Case Note & Summary
The High Court of Karnataka, Kalaburagi Bench, heard a criminal appeal filed by the convicted appellant challenging the judgment of conviction dated March 16, 2017, and sentence dated March 18, 2017, passed by the II Additional Sessions and Special Judge, Vijayapur, in Special Case (POCSO) No. 10/2016. The appellant was convicted for an offence under Section 5(m) of the Protection of Children from Sexual Offences Act, 2012, punishable under Section 6 of the Act, and sentenced to rigorous imprisonment for ten years with a fine. The case arose from an incident on January 10, 2016, when a minor victim, aged about seven years, was allegedly sexually assaulted by the appellant. The prosecution alleged that the victim and her brother had gone to collect firewood near Kashi Muthya Temple when the appellant, under the guise of helping, took the victim to an isolated land and committed penetrative sexual assault. The victim's mother lodged a complaint leading to the registration of FIR for offences under Section 376 of the Indian Penal Code, Section 5(m) of the POCSO Act, and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. After investigation, a charge-sheet was filed. The Special Court framed charges, and upon trial, examined nineteen witnesses and marked exhibits. The prosecution relied on the testimony of the victim, her relatives, and official witnesses. During trial, the complainant mother, father, grandmother, and most witnesses turned hostile and did not support the prosecution case. The victim, examined as P.W.15, initially denied the incident but later in cross-examination admitted that the appellant had given her trouble and that she had gone to the spot with her brother. The prosecution also produced the victim's birth certificate showing her date of birth as August 21, 2008, establishing her age as less than eight years at the time of the offence. The appellant denied all charges and led no defence. The Special Court convicted the appellant solely under the POCSO Act. On appeal, the High Court examined whether the prosecution case was proved despite the hostile witnesses. The court observed that the maxim false in uno falsus in omnibus does not apply in India and that the evidence of hostile witnesses can be relied upon to the extent it supports the prosecution. It found that the victim's age was conclusively proved and was undisputed. The court also noted a serious procedural violation: the victim was recalled for further cross-examination on December 5, 2016, even though her evidence had been completed on November 10, 2016, contravening Section 33(5) of the POCSO Act, which prohibits a child from being called repeatedly to testify. The court deprecated this practice. However, the available text of the judgment did not set out the final determination of the appeal. The court was in the process of analysing the evidence and legal principles, leaving the ultimate decision unstated.
Headnote
A) Criminal Law - Evidence - Hostile Witness - Indian Evidence Act, 1872 - The court discussed that the maxim false in uno falsus in omnibus is not applicable in India; the evidence of a hostile witness can be partly relied upon if it supports the prosecution case. The court referred to Sat Paul v. Delhi Administration, and held that the trial court correctly considered the testimony of witnesses who turned hostile, and such evidence could not be discarded in its entirety. (Paras 11-14, 18) B) Criminal Law - Protection of Children from Sexual Offences Act, 2012 - Age of Victim - Sections 5(m), 6 - The court found that the prosecution proved the victim's age as 7½ years on the date of incident through Ex.P-23 (birth certificate), which was unchallenged; thus the victim fell within the definition of child under the Act. (Para 10) C) Criminal Procedure - Protection of Children from Sexual Offences Act, 2012 - Child Witness - Section 33(5) - The court observed that recalling the victim for further cross-examination after completion of her evidence violated Section 33(5) which mandates that a child shall not be called repeatedly to testify, and deprecated such practice. (Para 17) D) Criminal Law - Evidence - Testimony of Victim - Protection of Children from Sexual Offences Act, 2012 - The court noted that even though the victim turned hostile, she admitted during cross-examination that the accused gave her trouble and that she and others had gone to collect firewood where the accused came; this admission lent credibility to the prosecution case. The court held that such part of evidence could be used to support the conviction. (Paras 15-17)
Issue of Consideration
Whether the conviction under Section 6 of the POCSO Act is sustainable despite hostile witnesses; Whether the evidence of the victim and other witnesses supports the prosecution case; Whether the recalling of the child victim violated Section 33(5) POCSO
Law Points
- maxim false in uno falsus in omnibus not applicable in India
- hostile witness evidence partly reliable
- age of victim proved by birth certificate
- violation of Section 33(5) POCSO deprecated
