Full Text
HIGH COURT OF DELHI
JUDGMENT
THE STATE (NCT OF DELHI) .....Petitioner
For the Petitioner : Mr. Ritesh Kumar Bahri, APP for the State along with Mr. Lalit Luthra, Adv.
WSI Sushma Minj, Supreme Court Security.
SI Kiran, PS Moti Nagar.
For the Respondents : Mr. Varun Agarwal & Mr. Sachin, Advs. for R2 & R-3.
1. The present petition has been filed under Section 378 of the Code of Criminal Procedure, 1973 (‘CrPC’) seeking leave to challenge the judgment dated 09.12.2021 (hereafter ‘the impugned judgment’), passed by the learned Additional Sessions Judge (‘ASJ’), in Sessions Case No. 55890/2016 arising out of FIR No. 210/2015, registered at Police Station Moti Nagar.
2. Vide the impugned judgment, the learned Trial Court acquitted Respondent No. 1/Pankaj @Chottu for the offences under Sections 376/363/366/506 of the Indian Penal Code, 1860 (‘IPC’) and Section 6 of the Prevention of Children from Sexual Offences Act, 2012 (‘POCSO’) and Respondent No. 2/Pankaj Kumar Rai and Respondent No. 3/Smt. Guddi Devi for the offences under Section 17 read with Section 6 of POCSO, in alternate, under Section 109 read with Section 376 of the IPC and Section 342 read with Section 34 of the IPC.
3. Briefly stated, on 12.03.2015, the mother of the prosecutrix/victim lodged a missing report at Police Station Moti Nagar, on the basis of which the police registered FIR No. 210/2015 for the offence under Section 363 of the IPC. It is alleged that on 16.03.2015, the prosecutrix was found at Daya Basti Railway Station along with Respondent No. 1, and was produced by her mother before the concerned Police Station.
4. The medical examination of the prosecutrix, vide MLC NO. 2160/2015, was conducted. The statement of the prosecutrix under Section 164 of the CrPC was recorded, wherein, she alleged that on 12.03.2015, the Respondent No. 1 threatened her and forced her to accompany him to his sister/Respondent No. 3’s residence. When they reached the said residence, the Respondent No. 1 introduced the prosecutrix as his wife to the Respondent No. 3. Though the prosecutrix informed the Respondent No. 3 that the Respondent No. 1 had forcefully picked her from the school, however, they both did not allow her to leave and then Respondent No. 1 forcefully established sexual relations with the prosecutrix, twice. Subsequently, on 14.03.2015, the Respondent No. 2/husband of Respondent No. 3, asked the prosecutirx and the Respondent No. 1 to leave his residence. Hence, during the night, the Respondent No. 1 took the prosecutrix to Dayabasti Station and then took her to a friend’s residence. Allegedly, the Respondent No. 1 suggested that they should reside here, while he makes arrangements for an alternate rented accommodation. She further stated that when the Respondent No. 1 left to search for an alternate accommodation, he was spotted by some known person, who informed the mother of the prosecutrix and the Respondent No. 1 was apprehended by the Police.
5. Subsequently, the police arrested the Respondents in the present case and after completion of investigation, chargesheet was filed under Sections 376/363/342/506 of the IPC and Section 6 of POCSO against Respondent No. 1 and under Section 368 of the IPC and Section 17 of POCSO against Respondent Nos. 2 and 3.
6. The learned Trial Court vide order dated 29.02.2016 framed charges for the offences under Sections 376/363/366/506 of the IPC and Section 6 of POCSO against Respondent No. 1. The learned Trial Court further framed charges for the offences under Section 109 read with Section 376 of the IPC, Section 342 read with Section 34 of the IPC and Section 17 read with Section of POCSO against Respondent Nos. 2 and 3. The Respondents pleaded not guilty and claimed trial.
