Ganesan vs State Rep. By Its Inspector Of … on 14 October, 2020


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

Ganesan vs State Rep. By Its Inspector Of … on 14 October, 2020

Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy, M.R. Shah

                                                                   REPORTABLE
                                   IN THE SUPREME COURT OF INDIA
                                   CRIMINAL APPELLATE JURISDICTION
                                    CRIMINAL APPEAL No. 680 of 2020
                              (Arising from S.L.P.(Criminal) No.4976/2020)

         Ganesan                                                   …Appellant
                                          Versus


         State Represented by its
         Inspector of Police                                       …Respondent


                                              JUDGMENT

M.R. SHAH, J.

Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 29.04.2019 passed by the High Court

of Judicature at Madras in Criminal Appeal No. 844 of 2018, the

appellant – original accused has preferred the present appeal.

3. That the appellant herein – original accused was tried by the

learned Fast Track Mahila Court, Dharmapuri for the offences

punishable under Section 7 read with Section 8 of the Protection

of Children from Sexual Offences Act, 2012 (hereinafter referred
Signature Not Verified

Digitally signed by
MEENAKSHI KOHLI
Date: 2020.10.14
17:16:21 IST

to as the “POCSO Act”). That relying upon the deposition of PW3
Reason:

1
– victim, who at the relevant time was studying in 5th standard

and aged 13 years, convicted the accused for the offence under

Section 7 of the POCSO Act and sentenced him to undergo three

years rigorous imprisonment, which is the minimum sentence

provided under Section 8 of the POCSO Act. The learned trial

Court also passed an order to pay rupees one lakh to the victim

girl, by way of compensation, under Rule 7(2) of the Protection of

Children from Sexual Offences Rules, 2012.

4. Feeling aggrieved and dissatisfied with the judgment and

order of conviction and sentenced passed by the learned trial

Court, the accused preferred appeal before the High Court being

Criminal Appeal No. 844 of 2018. The appeal was taken up for

further hearing on 24.04.2019. The High Court noted that there

was no representation on behalf of the appellant and therefore by

order dated 24.04.2019 directed to remove the name of the

appellant’s counsel and further directed the High Court Legal Aid

Committee to appoint Legal Aid Counsel for the appellant. The

appeal was listed for further hearing on 29.04.2019. On

29.04.2019, the learned Legal Aid Counsel appearing for the

appellant made only submission with respect to compensation of

rupees one lakh awarded by the learned trial Court awarded to

2
the victim girl under Rule 7(2) of the Protection of Children from

Sexual Offences Rules, 2012. It was submitted on behalf of the

accused that he is unable to pay the compensation of rupees one

lakh to the victim girl and pleaded leniency and requested to set

aside the order of compensation awarded by the learned trial

Court. That by the impugned judgment and order dated

29.04.2019, the High Court partly allowed the said appeal and

modified the judgment and order passed by the learned trial

Court with respect to compensation only and modified the said

order to the effect that compensation amount shall be paid by the

State to the victim girl and thereafter if the State finds that the

accused has got sufficient means, the same can be recovered

from the accused under the Revenue Recovery Act. The High

Court dismissed the appeal so far as the conviction and

imposition of sentence of three years rigorous imprisonment is

concerned.

5. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 29.04.2019 passed by the High Court,

the original accused has preferred the present appeal.

6. Learned counsel appearing on behalf of the appellant has

vehemently submitted that no sufficient opportunity was given to

3
the accused before passing the impugned judgment and order. It

is submitted that the High Court has passed the order on

24.04.2019 providing the services of Legal Aid Counsel to

represent the case of the appellant and 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 appeal on merits

the impugned judgment and order has been passed. It is

submitted that it was very short time for the Legal Aid Counsel to

receive the papers from the Registry and inspect the original

documents. It is further submitted that as observed by this

Court in the case of Anokhilal v. State of Madhya Pradesh AIR

2020 SC 232 that failure to afford hearing to the accused violates

even minimum standards of due process of law. It is submitted

that it is further observed that the legal services provided to the

accused should be meaningful and not am empty formality.

6.1 Learned counsel appearing on behalf of the appellant­

accused has also pressed into service Order 41 Rule 31, CPC and

the decision of this Court in the case of Vinod Kumar v.

Gangadhar (2015) 1 SCC 391.

6.2 On merits, learned counsel appearing on behalf of the

accused has vehemently submitted that as such the mother of
4
the victim­PW2 turned hostile and therefore the learned trial

Court has committed a grave error in convicting the accused,

relying upon the sole testimony of PW3 – victim. It is submitted

that PW2 – mother of the victim did not support the case of the

prosecution and even did not support the deposition of PW3 –

victim and therefore the learned trial Court committed a grave

error in convicting the accused. It is further submitted that in

fact the learned trial Court accepted that there are lapses on the

part of the prosecution and therefore the benefit of doubt ought

to have been given to the accused.

