Delhi High Court
State vs Sanjay on 10 May, 2019
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 10th May, 2019
+ CRL.L.P. 484/2018
STATE ..... Petitioner
Through: Ms.Aashaa Tiwari, APP for State
versus
SANJAY ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J
1. The present leave petition has been filed under Section 378(3) of the
Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C')
challenging the judgment dated 24.03.2018 passed by the learned
Additional Sessions Judge, Special Courts (POCSO), North West,
Rohini Courts, New Delhi, acquitting the respondent-accused in FIR
No. 458/2014 registered with Police Station, South Rohini under
Sections 376(2)(i)(l) & (n) of the Indian Penal Code, 1860 (hereinafter
referred to as 'IPC') and Section 6 of POCSO Act.
2. Brief facts of the case, as noticed by the learned Trial Court, are as
under:-
"On 10.06.2014, victim N was sleeping in the jhuggi
at about 2:00 pm. The complainant came out of the
jhuggi to go for bathroom and her younger sister M
was playing outside the jhuggi. She went in the jhuggi
to sleep and immediately came out and told the
complainant that Sanjay Chacha (accused) is doing
something with victim. She entered the jhuggi and
saw victim lying on the bed and her pajama was
removed. The accused had opened the zip of his pant
and he was holding the legs of the victim and was
inserting his sus wali jagah in the susu wali jagah of
the victim. He immediately locked the zip and the
victim also put on her pajama. When she asked as to
what accused was doing, he said that he was repairing
the fan. The complainant immediately went to the
jhuggi of accused and shouted at his mother and sister
as to what the accused is doing with the victim. They
immediately came to her jhuggi and started scolding
the accused. The accused earlier also had done
wrong act with the victim on two occasions but the
mother of the victim had pardoned him as the wife of
the accused has already expired. This was third time
that accused has done this act with the victim and
hence his complaint was lodged."
3. On 12.06.2014, the statement of the victim under Section 164 Cr.P.C
was recorded with the help of one teacher from the deaf school,
Sector -4, Rohini, Delhi wherein she stated that he removed her salwar
when she was sleeping and forcibly made physical relationship.
4. During the course of investigation, the accused was arrested and he
was medically examined and pending report, the charge sheet was filed
and charges for the offence punishable under Section 6 of POCSO Act
and in the alternative offence punishable under Section 376(2)(l)
and(n) of the IPC were framed agaist the accused to which he pleaded
not guilty and claimed trial. In order to bring home the guilt of the
accused, the prosecution has examined 17 witnesses in all.
5. Statement of the accused was recorded under Section 313 of Cr.P.C
wherein he denied all the incriminating evidence against him. Accused
claimed that he is innocent and he has been falsely implicated in this
case. He further deposed that a complaint has been lodged by mother
of the accused against the mother of the victim and therafter the
present story was cooked up to falsely implicate the accused.
6. Learned counsel for the State has contended that the impugned
judgment dated 24.03.2018 passed by the learned Session Judge is
based on conjucture and surmises and the same is liable to set aside;
that the trial court has failed to appreciate that the testimony of PW-4
(prosecutrix) in correct prespective and has ignored the settled
provision of law, that in a rape case conviction of the accused can be
solely based on the testimony of the prosecutrix; that the trial court
failed to appreciate that the testimonies of eye witnesses, PW-8
(Megha/younger sister of the victim) and PW-9 (Complainant/sister of
the victim) have fully supported the case of prosecution and have also
proved that the victim was deaf and dumb both; that the trial Court
ignored the Scientific and Medical evidence on record which proves
the guilt of the accused person beyond reasonable doubt.
7. None appeared on behalf of the Respondent.
8. Heard learned counsel for the State and perused the material available
on record.
9. It is a settled principle of law that conviction can be based on the
sole testimony of the victim of sexual assault and if the evidence of
the prosecutrix inspires confidence, it must be relied upon without
seeking corroboration of her statement in material particulars.
At the outset, we deem it appropriate to examine the testimonies of
material witness i.e. PW-4 (Prosecutrix), PW-8 (Megha/younger sister
of the victim), PW-9 (Complainant/sister of the victim) and PW-13
(Mother of the victim). As per the story of the prosecution the
prosecutrix is deaf and dumb and the statement of prosecutrix under
Section 164 Cr. P.C. (Ex.-PW-3/A) was recorded with the help of
PW-3 (Rita Kanojia/Assistant Teacher) interpreter, brought by the
Investigating Officer, which reads as under:-
"1 - Apka naam kya hai?
A - Neha.
2. - Kya Hua aapke saath?
A - Usne Meri Salwar Utari jab mei so rahi thi aur
Jabardasti sharirik sambandh banae.
3. - Kahan so rahi thi?
A - Ghar mei."
The prosecutrix during her examination-in-chief deposed as under:-
"At this stage, Ms. Rita Kanojia has also been requested
to assist the Court.
Q - Batao accused ne apke sath kya kiya tha?
Ans. - The witness has made gesture which has
been interpreted by Ms. Rita Kanojia who stated that the
witness is stating that 'ki mein so rahi thi, accused ne
paijami nikal di'.
At this stage, the witness has been shown slags (legging)
which Ms. Kanojia is wearing and the witness has
responded by nodding her head, the gesture has been
interpreted by Ms. Rita Kanojia who state that the
witness was wearing a legging which was removed by
accused.
Q. - Uske baad kya hua tha?
Ans. - The witness has made gesture which has
been interpreted by Ms. Kanojia by stating that the
younger sister of the child (other than child K) had seen
the incident and that the said child went to call others."
10. PW-8 (Megha/younger sister of the victim) during her examination in
chief deposed as under:-
"Q. Phir kya hua?
Ans. Maine ghar me Sanjay ko dekha.
Q. Sanjay kya kar raha tha?
Ans. Sanjay meri behein Neha ko kheech raha tha.
Q. Aur kya kar raha tha?
Ans. Sanjay meri behein Neha ke sath gandi harkat kar
raha tha.
Court Ques. Sanjay apki behein ke sath kya gandi baat
kar raha tha?
Ans. Sanjay ne apni pant ki chain kholi hui aur meri
behein ki paijami uttari huyi thi.
Court Ques. Apki behein ki paijami kaisi thi?
Ans. Who elastic (slacks) wali paijami thi.
Q. Phir kya hua?
Ans. Usne meri behein ka muah bandh kar rakha tha
aur apna susu karnewala uske susu karnewali jagah par
dal raha tha.
Q. Phir kya hua?
Ans. Usne pankhe (fan) ka tar (wire) nikal liya tha.
Q. Phir kya hua?
Ans. Mein uski (Sanjay) ki maa ko bulane gayi thi"
11. PW-9 (Complainant) during her examination in chief deposed as
under:-
"Mein apni choti behein Megha Ke sath ghar ke bahar
10.6.2014 ko khel rahi thi. Uss samay 02:00 PM the.
Maine Megha Ko bola ki tu andar (inside the house) chali
ja aur so ja (go to sleep). Uss samay meri badi behein
Neha ghar par akeli thi aur so rahi thi. Meri behein
Megha ghar ke andar gayi aur darr gayi. Woh kar mujhse
boli ki dekho Sanjay Chacha kya kar rahe hai. Meri
behein Megha ne mujhe bataya tha ki Sanjay Chacha ne
apni pant ki chain kholi thi aur Neha ki slacks uteri huyi
thi (objected to being hearsay). Megha ne bataya ki
Sanjay apni susu karnewala Neha ki susu karnewali
jagah par dal raha tha. Mein ghar ke andar gayi aur
maine bhi yeh sab dekha tha.
Court Ques. Beta apne kya dekha tha?
Ans. Maine dekha ki Sanjay apni susu karnewala
Neha Ki susu karnewali jagah par dal raha tha.
Woh (Sanjay) mujhe dekh kar darr gaya tha. Usne
apne sir par towl dala (he put towel on his head) aur bola
ke keh dena ki mein pankha (fan) thi karne (repair) aaya
tha."
