GANESAN versus STATE REPRESENTED BY ITS INSPECTOR OF POLICE on 14 October 2020

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentHand order dated 29.04.2019 passed by the High Court of Judicature at Madras in Criminal Appeal No. 844 of 2018, the appellant – originalaccused has preferred the present appeal.

3. That the appellant herein – original accused was tried by thelearned Fast Track Mahila Court, Dharmapuri for the offencespunishable under Section 7 read with Section 8 of the Protection ofChildren from Sexual Offences Act, 2012 (hereinafter referred to asthe “POCSO Act”). That relying upon the deposition of PW3 – victim,who at the relevant time was studying in 5[th] standard and aged 13 years,convicted the accused for the offence under Section 7 of the POCSOAct and sentenced him to undergo three years rigorous imprisonment,which is the minimum sentence provided under Section 8 of the POCSOAct. The learned trial Court also passed an order to pay rupees onelakh to the victim girl, by way of compensation, under Rule 7(2) of theProtection of Children from Sexual Offences Rules, 2012.

4. Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentenced passed by the learned trial Court, theaccused preferred appeal before the High Court being Criminal AppealNo. 844 of 2018. The appeal was taken up for further hearing on24.04.2019. The High Court noted that there was no representation onbehalf of the appellant and therefore by order dated 24.04.2019 directedto remove the name of the appellant’s counsel and further directed theHigh Court Legal Aid Committee to appoint Legal Aid Counsel for theappellant. The appeal was listed for further hearing on 29.04.2019. On29.04.2019, the learned Legal Aid Counsel appearing for the appellantmade only submission with respect to compensation of rupees one lakhawarded by the learned trial Court awarded to the victim girl underRule 7(2) of the Protection of Children from Sexual Offences Rules,2012. It was submitted on behalf of the accused that he is unable topay the compensation of rupees one lakh to the victim girl and pleadedleniency and requested to set aside the order of compensation awardedby the learned trial Court. That by the impugned judgment and orderdated 29.04.2019, the High Court partly allowed the said appeal andmodified the judgment and order passed by the learned trial Court withrespect to compensation only and modified the said order to the effectthat compensation amount shall be paid by the State to the victim girland thereafter if the State finds that the accused has got sufficientmeans, the same can be recovered from the accused under theRevenue Recovery Act. The High Court dismissed the appeal so faras the conviction and imposition of sentence of three years rigorousimprisonment is concerned.

A

B

C

D

EF

G

H

A5. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 29.04.2019 passed by the High Court, the originalaccused has preferred the present appeal.

6. Learned counsel appearing on behalf of the appellant hasvehemently submitted that no sufficient opportunity was given to theBaccused before passing the impugned judgment and order. It is submittedthat the High Court has passed the order on 24.04.2019 providing theservices of Legal Aid Counsel to represent the case of the appellantand thereafter the learned Legal Aid Counsel was heard on 29.04.2019,i.e., within a period of four days only and without considering the appealon merits the impugned judgment and order has been passed. It isCsubmitted that it was very short time for the Legal Aid Counsel toreceive the papers from the Registry and inspect the original documents.It is further submitted that as observed by this Court in the case ofAnokhilal v. State of Madhya Pradesh AIR 2020 SC 232 that failureto afford hearing to the accused violates even minimum standards ofdue process of law. It is submitted that it is further observed that theDlegal services provided to the accused should be meaningful and notam empty formality.

6.1 Learned counsel appearing on behalf of the appellant-accusedhas also pressed into service Order 41 Rule 31, CPC and the decisionof this Court in the case of Vinod Kumar v. Gangadhar (2015) 1ESCC 391.

6.2 On merits, learned counsel appearing on behalf of theaccused has vehemently submitted that as such the mother of thevictim-PW2 turned hostile and therefore the learned trial Court hascommitted a grave error in convicting the accused, relying upon theFsole testimony of PW3 – victim. It is submitted that PW2 – mother ofthe victim did not support the case of the prosecution and even did notsupport the deposition of PW3 – victim and therefore the learned trialCourt committed a grave error in convicting the accused. It is furthersubmitted that in fact the learned trial Court accepted that there arelapses on the part of the prosecution and therefore the benefit of doubtGought to have been given to the accused.

