Criminal Appeal No. 990 of 2019..WHETHER THE COURT CAN CONVICT ACCUSED IN POCSO CASE IF VICTIM AND HER FAMILY MEMBERS HAVE TURNED HOSTILE?

1. WHETHER THE COURT CAN CONVICT ACCUSED IN POCSO CASE IF VICTIM AND HER FAMILY MEMBERS HAVE TURNED HOSTILE?
2. The principle on the point of considering the part of testimony of hostile witness comes into picture only when Court can separate:-

(a) the part which is deposed by the witness in favour of the prosecution and;

(b) the part which is not deposed in favour of the prosecution.

8. Furthermore, this principle will not come into picture, if the prosecution witness has totally resiled and not deposed a single fact thereby either implicating the accused or showing some connection with the accused. For e.g.- if the first informant/victim only admits signature on FIR but does not depose single fact in favour of the prosecution, then how the ‘law on the point of hostile witness’ will come into picture. Trial Court has not at all gone into all these issues and erroneously concluded about the guilt of the accused. I will deal with this principle vis-a-vis facts in latter part of my judgment.

• About view of this Court on hostile witness

8. As said above, when the evidence of hostile witness is appreciated, there are various angles. They can be summarized as follows :–

• Types of hostile witnesses

a. A witness has turned total hostile mean to say that he has not deposed single fact in chief examination appearing in previous police statement.

b. A witness has deposed few facts only but omitted to depose remaining facts as per his police statement.

c. A witness has not deposed a single fact but when he is cross examined by A.P.P. in charge, then he has admitted to suggestive questions put to him.

37. If such are the possibilities faced by the criminal court, how one can make general proposition that ‘evidence of hostile witness cannot be brushed aside totally’?. Ultimately it depends upon the extent of resiling from previous statement while giving evidence before the Court. The law laid down by Hon’ble Supreme Court on the point of ‘evidentiary value to be attached to testimony of hostile witness’ need to be applied on the set of facts and circumstances of each case.
38. On this background, it needs to be ascertained whether the trial court has assessed the evidence adduced before it properly. When the four witnesses including victim and her relatives have resiled from their previous statement and they were cross examined by the local prosecutor, the facts deposed by them can be summarized as follows :–
39. From the above reproduced references, what inference can be drawn? If we perused all the testimonies, one fact is very clear and that is– all the witnesses have decided not to depose the facts stated by them before the police/Magistrate. Because otherwise why the police/Magistrate will mention all the facts in their statements unless those facts were stated to them. There is no reason for the police/Magistrate to state those facts on their own. But the question is will it be sufficient to convict the accused ? The Hon’ble Supreme Court has opined to apply the test of deciphering the facts supporting the prosecution case from the total facts deposed by the hostile witness. But what is important is after deciphering those facts, ultimately the Court has to consider what remains and how much weightage can be attached to those facts. The Court has to assess ‘what inferences can be drawn’. So it will be unjustified to consider those facts and to convict the accused, without assessing its evidentiary value.

Whereas in the case involved in this appeal, the victim and her uncle eye witness have totally resiled from their version before the police. There is reason to believe that these witnesses do not want to depose before the Court the incidents narrated by them to the police. Though medical case papers are admitted, there has to be link between the medical findings and author of crime being the Appellant.

Criminal Appeal No. 990 of 2019
Decided On: 09.05.2024

DEELIP TATOBA RAJE VS. THE STATE OF MAHARASHTRA AND ORS.(BOMBAY)

2. HOW TRIAL COURT SHOULD APPRECIATE EVIDENCE WHILE DECIDING CRIMINAL CASES?:BOMBAY HC The trial Courts are required to decide this issue every now and then. So I deem it fit to lay down certain guidelines about approach of the Court, while dealing with this issue. {Para 94}

• Guidelines

2. If victim has not supported, then first ascertain :-

a) if she has not at all supported or

b) partly supported,

c) If partly supported then find out:-

(i) facts supported and more importantly the evidentiary value.

d) Find out corroborative materials.

e) then assess, its evidentiary value,

f) then consider together, the portion supported plus the corroborative materials.

g) then come to conclusion about the guilt.

h) The presumption can be resorted only when foundational facts are proved and not otherwise.