7. The prosecution during the course of trial examined 11 witnesses.
8. The respondents in their statement under Section 313 of the CrPC denied the entire evidence against them and stated that they are innocent and have been falsely implicated in the present case.
9. After duly considering the totality of circumstances and the inconsistencies in the evidence of the prosecution witnesses, the learned Trial Court held that the prosecution has failed to prove the guilt of the accused persons beyond a shadow of reasonable doubt. Thus, the Respondents were acquitted vide the impugned judgment.
10. The learned Additional Public Prosecutor for the State submitted that the learned Trial Court failed to appreciate the fact that the testimony of the prosecutrix remained consistent during the course of trial and corroborated with all the material facts of the case.
11. He submitted that the learned Trial Court erred by observing that the prosecution failed to prove that the prosecutrix was a minor at the time of the alleged offence. He submitted that the birth certificate of the prosecutrix records the date of birth of the prosecutrix as 02.08.2001 which clearly shows that the prosecutrix was a minor at the time of the alleged offence.
12. He submitted that the learned Trial Court failed to appreciate the fact that medical evidence brought on record during the course of trial records that the hymen of the victim was torn, which also supported the case of the prosecution.
13. Per contra, the learned counsel for Respondent Nos. 2 and 3 vehemently opposed the arguments as raised by the learned Additional Public Prosecutor for the State and consequently prayed that the present petition be dismissed.
14. I have heard the learned counsel for the parties and perused the record. Analysis
15. It is trite law that this Court must exercise caution and should only interfere in an appeal against acquittal where there are substantial and compelling reasons to do so. At the stage of grant of leave to appeal, the High Court has to see whether a prima facie case is made out in favour of the appellant or if such arguable points have been raised which would merit interference. The Hon’ble Apex Court in the case of Maharashtra v. Sujay Mangesh Poyarekar: (2008) 9 SCC 475 held as under:
cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and, hence, no leave should be granted.” (emphasis supplied)
16. It is case of the prosecution that Respondent No. 1 allegedly kidnapped the prosecutrix and thereafter repeatedly established forceful sexual relations with her and Respondent Nos. 2 and 3 allegedly abetted the commission of the said offence.
17. The learned Trial Court vide the impugned judgment acquitted the accused/respondent for the said offences on the ground that there were material inconsistencies in the depositions made by the prosecutrix, her father and her mother.
18. The learned Trial Court noted that the prosecution failed to prove that the prosecutrix was a minor at the time of the alleged offence.
19. During the course of trial, in order to prove the age of the prosecutrix, the prosecution had produced the school documents of the prosecutrix which include the admission-withdrawal register, admission form, copy of the affidavit furnished by the mother of the prosecutrix at the time of her admission and age certificate issued by the school at the time of admission.
20. Ms. Sabiha Rasheed, who was the then principal of the school where the prosecutrix was studying, was examined as PW-7. She during her examination-in-chief proved the aforesaid documents produced by the prosecution. She stated that the date of birth recorded in the school documents was based on the affidavit furnished by the mother of the prosecutrix at the time of her admission. She further stated that no birth certificate issued by Municipal Corporation of Delhi was furnished by the mother of the prosecutrix at the time of admission of the prosecutrix.
21. It is pertinent to note that, the mother of the prosecutrix was examined as PW-1 during the course of trial. During examination, the affidavit furnished by her during the admission of the prosecutrix was put to her and the same was not identified by her. She further stated that during the course of investigation the birth certificate of the prosecutrix issued by Municipal Corporation of Delhi was handed over however, the same was not placed on record before the learned Trial Court.
22. Further, the father of the prosecutrix was examined as PW-4, who stated that he is not aware of the exact date of birth of the prosecutrix. He stated that the prosecutrix was born at home and they do not possess any birth certificate of the prosecutrix issued by the Municipal Corporation of Delhi. He further stated that the age of the prosecutrix at the time of her admission was given by mere estimation.
23. From a perusal of the aforesaid documents, it can be seen that the date of birth of the prosecutrix mentioned in the admissionwithdrwal register as well as the admission certificate is 02.08.2001 whereas the affidavit furnished by the mother of the prosecutrix shows the date of birth as 02.08.2000. No evidence was led by the prosecution in regard to the discrepancy in the date of birth in the aforesaid documents, which castes a doubt over the case of the prosecution.
24. However, in the opinion of this Court, the learned Trial Court ought to have made an endeavour to conduct an ossification test of the prosecutrix in order ascertain her age, if the documentary evidence produced was not sufficient to ascertain the same since the school certificate and the affidavit of the mother of the prosecutrix though show different years of birth but as per both the prosecutrix was a minor at the time of the alleged incident and hence no benefit should not have been given to the accused on that count.
25. Be that as it may, the case of the prosecution is marred with manifest discrepancies and inconsistencies and the benefit of the same cannot be denied to the respondents.
26. Firstly, discrepancy on the factum of how and by whom the prosecutrix was found. It is pertinent to note that in the present case PW1/mother of the prosecutrix, in her evidence, deposed that 4 days after the missing complaint, the prosecutrix was recovered from the Daya Basti Railway Station. She deposed that she got an information about the presence of her daughter at Daya Basti Railway Station from her landlady and that thereafter she along with her husband/PW[4] went to Daya Basti Railway Station where the prosecutrix was found along with Respondent No. 1. The prosecutrix herself in her evidence stated that both her father/PW[4] as well as her mother/PW[1] had come to Daya Basti Railway Station. Contrarily, PW4/father of the prosecutrix, in his evidence, deposed that on the said date, only PW[1] had gone to Daya Basti Railway Station and that thereafter it was PW[1] who had taken their daughter to the Police Station. On being specifically cross examined by the learned Additional Public Prosecutor for the State, PW[4] stated that he never went to Daya Basti Railway Station and did not give any statement to the Police that he found his daughter at the Daya Basti Railway Station in the company of Respondent No. 1.
27. Secondly, contradictions in relation to the factum of the number of times the alleged sexual assault was committed. It is pertinent to note that in her statement under Section 164 of the Code of Criminal Procedure, 1973, the prosecutrix stated that Respondent No. 1 had committed repeated penetrative sexual assault on her, however, during her testimony in Court, the prosecutrix categorically stated that Respondent No. 1 had committed penetrative sexual assault on her on only one occasion. Infact, on a specific question being put to the prosecutrix in her examination in chief, the prosecutrix denied that Respondent No.1 had established any physical relations with her on the second day.
28. Thirdly, on the factum of how the prosecutrix went to Respondent No. 1. It is pertinent to note that as per the case of the prosecution, Respondent No. 1 had taken away the prosecutrix from her school on 12.03.2015. In order to prove the said factum, the prosecution had relied upon the testimonies of the father and mother of the prosecutrix. The testimony of the father and the mother of the prosecutrix would only reveal that they deposed that the prosecutrix had gone to school on 12.03.2015 and thereafter she did not return and further that the prosecutrix was found at Daya Basti Railway Station with Respondent No.1. None of the witnesses had seen Respondent No. 1 taking away the prosecutrix.
29. The only testimony to evidence that the prosecutrix had gone to Respondent No. 1 was the testimony of the prosecutrix herself. In that regard, it is pertinent to note that the prosecutrix stated that on 12.03.2015, Respondent No.1 took the prosecutrix to the house of Respondent No. 3 in an auto. In her cross examination, the prosecutrix stated that at about 1:30 PM, her mother left her at school and she was waiting for her friend. She stated that thereafter Respondent No. 1 came there and asked her to accompany him whereafter the prosecutrix accompanied Respondent No. 1. It is pertinent to note that during such time, no alarm was raised by the prosecutrix. From the testimony of the prosecutrix it is apparent that she followed Respondent No. 1 of her own accord and went with him without any resistance. Admittedly, the prosecutrix also stated that she was walking behind Respondent No. 1 on the street before taking an auto, however, as is apparent, no alarm was ever raised by the prosecutrix nor did the prosecutrix make any attempt to escape from the spot. Infact as rightly noted by the learned Trial Court, the incident took place in afternoon in a busy area, yet no attempt was made by the prosecutrix to indicate that Respondent No.1 had compelled her to accompany him. The said factors while not per se fatal cast serious aspersions on the veracity of the case of the prosecution.
