Sushil Kumar Tiwari vs Hare Ram Sah & Ors.

18 years, the special protections carved out in favour of children cannot be diluted by insisting upon a rigid determination of the age – As regards the issue regarding date and time of the incident, the main witness pertaining to the commission of the offence is the victim herself, examined as PW-2 – She has expressed the entire chain in a consistent manner and her version is also consistent with other PWs – She has deposed that the offence took place in the days following the festival of Holi and the same is corroborated by the medical report dated 01.07.2016, which indicates that she was 3-4 months pregnant as on 01.07.2016 – The medical report corroborates the time frame stated by the victim – The testimony of the victim is fairly consistent and there is no reasonable ground to doubt the same – As far as proof of pregnancy and abortion is concerned, the medical report dated 01.07.2016 categorically indicated that at the time of ultrasound, the victim was 15 weeks pregnant – Further, the Trial Court has noted that the letter dated 28.07.2016 bearing Letter No. 60/BSLSA/AccT/2472 issued by the Bihar State Legal Services Authority indicated that the victim’s father had sought permission for her abortion – That abortion was conducted after the constitution of medical board by the Executive Chairman, BSLSA, Patna High Court, a fact which has not been disputed – There is ample documentary and oral evidence to prove these elements and the High Court has overlooked relevant evidence in arriving at its finding – As regards the delay in lodging the FIR, the incident came to light only after the ultrasound conducted on 01.07.2016 and the FIR was lodged on the very next day – Before the discovery of offence, the delay of 3-4 months was a consequence of the intimidation made by the respondent nos.1 and 2, which prevented the victim from opening up before her parents – So, the victim could be faulted in any manner on account of delay. [Paras 17, 19, 20, 21]

Penal Code, 1860 – s.376(2) – Protection of Children from Sexual Offences Act, 2012 – ss.4 and 6 – Code of Criminal Procedure, 1973 – s.223 – Trial Court convicted respondent nos.1 and 2 u/s.376(2) of IPC and ss.4 and 6 of POCSO Act, 2012 for raping a minor girl – Respondents never committed the acts together and always acted separately – The High Court emphasized the non-compliance of s.223 Cr.PC: Held: The victim and the respondent nos.1 and 2 were residing in the same village, the house of respondent no.2 was situated one house away from that of the victim, respondent no.1 was running a coaching center adjacent to his house and in the same vicinity, and both the respondents threatened the victim of similar consequences if she dared to disclose their acts to anyone – Evidently, the nature of acts committed by the respondent nos.1 and 2 herein and subsequent intimidation to keep the victim silent were of a similar design – Further, there was a certain proximity of time and place as the incidents were committed within a continuous time-frame and at different places in the same village – However, it is also admitted that they never committed the acts together and always acted separately – Therefore, there is no direct evidence of commission of offences in the same transaction, however, an inference may be drawn – For, even if the conclusion of the High Court, that the joint trial was conducted in violation of s.223 Cr.PC, is accepted, the respondent nos.1 and 2 would still have to further show that the joint trial had caused prejudice to them and had occasioned a failure of justice – Mere irregular conduct of a joint or separate trial does not vitiate the trial as a whole and the proof of failure of justice is sine qua non for holding the trial as invalid – In the High Court’s reasoning, there is no finding of actual prejudice or failure of justice as a result of the joint trial, as necessitated by law – Mere non-compliance of the procedure contemplated u/s.223 does not ipso facto render the trial as invalid, and the same cannot form the basis of returning a finding of prejudice and failure of justice – The said conclusion must emanate from the facts of the case, after a thorough examination of the facts and evidence on record. [Paras 31, 34]

Evidence – Standard of reasonable doubt:

Held: One of the foremost principles of appreciation of evidence is that natural variations, errors and inconsistencies are not to be elevated to the standard of a reasonable doubt or to hold that the prosecution has failed – There is nothing like perfect evidence in a Court and in fact, perfection is often suggestive of tutoring and manufacturing of evidence – The availability of evidence as well as the quality of evidence are not open to judgment on any predetermined parameters – For, these aspects not only depend upon the quality of investigation but also upon the societal circumstances prevalent in the area of crime – They also depend upon the level of awareness, not only of the persons involved in the case but also of the members of the locality who often appear as witnesses – Therefore, the Courts must be alive to the state of affairs on the ground and in that backdrop, it must examine whether the inconsistencies and gaps have been properly explained or not – If so, such inconsistencies and gaps may not affect the case of the prosecution – However, if the prosecution fails to explain the inconsistencies in its case, an adverse inference may be drawn against it. [Para 22] Code of Criminal Procedure, 1973 – s.464 – Whether mere discovery of an error, irregularity or omission in the framing of charge ipso facto render the decision of the Court as invalid: Held: Mere discovery of an error, irregularity or omission in the framing of charge does not ipso facto render the decision of the Court as invalid – In fact, even a case of non-framing of charge is not liable to be discarded on that ground alone – In order to vitiate the decision, what is necessary is the failure of justice as a result of such error or omission or irregularity – Thus, the quintessential issue that requires an answer is whether the defect in the framing of charge in the instant matter has occasioned a failure of justice for the respondent nos.1 and 2. [Para 26]