Case Note & Summary
The appellant, Ajay Dhengre, was convicted by the learned Principal District & Sessions Judge, Nagpur in Special Criminal Case No.48/2016 for offences under Sections 354 and 323 of the Indian Penal Code (IPC) and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). He was sentenced to rigorous imprisonment for three months under Section 323 IPC, no separate sentence under Section 354 IPC, and rigorous imprisonment for five years with a fine of Rs.5000 under Section 8 POCSO Act. The appellant appealed against this conviction. The prosecution case was that on the night of 9th August 2015, at about 12:30 am, the appellant, who is the father of the prosecutrix (a minor girl studying in XI standard), came near her while she was sleeping and fondled her breasts and private parts. This act was allegedly repeated for 2-3 nights. The prosecutrix then went to the house of her maternal aunt, Maya Mendhe (PW2), and on 15th August 2015, the aunt lodged an FIR. The appellant was charged and convicted. The High Court, after hearing the appeal, examined the evidence. The prosecutrix (PW1) testified that the incident occurred on 9th August 2015 at 12:30 am, but her maternal aunt (PW2) stated that the prosecutrix came to her house on 15th August 2015 and told her about the incident. The court found inconsistencies in the testimonies regarding the date and time of the incident. The medical evidence did not support the allegations. The court also noted that there was a delay of six days in lodging the FIR without any satisfactory explanation. The court held that the prosecution failed to prove the case beyond reasonable doubt due to the inconsistent and unreliable testimony of the prosecutrix and lack of corroboration. The court allowed the appeal, set aside the conviction and sentence, and acquitted the appellant.
Headnote
A) Criminal Law - Sexual Assault - POCSO Act, 2012, Section 8 - Conviction based on sole testimony of child victim - Inconsistencies and contradictions in the testimony of the prosecutrix and her maternal aunt regarding the date and time of the incident, coupled with lack of corroboration from medical evidence and delay in lodging FIR, led to the conclusion that the prosecution failed to prove the case beyond reasonable doubt - Held that the appellant is entitled to benefit of doubt and acquittal (Paras 1-10). B) Evidence Law - Child Witness - Credibility - The testimony of a child witness must be scrutinized with care, and if found to be inconsistent and unreliable, cannot form the basis of conviction - In the present case, the prosecutrix's testimony was found to be contradictory to that of her maternal aunt and the medical evidence, rendering it unsafe to rely upon (Paras 5-8).
Issue of Consideration
Whether the conviction of the appellant under Sections 354 and 323 of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012 is sustainable based on the evidence on record.
Final Decision
The appeal is allowed. The judgment and order dated 20th June 2016 passed by the learned Principal District & Sessions Judge, Nagpur in Special Criminal Case No.48/2016 is set aside. The appellant is acquitted of all charges. His bail bonds stand discharged.
Law Points
- Benefit of doubt
- Inconsistent testimony
- Lack of corroboration
- POCSO Act
- Section 8
- Section 354 IPC
- Section 323 IPC
- Child witness
- Maternal aunt testimony
- Delay in FIR
- Medical evidence
