State v. Samim Khan

1. Present criminal leave petition has been filed on behalf of the State challenging the judgement dated 22nd October, 2019 passed by Additional Sessions Judge (North-West)-01, Special Court, POCSO, Rohini District Courts, Delhi acquitting the respondent-accused in FIR No. 354/2016 registered with Police Station Shalimar Bagh under Sections 6 and 8 of 2020:DHC:567-DB Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO).

2. The relevant facts of the present case, as noted in the impugned judgement, are reproduced hereinbelow:- “1. Brief facts of the prosecution case are that DD No.29A dated 13.05.2016 at 5.30 p.m. was recorded when the complainant M along with her victim daughter K came to PS and reported sexual abuse with the victim. Thereafter, the statement of complainant M was recorded to the effect that she is living with her family in the jhuggies of Ambedkar camp and is working as maid in different houses and her husband is a mason. Today at about 1.00 p.m., her landlady Neelam called on her mobile and informed that victim is weeping profusely and some wrong act had been committed with her and she should return immediately. She immediately reached home and the weeping victim told her that the paternal grandfather of Gulnaz namely Samim who resides in the neighbourhood called her in his jhuggi and touched her breast and shu shu wali jagah. The victim was very scared at that time. On this statement, present FIR was registered and victim was taken for medical examination where her mother refused internal examination. IO prepared site plan and arrested the accused, got him medically examined and after completion of investigation, present chargesheet was filed against accused.

2. Charges for the offence punishable u/s 6 as well as Section 8 of the POCSO Act were framed against the accused on 27.09.2016 who pleaded not guilty and claimed trial.”

3. Ms. Neelam Sharma, learned APP for the State contends that the minor prosecutrix had supported the case of the prosecution and her statement was sufficient to prove that she had been subjected to sexual assault by the respondent-accused. She states that the Trial Court had failed to appreciate the said testimony and therefore, the order of acquittal should be set aside.

4. Having heard the learned APP and having perused the paper book, this Court finds that the prosecutrix has not been consistent in her statements and has materially improved upon her initial statements. In her first statement, mentioned in the MLC, the prosecutrix had neither identified the respondent-accused (even though she admittedly knew him prior to the incident), nor mentioned about the insertion of finger in her vagina. The Trial Court has also noted that the prosecutrix had not identified the respondent-accused even when her statement under Section 164 Cr.P.C. had been recorded. The relevant portion of the impugned judgment on this aspect is reproduced hereinbelow:- “10.......Statement of the victim u/s 164 Cr.P.C. was recorded on the next day i.e. 14.05.2016 and here also, she did not mention about the identity of the accused and went on to say that she does not know the name of the said assaulter. She further improvised by saying that the said bude uncle (old aged man) inserted finger in her private part. However, while deposing in the court the victim specifically mentioned the name of the accused as Gulnaz ke naana and also admitted that she knew Gulnaz who was not her good friend and she was not playing with Gulnaz on that day. It means that victim was well aware about the identity of the accused yet did not disclose the same to the doctor as well as before Ld. MM despite her father saying in the cross examination that victim used to go to the house of Gulnaz to play with her and Gulnaz also came to their house to play with victim.” (emphasis supplied)

5. Consequently, the failure to mention the incident of „fingering‟ while the MLC was prepared and failure to identify the respondent-accused in the MLC as well as statement recorded under Section 164 Cr.P.C. and subsequently improving upon these statements, makes the testimony of the prosecutrix doubtful.

6. It was also specifically mentioned in the MLC that there was „no history of removal of any clothing‟. The relevant portion of the MLC is reproduced hereinbelow:- “BABU JAGJIVAN RAM MEMORIAL HOSPITAL, DELHI-110033 MLC REGISTER No. Name ______ Father‟s /Husband Name _______ Age11 yrs Sex Female Religion ___ Occupation __ Residence______ Name of relative of friend W/Ct.Girija Date of examination _______ Date and hour of arrival 13/5/16 8.05 pm No. and date of police docket FIR No.354/16 U/s 354 IPC & 8 POCSO Act No. and name of Constable SI Vishambhari Police Station Sh. Bagh In Admitted{Date of admission __ Date of Discharge __ PARTCIULARS OF INJURIES OR SYMPTOMS, IN CASE OF POISONING B/B Police for ME A/H/O Sexual assault xxx xxx xxx B/B Police for MLC. A/H/O- Pt. gives history of some old man touching her body and genitalia. No h/o removal of any clothing. No h/o physical assault.......................... xxxx xxxxx xxxx xxxx Examining Medical Officer”

7. The abovementioned MLC casts a shadow of doubt on the prosecution‟s case inasmuch as it is highly improbable that the respondentaccused inserted a finger in the vagina of the prosecutrix without removing any of her clothes.

8. Further, it is the prosecution‟s case that the prosecutrix had been found by her landlady Mrs. Neelam (PW-7) and thereafter, the mother of the prosecutrix had been called. It is pertinent to mention that the respondentaccused, in his statement recorded under Section 313 Cr.P.C., had stated that he had been falsely implicated at the instance of Mrs. Neelam (PW-7) as there was some prior enmity between them. The factum of a prior dispute between the daughter of respondent-accused and Mrs. Neelam (PW-7) had been admitted by the prosecutrix in her cross-examination. Even the father of the prosecutrix had deposed that there had been some quarrel between the respondent-accused and Mrs. Neelam (PW-7). However, the mother of the prosecutrix had stated that she had no knowledge and Mrs. Neelam (PW-7) had completely denied the said allegation. The Trial Court has pointed out these contradictions and the same is reproduced hereinbelow:- “11.....Further, mother of the victim showed her ignorance about any strained relations between the landlady and daughter of accused but the victim admitted that their relations were strained. It cannot be believed that victim an 11 years child was aware about the strained relations of landlady and daughter of accused but her mother was not. The landlady on the other hand categorically denied any strained relations with the accused or his daughter. On the other hand, father of the victim PW-3 specifically admitted that there was a quarrel between accused and the residents of locality including landlady on the issue of nuisance created by the accused at his meat shop by keeping live stock of chickens on the pavement. He showed his ignorance if the landlady had threatened the accused to implicate in some case but it stands proved that there was some previous strained relations between the accused and the landlady which was also admitted by victim herself.....”

9. In view of the aforesaid, it seems that there is some substance in the defence raised by the respondent-accused and the prosecution has not been able to sufficiently disprove the same. It is also 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 the accused. In similar circumstances, in State v. Kaishar Ali 2019 SCC OnLine Del 9875, we have held as under:- “13. The Apex Court in Ghurey Lal vs. State of Uttar Pradesh,

1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.

70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has “very substantial and compelling reasons” for doing so. A number of instances arise in which the appellate court would have “very substantial and compelling reasons” to discard the trial court's decision. “Very substantial and compelling reasons” exist when: