Delhi High Court
State (Nct Of Delhi) vs Phool Chand on 20 September, 2017
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: September 20, 2017
+ CRL.L.P. 16/2017
STATE (NCT OF DELHI) ..... Petitioner
Through: Mr.Kewal Singh Ahuja, APP
for the State
versus
PHOOL CHAND ..... Respondent
Through: None.
PRATIBHA RANI, J. (Oral)
1. The State is seeking leave to appeal impugning the judgment
dated 3rd March, 2016 passed by learned Addl. Session Judge in
Session Case No.151/2013 whereby the Respondent Phool Chand was
acquitted of the charges under Section 354A/509 IPC & Section
11(1)/12 of POCSO Act in FIR No.115/2013, registered at PS Ashok
Vihar.
2. The grievance of the State is that the statement of the child
victim/complainant (PW-3) was duly supported by her mother (PW-4)
& father (PW-6) and was sufficient to prove the case against the
respondent/accused beyond reasonable doubt. However, learned Trial
Court has failed to appreciate their testimony in correct perspective
and acquitted the respondent on non-existent grounds.
3. Mr.Kewal Singh Ahuja, learned APP for the State submitted
that in this case the respondent/accused was the neighbour of the
complainant and there is no dispute about his identity. The delay was
duly explained as the case was registered after the father of the child
victim reached the spot The testimony of the child victim to the
extent that she had seen the accused taking out his private part and
showing to her, could not have been disbelieved by the learned Trial
Court as she had no motive to get the accused falsely implicated.
4. Learned APP for the State has also referred to the statement of
the Court witness child 'N' (name withheld to conceal her identity)
who was with the complainant child (PW-3) when the incident had
taken place. CW-1 has admitted that she had come to the Court at the
instance of the defence counsel Mr.S.K.Senger and this was required
to be appreciated by the learned Trial Court that she was deposing
under the influence of the defence counsel.
5. The case FIR No.115/2013 was registered at PS Ashok Vihar on
the statement of the child 'P' (name withheld to conceal her identity)
wherein she has narrated the incident as under:
"Jo main v meri saheli 'N' bhi tanker ke paas pani lene
ke liye khade the. Jo hamara padosi neta uncle ne jab
hum dibbe le kar apni jhuggi me jaa rahi thi. To vahi
neta uncle ne pant khol kar apna peshaab vala dikhaya
aur humare ko kuch nahi bola."
6. The statement of the child victim was recorded under Section
164 Cr.P.C. During her deposition before the Court as PW-3 she
made certain improvements by stating that when she reached near the
house of neta uncle she kept her dibba containing water on the road.
When she was questioned about the incident she stated as under:
"Q. Phir kya hua?
Ans. Neta uncle kabhi mujhe apne is darwaje se aur
kabi us darwaje se apni pant khol kar apna susu karne
wala dikha rahe the."
7. Another child 'N' who was accompanying PW-3 when
examined by the Court as CW-1 stated as under:
"Q. Beta us din jab aap dono paani lekar aa rahe the to
accused Phool Chand @ Netaji joki apne ghar ke bahar
khada tha, ne appko or child victim P ko apna susu karne
wala ang dikhaya tha?
A. Ji haan kyoki child victim P mujhse aage the to
usne use dekha tha par maine nahe dekha."
8. During cross-examination by learned APP for the State, she
stated as under:
"xxxx
...............Victim Child P ab bhi usi gali me rehti hai
jaha me rehti hai. Ye kehna galat hai ki Neta uncle apni
pant khol kar apna susu dikha rahe the to maine bhi
dekha tha."
9. The Prosecution has examined 13 witnesses in all to prove its
case. The accused person in his statement under Section 313 Cr.P.C.
denied the case of prosecution and pleaded his innocence.
10. It has been held and reiterated in numerous cases by the
Hon'ble Supreme Court that the High Court's jurisdiction in
examining a petition for leave to appeal is confined to considering
whether the judgment impugned before it raises substantial and
compelling questions which ought to be gone into for the purpose of
granting a leave. The law makers in their wisdom did not permit the
State to prefer an appeal against the acquittal by a competent court as
it was to be considered as an affirmation of an accused's innocence.
In these circumstances, the authorities have primarily ruled that the
expression 'substantial and compelling reasons' would extend to only
grave misappreciation of evidence, grave misapplication of law and
adoption of an approach by the trial court which would lead to
miscarriage of justice.
11. The law with regard to the grant of leave is well settled by
catena of judgments. Leave to appeal can be granted where it is
shown that the conclusions arrived at by the trial court are perverse or
there is misapplication of law or any legal principle. The High Court
cannot entertain petition merely because another view is possible or
that another view is more plausible.
12. In the case of State of U.P. vs. Nandu Vishwakarma AIR 2009
SC 3188, it was observed that 'when on the basis of the evidence on
record two views could be taken - one in favour of the accused and the
other against the accused - the one favouring the accused should
always be accepted'.
13. The impugned judgment has been examined in the light of the
above legal position.
14. After considering the testimony of the prosecution witnesses the
accused was acquitted by learned Addl. Sessions Judge for the
following reasons:
"35. I am conscious of the settled preposition of law that
conviction can be based on the sole testimony of a child victim
provided it inspires the confidence of the Court and appears to
be free from blemish and there are no chances of any kind of
tutoring. In this case because of the material improvements
made by the child victim in her various statements and child N
having not supported her allegations it would be highly unsafe
to place reliance upon her evidence"
15. In the instant case at the time of reporting of the FIR the
statement of the child victim was only to the extent that ".....To vahi
neta uncle ne pant khol kar apna peshaab vala dikhaya aur humare ko
kuch nahi bola". PW-3 substantially improved her statement at the
stage of recording of statement under Section 164 Cr.P.C. as well
while deposing before the Court. CW-1 'N' who is also a child and
was with PW-3 'P' at that time, did not see the respondent showing
his private part.
16. There are also material contradictions in the statement of the
mother Smt.Ramwati (PW-4) and the father Sh.Radhey Shyam
(PW-6) of the child victim as to what happened when PW-3 'P'
reached home and reported the matter.
17. Learned trial Court has acquitted the accused/respondent giving
him benefit of doubt. CW-1 child 'N' was neither produced by the
defence counsel Mr.S.K.Senger nor there is material to gather that he
tried to influence her (CW-1). It is a matter of record (as referred to in
para no. 32 of the judgment) that to elicit the truth the child 'N' was
summoned by the Court as Court witness, but she did not support the
case of the prosecution.
18. Thus, I do not find it to be a fit case to grant leave to appeal.
Accordingly, the leave petition is hereby dismissed. Trial Court record
be sent back forthwith along with a copy of this order.
PRATIBHA RANI, J.
SEPTEMBER 20, 2017
'hkaur'
