# Amrita Nand @ Tribhuvan Arjariya @ Baba v. State of U.P. & Anr. 1340 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 5 ILRA 1339
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-03
- **Case number:** Criminal Appeal No. 3169 of 2020
- **Bench:** Mohd. Aslam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amrita-nand-tribhuvan-arjariya-baba-v-state-of-u-p-anr-1340-indian-law-reports-50177
- **Pages:** 16

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 376 & 511-Protection
of children from Sexual Offences(POCSO)
Act,2012-Sections
7
,
9(m)
&
10-
challenged to - conviction- The appellant
aged 60 lured a four year old girl-the trial
court convicted the accused under section
10 of the POCSO Act-The delay in filing
the FIR was satisfactorily explained as the
father of the victim was away at the time
of incident-the child testimony was held
reliable , the absence of competency
certificate did not render her testimony
inadmissible if it demonstrates rationality
and understanding-Thus, the conviction
upheld.(Para 1 to 50)

B. A child witness if found competent to
depose to the facts and reliable one such
evidence could be the basis of conviction.
In other words even in the absence of
oath the evidence of a child witness can
be considered under Section 118 of the
Evidence Act provided that such witness is
able to understand the questions and able
to give rational answers thereof. The
evidence of a child witness and credibility
thereof
would
depend
upon
the
circumstances of each case. The only
precaution which the court should bear in
mind while assessing the evidence of a
child witness is that the witness must be a
reliable one and his/her demeanour must
be like any other competent witness and
there is no likelihood of being tutored.
(Para 30)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,952 of 53,357. This is a partial read: ask again with offset=39952 for what follows._

5 All. Amrita Nand @ Tribhuvan Arjariya @ Baba Vs. State of U.P. & Anr.
1339
examination she had stated that the house of
the accused-appellant is in front of their house.
She had also stated that while she was going to
the market she asked one Munni Devi to look
after her children. She stated that her mother-inlaw was living separately with them and when
they proceeded for their house, her mother-inlaw also came to the house. She further deposed
that she found blood in the underwear of the
victim and she handed over it to the police. She
also corroborated that signature in the affidavit
denying incident was obtained through deceitful
means by playing fraud.

35. From the perusal of medical report
(Ex.Ka-5) and the supplementary medical
report (Ex. Ka-4) prepared by Dr. M.K. Mathur
(PW-4), it is proved that the victim sustained
injuries as 'abraded mucosa of anal sphincter
and abrasion was present in the anterior part of
anal orifice and two slides were taken for
histopathological
examination'
where
no
spermatozoa was found in the anal smear.

36. The above evidence shows that the
statements
of
PW-1
and
PW-2
gets
corroboration from the medical report.

37. It is pertinent to note here that the
accused-appellant was also medically examined
wherein 'alcoholic smell was found present in
his breath' and he also sustained the injuries
which are already mentioned above in the body
of judgment. It is a matter of strange and sheer
lapse on the part of the official concerned that
the injuries of the accused-appellant have not
been proved.

38. The statement of Satyavati (PW-2) is
natural, without material contradiction and
inspires
confidence.
Her
statement
gets
corroboration from the statement of Rakesh
Kumar (PW-1) and medical reports. S.I. Dori
Lal Yadav (PW-3) proved the charge-sheet
(Ex.Ka-2), site plan (Ex. Ka-3) and also the
steps taken in the investigation whereas
Constable Manish Kumar (PW-5) has proved
the chik report (Ex. Ka-6) and G.D. (Ex. Ka-7)
which are formal in nature.

39. It is also pertinent to note here that the
accused-appellant had tried to manipulate and
temper with the evidence as the signatures of
PW-1 and PW-2 were fraudulently obtained in
the affidavit denying the incident.

40. From the evidence available on record, it is
proved beyond reasonable doubt that the accusedappellant Satta @ Satya Prakash had committed
grave offence punishable under Section 377 IPC and
Section 5/6 POCSO Act and the learned lower court
had rightly convicted and sentenced the accusedappellant as mentioned above.

41. In above circumstance, I do not find
any merit in the appeal.

42. The judgement and order dated
30.03.2018 passed by the court of Additional
Sessions Judge, Court No.08, Aligarh is hereby
affirmed.