6.3 It is further submitted that even PW1 categorically admitted

in his cross­examination that there is existence of previous

enmity between the parties. It is submitted that in that view of

the matter the learned trial Court ought not to have convicted the

accused.

7. The present appeal is vehemently opposed by Shri Yogesh

Kanna, learned Advocate appearing on behalf of the respondent­

State. It is submitted that merely because the appeal was

disposed of within four days from the date of providing legal

assistance to the accused, it cannot be presumed that no fair and

sufficient opportunity was given to the accused to defend the

5
case. It is submitted that it cannot be presumed that the legal

aid counsel was not having any material and no papers with him.

It is submitted that from the impugned order it appears that the

legal aid counsel made only one submission with respect to

compensation and in fact the same has been considered in favour

of the accused by modifying the judgment and order passed by

the learned trial Court.

7.1 On merits, it is vehemently submitted by the learned

counsel appearing on behalf of the respondent­State that in the

present case the learned trial Court has not committed any error

in convicting the accused relying upon the deposition of PW3­

victim whose evidence is trustworthy and reliable. It is submitted

that she has been fully cross­examined by the defence. It is

submitted that there is no reason to doubt the testimony of the

victim. It is submitted that as per the settled proposition of law,

there can be a conviction on the sole testimony of the victim.

Reliance is placed upon the decision of this Court in the case of

Vijay alias Chinee v. State of Madhya Pradesh, (2010) 8 SCC 191.

7.2 It is further submitted that in the present case merely

because PW2­mother of the victim has turned hostile, the

testimony of the PW3, which otherwise is reliable and

6
trustworthy, cannot be doubted. It is submitted that even

otherwise PW2 cannot be said to be the eye­witness to the

incident and therefore when PW3­victim has fully supported the

case of the prosecution, the learned trial Court has not

committed any error in convicting the accused for the offence

under Section 7, punishable under Section 8 of the POCSO Act.

It is submitted that as such the learned trial Court has taken a

very lenient view and has awarded minimum sentence provided

under Section 8 of the POCSO Act.

7.3 Making the above submissions, it is prayed to dismiss the

present appeal.

8. We have heard the learned counsel for the respective parties

at length.

8.1 Learned counsel appearing on behalf of the appellant has

very much emphasised on disposal of the appeal within four days

from the date of providing legal assistance to the accused. it is

the case on behalf of the appellant­accused that on 24.04.2019,

his advocate remained absent and the High Court directed the

Legal Aid Committee to provide legal assistance to the appellant­

accused and the matter was adjourned to 29.04.2019 and on the

very date, i.e., 0n 29.04.2019, the learned legal aid counsel did

7
not argue the appeal on merits and has confined the appeal with

respect to order of compensation awarded by the learned trial

Court. Therefore, it is the case on behalf of the accused that no

fair and sufficient opportunity was given to the accused. Heavy

reliance is 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 record that the legal aid counsel was not

having any papers. There cannot be any dispute with respect to

proposition of law laid down by this Court in the case of

Anokhilal (supra). However, in the facts and circumstances of the

case and considering the fact that the High Court has given

partial relief to the accused and considering the fact that out of

the sentence of three years R.I., the appellant has already

undergone two years and three months (approximately), instead

of remanding the matter to the High Court for a fresh decision,

we have called upon to the learned counsel for the respective

parties to submit the case on merits, and the learned counsel on

behalf of the respective parties have made their submissions on

merits, noted hereinabove.

9. In the present case, the appellant­accused has been

convicted by the learned trial Court for the offence under Section

8
7, punishable under Section 8 of the POCSO Act. We have gone

through the entire judgment passed by the learned trial Court as

well as the relevant evidence on record, more particularly the

deposition of PW1­father of the victim, PW2­mother of the victim

and PW3­victim herself. It is true that PW2­mother of the victim

has turned hostile. However, PW3­victim has fully supported the

case of the prosecution. She has narrated in detail how the

incident has taken place. She has been thoroughly and fully

cross­examined. We do not see any good reason not to rely upon

the deposition of PW3 – victim. PW3 aged 15 years at the time of

deposition is a matured one. She is trustworthy and reliable. As

per the settled proposition of law, even there can be a conviction

based on the sole testimony of the victim, however, she must be

found to be reliable and trustworthy.

