State v. Phool Chand

14. In defence evidence, the Respondent/Accused examined Ram Nath Sahu (DW-1), who deposed that there was a dispute between the Respondent/Accused and PW-7 father of prosecutrix on account of rent and that, on the date of the incident also, a quarrel had taken place between them due to non-payment of rent. In cross-examination, DW-1 admitted that he had not seen the incident inside the house.

15. Upon an appreciation of the evidence on record, the ld. Trial Court held that the prosecution had failed to satisfactorily explain the circumstances in which the allegation of sexual assault was not disclosed at the earliest opportunity, despite the police having reached the spot on the night of 23rd February, 2014 pursuant to DD No.25PP. The ld. Trial Court noted that the first information received by the police was only in respect of a quarrel; that PW-12 SI Azad Singh had reached the spot and made inquiries; and that the father of the prosecutrix had, at that stage, stated that the quarrel pertained to some personal matter which he did not wish to disclose and that he intended to compromise the matter with the Respondent/Accused. In these circumstances, the ld. Trial Court was of the view that the possibility of a coloured version having subsequently come on record could not be ruled out.

16. The ld. Trial Court also considered the defence plea that the Respondent/Accused had been falsely implicated on account of a dispute relating to the tenanted jhuggi. It noticed that the prosecution case rested essentially on the testimony of the prosecutrix and her parents, without any independent corroboration. Having regard to the surrounding circumstances, including the admitted dispute regarding the jhuggi and the initial reporting of the matter as a quarrel, the ld. Trial Court held that the possibility of false implication could not be excluded. It accordingly extended the benefit of doubt to the Respondent/Accused and acquitted him of the offences under Section 3(d) read with Section 4 of the POCSO Act and, in the alternative, under Section 376(2)(i) IPC.

17. Aggrieved by the aforesaid judgment of acquittal, the State has preferred the present appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANT

18. Ld. APP by placing reliance on the testimony of the prosecutrix/PW-4 submits that the prosecutrix, who was a minor at the relevant time, consistently supported the prosecution case during investigation as well as before the ld. Trial Court. Ld. APP further submits that the prosecutrix clearly narrated the occurrence before the ld. Trial Court and specifically identified and stated that the Respondent/Accused entered the jhuggi while her parents were away and thereafter committed the alleged sexual assault. Reliance is also placed on her statement under Section 164 CrPC and the history recorded in her MLC to contend that her version remained substantially consistent.

19. Ld. APP further submits that the testimony of the prosecutrix stood corroborated by PW-7, her father, who reached the jhuggi during the incident and found the Respondent/Accused present with the prosecutrix under incriminating circumstances. It is submitted that the ld. Trial Court failed to accord due weightage to the testimony of PW-7.

20. Ld. APP submits that the ld. Trial Court erred in treating the delay in disclosure and registration of the FIR as fatal. According to him, the Respondent/Accused was a close family member, the incident was immediately followed by a quarrel, and the initial hesitation in disclosure stood sufficiently explained by the prosecutrix.

21. Ld. APP also assails the reliance placed by the ld. Trial Court on the defence plea of false implication arising out of the alleged dispute regarding the adjoining jhuggi. He submits that the suggestions put to the prosecution witnesses in this regard were denied and the defence failed to substantiate the said plea by cogent evidence.

22. Lastly, ld. APP submits that conviction in a case of sexual assault can be based on the sole testimony of the prosecutrix, if the same inspires confidence. Reliance is placed on State of Punjab v. Gurmit Singh & Ors., (1996) 2 SCC 384, to contend that the ld. Trial Court ought not to have discarded the testimony of the prosecutrix on speculative grounds.

SUBMISSIONS ON BEHALF OF THE RESPONDENT/ACCUSED

23. Ld. counsel appearing on behalf of the Respondent/Accused, supports the impugned judgment and submits that the ld. Trial Court has rightly appreciated the evidence on record and extended the benefit of doubt to the Respondent/Accused. He submits that the prosecution case suffers from material inconsistencies, unexplained delay in disclosure, and absence of independent corroboration; therefore, no interference with the judgment of acquittal is warranted.

