Delhi High Court

State vs Bunty on 22 January, 2020

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            Date of Decision: 22nd January 2020

+      CRL.L.P. 76/2020
       STATE                                                 ..... Petitioner
                    Through:        Ms. Aashaa Tiwari, APP for State with
                                    Insp. SI Kiran and SI Sunita, PS Ranjit
                                    Nagar
                           versus
       BUNTY                                                 ..... Respondent
                    Through:        Nemo.
CORAM:
   HON'BLE MR. JUSTICE MANMOHAN
   HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
                                    JUDGMENT

SANGITA DHINGRA SEHGAL, J (Oral) Crl.M.A. No.1346/2020 (Exemption) Exemption allowed subject to all just exception. Application stands disposed of.

CRL.L.P. 76/2020

1. By the present Leave Petition filed under Section 378 (3) of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') the State seeks leave to appeal against the judgment dated 18.10.2019 passed by the learned Additional Sessions Judge-01, Special Court (POCSO) Tis Hazari Courts, Delhi, whereby the respondent (accused before the Trial Court) was acquitted of the charges punishable under Sections 4/8 POCSO Act, 2012 and section 506 of the Indian Penal Code (hereinafter referred to as 'IPC').

2. The brief facts of the case, as mentioned by the learned Trial Court are reproduced as under:

"3. Accused Mr.Bunty has been prosecuted on the allegations that on 11.06.2013 in between 12:15 am to 04:00 am, at house of the accused at Pandav Nagar, Delhi within the jurisdiction of Police Station Ranjeet Nagar, he had committed sexual intercourse with the prosecutrix Ms. X, prosecutrix (minor girl aged about 16 years); on the aforesaid date, time and place, he, with sexual intent touched the breast of Ms. X, the prosecutrix; on the aforesaid date, time and place, he had threatened Ms.X, the prosecutrix with threat to her life.

4. The name, parentage, address and particulars of the prosecutrix and her mother are mentioned in the file and are withheld to protect the identity of the minor prosecutrix and they are hereinafter addressed as Ms. X and Ms. Y respectively, fictitious identities given to them.

5. The place of alleged incident is the house of the accused. Its details are mentioned in the file and are withheld to protect the identity of the prosecutrix as she is his neighbour.

6. After completion of the investigation, chargesheet was filed. After hearing arguments, charge for offences punishable under Sections 4 and 8 of the POCSO Act and Section 506 of the IPC were framed against the accused on 24.09.2013 to which the accused had pleaded not guilty and claimed trial."

3. In order to bring home the guilt of the accused person, the prosecution examined 9 witnesses in all. The incriminating evidence and circumstances were put to the accused person under Section 313 of Code of Criminal Procedure wherein he pleaded to have been falsely implicated in the present case and produced no witness in his defence.

4. Aggrieved by the impugned judgment, the learned APP for the state Ms. Aashaa Tiwari argued that the impugned judgment dated 18.10.2019 is based on conjectures, surmises and the learned Trial Court has not appreciated the testimony of the prosecutrix in its right perspective ignoring the well-settled proposition of law that the sole testimony of the victim in the case of sexual assault is sufficient to base conviction of the respondent. The learned APP further contends that the Trial Court failed to appreciate the fact that the Prosecutrix in her deposition supported the case of prosecution and clearly deposed on the line of her complaint (Ex. PW2/A) wherein she has narrated the entire incident in detail.

5. Adding to her submissions, learned APP for the state contended that since the age of the prosecutrix is below 18 years, the Learned Trial Court erred in acquitting the respondent for the offence punishable under the POCSO Act.

6. We have heard the learned APP for the state at length and perused the available material on record.

7. At the outset, it is relevant to examine whether the provisions of POCSO Act are attracted to the present case or not. In this context, the trial court while dealing with the case has held that:

"43. Here, it would be also pertinent to mention that the affidavit of mother of prosecutrix (Ex.PW2/C) filed in the school at the time of admission of the prosecutrix is not attested by Notary or Executive Magistrate. Her birth certificate was also not filed. Thumb impressions and signatures in Hindi of Ms. Y, mother of the prosecutrix (PW-5) are on her affidavit (Ex.PW2/C) but she has not put her signatures on her evidence recorded before the

Court which creates a doubt regarding the genuineness of her signatures on the affidavit. No explanation has been furnished by the prosecution regarding the affidavit nor being notarized nor attested and regarding the signatures on the affidavit.

