State (NCT of Delhi) v. Saan Mohd. @ Sonu & Anr

19. The statement of the witness Ex.PW2/B recorded under Section 164 Cr.P.C. on 24.07.2014 which is translated below: “On 22.07.2014, my neighbour Aunty Neeraj took me and said let’s go to temple. Then he had to buy the dish too. She first took me her brother’s in law’s (Jija) house and then called Sonu to a Bengali Doctor.

Ans. Sonu is the boy friend of Aunty Neeraj. Sonu did not visit Bengali Doctor. Then we went to the temple. Sonu came there. Me and Neeraj aunty went to a farm with Sonu on his motorcycle. There they said me to take a walk and they went down. Sonu then left us at the Bengali Doctor. Then we went to buy the dish but we forgot the way. Then aunty took a phone from an uncle and called Sonu. Sonu came there and took us to the park. I was getting very late so I said that I am afraid and I have to go to home but they did not allow me and said me to stay in the park today. Then both of them put me to sleep and went to the other side. Then after a while they lay down where I was sleeping. Then Sonu forced me and do wrong thing with me (Sonu ne mere sath jabardasti ki galat kaam kiya).

Ans. Sonu touched me there (points at her private parts). Took out my pant and underwear. Sonu also took of his clothes. He put his private part into my private part. When I started crying, the aunty said nothing happened. I even screamed but Sonu shut my mouth. My stomach hurt so much. After that we also fell asleep. The next morning, we woke up and they left me on the way and said “go straight ahead”. Both of them quickly got into the auto. I told an aunty that I have to go to Vikas Nagar. She left me in the PS. Police officials then left me at my home.”

20. The accused persons Neeraj and SaanMohd. @ Sonu were known to the prosecutrix as apparent from her statement. In her statement recorded in the court, there is no reference of visiting temple by the victim whereas it is referred in her statement under Section 164 Cr.P.C. As per her examination in chief, co-accused Neeraj called Sonu nearby Sai Baba Mandir whereas there is no reference of calling him at Mandir rather near Bengali Doctor in statement Ex.PW2/B. As per statement under Section 164 Cr.P.C., the accused Neeraj and the victim went to the temple where other accused SaanMohd. @ Sonu joined them and there is no reference of shop of doctor in her examination in chief. The most important evidence in the case i.e. call details record of the accused SaanMohd. @ Sonu are not produced or collected or the person whose phone was used to call the accused Sonu has also not been examined, neither the guard of the park who was admittedly present has been produced including the tempo driver who was taken the accused persons; the lady who took the victim to the PS Dabri or the police officials who left her at her home. During crossexamination, the witness (PW[2]) admitted that she did not disclose that she is going with accused Neeraj to any person of the locality including her brother and sister; they had gone to take a dish to the Bengali Doctor and there is no reference of visiting the house of brother in law (Jija) of the accused Neeraj on the day of incident. It is relevant to note that she left the park at

06.00 am in the morning and reached at PS Dabri at about 03.00 pm and the time taken is not explained. There appears to be inherent contradictions in the testimony of PW[2] and the same does not inspire confidence or trustworthy. xxx xxx xxx

25. At this stage, it would be relevant to mention the medical evidence on record. PW[5] Dr. Neha Saluja, SR, Gynae, SGM Hospital, Mangol Puri identified the handwriting and signatures of Dr. Supriya Parashar and Dr. Anubha on the MLC No.440 dated 23.07.14 of the victim Ms. ‘CH' (identify withheld) aged about 12 years vide Ex.PW2/A. The testimony of the witness was not challenged by the defence and there is nothing incriminating against the accused in his testimony. It is also relevant to refer the FSL report Ex.PX[6] wherein nothing incriminating is found against the accused. The relevant portion of the report is reproduced as below: "No male profile could be generated from the source of exhibits '1a' (Cotton Wool Swab & Microslides), ‘1b’ (Cotton Wool Swab) & '1c’ (Microslides). Therefore no comparison could be drawn from source of exhibits ‘1a' (Cotton Wool Swab & Microslides), '1b' (Cotton Wool Swab) & '1c’ (Microslides) with the source of exhibit ‘2’ (blood in gauze of accused Mohammad @ Sonu). However, a male DNA Profile from the source of exhibit ‘1e4’ (underwear of victim) was generated. The alleles from the source of exhibit ‘2’ (blood in gauze of accused Mohammad @ Sonu) are not accounted with the alleles from source of exhibit ‘1e4’ (underwear of victim).” xxx xxx xxx