24. Ld. counsel submits that though the alleged incident is stated to have occurred on 23rd February, 2014, no allegation of sexual assault was disclosed when the police reached the spot pursuant to the PCR call made by PW-7. He points out that the PCR call was admittedly in respect of a quarrel, and PW-12 SI Azad Singh deposed that the father of the prosecutrix had informed him that the matter was personal in nature and that they intended to compromise the same. It is, therefore, submitted that the allegation of sexual assault surfaced only on the following day, after deliberation and consultation, and the ld. Trial Court rightly held that the possibility of a coloured version could not be ruled out.

25. Ld. counsel further submits that there are material improvements in the statements of the prosecutrix recorded under Sections 161 and 164 CrPC and in her deposition before the Court. He submits that certain facts, namely that the Respondent/Accused was under the influence of liquor, that he had asked the prosecutrix to worship Saraswati Mata, and that he had promised to bring samosa and clothes for her, were not stated in the initial statement but were subsequently introduced. He submits that these improvements are material and affect the credibility of the prosecution version.

26. Ld. counsel also points to material inconsistencies between the testimonies of PW-4 and PW-7. He submits that while PW-7 stated that the wooden door of the jhuggi was bolted with an iron nail and that he opened it from outside, the prosecutrix stated in cross-examination that the door was already open. He further submits that PW-7 did not depose to having seen the specific act alleged by the prosecutrix and that his testimony, even if accepted, does not establish the charge framed against the Respondent/Accused.

27. Ld. counsel submits that the defence plea of false implication arising out of the dispute concerning the adjoining jhuggi finds support from the record. He places reliance on the cross-examination of PW-4, wherein she admitted that her father had repeatedly asked the son of the Respondent/Accused to vacate the jhuggi. Reliance is also placed on the testimony of DW-1 Ram Nath Sahu, who deposed that disputes had taken place between the Respondent/Accused and PW-7 regarding non-payment of rent. He submits that in these circumstances, the ld. Trial Court rightly held that the possibility of false implication could not be ruled out.

28. Lastly, ld. counsel submits that the mother of the prosecutrix refused internal gynaecological examination and no forensic or DNA evidence was collected during investigation. According to him, despite the seriousness of the allegation, the prosecution failed to produce any scientific or forensic corroboration in support of its case.

ANALYSIS AND FINDINGS

29. This Court has considered the submissions advanced by the ld. counsel for the parties and has perused the evidence on record.

30. Before delving into the examination of evidence on record, it would be apposite to briefly discuss the settled principles governing interference in an appeal against acquittal. In Mallappa v. State of Karnataka, (2024) 3 SCC 544, the Supreme Court reiterated that though the Appellate Court has the power to reappreciate the evidence in an appeal against acquittal, such power must be exercised with caution. Unless the view taken by the ld. trial court is found to be perverse, impossible, or contrary to the evidence on record, the order of acquittal ought not to be interfered with merely because another view is possible.

31. The present appeal is, therefore, required to be examined on the touchstone of the aforesaid principles. Suspicion, however grave, cannot be permitted to take the place of proof beyond reasonable doubt. Where the evidence on record admits of a possible view in favour of acquittal, such view cannot be disturbed merely because another view may also be possible.

32. The Respondent/Accused was charged under Section 3(d) of the POCSO Act, punishable under Section 4 thereof, and, in the alternative, under Section 376(2)(i) IPC. The relevant provisions are reproduced POCSO ACT, 2012 (Prior to POCSO (Amendment) Act, 2019)

IPC, 1860 (Prior to Criminal Law (Amendment) Act, 2018): “376. Punishment for rape. (2) Whoever,

(i) commits rape on a woman when she is under sixteen years of age; or …… shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.”

