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#6 HIGH COURT OF DELHI
JUDGMENT
STATE …. Petitioner
For the Petitioner : Mr. Ravi Nayak, APP for State with ASI/Original I.O. Sita
Ram, PS- New Usmanpur.
For the Respondent : Mr. Ashok Arora, Advocate (Amicus Curiae) with Mr. M.N.
Dudeja, Mr. Harsh Prabhakar and Mr. Aditya Mishra, Advocates along with Respondent in Person.
HON'BLE MR. JUSTICE I.S. MEHTA
CRL.M.A. 36190/2019 (for condonation of delay)
The present application under Section 5 of the Limitation Act, 1963, filed on behalf of the applicant/appellant, seeks condonation of delay of 9 days in filing the accompanying leave petition.
Issue Notice.
2020:DHC:871-DB Mr. Ashok Arora, learned amicus curiae accepts notice on behalf of the non-applicant/ respondent and fairly does not oppose the application.
For the reasons stated in the application, which are duly supported by an affidavit, the application is allowed. The delay of 9 days in filing the accompanying leave to appeal petition, is condoned.
The application is disposed of accordingly.
The present leave to appeal petition under the provisions of
Section 378(3) Code of Criminal Procedure, 1973 (hereinafter referred as „Cr.P.C.‟) has been instituted on behalf of the State assailing the impugned judgment dated 29th April, 2019 rendered by the Trial Court in Session Case No. 199/2018 emanating from FIR
No.273/2018 registered under the provision of Section 377 Indian
Penal Code, 1860 (hereinafter referred as „IPC‟) and Section 6 The
Protection of Children from Sexual Offences (POCSO) Act, 2012
(hereinafter referred as „POCSO‟) Police Station-New Usmanpur, Delhi titled as ‘State vs. Jagat‟.
Since the contentions raised on behalf of the State are premised on the statement of the minor victim PW-1; as well as, his statement recorded under Section 164 Cr.P.C; as also his deposition in Court; which have evidently been disbelieved by the Trial Court, we consider it necessary to grant leave to appeal as prayed for and proceed to determine the case on its merits.
Leave to appeal is accordingly granted.
Let this appeal be registered and numbered.
CRL.A.................../2020 (to be numbered)
1. With the consent of learned counsel appearing on behalf of the parties, we have perused the impugned judgment and appreciated the Trial Court Record including the evidence recorded; and proceed to adjudicate the appeal by way of the present order.
2. Shorn of all irrelevant details, it was the case of the prosecution against the accused Jagat that, on 11th April, 2018 upon receipt of information vide DD No. 81B (Ex.PW5/1), ASI Sita Ram and Constable Ajay Malik, PW-8 and PW-6 respectively, went to the situs of the commission of the offence and recorded the statements of the victim ‘R’ – stated to be 14 years old – and his father PW-10.
3. It was stated by the victim that, his father PW-10 had been operating a dhaba at 4th Pushta, Kartar Nagar, New Usmanpur, Delhi, for a period of one year prior to the commission of the offence; and that the solitary accused Jagat was employed, therein, as a cook. It was alleged that on 11th April, 2018, whilst his father was away from the dhaba, Jagat took the victim ‘R’ behind the refrigerator placed within the dhaba, opened the latter’s trousers and took his penis in his mouth.
4. Immediately, thereafter the father of the victim ‘R’ is stated to have returned to the dhaba and was promptly informed of the commission of the offence by Jagat upon his person, by the victim. The father in turn is deposed to have called the Police Control Room.
5. On these allegations, the subject FIR came to be registered. As aforesaid, during investigation the statements of the victim, as well as, his father were recorded and Jagat was placed under arrest.
6. In order to establish their case against Jagat for the commission of offences under Section 6 POCSO Act and under Section 377 IPC, the prosecution examined ten witnesses.
7. The critical testimony, as urged on behalf of the State, relevant for the determination of the present appeal, is that of PW-1 the victim, PW-10 the father, PW-8 the I.O. and PW-6 Constable Ajay Malik.
8. Mr. Ravi Nayak, the learned APP appearing on behalf of the State would canvas that, the victim had been consistent in his testimony from the very beginning and that his sole testimony by itself, without any further corroboration, was sufficient to bring home the guilt of the respondent. Our attention was drawn to the victim’s testimony to contend that the same was truthful and creditworthy and that consequently the Trial Court fell into grave error in returning the finding that, the same was riddled with contradictions and therefore unreliable.
