Case Note & Summary
The appellant, Raju Vishwanath Sable, was convicted by the Additional Sessions Judge, Aurangabad on 25.10.2018 in Special Case (POCSO) No. 46 of 2015 for offences under Sections 376(1), 323 IPC and Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012. The prosecution alleged that on 09.03.2015, the appellant took a 4-year-old girl to a toilet, inserted his finger and then his male organ into her vagina, and closed her mouth when she cried. The grandmother (informant) lodged an FIR, and after investigation, the appellant was charge-sheeted. The trial court convicted him based primarily on the testimony of the child victim (PW1) and other witnesses. In appeal, the appellant argued that the evidence was unreliable and contradictory. The High Court examined the child's testimony and found material inconsistencies: the child initially stated in her Section 164 CrPC statement that the appellant inserted his finger, but in court she claimed he inserted his male organ. The medical evidence (PW5 doctor) showed no signs of penetration or injury, and the child's hymen was intact. Other prosecution witnesses (PW2 grandmother, PW3 neighbour) were not eyewitnesses and their testimony was hearsay or contradictory. The court held that the prosecution failed to prove the case beyond reasonable doubt. The conviction was set aside, and the appellant was acquitted. The court also directed his release unless required in another case.
Headnote
A) Criminal Law - Rape and Sexual Assault - POCSO Act - Sections 376(1), 323 IPC, Sections 4, 8 POCSO Act - Conviction based on child witness testimony - Held that the testimony of the child victim (PW1) was inconsistent, contradictory, and not corroborated by medical evidence or other witnesses; the child's statement under Section 164 CrPC and court testimony differed materially; medical evidence did not support penetration; hence conviction set aside and appellant acquitted (Paras 1-20).
Issue of Consideration
Whether the conviction of the appellant under Sections 376(1), 323 IPC and Sections 4 and 8 of POCSO Act is sustainable based on the evidence on record.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted of all charges. He be set at liberty unless required in any other case.
Law Points
- Conviction under POCSO Act requires corroboration of child testimony
- Medical evidence inconsistent with allegations
- Benefit of doubt when prosecution case suffers from material contradictions
Case Details
2024 LawText (BOM) (01) 103
Criminal Appeal No. 619 of 2021 with Criminal Application No. 760 of 2022
Mr. P. S. Paranjape (Appellant), Mr. N. D. Batule (APP for State), Mr. Vivek M. Lomte (Respondent No.2)
Raju S/o. Vishwanath Sable
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Nature of Litigation
Criminal appeal against conviction for rape and sexual assault of a minor under IPC and POCSO Act.
Remedy Sought
Appellant sought acquittal by setting aside the conviction and sentence dated 25.10.2018 passed by Additional Sessions Judge, Aurangabad in Special Case (POCSO) No. 46 of 2015.
Filing Reason
Appellant was convicted for offences under Sections 376(1), 323 IPC and Sections 4, 8 POCSO Act and sentenced to imprisonment; he challenges the conviction on grounds of unreliable evidence.
Previous Decisions
Trial court convicted the appellant on 25.10.2018 in Special Case (POCSO) No. 46 of 2015.
Issues
Whether the testimony of the child victim (PW1) is reliable and consistent?
Whether the medical evidence corroborates the allegation of penetration?
Whether the prosecution has proved its case beyond reasonable doubt?
Submissions/Arguments
Appellant's counsel argued that the child's testimony was inconsistent, contradictory, and not corroborated by medical evidence or other witnesses; the child's statement under Section 164 CrPC differed from her court testimony; medical evidence showed no signs of penetration.
Respondent/State argued that the child's testimony was credible and sufficient for conviction, and that the trial court had correctly appreciated the evidence.
Ratio Decidendi
In a case of sexual assault on a minor, the testimony of the child victim must be reliable, consistent, and corroborated by medical or other evidence. If the child's testimony suffers from material contradictions and the medical evidence does not support the allegation of penetration, the prosecution fails to prove its case beyond reasonable doubt, entitling the accused to acquittal.
Judgment Excerpts
A convict for offence under sections 376(1), 323 of Indian Penal Code (IPC) and for offence under sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), is hereby questioning the judgment and order passed by learned Additional Sessions Judge, Aurangabad dated 25.10.2018 in Special Case (POCSO) No. 46 of 2015.
Learned counsel for appellant would point out that at the outset, there is no trustworthy, reliable account of any of the witness so as to accept the case of prosecution.
Procedural History
FIR lodged on 09.03.2015; investigation by PW9 API Pushpa Patil; charge-sheet filed; trial held in Special Case (POCSO) No. 46 of 2015; conviction and sentence on 25.10.2018 by Additional Sessions Judge, Aurangabad; appeal filed on 2021; reserved on 16.01.2024; pronounced on 24.01.2024.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 376(1), 323
- Protection of Children from Sexual Offences Act, 2012 (POCSO Act): 4, 8
