Case Note & Summary
The appellant, Kisan Harinkhede, was convicted by the Special Judge, Gondia, for offences under Section 376(2)(i) IPC and Section 6 of the POCSO Act for allegedly inserting his finger into the vagina of a three-year-old girl. The incident allegedly occurred on 4 November 2017 when the victim was playing with other children. The victim's mother (PW-2) lodged an FIR after the victim complained of pain. The trial court sentenced the appellant to 20 years' rigorous imprisonment. On appeal, the Bombay High Court examined the evidence. The victim (PW-1) was a child of tender age, and her testimony appeared tutored. The medical evidence (PW-5) showed no injury to the victim's genitals, hymen intact, and no bleeding. The doctor admitted that insertion of a finger would cause pain and possible bleeding. The independent witness Meena did not support the prosecution. The court found major inconsistencies between the victim's and mother's testimonies. The defence of false implication due to a land dispute was considered probable. The High Court held that the prosecution failed to prove the case beyond reasonable doubt, set aside the conviction, and acquitted the appellant.
Headnote
A) Criminal Law - Sexual Offences - Appreciation of Evidence - Child Witness - Corroboration - The court held that the testimony of a child witness must be of sterling quality and free from tutoring. In this case, the victim, aged 3 years 11 months, gave a tutored version, and her mother's evidence was inconsistent. The absence of corroboration from independent witnesses like Meena and the non-examination of material witnesses (father-in-law, sister-in-law) created doubt. (Paras 10-14) B) Criminal Law - Medical Evidence - Absence of Injury - The medical officer found no injury to the victim's genitals, hymen intact, no bleeding. The doctor admitted that insertion of a finger would cause unbearable pain and possible bleeding. The absence of injury, coupled with the victim's normal walking, contradicted the prosecution case. (Paras 10-12) C) Criminal Law - False Implication - Enmity - The defence of false implication due to a land dispute was found probable. The appellant was the cousin father-in-law of the informant, and the incident allegedly occurred in the presence of other children, making it improbable. (Paras 6, 13-14)
Issue of Consideration
Whether the conviction of the appellant under Section 376(2)(i) IPC and Section 6 of the POCSO Act is sustainable based on the evidence of the victim and her mother, especially in light of medical evidence showing no injury and the victim being a child of tender age.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted of all charges. Bail bonds cancelled. Fine, if paid, to be refunded.
Law Points
- Appreciation of evidence in sexual offences
- Corroboration of child witness testimony
- Medical evidence in sexual assault cases
- Tutored witness
- Benefit of doubt