9. On the contrary, Mr. Ashok Arora, Advocate, the learned amicus curiae would asseverate that Jagat evidently has been falsely implicated in this case because of an existing financial dispute between him and the father of the victim. It was further stated that, Jagat as an employee of the dhaba used to clear the dues of persons who provided provisions for the dhaba and that for some period of time, prior to the alleged commission of the offence, he had neither been reimbursed for the expenses disbursed by him to the vendors nor was he being paid the regular salary, which he was entitled to receive as an employee.
10. We have heard learned counsel appearing on behalf of the parties at length, who have invited our attention to the relevant evidence on record, as well as, to the impugned judgment.
11. We observe that, the Trial Court upon due appreciation of the evidence, returned findings – with which we concur that - are clear, cogent and plausible. In this behalf, we consider it appropriate to extract in-extenso the appreciation of evidence on record by the Trial Court and the detailed reasons recorded for the latter to return in returning impugned findings, as hereunder: “20. The prime witness in this case is the victim. He appeared as PW 1 and deposed that an year prior to his deposition, around Deepawali, his father had opened a dhaba. He did not remember the date or month but it was one or two months after the Holi of 2018 that one day, he was sitting at the cash counter. At around 04.00 p.m., accused called him near the refrigerator in the dhaba. Accused opened the zip of victim's trouser and took victim‟s penis in his mouth. When accused was forcing him, water fell from the refrigerator upon his trouser. Thereafter, his father came. He said nothing to his father. Then his father sent him to get petrol from a shop. When he returned after buying petrol, his father again asked as to what had happened and threatened to beat him if he failed to tell him what had happened. He then told everything to his father. His father called the police. His statement (Ex.PW1/1) was recorded by the police. He further deposed that Jagat had done similar acts earlier also and it was done two days prior to the incident, which was reported to the police. He further deposed that his statement u/s 164 Cr.P.C was recorded by the MM. The statement u/s 164 Cr.P.C was Ex.PW1/2.
21. During his cross examination, he deposed that he had not told about the first incident to anyone in his family because the accused had threatened him that in case he told about it to anyone, accused would beat him. He denied that his father and accused used to quarrel regularly and volunteered, that there was only one quarrel that had happened because the accused was not doing his job properly. Apart from the accused, there were three other employees in the dhaba. One was Sanjay, who would operate tandoor. There was another Sanjay who would wash utensils and one Rakesh who was a waiter. On that day, he had reached dhaba at around 02.00 p.m.. At around
04.00 p.m., his father had gone to fetch water. His father went on bike and he was accompanied by Sanjay, the utensil washer, who was pillion riding with 50 Ltrs. cane in his lap. His father came back after half an hour. Police arrived at
05.30 p.m.. Police had also made inquiries from Rakesh and Sanjay but he did not know if their statements were recorded by the police. He admitted that accused used to make payments for gas cylinder, vegetable vendor and the rickshaw wala who would transport goods to the dhaba. He deposed that it was possible that dues of the accused towards his wages for 10 days and sometimes the payments which accused used to make, might have been outstanding towards his father. After Ram Navami of 2018, the sales of dhaba nosedived. It was possible that because of this reason, the payments of accused became due. He denied that because the accused was demanding his dues from his father, accused was falsely implicated in this case. He denied that as there were two more employees in the dhaba, accused could not have committed penetrative sexual assault upon him. He denied that in order to avoid paying the dues of accused, his father used him to falsely implicate the accused. He deposed that at 4.00 p.m., there was no customer in the dhaba.
22. The second witness is the father of the victim, who appeared as PW10. He deposed that victim was his son. He was running a dhaba by the name of Maa Vindhyabasni Vaishno Dhaba. Accused was working in that dhaba. On 11.04.18 at about 3.00 p.m, he closed the Dhaba and went home to take rest. His dhaba had three employees. One safaiwala, one karigar and Jagat. When he left the dhaba at 3.00 p.m, his other two employees had gone for an outing and the victim and accused remained at the shop. At around 4.00 p.m, he returned to the dhaba and saw that victim was sobbing. Again he said that victim was lethargic. He asked the victim as to what had happened and why the victim was lethargic. Victim told him that victim was having pain in his penis. He asked the victim why he was having pain in his penis and victim said that Jagat had put victim‟s penis in his mouth and had sucked very hard on it. He made a PCR call. Police came and arrested the accused.