6.3 It is further submitted that even PW1 categorically admittedin his cross-examination that there is existence of previous enmitybetween the parties. It is submitted that in that view of the matter thelearned trial Court ought not to have convicted the accused.H

GANESAN v. STATE REPRESENTED BY ITSINSPECTOR OF POLICE [M. R. SHAH, J.]

7. The present appeal is vehemently opposed by Shri YogeshKanna, learned Advocate appearing on behalf of the respondent-State.It is submitted that merely because the appeal was disposed of withinfour days from the date of providing legal assistance to the accused, itcannot be presumed that no fair and sufficient opportunity was givento the accused to defend the case. It is submitted that it cannot bepresumed that the legal aid counsel was not having any material andno papers with him. It is submitted that from the impugned order itappears that the legal aid counsel made only one submission withrespect to compensation and in fact the same has been considered infavour of the accused by modifying the judgment and order passed bythe learned trial Court.

7.1 On merits, it is vehemently submitted by the learned counselappearing on behalf of the respondent-State that in the present casethe learned trial Court has not committed any error in convicting theaccused relying upon the deposition of PW3-victim whose evidence istrustworthy and reliable. It is submitted that she has been fully cross-examined by the defence. It is submitted that there is no reason to doubtthe testimony of the victim. It is submitted that as per the settledproposition of law, there can be a conviction on the sole testimony ofthe victim. Reliance is placed upon the decision of this Court in thecase of Vijay alias Chinee v. State of Madhya Pradesh, (2010) 8SCC 191.

7.2 It is further submitted that in the present case merely becausePW2-mother of the victim has turned hostile, the testimony of the PW3,which otherwise is reliable and trustworthy, cannot be doubted. It issubmitted that even otherwise PW2 cannot be said to be the eye-witnessto the incident and therefore when PW3-victim has fully supported thecase of the prosecution, the learned trial Court has not committed anyerror in convicting the accused for the offence under Section 7,punishable under Section 8 of the POCSO Act. It is submitted that assuch the learned trial Court has taken a very lenient view and hasawarded minimum sentence provided under Section 8 of the POCSOAct.

7.3 Making the above submissions, it is prayed to dismiss thepresent appeal.

8. We have heard the learned counsel for the respective partiesat length.

AB

C

D

E

F

G

H

A8.1 Learned counsel appearing on behalf of the appellant has verymuch emphasised on disposal of the appeal within four days from thedate of providing legal assistance to the accused. it is the case on behalfof the appellant-accused that on 24.04.2019, his advocate remainedabsent and the High Court directed the Legal Aid Committee to providelegal assistance to the appellant-accused and the matter was adjournedBto 29.04.2019 and on the very date, i.e., 0n 29.04.2019, the learned legalaid counsel did not argue the appeal on merits and has confined theappeal with respect to order of compensation awarded by the learnedtrial Court. Therefore, it is the case on behalf of the accused that nofair and sufficient opportunity was given to the accused. Heavy relianceCis placed on the decision of this Court in the case of Anokhilal (supra).However, it is required to be noted that as such nothing in on recordthat the legal aid counsel was not having any papers. There cannot beany dispute with respect to proposition of law laid down by this Courtin the case of Anokhilal (supra). However, in the facts andcircumstances of the case and considering the fact that the High CourtDhas given partial relief to the accused and considering the fact that outof the sentence of three years R.I., the appellant has already undergonetwo years and three months (approximately), instead of remanding thematter to the High Court for a fresh decision, we have called upon tothe learned counsel for the respective parties to submit the case onmerits, and the learned counsel on behalf of the respective parties haveEmade their submissions on merits, noted hereinabove.

