Full Text
HIGH COURT OF DELHI
Date of Decision: 21st May, 2024
STATE ..... Appellant
Through: Ms. Manjeet Arya, APP for the State
Through: Mr. D.K. Singh, Advocate
HON'BLE MR. JUSTICE MANOJ JAIN
JUDGMENT
1. State has taken exception to the impugned order dated 03.02.2020 whereby the respondent has been acquitted of charge under Section 6 of Protection of Children from Sexual Offences Act, 2012 (in short POCSO).
2. Briefly stated, the case of the prosecution is that the victim, who was allegedly 13 years of age at the relevant time and was studying in VI class, reported the incident to the police on 05.09.2015 informing them about the alleged act of respondent which he committed on 02.09.2015.
3. She revealed that on 02.09.2015, she was going to the house of her maternal grandmother (nani). It was noon time. On her way, she CRL.A. 617/2023 2 met accused whom she already knew. He took her to his house claiming that he would introduce her to his wife. However, once inside his house, he bolted the door from inside and started proclaiming that he was in love with her and started forcibly kissing her. He untied her pyjami and then removed his own clothes. He made her lie on floor and put his finger in her private part. He also tried to rape her. She pushed him and came out of his house. Since the accused had threatened her not to reveal the above incident to anyone, she did not confide in anyone. However, on 05.09.2015, she divulged everything to her mother who then brought her to police station.
4. In the aforesaid factual background, police recorded her report (Ex.PW1/A). FIR was registered and victim was taken for medical examination and her statement under Section 164 Cr.P.C was also recorded. Respondent was also arrested.
5. Chargesheet was filed.
6. Accused was charged under Section 6 of POCSO to which he pleaded not guilty and claimed trial.
7. Prosecution examined 11 witnesses in order to substantiate its case.
8. Accused claimed that he had been falsely implicated. He stated that the mother of the victim was harbouring a grudge against him as he had informed their family about one person with whom mother of victim had once eloped. When the mother of the victim returned, she CRL.A. 617/2023 3 threatened him that she would teach him a lesson and, therefore, he has been falsely implicated in the present case. He denied the incident as such and did not lead any evidence.
9. Learned Trial Court after appreciating the evidence, led during the trial, acquitted him while holding that the testimony of the victim was inconsistent, contradictory and improbable. It also noted that the delay in lodging the FIR was not explained and there was no corroboration of any kind whatsoever as the victim had even refused to undergo medical examination.
10. We have heard learned APP for the State and learned counsel for the respondent and carefully gone through the e-Trial Court Record.
11. Our attention has been drawn towards the testimony of witnesses and we have no hesitation in holding that we are unable to come to any different conclusion.
12. The delay in lodging the FIR is totally incomprehensible.
13. As per the contents of FIR, the victim had been allegedly threatened by the accused and, therefore, she did not report the matter to the police. However, when victim entered into the witness box, in her examination-in-chief, she nowhere deposed that the accused had ever threatened her. It was only when learned prosecutor, with the permission of the court, had put a specific question to her, she claimed about such threat in her cross-examination. If at all she had been CRL.A. 617/2023 4 threatened, it was expected that she would have herself deposed the same in her examination-in-chief.
14. As per the contents of FIR, she confided in her mother later on and her mother had brought her to the police station but in her examination-in-chief, she claimed that when she left the house of the accused, she talked about said incident to her one friend “M” (name withheld) same day and her such friend then told about said incident to her mother. Her such revelation is, obviously, not in consonance with the case of the prosecution as at no earlier point of time, she ever claimed that she had revealed about the incident to any friend of hers.
15. Be that as it may, in her examination-in-chief she nowhere claimed that she had been threatened and, therefore, there is no explanation, much less a plausible one, as to why FIR was not lodged promptly.
