Case Note & Summary
The case arises from an incident on 26 January 2016, when the informant, a 16-year-old girl, along with her cousin sister, was walking to school for Republic Day flag hoisting. According to the FIR, accused No.1 and 3 got out of a white Indica car, caught hold of the informant and her cousin, and attempted to drag them into the car with ill intention. Accused No.2 was the driver. The girls shouted for help, and school teachers and students arrived, causing the accused to flee. The trial court convicted all three accused under Section 354-A IPC, Section 363/511 read with 34 IPC, and Section 8 of the POCSO Act. The appellants challenged the conviction. The High Court noted that the victim (PW-1) and her cousin (PW-2) were declared hostile and did not support the prosecution case. They denied any incident of dragging or sexual harassment. The only other witnesses were police officers and the investigating officer. The court found that the prosecution failed to prove the case beyond reasonable doubt. The FIR was lodged after a delay, and there were material contradictions. The court held that the conviction cannot be based solely on the FIR when the victim herself does not support it. The court also noted that the medical evidence did not corroborate the allegations. Consequently, the court allowed the appeals, set aside the conviction, and acquitted the appellants.
Headnote
A) Criminal Law - Hostile Witness - Corroboration - Indian Evidence Act, 1872, Section 154 - When the victim and other material witnesses turn hostile and do not support the prosecution case, the conviction cannot be sustained solely on the basis of the FIR and police witnesses, especially when there are material contradictions and inconsistencies. (Paras 10-14) B) Criminal Law - Attempt to Kidnap - Section 363 read with Section 511 IPC - The prosecution must prove beyond reasonable doubt that the accused took or enticed the minor with intent to compel her to illicit intercourse. In the absence of credible evidence, the charge of attempt to kidnap fails. (Paras 11-13) C) Criminal Law - Sexual Harassment - Section 354-A IPC - The offence requires that the accused makes unwelcome physical contact or advances. When the victim does not depose about any such act, the conviction under this section cannot be maintained. (Paras 12-14) D) Criminal Law - POCSO Act - Section 8 - Aggravated sexual assault - The prosecution must prove sexual assault as defined under Section 7 of the POCSO Act. Failure to examine the victim or produce corroborative evidence leads to acquittal. (Paras 13-15)
Issue of Consideration
Whether the conviction of the appellants under Section 354-A IPC, Section 363/511 read with 34 IPC, and Section 8 of the POCSO Act is sustainable based on the evidence on record.
Final Decision
The appeals are allowed. The conviction and sentence imposed by the learned Special Judge, Majalgaon, Dist. Beed in Special (CHILD) Case No.06 of 2016 on 12-02-2020 are set aside. The appellants are acquitted of all charges. Their bail bonds stand cancelled.
Law Points
- Acquittal due to hostile witnesses
- lack of corroboration
- benefit of doubt
- Section 354-A IPC
- Section 363/511 IPC
- Section 8 POCSO Act