43. The appeal is dismissed, accordingly.

44. Let the Lower Court Record be
returned to the court concerned forthwith.
----------
(2023) 5 ILRA 1339
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Criminal Appeal No. 3169 of 2020

Amrita Nand @ Tribhuvan Arjariya @ Baba
 ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties
1340 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Ram Krishna Chaurasia, Sri Brijesh
Sahai (Sr. Adv.),

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 376 & 511-Protection
of children from Sexual Offences(POCSO)
Act,2012-Sections
7
,
9(m)
&
10-
challenged to - conviction- The appellant
aged 60 lured a four year old girl-the trial
court convicted the accused under section
10 of the POCSO Act-The delay in filing
the FIR was satisfactorily explained as the
father of the victim was away at the time
of incident-the child testimony was held
reliable , the absence of competency
certificate did not render her testimony
inadmissible if it demonstrates rationality
and understanding-Thus, the conviction
upheld.(Para 1 to 50)

B. A child witness if found competent to
depose to the facts and reliable one such
evidence could be the basis of conviction.
In other words even in the absence of
oath the evidence of a child witness can
be considered under Section 118 of the
Evidence Act provided that such witness is
able to understand the questions and able
to give rational answers thereof. The
evidence of a child witness and credibility
thereof
would
depend
upon
the
circumstances of each case. The only
precaution which the court should bear in
mind while assessing the evidence of a
child witness is that the witness must be a
reliable one and his/her demeanour must
be like any other competent witness and
there is no likelihood of being tutored.
(Para 30)

The appeal is dismissed. (E-6)

List of Cases cited:

1. P. Ramesh Vs St. repd. by Insp. of Police
(2019) 20 SCC 598
2. Woolmington Vs Dir. of Public Pros. (1935
UKHL1), Rex Vs Abramovitch (1914 11 Cr. App.
R 45).

3. Babu Vs St. of Ker. (2010) 9 SCC 189

4. Dattu Ramrao Sakhare Vs St. of Mah. (1997)
5 SCC 341

(Delivered by Hon'ble Mohd. Aslam, J.)

1. Heard Sri Brijesh Sahai, Senior
Counsel assisted by Sri Ram Krishna
Chaurasia, learned counsel for the accusedappellant, learned A.G.A. for the State and
perused the record.

2. The instant appeal has been moved
by accused-appellant under Section 374(2)
of Cr.P.C. against the impugned judgment
of conviction and order of sentence dated
21.10.2020 passed by Additional Sessions
Judge-IV/Special Judge (POCSO Act),
Banda in Special Case No.68 of 2015
(State Vs. Amrita Nand @ Tribhuvan
Arjariya), arising out of Crime No.617 of
2015, under Sections 376, 511 I.P.C. &
Sections 8, 10 of POCSO Act, P.S. Kotwali
Nagar, Banda, by which the accusedappellant has been convicted under Section
10 of POCSO Act and was sentenced to
undergo rigorous imprisonment for 7 years
with a fine of Rs.10,000/- under Section 10
of POCSO Act, in default thereof, to
further undergo simple imprisonment for
two months.

3. The brief facts necessary for
disposal of this appeal is that informant
Avadhesh Kumar Soni son of Raja Ram
Soni resident of Chhoti Bazar, Thatharahi,
Police Station Kotwali Nagar, District
Banda has lodged a first information report
on 23.8.2015 at 20:50 p.m. at Police Station
Kotwali Nagar on the basis of written
complaint with the allegation that on
5 All. Amrita Nand @ Tribhuvan Arjariya @ Baba Vs. State of U.P. & Anr.
1341
22.8.2015 at 05:00 p.m., his daughter
victim X aged about 4 years was playing in
front of the house. The accused Amrita
Nand @ Tribhuvan Arjariya aged about 60
years, who is his neighbourer called Baba
by the people of the locality, called his
daughter victim X and gave her toffee and
took her inside his house and tried to
commit bad act with her. On being called
by the mother of the victim X in high pitch,
she was driven out by the accused from his
house and the victim X after coming to her
mother narrated the entire incident to her
mother. After that Smt. Khusbu wife of the
informant visited the accused and asked
him that what you have done uncle with her
daughter, thereafter, he locked his house
and went somewhere else and did not
return back to his house. The informant
requested that his first information report
be lodged and necessary action be taken
against the accused.

4. Head Constable Moharrir Ram
Prasad Pal has scribed the check of Crime
No.617 of 2015 against the accused Amrita
Nand @ Tribhuvan Arjariya for offence
punishable under Section 376, 511 I.P.C.
and Section 4 of POCSO Act. The
investigation was given to S.I. Ram Babu
Yadav. He went to Lucknow on account of
Government
work,
therefore,
the
investigation was conducted by S.S.I.
Pankaj Kumar Pandey on behalf of S.I.
Ram Babu Yadav and the case was
registered on 23.8.2015. He copied the
check report and GD entry no.64 at 20:50
p.m. in CD on 23.8.2015 and has recorded
the statement of check scriber and GD
writer Head Constable Moharrir Ram
Prasad Pal and also recorded the statement
of Ct. Shashank/Computer Operator, who
scribed the check at the direction of Head
Constable Moharrir Ram Prasad Pal. The
statement of victim X was recorded by S.O.
Reeta Singh under the videography. On the
same day, he recorded the statement of
informant Avadhesh Kumar Soni and has
taken the Chaddhi (underwear) of cream
colour in police custody and prepared
memo of the same in presence of the
witnesses Rajan Sen and Kalpana Singh.
He also copied the memo of taking
Chaddhi in police possession in CD on the
same day.