44. Ms. Y, mother of the prosecutrix (PW-5) has deposed that she did not know the date of birth of the prosecutrix and that it is correctly mentioned in the school records. The prosecution has failed to furnish any explanation as to how the date of birth of the prosecutrix could be correct in her school records when her mother did not even know the date of birth of the prosecutrix and it was the mother who had got the prosecutrix admitted. She did not even know the date, month and year of the incident and deposed it was about three years ago (her evidence was recorded on 23.01.2018 and the incident occurred on 11.06.2013 which is after more than four and a half years and not three years).

45. Therefore, it cannot be said with certainty that the prosecutrix was a minor and below 18 years of age on the date of the alleged offence.

46. The evidence of the prosecution indicates that Ms.X. prosecutrix (PW-2) was not below 18 years of age at the time of commission of the alleged offences."

8. The prosecution in order to prove the age of the prosecutrix has examined the principal of the school, Ms. Usha Arora as PW-2 who deposed as under:

"I am working as Principal in the above said school. I have brought the admission and withdrawal register along with admission form register of the year 2001. Student X D/o xxxxx was admitted in the school in class 1st on 6.8.2001 vide admission No. 5388. Her date of birth as per the school record is 1.8.96. True photocopy of admission and withdrawal register is Ex.PW2/A and

the photocopy of admission form is Ex.PW2/B and photocopy of affidavit of mother is Ex.PW2/C. (OSR). xxxxx by Shri G.L. Soni, Advocate for the accused. It is correct that at the time of admission no birth certificate of the X was filed along with the application. Affidavit Ex.PW2/C is not attested by my Notary or by any Executive Magistrate."

9. From the perusal of the testimony of PW-2 (Ms. Usha Arora), we find that on the basis of an affidavit given by the mother of the prosecutrix, the date of birth 01.08.1996 was recorded in the school admission register. However, the testimony of PW-2 (Ms. Usha Arora) reflects that affidavit was not even notarized. Moreover, the record reflects that no birth certificate of the prosecutrix was produced by the parents of the prosecutrix at the time of gaining admission in the school. Besides the school register, the prosecution also placed the family ration card on record according to which, the date of birth of the prosecutrix is 1997 which was also handwritten as 1995.

10. In addition to the aforesaid, the prosecution has placed reliance on the testimony of PW-4, the mother of the prosecutrix who has deposed that:

"2. I do not know the date of birth of the prosecutrix. Her date of birth is mentioned in her school records and same is correct. I got her admitted in the school."

11. The perusal of the testimony of PW-4 (Mother of Prosecutrix) reflects that her deposition lacks conviction as to the date of birth of the prosecutrix and can not be the basis to ascertain the age of the

prosecutrix. Moreover, the MLC of the prosecutrix further contradicts the stand of the prosecution wherein she has herself mentioned her age as 18 years. The relevant portion of the MLC has been reproduced here:

"History was given by the patient. According to patient she had sexual contacts with her neighbor Bunty married man since last one and half year and last sexual contacts in morning today. No H/o physical assault it was consensual sexual contacts acc. to patient. H/o vaginal penetration +. No H/o changing clothing or bathing or vaginal douching. No H/o any use of condom. No H/o any conception. It was complained by pt (sic.) Rape. According to pt. she is 18 years old & 16 years according to the ration card brought by mother."

12. Hence, the school record, MLC and other documents along with the prosecution witnesses produced by the prosecution reflect that there is no certainty as to the date of birth of the prosecutrix and the prosecution failed to establish the age of the prosecutrix at the time of incident.

13. The learned APP for the state has further contended that the prosecutrix had cogently stated about the commission of the offence by the respondent and had deposed on the line of her complaint (Ex. PW-2/A). She further argued that there exists no infirmity in the testimony of the prosecutrix and it can be the sole basis for deciding the culpability of the respondent. The learned trial court while dealing with the testimony of the prosecutrix has held as under:

"78. Ms. Y, mother of the prosecutrix (PW-5) has deposed that "The prosecutrix told me that she had received a call from accused Bunty at about 12 midnight

that his wife was calling her as she had some work with the prosecutrix" and then she went there and the accused committed the offences against her. The fact that the prosecutrix did not even care to inform her family about such a call and preferred to go to the room of the accused without the knowledge of her family clearly shows that she was very much willing to go to the accused in the middle of the night.