33. Having noticed the statutory provisions, this Court may now advert to the ingredients which the prosecution was required to establish. In order to sustain a charge under Section 3(d) of the POCSO Act, the prosecution was required to prove, firstly, that the prosecutrix was a child within the meaning of the Act; secondly, that the act alleged against the Respondent/Accused fell within the scope of Section 3(d); and thirdly, that the said act was committed by the Respondent/Accused.

34. As regards the alternative charge under Section 376(2)(i) IPC, as applicable on the date of the alleged incident, the prosecution was required to prove that the act amounted to rape within the meaning of Section 375 IPC; that the prosecutrix was below 16 years of age; and that the Respondent/Accused was the person who committed the said act.

35. Insofar as the age of the prosecutrix is concerned, the prosecution examined PW-11, who produced the relevant school record showing her date of birth as 17th April, 2001. The alleged incident took place on 23rd February,

2014. The mere absence of a municipal birth certificate would not, by itself, be fatal to the prosecution case, if the school record otherwise establishes the age of the prosecutrix. In the present case, the school record having shown that the prosecutrix was a minor on the date of the alleged incident, the prosecution has established that she was a “child” within the meaning of the POCSO Act and was below 16 years of age on the date of the alleged incident.

36. As regards the legal character of the allegation, if the version of PW-4 is accepted as proved in the manner alleged, the act complained of would fall within the statutory description of the charged offence under Section 3(d) of the POCSO Act and would also attract consideration under the alternative charge under Section 376(2)(i) IPC.

37. However, proof of age and the legal character of the allegation do not, ipso facto, establish the commission of the offence. The prosecution was still required to establish, beyond reasonable doubt, the occurrence of the alleged act, its nature, and the involvement of the Respondent/Accused therein. The presumption under Section 29 of the POCSO Act would arise only upon proof of such foundational facts and cannot be invoked to fill material gaps in the prosecution evidence.

38. Ld. APP placed reliance on State of Punjab v. Gurmit Singh & Ors., (1996) 2 SCC 384, to submit that the testimony of the prosecutrix, if reliable and inspires confidence, can form the sole basis of conviction, and that corroboration is not a rule of law. There can be no quarrel with the said proposition. The testimony of the prosecutrix is not to be viewed with suspicion, nor does this Court insist upon corroboration as a matter of routine.

39. However, Gurmit Singh (supra) does not dilute the fundamental requirement that such testimony must inspire confidence and must prove the charge beyond reasonable doubt. Therefore, the question is not whether conviction can ever be based on the sole testimony of the prosecutrix. Undoubtedly, it can. The real question is whether, in the present case, the testimony of the prosecutrix, when tested against the other evidence on record and the surrounding circumstances, is of such quality that it can form the basis for reversing an order of acquittal.

40. This court has perused the statements and testimonies of the witnesses on record. The prosecution case substantially rests on the evidence of PW-4, the prosecutrix, and PW-7, her father. PW-4 is the principal witness. Her testimony has to be examined with the sensitivity required in cases involving a child witness. At the same time, such sensitivity does not dispense with the judicial duty to examine whether the evidence, as a whole, satisfies the standard of proof required in criminal law.

