Case BriefsHigh Courts

Sikkim High Court: A Division Bench of Bhaskar Raj Pradhan and Arup Kumar Goswami, JJ. while upholding the Judgment of acquittal passed by Special Judge (POCSO), held that,

A delicate balance is required to be maintained between the judicial perception of the anguish of the victim and the presumption of innocence of the accused and an inequitable tilt either way may not render sound justice.

Sole testimony of minor prosecutrix was that she was sexually assaulted by respondent that was disbelieved by Special Judge (POCSO).

Assistant Public Prosecutor submitted that the sole testimony as stated above had not been demolished during the cross-examination and as such the Special Judge erred in discarding it.

Complainant (PW-1) with whom the minor prosecutrix was staying for the last 4 months had filed the FIR against the respondent. In the FIR it was stated that when complainant enquired from the minor prosecutrix, she was informed that respondent had been assaulting and raping her for a very long time.

Gynaecologist opined that clinical and cytopathological report was not suggestive of recent forceful sexual intercourse. She admitted that hymen can tear and rupture from so many other things besides sexual intercourse.

Minor Prosecutrix further stated that although PW-1 and her husband slept together in the same house but nobody noticed the respondent sexually assaulting her and whenever she tried to raise an alarm he used to put his hand on her mouth.

Daughter of the respondent told minor witness (PW-3) that the minor prosecutrix was a girl of immoral character. The minor prosecutrix deposed that she was deeply hurt and mentally affected after hearing this and started crying when the complainant (PW-1) saw her. At this moment, the minor prosecutrix told the complainant (PW-1) about the sexual assault.

Decision of the Court

Bench — keeping in mind the ambit and scope of the judicial examination in the present appeal against acquittal, stated that judgment of acquittal passed by the Special Judge is neither perverse nor against the weight of the evidence on record.

Special Judge had disbelieved the deposition of penetrative sexual assault made by the minor prosecutrix. Disbelief was fortified by the medical as well as forensic evidence.

Reasoning for the above decision

Defence had brought out the animosity between the complainant (PW-1) and the sole prosecutrix on the one side and the respondent and his daughter on the other. The negative result of both the medical and forensic evidence collected immediately after the alleged assault does not help the prosecution case further, more so, when she alleged forceful penetrative sexual assault.

Defence has also been able to bring out certain facts about the altercations and fight between them immediately preceding the lodging of the FIR.

All of the above leans towards the claim of innocence of the respondent.

Thus, in the above view, judgment of acquittal is upheld. [State of Sikkim v. Karna Bahadur Rai, 2020 SCC OnLine Sikk 33, decided on 14-03-2020]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K. K. Wickremasinghe and K. Priyantha Fernando, JJ., allowed an appeal which was filed to set aside the judgment of High Court.

The accused-appellant was indicted in the High Court for committing grave sexual abuse in an offence punishable under Section 365B(2)(b) of the Penal Code, and after pleading not guilty he stood for trial and case was transferred to the High Court. The high court convicted the appellant for the charge and imposed four years of rigorous imprisonment and a fine of Rs 25,000. Being aggrieved by the said conviction and the sentence the appellant preferred this appeal. As per the prosecutrix she lived with her parents and her grandmother and one day when she came back from school she went to her grandmother’s house for having lunch which was 25-30 feet away from her house and while returning from there the accused invited her to his house, promising to give biscuits. After taking her inside he took her to the kitchen, where the appellant sat down on a chair put the small child who was in his hands on the floor and then he took the prosecutrix on to his lap and removed her skirt and the underpants, and placed his penis between her thighs and sexually abused her. The prosecutrix had run back to her grandmother’s house and informed the incident to her grandmother after which her grandmother yelled at the accused and then washed off the prosecutrix legs with water and white foamy liquid, thereafter a complaint was lodged by them against the accused.

The counsel for the appellant Anil Silva and AAL Isuru Jayawardhena contended that there was a belated complaint in the instant case, the High Court Judge failed to consider whether there was a reason for Mary Theresa to fabricate a case against the appellant and that the High Court Judge had misdirected himself as regards to the burden of proof. There were a number of contradictions in the statements given by the side of the prosecution.

The Court while allowing the appeal held that Court should not act on the sole testimony of a prosecutrix if it appears to be unreliable and inconsistent and as the prosecutrix was only 09 years old at the time of the incident and therefore, it is natural that there could be mistakes made by her in evidence. [Rathnayake Mudiyanselage Gnanasena Rathnayake v. Attorney General, C.A. Case No: CA-HCC-0070 of 2015, decided on 03-12-2019]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K.K. Wickremasinghe and K. Priyantha Fernando, JJ., dismissed an appeal filed to set aside the judgment of the High Court.

The prosecutrix had testified that, the incidents had taken place about two years prior to testifying when she was in Grade 8 and the appellant had abused her for 5-6 times. The prosecutrix had narrated these incidents to her mother who took her to the police station and as per the prosecution evidence, the incident had taken place three months prior to making the police complaint. The JMO had testified that no injuries were found but the possibility of sexual abuse cannot be excluded as per the short history was given by the prosecutrix. The appellant had denied committing the offence and contended that he was being falsely implicated by his wife as he had caught her with her paramour. He further submitted that his wife lodged a complaint at the police station asking for the custody of the children and he had denied the same after which the wife had challenged him that she would send him to the prison and would take the custody of the children.

The counsel for the appellant AAL K. Kugaraja contended that the prosecution had failed to establish the date of offence to which the counsel for the respondent Sudarshana De Silva, submitted that the prosecutrix had clearly stated that the incident took place in the latter part of 2007. The accused-appellant had been indicted under three charges for committing Grave sexual abuse on his daughter, an offence punishable under Section 365B (2) (b) of the Penal Code, 1860 as amended. The Trial Court had convicted the accused-appellant and had sentenced him to 18 years of rigorous imprisonment along with fines aggrieved by which this appeal was filed.

The Court while dismissing the appeal explained that the Judgment of the High Court was well reasoned as when the victim is a small child and is abused by someone who is associated to him/her on a daily basis its nearly impossible to specify the exact same date of offence and also the evidence of the prosecution was corroborated by other witnesses as well and the High Court was satisfied with the trustworthiness of the evidence so there was no reason to disturb the findings of the trial court.[Kurundukara Hakuruge Ariyadasa v. Attorney General, C.A. Case No: HCC-0384 of 2017, decided on 05-12-2019]