79. Ms. X, prosecutrix (PW-2) has not deposed about the alleged threats. The prosecutrix has neither elaborated the details, words and manner in which the accused or his father had threatened and what was the impact of the alleged threats upon her. Then how the prosecutrix got scared to the alleged threats is not believable. Merely making a bald allegation that she was threatened does not suffice for convicting the accused as there was no reason why she could not have approached the police earlier. The fact that she chose to remain silent, only shows that there was no danger or any threat. There should be some positive corroborating evidence. Her conduct, on the other hand, shows that she herself was in the company of the accused with her consent.

80. It is clear from the statement under section 164 of the Cr.P.C. of the prosecutrix (Ex.PW2/B) that she had herself gone to the accused and whatever physical relations were established between them, were with her consent. This fact makes the prosecution version very doubtful.

81. The prosecutrix apparently did not raise any alarm or shout for help or try to escape from the clutches of the accused when he was allegedly committing the offences and no explanation for the same is coming forth from the prosecution. A normal reaction would have been to immediately shout for help or approach the persons available and telling them about such an incident. The same indicates that the prosecutrix was with the accused with her free consent."

14. It is a settled principle of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence, when the testimony of a victim of sexual assault instills confidence in the Court. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the victim is not a requirement of law but a guidance of prudence under the given circumstances. In State of Himachal Pradesh Vs. Manga Singh reported in 2018 (15) SCALE 895, the Apex Court has observed as under: -

"11. The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law; but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix.

12. It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the 'probabilities factor' does not render it unworthy of credence. As a general rule, there is no reason to insist on corroboration except from medical evidence. However, having regard to the circumstances of the case, medical evidence may not be available. In such cases, solitary testimony of the prosecutrix would be sufficient to base the conviction, if it inspires the confidence of the court."

15. In view of the settled law, we shall now examine whether the evidence adduced by the prosecution, particularly the testimony of the victim is trustworthy, credible and can be relied upon or not. The prosecutrix in her statement under section 164 of the Cr.P.C has deposed as below:

"I have asked certain question to the victim/prosecutrix and I am satisfied that she is making the statement voluntarily and is in fit state of mind and depose but she also understands the sanctity of oath, so I proceed to record the statement of the witness. Statement of X D/o Sh. xxxxxx R/o B-370, Katputli Colony, Pandav Nagar, New Delhi.

ON SA Mai Raat Ko Bunty Se Milne Gayi Thi Kiyonki Unhone Bulaya Tha, Toh ssMeri Mummy Aur Papa Ne Mujhe Maara Tha. Mai Kuch Nahi Bolna Chahti Aur Case Khatm Karna Chahti Hun. Bunty Ne Shadi Karne Ka Wada Kiya Hai. Wah Mere Se Shadi Kar Le Bahar Aakar Aur Shadi Ke Liye Mana Na Kare. Beshak Agar Wah Shadi Na Kare Toh Ander Daal Dena. Us Raat Jo Hua Wah Hum Dono Ki Marzi Se Hua. Mai Chahti Hun Wah Bahar Aa Jaye Aur Uske Parents Use Shadi Ke Liye Mana Na Kare. Bunty Ki Shadi Pahle Ho Chuki Hai Par Wah Talak Lena Chahta Hai. Unki Aapas Me Banti Nahi Hai. Bunty Ne Bola Hai Ki Wah Talak Lekar Mujhse Shadi Karega."

16. In her deposition before the court, PW-1(Prosecutrix) has deposed as under: -

"I live at the above said address with my parents and brothers and sisters. My father works as Private Driver. My date of Birth is 1.8.1996. I have studied up to 4th class in Govt. school situated in Pandav Nagar.

On 11.6.13, I was present at my house. In the night at 12 accused Bunty present in the court today (correctly identified) who lives in our neighbourhood made a telephone call on my mobile phone No.xxxxxxxx44 and asked me to come to his house as his wife was not well. I reached in the room of the accused situated on the first floor. When I reached there accused closed the door and pushed me on the bed and has forcible sex (rape) with me. Accused threatened to kill me if I disclosed the incident to anyone. I became afraid. When the accused went to sleep I got the chance to escape and reached my house. I mustered the courage and informed my mother about the incident. My mother informed my father and my father made a telephone call on 100 number. The mobile phone number of Bunty is 9899124374. Police came at our house. Police recorded my statement in presence of my mother. My statement is Ex.PW2/A which bears my signature at point A. I was got medically examined at Lady Harding Hospital. In the hospital my underwear and the salwar kameej were seized by the doctor. After some days I was produced before Ld. MM for recording of my statement U/s 164 Cr.P.C.

xxxx xxxx xxxx xxxx I received a call at about 12.15 a.m. on 11.6.13. When I received the call, my parents were in house and they were sleeping. I did not inform my parents before going to the house of the accused. The main gate of the house of the accused was opened. The wife of the accused was not present in the room. Immediately accused closed the door so I could not go out. I had tried to raise alarm when the accused closed the door. There are windows in the room. The cooler is installed in one of the window. I did not went upstairs with the IO when the site plan was prepared.

xxxx xxxx xxxx xxxx

It is wrong to say that I wants to marry with the accused. Ms. Komal D/o Shri Parminder is my friend and she is

not knowing my relationship with the accused. I know Ms. Mamta the sister of the accused. I do not know the age of the Mamta but she was elder to me. It is wrong to say that I used to make a missed call to the accused and on this the accused used to call me and then I used to go to the accused. It is wrong to say that I am deposing falsely at the instance of my parents."

17. Hence, it is evident from the depositions of the prosecutrix that there exists inherent discrepancies, improvements and embellishments in her statements. In her statement under section 164 of the Cr.P.C., she has unequivocally, without any undue influence has deposed that "Us Raat Jo Hua Wah Hum Dono Ki Marzi Se Hua." but to the contrary, she controverts her statement before the court wherein she deposed that the respondent had forcible intercourse with the prosecutrix. Hence, there exists no cogent reason to rely solely on the testimony of the prosecutrix in order to convict the respondent. Moreso, even if we read the deposition of the prosecutrix along with the deposition of other prosecution witnesses, there exists certain inconsistencies between the two. We deem it appropriate to refer to the deposition of the mother who was examined as PW-4 who deposed that:

"2. I do not know the date of birth of the prosecutrix. Her date of birth is mentioned in her school records and same is correct. I got her admitted in the school.

3. I do not know date, month and year of the incident. However, about three years have been passed.

4. I know accused Bunty as he lives in my neighbourhood.

5. Accused Bunty is present in the Court today and I identify him. (witness has correctly identified the accused).

6. On that day at about 4.00 am, when I woke up I found that my daughter i.e. prosecutrix was missing from home. There was some noise coming from outside on which I and my family came out of my house. It was my daughter i.e. prosecutrix who was making the noise. She told me that she had received a call during the night from the wife of the accused who had called her to her house. The prosecutrix had gone to the house of accused at night. The prosecutrix also told me that the accused had torn her clothes and had raped her. During the commission of offence by accused Bunty, his wife was present in his house. I had seen that the clothes of the prosecutrix were torn. I also saw that accused Bunty had run away from there.

xxxxxxx by Mr.G.L. Soni, counsel for the accused.

It is correct that the accused is my neighbour. It is correct that there was a dispute between us as the flow of the waste water from the house of the accused was towards my house. It is wrong to suggest that there was a dispute between my family and the family of the accused due to the smoke coming from the house of the accused towards my house."

18. Hence, from the conjoint reading of the testimony of the prosecutrix along with the testimony of the PW-4 (Mother of Prosecutrix), it transpires that the prosecutrix had deposed that "When the accused went to sleep, I got the chance to escape and reached my house. I mustered the courage and informed my mother about the incident."

whereas to the contrary, the mother of the prosecutrix (PW-4) has deposed that "On that day at about 4.00 am, when I woke up I found that my daughter i.e. prosecutrix was missing from home. There was some noise coming from outside on which I and my family came out of my house. It was my daughter i.e. prosecutrix who was making the noise."

19. Hence, in terms of the aforesaid discussion, we uphold the finding of the trial court that "A normal reaction would have been to immediately shout for help or approach the persons available and telling them about such an incident. The same indicates that the prosecutrix was with the accused with her free consent" and find no reason to interfere with the same.

20. It is settled law that any acquittal order cannot be lightly interfered with by the Appellate Court, though it has wide powers to review the evidence and to come to its own conclusion. Further, the power to grant leave must be exercised with care and caution because the presumption of innocence is further strengthened by the acquittal of an accused. The Apex Court while dealing with the powers of an appellate court in an appeal against acquittal, in Sampat Babso Kale and Ors. vs. The State of Maharashtra reported in AIR 2019 SC 1852 held as under: -

"7. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every Accused person gets strengthened when such an Accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court

which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, laid down the following principles:

42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal

jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the Accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."