5. The victim X was medically
examined by Dr. Usha Singh (PW-5) at
District
Women
Hospital,
Banda
on
23.8.2015, where she has stated to the
doctor that on 22.8.2015 at 05:00 p.m. the
accused by giving allurement of toffee took
her inside his house and tried to commit
bad deed with her. No mark of any injury
was found on the body of the victim X and
her clothes were sealed and sent to the
police station. Dr. Usha Singh (PW-5) has
prepared medical report at the time of
medical examination. On 25.8.2015, the
medical report of the victim X was copied
and on return of S.I. Ram Babu Yadav
from Lucknow the investigation was
resumed on 27.8.2015. He recorded the
statement of Smt. Khusbu mother of the
victim X and inspected the place of
occurrence and prepared site plan Ex.Ka-5
on 27.8.2015 and recorded the statement of
witnesses Ajay Kumar Gupta and Atul Soni
on 12.9.2015. He visited the house of
accused where he found the lock on the
door of his house and came to know that
after
the
day of
occurrence
he
is
absconding. He received information from
the informer that accused is standing at the
shop of Bapu Misthan Bhandar station road
having white beard wearing red colour
clothes. On receiving the information of the
informer, he along with S.I. Rakesh Kumar
Saroj,
Ct.
Shiv
Kumar
Yadav
and
informant visited the place at Station Road
Tiraha where Bapu written illegible in CD
1342 INDIAN LAW REPORTS ALLAHABAD SERIES
and on seeing the police party, accused
tried to run here and there and was
apprehended by the police at 07:30 p.m.
and on inquiry he told his name as Amrita
Nand @ Tribhuvan Arjariya son of Laxmi
Narayan Arjariya resident of Mohalla
Thathrahi, Chhoti Bazar, Police Station
Kotwali Nagar, District Banda and after
informing him the ground of arrest, the
police party arrested him. The Investigating
Officer has recorded the statement of the
accused, wherein he has denied the
occurrence and stated that he will produce
the defence through counsel in the court.
Later on victim X was produced before the
court by L/Ct. Sandhya Sahu for recording
her statement under Section 164 Cr.P.C.
The statement of the victim X under
Section 164 Cr.P.C. was recorded by
Additional
Civil
Judge
(Junior
Division)/Judicial Magistrate, Banda on
7.10.2015, who has also attested the
photographs of the victim X on the
statement under Section 164 Cr.P.C. In
statements under Sections 161 & 164
Cr.P.C., the victim X has supported the
prosecution case. After arrest of the
accused, he was medically examined by
EMO,
District
Hospital,
Banda
on
1.10.2015 where no visible injury was
found on his body. After completing the
investigation, S.I. Ram Babu has submitted
charge-sheet under Sections 376, 511 I.P.C.
and Section 4 of POCSO Act against the
accused.

6. The cognizance was taken by
learned Additional Sessions Judge, Fast
Track Court, Banda on 21.12.2015 and the
copy of the police papers were given to the
accused. After hearing the learned counsel
for the accused, charges under Sections
376, 511 I.P.C. and Section 8 of the
POCSO Act were framed against the
accused by learned Additional Sessions
Judge, Fast Track Court, Banda on
18.2.2016 to which accused has not
pleaded guilty and claimed to be tried.
Later on the charge was amended by
learned Special Judge/Additional Sessions
Judge, Court No.4, Banda on 1.9.2016 and
the charge under Section 10 of the POCSO
Act was framed against the accused to
which he has also not pleaded guilty and
claimed to be tried.

7. In order to prove its case,
prosecution
has
examined
informant
Avadhesh Kumar Soni as PW-1 (father of
the victim X), who has also proved the
tahriri
report
Ex.Ka-1,
Smt.
Khusbu
(mother of the victim X) as PW-2, victim X
as PW-3, witness Ajay Kumar as PW-4,
who
has
turned
hostile
in
cross
examination, as witnesses of the fact.
Prosecution has also examined Dr. Usha
Singh as PW-5 to prove medical report and
Ct. Anup Kumar Sachan to prove the
charge-sheet Ex.Ka-4 and site plan Ex.Ka-5
in secondary evidence and has closed its
evidence.

