State v. Mohd Rashid

16. In a recent decision in Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli, (2024) 4 SCC 735, the Hon’ble Supreme Court observed as under:

26. At the cost of repetition, it is reiterated that the anomaly of having two reasonably possible views in a matter is to be resolved in favour of the accused. For, after acquittal, the presumption of innocence in favour of the accused gets reinforced. In Sanjeev v. State of H.P., (2022) 6 SCC 294, this Court summarized the position in this regard and observed as follows: "7. It is well settled that:

7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, Anwar Ali v. State of H.P., (2020) 10 SCC 166))

7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P., AIR 1955 SC 807)

7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala,

17. Having noted the aforesaid legal position, this Court now proceeds to examine the findings recorded by the learned Trial Court in the impugned judgment. The relevant part of the findings recorded by the learned Trial Court read thus:

23. The testimony of the victim is to be evaluated in light of the aforesaid judgments. First of all it needs to be noted that if testimony of the victim is viewed in juxtaposition with the statement of the victim under section 164 Cr.P.C. the necessary conclusion is that the victim is not a sterling witness.

24. It is seen that in the statement under section 164 Cr.P.C the victim has stated that her mother used to send her to the Mazjid for reading Quran and that her teacher whom they call as „Mosab‟ (accused) used to beat them in case anyone was not able to answer his question or was not able to remember what had been taught to the children. She further stated that one day she was very angry and she falsely told her mother that „Mosab‟ (accused) used to tease her and henceforth she will not go to the Masjid. She further stated that no one had teased her. Thus, the statement under section 164 Cr.P.C (Ex. PX[1]) of the victim clearly demolishes the entire case of the prosecution.

25. The victim has tried to explain in her examination in chief that several persons who were living in the vicinity starting visiting her house and putting pressure on her family members to withdraw the case and to make a false statement to save the Maulana (accused) and due to pressure of her mother put by the people, her mother asked her to make a statement favourable to the Maulana (accused) in the Court.

26. But it is clear that at the time of recording of the statement under section 164 Cr.P.C (Ex. PX[1]) the victim had stated to the Ld. Metropolitan Magistrate that she was making the statement voluntarily and without any coercion and she also admitted the said statement as correct. PW[1] has stated in her cross examination that her parents had accompanied her to the Court at the time of recording of her statement under Section 164 of the Cr.P.C. Admittedly at the time of recording of the statement under section 164 Cr.P.C. the accused was not present in the Court. At no point of time thereafter the victim or her parents had informed the Court or the police or any other authority that the victim had given a false statement under section 164 of the Cr.P.C as she and her family had been pressurized by the friends and relatives of the accused. Further neither PW[2] (mother of the victim) nor PW[3] (father of the victim) have deposed anything about the fact that the friends and relatives of the accused were visiting their house and putting pressure upon them to withdraw the case and therefore the victim gave a false statement under section 164 Cr.P.C. Accordingly, the explanation which has been tendered by the victim in her testimony is nothing but an improvement made as an afterthought and thus it cannot be believed that she had given the statement under section 164 Cr.P.C under pressure or coercion.

27. Further there are material variations and improvements in the testimony of the victim when her testimony is considered in juxtaposition with her statement under section 161 Cr.P.C. as well. The victim/PW[1] had not stated to the police that on the day of the incident Maulana had asked her brothers not to raise their heads and had asked the victim to sit besides him and read and learn. The victim/PW[1] had not stated to the police that on the day of the incident Maulana had sent half of the students out of the class. The victim/PW[1] had not stated to the police that on the day of the incident Maulana had sent two of her brothers out of the class and her younger brother was only left with her. The victim/PW[1] had not stated to the police that on the day of the incident when she completed the lesson for the day, she sought permission from the Maulana to go to her house and asked him, if she could go to her house and the Maulan affirmed and therafter when she was putting the Quran on his table, he caught hold of her hand. The victim/PW[1] had not stated to the police that after returning to her house from the Masjid she did not tell her mother about the incident at once as she was scared and was feeling ashamed and that that due to the incident, she could not sleep even in the night as she got scared. These variations/improvements also discredit the testimony of the victim/PW 1.

28. Further, it has come in the cross examination of PW[1] that a number of other children were also learning Quran in the said Masjid. PW[2] had also stated that she used to see the children coming out of the said Masjid. PW[3] has also stated that there may be 15/20 or more children who used to study in the Mazjid. PW[3] has also admitted certain photographs which are exhibited as Ex. PW3/DX-1 (colly.). The photographs are of the Masjid wherein children (both boys and girls) can be seen reading/ studying (presumably) at the said Mazjid. DW[1] has also deposed that 40 to 50 children including the children of Mohd. Rashid and committee members of Mosque read and learn Quran at the said Madarsa.