9.1 Whether, in the case involving sexual harassment,

molestation etc., can there be conviction on the sole evidence of

the prosecutrix, in the case of Vijay alias Chinee (supra), it is

observed in paragraphs 9 to 14 as under:

“9. In State of Maharashtra v. Chandraprakash Kewalchand
Jain
, (1990) 1 SCC 550 this Court held that a woman, who is the
victim of sexual assault, is not an accomplice to the crime but is a

9
victim of another person’s lust and, therefore, her evidence need
not be tested with the same amount of suspicion as that of an
accomplice. The Court observed as under: (SCC p. 559, para 16)

“16. A prosecutrix of a sex offence cannot be put on par with an
accomplice. She is in fact a victim of the crime. The Evidence Act
nowhere says that her evidence cannot be accepted unless it is
corroborated in material particulars. She is undoubtedly a
competent witness under Section 118 and her evidence must
receive the same weight as is attached to an injured in cases of
physical violence. The same degree of care and caution must
attach in the evaluation of her evidence as in the case of an
injured complainant or witness and no more. What is necessary
is that the court must be alive to and conscious of the fact that it
is dealing with the evidence of a person who is interested in the
outcome of the charge levelled by her. If the court keeps this in
mind and feels satisfied that it can act on the evidence of the
prosecutrix, there is no rule of law or practice incorporated in
the Evidence Act similar to Illustration (b) to Section 114 which
requires it to look for corroboration. If for some reason the court
is hesitant to place implicit reliance on the testimony of the
prosecutrix it may look for evidence which may lend assurance
to her testimony short of corroboration required in the case of an
accomplice. The nature of evidence required to lend assurance to
the testimony of the prosecutrix must necessarily depend on the
facts and circumstances of each case. But if a prosecutrix is an
adult and of full understanding the court is entitled to base a
conviction on her evidence unless the same is shown to be infirm
and not trustworthy. If the totality of the circumstances
appearing on the record of the case disclose that the prosecutrix
does not have a strong motive to falsely involve the person
charged, the court should ordinarily have no hesitation in
accepting her evidence.”

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

10
“12. It is well settled that a prosecutrix complaining of having
been a victim of the offence of rape is not an accomplice after
the crime. There is no rule of law that her testimony cannot be
acted upon without corroboration in material particulars. She
stands at a higher pedestal than an injured witness. In the
latter case, there is injury on the physical form, while in the
former it is both physical as well as psychological and
emotional. However, if the court of facts finds it difficult to
accept the version of the prosecutrix on its face value, it may
search for evidence, direct or circumstantial, which would
lend assurance to her testimony. Assurance, short of
corroboration as understood in the context of an accomplice,
would do.”

11. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, this
Court held that in cases involving sexual harassment, molestation,
etc. the court is duty­bound to deal with such cases with utmost
sensitivity. Minor contradictions or insignificant discrepancies in
the statement of a prosecutrix should not be a ground for throwing
out an otherwise reliable prosecution case. Evidence of the victim
of sexual assault is enough for conviction and it does not require
any corroboration unless there are compelling reasons for seeking
corroboration. The court may look for some assurances of her
statement to satisfy judicial conscience. The statement of the
prosecutrix is more reliable than that of an injured witness as she
is not an accomplice. The Court further held that the delay 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. 394­96 & 403, paras 8 &

21)

“8. … The court overlooked the situation in which a poor
helpless minor girl had found herself in the company of three
desperate young men who were threatening her and
preventing her from raising any alarm. Again, if the
investigating officer did not conduct the investigation properly
or was negligent in not being able to trace out the driver or the
car, how can that become a ground to discredit the testimony
of the prosecutrix? The prosecutrix had no control over the
investigating agency and the negligence of an investigating
officer could not affect the credibility of the statement of the
prosecutrix. … The courts must, while evaluating evidence,
remain alive to the fact that in a case of rape, no self­
respecting woman would come forward in a court just to make
a humiliating statement against her honour such as is
involved in the commission of rape on her. In cases involving
sexual molestation, supposed considerations which have no
material effect on the veracity of the prosecution case or even

11
discrepancies in the statement of the prosecutrix should not,
unless the discrepancies are such which are of fatal nature,
be allowed to throw out an otherwise reliable prosecution
case. … Seeking corroboration of her statement before relying
upon the same, as a rule, in such cases amounts to adding
insult to injury. … Corroboration as a condition for judicial
reliance on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence under given
circumstances. …

xxx xxx xxx

21. … The courts should examine the broader probabilities of
a case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the prosecutrix,
which are not of a fatal nature, to throw out an otherwise
reliable prosecution case. If evidence of the prosecutrix
inspires confidence, it must be relied upon without seeking
corroboration of her statement in material particulars. If for
some reason the court finds it difficult to place implicit
reliance on her testimony, it may look for evidence which may
lend assurance to her testimony, short of corroboration
required in the case of an accomplice. The testimony of the
prosecutrix must be appreciated in the background of the
entire case and the trial court must be alive to its
responsibility and be sensitive while dealing with cases
involving sexual molestations.”

