Full Text
CRL.L.P.443/2019
STATE(NOT OF DELHI) Petitioner
Through . Mr.RajatKatyal,APP for the State.
Through Mr.AmitKumar with Ms.Meenakshi Dutta and Mr.Pranav.Buwaniwala, Advocates.
^0 Date ofDecision: 10^"^ October,2019
HON'BLE MS.JUSTICE SANGITA DHINGRA SEHGAL
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MANMOHAN.J(Orall; ' t0 T. Present criminal leave petition has been filed on behalf ofthe State challengingthejudgmentand OTderpfacquittal dated 09'^ May,2019passed by Additional SessionsJudge(Nbrth-WestJSpecial Court(POCSO),Rohini
District Courts, Delhi in FIR No.552/2014 registered with Police Station
South Rohini.
JUDGMENT
2. The Trial Court in the impugned judgment while acquitting the respondent-accused under Sections 366/506 IPC and Section 6 ofPOCSO Act has held as under:- CRL.L.P.443/2019 Page I ofII 2019:DHC:7564-DB "7. As far as date of birth of victim is concerned, the prosecution has failed to prove the ase ofvictim. The documents obtained by the lO from the school were only exhibited by the lO PW-13 but were not proved by summoning the orisinal record or by examinim any witness from the concerned school Further, a perusal of these documents shows that no proof of the date of birth ofyictim was filed by the parents ofyictim at the time of admission. There is no MCD birth certificate nor any affidavit of the parents in suvvort of date of birth of the yictim. The prosecution could not prove that victim was minor at the time of the allesed incident.
8. Coming to the main incident, victim admittedly did not raise any alarm at any stase since she left Delhi and till she came back to Delhi. Victim specidcdlly stated in her cross examination "Ranjeet battery riksha chala rdha tha aur mein free hokar peechhey bethi thi."ThiS-^re^ec^imMyic^ voluntarily left with the accused ofher own. Wictim did not raise any alarm even at the house ofPW-7 who was:the fri'end ofthe accused. PW-7 no where stated that victim ever stated to him at any stase that she has been forcibly broushtdopMnmU Eurther Punjab victim went to WestBensal mh'din dhd^^i^efjidt W she did not raise any alarm. The not show any sisn of injury. It is claimed thiat'yKdmtim 15 years ofase and accused was about 23 years old. It is claimed by the victim that she was raped on 17.07.2014 and then on 20.07.2014 but the medical examination does not corroborate;her statement. Further the FSL result does not Corroborate the prosecution story as semen was not detected on any sample ofthe victim. The victim even did not report about any sexual assault at the time ofher recovery to the police at West Bengal. She explained that her mausi at West Bengal who called the police asked her not to tell anythins to the Bensal Police. The explanation given by the yictim in this regard is not plausible. Further, the mother ofthe yictim in her cross examination stated thatshe had no knowledse about the victim and the accused prior to police informing her that yictim had sone with the accused. The FIR however is CRL.L.P.443/2019 Page2ofI/ against her claim as the name of the accused is svecificallv recorded in the FIR as the verson who had kidnapped the victim. The prosecution could not prove the victim was minor at the time of her allessd kidnapyins and her conduct shows that she voluntarily left with the accused. xxxx xxxx xxxx xxxx
10. The facts as evidentfrom the testimony ofthe victim leads to the inevitable conclusion that it is case of consent and victim voluntarily accompanied the accused. There is no material on record to point out towards kidnappin[2]. Victim is unreliable and inconsistentand conviction cannot he based on her sole testimony ^hich is not corroborated bv anv material on record. Prosecution has failed to prove any of the offences bevond reasonable doubt. Accused is accordingly acquitted..." ■, (emphasis supplied)
3. Mr. Rajat Katyal, learned APP for.State states that the Trial Court failed to appreciate that the prosecutrix,in the present case,was aged about fifteen years at the time of the(inc;id%t and'that the Investigating Officer (PW-13)had deposed that thiage/jproofof'pfosecutrix was taken from the schoolrecords[Ex.PW-13/Ato Ex:P)^-l§^C^ asperthe said documents, the date ofbirth ofprosecutrix was 07^''August,1999. He ftirther states that the mother ofthe prosecutrixf(PWT^ thatthe prosecutrix was aged aboutfifteen years and she was notcross examined on this point.
4. He submits that asthe prosecutrix was a minor,her consent,ifany,to accompany the respondent-accused and to have physical relations with him was ofno consequence.
5. Learned APP for the State, in the alternative, contends that the prosecutrix had properly explained the reasons for not raising an alarm as the respondent-accused had threatened to kill her brother, if she were to CRL.L.P.443/2019 page3ofII -6 f ■] disclose the incident. He emphasises that the Trial Court completely ignored the cogent evidence of the prosecutrix and wrongly concluded that her statement was not reliable.
6. Having heard learned APP for the State, this Court is of the view that it is essential to first outline the relevant facts.