23. During his cross examination, he denied that sometimes when he would not be at hotel, accused would receive the provisions and pay for the same and volunteered, that sometimes when there would be an emergent need, accused would go and buy things for dhaba and he would pay the money spent to the accused. He admitted that around the period when the incident had allegedly happened, dhaba was not doing very well and the income was not much. He denied that due to the financial crisis in the dhaba, he had not paid the dues of accused for few months and volunteered, that accused was working on daily basis and his dues were cleared every day. He admitted that in his dhaba, they did not require petrol for any purpose. He denied that the refrigerator in the shop was placed by the rear wall of the shop and there was no space behind or by the side of the refrigerator which would be invisible from the outside. He admitted that there was no water spread on any portion of the floor of the shop. He deposed that he and Jagat never had any quarrel. He was specifically asked that as per the victim, he had left the dhaba at 4:00 p.m and not at 3.00 p.m. and he stated that victim had made wrong statement and he had gone at 3.00 p.m. He was then confronted with the victim's testimony where the victim had stated that he had not gone to take rest but to fetch water and he stated that victim might have stated so because whenever he would go for rest at home, he would bring water from home. He was then confronted with victim's testimony where victim had stated that he used to bring water from a place which was five minutes on bike from his dhaba whereas he had stated that be used to bring it from home. He deposed that there was a government tap on the way from his dhaba and it was there that he used to fill water. He was again asked that on that day, he had not gone home because the victim had stated that Sanjay, the utensil washer, sat on his bike with a 50 liter cane to get water and he replied that he did not remember and therefore, he could not explain. He was then asked that the victim had stated that on that day apart from the accused, he had three workers, namely Sanjay-the utensil washer, Sanjay-the tandoor operator and Rakesh-the waiter. He replied that he only had two employees, Sanjay and Satish. He was then confronted with victim's testimony where the victim had stated that when his father left the dhaba, Sanjay the tandoor operator and Rakesh the waiter remained at the dhaba whereas he had stated that when he left, there was no one except accused and the victim at the dhaba. He stated that the victim had made a wrong statement. On that day, he had no employee by the name of Rakesh and when he left the dhaba, victim was alone with the accused. He was then confronted with victim's testimony where the victim had stated that the accused had made payments to vegetable vendors etc. and he replied that how could the child know about it.
24. He was then asked that the victim had stated that after he returned, he saw that victim's trouser was wet and he asked the victim as to what had happened, but the victim did not reply and then he sent the victim to buy petrol and he admitted it. He then deposed that he had asked for the petrol for his bike which had run out of petrol. When he enquired from the victim for the first time, the victim told him everything then be sent the victim to buy petrol. After the victim had brought the petrol, he sent the victim to take a bath and thereafter, he made a PCR call.
25. He was then confronted with the victim's testimony where the victim had said that before the victim had brought the petrol, the victim told him nothing and after the victim had brought the petrol, he again asked him as to what had happened and threatened him that if he did not tell, he would beat him. He stated that the victim had not stated correct facts.
26. He denied that no incident as alleged had happened with the victim or that the accused had been falsely implicated because of the financial dispute which he had with accused as accused was demanding his dues. He denied that the incident could not have happened as the accused was not alone with the victim and there were two more employees.”
12. From a reading of the above extracted paragraphs, the following factual matrix is axiomatic;
(i) The initial case of the prosecution as recorded in the subject FIR was that, Jagat had taken the victim ‘R’ behind the refrigerator and indulged in fellatio after lowering the latter’s trousers. It was also their case that, the victim had immediately upon the return of his father to the dhaba, narrated the entire incident to the latter. The statement of the victim recorded under the provisions of Section 164 Cr.P.C. was on identical lines, save and except, the circumstance that it contained an improvement qua the allegation that Jagat had committed a similar offence on 8th April, 2018, as well. From the reading of the testimony of the victim ‘R’, it is axiomatic that, the subject dhaba where the offence is alleged to have been committed had four employees, namely, the respondent Jagat, one Sanjay who was a tandoor operator, one Sanjay who used to wash utensils and one Rakesh who was the waiter.
13. Although it was the case of the prosecution that when the unsavory incident occurred, the victim was alone with Jagat, the same is completely belied by the victim’s testimony as contained in the victim’s cross-examination wherein he categorically admitted that, in the absence of his father from the dhaba, at the relevant time, Sanjay and Rakesh were present throughout.
14. It is pertinent to observe that the victim’s father completely contradicted the victim, by deposing that he employed only two persons at the dhaba, namely, Sanjay and Satish. The father further completely contradicted the testimony of his victim son, by deposing that when he had left the dhaba, the other two employees had already gone for an outing.
