Indra Kumar Pradhan v. State of Sikkim - (High Court of Sikkim) (23 Jun 2017)

Mere delay cannot be a ground for discarding entire prosecution case

MANU/SI/0031/2017

Criminal

In instant case, Trial Court framed charge against Appellant under Section 9(m) of Act punishable under Section 10 of Protection of Children from Sexual Offences Act, 2012 and on Appellant entering a plea of "not guilty", commenced trial. To establish its case beyond all reasonable doubt, Prosecution examined eleven witnesses, on completion of which, Appellant was examined under Section 313 of Code of Criminal Procedure, 1973 (Cr.P.C). On basis of evidence furnished before it, Trial Court convicted and sentenced Appellant, as per impugned Judgment. Question that falls for consideration is whether Appellant was erroneously convicted by trial Court.

In State of H.P. v. Gian Chand, it was held that, delay in lodging FIR cannot be used as a ritualistic formula for doubting prosecution case and discarding the same, solely on ground of delay in lodging first information report. That, delay has effect of putting Court on its guard, to search if any explanation has been offered for delay, and if offered, whether it is satisfactory or not. If prosecution fails to satisfactorily explain delay and there is a possibility of embellishment in prosecution version on account of such delay, delay would be fatal but mere delay cannot be a ground for discarding entire prosecution case.

It is also held in State of Punjab v. Gurmit Singh and Others, that if evidence of prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason, Court finds it difficult to place implicit reliance on her testimony, it must look for evidence which may lend assurance to her testimony short of corroboration required in case of an accomplice. Testimony of prosecutrix must be appreciated in background of entire case and trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

Delay in lodging of FIR has been satisfactorily explained and found acceptable by this Court. Evidence of victim being consistent thereby inspires confidence and needs no further corroboration. Nevertheless, by way of abundant caution, the evidence of the other Prosecution witnesses has also been considered.

According to Section 29 of Act, 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, Special Court shall presume, that such person has committed or abetted or attempted to commit offence, as case may be, unless contrary is proved. This is a rebuttable presumption as evident from Section 30 of POCSO Act, which provides that, in any prosecution for any offence under this Act, which requires a culpable mental state on part of accused, Special Court shall presume existence of such mental state but it shall be a defence for accused to prove fact that, he had no such mental state with respect to act charged as an offence in that prosecution. For purposes of this section, a fact is said to be proved only when Special Court believes it to exist beyond reasonable doubt and not merely, when its existence is established by a preponderance of probability. However, no resort was taken to this Section, by the Appellant before the learned Trial Court. There was no impairment in Judgment and Order on Sentence of trial Court. Accordingly, Appeal fails and is dismissed.

Relevant : State of H.P. v. Gian Chand .MANU/SC/0312/2001: (2001) 6 SCC 71, State of Punjab v. Gurmit Singh and Others .MANU/SC/0366/1996: (1996) 2 SCC 384

Tags : CONVICTION VALIDITY FIR DELAY