Criminal Appeal No. 990 of 2019
Decided On: 09.05.2024

DEELIP TATOBA RAJE VS. THE STATE OF MAHARASHTRA AND ORS.(BOMBAY)

3. WHETHER THE COURT CAN CONVICT ACCUSED BASED ON EVIDENCE OF JUDICIAL MAGISTRATE WHO RECORDED STATEMENT OF VICTIM U/S 164 OF CRPC IF VICTIM HAS TURNED HOSTILE?
4. Trial Court was wrong in convicting the Appellant by taking recourse to statement under Section 164 of the Criminal Procedure Code. On the basis of the evidence of the learned Magistrate and the medical evidence, statement recorded under Section 164 of the Code can be treated as previous statement only.
5. So if we look at the weightage and value of evidence of judicial officer from all the angles, we may find that his evidence cannot be said direct on the point of happening of the incident. Because he is not giving the evidence on the basis of facts seen by him. His evidence is on the point of what he has heard through the mouth of the victim.
6. So for what purpose this provision is included in the Code. The mechanism created by the Code is investigation carried out by the police including recording the statement of the witnesses. Recording statement through the Magistrate is also a part of investigation. Such statement stands on higher pedestal than the police statement. Still we can not attach more value than recognized by the law. Such statement falls within the category of ‘previous statement’ only. Its use is permissible in the mode prescribed in the Evidence Act only.
7. Does it mean to say that this statement can be the basis for conviction just because it is recorded by judicial official and oath is administered? Answer is ‘No’. The reason is this statement is not recorded in the presence of the accused and there is no opportunity of the cross-examination to the maker of the statement when such statement is recorded by the Magistrate. So ultimately, when Magistrate gives evidence, his evidence is not the evidence about the witnessing the incident but it is evidence of facts stated before him by the victim.

Criminal Appeal No. 990 of 2019
Decided On: 09.05.2024

DEELIP TATOBA RAJE VS. THE STATE OF MAHARASHTRA AND ORS.(BOMBAY)

4. UNDER WHICH CIRCUMSTANCES THE COURT CAN NOT CONVICT ACCUSED BASED ON PRESUMPTION UNDER SECTION 29 OF POCSO ACT?

Learned Single Judge was dealing with an appeal filed by the convicted accused. While interpreting the nature of presumption under Section 29 of the said Act, it is observed :–

” Thus the presumption that operates under Section 29 of the Protection of Children from Sexual Offences Act is not absolute and it is triggered only when the prosecution is able to prove the foundational facts in the first place. The evidence placed on record by the prosecution is to be examined to first come to the conclusion that the foundational facts of the prosecution case have been established ” (para 29).{Para 85}

86. On facts it was observed :–

” In fact for the presumption to operate, as observed earlier, it is necessary that the foundational facts are established by the prosecution, which in the present case, does not appear to have been done by the prosecution ” (para 27)

• Conclusion

1. In nutshell, the trial court simply cannot be convict the accused on the basis of the presumption. Because the Court cannot start with only on the basis of the presumption. However presumption will come into picture only when foundational facts are established. That is to say, age of the victim, either of the acts prescribed under Sections 3, 5, 7 and 9 of the POCSO Act are committed. One may not find such wordings in the section itself. But the Constitutional Courts have interpreted similar provisions relating ‘presumptions’ en-grafted in various Acts. This interpretation of the provisions of relevant Acts is arrived at after considering those provisions of Acts on one hand and presumption of innocence on the other hand. It is interpreted presumption of innocence is human right though not a fundamental right.
2. In this case, foundational facts are not proved. I have already observed the evidence on the basis of statement under Section 164 of the Code can not be considered. So also on the basis of admitted medical case papers, we cannot draw an inference about involvement of the culprit/accused. Hence trial court was wrong in taking recourse to the presumption under Section 29 of the Protection of Children from Sexual Offences Act.

Criminal Appeal No. 990 of 2019
Decided On: 09.05.2024

DEELIP TATOBA RAJE VS. THE STATE OF MAHARASHTRA AND ORS.(BOMBAY)