State sought leave to appeal against a trial court's acquittal in a POCSO case involving a seven-year-old survivor who retracted her testimony in cross-examination. Noting intact hymen, absence of injuries, and unsupported prosecution witnesses, this court found no ground to disturb the acquittal.
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Date of decision: 24th September, 2024
STATE .....Petitioner Through: Mr. Ritesh Kumar Bahri, APP for the State with Mr. Lalit Luthra, Advocate. SI Kunal Kishor, PS Roop Nagar.
versus
OM PRAKASH .....Respondent Through: Mr. H. K Naik, Advocate.
CORAM: JUSTICE PRATHIBA M. SINGH JUSTICE AMIT SHARMA
Prathiba M. Singh, J. (Oral)
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CRL.L.P. 169/2021
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inappropriate acts with her. The survivor also alleged that he thereafter committed aggravated penetrative sexual assault. It was under these circumstances that the chargesheet was filed before the Court of competent jurisdiction and charges were framed against the Respondent.
“35. It is pertinent to note however in her cross-examination by Ld. Counsel for accused, the Prosecutrix took a complete turnaround from her examination in chief recorded in the matter and stated that she had deposed in her examination in chief at the behest of one Manju Auntie, In her crossexamination, the Prosecutrix stated · that she white-wash was. being carried out in her house and a box of liquid 'paint had fallen down because of her and that due to spilling over of the paint, accused / painter had scolded the children and also slapped the Prosecutrix and when she came downstairs while weeping, she informed about the incident to her mother in the presence of their neighbour Manju Auntie. The Prosecutrix also affirmed that the accused had not done anything wrong with her and that she had deposed earlier at the instance of what was told to her by Manju Auntie; Accordingly, at the stage of her cross-examination by Ld. Counsel for the accused, the Prosecutrix categorically
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denied that any offence of sexual assault had been committed by the accused.
36. The Prosecutrix was thereafter re-examined by Ld. Addi. PP for State and when the version of the Prosecutrix given by her in her examination in chief was put to her, the Prosecutrix deposed that "aisa kuch nahi hua tha maine Manju Auntie ke kehne par sab bola tha" . When a specific question was asked as to what was told to her by the said Manju Auntie, she started that she did not remember what the said Manju Auntie told her. However, the Prosecutrix denied the suggestion that nothing was told to her by said Manju Auntie and therefore she was unable to recall the same.
37. Hence the Prosecutrix in her cross-examination did not support the allegations of penetrative sexual assault by the accused and stated that the accused had been implicated in the present case owing, to the accused scolding and slapping her, as when she came downstairs crying, her mother was present and the accused was falsely irnpUcated.at the behest of one Manju Auntie.
38. It is noteworthy that the Prosecutrix was examined in chief initially on 28,09.2016 and on 11.10.2017 and on the said dates of hearing, the Prosecutrix supported the allegations of sexual assault by the accused, It is also relevant to note that on 11.10.2017, the Prosecutrix was declared hostile by Ld. Addl. 'pp for State and was crossexamined by him wherein though the Prosecutrix denied the fact that the accused had gagged her mouth while taking her to the room and also denied that the accused threatened to beat her, however, the Prosecutrix maintained that she made the allegations of sexual assault in her .complaint. The Prosecutrix also maintained that she stated to the police in the complaint that the accused had done wrong act with her 3-4 times prior to the abovesaid incident also.
39. The examination in chief of the Prosecutrix was initially recorded on 28.09.2016 and her further cross-examination was deferred as the FSL report and case property had not been received. Further examination in chief of the Prosecutrix took place on 11.10.2017 and after putting the clothes of the Prosecutrix to her for identification, the Prosecutrix was declared hostile by Ld. Addl. PP for State
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and was cross-examined by him wherein she deposed as discussed hereinabove. Thereafter, the cross-examination of the Prosecutrix was deferred as the Counsel for accused was not available owing to Lawyers abstaining work due to strike. The cross examination of the Prosecutrix was thus conducted by Counsel for accused on 23.03.2018 and on that date, the Prosecutrix did not support tile prosecution version and took a U-turn and gave a different version viz-a-viz her version given in her examination in chief.”
“6.The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such a witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.”
The Trial Court, however, had considered the medical evidence in the matter, including the MLC, and had finally acquitted the Respondent-Accused.
1 (1991) 3 SCC 627
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survivor has also tried to give an explanation as to why she had changed her version from the examination-in-chief in the cross-examination, wherein, she has stated that she was told by her chachi to give such evidence against the Respondent.
PRATHIBA M. SINGH JUDGE
AMIT SHARMA JUDGE
SEPTEMBER 24, 2024 /sn/Am
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1 issue framed by the court
Whether leave to appeal should be granted against acquittal under Section 6 POCSO where the survivor turned hostile and medical evidence belied penetrative assault.
Colour shows how this judgement treated each authority
Khujji @ Surendra Tiwari v. State of Madhya PradeshReferred¶5
(1991) 3 SCC 627 · Who else cites this
2 provisions across 2 enactments
State
Om Prakash
Prathiba M. Singh
Amit Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Prathiba M. Singh and Amit Sharma
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