38. Keeping in view the settled law and the material available on record, this court is of the considered view that the prosecution failed to establish the case against the accused persons beyond reasonable doubt. It is the primary duty of the prosecution to prove the case against the accused beyond reasonable doubt and the prosecution cannot take the benefit for any lapse or weakness in defence. In view of the doubtful features and infirmities in the evidence, it is not safe to rely upon the testimony of the witnesses examined by the prosecution which needs to be scrutinizd with great care and caution. There are fatal infirmities in the entire prosecution case. The entire genesis and the manner of the incident is doubtful and the entire story deserves to be rejected. It would not be safe to convict the accused persons and in these circumstances, the accused would be entitled to benefit of doubt and acquittal from the charge framed against them. In view of the aforesaid discussions and the material available on record, I am of the considered view that the prosecution has failed to establish the circumstances in which the accused persons committed the offence. The testimony of the witnesses examined by the prosecution is insufficient to prove the involvement of the accused in the incident. As the prosecution has failed to bring home the guilt of the accused persons namely Saan Mohd. @ Sonu and Neeraj, they are hereby acquitted of the charges framed against them."

5. Aggrieved by the impugned judgment, Ms. Aasha Tiwari, learned APP appearing for the State argued that the impugned judgment dated 23.10.2019 is based on conjectures, surmises and the learned Trial Court has failed to appreciate the testimony of the prosecutrix in its right perspective ignoring the well-settled proposition of law that the sole testimony of the victim in the case of sexual assault is sufficient to base the conviction of the accused.

6. Learned counsel for the State further contended that the learned Trial Court has given undue weightage to the minor discrepancies in the statements of the prosecutrix (PW-2). She further stated that the statement of the prosecutrix is consistent, corroborative and without any major omissions and contradictions.

7. Learned APP for the State further added that as per the MLC of the prosecutrix, hymen was found torn thus, corroborating the testimony of the victim. She further submits that the learned Trial Court failed to appreciate that there is a presumption under Sections 29 and 30 of POCSO Act against the respondents-accused persons and it is for the respondents-accused persons to prove to the contrary.

8. We have heard the learned APP for the State at length and perused the available material on record.

9. It is a settled principle of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence if the testimony of a victim of sexual assault instills confidence in the Court. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the victim is not a requirement of law but a guidance of prudence under the given circumstances. In State of Himachal Pradesh Vs. Manga Singh reported in 2018 (15) SCALE 895, the Apex Court has observed as under: -

10. In view of the settled law, we shall now examine whether the evidence adduced by the prosecution, particularly the testimony of the victim is trustworthy, credible and can be relied upon. From the perusal of the statement/testimony of the prosecutrix we find that in her initial statement, she deposed “market meh ghumne keh baad hum ghar aaneh lage toh neeraj aunty boli ki rasta bhul gaye sonu ko bulate hain. Phir 09.00 baje raat kareeb sonu aagaya. Phir main neeraj aur sonu seh ghar chalne ko boli toh yeh dono boleh aap raat park meh hei rukenge. Phir hum park main soh gaye tab sonu mere pass soh gaya aur sonu neh mere sath galat kaam kiya. Phir sonu ne doh baar aur galat kaam kiya. Uske baad hum soh gaye. Subha sonu vah neeraj mujhe boleh ki agar kissi ko batlaya toh tumhe pitayi karenge.”

11. However, when her statement was recorded under Section 164 of the Cr.P.C, she stated that “Phir aunty neh ek uncle seh phone lekar sonu ko phone karke bulaya. Sonu vaha aaya or hume park leh gaya. Vaha bahot late horaha tha toh maine kaha mujhe dar lag raha hain, ghar jana hain toh boleh ki nahi aaj park main hei rehna hain. Dono mujhe sulla kar dusri taraf chale gaye. Phir thori der baad jaha main soh rah thi waha aakar late gaye. Phir sonu neh mere sath zabardasti ki. Galat kaam kiya.

