High Court of Delhi dismissed an appeal filed under Sections 383 and 374(2) of CrPC seeking leniency in reduction of sentence of conviction under Section 6 of the POCSO Act.
Observations were made by two-judge of bench of Justice Mukta Gupta and Justice Mini Pushkarna.
Brief Facts of the Case:
In the case of Mukish v. State, the appellant filed an appeal under Section 374(2) and Section 383 of CrPC against the judgment of trial court where he was convicted under Section 6 of the POCSO Act, for committing aggravated penetrative sexual assault to a 4-year-old girl. The appellant is the is the relative of the victim and is alleged to have committed rape of the 4-year-old at her premises when she was sleeping. Subsequently, the mother of the victim informed her husband about the act and that the girl is bleeding due to the assault. The father of victim informed the police about the same, after which the police approached victim’s premise and conducted the investigation, seized clothes of victim and relevant material and took the victim to the hospital where proper medical examination was done. Post which the appellant was arrested and was taken to the same hospital where multiple swabs were taken to conduct a DNA test, to prove the involvement of the appellant in the said crime. DNA test matched with the appellant and thereby he was convicted under POCSO Act and was sentenced life imprisonment with fine. Aggrieved by the said conviction, appellant filed an appeal before the Delhi High Court seeking reduction in the sentence awarded to him.
Appellant’s submissions:
Ld. Counsel for appellant submitted that both the parents of the victim gave contradictory assertions in cross examination and turned hostile, therefore prosecution failed to establish the guilt of appellant in the account of the said offence, and prayed that the sentence must be reduced.
It was further contended that the victim was not examined by the prosecution and that the DNA sample matched the appellant from the belongings seized because he was under a medical condition.
Counsel for petitioner put reliance on the judgments in cases of T.K.Gopal v. State of Karnataka, Nawabuddin v. State of Uttrakhand, and Ramher v. State (Govt. of NCT) of Delhi
HC’s Observations:
The High Court of Delhi observed that despite of the prime witnesses turning hostile during cross, other witnesses and police officials whose assertions are important to the case were examined and they corroborated with the assertions of other prosecution witnesses. The court also referred to the judgments of the Supreme Court in cases of Balu Sonba Shinde v. State of Maharashtra, Surendra Tiwari v. State of Madhya Pradesh, Jodhraj Singh v. State of Rajasthan and Radha Mohan Singh Lal Saheb v. State of U.P. and stated that “The law is very clear in this regard that evidence of hostile witness need not be totally rejected. It can be accepted to the extent his version is found to be dependable and is consistent with the case of prosecution or defense.”
The court found that the DNA test conducted matched with the appellant and the same was proved and confirmed by the concerned scientific officer which proves the case against him, also no supporting evidence was presented before the court to prove his medical condition. The court also negated the contention made by appellant that the victim was not examined as at such tender age she was not able to be testified orally and contended that the ld. Trial court rightfully convicted the appellant for such heinous crime of rape.
The court dismissed the appeal and upheld the decision of conviction by ld. Trial court.
CASE TITLE: Mukish v. State
CASE DETAILS: CRL.A. 114/2020
DECIDED ON: 19th May 2022
CORUM: Justice Mukta Gupta and Justice Mini Pushkarna
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