Mohd Iqbal v. State NCT of Delhi

1. This is an application seeking suspension of sentence of the appellant on the ground that the appellant has undergone more than 40% of the sentence.

2. Since the Court was not inclined to entertain the application seeking suspension of sentence, Mr. Khazanchi, learned counsel for the appellant has argued the appeal itself.

3. This is an appeal seeking setting aside of the judgment of conviction dated 27.02.2023 and order of sentence dated 23.05.2023 passed by the learned ASJ (FTSC), (POCSO), South, Saket Court Complex, New Delhi in Sessions Case No. 261/18 arising out of FIR No. 91/2018 PS Hauz Khas, New Delhi wherein the learned Trial Court convicted the appellant for the offences under section 10 read with section 9(e) of POCSO Act and section 354A of IPC and sentenced to undergo 7 years of rigorous imprisonment.

4. Briefs facts are that on 22.03.2018 at about 3.30 P.M., the prosecutrix visited the Ward No. AB-8, Operation theater as the operation of her right ear was scheduled. The prosecutrix was given an injection and made to lie on the stretcher. At that time, the appellant, who was wearing a green gown, started talking to the prosecutrix and asked whether she had come to the OT before. The prosecutrix though him to be the Doctor. Thereupon, he started touching her inappropriately on the pretext of asking questions. As per the prosecutrix, the appellant asked her if she was wearing undergarments or not and also touched her lips. Thereafter, the prosecutrix told this fact to Dr. Anupam Kanodia. The prosecutrix also told the same to her mother and thereafter CCTV footage was looked into. The appellant was identified and was working on contract with M/s Becil in the Dept. of Biochemistry.

5. After completion of investigation, a charge sheet was filed against the appellant and the charges were framed under Section 10 read with Section 9(e) of POCSO Act and Section 354A of IPC.

6. The prosecution examined total 6 witnesses and none by the appellant.

7. Learned Trial Court, after analysing the evidence and documents on record, found the appellant guilty of offences under section 10 read with section 9(e) of POCSO Act and section 354A of IPC and sentenced him to undergo 7 years of rigorous imprisonment.

8. As per the Nominal Roll dated 21.02.2025, the appellant has undergone 2 years 6 months 19 days, has a remission of 5 months 7 days leaving an unexpired portion of 4 years 4 days.

9. Mr. Khazanchi, learned counsel for the appellant states that the prosecutrix had first made the complaint to Dr. Anupam Kanodia, however, he was not examined by the prosecution even though he (Dr. Anupam Kanodia) was named in the list of witnesses.

10. He further states that since Dr. Anupam Kanodia was not examined, the prosecution could not have identified the appellant as he was not known to the prosecutrix or her mother in any way. Further, the mother of the prosecutrix was also not examined. Hence, the benefit of doubt must accrue to the appellant.

11. I have heard learned counsel for the parties.

12. It is true that in the cases of sexual offences, the sole testimony of the prosecutrix can form the basis of the conviction of the accused. However, the Courts have to be extremely careful while examining the sole testimony of the prosecutrix as cautioned in the case of Sadashiv Ramrao Hadbe v. State of Maharashtra, (2006) 10 SCC 92.⁠ ⁠In this case, the Hon’ble Supreme Court has observed that the accused can be convicted solely on the testimony of the prosecutrix, if the same is inspiring confidence of the Court. Since both the prosecutrix as well as the accused have a right for a fair trial, thus, if the statement of the prosecutrix does not inspire confidence and creates a doubt, the court must look for corroborative evidence, such as, medical evidence or the surrounding circumstances. The relevant para is extracted below:-

13. In the present case, reliance cannot be placed on the argument of the learned counsel for the appellant as the appellant himself, in his statement recorded under section 313 of Cr.PC, has stated that the appellant was present. Relevant portion is extracted below:- “Q.[9] It is in evidence against you that CCTV footage contained in Pendrive Ex. MO-1, CD Ex. MO-2 alongwith certificate under Section 65B of Indian Evidence Act Ex. PW- 3/C and seizure memo of the CCTV footage Ex PW-3/D are in evidence against you. What do you have to say? And. I am visible in the CCTV footage but my acts have been wrongly interpreted by the victim. Q.10 It is in evidence against you that after the preliminary inquiry the matter was reported to the SHO PS Hauz Khas vide complaint Ex. PW-3/B. What do you have to say? Ans. I am not aware of it. xxxxxxxxxx Q.16 Why has the case registered against you? Ans. I have been falsely implicated. My acts have been incorrectly interpreted by the victim.”

14. On perusal, it clearly shows that the appellant himself has admitted that he was seen in the CCTV footage. The said aspect has been correctly appreciated by the learned Trial Court.