8. The statement of the accused under
Section 313 Cr.P.C. was recorded to which
he has denied the prosecution case and has
stated that the victim X was deposing
falsely against him under the influence of
her mother. He has also stated that the case
was wrongly investigated and the wrong
charge-sheet was submitted against him.
He has further stated that no occurrence has
taken place and due to enmity he has been
falsely implicated.

9. Learned lower court after hearing
the argument of learned counsel for the
accused-appellant and learned Additional
Public Prosecutor has held that delay in
lodging the first information report has
been explained by prosecution from the
5 All. Amrita Nand @ Tribhuvan Arjariya @ Baba Vs. State of U.P. & Anr.
1343
depositions of Avadhesh Kumar Soni (PW1) and Smt. Khusbu (PW-2). It has further
held that the victim X is a child witness and
she was found to be competent witness and
her statement has not been shaken in cross
examination. Her statement was found to
be truthful and inspires confidence and also
held that in sexual offences the accused can
be convicted on the basis of statement of
the victim. It has also held that the
prosecution has proved its case beyond
reasonable doubt and has presumed that
accused has committed the offence and has
convicted and sentenced him to undergo
rigorous imprisonment for 7 years with a
fine of Rs.10,000/-, in default thereof, to
further undergo imprisonment for two
months by impugned judgment.

10. Learned counsel for the accusedappellant has contended that the witnesses
Avadhesh Kumar Soni and Smt. Khusbu
are not eye witnesses and the witness Ajay
Kumar (PW-4) also not eye witness, who in
his cross examination has stated that he has
not given any statement to the Investigating
Officer and has further stated that he could
not remember whether on the day of
occurrence he was at his house or not and
has admitted that he has not seen the
occurrence. He has further stated that he
has no knowledge whether Smt. Khusbu
told her husband regarding the occurrence.
He has further stated that he could not tell
how his name has been mentioned in the
charge-sheet as eye witness. Learned
counsel for the accused-appellant has
further contended that no injury was found
on the body or on the private part of the
victim X as per the statement of Dr. Usha
Singh (PW-5). He has further contended
that statement of the witness victim X was
not recorded in compliance of legal
provisions. He has further contended that
the lower court has not given any certificate
regarding competency of the witness victim
X, who is a child witness, therefore, her
statement cannot be relied on and in
support of his contention he placed reliance
on the law laid down by Hon'ble Supreme
Court in "P. Ramesh Vs. State represented
by Inspector of Police (2019) 20 SCC 598"
and has referred paras 13, 14 & 16 of the
aforesaid ruling. He has further contended
that the victim X has admitted in her cross
examination that she was tutored by her
parents and counsel to give statement
whatever they told her, therefore, she is
tutored witness and no reliance can be
placed on her testimony. He has further
contended that the first information report
was lodged after delay of more than 26
hours of the occurrence. He has further
contended that the occurrence has taken
place on 22.8.2015 at 17:00 p.m. and the
first information report was lodged on the
next day i.e. on 23.8.2015 at about 20:50
p.m. i.e. after a gap of 26 hours and the
delay in lodging the report has not been
explained by prosecution. He has further
contended that the ground put forward by
the prosecution for delay that on the day of
occurrence the informant went to Kanpur
and returned on the next day is after
thought. Alternatively he has further
contended that as per statement of victim X
recorded under Section 164 Cr.P.C. she has
stated that accused called her and told her
to put off her clothes and thereafter the
accused has also put off his clothes and told
her to show her private parts and then he
went to take rope, meanwhile she fled away
from there. Learned counsel for the accused
has further contended that the entire
statement shows that he has not touched the
private part of the victim X and it cannot be
said that he has committed sexual assault
on child below 12 years of age and this act
will not come within the purview of
Section 9(m) of the POCSO Act, maximum
this act goes up to the offence of sexual
1344 INDIAN LAW REPORTS ALLAHABAD SERIES
harassment, which is punishable under
Section 12 of the Act with imprisonment of
either description which may extend up to
three years and fine also.

