Full Text
JUDGMENT
Cr.P.C. for exemption)
STATE …..Petitioner
Advocates who appeared in this case:
For the Petitioner : Mr. Ravi Nayak, APP for the State along with SI Bijender Singh, PS I. P. Estate.
For the Respondent : None
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
1. The present application under Section 5 of the Limitation Act, 1963, instituted on behalf of the applicant/State, seeks condonation of delay of 13 days in filing the accompanying leave petition.
2. Having heard learned counsel appearing on behalf of the applicant/State and for the reasons stated in the application, the same is allowed. The delay of 13 days in filing the accompanying petition is condoned.
3. The application is disposed of accordingly. CRL. L.P. 209/2019
1. There can be no manner of doubt that a conviction for an offence of aggravated, penetrated sexual assault within the meaning of Section 6 of 2019:DHC:1636-DB the Protection of Children from Sexual Offences (for short ‘POCSO’) Act, 2012, read with Section 376 of the Indian Penal Code, 1860, can be sustained on the sole deposition of the prosecutrix. However, it is equally well established that, the testimony of the prosecutrix must be credit worthy and inspire confidence. [Ref. “State (GNCT of Delhi) vs. Vicky @ Karan & Anr.” Crl.L.P. 418/2018, judgment delivered on 07.12.2018].
2. The present petition seeking leave to appeal assails judgment and order dated 15.11.2018, in Session Case No.28071/2016, arising out of FIR No.746/2015 (hereinafter referred to as the ‘subject FIR’) under Sections 363/376 Indian Penal Code, 1860, read with Section 6 of POCSO Act, 2012, registered at Police Station I.P. Estate; whereby the trial court having returned the finding that the deposition of the prosecutrix (PW-7) is far from reliable and trustworthy, has declined to base the conviction of the accused (hereinafter referred to as the ‘respondent’) thereupon.
3. Mr. Ravi Nayak, learned APP appearing on behalf of the State, by inviting our attention to the statement of the prosecutrix, PW-7 under the provision of Section 164 Cr.P.C.; wherein she has deposed that the respondent had applied a handkerchief laced with a sedative on her face, as well as, the relevant recording in the MLC to the effect that hymen of the prosecutrix was found to be torn, (by PW-2 Dr. Reena in her report Ex. PW-2/A), would urge that the present is a fit case for grant of leave to appeal.
4. We find ourselves unable to agree with the submissions made on behalf of the State, for the reasons elaborated hereunder:- 1.) The complainant in the present case, PW-5 who is father of the prosecutrix, PW-7 did not support the case of the prosecution, and turned ‘hostile’, completely eroding the substratum of the case made by them against the respondent. 2.) The said testimony is considered by the trial court in the following manner:-
46. It is further relevant to note that after the Complainant PW[5] testified that on 01.12.2015, his daughter i.e. victim was missing from his house, he got registered FIR Ex. PW-5/A at PS I.P. Estate. He further deposed that he had gone to PS I.P. Estate for lodging the missing report in the absence of his wife and when his wife returned home, she told him that ‘OD’ along with Nadeem and his family members had gone to the village of Nadeem for tour purpose for 2-3 days. He further stated that he again went to the PS I.P. Estate to inform the police officials about the same, but they sent him by saying ‘ab kuch nahi hoga’. The aforesaid testimony of the father of victim himself, i.e. Complainant PW[5] completely demolishes the case of the Prosecution that victim was kidnapped by the Accused. 3.) The deposition of the prosecutrix, PW-7 is riddled with contradictions and does not inspire confidence as elaborated by the trial court in the following words:-
41. Be that as it may, it emerges from her testimony that in her cross-examination, she also deposed that she stayed for one night at a rented room in R. K. Puram and the Accused paid rent of Rs.1000/- in her presence. But in her cross-examination, she was unable to tell the name of the friend of Accused who had come to R. K. Puram. She was also unable to tell the name of the landlord or the address of the house where they had stayed at R. K. Puram, as deposed by her in her crossexamination. On the contrary, IO/SI Rakesh Tyagi deposed in his cross-examination that he did not visit R. K. Puram as victim and Accused had not stayed there. There is thus apparently contradictions in the version of the victim and IO regarding her allegations of staying at R. K. Puram.