7. In the present case, a complaint dated 16"" July, 2014 was lodged with police station South Rohini.by Smt.'M' stating that her minor daughterprosecutrix 'N' aged about fifteen years had left home for her tuition classes at 4.00 p.m. as usual, but had not returned till 7.00 p.m. and she apprehended that the respondent-accused who was;earlier their neighbour had kidnapped her minor daughter. In pursuance tdyithe; said complaint, a case was registered under Section 363 IPG; initially 'fv
8. During the course of invesftg^on, theparents ofthe prosecutrix came to know that the prosecutrix and respphddht-accused had gone to West Bengal and the local police had app^^^ them. The Delhi police team reached West Bengal and subseddehtly recovered the prosecutrix from Mahila Awas.
9. Thereafter, the prosecutrix was brought to Delhi and was medically examined and her statemenT.:£wa^>|?PO^^ Section 164 Cr.P.C. wherein she alleged that respondent-accused had kidnapped and raped her. th On 09 September, 2014, the respondent-accused was arrested and medically examined and the Investigating Officer collected the proof of date of birth of the prosecutrix. After completion of investigation, charge sheet was filed against the respondent-accused.
10. A perusal of the impugned judgment reveals that the prosecution could not prove that the prosecutrix was a minor at the time of the alleged CRL. L.P. 443/2019 Page 4 ofII incident. The documents regarding age proof of the prosecutrix obtained from her school were exhibited bythe Investigating Officer(PW-13)and not by any witness from the concerned school. Further, as per thejudgment of the Trial Court, no proof of date of birth was filed by the parents ofthe prosecutrix. Since the documents regarding age proof of the prosecutrix were not duly exhibited/proved by the prosecution, this Court is in agreement with the finding ofthe Trial Courtthat the prosecutrix cannot be said to be a minor on the date ofthe incident.
11. Further, the testimony of the mother of the prosecutrix (PW-11) cannot be relied upon without any;corroborating evidence regarding the age of the prosecutrix. In any event,' thb.vtestimony of the mother of the prosecutrix (PW-Il) is contradictbry and 'urireliable inasmuch as, in her cross-examination she stated\fh^ she j,h^ no knowledge about the prosecutrix and the respondent-dCGused|gdi|g together prior to the police informing her about the same.-'>Ho\yeyer, the FIR goes against her claim as the name ofthe respondent-acGuSe;dJv^as specifically recorded as the person who had kidnapped the prosecutrix^ '
12. A perusal of the statement of the prosecutrix also shows that her statement is unreliable aridjia^:eQnyiction^e^^ be based on her sole testimony. The relevant portion ofthe testimony ofthe prosecutrix(PW-10) is reproduced hereinbelow: "....Maine battery rickshaw mein baithne se leker, bus mein Punjabjaane thatha uske baad rail se Bengaljaane kpure safar mein koi shor ya halla nhin machaya volt. Ranjeet ne mujhe darraa rakha tha. Mein delhi mein hipaida hui thi aur yahipali badhi hoon. Mujhe delhi ki bahutsaarijagahoon ke barrein mein pta hai. Ye kehna shi hai ki mangelpuri sejab hum kahin. bhi jaate hai toh chorahoonperpolice rehti hai. Mujheghatna ke din CRL.LP.443/2019 Page5ofII bhi raaste mein police wale dikhe they per maine phir bhi shor nhin machaya. Volt. Mujhe bahut darraa rakha tha. Battery rickshaw mein mere aur Ranjeet k allawa koi aur sawaari nhin thi. Ranjeet battery rickshaw chala rha tha aur meinfree hokar piche baithi thi. Jab Bangal mein mujhe aur Ranjeet ko court meinpesh kiya gya tab bhi meine wahan mujhe darra dhamka kar Delhise laane wali baataur meresath rape karne ki baatRanjeet k khillaf maine nhin bataayi thi. Ye kehna sahi hai ki Bangal mein mujhe are Ranjeetko gaon walo ne Bangalpolice ki hawale kar diya tha. Meri mausiRajena Bibi wahiBangal mein aappass k gaon mein rehti hai, wo bhiwahan pahunch gyi thi. Volt. Unhi ke shor machane par police ne humein arrest kiya tha. Maine ( 1 apnesath huisaarivaardaatke baqre mein apnimausikoBangal mein bta diya tha, par wo mujhe boli ki Bangalpolice ko kuch mat bta aur ye sab baqtein Delhijakarhataana. Jab delhipolice Bangalpahunchi thi toh maine aphe sath hui vaardaat ke baare mein unhe Bangaal mein nhin bqtqayq.tha. Volt. Train meinjab mujhese puch taach ho rhi thi tab bdtqaya tha. Police ne mera bayaan Delhiaakar thane fneinliliha tha."
