Gravity Of Offence Cannot Overweigh Legal Proof: Gujarat High Court Upholds Acquittal Of POCSO Accused
The Gujarat High Court has recently dismissed the appeal of the State Government challenging the acquittal of a person accused under the POCSO Act, citing lack of evidence. A bench of Justice SH Vora and Justice Rajendran Sareen observed:"Here in this case it is to be noted that on one side the complainant has alleged against the respondent accused regarding sexual assault upon her...
The Gujarat High Court has recently dismissed the appeal of the State Government challenging the acquittal of a person accused under the POCSO Act, citing lack of evidence. A bench of Justice SH Vora and Justice Rajendran Sareen observed:
"Here in this case it is to be noted that on one side the complainant has alleged against the respondent accused regarding sexual assault upon her victim daughter and merely after a span of 3 to 4 days she has alleged against her own husband regarding sexual assault upon her victim daughter. As such, two contradictory versions have been stated by the complainant within a span of 4 days against two persons and both the allegations are based on suspicion and doubt, one against the present respondent accused and another against her husband. As such, mere suspicion and doubt cannot be considered to be cogent and convincing proof to prove the allegations."
The bench reiterated that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the Courts to ensure that suspicion does not take place of the legal proof.
The Respondent-Accused herein was arraigned in offences under Sections 376 of the IPC and Sections 5(F)(M) and 6 of the POCSO Act. In the instant case, the mother (Complainant) of the victim accused the conductor of her daughter's school bus and also made allegations against her husband, all within a span of 3-4 days.
The High Court noted that as per the Doctor, there was redness but no injury on the hymen and perineum of the victim and no bleeding, as well. The Doctor admitted that the redness could occur due to a variety of reasons. It also noted that the school teacher running the bus service did not have any information regarding the incident and admitted to having received no complaint against the accused from any of the parents. The Panchas had also turned hostile and had not supported the case of the Prosecution.
In this backdrop, the bench noted that on one hand the Complainant had accused the bus conductor of sexual assault of her daughter and subsequently, she accused her own husband. Thus, there were two contradictory versions by the Complainant within a span of 4 days. The Bench remarked, "as such, mere suspicion and doubt cannot be considered to be cogent and convincing proof to prove the allegations."
It was also recognised that when the Complainant took the victim to the hospital, the Doctor did not take the case on hand and thereafter, the Complainant went to the police station. This fact had not been mentioned in the complaint. Additionally, the Complainant's opinion that the conduct of the Accused was not good was not found in the complaint or further statements during cross-examination. The allegation that the Accused was of 'loose character' was absent in the complaint but was later mentioned in the deposition.
"This type of improvement has been made by the complainant in her deposition and the same is proved by the deposition of the investigating officer. All the aforesaid facts stated by the complainant in her deposition, have not been mentioned by the complainant either in her the complaint or in her statement. As such, the reliability and credibility of the complainant is doubtful," said the Court.
The Bench also did not rule out the possibility that there was some relationship between the Complainant and the Accused and an issue of settling scores due to past telephonic conversations. Allegations such as that the victim was sitting in the lap of the Accused person was not supported by any witnesses including the teacher who travelled in the bus daily.
Resultantly, the Bench held that the Trial Court had rightly acquitted the Accused and no error or illegality was committed by the Trial Court per the Bench.
"No doubt the alleged offence is a shocking one but the gravity of the offence cannot by itself overweigh as far as legal proof is concerned," it concluded.
Case Title: STATE OF GUJARAT v/s HASMUKHBHAI @ HARSHADBHAI DAHYABHAI MAKWANA
Case No.: R/CR.MA/9857/2022
Citation: 2022 LiveLaw (Guj) 266