DATE OF JUDGEMENT
JANUARY 22, 2019.
Justice Sadhana S. And JusticeJadhav, J
Appellant- Imran Shamim Khan
Respondent- State of Maharashtra
In this case, the victim had turned hostile but the court concluded that there was still enough evidence against the accused and the victim seems to have been pressurized to turn hostile and so the onus of proving innocence is on the accused.
Section 6 of POCSO Act-
6. Punishment for aggravated penetrative sexual assault.-- (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim
Section 29 of POCSO Act-
29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7, and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
The grandmother of the victim who was in 3rd grade at the time of the incident lodged a complained alleging that her grand-daughter had been sexually assaulted by Imran, who was residing near the house of her paternal grand-mother. The appellant was convicted for the offence under section 6 of POCSO Act, 2012.
He was sentenced to suffer R.I. for 10 years and to pay fine of Rs. 2000/- in default to suffer S.I. for 15 days. The appellant is also convicted for the offence punishable under section 506(II) of the Indian Penal Code and is sentenced to suffer R.I. for 1 year and to pay fine of Rs. 500/- I.d. to suffer further S.I. for 7 days by the Special Judge under POCSO Act. The appeal was filed to suspend the sentence.
The statement of victim was recorded under section 164 of the CrPC. In the said statement she has narrated the sexual assault committed upon her committed by the appellant. She disclosed that the appellant used to threaten her with dire consequences if she told her anyone of this.
However, At the time of recording of the evidence, the victim was declared hostile. She resiled from her earlier statement and gave evasive answers to the court. She stated that she does not recollect as to whether, she knows Imran, neither name of her uncle nor the fact that she was taken to hospital. The grandmother of the victim also turned hostile. The medical examination of the victim clearly indicted that the hymen was ruptured.
On this account the counsel for the appellant has urged to acquit the appellant of all charges.
Whether the accused can be acquitted if the witnesses have turned hostile?
The appeal was dismissed by the High court.
The court observed that the victim seems to have been pressurized to turn hostile.
The court refused to take the submission into consideration as the offence not just against the individual child but is against the society. It was noted that victim turning hostile has become the rising trend in POCSO Act. This is due to the pressure of family member before the trial.
“There is ample evidence to indicate that the victim had rather been sexually assaulted. Most of the times, it is the close relative or close acquaintance who would sexually abuse a child and subsequently, the child is forced to become hostile.” Said the court.
Therefore, although the victim has turned hostile, the onus of proving the innocence would shift on the accused.
The court noted that the answers given by the victim were not in denial, they were merely evasive. It was apparent the she chose to forget the incident.
In this case the court made it clear that under POCSO act the onus of proving the innocence of the accused would shift on the accused even if the victim turns hostile during trial. The reasoning for this decision is that the family members of the victim are convinced by the accused and they in turn pressure the victim to resile from her statement. The object of POCSO Act is the best interest and well being of the child and not the accused. Section 29 of the POCSO act states that it is presumed that the offence is committed unless the contrary is proved and therefore, it was rightly decided by the court.
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