9. In the present case, the appellant-accused has been convictedby the learned trial Court for the offence under Section 7, punishableunder Section 8 of the POCSO Act. We have gone through the entirejudgment passed by the learned trial Court as well as the relevantFevidence on record, more particularly the deposition of PW1-father ofthe victim, PW2-mother of the victim and PW3-victim herself. It is truethat PW2-mother of the victim has turned hostile. However, PW3-victimhas fully supported the case of the prosecution. She has narrated indetail how the incident has taken place. She has been thoroughly andGfully cross-examined. We do not see any good reason not to rely uponthe deposition of PW3 – victim. PW3 aged 15 years at the time ofdeposition is a matured one. She is trustworthy and reliable. As perthe settled proposition of law, even there can be a conviction based onthe sole testimony of the victim, however, she must be found to bereliable and trustworthy.

H

9.1 Whether, in the case involving sexual harassment, molestationetc., can there be conviction on the sole evidence of the prosecutrix, inthe case of Vijay alias Chinee (supra), it is observed in paragraphs 9to 14 as under:

“9. In State of Maharashtra v. Chandraprakash Kewalchand Jain,(1990) 1 SCC 550 this Court held that a woman, who is thevictim of sexual assault, is not an accomplice to the crime but isa victim of another person’s lust and, therefore, her evidence neednot be tested with the same amount of suspicion as that of anaccomplice. The Court observed as under: (SCC p. 559, para16)

“16. A prosecutrix of a sex offence cannot be put on par withan accomplice. She is in fact a victim of the crime. TheEvidence Act nowhere says that her evidence cannot beaccepted unless it is corroborated in material particulars. Sheis undoubtedly a competent witness under Section 118 and herevidence must receive the same weight as is attached to aninjured in cases of physical violence. The same degree of careand caution must attach in the evaluation of her evidence asin the case of an injured complainant or witness and no more.What is necessary is that the court must be alive to andconscious of the fact that it is dealing with the evidence of aperson who is interested in the outcome of the charge levelledby her. If the court keeps this in mind and feels satisfied thatit can act on the evidence of the prosecutrix, there is no ruleof law or practice incorporated in the Evidence Act similarto Illustration (b) to Section 114 which requires it to look forcorroboration. If for some reason the court is hesitant to placeimplicit reliance on the testimony of the prosecutrix it may lookfor evidence which may lend assurance to her testimony shortof corroboration required in the case of an accomplice. Thenature of evidence required to lend assurance to the testimonyof the prosecutrix must necessarily depend on the facts andcircumstances of each case. But if a prosecutrix is an adultand of full understanding the court is entitled to base aconviction on her evidence unless the same is shown to be A

BC

D

EF

G

H

A

infirm and not trustworthy. If the totality of the circumstancesappearing on the record of the case disclose that theprosecutrix does not have a strong motive to falsely involvethe person charged, the court should ordinarily have nohesitation in accepting her evidence.”

B

10. In State of U.P. v. Pappu, (2005) 3 SCC 594 this Court heldthat even in a case where it is shown that the girl is a girl of easy virtueor a girl habituated to sexual intercourse, it may not be a ground toabsolve the accused from the charge of rape. It has to be establishedthat there was consent by her for that particular occasion. Absence ofCinjury on the prosecutrix may not be a factor that leads the court toabsolve the accused. This Court further held that there can beconviction on the sole testimony of the prosecutrix and in case, the courtis not satisfied with the version of the prosecutrix, it can seek otherevidence, direct or circumstantial, by which it may get assurance ofher testimony. The Court held as under: (SCC p. 597, para 12)

D

“12. It is well settled that a prosecutrix complaining of havingbeen a victim of the offence of rape is not an accomplice afterthe crime. There is no rule of law that her testimony cannot beacted upon without corroboration in material particulars. SheEstands at a higher pedestal than an injured witness. In the lattercase, there is injury on the physical form, while in the former itis both physical as well as psychological and emotional. However,if the court of facts finds it difficult to accept the version of theprosecutrix on its face value, it may search for evidence, director circumstantial, which would lend assurance to her testimony.FAssurance, short of corroboration as understood in the contextof an accomplice, would do.”

11. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, thisCourt held that in cases involving sexual harassment, molestation, etc.Gthe court is duty-bound to deal with such cases with utmost sensitivity.Minor contradictions or insignificant discrepancies in the statement ofa prosecutrix should not be a ground for throwing out an otherwisereliable prosecution case. Evidence of the victim of sexual assault isenough for conviction and it does not require any corroboration unlessthere are compelling reasons for seeking corroboration. The court may H

look for some assurances of her statement to satisfy judicial conscience.The statement of the prosecutrix is more reliable than that of an injuredwitness as she is not an accomplice. The Court further held that thedelay in filing FIR for sexual offence may not be even properly explained,but if found natural, the accused cannot be given any benefit thereof.The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21)

“8. ... The court overlooked the situation in which a poor helplessminor girl had found herself in the company of three desperateyoung men who were threatening her and preventing her fromraising any alarm. Again, if the investigating officer did notconduct the investigation properly or was negligent in not beingable to trace out the driver or the car, how can that become aground to discredit the testimony of the prosecutrix? Theprosecutrix had no control over the investigating agency and thenegligence of an investigating officer could not affect thecredibility of the statement of the prosecutrix. ... The courts must,while evaluating evidence, remain alive to the fact that in a caseof rape, no self-respecting woman would come forward in a courtjust to make a humiliating statement against her honour such asis involved in the commission of rape on her. In cases involvingsexual molestation, supposed considerations which have nomaterial effect on the veracity of the prosecution case or evendiscrepancies in the statement of the prosecutrix should not, unlessthe discrepancies are such which are of fatal nature, be allowedto throw out an otherwise reliable prosecution case. ... Seekingcorroboration of her statement before relying upon the same, asa rule, in such cases amounts to adding insult to injury. ...Corroboration as a condition for judicial reliance on the testimonyof the prosecutrix is not a requirement of law but a guidance ofprudence under given circumstances. ...

xxxxxxxxx

21. ... The courts should examine the broader probabilities of acase and not get swayed by minor contradictions or insignificantdiscrepancies in the statement of the prosecutrix, which are notof a fatal nature, to throw out an otherwise reliable prosecutioncase. If evidence of the prosecutrix inspires confidence, it must A

B

C

D

E

F

G

H

A

be relied upon without seeking corroboration of her statement inmaterial particulars. If for some reason the court finds it difficultto place implicit reliance on her testimony, it may look forevidence which may lend assurance to her testimony, short ofcorroboration required in the case of an accomplice. Thetestimony of the prosecutrix must be appreciated in thebackground of the entire case and the trial court must be aliveto its responsibility and be sensitive while dealing with casesinvolving sexual molestations.”

B

(emphasis in original)

C

12. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86, thisCourt held that rape is not mere physical assault, rather it oftendistracts (sic destroys) the whole personality of the victim. Therapist degrades the very soul of the helpless female and,therefore, the testimony of the prosecutrix must be appreciatedin the background of the entire case and in such cases, non-examination even of other witnesses may not be a seriousinfirmity in the prosecution case, particularly where the witnesseshad not seen the commission of the offence.

D

D

13. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 thisECourt held that there is no legal compulsion to look for any otherevidence to corroborate the evidence of the prosecutrix beforerecording an order of conviction. Evidence has to be weighedand not counted. Conviction can be recorded on the soletestimony of the prosecutrix, if her evidence inspires confidenceFand there is absence of circumstances which militate against herveracity. A similar view has been reiterated by this Court in WahidKhan v. State of M.P. (2010) 2 SCC 9 placing reliance on anearlier judgment in Rameshwar v. State of Rajasthan, AIR 1952SC 54.

E

G

14. Thus, the law that emerges on the issue is to the effect thatthe statement of the prosecutrix, if found to be worthy of credenceand reliable, requires no corroboration. The court may convictthe accused on the sole testimony of the prosecutrix.”

(Emphasis supplied)

H

9.2 In the case of Krishan Kumar Malik v. State of Haryana(2011) 7 SCC 130, it is observed and held by this Court that to holdan accused guilty for commission of an offence of rape, the solitaryevidence of the prosecutrix is sufficient, provided the same inspiresconfidence and appears to be absolutely trustworthy, unblemished andshould be of sterling quality.

