Full Text
HIGH COURT OF DELHI
Date of Decision: 05th November 2019
STATE (NCT OF DELHI) ..... Petitioner
Through: Mr. Amit Gupta, APP for the State with
Insp. Sukrampal, PS Bharat Nagar
Through: Mr. D.S. Paweriya, Advocate with Mr. Amrish Kumar, Advocate
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
JUDGMENT
1. By the present Leave Petition filed under Section 378 (1) of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’) the State seeks leave to appeal against the judgment dated 21.08.2018 passed by the learned Additional Sessions Judge-01, Special Court (POCSO) North West District, Rohini Court, New Delhi, whereby the respondent (accused before the Trial Court) was acquitted of the charges punishable under Sections 363/376/506/511 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and Sections 8/10/12 of 2019:DHC:5753-DB Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO’).
2. The brief facts of the case, as mentioned by the learned Trial Court are reproduced as under: “Brief facts of the prosecution case are that DD No.28A dated 25.07.2013 was recorded on a PCR call at about 8.00 p.m. regarding attempt of rape with 4 years old daughter of the caller by the neighbour. IO reached the spot where he came to know that victim has already been taken to BJRM hospital. IO reached there and collected the MLC of the victim and recorded the statement of the mother of the victim who stated that today at about 1.30 p.m. she sent her victim daughter to the shop of one Tulsi Ram to take some eatables. After some time, victim daughter returned weeping and on inquiry informed that fufaji had taken her to his jhuggi on the pretext of giving some money and there he removed her underwear and applied oil on her private part and tried to commit wrong act. When the victim started weeping, he gave her 5 rupee coin and told her not to tell about this to her mother. The victim children purchased some eatables of Rs.2/out of Rs.5/- given by the accused and balance Rs.3/were given to the complainant. The complainant waited for her husband who came home at about 8.00 p.m. and he was informed about the incident and then PCR was called. On her statement, present FIR was registered and accused was arrested. IO prepared the site plan and got the statement of the victim u/s 164 Cr.P.C. recorded where she stated that Om Prakash who is her fufa had removed her underwear and had applied oil at her shu shu wali jagah and also put knife on her throat and when she started crying he gave her 5 rupees and asked her not to tell her mother. IO collected the age proof of the victim and after completion of investigation, chargesheet was filed. Copy supplied to the accused. Charges for commission of offence punishable under Sections 363/506 IPC and Section 10 of the POCSO Act were framed against the accused on 07.02.2014 to which the accused pleaded not guilty and claimed trial.”
3. In order to bring home the guilt of the accused person, the prosecution examined 10 witnesses in all. The incriminating evidence and circumstances were put to the accused person under Section 313 of Code of Criminal Procedure wherein he pleaded to have been falsely implicated in the present case and examined three witnesses in his defence.
4. The Trial Court in the impugned judgment while acquitting respondent-accused has held as under:-
5. Aggrieved by the impugned judgment Mr. Amit Gupta learned counsel appearing for the State argued that the impugned judgment dated 21.08.2018 is based on conjectures, surmises and the learned Trial Court has not appreciated 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 conviction of the accused.
6. Learned counsel for the State further contended that the learned Trial Court has placed undue weightage to minor discrepancies in the statements of the prosecutrix (PW-4) contrary to which her statement is consistent and corroborative in nature and there are no major omissions and contradictions in her testimony. He further submits that the Trial Court failed to appreciate that there is a presumption under Sections 29 and 30 of POCSO Act against the respondentaccused and it is for the respondent-accused to prove to the contrary.
7. Learned counsel for the State further relied on the judgment dated 03.11.2015, passed in the captioned case by Mr. Vinod Yadav, learned Additional Sessions Judge-01, North West District, Rohini Court New Delhi, in Sessions Case No. 166.2013, wherein the trial court on the basis of same set of evidence had convicted the Respondent-accused for five years with a fine of Rs. 5000/- for the offence punishable under Section 10 of the POCSO Act.
8. Per contra, Mr. D.S. Paweriya, learned counsel for the respondent contended that there is no infirmity in the impugned judgment passed by the learned Trial Court and no interference is called for. He further contended that the testimony of prosecutrix is bristled with a lot of contradictions, inconsistencies and improvements. She has given different versions in her statements recorded at different stages. Counsel admitted that it is true that the sole testimony of the prosecutrix in a case of rape can form the basis for conviction of the accused if the same inspires confidence of the Court, but in the instant case, the sole testimony of the prosecutrix is not sufficient to establish a case of rape against the respondent as the medical evidence does not corroborate the oral testimony of the prosecutrix and the above alleged case is based on the foundation of maliciously slandering the respondent.
9. We have heard the learned counsel for the parties and perused the material available on record.
10. 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 and where the testimony of a victim of sexual assault instills confidence in the Court the same can be relied upon for conviction of the accused. 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 to 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: -
11. 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 or not. The prosecutrix was examined as PW-4 and the relevant portion from her examination in-chief has been reproduced below:- “After being satisfied that the witness is capable of understanding questions and answering them reasonably, considering her age, her testimony is recorded in question answer form as under. However, considering her tender age she has not been administered oath.
12. The learned Trial Court has pointed out that there are material contradictions in the testimony of the victim recorded under Section 164 of the Cr.P.C and in her deposition before court. In her statement recorded under Section 164 of the Cr.P.C, she deposed ‘unhone meri kachi utar di thi. Wo meri shu shu wali jagah par tael lagate hain. Unhone mere gale par chaku lagaya. Mein jor-jor seh roneh lagi. Fir fufaji ne mujhe 5 rupey diye aur mujhe bola ki ghar mai mummy ko mat batana. Woh bahut gande hain.’ It is also of vital concern that in her statement recorded under Section 164 Cr.P.C, there are no specific allegations of penetrative sexual assault against the respondent, however, in her deposition before court, she has altered her version and has stated that the accused after removing her underwear had penetrated her vagina with his private part.
13. Perusal of the impugned judgment also reveals that the medical evidence on record (i.e. MLC No. 63156) does not corroborate the version deposed to the prosecution. The medical report of the prosecutrix (PW-4) states that the hymen was intact with no fresh external injuries and the doctor had opined that there are no suggestive signs of sexual abuse. Consequently, there is no medical or forensic evidence available on record to corroborate the testimony of the prosecutrix (PW-4) and which could support the offence of rape having been committed upon her.
14. Though this Court finds merit in the submission of learned APP for State that the prosecutrix (PW-4) was a minor on the date of the incident and the presumption under Section 29 and 30 of the POCSO Act would be attracted, yet the contradictory versions of the prosecutrix on material points at various stages of the proceedings create a serious doubt about the truthfulness of the prosecutrix. Further the judgment dated 03.11.2015 passed in Sessions Case NO. 166/2013, relied by the learned APP for State is of no consequence as the same was set aside by the High Court vide order dated 16.06.2017. This Court is further in agreement with the finding of the Trial Court that the discrepancies and inconsistencies in the statements of the prosecutrix (PW-4) at different stages are not minor in nature and go to the root of the matter. Consequently, this Court is of the view that there is no bar in law to convict the accused on the basis of the sole testimony of the victim, however, the Court must be satisfied that the testimony of the victim is of sterling quality and inspires confidence.
15. 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)
16. For the abovementioned reasons, this Court does not find any reason to interfere with the impugned judgment.
17. Accordingly, the present leave petition, being bereft of merit, is dismissed.
SANGITA DHINGRA SEHGAL, J. MANMOHAN, J. NOVEMBER 5, 2019 gr