30. Fourthly, in relation to the role of Respondent Nos. 2-3. It is pertinent to note that as per the testimony of the prosecutrix herself, Respondent No.1 brought the prosecutrix to the house of his sister/Respondent No. 3. and introduced her as his wife. During her evidence, the prosecutrix herself stated that Respondent Nos. 2 and 3 had not done anything wrong with her and in fact had asked her to leave their house after two days. The prosecutrix deposed that thereafter she accompanied Respondent No.1 to other places.
31. Fifthly, contradictions in relation to where the prosecutrix was taken after she was asked to leave the house by Respondent Nos. 2 and
3. It is pertinent to note that while in her statement under Section 164 of the CrPC, the prosecutrix stated that after leaving their house, Respondent No. 1 had taken her to the house of his friend whereafter Respondent No.1 had gone to find a room on rent, contrarily, in her evidence, the prosecutrix stated that after leaving the house of Respondent No. 3, both the prosecutrix as well as Respondent No. 1 had straightaway gone to the Daya Basti Railway Station.
32. It is pertinent to note that the prosecutrix, on being cross examined by the counsel on behalf of Respondent Nos. 2 and 3 stated that she wanted to marry Respondent No. 1 and wanted to accompany him to his native place. The cross examination of the prosecutrix would further reveal that she had disclosed about her friendship with Respondent No. 1 to her chachi who had stated that she could not marry Respondent No. 1 since he belonged to a different religion. The cross examination of the prosecutrix also makes it manifest that the prosecutrix had told her neighbour that she wanted to elope with Respondent No. 1. From a perusal of the facts and circumstances of the present case, it is apparent that the prosecutrix was on friendly terms with Respondent No. 1.
33. In addition to the contradictions and inconsistencies, it is also pertinent to note that there was a dearth of any scientific evidence to corroborate the case of the prosecution. As per the version of the prosecutrix, sexual assault was committed on her on 12.03.2015. The MLC of the prosecutrix was conducted on 16.03.2015.
34. Even otherwise, there is no scientific evidence against Respondent No. 1 to show that he had established sexual relations with the prosecutrix. From a perusal of the FSL report, no semen was detected on the sample as collected at the time of medical examination of the prosecutrix. Further, no DNA of Respondent No. 1 was found from the vaginal swab of the prosecutrix.
35. Insofar as the contention of the State that the learned Trial Court failed to appreciate that the corroborative medical evidence, particularly the finding of a torn hymen, is misconceived. The mere presence of a hymenal tear does not, by itself, establish forcible sexual assault. It is well-settled that the medical evidence is only corroborative in nature ad cannot in isolation, form the sole basis of conviction, especially when it does not establish penetration by force. While the testimony of the prosecutrix does not require corroboration on material particulars, such testimony must nevertheless inspire confidence, and be consistent with the overall circumstances. However, as noted above, the testimony of the prosecutrix is full of inconsistencies and the same does not inspire confidence. The benefit of the same has to go to the respondents.
36. In view of the aforesaid discussion, this Court is of the opinion that there is no infirmity with the impugned judgment passed by the learned Trial Court and the State has not been able to establish a prima facie case in its favour and no credible ground has been raised to accede to the State’s request to grant leave to appeal in the present case.
37. The leave petition is dismissed in the aforesaid terms. Pending application(s), if any, also stand disposed of. AMIT MAHAJAN, J DECEMBER 17, 2025 SK