2021 (1) TMI 1262 - HC - Indian Laws

Misbehaviour with the victim - framing of charges for offence under section 354 IPC and Section 7 of the POSCO Act - accused has denied the charges and claimed to be tried - HELD THAT - Admittedly on the side of the prosecution, totally 10 witnesses were examined out of which, P.W.1 is the victim. She has clearly deposed that she is working in the private textile mill; on 26.10.2014 since it was Sunday she did not go to the mill, she went along with her father for grazing cattles. At about 4 p.m., father told the victim to go to the house with the cow. While going to home along with the cow, the appellant intercepted and misbehaved with her. Immediately she raised her voice. After hearing the voice of his daughter, P.W.2 father rushed there. Subsequently, the appellant left from the scene of occurrence. The same was immediately informed to the father and father also informed to his wife i.e., mother of P.W.1. It is the usual practice in the villages, if anything happened to a girl child, parents may not immediately go to the police station for their grievances because they would think about the future of the child. It is settled proposition of law that lapse on the part of the prosecution should not lead unmerited acquittal, subjected to rider that in such a situation, evidence on record should be clinching so that lapses of prosecution can be condoned. In a case like this, the Court has to consider the suffering of the victim and testify the veracity of evidence of the prosecution witnesses. The aspect regarding whether the complainant has given the complaint immediately, registered the FIR immediately, and whether the Police sent the FIR to the Court immediately or not are all beyond the control of the victim, for which defects on the part of the investigating officer, which purely arose due to the lethargic attitude of the investigating officer, for which, the victim would not be made to suffer. This Court cannot take any hypothetical view in this case since there is no serious infirmity in the prosecution case. Mere technicalities should not be allowed to stand in way of administration of Justice. A reading of the evidence of victim clearly shows that the offence under section 7 of POCSO Act is committed by the appellant. This Court carefully seeing the evidence of the victim girl, which is cogent and trustworthy. Her evidence was corroborated by her father who was examined as P.W.2. If the evidence of sole witness is cogent, incredible and trustworthy conviction is permissible. The evidence of interested witnesses, if found to have creditworthiness, conviction could be based on uncorroborated testimony. A careful reading of the evidence of the victim girl and her father P.W.2, this Court does not find any reason to discard the same. The prosecution has established its case beyond all reasonable doubt. The trial Court has given the reasons for conviction and therefore, petition under Section 391(1)Cr.P.C., is concerned, those documents were very much available even at the time of trial and examination of the witnesses - As far as the case on hand is concerned, it comes under POSCO Act and the minor girl clearly had stated that she undergone sexual harassment and in such situation, the parents of the minor girl will not boldly come out immediately and lodge complaint but used to think about the future of the girl and also approach the village elders; if they are not able to get any solution, then they will approach the police station. In this case also, they have done the same. The appellate Court is a fact finding Court, which has to necessarily re-appreciate the entire evidence and give independent finding. Accordingly, this Court also finds that the appellant has committed offence under section 7 which is punishable under Section 8 of POCSO Act 2012 and the trial Court rightly appreciated the evidence and convicted the appellant and sentenced him to undergo three years rigorous imprisonment and to pay fine of Rs.5,000/- in default to undergo six months simple imprisonment. Therefore this Court does not find any merit in the appeal and the Criminal Appeal is dismissed. Appeal dismissed.

Summary

Issues Involved:
1. Delay in lodging the complaint and FIR.
2. Credibility of witnesses and evidence.
3. Applicability of Section 391(1) Cr.P.C.
4. Justification of the conviction under Section 8 of the POCSO Act.

Detailed Analysis:

1. Delay in lodging the complaint and FIR:
The appellant argued that there was an inordinate delay in lodging the complaint and that the prosecution failed to provide an acceptable explanation. The complaint was allegedly lodged on 01.11.2014 but reached the court only on 05.11.2014. The court noted that in villages, it is common for victims to first approach village elders before going to the police, especially in sensitive cases involving minors. The court found the delay reasonable given the context and ruled that mere delay should not lead to an unmerited acquittal if the evidence is otherwise credible.

2. Credibility of witnesses and evidence:
The prosecution presented 10 witnesses, including the victim (P.W.1) and her parents (P.W.2 and P.W.3). The victim's testimony was found to be cogent and trustworthy, corroborated by her father. The court emphasized that the evidence of interested witnesses could be credible if found trustworthy. The appellant's argument that the victim was not subjected to medical examination was dismissed since the allegation was not of penetrative sexual assault but of sexual harassment, which did not necessitate a medical examination. The court held that the evidence was sufficient to establish the appellant's guilt beyond a reasonable doubt.

3. Applicability of Section 391(1) Cr.P.C.:
The appellant filed a petition under Section 391(1) Cr.P.C. to introduce additional evidence. The court found that the documents were available during the trial but were not presented or suggested to the witnesses. The court ruled that invoking Section 391(1) Cr.P.C. was an afterthought and not in the interest of justice. The additional evidence was deemed irrelevant to the case at hand, and the petition was dismissed.

4. Justification of the conviction under Section 8 of the POCSO Act:
The trial court convicted the appellant under Section 8 of the POCSO Act, sentencing him to three years of rigorous imprisonment and a fine of Rs.5,000/-. The appellate court re-appreciated the evidence and upheld the conviction, finding no merit in the appeal. The court emphasized that the victim's testimony was clear and credible, and the trial court had rightly appreciated the evidence.

Conclusion:
The court dismissed the appeal and the petition under Section 391(1) Cr.P.C., affirming the trial court's judgment. The appellant was directed to be taken into custody to serve the remaining sentence. The court reiterated that technicalities should not obstruct the administration of justice, especially in cases involving the protection of minors under the POCSO Act.