(emphasis in original)

12. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86, this
Court held that rape is not mere physical assault, rather it often
distracts (sic destroys) the whole personality of the victim. The
rapist degrades the very soul of the helpless female and, therefore,
the testimony of the prosecutrix must be appreciated in the
background of the entire case and in such cases, non­examination
even of other witnesses may not be a serious infirmity in the
prosecution case, particularly where the witnesses had not seen
the commission of the offence.

13. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 this Court
held that there is no legal compulsion to look for any other
evidence to corroborate the evidence of the prosecutrix before
recording an order of conviction. Evidence has to be weighed and
not counted. Conviction can be recorded on the sole testimony of
the prosecutrix, if her evidence inspires confidence and there is
absence of circumstances which militate against her veracity. A
similar view has been reiterated by this Court in Wahid Khan v.

12
State of M.P
. (2010) 2 SCC 9 placing reliance on an earlier
judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54.

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

(Emphasis supplied)

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

hold an accused guilty for commission of an offence of rape, the

solitary evidence of the prosecutrix is sufficient, provided the

same inspires confidence and appears to be absolutely

trustworthy, unblemished and should be of sterling quality.

9.3 Who can be said to be a “sterling witness”, has been dealt

with and considered by this Court in the case of Rai Sandeep

alias Deepu 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
be of a very high quality and calibre whose version should,
therefore, be unassailable. The court considering the version of
such witness should be in a position to accept it for its face
value without any hesitation. To test the quality of such a
witness, the status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement made by
such a witness. What would be more relevant would be the
consistency of the statement right from the starting point till the
end, namely, at the time when the witness makes the initial
statement and ultimately before the court. It should be natural
and consistent with the case of the prosecution qua the

13
accused. There should not be any prevarication in the version of
such a witness. The witness should be in a position to
withstand the cross­examination of any length and howsoever
strenuous it may be and under no circumstance should give
room for any doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of it. Such a version
should have co­relation with each and every one of other
supporting material such as the recoveries made, the weapons
used, the manner of offence committed, the scientific evidence
and the expert opinion. The said version should consistently
match with the version of every other witness. It can even be
stated that it should be akin to the test applied in the case of
circumstantial evidence where there should not be any missing
link in the chain of circumstances to hold the accused guilty of
the offence alleged against him. Only if the version of such a
witness qualifies the above test as well as all 12 other such
similar tests to be applied, can it be held that such a witness
can be called as a “sterling witness” whose version can be
accepted by the court without any corroboration and based on
which the guilty can be punished. To be more precise, the
version of the said witness on the core spectrum of the crime
should remain intact while all other attendant materials,
namely, oral, documentary and material objects should match
the said version in material particulars in order to enable the
court trying the offence to rely on the core version to sieve the
other supporting materials for holding the offender guilty of the
charge alleged.”

On evaluating the deposition of PW3 – victim on the

touchstone of the law laid down by this Court in the aforesaid

decisions, we are of the opinion that the sole testimony of the

PW3 – victim is absolutely trustworthy and unblemished and her

evidence is of sterling quality.

Therefore, in the facts and circumstances of the case, the

learned trial Court has not committed any error in convicting the

14
accused, relying upon the deposition of PW3 – victim. The

learned trial Court has imposed the minimum sentence provided

under Section 8 of the POCSO Act. Therefore, the learned trial

Court has already shown the leniency. At this stage, it is

required to be noted that allegations against the accused 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 the evidence on record, the High Court has rightly

convicted the accused for the offence under Section 7 of the

POCSO Act and has rightly sentenced the accused to undergo

three years R.I. which is the minimum sentence provided under

Section 8 of the POCSO Act.

10. Now so far as the amount of compensation awarded by the

learned trial Court is concerned, the High Court has modified the

same and has directed the State to pay the compensation to the

victim and thereafter to recover the same from the accused under

the provisions of the land revenue, if it finds that the accused has

sufficient means. It is the case on behalf of the accused that the

accused is very poor and has no property. If that be so, he is not

to worry. The aforesaid has been taken care by the High Court

15
by modifying the judgment and order passed by the learned trial

Court.

11. Now so far as the reliance placed upon the decision of this

Court in the case of Vinod Kumar (supra) and the reliance placed

upon Order 41 Rule 31 CPC is concerned, as we ourselves have

heard the appeal on merits and considering the fact that out of

three years R.I., the appellant has already undergone two years

and three months (approximately), the said decision shall not be

of any assistance to the accused.

12. In view of the above and for the reasons given above, the

present appeal deserves to be dismissed and is accordingly

dismissed.

…………………………………J.

[ASHOK BHUSHAN]

…………………………………J.

                                    [R. SUBHASH REDDY]


NEW DELHI;                          ………………………………..J.
OCTOBER 14, 2020                    [M.R. SHAH]




                                                               16



Source link