15. It is further telling that although in the initial statement of PW- 10, the father is stated to have caught Jagat while the latter was indulging in the ugly act with victim ‘R’; it was subsequently deposed that the father arrived much after the commission of the offence. It is further relevant to note that, although the victim stated that he did not disclose the incident to his father immediately upon the latter’s return and narrated it to him only much later, after he had returned from purchasing petrol on the instructions of his father; the father contrary to this testimony, deposed that immediately upon his arrival and upon his questioning the victim in this regard, the latter narrated the events qua the commission of the offence by Jagat upon him. In this behalf, it is also observed that the victim’s father during his examination-inchief did not allude at all to the circumstance of having sent his son to fetch petrol, at the material time, but during his cross-examination when confronted with the testimony of the victim to the effect that immediately after the incident he had been sent to buy petrol, unequivocally admitted that he had sent the victim to buy petrol only after he had been apprised by him of the sexual assault. It is further pertinent to notice that, the father also deposed that after the victim had bought the petrol as instructed, he sent the victim to take a bath and only thereafter, called the Police Control Room. This conduct of the witness is not only unnatural but also completely unbelievable.
16. It is also reflected from the deposition of the I.O. PW-8 and Constable Ajay Malik PW-6 that, the entire dhaba – stated to be 10 feet. x 18 feet. in area - was completely visible from the outside clearly establishing thereby that there could have been no area within the dhaba which was hidden or not visible from the outside thereby making the testimony of the victim unreliable.
17. In addition, although the two other employees, namely, Sanjay, the tandoor operator and Rakesh, the waiter, who admittedly were very much present at the dhaba, at the time of the commission of the alleged offence, were interviewed by the Police; but inexplicably neither were their statements recorded by the Police nor were they examined as witnesses by the prosecution; leading to the inference that their testimony may have been adverse to the case of the prosecution.
18. We also concur with the finding arrived at by the Trial Court in relation to the defence taken by Jagat, who articulated and elaborated his false implication in the commission of the offence. In this behalf, it is observed that Jagat had categorically and consistently asseverated that, there were disputes between him on the one hand and the father of the victim on the other, on account of overdue payments of salary and reimbursement for the purchase of provisions. It is also a matter of record that, the dhaba was in dire straits financially and not able to sustain its operations. This fact was clearly attested to by the father of the victim himself, as well. It was further admitted by the father of the victim that as asserted Jagat would regularly defray the costs of the provisions acquired for the operation of the dhaba to the vendors; although it was countered that the outstanding amounts were duly settled. We also observe that the victim too, in his deposition clearly and unequivocally admitted to the existence of a quarrel between his father and Jagat, although he volunteered that disputes were the result of Jagat purportedly not discharging his duties properly. In this behalf, it is critical to observe that the father of the victim completely contradicted the victim son’s testimony and denied having any financial or other quarrel with Jagat.
19. The above facts and circumstances leave no manner of doubt that the plea of false implication articulated on behalf of Jagat and the probability of the dispute over financial matters motivating and propelling the false allegations of sexual assault, cannot be entirely ruled out.
20. In view of the foregoing, we find ourselves in agreement on all four’s with the finding returned by the Trial Court as follows: “40. In view of the contradictions in the testimony of the victim and his father, impossibility of the circumstances for commission of the offence because of the presence of two more employees and the probability of motive for false implication of the accused, I find that there are serious doubts in the case of the prosecution. I accordingly find that the prosecution has failed to prove its case beyond all reasonable doubts. The accused is given benefit of doubt. Accused is accordingly acquitted of all the charges framed against him”
21. Although, there is no gainsaying the established legal position that in cases of sexual assault, particularly against minors, the testimony of the victim can form the foundation for a finding of guilt against the perpetrator; the same is subject, however, to the testimony of the victim being of sterling quality and inspiring confidence in the Court. In the present case, we have found that the testimony of the victim is riddled with contradictions both inherent, as well as, when appreciated in conjunction with the testimony of his father and considered in the backdrop of the medical and forensic evidence, or lack of it, on record.
22. We are consequently of the view that the present appeal assailing the impugned judgment whereby Jagat was acquitted for the commission of the offences under Section 377 IPC and Section 6 POCSO Act is devoid of merit. The same is accordingly dismissed.
23. We would be failing in our duty if we did not record out deep appreciation to Mr. Ashok Arora, the learned amicus curiae, as well as Mr. M.N. Dudeja and Mr. Harsh Prabhakar, Advocates for assisting us in the present appeal.
SIDDHARTH MRIDUL (JUDGE)
I.S. MEHTA (JUDGE) FEBRUARY 06, 2020/nd/d