29. The IO has not examined any of the children or any other person who was present at the Masjid to verify the allegations of the victim and also to verify the fact that on the day of the alleged incident the accused had sent the brothers of the victim and other children outside the room. The other children and any other person who was present at the Masjid at that point of time could have thrown light on the incident, on the fact that other children, except the victim were sent outside by the accused and only the victim along with the accused remained inside the room or that they had seen the victim running out from the room/ Masjid in a perplexed condition. No such witness had been examined. Since best evidence has been kept out of the scrutiny of the Court, therefore adverse inference ought to be drawn against the prosecution on that count. Reference may be made to the judgment titled as In the judgment titled as “Habeeb Mohammad v. State of Hyderbad” reported as AIR 1954 SC 51. On the other hand DW[1] had deposed that he made enquiries from the children and they told him that no such incident had ever taken place in the mosque.

30. Another flaw in the prosecution case is the delay in registration of the FIR. In the judgment titled as Thulia Kali vs. State of T.N. reported as (1972) 3 SCC 393 the Hon’ble Supreme Court observed: “……….First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained….”(Para 12)

31. A perusal of the statement of the victim, on the basis of which the FIR was recorded, reveals that the victim had stated to the police officials that the incident took place two days prior to the complaint and she had disclosed to her mother the incident on the date of the lodging the complaint. However as per the examination in chief of the victim she had disclosed the alleged incident to her mother on the next day of the incident, but the complaint was not made on the said day. It is seen that the alleged incident took place on 02.05.2013 and the statement on the basis of which FIR was registered was made on 04.05.2013. The explanation for delay that the mother of the victim was not well on the day of the incident and therefore the victim had not informed her mother is not satisfactory as no medical record of the mother of the victim has been proved and even PW 2 (mother of the victim) has not deposed in this respect. The bald averment that the victim was scared or feeling ashamed cannot be said to be a satisfactory explanation for delay especially when no such explanation was given at the time of recording of the statement under section 164 Cr.P.C. Thus the delay in registration of the FIR, when viewed in the backdrop of the statement under section 164 Cr.P.C of the victim surely creates room for concoction and manipulation and therefore the delay is fatal to the prosecution case.

32. The accused has contended that the victim used to come at the Masjid wearing skirt and her finger nails were also not cut and sometimes she did not use to remember her lessons, therefore, he used to object to the same and used to scold her and used to direct her to go back and come with appropriate dress and cut her finger nails and also to remember her lessons and therefore he has been falsely implicated in the present case. The statement under section 164 Cr.P.C of the victim (PW[1]) corroborates the version of the accused. Accordingly, the defence of the accused seems to be probable.

33. The Hon'ble Supreme Court has time and again held that onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable· doubt with regard to the guilt of the accused, the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may be made to the judgments titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII (2007) SLT 454 (SC) in this respect. Reference may also be made to the judgment titled as Raj Kumar Singh @ Raju @ Batya Versus State of Rajasthan reported as (2013) 5 SCC 722 wherein it was held that the large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied and the court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused.

34. The aforesaid principle is the general principle of law. But section 29 of the POCSO Act raises a presumption that the offence, for which the accused has been prosecuted, has been committed by the accused. Now this provision (Section 29 POCSO Act) has been analyzed by the Hon'ble High Court of Calcutta in the judgment titled as Sahid Hossain Biswas v. State of West Bengal, 2017 SCC OnLine Cal 5023 and it was held: “…….. 23. A conjoint reading of the statutory provision in the light of the definitions, as aforesaid, would show that in a prosecution under the POCSO Act an accused is to prove 'the contrary', that is, he has to prove that he has not committed the offence and he is innocent. It is trite law that negative cannot be proved [see Sait Tarajee Khimchand v. Yelamarti Satyam, (1972) 4 SCC 562, Para-15]. In order to prove a contrary fact, the fact whose opposite is sought to be established must be proposed first. It is, therefore, an essential prerequisite that the foundational facts of the prosecution case must be established by leading evidence before the aforesaid statutory presumption is triggered in to shift the onus on the accused to prove the contrary.