11. Learned A.G.A. has supported the
prosecution case and has contended that
from the evidence of informant Avadhesh
Kumar Soni (PW-1), it is proved that he
was doing the work of goldsmith and went
to Kanpur for taking raw material of gold
and silver to which he after preparing the
ornaments returns the same to the jewellers.
He has further contended that the informant
Avadhesh Kumar Soni (PW-1) has stated
that on 22.8.2015 he went to Kanpur for
taking raw material of gold in the evening
and returned on the same day at 09:30 p.m.
and proceeded to the police station for
lodging the first information report along
with his wife Smt. Khusbu (PW-2) and
daughter
victim
X.
He
has
further
contended that the informant has given a
written complaint to the police and
thereafter returned from there and his
statement has been recorded by the police
on 23.8.2015. He has further contended that
there is no substance in the arguments of
the learned counsel for the accusedappellant
that
the
informant
was
unemployed while he was doing the job of
goldsmith and preparing the ornaments,
therefore, his going to Kanpur for taking
raw material for preparing ornaments is
natural and, therefore, the delay has been
explained by prosecution satisfactorily. He
has further contended that in this case the
informant Avadhesh Kumar Soni (PW-1),
Smt. Khusbu (PW-2) and witness Ajay
Kumar (PW-4) are not eye witnesses, the
only eye witness is victim X, who has
given detailed description at the time of
recording of her statement by S.O. Reeta
Singh and the victim X was produced
before the court of Magistrate for recording
her statement under Section 164 Cr.P.C.,
where she has narrated the entire story and
has also given the details of the occurrence
in her statement as PW-3. He has further
contended that the accused has only
touched her private part and got touched his
private part from her and thereafter went to
take rope, meanwhile, the victim X escaped
herself from there, therefore, non finding of
any injury at the time of medical
examination is of no consequence. He has
further contended that the age of the victim
X was shown in the first information report
as four years. He has further contended that
the victim X has stated to Dr. Usha Singh
at the time of medical examination that on
22.8.2015 at 05:00 p.m. accused called her
by alluring to give her toffee and tried to
commit bad deed with her and she has also
supported the prosecution case in her
statement given under Section 164 Cr.P.C.
which is Ex.Ka-2. He has further contended
that in above circumstances, it is proved
beyond reasonable doubt that the sexual
assault was committed by the accusedappellant to a child of about four years,
which according to Section 9(m) of
POCSO Act comes within the definition of
aggravated sexual assault.

12. I have gone through the file.
Before appreciating the evidence on record,
I find it necessary to reproduce Section 7 of
the POCSO Act, which defines sexual
assault, Section 7 of POCSO Act reads as
follows:-

"7. Sexual Assault.- Whoever,
with sexual intent touches the vagina,
penis, anus or breast of the child or makes
the child touch the vagina, penis, anus or
breast of such person or any other person,
or does any other act with sexual intent
which involves physical contact without
penetration is said to commit sexual
assault."
5 All. Amrita Nand @ Tribhuvan Arjariya @ Baba Vs. State of U.P. & Anr.
1345

13. Aggravated sexual assault is
defined in Section 9 of POCSO Act. The
relevant portion of Section 9 of POCSO
Act is reproduced below:-

"9. Aggravated Sexual Assault.-
(a) Whoever, being a police officer commits
sexual assault on a child-

......(m) whoever commits sexual
assault on a child below twelve years of
age, meaning thereby if any sexual assault
is defined in Section 6 of the POCSO Act,
whoever commits sexual assault from the
point of reading of the Section 7 of the
POCSO Act and Section 9(m) of the
POCSO Act, it is abundantly clear that
whoever commits sexual assault on a child
below twelve years is said to have
committed
sexual
assault
for
which
punishment is provided under Section 10 of
the POCSO Act."

14. Section 10 of the POCSO Act
reads as follows:-

"10. The punishment for the
aggravated
sexual
assault.-
Whoever,
commits aggravated sexual assault shall be
punished with imprisonment of either
description for a term which shall not be
less than five years but which may extend
to seven years, and shall also be liable to
fine."

15. Here it is also pertinent to mention
that special provision has been made for
recording of statement of a child. Section
25 of the POCSO Act provides for
recording of statement of a child by
Magistrate which reads as follows:-

"25. Recording of statement of a
child by Magistrate.- (1) If the statement of
the child is being recorded under section
164 of the Code of Criminal Procedure,
1973 (2 of 1974), (hereinafter referred to
as the Code), the Magistrate recording
such
statement
shall,
notwithstanding
anything contained therein, record the
statement as spoken by the child:

Provided that the provisions
contained in the first proviso to sub-section
(1) of section 164 of the Code shall, so far
it permits the presence of the advocate of
the accused shall not apply in this case.

(2) The Magistrate shall provide
to the child and his parents or his
representative, a copy of the document
specified under section 207 of the Code,
upon the final report being filed by the
police under section 173 of that Code."

16. Section 26 of POCSO Act also
provides additional provision regarding
recording of the statement of a child
witness, which are as follows:-

"(1) The Magistrate or the police
officer, as the case may be, shall record the
statement as spoken by the child in the
presence of the parents of the child or any
other person in whom the child has trust or
confidence.

