Consistent Improvements In Statement As Per Victim's Convenience Can't Be Acted Upon; Bombay HC Acquits Two Convicted Under POCSO Act [Read Judgment]
The Bombay High Court has held that consistent improvements made by the victim suiting their convenience cannot be acted upon by the courts.
Justice AM Badar acquitted two men, one accused of raping a minor and the other was accused of sexual assault by the same minor.
While acquitting them and allowing their appeal against conviction, the court noted that the victim had made improvements in her statements to the police over the course of the case and her version was full of inconsistencies and discrepancies.
Justice Badar allowed the application filed by Yogesh Chavan and Deepak Solanki. Both were convicted by trial judge presiding over POCSO court in a judgment dated April 27, 2017. While Chavan was convicted under Sections 376, 506 of the IPC and Section 6 of the POCSO (Protection of Children from Sexual Offences) Act, Solanki was convicted under Section 354 of IPC and Section 8 of the POCSO Act.
According to the statement given by the victim in the FIR lodged against the accused dated May 20, 2015, she was raped twice by her older brother Harsh, once in 2013 and in 2015. Harsh was a juvenile, hence was not tried by a regular court. Then, she stated that she had visited Girgaon, Chowpatty beach in Mumbai on April 7, 2015, along with her friend but they got late and so she decided to visit her mausi (mother's sister) who stays in Lower Parel, the victim stays in Tardeo. Thereafter, she stated that her aunt was not at home and only her uncle, that is Yogesh Chavan, was present. She further alleged that he raped her and then threatened her afterwards.
After this, the alleged victim narrated that her brother's friend Deepak Solanki, on March 17, 2015, came to her house for drinking liquor. He then started touching the victim inappropriately while she was sleeping on the floor with her mother.
After these two incidents, the victim decided to go and stay at a Children's Home meant for abuse and assault victims. The two accused were convicted of the said crimes and subsequently filed their appeal against the judgment.
Submissions and Judgment
Advocate Harshwardhan Salgaonkar appeared on behalf of Yogesh Chavan, he contended that his client was denied a fair trial by the POCSO judge as he asked 14 questions to the minor victim. Majority of the questions were asked during cross-examination of the victim and a few were asked during the chief examination, Salgaonkar said.
The court noted that victim made several improvements from her original statement recorded in the FIR while narrating the incidents to officers of the Children's Home and medical officers at JJ Hospital.
"Improvements on these aspects are not immaterial, inconsequential or minor in nature. The same can certainly be attributable to a desire to implicate the appellants/accused persons in a serious offence by indulging in embellishment and exaggeration over the original version," the court said.
Justice Badar then pointed out specific inconsistencies in victim's allegations against Chavan and Solanki. Firstly, regarding Solanki, the court said that the victim had stated that Solanki had come to her house to consume liquor and her brother went out to buy vegetables. Then she stated that the light in the room she was sleeping in with her mother was off and while she was sleeping on the floor, Solanki was sleeping on the bed and started touching her. However, it was found during the spot panchnama that the room was too small and there was no room for a bed along with two others on the floor.
In case of Yogesh Chavan, he simply denied the incident and alleged that the victim had visited his house for his daughter's birthday party, along with her friend. However, a chain that was presented to Chavan's daughter that night was stolen by the victim's friend. The victim also admitted that the chain was stolen by her friend. After the said incident, Chavan threatened to lodge a police case against the victim, in response she filed a false case of rape against him, Chavan argued in his appeal.
The court noted how the victim had stated that because she and her friend got late, they went to her aunt's place. But it would have been much easier for the victim to reach her home in Tardeo from Chowpatty, Marine Drive, than Lower Parel where Chavan stays, Justice Badar noted.
"Assessment of evidence adduced by the prosecution and available on record against appellant/accused no.1 Yogesh Chavan is not sufficient to base conviction for such serious offences. Evidence of the victim female child/PW2 lacks the assurance which is required in a criminal trial to bring home the guilt. It is seen that the victim female child/PW2 has modulated her version on each occasion to suit her own convenience, and therefore, the same cannot be acted upon," the court concluded.
As for the trial judge's questions, the court noted that a trial judge is not expected to be a mute spectator during cross-examination, yet he cannot take up the role of a prosecutor. Both the appeals were allowed.
Read the Judgment Here