During her cross-examination the witness deposed as under:-
"Yeh baat sahihai ki mein apne aas pados ke ghar me
rehnewale logo ko janti hu. Ghatna ke samay aur uske
baad maine apne aas padosiyo ko nahi bulaya tha. Uss
din meri mummy kaam se sham ko 4 baje aa gayi thi.
XXXX XXX XXXX XXX
Mere ko policewali aunty ne ek paper padne ko diya tha.
Uss par maine jo bayan (statement) police ko di thi woh
likhi thi. Meri behin Megha ko bhi policewali madam ne
bataya tha ki aaj kya bolna hai."
12. PW-13 (Mother of the prosecutrix) during her examination in chief
deposed as under:-
"On 10th day of 6/7th month of year 2014, I and my
husband went to our respective work places. Our all
three daughters remained at home. My eldest daughter N
was sleeping inside the Jhuggi and my daughters K and
M were playing outside the jhuggi. My daughter K told
child M to go inside the jhuggi to sleep. When child M
went inside the room, she came out immediately and
informed child K that 'dekho andar Sanjay chacha kya
kar raha hai'. Child M informed child K that Sanjay
chacha was doing wrong act with child N.
Ques: What do you mean by wrong act?
Ans: Sanjay ne apni susu child N ki susu me dal di thi.
Child M came to call me at my work place and she
informed me about the aforesaid incident (objected to
being hearsay). Thereafter I reached home. I slapped
accused and his mother and sister started quarelling with
me. Accused fled away from there. Earliler also on two
occasions, accused had committed wrong act with my
daughter N but due to social stigma matter was not
reported to the police."
13. From the perusal of the aforesaid testimonies it transpires that there are
various contradictions and inconsistencies in the statement of these
material witnesses:-
a. The prosecutrix during her testimony stated that 'Usne
Meri Salwar Utari jab mei so rahi thi aur Jabardasti
sharirik sambandh banae' however during her
examination-in-chief she failed to depose who removed
her paijami.
b. PW-8 (Megha/younger sister of the victim) during her
examination-in-chief deposed that 'Sanjay ne apni pant
ki chain kholi hui thi aur meri behein hi paijami uttari
huyi thi. Woh elastic (slacks) wali paijami thi. Usne
poankhe (fan) ka tar(wire) nikal liya tha. Mein uski
(Sanjay) ki maa ko bulane gayi thi' to the contrary PW-9
(Complainant/sister of the victim) deposed that 'Meri
behein Megha ne mujhe bataya tha ki Sanjay Chacha ne
apni pant ki chain kholi huyi thi aur Neha ki slacks uteri
huyi thi (objected to being hearsay). Megha ne bataya ki
Sanjay apni susu karnewala Neha ki susu karnewali
jagah par dal raha tha. Mein ghar ke andar gayi aur
maine bhi yeh sab dekha tha'. The version of the both
the sisters are inconsistent. As per PW-8 on seeing her,
the accused stopped the alleged act and pretended to be
repairing the fan, however, as per PW-9 when she was
informed by PW-8 about the alleged offence, she entered
the jhuggi and she herself saw the accused committing
the same act with the victim. The prosecution failed to
explain that once on seeing PW-8, the accused had
stopped the alleged sexual assault then how PW-9 saw
the alleged sexual assault again.'
c. PW-8 (Megha/younger sister of the victim) during her
examination-in-chief deposed that 'Mein uski (Sanjay) ki
maa ko bulane gayi thi' but nowhere PW-8 has deposed
in her examination-in-chief that she had informed about
the alleged incident to PW-9.
d. As per the testimony of both the witnesses i.e. PW-8 and
PW-9, they were playing outside the Jhuggi and their
sister (prosecutrix) was sleeping inside the Jhuggi. The
version of both the witnesses appears to be at variance, as
in their testimonies they failed to disclose when the
accused gained entry inside the Jhuggi, while they were
playing outside.