(2)
Wherever
necessary,
the
Magistrate or the police officer, as the case
may be, may take the assistance of a
translator or an interpreter, having such
qualifications, experience and on payment
of such fees as may be prescribed, while
recording the

(3) The Magistrate or the police
officer, as the case may be, may, in the case
of a child having a mental or physical
disability, seek the assistance of a special
educator or any person familiar with the
1346 INDIAN LAW REPORTS ALLAHABAD SERIES
manner of communication of the child or
an expert in that field, having such
qualifications, experience and on payment
of such fees as may be prescribed, to
record the statement of the child.

(4)
Wherever
possible,
he
Magistrate or the police officer, as the case
may be, shall ensure that the statement of
the child is also recorded by audio-video
electronic means."

17. Section 36 of the POCSO Act
provides that child not to see accused at the
time of testifying, which are as follow:-

"(1) The Special Court shall
ensure that the child is not exposed in any
way to the accused at the time of recording
of the evidence, while at the same time
ensuring that the accused is in a position to
hear the statement of the child and
communicate with his advocate.

(2) For the purposes of subsection (1), the Special Court may record
the statement of a child through video
conferencing or by utilising single visibility
mirrors or curtains or any other device."

From above provision, it is clear
that some departure by law has been made
regarding the child witness in POCSO Act
and even her statement shall be recorded in
presence of her parents or any other person
in whom the child has trust or confidence.
As per section 26 additional safeguard has
been given.

18. Section 33(2) & (3) provides
special protection to the child which speaks
as follows:-

"(2).
The
Special
Public
Prosecutor, or as the case may be, the
counsel appearing for the accused shall,
while recording the examination-in-chief,
cross examination or re-examination of the
child, communicate the questions to be put
to the child to the Special Court which
shall in turn put those questions to the
child.

(3) The Special Court may, if it
considers
necessary,
permit
frequent
breaks for the child during the trial."

From the above provision, it is
clear that some departure has been made in
law regarding recording of the evidence of
a child witness so he or she can give fair
and formal evidence before the court.

19. The procedure for recording of the
deposition under 164 Cr.P.C. is provided in
the POCSO Act, therefore, that procedure
will mutatis mutandis apply at the time of
the recording of the evidence of the child
witness at the time of trial also.

20. At this juncture, I find it necessary
to discuss the law regarding proof of the
criminal case. Section 3 of the Indian
Evidence Act, 1872 defines ''Proved',
'Disproved' and ' Not Proved' as under:-

"Proved". -A fact is said to be
proved when, after considering the matters
before it, the Court either believes it to
exist, or considers its existence so probable
that a prudent man ought, under the
circumstances of particular case, to act
upon the supposition that it exists."

"Disproved".-A fact is said to be
disproved when, after considering the
matters before it, the Court either believes
that it does not exist, or considers its nonexistence so probable that a prudent man
ought, under the circumstances of the
5 All. Amrita Nand @ Tribhuvan Arjariya @ Baba Vs. State of U.P. & Anr.
1347
particular case, to act upon the supposition
that it does not exist."

"Not Proved".-A fact is said not
to be proved when it is neither proved nor
disproved."

21. The required standard of proof in
criminal case is beyond reasonable doubt
and in civil cases, it is preponderance of
probabilities. This distinction is basically
made through judicial pronouncement in
"Woolmington Vs. Director of Public
Prosecutor (1935 UKHL1), Rex Vs.
Abramovitch (1914 11 Cr. App. R 45)".

22. The case relates to the menace of
sexual crime against children, therefore,
motive plays no role in such crime. Oral
testimony of a witness can be appreciated
by considering his cross-examination, if he
remains uncontroverted in the crossexamination, by weighing his testimony
with the testimonies of the other witnesses,
whether his testimony gets corroboration
from the reliable testimonies of other
witnesses and by analysing and evaluating
whether his testimony is contradictory or
corroborated by the documentary evidence,
adduced in the case, then his testimony is
reliable.

23. In light of aforesaid, it is
necessary
to
examine
the
effect
of
presumption arising under Section 29
POCSO Act. Section 29 of the POCSO Act
reads as follows:-

"Section 29-Presumption as to
certain offences -Where a person is
prosecuted for committing or abetting or
attempting to commit any offence under
sections 3, 5, 7 and section 9 of the this Act,
the Special Court shall presume, that such
person has committed or abetted or
attempted to commit the offence, as the
case may be, unless the contrary is
proved."

24. Perusal of the above provision
does indicate that it is for the accused to
prove the contrary that he has not
committed or abetted the commission of an
offence under sections 3, 5, 7, and section 9
of the POCSO Act and, in case, he fails to
do so, presumption would operate against
him leading to his conviction under the
provision of the Act. It cannot be disputed
that no presumption is absolute and every
presumption is rebuttable. It cannot be said
that the presumption under Section 29 of the
POCSO Act is absolute. It would come into
operation only when prosecution is first able
to establish the fact and that would form the
foundation of the presumption under Section
29 of the POCSO Act to operate. Otherwise,
entire burden would be on the accused to
prove the contrary. Such position of law or
interpretation of presumption under section
29 of the POCSO Act cannot be accepted as
it would clearly violate the constitutional
mandate and no person can be deprived of
liberty, except in accordance with the
procedure established by law.