13. As noted in the Trial Courtjudgment,ihe prosecutrix did notraise any alarm at any stage from th#;'timd;jshi(^d^ till she came back. Consequently, it cannot be'|i:uleid|diif'tll^ prosecutrix voluntarily accompanied the respondent-accused: *- - ^ -
14. The FSL report also does not corroborate the prosecution story as semen was not detected on ariy ofTjtee:|s^ the prosecutrix. Further, the MLC ofthe prosecutrix does notshow any sign ofinjury.
15. Consequently,the statement ofthe prosecutrix that she was raped on 17^*^ July, 2014 and then on July, 2014, is not corroborated by the forensic and medical evidence. Further,in the present case,the prosecution has failed to prove the age of the prosecutrix and there is no medical evidence to supportthe prosecution's case. CRL.L.P. 443/2019 Page6of11
16. 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 ofan accused. In similar circumstances,in State v. KaisharAH[CRL.L.P.188/2018,decided on 3&'' August,2019],we have held as under:- "13. 'The Apex Court in Ghurey Lai vs. State ofUttarPradesh, (2008)10see450has heldas under "69. Thefollowingprinciplesemergefrom the cases above:
1. The appellate court may review the evidence in appeals againstacquittal underSections378and386ofthe Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record.Itcan review the trial court's conclusion with respectto bothfacts andlaw.
2. The accusedispresumedinnocent untilproven guilty. The accusedpossessed thispresumption when he was before the trial court. The trial court's acquittal bolsters the presumption thathe is innocent.
3. Due orproper 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 enoughfor the High Court to take a different view ofthe evidence. There must also be substantial and compelling reasonsfor holding that the trialcourt was wrong.
70. In light ofthe above, the High Court and other appellate courts shouldfollow the well-settled principles crystallised by number ofjudgments if it is going to overrule or otherwise disturb the trialcourt's acquittal: CRL.L.P.443/2019 Page 7of11 n f )
1. The appellate courtmay only overrule or otherwise disturb the trial court's acquittal if it has **very substantial and compelling reasons"for doingso. 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:
(i) The trial court's conclusion with regard to the facts is palpably wrong;
(ii) The trial court's decision was based on an erroneous view oflaw;
(iv) The entire approach ofthe trial court in dealing with the evidence waspatently illegal;
(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/reportofthe ballistic expert, etc. (') (vii) This listis intended to be illustrative, notexhaustive.
2. The appellate court must always give proper weight and consideration to thefindings ofthe trial court.
3. Iftwo reasonable views can be reached—one that leads to acquittal, the other to conviction—the High Courts/appellate courts mustrule infavour ofthe accused.
71. Had the well-settled principles been followed by the High Court, the accused would have been setfree long ago. Though the appellate court's power is wide and extensive, it must be CRL.LP.443/2019 Page8ofII II used with greatcare and caution." (emphasis supplied)
14. One of us, (Manmohan, J) in Niraj vs. Ramesh Pratap Singh,2012,SCC OnLineDel3813 has heldas under:-
( ) limitation, restriction or condition onSexercise ofsuch power and an appellate CburfotiBhe-^^ before it may reach its own conclusion,both on questions offactand oflaw; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are notintended to curtailextensivepowers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of f' lourishes of language'to emphasize the reluctance ofan appellate Court to interfere with acquittal than to curtail the power of the CRL.LP.443/2019 Page9ofII fa- Court to review the evidence and to come to its own conclusion. (4)An appellate Court, however, must bear in mind that in case ofacquittal, there is double presumption infavour of the accused. Firstly, thepresumption ofinnocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he isproved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmedandstrengthened by the trialcourt. (5)Iftwo reasonable conclusions arepossible on the basisof the evidence on record, the appellate court should not disturb thefinding Ofadquittalrecorded by the trialcourt."
7. The Supreme Court,in a subsequentjudgment in Arulvelu & Anr. Vs. State Represented byfti^iPublic Prosecutor & Am., (2009)10see206has held as iihMer::r} "40. Unquestionably, the i^ppellate Court has power to review and re-appreciate,!the ientire^ on record. The appellate court wouldfbejustfi e0in reversing thejudgment of acquittal only i^thdye jmeiffUb^dntial and compelling reasons and when theyudghtehpdf^ trialcourtisfound to beperversejudgment.Interfering^^ a routine manner where other view ispossible is contrary to the settled legalposition crystallized by aforementionedjudgments ofthis Court. The accused ispresumed to bednndcdht untilproven guilty. The accusedpossessed thispresumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. Thisfundamentalprinciple must he kept in view while dealing with the judgments of acquittalpassed by the trial court." (emphasissupplied)
17. For the foregoing reasons, this Court does not find any reason to interfere with the impugnedjudgment. CRL.L.P.443/2019 Page 10of11
18. Accordingly, the present leave petition, being bereft of merit, is dismissed.
OCTOBER 10,2019 KA SANGIT MANMOHAN,J IN /I SEHGAL,J r> I,.' •, A,:77
1. A -7-
77. 7:f-'■7/; ■7.'di ■!I "■!■ v./ C"' V,C CRL. L.P. 443/2019 Page II ofII