42. As per the deposition of the victim, Accused took her to the house of his friend at Hapur and kept there for 4-5 days. In her entire examination in chief, she made no statement regarding making any complaint against the Accused to the said friend of Accused at whose house she was compelled to live at Hapur. Moreover, though initially she stated that she stayed in the house of friend of Accused at Hapur, upon being cross-examined by ld. Prosecutor, she testified that Accused had taken her to the house of his ‘fufa’ at Hapur and that they remained there for 20-21 days. Her version again changed in the cross-examination where she stated that she met fufa of Accused at Hapur and also deposed that she did not make any complaint against the Accused to his fufa.
43. It is difficult to believe that a person who has been kidnapped and raped would not even whisper anything against the perpetrator of the offence to anyone and would continue to roam around at different places with him.
44. In her examination in chief, victim had also de posed that she was raped by Accused at Rampur where she stayed in the house of Khala of Accused for 10-12 days. In her crossexamination, however, she deposed that “we did not stay in Rampur as no one was present at that house and we returned to Hapur on the same day and remained there for 10-12 days”.
45. It is also pertinent to mention that as per the Prosecution case, the Accused had also allegedly taken the victim to Meerut where he kept her for 10-11 days in the house of his friend. However, when the victim PW-7 was crossexamined by ld. APP for the State, she denied this suggestion that Accused took her to Meerut or that he kept her there for 10-11 days at the house of his friend.
47. From the deposition of the victim read as a whole, it is more than apparent that she cannot be termed as a reliable and trustworthy witness. Not only her version before the court kept changing, but her claim that she was raped by the Accused at different places becomes difficult to accept in view of the fact that admittedly there is nothing on record to show that she ever tried to raise an alarm or escape at any point of time despite the fact that she was allegedly kidnapped by the Accused by intoxicating her. In her examination in chief, she did not even whisper that she had been threatened by the Accused in any manner and it is only when she was cross-examined by the Defence that she voluntarily added that Accused had threatened her. However, despite the same, there is not an iota of evidence to show as to when said alleged threat was extended to her by the Accused. Moreover, there is nothing on record to believe that the said threat continued to operate during the period 01.12.2015 to 19.12.2015.” 4.) A plain reading of the paragraphs extracted, hereinabove, leaves no manner of doubt that the testimony of the Prosecutrix belies the prosecution’s case in toto. The same is contradictory in material particulars, and does not have a ring of truth in it. In our view, therefore, the same is neither reliable nor creditworthy.
5. It would also be relevant to observe that, there is no scientific evidence on record to corroborate the case of the prosecution qua the commission of offence of sexual assault by the respondent upon the prosecutrix.
6. It is settled law that the Appellate Court may only interfere in an appeal against acquittal when there are substantial and compelling reasons to do so. [Ref: “Muralidhar and Ors. Versus State of Karnataka reported at (2014) 5 SCC 730].
7. In State (Govt. of NCT of Delhi) vs. Kuldeep @ Kallu & Anr. Crl. L.P. 478/2018 reported as 2019 (1) JCC 298 (Del.), wherein Division Bench of this Hon’ble Court stated that:- “It is a settled law that while deciding a leave to appeal petition filed by the State, in case two views are possible, the High Court must not grant leave, if the trial court has taken one of the plausible views, in contrast thereto in an appeal filed against acquittal. Upon re-appraisal of evidence and relevant material placed on record, in case the High Court reaches a conclusion that another view can reasonably be taken, then the view, which favours the accused, should be adopted unless the High Court arrives at a definite conclusion that the findings recorded by the trail court are perverse, the High Court would not substitute its own views on a totally different perspective.”
8. Having heard the learned counsel appearing on behalf of the parties and perused the impugned judgment as well as perused the evidence and relevant material on record, we are of the considered view that the finding arrived at by the Trial Court cannot be said to be perverse.
9. For the foregoing reasons, we find no warrant to interfere with the findings arrived at by the trial court, in arriving at the conclusion that, the prosecutrix cannot be said to be a reliable witness and that, therefore, it would be wholly unsafe to base conviction of the respondent on her deposition.
10. The present petition for leave to appeal is accordingly dismissed. The pending application also stands disposed of.
(SIDDHARTH MRIDUL) JUDGE (MANOJ KUMAR OHRI)
JUDGE MARCH 18, 2019 sm/na