9.3 Who can be said to be a “sterling witness”, has been dealtwith and considered by this Court in the case of Rai Sandeep aliasDeepu v. State (NCT of Delhi), (2012) 8 SCC 21. In paragraph 22,it is observed and held as under:

“22. In our considered opinion, the “sterling witness” should beof a very high quality and calibre whose version should, therefore,be unassailable. The court considering the version of such witnessshould be in a position to accept it for its face value without anyhesitation. To test the quality of such a witness, the status of thewitness would be immaterial and what would be relevant is thetruthfulness of the statement made by such a witness. Whatwould be more relevant would be the consistency of the statementright from the starting point till the end, namely, at the time whenthe witness makes the initial statement and ultimately before thecourt. It should be natural and consistent with the case of theprosecution qua the accused. There should not be anyprevarication in the version of such a witness. The witness shouldbe in a position to withstand the cross-examination of any lengthand howsoever strenuous it may be and under no circumstanceshould give room for any doubt as to the factum of theoccurrence, the persons involved, as well as the sequence of it.Such a version should have co-relation with each and every oneof other supporting material such as the recoveries made, theweapons used, the manner of offence committed, the scientificevidence and the expert opinion. The said version shouldconsistently match with the version of every other witness. Itcan even be stated that it should be akin to the test applied inthe case of circumstantial evidence where there should not beany missing link in the chain of circumstances to hold the accusedguilty of the offence alleged against him. Only if the version ofsuch a witness qualifies the above test as well as all 12 other A

B

CD

EF

G

H

A

Asuch similar tests to be applied, can it be held that such a witnesscan be called as a “sterling witness” whose version can beaccepted by the court without any corroboration and based onwhich the guilty can be punished. To be more precise, the versionof the said witness on the core spectrum of the crime shouldBremain intact while all other attendant materials, namely, oral,documentary and material objects should match the said versionin material particulars in order to enable the court trying theoffence to rely on the core version to sieve the other supportingmaterials for holding the offender guilty of the charge alleged.”

COn evaluating the deposition of PW3 – victim on the touchstoneof the law laid down by this Court in the aforesaid decisions, we areof the opinion that the sole testimony of the PW3 – victim is absolutelytrustworthy and unblemished and her evidence is of sterling quality.

Therefore, in the facts and circumstances of the case, the learnedDtrial Court has not committed any error in convicting the accused, relyingupon the deposition of PW3 – victim. The learned trial Court hasimposed the minimum sentence provided under Section 8 of the POCSOAct. Therefore, the learned trial Court has already shown the leniency.At this stage, it is required to be noted that allegations against theEaccused which are proved from the deposition of PW3 are very serious,which cannot be permitted in the civilized society. Therefore,considering the object and purpose of POCSO Act and considering theevidence on record, the High Court has rightly convicted the accusedfor the offence under Section 7 of the POCSO Act and has rightlysentenced the accused to undergo three years R.I. which is the minimumFsentence provided under Section 8 of the POCSO Act.

10. Now so far as the amount of compensation awarded by thelearned trial Court is concerned, the High Court has modified the sameand has directed the State to pay the compensation to the victim andGthereafter to recover the same from the accused under the provisionsof the land revenue, if it finds that the accused has sufficient means. Itis the case on behalf of the accused that the accused is very poor andhas no property. If that be so, he is not to worry. The aforesaid hasbeen taken care by the High Court by modifying the judgment and orderpassed by the learned trial Court.H

GANESAN v. STATE REPRESENTED BY ITSINSPECTOR OF POLICE [M. R. SHAH, J.]

11. Now so far as the reliance placed upon the decision of thisCourt in the case of Vinod Kumar (supra) and the reliance placedupon Order 41 Rule 31 CPC is concerned, as we ourselves have heardthe appeal on merits and considering the fact that out of three yearsR.I., the appellant has already undergone two years and three months(approximately), the said decision shall not be of any assistance to theaccused.

12. In view of the above and for the reasons given above, thepresent appeal deserves to be dismissed and is accordingly dismissed.

Ankit Gyan

Appeal dismissed.

A

B

C

D

E

F

G

H