14. Having discussed the testimony of the prosecutrix and other
prosecution witnesses, we deem it appropriate to examine the medical
and scientific evidence adduced by the prosecution. Dr. Priyanka
Dahiya, Senior Resident (OBS and Gynae), Dr. B.S.A. Hospital, Delhi
appeared on behalf of Dr. Ritwika Kaushik, who had examined the
victim on 11.06.2014 at 09:40 pm and proved the MLC as
(Ex.PW-6/A) and opined that 'the patient did not have any injury on
her genital area, though her hymen was found torn'.
Mr. V. Sankaranaravanan, Sr. Scientific Officer, FSL, Rohini
entered into the witness box as PW-15 and proved the FSL report as
(EX.-PW15-A) and (Ex.PW-15/B), the relevant portion of the FSL
report (Ex.PW-15/B) reads as under:-
" CONCLUSION
The DNA (Star analysis) profiling performed on the
source of Exhibit '1m (ii), i.e. micro-slide (of victim
Neha) and Exhibit '3' i.e. gauze cloth piece (of accused
Sanjay) was sufficient to conlude that the DNA profile of
source of Exhibit '3', i.e. qauze cloth piece (of accused
Sanjay) is dissimilar to the DNA profile from the source
oif Exhibit '1m (ii)', i.e. micro-slide (of victim Neha)"
15. Perusal of the MLC of the prosecutrix (Ex.PW-6/A) does not show
any forcible sexual assault on the prosecutrix. Moreover, the FSL
report (Ex.PW-15/B) also failed to establish the case of the
prosecution as the report clearly opined that 'the DNA profile of source
of Exhibit '3', i.e. gauze cloth piece (of accused Sanjay) is dissimilar
to the DNA profile from the source of Exhibit '1m (ii)', i.e. micro-slide
(of victim Neha)'.
16. In view of the above, the medical examination report and scientific
report does not lend any support to evidence of the prosecutrix. The
testimony of the PW-4 (Prosecutrix), PW-8 (Megha/younger sister of
the victim), PW-9 (Complainant/sister of the victim) and PW-13
(Mother of the victim) are inconsistent and contradictory to each other.
Moreover, as per the testimony of PW-2 (father of the prosecutrix) and
PW-13 (mother of the prosecutrix) on 10.06.2014 in the evening, there
was a quarrel between PW-13 and mother of the accused and on
11.06.2014 in the morning the mother of the accused had lodged a
complaint against both PW-2 and PW-13. Hence, the defence raised
by the accused that he has been falsely implicated in the present case
as her mother had filed a complaint against PW-2 and PW-13 cannot
be lost sight of as the FIR in the present case has been lodged on
11.6.2014 at 11:30 pm, approximately after 24 hours of the incident.
17. In the present case, on a cumulative reading and appreciation of the
entire evidence on record, we are of the considered view that the
evidences on record have been held to be unworthy of acceptance
because the same is found to be replete with infirmities. There are
considerable inconsistencies and discrepancies in the statement of the
witnesses, which consequently makes it unreliable. Therefore, the
prosecution has failed to establish the charges against the accused
punishable under 376(2)(i)(l) & (n) of the Indian Penal Code, 1860
(hereinafter referred to as 'IPC') and Section 6 of POCSO Act.
18. 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
there to 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 favor's the accused, should be adopted unless the
High Court arrives at a definite conclusion that the findings recorded
by the trial court are perverse, the High Court would not substitute its
own views on a totally different perspective.
19. Having regard to the principles laid down by the Apex Court in the
case of Ghurey Lal vs. State of U.P., reported at 2008 (10) SCC 450,
We do not find that there is any illegality or perversity in the reasoning
given in the impugned judgment. The learned trial court has taken a
holistic view in the matter and carefully analyzed the evidence of all
the witnesses.
20. Accordingly, no ground to interfere with the impugned judgment is
made out and the leave petition is dismissed.
21. Trial Court Record be sent back along with a copy of this order.
SANGITA DHINGRA SEHGAL, J
MANMOHAN, J
MAY 10, 2019
SU
