Case Note & Summary
The appellant, Bandu s/o Natthuji Raut, was convicted by the Special Judge, Yavatmal, for offences under Sections 451, 376(2)(i)(j)(1) of the Indian Penal Code and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). He was sentenced to rigorous imprisonment for ten years and a fine. The case was based on the testimony of two child witnesses, Mayur (PW2) and Gayatri (PW4), who claimed to have witnessed the incident. The victim, a mentally challenged girl, was not examined during the trial. The appellant appealed to the Bombay High Court, Nagpur Bench. The appellant's counsel argued that the evidence was insufficient to prove the charges, particularly highlighting that the child witnesses admitted to being tutored and their testimony did not establish penetration. The court analyzed the evidence and found that the prosecution failed to prove the essential ingredient of penetration for the offence of rape under Section 376 IPC and aggravated penetrative sexual assault under the POCSO Act. The court noted that the child witnesses' testimony was unreliable due to tutoring and lack of corroboration. Consequently, the court allowed the appeal, set aside the conviction and sentence, and acquitted the appellant of all charges. The court, however, observed that the evidence might suggest offences under Sections 354A and 354B IPC read with Section 8 of POCSO Act, but no such charges were framed.
Headnote
A) Criminal Law - Rape and POCSO - Child Witness Testimony - Tutored Witness - The conviction based on testimony of child witnesses who admitted to being tutored and whose evidence lacked corroboration on the crucial aspect of penetration was held unsustainable. The court found that the prosecution failed to prove the offence of rape or aggravated penetrative sexual assault beyond reasonable doubt. (Paras 1-3) B) Criminal Law - Rape - Penetration - Essential Ingredient - For an offence under Section 376 IPC, proof of penetration is essential. The evidence of the child witnesses did not establish penetration, and the medical evidence did not support the case of rape. The court held that the offence, if any, could be under Sections 354A and 354B IPC read with Section 8 of POCSO Act, but not under the charged sections. (Paras 2-3)
Issue of Consideration
Whether the conviction of the appellant under Sections 451, 376(2)(i)(j)(1) IPC and Sections 4 and 6 of the POCSO Act is sustainable based on the testimony of child witnesses who were allegedly tutored and where the victim was mentally challenged and not examined.
Final Decision
The appeal is allowed. The judgment and order dated 09.05.2016 in Special Case (POCSO) 37/2013 is set aside. The appellant is acquitted of all charges. His bail bonds stand discharged.
Law Points
- Child witness testimony
- Tutored witness
- Corroboration
- Penetration requirement for rape
- Section 376 IPC
- POCSO Act
- Section 451 IPC
- Section 354A IPC
- Section 354B IPC
