The High Court has held that minor variations in statements which do not affect the crux of the case of the prosecution are natural and not sufficient to discredit the prosecution witness.

The judgment was delivered by a Division Bench of Justices Vipin Sanghi and IS Mehta in an appeal against the acquittal of the accused on the premise that the testimony of the child prosecutrix was untrustworthy due to many variations, contradictions and inconsistencies.

In September 2013, the prosecutrix who was then six and a half years old, was taken to the terrace and raped by the accused, her neighbour.

As per the initial complaint of the mother of the prosecutrix,

“The prosecutrix did not narrate the incident to her due to fear but she kept on crying in the night. Even after she slept, she would repeatedly wake up due to fear. She further stated that when she inquired from her daughter – the prosecutrix, on the date of the complaint i.e. 25.09.2013, the prosecutrix narrated the entire incident to her and she even identified the accused as the person who had taken her to the terrace and raped her.”

The statement of the victim child was recorded before the Magistrate under Section 164 of the Criminal Procedure Code. Eventually, the court framed charge against the accused under Section 376 IPC and Section 6 POCSO Act. The Trial Court acquitted the accused in an order which was orally pronounced in January 2017. Thereafter, no written judgment followed for six months.

This was when legal services platform iProbono stepped in. After receiving a request from child rights organization HAQ, iProbono filed a petition under Article 227 to direct the judge to deliver the judgment so that an appeal could be preferred against it. Pursuant to the High Court’s order, a written judgment acquitting the accused was provided.

The trial court in its order held that the accused was able to discharge his onus by casting serious doubts on the case of the prosecution, and raising doubts about the possibility of his false implication.

In the appeal as well, the accused reiterated that there were “serious contradictions” in the statements of the prosecutrix, her mother, and the Investigating Officer, who gave different versions of the incident at different points of time.

The accused asserted that the fact that the prosecutrix was bleeding from her private parts, and was under severe pain, as claimed by the prosecution, is contradicted by the testimony of medical examiner Dr. Kavita Kaniwal.

Kaniwal, in her cross examination, deposed that she did not notice any burn injury on the legs of the prosecutrix or any cut marks from a knife on the private parts/vagina of the prosecutrix during examination. She also did not record that the prosecutrix suffered from any bleeding from her private parts.

Relying on precedents, the Court held that minor variations in the statements of the witnesses – which do not affect the crux of the case of the prosecution – are natural and not sufficient to discredit the prosecution witnesses.

Referring to the present case, the Court observed that “there are no indications found from her (prosecutrix) demeanor, her statement, her cross examination, or the statement of the other prosecution witnesses of her having been tutored.”

With respect to the discrepancies on the existence of a burn injury given to the prosecutrix by the accused on her foot, the Court noted that the possibility of the prosecutrix not having disclosed the said injury to the mother at that stage cannot be ruled out, since she was averse to even talk about her traumatic experience.

It was also possible that she might have mentioned the same to the mother but that being a small injury in comparison to the offence of rape, might have receded into background in the mother’s mind when she recorded her initial statement, the Court said.

It further suggested that the possibility of the burn injury being missed out during the conduct of the medical examination cannot be ruled out.

“Thus, the said omission cannot be treated as an improvement made by the prosecutrix while recording her statement before the Court, and would not be a reason enough to discredit her”., the Court recorded.

It further observed,

“One can also not lose sight of the fact that the prosecutrix and her mother come from a very poor strata, and their ability to appreciate and articulate the relevance and importance of each and every injury suffered by the prosecutrix at the hands of the accused, would also not be the same, as that of another person who is better placed in terms of financial, social and educational background.”

The Court also held that even if a part of the statement of the prosecutrix is to be considered as an improvement, that by itself, is no ground to reject her statement altogether if that part of her statement can be separated from the rest of it.

Hence, the entire testimony of the prosecutrix cannot be discarded on that ground, it stated.

Referring to the presumption under Section 29 of POCSO, the Court observed that the Trial Court was completely oblivious of the legal presumption which the Court is bound to raise against an accused who is being tried for an offence under Section 5 of the POCSO Act.

“There is not a whisper in the impugned judgment about the same. In fact, a perusal of the impugned judgment shows that the evidence in the case has not been appreciated keeping in view the legal presumption raised under Section 29 and 30 of the POCSO Act.”

This lacuna is fatal to the sustainability of the impugned judgment, it stated.

While observing that a child witness is susceptible to tutoring, and his evidence must be evaluated more carefully and with greater circumspection, the trial court failed to state as to what is there in the evidence to even remotely suggest that the child witness was tutored or that her statement was not corroborated, the Court observed.

It further held that the failure of the police in carrying out proper investigation, or failure of the prosecution in properly prosecuting the case, is not sufficient to discredit the case of the prosecution. If on the basis of the evidence brought on record, the guilt of the accused is established in accordance with law, such failure would not be a reason to reject the case of the prosecution, the Court said.

The Court thus set aside the acquittal of the accused and decreed,

“For all the aforesaid reasons, we are of the considered view that the impugned judgment cannot be sustained and the evidence led by the prosecution conclusively establishes the guilt of the respondent-accused. The impugned judgment borders on perversity and has led to serious miscarriage of justice. Accordingly, we set aside the impugned judgment and convict the respondent accused for the offences as charged.”

Commenting on the case, iProbono’s Swathi Sukumar said,

“This was an egregious case of systemic lapses at the trial court level – a failure to meet even the most basic expectation from a legal system. The judgment is welcome relief for the family and is a reminder of how much can be achieved by committed lawyers.”