24. Once the foundation of the prosecution case is laid by leading legally admissible evidence, it becomes incumbent on the accused to establish from the evidence on record that he has not committed the offence or to show from the circumstances of a particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour. The accused may achieve such an end by leading defence evidence or by discrediting prosecution witnesses through effective cross-examination or by exposing the patent absurdities or inherent infirmities in their version by an analysis of the special features of the case. However, the aforesaid statutory presumption cannot be read to mean that the prosecution version is to be treated as gospel truth in every case. The presumption does not take away the essential duty of the Court to analyse the evidence on record in the light of the special features of a particular case, eg. patent absurdities or inherent infirmities in the prosecution version or existence of entrenched enmity between the accused and the victim giving rise to an irresistible inference of falsehood in the prosecution case while determining whether the accused has discharged his onus and established his innocence in the given facts of a case. To hold otherwise, would compel the Court to mechanically accept the mere ipse dixit of the prosecution and give a stamp of judicial approval to every prosecution, howsoever, patently absurd or inherently improbable it may be......... "

35. Thus, first of all the prosecution must establish its case by cogent and viable evidence before the presumption can be drawn and even when this has been done the accused can rebut the presumption either by leading defence evidence or by discrediting prosecution witnesses through effective cross-examination or by exposing the patent absurdities or inherent infirmities in their version by an analysis of the special features of the case eg. patent absurdities or inherent infirmities in the prosecution version or existence of entrenched enmity between the accused and the victim giving rise to an irresistible inference of falsehood in the prosecution case. Moreover, the mere fact that such a presumption is available does not in any manner lower the standard of proof which must be applied in a criminal case and the prosecution must establish its case beyond reasonable doubt and the necessary concomitant of the same is that benefit of reasonable doubt can still be granted to the accused.

36. Adverting to the facts of the case, PW-1 (the victim cannot be described as a sterling witness; PW[2] (mother of the victim) and PW[3] (father of the victim) are not the eye witnesses to the incident. There is no other corroborative evidence on record. The material on record the material on record, especially the statement under section 164 Cr.P.C. (Ex. PX-1), when viewed in light of the defence of the accused, which is probable, and when examined on the touchstone of the principle of proof beyond reasonable doubt, the predominant conclusion is that the prosecution has failed to bring home the charges against the accused for the offences under section 8 of the Protection of Children from Sexual Offences Act as the accused is found entitled to the benefit of reasonable doubt in this case. Conclusion:

37. On the basis of the material available on record I am of the considered opinion that the prosecution has failed to establish its case beyond reasonable doubt. The accused is given benefit of doubt. The accused Mohd. Rashid is accordingly acquitted for the offences under section 8 of the Protection of Children from Sexual Offences Act.

18. I have also examined the testimony of victim/PW[1]. At this stage, it is relevant to note that the victim was examined as PW[1] firstly on 01.06.2016, however, on the said date, the respondent in person had cross examined the victim. However, subsequently on an application filed by the respondent, the victim was recalled and she was allowed to be cross-examined further by the learned counsel for the respondent, on 09.10.2017.

