The Delhi High Court on Thursday (03/12/2020) in the case of Altaf Ahmed @ Rahul v. State comprising of a bench of a single bench of Justice Manoj Kumar Ohri while noting that there were material improvements in the statements of the child victim and her mother, set aside the conviction of an accused in minor's sexual assault case.
The case of the prosecution is that on 13.03.2016, FIR under Sections 376 IPC and under Section 4 of the POCSO Act was registered at P.S. Begumpur against the accused herein for committing a penetrative sexual assault upon the victim on the complaint of mother of victim. On 12.03.2016 S(Victim) was playing with her younger sister After some time, she(mother) heard the cry of her daughter S, she immediately came outside the room and saw her daughter coming while crying from the adjacent room and holding her pajami. After sometime Rahul who was present in the same room, came outside the room and went away. When she asked her daughter, she told that Rahul had sexually assaulted her.
The statement of the victim under Section 164 Cr.P.C. was recorded wherein she corroborated the incident. After completion of investigation, the charge-sheet was filed before the JJB as accused claimed himself to be juvenile.
The JJB vide its order dated 13.01.2017 held that accused was not child on the date of commission of offence. Thereafter, the present case was assigned to this Court.
The charge-sheet has been filed u/s 376 IPC and u/s 4 of the POCSO Act against the accused namely Altaf Ahmed and after hearing arguments on the point of charge, charge for the offence punishable under Section 5(m) of POCSO Act was framed against the accused by the Ld. Predecessor of this Court to which he pleaded not guilty and claimed trial.
Ms. Richa Dhawan, learned Standing Counsel, DHCLSC appearing on behalf of the appellant, has assailed the impugned judgment on the ground that the trial court failed to appreciate that the testimony of the child victim and her mother were not creditworthy as there were material improvements not only in the statements of the child victim but also, her mother Ms. ‘RV’. It was also contended that the testimony of the child victim was also not creditworthy and admissible as the child victim was tutored. It was next contended that material witnesses were not examined. As per the prosecution case, although at the relevant time, the child victim was playing with her younger sisters but the sisters were not cited as witnesses. Also, the landlord of the premises was deliberately not cited as a witness. Lastly, it was also contended that there was no medical corroboration in as much as no blood stain or blood spot was observed on the underwear of the child victim during her medical examination.
On the other hand, Ms. Meenakshi Chauhan, learned APP for the State, has supported the impugned judgment. Learned APP submitted that the child victim had consistently stated about the offence committed by the appellant and that her testimony is both creditworthy and admissible. In support, reliance was placed on the decisions in Panchhi & Ors v. State of U.P. reported as (1998) 7 SCC 177; State of U.P. v.Krishna Master & Ors. reported as (2010) 12 SCC 324 and Hari Om v. State (N.C.T.) reported as 2010 SCC OnLine Del 275. She also stated that the statements of the child victim were corroborated by her MLC as during medical examination, her hymen was found to be partially torn. Lastly, it was submitted that the presumptions under Sections 29 and 30 of the POCSO Act were applicable against the appellant which he was unable to rebut.
The Court referred to another aspect of the cross-examination of the child victim, wherein she had admitted that before coming to the Court, her mother told her as to what is to be stated in the Court.
The Court observed that while answering the Court questions, the child victim also stated that before being taken to the hospital, her mother had told her as to what is to be stated to the doctor.
The Bench noted "In the present case, not only there are material improvements in the statements of the child victim and her mother but there are also material contradictions as already observed. Furthermore, the child victim categorically stated that she was told by her mother about what to say in the Court."
To this, the Court said,
"The creditworthiness and the admissibility of the statement of the child victim and her mother is under challenge not only on the aspect of improvements but also on the aspect of tutoring. It is no longer res Integra that the sole testimony of a child victim, before being accepted should be evaluated very carefully. It should be devoid of any embellishment, improvement, or tutoring."
In light of the above discussion, the Court opined that the creditworthiness of the testimony of the child victim was in doubt.
"It cannot be said with certainty that her testimony does not suffer from the vice of tutoring. The testimony of the mother of the child victim is full of material improvements. There is no corroboration in the form of MLC or the FSL. In these circumstances, the appellant’s false implication cannot be ruled out," said the Court.
So, the court didn’t consider the deposition of the victim and her mother to be trustworthy and reliable and ordered the acquittal of the accused.
The deciding judge, Hon’ble Justice Manoj Kumar Ohri, while acquitting the accused, granted him the benefit of the doubt and ordered his immediate acquittal.
The bench ordered "The appellant is directed to be immediately set free if not required in any other case. The appeal is disposed of in the above terms."
Read Judgment @Latestlaws.com
