'Witness Not Expected To Have Photographic Memory, Variations In Facts/Improvements Natural In Depositions': P & H HC [Read Order]

The Punjab and Haryana High Court has asserted that in a criminal case,"one cannot be expected to have an eidetic/photographic memory" and that "slight changes in the facts or alleged improvements are bound to happen, being natural".

"Natural variations do happen and such depositions are considered and relied upon by the courts after its careful analysis", observed Justice Anil Ksheterpal.

The Single Bench made the remarks while dismissing the appeal by two convicts - a woman and her brother-in-law (sister's husband) - for sexually harassing her own underage daughter. The woman, who was living in separation from her husband, had illicit relations with the co-convict, who had also attempted to sexually exploit her daughter. The woman always sided with her brother-in-law when he tried to molest her daughter, even thrashing the daughter whenever she complained about it. Before the High Court, it was the appellant's main case that there have been significant improvements in the depositions of the prosecutrix from the time of the FIR, then in her statements under section 164, Cr. P. C., and finally when examined in court.

"The learned trial Court permitted Learned Counsels representing the accused to cross examine the prosecutrix at length during 8 different hearings. The prosecutrix has withstood the volley of questions put to her in the cross-examination. In her deposition, she has given a detailed account of harassment meted out to her at the hands of the appellant-Surinder Singh @ Shinda. She has specifically deposed that the appellant- Surinder Singh @ Shinda sexually harassed, assaulted and molested her", noted the Single Judge.

The bench opined that if one carefully examines the alleged improvements, it becomes clear that such alleged improvements are only explanations/elaborations of the allegations contained in the FIR. The Court observed that the prosecutrix although subjected to lengthy cross-examination has struck to her stand.

Still further, the bench appreciated that it is well settled that FIR is not expected to be an encyclopedia of the entire case of the prosecution. "In these circumstances, it is wrong to expect that in the FIR, complete detail of all the incidents must be disclosed. An FIR is not expected to contain the proposed evidence to be produced by the prosecution", reads the judgment.

"Here is a case where the prosecutrix, a daughter, has been compelled to allege that she was subjected to sexual overtures, advances, harassment and assault at the hands of her close relatives including her own mother. It must be kept in mind that her father had started living/residing separately from the family in the year 2009. Her family had broken down. It has also come in evidence that her mother was having sexual relations with Surinder Singh @ shinda for which he used to visit their house regularly...", the bench noted.

Justice Ksheterpal was of the view that One must keep in mind that the prosecutrix found herself in unfortunate circumstances, that he did not get required protection/support even from her own mother, that For the first time, when the incident took place, she was barely 15 years old. "It has also come in evidence that the appellant-Surinder Singh @ Shinda used to carry a licenced pistol. The appellant Surinder Singh @ Shinda also used to help the family of the prosecutrix.", the judgment records.

Delay of one and a half months in registration of FIR does not vitiate case of prosecution "She could not muster enough courage/strength to immediately confront her mother. She confronted her mother only on 04.10.2014. Her mother, the appellant-Rupinder Kaur, started beating her mercilessly...She was in a dilemma.

On one side, she was concerned about the prestige of the family, whereas on the other side the appellants were driving her crazy", reflected the bench.

The court further noted that after much deliberation, she drafted a complaint on 07.11.2014 but did not hand over to the police for a period of 11 days, and that "these facts clearly show that the prosecutrix being a sensitive young child took her time before deciding to initiate action". The bench attached weight to the fact that after 04.10.2014, she had started residing with her father.

"It is very rare that a daughter decides to prosecute her own mother", expressed the bench, stating that it is apparent that there was hesitation on the part of the prosecutrix to take recourse to legal action even after she was beaten on 04.10.2014 by her mother mercilessly.

"On 04.10.2014, her father had called the police but she gave a statement to the police that she does not want to take legal action. That itself shows that the prosecutrix was reluctant to take recourse to legal action against the accused", observed the Court.

The bench took an empathetic approach in saying that "thereafter, she took more than a month in resolving what must have been her inner conflict before deciding to approach the police".

"In this background, if the evidence of the prosecutrix is appreciated, this court does not find that the prosecution has failed to prove its case", concluded the Single Judge.

Word of caution: Statutory Presumption in section 29, POCSO Act is still a rebuttable presumption

The bench noted that Section 29 of the POCSO Act mandates Special Courts to presume that accused being prosecuted for committing or abetting or attempting to commit offence under Sections 3 (penetrative sexual assault), 5 (aggravated penetrative sexual assault), 7 (sexual assault) and 9 (aggravated sexual assault), has committed or abetted or attempted to commit the said offence, as the case may be unless the statutory presumption is rebutted by the defence.

"In the aforesaid situation, when the accused is put on trial under the POCSO Act, the Court is required to draw a rebuttable presumption and 'reverse onus' is on the accused to rebut the statutory presumption", asserted the bench.

The Court clarified that "of course, such rebuttal is required to be proved on 'preponderance of probabilities' and not 'beyond reasonable doubt'".

"The accused can also attempt to rebut the aforesaid rebuttable presumption while pointing out improbabilities, contradictions and deficiencies in the evidence of the prosecution itself and it is not necessary for the accused to lead evidence in defence", said the court, reiterating, as "a word of caution", that though such presumption, no doubt, uses the word 'shall', nevertheless, it gives rise to a rebuttable presumption as provided in Section 4 of the Evidence Act.

The bench appreciated that the POCSO Act came to be enacted by the Union of India in the year 2012 as a self contained comprehensive legislation inter alia to provide deterrent punishment in order to protect children from the offences of sexual assault, sexual harassment and pornography- "Efforts have been made to safeguard the interest and well being of child at every stage of the judicial process. Further efforts have also been made to incorporate child friendly procedures for reporting, investigation, recording of evidence during the trial of the case while establishing Special Courts for speedy trial of such offences"

Noting that the significant expression in its section 29 is "shall presume", the Court said that this is contrary to the general presumption of innocence of the accused in the majority of criminal trials.

"Section 4 of the Indian Evidence Act, 1872 provides for various kinds of presumptions (of facts and of law). First 'may presume', second 'shall presume' and the last 'conclusive proof'...The distinction between 'may presume' and 'shall presume" is apparent from the words used by the legislature. The words 'may presume' gives discretion to the court to presume a fact. Whereas the words 'shall presume' mandates the Court to presume a particular fact or set of facts unless and until, it is rebutted by the accused. The presumptions of law can be rebuttable or irrebuttable. The expression 'conclusive proof' refers to the irrebuttable presumption of law in the Evidence Act", expounded the bench.

The Single bench appreciated that Section 139 of the Negotiable Instrument Act, 1881 also incorporates similar presumption mandating the court to presume that the holder of cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. Still further, Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 also makes a provision mandating the Courts to draw a rebuttable presumption with respect to a culpable mental state of the accused. Besides, such provision also exists in Section 8 of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989. 

Click Here To Download Order

[Read Order]