16. There is one more material contradiction and inconsistency in her statement.
17. In her statement made to the police, she never claimed that she was accompanied by anyone when the incident in question had taken place but when she entered into witness box during the trial, she created a flutter by divulging that her „younger sister‟ was also with her when she was going to her Nani’s house. She claimed that accused met them and took both of them to his house on the pretext that he would introduce the victim to his wife. She claimed that her sister was also with her throughout. She deposed that even when the CRL.A. 617/2023 5 accused had switched off the light of his room, her such younger sister remained present in the same room and accused had given some cold drink to her. Introduction of such new fact is indeed baffling and has made her version totally unconvincing. It also does not click to common sense that if the accused had such malafide intention, he would bring victim to his house when she was accompanied by her younger sister and would involve in such sexual assault in the presence of her younger sister, in the same room.
18. During cross-examination, she was asked whether she had revealed the fact of her sister accompanying her to the police, she claimed that she had told so to the police. However, when confronted with her statement Ex.PW1/A, she could not give any explanation as to why such fact was not recorded therein. She though claimed that the contents of her complaint were not read over to her but same is not digestible as her statement was recorded in the presence of her mother and her mother had also countersigned such statement.
19. In her further cross-examination, she shook the foundation of the case of the prosecution by claiming that she had accompanied the accused to his house voluntarily and also by claiming that she was 20 years of age. Her examination in court took place in the year 2017 which indicates that at the time of the incident, she was 18 years of age.
20. As regards age of the victim, learned Trial Court has analysed the entire evidence in the desired manner. It noted the inconsistencies CRL.A. 617/2023 6 in the deposition of the parents of the victim and came to the conclusion that there was not enough of the clarity with respect to the fact whether she was minor at the relevant time or not. Admittedly, the prosecution had placed on record the school record wherein her date of birth was found recorded as „18.06.2004‟. However, if such date of birth is to be believed then she was just 11 years old at the time of the registration of the FIR whereas when the case was registered, she had claimed her age to be 13 years.
21. Moreover, her said date of birth is found entered in the school record merely on the basis of the affidavit given by her mother. No birth certificate or hospital record, etc. was submitted to the school at the time of the admission. No such record was brought before the Court during the trial either. Moreover, it was not the first school which was attended by the victim as her father admitted that when they were in their native village, his daughter had studied there for about two years. No necessity was felt of collecting any record from such school of native village.
22. Be that as it may, the fact remains that during the trial, the victim herself claimed that she was 20 years of age which suggested that at the time of the registration of FIR, she was more than 18 years of age.
23. We have also analysed the evidence of the victim and her parents and also the reasoning given by the learned Trial Court in the impugned judgment and have no hesitation in holding that the learned CRL.A. 617/2023 7 Trial Court has evaluated the evidence in the most appropriate manner. Blame lies on the prosecution as it has failed to explain all the vital aspects of the case, i.e., the delay in registration of the FIR and the contradictions and inconsistencies appearing in the testimony of the victim and about not providing exact clarity with respect to her age.
24. Prosecution has also not bothered to explain as to why the victim had refused to undergo any medical examination.
25. We have seen the MLC Ex.PW4/A which shows that when victim was taken to AIIMS for medical examination, she refused to undergo any medical examination. It is also important to mention here that in the history which she had given to the concerned doctor, she had claimed that the accused had touched her private part and tried to insert his finger in the vagina but the facts which she narrated to the police were much more aggravating in nature and the prosecution has not bothered to explain about the inconsistency in her statements. These contradictions and inconsistencies do not project her to be a witness of „sterling quality‟ and, therefore, we do not find any reason to interfere with the findings of acquittal. There is, actually speaking, nothing on record which may compel us to take a different view.
26. Moreover, order of acquittal is not, generally, interfered with when view taken by the Trial Court is found to be reasonable and plausible one. Appellate Court, even otherwise, cannot reverse the CRL.A. 617/2023 8 order merely where a different view was possible. Here, we are unable to form any different view either.
27. In view of our foregoing discussion, we do not find any reason to interfere with the impugned order of acquittal passed by the learned Trial Court.
28. Accordingly, the present appeal stands dismissed.
SURESH KUMAR KAIT, J MANOJ JAIN, J MAY 21, 2024