25. The manner in which such
presumption would operate against the
accused has been analysed and deliberated
upon by the courts, because such a
presumption is also provided for in various
statutes such as Prevention of Corruption
Act, 1988. In the case of "Babu Vs. State
of Kerala, (2010) 9 SCC 189" held in para
27 and para 28 as follows:-

(IV) Burden of Proof and
Doctrine of Innocence.

"27. Every accused is presumed
to be innocent unless the guilt is proved.
1348 INDIAN LAW REPORTS ALLAHABAD SERIES
The presumption of innocence is a human
right. However, subject to the statutory
exceptions, the said principle forms the
basis of the criminal jurisprudence. For
this purpose, the nature of the offence, its
seriousness and gravity thereof has to be
taken into consideration. The courts must
be on guard to see that merely an the
application of the presumption, the same
may not lead to any injustice or mistaken
conviction. Statutes like the Negotiable
Instrument Act, 1881; The Prevention of
Corruption Act, 1988, and the Terrorist
and Disruptive Activities (Prevention) Act,
1987, provide for presumption of guilt if
the
circumstances
provided
in
those
statutes are found to be fulfilled and shift
the burden of proof of innocence on the
accused. However such a presumption can
also
be
raised
only
when
certain
foundational facts are established by the
prosecution. There may be difficulty in
proving a negative fact.

28. However, in cases where the
statute does not provide for the burden of proof
on the accused, it always lies on the
prosecution.
It
is
only
in
exceptional
circumstances, such as of those is statutes as
referred to hereinabove, that the burden of
proof is on the accused. The statutory provision
even for a presumption of guilt of the accused
under a particular statute must meet the tests of
reasonableness and liberty enshrined in
Articles 14 and 21 of the Constitution."

26. Keeping in the aforesaid position
of law in mind, evidence of the prosecution
witnesses in the present case will have to
be examined to find out whether the
prosecution has established a presumption
under Section 29 of the POCSO Act.

27. Section 118 of the Evidence Act
provides as follows:-

"118. Who may testify.- All
persons shall be competent to testify unless
the Court considers that they are prevented
from understanding the questions put to
them, or from giving rational answers to
those questions, by tender years, extreme
old age, disease, whether of body or mind,
or any other cause of the same kind.

Explanation.- A lunatic is not
incompetent to testify, unless he
is
prevented
by
his
lunacy
from
understanding the questions put to him and
giving rational answers to them."

28. The principle and scope is
enshrined in Section 118 of the Evidence
Act regarding who may testify under this
section, all persons are competent to testify
unless there any information of the court.

(a) unable to question put to them
or (b) to give rational answer to those
questions owing- i) tender age, ii) extreme
old age, iii) disease of mind or body or, iv)
any other such cause even lunatic, if he is
capable of understanding the question put
to him and giving rational answer is the
competent witness.

29. So far the submission of Sri
Brijesh Sahai, learned Senior Counsel is
concerned that no certificate was appended
after
ascertaining
her
competency
regarding competence of the victim X as
competent witness, therefore, her evidence
cannot be read and he has placed reliance
on the law laid down by Hon'ble Supreme
Court in "P. Ramesh Vs. State represented
by Inspector of Police." The fact in that
case was that PW-3 & PW-4 were the child
witnesses in that case and it was observed
that they were unable to understand before
whom they were standing and even they
did not know the judge or lawyer and the
statement was not recorded and it was held
5 All. Amrita Nand @ Tribhuvan Arjariya @ Baba Vs. State of U.P. & Anr.
1349
that they were not competent witnesses,
which was challenged before the High
Court. Learned lower court came to the
conclusion
that
there
was
sufficient
evidence on record to sustain the charge
under Section 302 I.P.C. as well as Section
498 I.P.C. and that the prosecution has
brought home guilty of the accused beyond
reasonable doubt. Aggrieved by the said
judgment of conviction, the accused
preferred an appeal before the High Court.
The High Court has set aside the judgment
of the trial court and remanded the case to
the trial court with direction to examine the
child witnesses PW-3 and PW-4 after
objectively ascertaining their capacity to
depose.
Thereafter,
the
same
was
challenged before the Hon'ble Supreme
Court and the Hon'ble Supreme Court had
rejected it.