Ans. Mujhe vaha chua tha(points at her private parts). Meri salwar or chaddi utaar dei thi. Apne bhi kapre utaareh thae aur apni toilet wali cheej mere toilet wali jagah main daali thi. Main roneh lag gayi toh aunty boli kuch bhi nahi hua, kuch bhi nahi hua. Meneh chillaya bhi tha toh sonu neh merah muh band kar diya. Mere peth dard hua tha bohot tej.”

12. It is also of vital concern that in her initial statement recorded on 24.07.2014, the prosecutrix failed to attribute any act like penetrative sexual assault against the respondent/accused Saan Mohd. @ Sonu whereas she took a U-Turn in her statement under Section 164 Cr.P.C. and her deposition before court and stated that the accused penetrated her vagina with his private part.

13. Moreso, the FSL Report No. FSL 2014/DNA-5599 on record does not support the case of the prosecution as alleles from the source of exhibit ‘2’ (Blood in gauze of accused Sonu) were not accounted with the alleles from the source of Ex.‘1e4’ (Underwear of the victim). Relevant portion of the said FSL report is reproduced below: “RESULT OF ANALYSIS No male profile could be generated from the source of exhibits ‘1a’ (Cotton Wool Swab & Microslides), ‘1b’ (Cotton Wool Swab) & ‘1c’ ( Microslides). Therefore no comparison could be drawn from source of exhibits ‘1a’ (Cotton Wool Swab & Microslides), ‘1b’ (Cotton Wool Swab) & ‘1c’ (Microslides) with the source of exhibit ‘2’ (blood in gauze of accused Mohammad@Sonu). However a male DNA Profile from the source of exhibit ‘1e4’ (underwear of victim) was generated. The alleles from the source of exhibit ‘2’ (Blood in gauze of accused Mohammad@Sonu) are not accounted with the alleles from source of exhibit ‘1e4’ (underwear of victim). CONCLUSION The DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that the DNA profile generated from the source of exhibit ‘1e4’ (underwear of victim) is not similar with DNA profile generated from the source of exhibit ‘2’ (Blood in gauze of accused Mohammad@Sonu).”

14. Consequently, this Court is of the opinion, that the prosecution has failed to connect the respondents-accused to the present case in as much despite the MLC confirming that the hymen of the prosecutrix been torn, there is no evidence to link the respondents-accused with the incident.

15. Since, the prosecution has failed to establish its case against the respondent-accused, inasmuch as DNA of respondent No. 1 has not matched with the male DNA recovered from the undergarments of prosecutrix, the submission advanced on behalf of learned APP for the State regarding the presumption under Section 29 and 30 of the POCSO Act, cannot be taken into account.

16. Undoubtedly, the testimony of the prosecutrix must be free of any blemish or suspicion, must impress the court as wholly truthful, must appear to be natural. In the instant case, we find that the testimony of the prosecutrix failed to inspire confidence to base the conviction of the accused persons. We are in agreement that the Trial Court has rightly recorded that the discrepancies and inconsistencies in the statements of the prosecutrix (PW-2) at different stages are not minor in nature and go to the root of the matter.

17. It is settled law that any acquittal order cannot be lightly interfered with by the Appellate Court, though it has wide powers to review the evidence and to come to its own conclusion. Further, the power to grant leave must be exercised with care and caution because the presumption of innocence is further strengthened by the acquittal of an accused. In similar circumstances, in State v. Kaishar Ali [CRL.L.P. 188/2018, decided on 30th August, 2019], we have held as under:-

(v) The trial court's judgment was manifestly unjust and unreasonable;

(vi)The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached—one that leads to acquittal, the other to conviction—the High Courts/appellate courts must rule in favour of the accused.

71. Had the well-settled principles been followed by the High Court, the accused would have been set free long ago. Though the appellate court's power is wide and extensive, it must be used with great care and caution." (Emphasis Supplied)

18. For the abovementioned reasons, this Court does not find any reason to interfere with the impugned judgment.

19. Accordingly, the present leave petition, being bereft of merit, is dismissed.

SANGITA DHINGRA SEHGAL, J. MANMOHAN, J. MARCH 3, 2020 SU