The Bombay High Court has clarified that the testimony of a hostile witness is not to be rejected in its entirety, and the court can rely on the part of the testimony that is found to be credible and is corroborated by other reliable evidence. In this case, the victim’s statement in her cross-examination by the APP was accepted as it was strongly corroborated by the scientific evidence, i.e., Chemical Analysis.
The Court pointed out that where the prosecution presents strong incriminating evidence against an accused, such as chemical residues from the crime found on his clothes, and the accused’s presence at the scene is established, the onus shifts to the accused under Section 313 of the CrPC to provide an explanation. An absence of explanation can be considered a strong circumstance that supports the finding of guilt.
Moving ahead, the High Court held that for an offence to be punishable under the Protection of Children from Sexual Offence Act, 2012 (POCSO Act), the act must be committed with sexual intent and fall within the definition of ‘sexual assault’. Hence, an act of violence against a minor, such as an acid attack, without any accompanying sexual intent, does not attract the provisions of the POCSO Act.
A Single Judge Bench of Justice R.M. Joshi acknowledged that the primary prosecution witnesses, including the victim, her father, and other independent witnesses, did not support the prosecution’s case during their examination-in-chief and were declared hostile. However, the Bench relied on the established legal principle that the evidence of a hostile witness need not be entirely discarded and can be considered to the extent it is reliable and relevant.
Despite being declared hostile, the Bench found that the victim was cross-examined by the prosecution, where she gave a detailed account of the incident, stating that the accused uttered threats and then threw a liquid on her face, causing it to burn. The Bench noted that the victim remained firm on this version even during the cross-examination by the defence counsel.
The Bench found the Chemical Analysis (CA) report to be crucial corroborative evidence. The report confirmed that the substance thrown on the victim was acid, and more importantly, that nitrate ions were detected on the clothes of the accused seized during the investigation. This evidence directly linked the accused to the act of throwing the acid.
The Bench observed that once the prosecution established the presence of nitrate ions on the accused’s clothes and the accused admitted his presence at the scene, the burden shifted to him to explain this incriminating circumstance under Section 313 of the CrPC. The accused failed to provide any explanation for these residues, which was held against him.
As far as the argument of the appellant that the prosecution failed to prove how the accused procured the acid, the Bench dismissed the same, stating that given the overwhelming nature of the other evidence which unerringly pointed to the accused’s guilt, the failure to prove procurement did not benefit the defence.
Lastly, the Bench noted that Section 326A of the IPC prescribes a minimum sentence of 10 years. As the Trial Court had awarded the minimum sentence, the High Court found no scope to reduce it further.
Briefly, the appeal was filed by the accused against the judgment of the Trial Court which convicted him for offences under Sections 326-A, 354-D, and 506 of the (IPC) and Sections 10 and 12 of the Protection of Children from Sexual Offence Act, 2012 (POCSO Act). The accused was sentenced to a maximum of 10 years of imprisonment.
The prosecution’s case is that the victim and the accused were friends before the victim’s marriage. After her marriage, the accused began harassing her. When the victim went to meet the accused to ask him to stop following her, the accused threatened her and threw a liquid substance on her face, which resulted in burning injuries. Following an investigation, which included recording the victim’s statement, drawing a spot panchanama, and sending seized items for chemical analysis, a chargesheet was filed.
Appearances:
Advocates Anjali Patil and Tohid Shaikh, for the Appellant
APP A.S. Gawai, along with Advocates Rahul Gupta and Saumya Goyal, for the Respondent
