'Deposing Capacity' Of Child Witness Not Tested Before Taking Evidence: Patna HC Nixes Man's Conviction For Sexually Assaulting Minor Girl
While allowing an appeal against an order convicting a man for sexually assaulting a 5-year-old girl in 2019, the Patna High Court said that the evidence of the child who witnessed the alleged incident and supported the prosecution's case was not reliable as Trial Court had not tested the child's "capacity to depose" prior to his deposition.
The high court further said that the prosecution had failed to prove the foundational facts of the alleged offences beyond reasonable doubt, adding that the man could not be convicted based on "feeble evidence" of child witness.
A division bench of Justice Jitendra Kumar and Justice Ashutosh Kumar in its order observed, “From perusal of the aforesaid evidences, we clearly find that the prosecution case is supported neither by the victim nor her parents against the appellant. Though, injury has been found on the private part of the victim but whether this injury has been caused by rape by the appellant could not be proved by the prosecution beyond reasonable doubt. There is not a single word against the appellant in the evidence of the victim or her parents".
With respect to the deposition of a child witness, the high court after perusing his evidence, said that it appeared that the witness had been examined on oath, "without testing his testifying capacity as required under Section 118 of the Evidence Act".
The provision states that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to the questions due to "tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind".
The high court thereafter said, "Though one child witness has supported the prosecution case, but for want of his testing by learned Trial Court regarding deposing capacity prior to his deposition, his evidence could not be relied upon. More so, for want of any incriminating evidence from the mouth of the victim and her parents, the appellant could not be convicted on feeble evidence of a child witness.”
The appeal was filed Additional District Judge-cum-Special Judge (POCSO) Bhagalpur's judgment convicting the man for offences under Section 376 (rape) IPC and Section 6 (punishment for aggravated penetrative sexual assault) POCSO Act. The trial court had further sentenced the appellant to 20 years rigorous imprisonment along with fine of Rs. 1 Lakh.
The FIR was lodged in October, 2019 based on a complaint registered by the child's mother. An investigation ensued, leading to the framing of charges under the relevant sections of the law. During the trial, the appellant pleaded not guilty and claimed that he was falsely implicated.
The counsel for the appellant argued that the prosecution's evidence lacked sufficient material to establish his involvement in the alleged offence beyond a reasonable doubt. The counsel asserted that the foundational facts which are required to support the rape allegations had not been proven by the prosecution, contending that the impugned judgment of conviction and the order of sentence were unsustainable in law and should be overturned.
On the other hand, the counsel for the respondents maintained that there was no illegality or infirmity in the judgement being challenged, asserting that the appellant had been rightly convicted and appropriately sentenced.
The high court said that while there was no dispute that the girl was five years old on the date of alleged incident, yet the prosecution was "required to prove the foundational facts" with regard to the alleged offence of rape by the appellant for application of provisions of the POCSO Act. Taking note of the depositions the high court said that all three defence witnesses had deposed that the appellant had been "falsely been implicated" by an "informant" for extraneous consideration.
The Court further remarked, “As such, we find that the prosecution has badly failed to prove foundational facts of the alleged rape against the victim by the appellant beyond reasonable doubts. As such, no offence is made out either under the POCSO Act or under Section 376 of the IPC.”
Allowing the man's appeal, the high court directed his release.
Case Title: Pramod Mandal vs The State Of Bihar
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