41. The testimony of PW-4 is required to be examined first in the light of her earliest statement. A comparative reading of the earliest statement of PW-4, Ex.PW-4/A, her statement under Section 164 CrPC (Ex.PW-3/B) and her deposition before the Court shows that certain particulars were absent in Ex.PW-4/A, but were introduced at the stage of Section 164 CrPC (Ex.PW- 3/B) and were thereafter repeated in Court. These include the allegations that the Respondent/Accused was under the influence of liquor, that he had asked her to take a bath and worship Saraswati Mata, and that he had offered to bring eatables and new clothes. These additions, therefore, constitute improvements over her earliest version. The relevant portion of her statement and testimony is reproduced herein below: Statement in Ex.PW-4/A Statement u/s 164 CrPC (Ex.PW-3/B) Statement in Chief ……कल Dt 23/02/14 को म रात क े समय करीब 9:00 PM पर खाना बना रही थी। तो उसी समय मेरे ताऊ जी, िजनको म बड़े - पापा बोलती ँ। िजसका नाम फ ू लच है। जो हमारे पड़ोस म अपने बेटे और ब क े साथ रहता है। मेरे पास आया मेरे दो छोटे भाईयो िजनकी उ म "sunday" को घर पर रात की खाना बना रही थी, मेरे बड़े पापा फ ू ल च घर आए। उ ोंने दा पी। िफर उ ोंने बोला िक म सुबह पूजा िकया क ँ और वो मुझे समोसा और नए कपड़े ला कर दगे। िफर उ ोंने मेरे भाइयो को भगा िदया। और मेरे साथ छे ड़छाड़ करने लगे। िफर ……I call 'Bade Papa', entered in my house under the influence of liquor. Accused was residing with his son and daughter in law in the adjacent house of my house. The said house is also owned by my father. My parents were present in their shop being the peak hours of sale. The 10 साल और 7 साल है को बाहर भगा िदया। िफर उसने मेरा समीज हटा कर मेरी छाती पर हाथ फ े रने लग गया। और मुझे ध ा मारा म िगर गई और मेरे मुँह म कपडा डाल िदया और मेरे हाथ दबा िदये। मेरे पैरो पर बैठ गया और मेरी सलवार िनकाल कर मेरे पेशाब करने वाली जगह को चाटने लगा। तभी मेरे पापा आ गये। मेरे पापा ने उसको थ ड़ मारे वो भागने लग गया तभी और वहाँ आ गए िज ोने उसको काफी मारा। िफर वो वहाँ से भाग गया। उसक े बाद मेरे पापा ने 100 न० पर call कर दी। मुझे ध ा देकर िगरा िदया और मेरे पाँवों पर बैठ गए। मेरा पजामा खोल िदया उ ोंने मेरे मुँह मे कपड़े ठ ू स िदए। िफर वो मुझे चाटने लगे। िफर वो मेरे नीचे जहाँ से Bathroom करते ह, को मुहँ से चाटने लगे। िफर मेरे पापा आ गए उ ोंने बड़े पापा को एक चाटाँ लगाया, वो भाग गए। मेरे साथ यही सब आ था। मुझे यही बताना था। shop is near to my house. My younger brothers were playing in the room. Accused asked them to go out of the house and to play in the gali. Accused initially told me that I should take bath and worship Saraswati Mata and thereafter he suddenly caught hold of my hand and starting laying his hand on my breast. Thereafter he made me to lie on the bedand climbed on me, sat on my knees and started licking my private parts. Accused put cloth in my mouth so that I could not raise alarm.

42. The aforesaid additions relate to surrounding particulars and are not being treated as conclusive by themselves. The fact that they were repeated before the ld. Magistrate and thereafter in Court lends consistency to the later version. However, it does not erase their absence from the earliest statement. These additions are, therefore, relevant only in the cumulative assessment of the reliability of PW-4’s testimony. They do not, standing alone, demolish the prosecution case, however, they cannot be ignored while assessing whether the testimony is sufficiently reliable to justify appellate interference.

43. A more material inconsistency emerges when the testimony of PW-4 is read with that of PW-7 regarding the condition of the door. PW-4 stated that, at the time of the incident, the door of the room was open. PW-7, however, stated that the wooden door was bolted with a big iron nail and that he opened it by removing the nail. This contradiction is not a matter of detail. PW-7 claims to have reached the spot during the occurrence. The condition of the door and the manner in which he entered the room have a direct bearing on the reliability of his version.