30. So far observation of para 13 of
the aforesaid judgment is concerned, it is
mentioned in para 13 that if the court is
satisfied that the child witness below the
age of twelve years is a competent witness,
such a witness can be examined without
oath or affirmation and the rule was stated
in "Dattu Ramrao Sakhare Vs. State of
Maharashtra (1997) 5 SCC 341", wherein
the Hon'ble Supreme Court, in relation to
child witnesses, held as under:- (SCC p.
343, para 5)

"5....A child witness if found
competent to depose to the facts and
reliable one such evidence could be the
basis of conviction. In other words even in
the absence of oath the evidence of a child
witness can be considered under Section
118 of the Evidence Act provided that such
witness is able to understand the questions
and able to give rational answers thereof.
The evidence of a child witness and
credibility thereof would depend upon the
circumstances of each case. The only
precaution which the court should bear in
mind while assessing the evidence of a
child witness is that the witness must be a
reliable one and his/her demeanour must
be like any other competent witness and
there is no likelihood of being tutored."

31. He has also contended that it is
mandatory for the court to record the
certificate regarding competency of the
witness and has relied on para 14 & 16 of
the aforesaid judgment, which are as
follows:-

"14. A child has to be a
competent witness first, only then is her/his
statement admissible. The rule was laid
down in a decision of the US Supreme
Court in Wheeler v United States 7,
wherein it was held thus:

"... While no one would think of
calling as a witness an infant only two or
three years old, there is no precise age
which
determines
the
question
of
competency. This depends on the capacity
and
intelligence
of
the
child,
his
appreciation of the difference between
truth and falsehood, as well as of his duty
to tell the former. The decision of this
question rests primarily with the trial
judge, who sees the proposed witness,
notices
his
manner,
his
apparent
possession or lack of intelligence, and
may resort to any examination which-
will tend to disclose his capacity and
intelligence as well as his understanding
of the obligations of an oath. As many of
these matters cannot be photographed
into the record the decision of the trial
judge will not be disturbed on review
unless from that which is preserved it is
clear that it was erroneous..."
 (emphasis supplied)
1350 INDIAN LAW REPORTS ALLAHABAD SERIES

"16. In order to determine the
competency of a child witness, the judge
has to form her or his opinion. The judge is
at the liberty to test the capacity of a child
witness and no precise rule can be laid
down regarding the degree of intelligence
and knowledge which will render the child
a competent witness. The competency of a
child witness can be ascertained by
questioning her/him to find out the
capability to understand the occurrence
witnessed and to speak the truth before the
court. In criminal proceedings, a person of
any age is competent to give evidence if
she/he is able to (i) understand questions
put as a witness; and (ii) give such answers
to the questions that can be understood. A
child of tender age can be allowed to testify
if she/he has the intellectual capacity to
understand questions and give rational
answers thereto. 9 A child becomes
incompetent only in case the court
considers that the child was unable to
understand the 8 (2004) 1 SCC 64.
Subsequently, relied upon in Nivrutti
Pandurang Kokate v State of Maharashtra
(2008) 12 SCC 565 Dalsukhbhai Nayak v
State of Gujarat (2004) 1 SCC 64 questions
and answer them in a coherent and
comprehensible manner. 10 If the child
understands the questions put to her/him
and gives rational answers to those
questions, it can be taken that she/he is a
competent witness to be examined."

32. From para 16 of the judgment it is
clear that judge is at liberty to test the
capacity of a child witness and no precise
rule can be laid down regarding the degree
of intelligence and knowledge which will
render the child a competent witness and
the competency of a child witness can be
ascertained by questioning her or him to
find out the capability to understand the
occurrence witnessed and to speak the truth
before the court. In criminal proceedings, a
person of any age is competent to give
evidence if she/he is able to (i) understand
questions put as a witness; and (ii) give
such answers to the questions that can be
understood. A child of tender age can be
allowed to testify if he or she had the
intellectual
capacity
to
understand
questions and give rational answers thereto.
A child becomes incompetent only in case
the court considers that the child was
unable to understand the questions and
answer
them
in
a
coherent
and
comprehensible manner. If the child
understands the questions put to her or him
and gives rational answers to those
questions, it can be taken that she or he is a
competent witness to be examined.

33. Para 15 of the aforesaid judgment
is as follows:-

"7. ... The decision on the
question whether the child witness has
sufficient intelligence primarily rests with
the trial Judge who notices his manners,
his
apparent
possession
or
lack
of
intelligence, and the said Judge may resort
to any examination which will tend to
disclose his capacity and intelligence as
well as his understanding of the obligation
of an oath. The decision of the trial court
may, however, be disturbed by the higher
court if from what is preserved in the
records, it is clear that his conclusion was
erroneous.