The Delhi High Court upheld the acquittal of the accused in a sexual offence case against a minor victim due to unreliable testimony and lack of corroborative evidence.
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CRL L.P. 189/2021 #S-27 HIGH COURT OF DELHI
JUDGMENT
Delivered On: 09.05.2022
CRL.L.P. 189/2021 STATE NCT OF DELHI ..... Petitioner
versus
AKASH @ GUNNI ......Respondent Advocates who appeared in this case: For the petitioner : Mr. Ashish Dutta, Additional Public Prosecutor for the State with W/S.I. Archana, P.S.: Hauz Khas. For the respondent : None.
CORAM:
HON’BLE MR. JUSTICE SIDDHARTH MRIDUL HON’BLE MR. JUSTICE RAJNISH BHATNAGAR
JUDGMENT
SIDDHARTH MRIDUL, J. (OPEN COURT)
1. The present criminal leave to appeal petition under Section 378 (1) of the Code of Criminal Procedure, 1973 (Cr.P.C.), has been instituted on behalf of the State/petitioner assailing the impugned judgment and order dated 22.08.2020 passed by learned Additional Sessions Judge-05, South District, Saket Courts, New Delhi, in S.C. No.6619/2016, in case FIR No.75/2015, under Section 376 of the Indian Penal Code, 1860 (IPC); and Section 4 of the Protection Of Children from Sexual Offences Act, 2012 (POCSO Act), registered at Police Station Hauz Khas, whereby Akash alias Gunni, the sole respondent, was acquitted of the charges.
2. The prosecution’s case is premised on a compliant received from ‘RA’ to the effect that his 15-year old daughter ‘R’ went missing from their residence at House No.215, Masjid Moth, near South 2022:DHC:1856-DB Extension Part-II, New Delhi at about 4 p.m. on 17.01.2015. The complaint revealed that Akash alias Gunni was suspected of having allured the minor victim away from the lawful custody of her father.
3. The prosecution’s star witness was ‘R’, the victim herself, who recorded her statement under Section 164 Cr.P.C., before the competent Magistrate to the effect that Akash alias Gunni had enticed her to leave her parental home on the date of the commission of the offence; and taken her to a hotel near Masjid Moth, New Delhi, where he is alleged to have had sexual intercourse with her; and further that thereafter, he took her to Kashmere Gate for sightseeing.
4. Subsequent upon investigation, a charge-sheet was filed against Akash alias Gunni under Sections 363/366/376 of the IPC and Section 4 of the POCSO Act. Akash alias Gunni denied the charges framed against him and claimed trial.
5. At the trial, the prosecution examined 10 witnesses; subsequent upon which Akash alias Gunni’s statement under Section 313 (1) (b) Cr.P.C. was recorded. The trial court having examined the evidence on the record, firstly, came to a conclusion that ‘R’, the victim, was a minor on the date of the commission of the alleged offence and, therefore, her consent was immaterial. However, the trial court did not find the testimony of the victim ‘R’ to be of sterling quality and creditworthy by observing as follows:-
“27. The first opportunity for the Victim to reveal about sexual assault was before the Doctor by whom she was examined on the night of the incident. It is recorded in the MLC of the Victim that she did not reveal any history of sexual intercourse/assault to the Doctor. The Doctor is a neutral third person and there is no reason why she would record incorrect facts in the MLC. The Victim even refused to undergo an internal medical examination. This fact is recorded in
the MLC itself and raises an adverse presumption against the Victim.
28. Victim was produced before the Ld. Metropolitan Magistrate on 19.01.2015 and her statement was recorded u/s 164 Cr.P.C. She deposed before the Ld. Metropolitan Magistrate that she went with the accused on her own for getting married to him. She revealed to the Ld. Magistrate that she had consensual sexual intercourse with the accused. She did not reveal about the place of offence however. She only stated that she had sexual intercourse with the accused in a hotel which was located in a gali but she did not remember name of the gali.
29. When the Victim was examined in the Court as PW[1], she stated specifically in her examination in chief that she went with the accused on her own and the accused did not commit any wrongful act against her.
30. Ld. SPP for the State sought permission of the court to put leading questions to the Victim U/S 154 Cr.P.C. Permission was granted. When the Victim was led by the prosecution, she deposed that she had consensual sexual intercourse with the accused as revealed by her in her statement Ex.PW1/A. She also admitted the suggestion that she did not tell the Court about the fact of sexual intercourse because she wanted to marry the accused and thus did not want to harm him. Victim also revealed, on being led by the prosecution, that she had sexual intercourse with the accused, in a hotel located in Mandir Wali Gali at Yusuf Sarai and that they had lodged in the hotel for about 10-15 minutes. She also deposed that the hotel had not been booked in advance. She moreover deposed that she did not remember on which floor the room of the hotel was located. Victim was crossexamined by the accused on the same day. During her cross-examination she admitted the suggestion of the defence that she never visited any hotel situated in Mandir Wali Gali with the accused.