44. This court finds that the testimony of PW-7, the father of the prosecutrix, also suffers from material omissions. In his earlier statement, Ex.PW-7/DA, though PW-7 had stated that he had returned to his jhuggi, he had not stated that he had returned home to get some gol gappas due to shortage of the same at his rehri, that the wooden door of the jhuggi was bolted with a big iron nail, that the said door could be opened from outside and inside, that he opened the door by removing the nail, that the electricity bulb was on, or that he saw the prosecutrix (PW-4) lying on the bed. These omissions relate to the very manner in which PW-7 claims to have reached the spot and witnessed the incident. If PW-7 had witnessed the occurrence in the manner deposed by him before the Court, these facts were material enough to have been stated at the earliest stage. Their absence from Ex.PW- 7/DA weakens his claim of being an eyewitness. The relevant portion of his statement and testimony is reproduced hereinbelow: Witness Statement in Ex.PW-7/DA Statement in Chief Examination PW-7 Father of the बयान िकया है िक म पता उपरो पर अपने प रवार क े साथ रहता ँ। और छोले गोल ग े की रेहड़ी म ली मािकट म ही लगाता ँ। व पुनम मेरी …On 23.02.2014 in the night same at my rehri. The बेटी है। कल म अपनी रेहड़ी से वापस अपनी झु ी म आया तो मने देखा िक फ ू लच मे बेटी क े पैरो पर बैठा आ है और उसकी छाती को दबा रहा है। मने फ ू लच को पकड़ा और उसको थ ड़ मारे तो वो वहाँ से भाग गया िफर म अपन झु ी म आया। जो आज हम सब आपक े पास आये और कल वाली सारी बाते आपको बताई। आपने मे बयान िलखा जो सुन िलया ठीक है। wooden door of my jhuggi was bolted with the help of big iron nail (keel) which could be opened from outside and inside the house. I opened the door by removing that nail and found that electricity bulb in the house was on. I saw that my daughter was lying on the bed and accused was sitting on her legs by folding his legs and he was pressing the breast of my daughter by putting his hand in her shirt. I caught hold of the accused from behind and slapped him. The accused fled away from there. I out of anger, also gave slaps to my daughter P and inquired from her as to what had happened there. The public persons from neighbourhood collected there and the police was called.

45. The account of PW-7 is also narrower than the version of PW-4. While PW-4 stated that her father saw the incident, PW-7 does not fully corroborate the complete act forming the subject matter of the charge. At the highest, the testimony of PW-7 corroborates the presence of the Respondent/Accused inside the jhuggi and lends support only to the extent that there was inappropriate physical contact with the prosecutrix. However, it does not furnish independent assurance to the complete version of PW-4. This is material because PW-7 is not a witness who reached after the incident. He claims to have entered during the occurrence itself. His evidence was, therefore, expected to lend clarity to the prosecution version. Instead, it leaves a material gap in the prosecution evidence.

46. This Court is conscious that PW-4 was a child and that her hesitation in making an immediate disclosure may be understandable. However, PW-7 was an adult and the father of the prosecutrix. He claims to have reached the spot during the occurrence. His failure to disclose the allegation to the police at the first available opportunity, and his statement that the matter was merely a family quarrel which was to be settled amongst themselves, is difficult to reconcile with his claim of having witnessed the alleged incident.

47. A perusal of the testimony of PW-2, the mother of the prosecutrix, shows that her evidence is not of the occurrence itself. She was admittedly not present in the house when the alleged incident took place. She had not seen the incident and was informed only about a quarrel by a neighbour. Her testimony proves, at best, the subsequent movement of the parties to the police station and hospital; it does not prove the occurrence itself. Thus, the testimony of PW-2 cannot be treated as corroboration of the act alleged against the Respondent/Accused.

