreted in a way that the prevalent scourage can be eradicated, and the court should remain cautious in the interpretation of the provision to give appropriate rulings.
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