19. The relevant part of testimony of victim which was recorded on 09.10.2017, reads as under: “PW-01: Ms. 'M' (As mentioned at serial no. 01 in the list of witnesses attached to the police report), (recalled under section 311 of Cr.P.C. for cross-examination) On SA: CROSS-EXAMINATION (By Mr. Haneef Mohammad, Counsel for accused alongwith the accused in person.). Police had recorded my statement in the police station. My father had not given any written complaint to the police in respect to the incident in question. When my complaint was written, police had come to my house and then I accompanied the police to the police station alongwith my parents. My elder brother also accompanied us to the police station. In my presence, the police did not record his statement. In my presence, the police did not make inquiries from him. I had told the police that Maulana asked my brothers not to raise their heads and asked me to sit beside him and to read and learn (confronted with the statement Mark-A, wherein it is not so recorded). (The said statement Mark-A is now exhibited as Ex.PW1/A). My parents had accompanied me to this court complex when I was produced for recording of my statement under section 164 of CrPC. I had told the police that while I was reading and learning, the Maulana sent half of the students out (confronted with the statement Ex.PW1/A, wherein it is not so recorded). It is correct that the children from my locality were learning Quraan in the Masjid where I was also learning at the time of the incident. I cannot exactly tell the number of children learning Quraan with me, but it may be about 30 in number. I do not know if the children of the accused (the Maulana) were also learning Quraan with me. It is wrong to suggest that I am deliberately not disclosing this fact and the children of the accused were also learning Quraan with me. I have no knowledge about the children of the accused. It is correct that the accused was residing on the ground floor of the said Masjid alongwith his family. I do not know the name of the person, who used to pronounce Azaan (call for prayer). I do not know as to where the said person who used to pronounce Azaan, was residing. I had told the police that on the day of the incident, the Maulana (the accused) also sent two of my brothers outside and my one brother who is two years younger to me, was left with me recorded). After the incident in question, I have never gone to the said Masjid. My house was situated in front of the said Masjid at the time of the incident. I was residing on the second floor. The place where the Namaz was used to be offered was not visible from my house in any manner. The place where the accused used to teach Quraan was also not visible from my house. It is wrong to suggest that the entire premises from the inside of the Masjid was visible from my house. I had told the police that when I completed the lesson for the day, I sought permission from the Maulana to go to my house and asked him if I could go to recorded). I had told the police that the Maulana affirmed and thereafter when I was putting the Quraan on his table, he caught hold of my hand (confronted with the statement Ex.PW1/A, wherein it is not so recorded). I had told the police that I had put resistance but despite that he held my hand and touched it with his penis (confronted with the statement Ex.PW1/A, where the factum of resistance is not recorded). I had told the police that I resisted and somehow rescued myself and thereafter I rushed towards my house (confronted with the statement Ex.PW1/A, wherein it is not so recorded). I had not told to the police that on earlier occasions also, the accused did insolence with me, but since I used to leave the Masjid, he could not go ahead with his design. It is correct that on earlier occasions, the accused had not done similar act with me as stated by me in my examinationin-chief. I had told the police that I did not tell my mother about the incident at once as I was scared and was feeling ashamed recorded). I had also told the police that due to the incident I could not sleep even in the night as I got scared (confronted with the statement Ex.PW1/A, wherein it is not so recorded). I had told the police the facts as stated by me in my -examination-inchief recorded on 08.03.2016 from portion A to A, where it is not so recorded in Ex.PW1/A. I had told the police that my mother became very angry as she was having very good opinion about the Maulana and had faith in him (confronted with the statement Ex.PW1/A, wherein it is not so recorded). My elder brother is two years older to me. It is wrong to suggest that I have deposed falsely against the accused. I cannot tell whether some of the children learning Quraan in the said Masjid were also staying there or not. It is wrong to suggest that I am deliberately deposing falsely the said fact. My younger brothers had reached after two-three minutes of my reaching the house.”

20. A perusal of the testimony of the victim shows that on various material aspects she has made improvements over her statement recorded under section 161 CrPC including on the aspect of presence of other children in Madrasa at the relevant time. The learned Trial Court also held that adverse inference is ought to be drawn against the prosecution as other children and any other person who were present at the Masjid at that point of time and who could have thrown light on the incident and on the fact that other children except the victim were sent outside by the accused and only the victim along with the accused remained inside the room or that they had seen the victim running out from the room/ Masjid in a perplexed condition, were not examined.

21. The explanation for delay in registration of FIR that the mother of the victim was not well on day of incident has not been found satisfactory by the learned Trial Court as no medical record of the mother of the victim has been proved. Further, the learned Trial Court observed that even PW 2 (mother of the victim) has not deposed in this respect and further the bald averment that the victim was scared or feeling ashamed cannot be said to be a satisfactory explanation for delay especially when no such explanation was given at the time of recording of the statement under section 164 CrPC. Thus, the learned Trial Court held that the delay in registration of the FIR, when viewed in the backdrop of the statement under section 164 CrPC of the victim surely creates room for concoction and manipulation and therefore the delay is fatal to the prosecution case.

22. Further, the learned Trial Court observed that the accused has contended that the victim used to come at the Masjid wearing skirt and her finger nails were also not cut and sometimes she did not use to remember her lessons, therefore, he used to object to the same and used to scold her and used to direct her to go back and come with appropriate dress and cut her finger nails and also to remember her lessons and therefore he has been falsely implicated in the present case. The learned Trial Court also recorded that the statement under section 164 Cr.P.C of the victim (PW[1]) corroborates the version of the accused. It thus, found that the defence of the accused is probable.

23. It is in the above backdrop that the learned Trial Court recorded the finding of respondent’s acquittal. This Court finds that the view of the evidence taken by the learned Trial Court is a plausible view. The learned APP has not been able to point out any infirmity or perversity in the findings so recorded by the learned Trial Court.

24. In view of the above, this Court does not find any substance in the present petition.

25. Accordingly, the petition is dismissed.

VIKAS MAHAJAN, J DECEMBER 9, 2024