In Pappu Sharma v. State of Bihar, the direction of the division bench of Justices Ashutosh Kumar and Khatim Reza reads: "In face of the Doctors’ evidence, there could be a little doubt that the victim was attempted to be violated but finding the accusation against the appellant to be absolutely without any basis, we are constrained to set aside the judgment and order of conviction. The appellant is acquitted of the charge. Since the appellant is in jail, he is directed to be released forthwith unless his detention is required in connection with any other case". In its order, Patna High Court's bench heard the appellant who was convicted for the offence under Section 376 IPC and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 vide judgment dated July 13, 2017 passed by the Special Judge, POCSO Act, Samastipur in Dalsingsarai.
By order dated July 18, 2017, the appellant, a resident of Rasidpur, PBachhwara, Begusarai was sentenced to undergo imprisonment for life along with a fine of Rs. 1,00,000/- and in default of payment of fine, to further suffer rigorous imprisonment (R.I.) for one year for the offence under Section 6 of the POCSO Act. No separate sentence was awarded for the offence under Section 376 IPC.
The judgement records that an eight year old girl is alleged to have been sexually violated by the appellant. The mother of the victim (PW4) had lodged the F.I.R. on 14.06.2015 alleging that on June 13, 2015, there was a religious congregation in front of her house under a peepal tree, where many persons of the village had assembled. She along with her daughter (victim) and a toddler slept on a cot by around 8.00 P.M. At about 12 ‘O’ Clock in the night, when she got up from her sleep, she did not find her daughter (victim) around. She came out in search of her daughter but to no avail. Shortly thereafter, she found her daughter weeping in the garden. When she was asked, she disclosed before PW4 that a musician of the band party had brought her at that place and had sexually assaulted her. The accused person had run away. PW4 lifted her daughter and brought her home and inquired about the musician in the band party. She came to know that one Pappu Sharma/appellant of Begusarai was member of the band party. The appellant was confronted with the afore-noted allegation but he denied and ran away. The local Mukhiya was informed about the occurrence, who in turn informed the police. The victim was brought to Dalsingsarai hospital and after her treatment, PW4 lodged the F.I.R. with the Mahila Police in Samastipur.
Since the appellant was the only person about whom there was a doubt that he had committed the offence, he was chargesheeted and put on trial. The Trial Court after having examined nine witnesses on behalf of the prosecution convicted and sentenced the appellant.
The High Court observed that from the deposition of PW4 before the Trial Court, it appears that it was only on her guesswork that she had raised allegation against the appellant. In her examination in chief, she stated that somebody had taken her daughter and had sexually violated her. On being asked, the victim had told her that one boy had taken her to the garden and had physically violated her. During cross-examination, she admitted that her daughter only said that one musician had taken her to the garden. It was found out that the musician playing in the band party was Pappu Sharma (the appellant). His name was not taken by the victim. The mother of the victim did not even recognize the appellant.
The victim was examined. After testing her competence to depose through voir dire, the Trial Court recorded her statement. Voir dire test is a test to determine the maturity and capability of a minor to be a witness. In this test, a judge to test the mental capacity of a minor, asks him/her questions not related to the circumstances of the case. Although it is not a rule but evidence by a minor ought to be accompanied by corroborating evidence as given section 142 of the Indian Evidence Act, 1872. The Court is cautious when there is a need to rely solely on a child’s testimony. The victim completely denied that the appellant who was standing in the dock, had committed any wrong act with her. She recognized the appellant but in no uncertain terms stated that he was not the person, who had caused trouble to her. The other witnesses, did not support the prosecution case and have been declared hostile. The grandfather of the victim denied the factum of rape of his granddaughter.
The Court's order records that the victim was examined by Dr. Pushpa Rani and Dr. Hemant Kumar Singh, who found her to be between 7 to 8 years of age and there being strong evidence of sexual assault on her. Thus, there could be a possibility of the victim having been sexually violated but the accusation against the appellant was based on guess-work and some misgivings about his being the musician in the band party which was hired in the religious congregation. Had it not been the case, there would have been specific accusation against the appellant.
The High Court's bench led by Justice Ashutosh Kumar concluded that "it appears that it was only on the guess-work of the informant that the appellant was put on trial.
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