31. The aforesaid testimony of the Victim, which was recorded on the same day, reveals that the Victim changed her statement frequently. During her examination in chief she deposed that no unlawful act was committed against her. During her examination by leading questions, she disclosed even the name of the gali in which that hotel was located where she allegedly had sexual intercourse with the accused. However, again when she was cross-examined by the accused, she retracted her statement given during her examination by leading questions. Such conduct of the Victim reveals that she is unreliable and not worthy of credence. It shall be pertinent to note here that statement of the Victim u/s 164 Cr.P.C. was recorded on 19.01.2015 i.e. within two days of commission of offence but the Victim did not reveal about the place of occurrence in the said statement. She however deposed about the place of occurrence when leading questions were put to her in the Court on 08.11.2016, after more than 1.[5] years of the incident. Such conduct of the Victim creates a doubt on her story and makes the Court believe that prosecution extracted its case from the mouth of the Victim by leading her. Such leading of the witness is permissible u/Sec. 154 Cr.P.C. however in such a case Court would, as a matter of prudence, seek corroboration for the testimony of the led witness, from the other material placed on record.
32. The medical examination of the Victim does not reveal anything. The Victim refused to undergo medical examination and did not reveal the history of sexual assault to the Doctor. Hence, there is no medical evidence on record, which can be used by this Court to corroborate the statement of the Victim that she had sexual intercourse with the accused. Refusal of the Victim to undergo medical examination rather raises a doubt on the story of the prosecution.
33. The place of offence, as per case of the prosecution, is a home in Mandir Wali Gali. The site plan of the aforesaid house was prepared by the IO and it is Ex.PW10/C. A reading of the site plan reflects that this site plan was not prepared on the basis of statement of the Victim. The site plan was prepared on the pointing out of the Accused. Such site plan prepared on the pointing out of the place of occurrence by the accused is inadmissible U/S 25 of the Indian Evidence Act. The IO did not get the place of occurrence identified by the Victim. It is also clear from the site plan that the place of offence is a house while the Victim deposed that she went to a hotel which was booked by the accused in her presence.
34. Owner of the place of offence was examined by the prosecution as PW[9]. He deposed that he had let out the house to one Ravi in January, 2015. The said Ravi was not examined in the Court and prosecution did not bring any material on record to show that Ravi had any connection with the accused. There is nothing on record to suggest that it is Akash @ Guni who impersonated as Ravi. PW[9] specifically deposed in his cross-examination that the accused was not known to him, which suggests that PW[9] never had any transaction with the accused. PW[9] was not declared hostile by the prosecution. If PW[9] had no transaction with the accused, the statement of the Victim that a hotel was booked in her presence by the accused stands belied.
35. The Victim also deposed in her examination in chief that she and the accused stayed in the hotel for only about 10 to 15 minutes. It is deposed by the Victim that she had consensual sexual intercourse with the accused during those 10-15 minutes which statement per se appears unbelievable and improbable.
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36. It is clear that the material proved on record by the prosecution does not corroborate the testimony of the Victim in any manner. The Victim herself being unreliable, her testimony is not sufficient to prove the case of the prosecution. The prosecution has not been able to prove its case beyond reasonable doubt for reasons aforesaid. The accused therefore is acquitted of the offences charged.”
6. A plain reading of the analysis of the testimony of the prosecutrix and the evidence aliunde, clearly leads to but one inescapable conclusion that the testimony of the witness was neither reliable nor complete in all respects so as to establish the guilt of Akash alias Gunni beyond the reasonable doubt.
7. We find ourselves, therefore, in complete agreement with the consideration bestowed to the evidence on the record in relation to the subject evidence and see no warrant to interfere with the cogent findings arrived at by the trial court. We find ourselves, particularly, in agreement with the finding that owing to the testimony of the victim ‘R’ being unreliable, without independent corroboration, it was not sufficient to prove the case of the prosecution.
8. Even otherwise, we are informed that the victim ‘R’ and Akash alias Gunni have been living together since 20.01.2017.
9. In view of the foregoing, the present leave to appeal petition filed on behalf of the State is devoid of merit and is accordingly dismissed.
SIDDHARTH MRIDUL
(JUDGE)
RAJNISH BHATNAGAR
(JUDGE)
MAY 09, 2022/’AA’
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