48. The testimony of PW-12 SI Azad Singh is relevant, as it records the first police response on the night of the alleged incident. He deposed that DD No.25PP, relating to a quarrel, was marked to him for enquiry. On reaching the spot, he found public persons present and the Respondent/Accused produced before him in an injured condition. He took the Respondent/Accused to BJRM Hospital for medical examination and, thereafter, returned to the spot to ascertain the cause of the quarrel. According to PW-12, the father of the victim child then stated that the quarrel had arisen out of some personal matter which he did not wish to disclose, and that he wanted to settle the matter with the Respondent/Accused. The relevant portion of his testimony is reproduced Witness Statement In Chief Examination PW-12 SI Azad Singh PS Ashok Vihar. On 23.02.2014, I was posted at PR WPIA, PS Ashok Vihar. On that day, DD No.25PP regarding quarrel near dispensary was entrusted to me for enquiry. Said DD is now Ex.PW12/A. I reached at the spot at N-28, D-9, Machli Market, Wazirpur, Delhi, where I met Ct. Sachin, who had just reached before me there. Public persons were also present and had produced one person namely Phool Chand, i.e accused who is present in court today (correctly identified by the witness). Accused was given beatings by the public persons. I took the accused to BJRM Hospital and got him medically examined as the accused had sustained injuries on his head. I collected the MLC of accused which is already Ex.PW6/B and as per the MLC smell of alcohol was present in his breath. After his medical examination, we came back at the spot with accused. Thereafter, I made enquiries about the cause of quarrel. None came forward to tell me about anything. Father of the victim child told me that there was a quarrel on some personal matter which he did not want to disclose at that time and he wanted to compromise the matter with accused.

49. A reading of the above testimony makes clear the nature of the first disclosure made to the police. As per PW-12, when inquiries were made on the night of the incident itself, the matter was stated to be a quarrel on some personal issue which PW-7 did not wish to disclose and wanted to settle with the Respondent/Accused. The allegation which forms the basis of the FIR was not disclosed at that stage. It surfaced only on the following day, i.e., 24th February, 2014. Thus, the earliest version placed before the police was one of a personal quarrel and not of the offence subsequently alleged in the FIR.

50. Delay in lodging an FIR, particularly in cases involving sexual offences, cannot by itself be treated as fatal, if the delay is satisfactorily explained. However, the present case is not merely one of delayed reporting. The police had reached the spot on the very date of the incident, yet what was reported was only a quarrel. The explanation of fear may explain the initial hesitation of PW-4 to some extent. It does not explain the conduct of PW-7, who was an adult, claimed to have witnessed the incident, and yet described the matter to the police as a personal quarrel. The prosecution has not satisfactorily explained this conduct. This circumstance, therefore, bears directly upon the reliability of the prosecution version.

51. The testimony of PW-5 also accords with the earliest version that the incident was reported as a quarrel or family dispute. PW-5, the PCR official, deposed that on receipt of information regarding quarrel, he reached the spot and, upon inquiry, came to know that it was a family dispute. This evidence is consistent with the testimony of PW-12 and the initial DD entry, and not with the allegation subsequently made on the following day. The relevant portion of PW-5’s testimony is reproduced herein below: Witness Statement In Chief Examination PW-5 HC Ajeet On 23.02.2014, I was posted as Incharge PCR of Commandor II and my base point was at Computer Market, Wazirpur Industrial Area and my duty hours were from 8:00 PM to 8:00 AM. On that day at about 09:56 PM, an information from wireless was received by me regarding quarrel at B-65, near Dispensary, Krish Automobile, Wazirpur. I along with staff reached at the said place in the PCR Van and on inquiry at the spot, I came to know that it was a family dispute and no one became injured in the said quarrel. Local Police also reached there to whom I handed over the spot and, came back at our base point. I flashed this message on wireless to PCR Control Room.

52. The prosecution evidence is also required to be viewed in the light of the admitted presence of public persons at the spot. It is the prosecution case itself that neighbours and public persons had gathered at the spot and had beaten the Respondent/Accused. However, none of such persons have been examined. It is true that non-examination of independent witnesses is not fatal in every case. It is equally true that the evidence of related witnesses cannot be discarded merely on the ground of relationship. However, where the prosecution evidence requires cautious scrutiny and independent persons were admittedly present at the spot, the non-examination of even one such witness becomes a relevant circumstance.

53. In Periyasamy v. State, 2024 SCC OnLine SC 314, the Supreme Court held that non-examination of independent witnesses is not per se fatal, but where the witnesses examined are interested or their evidence requires careful scrutiny, examination of independent witnesses assumes importance. It was further held that such lapses, when considered cumulatively with other infirmities, may affect the sanctity of the prosecution case and make it fall short of the threshold of proof beyond reasonable doubt. The relevant portion of the judgment is reproduced hereinbelow: