1 Neutral Citation Number 2022/DHC/005249
$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ CRL. A. No.1062 of 2017
Between:-
DIL BAHADUR S/O SH. BHAKT BAHADUR
R/O T-152, RAJPURA, GUR MANDI,
MODEL TOWN, DELHI.
ALSO AT: VILL. SHERA, WARD NO. 2,
P.O.MARTADI, DISTT. BAJURA KANDA,
NEPAL
PRESENTLY CONFINED IN C.J.-03,
TIHAR JAIL, NEW DELHI .....APPELLANT
(Through: Mr. Ankur Sood, Advocate alongwith Ms. Bheeni
Goyal, Advocate)
AND
STATE (GNCT OF DELHI) .....RESPONDENT
(Through: Mr. Utkarsh, APP for State)
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% Pronounced on : 01.12.2022
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JUDGMENT
1. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as „Cr.P.C.‟) is directed against the judgment of conviction dated 10.08.2017 and order on sentence dated 17.08.2017, passed by the learned Additional Sessions Judge-01, Special Court, POCSO Act, (North) Rohini Courts, Delhi, with Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33 2 Neutral Citation Number 2022/DHC/005249
reference to Sessions Case No. 58863/16, wherein, the appellant has been convicted for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as „POCSO Act‟) and under Section 452 of the IPC. Vide order on sentence dated 17.08.2017, the appellant has been sentenced as under:-
"
1. For the Rigorous imprisonment for a period of offence u/s 6 Ten Years, alongwith a fine of Rs.
of the 30,000/-. In default, a payment of fine,
Protection the convict shall undergone Simple
of Children Imprisonment for 60 days.
from Sexual
Offences
Act,2012,
(POCSO
Act);
2. For the Rigorous Imprisonment for a period of
offence Three Years, alongwith a fine of Rs.
under 5,000/-. In default of payment of fine,
Section 452 the convict shall undergo Simple
of IPC Imprisonment for 30 days.
3. Both the sentences shall run concurrently.
4. Benefit of section 428 Cr.P.C. is extended to the convict".
2. Learned counsel appearing on behalf of the appellant submits that the appellant is innocent and has been falsely implicated in the present case. According to him, the husband of the victim‟s mother was estranged and used to consume liquor with the accused, therefore, at the instance of the mother of the victim, the instant case has been registered. He submitted that there is unexplained delay in lodging the FIR. The MLC does not corroborate the case of the prosecution. The testimony of the victim is full of contradictions and is completely Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33 3 Neutral Citation Number 2022/DHC/005249
unreliable. He further submits that the statements of the witnesses are replete with inconsistencies, and, therefore, the appellant deserves to be acquitted.
3. Learned counsel for the appellant has placed reliance on the decision of the Hon‟ble Supreme Court in the matters of Rajeevan v. State Kerala1, Padam Singh v. State of U.P.2, Raja Ram v. State of Rajasthan3, Mukhtar Ahmad Ansari v. GNCTD4, Sadashiv Ramrai Hadbe v State of Maharashtra5& the decision of this court in the cases of Prem Pal v. State of NCT of Delhi6, Raj Swaroop v. Delhi7, State v. Sohan Lal8, Babu Lal v. State9, Dilshad v. State10, and Atender Yadav v. GNCTD, Delhi11.
4. Learned APP for the State, on the other hand, has opposed the prayer. He submits that the judgment of conviction and sentence passed by the court below is strictly in accordance with law and the same does not call for any interference. According to him, the prosecution has been able to successfully prove its case beyond reasonable doubt, minor contradictions and omissions cannot be the ground to imply that the prosecution story is false. He further submits that the child victim remained consistent in her statement that she was subjected to sexual assault. While taking this court through the evidences and documents, learned APP for the State submits that there is no material contradictions in the oral and documentary evidence. He, therefore,
1 (2003) 3 SCC 355 2 (2000) 1 SCC 621 3 2005 5 SCC 272 4 (2005) 5 SCC 258 5 (2006) 10 SCC 92 6 2016 SCC OnLine Del 1595 7 2012 (131) DRJ 3 SC 8 (2011) SCC OnLine Del 1650 9 2010 SCC OnLine Del 1353 10 2011 SCC OnLine Del 1984 11 2013 SCC OnLine Del 4322 Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33 4 Neutral Citation Number 2022/DHC/005249
submits that the appellant does not deserve to be acquitted and the order of conviction and sentence deserves to be affirmed.
5. I have heard Shri Ankur Sood, learned counsel through the Delhi High Court Legal Services Committee assisted by Ms. Bheeni Goyal, learned counsel appearing on behalf of the appellant and Shri Utkarsh, learned APP for the State and perused the record.
6. The prosecution‟s case is that on 01.01.2016 at 12:35 hours, an FIR No. 002/2016 (Ex. 12/A) came to be registered at Police Station Model Town, Delhi, for the offence punishable under Section 376 of the IPC and Section 6 of the POCSO Act, 2012. The FIR was registered on the basis of the statement of the child victim. It was stated in the FIR that the child victim along with her two brothers and her mother were residing in a rented room, in Gur Mandi, Rajpura, Model Town, Delhi which belonged to one Smt. Tara Wati W/o Sh. Mahesh. The accused was also residing in another room rented out to him by the same landlady. The mother of the child victim was running a tea stall and used to leave for work at 8 A.M. and return back at 8:00- 8.30 PM. On 29.12.2015, the school of the child victim was closed and her mother left the house in the morning instructing her to go to her Nani‟s house with her younger son. The house of her Nani was close to their rental premises. The child victim went to her Nani‟s house and at around about 12 Noon, she returned back to her house, and was doing some domestic work. After completing the work, she saw that the neighbour, whom she only recognized by face, was sitting at her bed. The said person suddenly got up and closed the door and bolted it from inside. The FIR further states that thereafter the accused removed the Pajami of the victim and inserted his finger into her urinating part. She started crying due to pain. The said person, left her and ran away Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33 5 Neutral Citation Number 2022/DHC/005249
from the house. The FIR further states that the child victim returned to her Nani's house and, thereafter, did not inform her mother out of fear. However, she started suffering from very high fever, and on the next day, when her mother inquired from her, she told her the entire incident. The child victim‟s mother tried to search the accused, however, she could not find him. On the next day, during night hours, the child victim saw the accused outside the house and told her mother after identifying him. The mother of the child victim apprehended him and his name was revealed as Dil Bahadur (appellant herein). Various people from the public gathered there and a call was made to the police.
7. The prosecution story further shows that on information being received by the police, SI Sandeep went to the spot and he met the child victim and her mother. The accused was handed over to him. SI Sarita also came to the spot, and the victim alongwith her mother and the accused were handed over to her. The child victim was taken to BJRM hospital, where her MLC was prepared and her internal medical examination was also conducted with the consent of the child victim's mother. The personnel from NGO were called, and after counselling of the child victim and her mother, the statement of the child victim was recorded by the IO on the basis of which, Rukka and site plan were prepared by the IO and thereafter, the FIR was registered.
8. The accused was interrogated by the IO and was arrested vide arrest memo and his personal search was also conducted. The accused was medically examined at BJRM Hospital. The statement of the child victim under Section 164 of the Cr.P.C was recorded. The certificate with respect to date of birth of the child victim was also collected and after the completion of the investigation, chargesheet for the offences punishable under Sections 376/452/506 of the IPC & Section 6 of the Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33 6 Neutral Citation Number 2022/DHC/005249
POCSO Act was filed before the Competent Court. The appellant was charged with the offence under Section 6 of the POCSO Act, alternatively under Section 376(2) (i) and under Section 252 of the IPC. The appellant pleaded not guilty and claimed trial.
9. The prosecution examined 14 witnesses. Rajni Gulati, Principal, Nigam Pratibha Co. Education School, Roop Nagar, Delhi has been examined as PW-3, who produced the Admission/Withdrawal Register maintained with the School. The child victim got admitted on 02.04.2012 vide Admission No. 3235 in Class 1. According to Admission Register, the date of birth of the child victim is 24.07.2006. A copy of the Admission Register has been marked as Ex.PW3/A. Copy of the admission form filled up by the mother of the child victim has been marked as Ex.PW3/B. Copy of the affidavit given by the mother of the child victim at the time of admission has been marked as Ex.PW3/C and the copy of the certificate issued by Principal of the School in respect of date of birth of the child has been marked as Ex.PW3/D. The victim is, therefore, found to be minor on the date of the alleged incident.
10. Dr. Swati Dubey, Sr. (Gynae), BJRM Hospital has been examined as PW-6, who deposed that on 31.12.2015 at about 11:00 p.m., the child victim aged about 8 years was shifted to Gynae department after being medically examined initially in casualty. The detailed note made by PW-6 on the MLC is marked as Ex. PW-6/A. Ms. Rajani Ranga, learned MM, North, Rohini, Delhi, was examined as PW-7, who deposed that on 02.01.2016 on assignment, an application for recording statement of the child victim, the child victim was produced before her on 02.01.2016 and her statement under Section 164 of the Cr.P.C. was recorded. The statement under Section 164 of Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33 7 Neutral Citation Number 2022/DHC/005249
the Cr.P.C. has been marked as Ex.PW1/B. Constable, Gajraj, has been examined as PW-8, who deposed that on receipt of call from a lady regarding misbehaviour with her daughter, he entered the information in the computer and filled the same in PCR form, being marked as Ex. PW8/A. Dr. Anuj Kumar, Medical Officer, BJRM Hospital, has been examined as PW-10 who deposed that he prepared the MLC (Ex.PW8/C) of the child victim and referred to Sr. Gynae for further examination. Dr. Swatantra Rao, SR, Urologist, RML Hospital, Delhi, has been examined as PW-11, who conducted the potency test of the accused and as per record given by him, which is marked as Exhibit PW11/A, there was nothing to suggest that the accused was incapable of performing sexual intercourse. ASI Jai Bhagwan, P.S. Model Town, has been examined as PW-12, who deposed that he registered the FIR (Ex. PW12/A). Constable Sunil Kumar, P.S. Model Town, Delhi, SI Sandeep Singh, P.S. Adarsh Nagar, Delhi and SI Sarita, P.S. Bharat Nagar, Delhi, have been examined as PW-9, PW-13 & PW-14 respectively, who are the witnesses of investigation. Mahesh, the husband of the owner of the house, has been examined as PW-4, who deposed that the accused as well as mother of the child victim were staying in the building, which was owned by his wife. He stated that he had cordial relations with the accused and he admitted that the mother of the child victim is a quarrelsome lady by nature and had not paid rent for six months. Tarawati, the owner of the property has been examined as PW5. She deposed that when she had asked the child victim whether the accused had done anything wrong with her, the child victim replied that the accused had not committed any wrong with her. Tarawati (PW-5) was re-examined at the instance of the prosecution and in her re-examination she admitted that her statement under Section 161 of the CrP.C. was recorded as Exhibit PW5/A but Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33 8 Neutral Citation Number 2022/DHC/005249
she did not state with respect to the fact that the child victim had earlier told her that the accused did not commit any wrong with her.
11. The child victim and the mother of the child victim have been examined as PW-1 & PW-2 respectively. In her examination-in-chief, the child victim PW-1, deposed that in the absence of her mother and siblings, the accused, who was residing near her house, used to come to her house and after bolting door from inside, used to insert his finger in her urinating part. She further deposed that the accused used to threaten her by saying that her mother is not residing with her and he would kill her mother if she disclosed the incident to anyone. The child victim in her cross-examination denied tutoring or any false deposition.
12. The mother of the child victim (PW-2) explains that when her daughter disclosed about the incident, she tried to find out the culprit, but she could not succeed as the child victim had only disclosed her that offender is having moustache. The house of the accused was stated to be near the house of the child victim and there were many other tenants residing adjoining their house. Since all the occupiers of the adjoining house were working as chowkidars, therefore, it was difficult for her to recognize the accused. She explains that since she was not aware firstly, with respect to the incident; and secondly, with respect to the culprit, therefore, she could not lodge the complaint with the police and it is only when the child victim pointed out that the appellant is the accused who committed the crime, she caught hold of the appellant and made the call to the police. Accordingly after registration of the FIR, the investigation was carried out.
13. The definition of "aggravated penetrative sexual assault" is given in Section 3 of the POCSO Act. The same is reproduced as under:-
Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33 9 Neutral Citation Number 2022/DHC/005249
"A person is said to commit penetrative sexual assault if-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person".
14. As per Section 5(m) of the POCSO Act, it is seen that whoever commits penetrative sexual assault on a child below 12 years is liable for punishment under Section 6 of the POCSO Act, which prescribes punishment for aggravated penetrative assault. The age of the child victim has been proved by producing admissible evidence. The next question that arises for immediate consideration is whether the evidence and material prove the case of the prosecution beyond reasonable doubt.
15. It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent, till he is proved to be guilty. It is equally well settled that suspicion, however, strong can never take the place of proof. There is indeed a long distance between accused "may have committed the offence and must have committed the offence" which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be whittled down. (See:
Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33 10 Neutral Citation Number 2022/DHC/005249
Narendra Singh and Anr. v. State of M.P.12, RanjitsinghBrahmajeetsingh Sharma v. State of Maharashtra and ors.13, State of U.P. v. Naresh and ors.14, Ganesan v. Rama Raghuraman and ors.15, Kailash Gaur v. State of Assam16, and Noor Aga v. State of Punjab17).
16. Since, the offence in the instant case does not relate to Sections 3, 5, 7 and Section 9 of the POCSO Act, therefore, presumption of guilt under Section 29 of the POCSO Act, would not be attracted in the instant case. The accused, therefore, is not required to prove his innocence. It is the prosecution, which has to adduce sufficient evidence to establish the commission of offence beyond reasonable doubt.
17. It is also well settled principle of law that conviction can be based solely on the prosecutrix's evidence, unless there are compelling reasons for seeking corroboration. The evidence of the prosecutrix is more reliable than that of any other witness. The court should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused, where her testimony inspires confidence and is found to be reliable. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case (See: State of Himachal Pradesh v. Asaram18).
18. In the case of Prem Pal (supra), the conviction of the appellant therein was solitarily based on the statement of the prosecutrix, which
12 (2004) 10 SCC 699 13 (2005) 5 SCC 294 14 2011 AIR SCW 187 15 (2011) 2 SCC 83 16 (2012) 2 SCC 34 17 AIR 2009 SC (Supp) 852 18 (2005) 13 SCC 766 Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33 11 Neutral Citation Number 2022/DHC/005249
was found not to be corroborated by any other independent source. This court considered that if the evidence of the prosecutrix is not trustworthy, the conviction cannot be upheld. In paragraph No. 8 of the said decision, this court has noted that the prosecutrix in that case had earlier also lodged a complaint under Sections 376 & 506 of the IPC against one Shiv Prasad @ Babu who was acquitted from the charges. It was, therefore, argued that the prosecutrix was not reliable and her evidence did not inspire confidence, was contradictory, unnatural and untruthful.
19. The evidence of the prosecutrix, therefore, has to be trustworthy, unblemished and should be of sterling quality. The same principles have been laid down by the Hon'ble Supreme Court in the case of Rajeevan (supra) after considering the decision of Sadashiv RamraoHadbe (supra). Paragraph No.9 of Sadashiv RamraoHadbe (supra) is reproduced as held as under:
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring of confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen".
20. Who can be said to be a "sterling witness" has been dealt with and considered by the Hon‟ble Supreme Court in the case of Rai Sandeep v. State (NCT of Delhi)19. Paragraph No. 22 of the said decision is reproduced as under:
19
2012 8 SCC 21 Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33 12 Neutral Citation Number 2022/DHC/005249
"In our considered opinion, the „sterling witness‟ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a „sterling witness‟ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33 13 Neutral Citation Number 2022/DHC/005249
21. It is thus seen that extreme carefulness in accepting the sole testimony of the prosecutrix has to be observed. In the instant case, the date of alleged incident is 29.12.2015 and the matter was reported on 01.01.2016. The only delay explained by the mother of the prosecutrix is that she did not know the identity of the accused on 29.12.2015. PW- 2/mother of the victim admits that on the date of incident i.e. on 29.12.2015 itself the victim had told her about the incident. She explained that after 2-3 days when the victim saw the accused, she called her mother and pointed out towards the accused that he is the same person who committed wrong act with her. On pointing out by the victim, PW-2/mother of the victim, went to the room of the accused and apprehended him and she came to know the name of the accused as Dil Bahadur. She therefore, reported the matter to police on 100 number. Ex.PW8/A is the intimation recorded by the police in Form 8 of the Delhi Police Control Room. The nature of allegation recorded therein is 'eve teasing'. The entry of intimation of call at 100 number is dated 31.12.2015 at 08:47 PM. Name of the appellant is mentioned therein that the appellant „Dil Bahadur' had committed the offence. The MLC is Ex.PW6/A dated 31.12.2105 at 10:49 PM.
22. In the column of history of the case, in MLC it is mentioned that the victim and the mother of the victim did not know the name of the accused. MLC shows the possibility of hymen being torn. It is recorded "Hymen seems to be torn". PW-1/ child victim in her statement says that the accused was residing near her house and used to come to her house and after bolting the door from inside, used to insert his finger in her urinating part. PW-2, mother of victim also admits in her evidence that the victim on 29.12.2015, itself told her that her neighbour did wrong act with her. What is to be noticed is that firstly, on 29.12.2015, Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33 14 Neutral Citation Number 2022/DHC/005249
nothing prevented PW-2/mother of the victim to make a call at 100 number and report the matter. This also becomes important for the reason that the accused was residing in the same building and was a neighbour. Secondly, when PW-2 had come to know that their neighbour did wrong act with her daughter, it was not expected from her to remain quiet till she could find out the culprit. She did not state anything with respect to efforts or endeavours made by her to find out the culprit that too when PW-1 clearly stated that the culprit was her neighbour. Thirdly, when she made the call at 100 number, name of the accused was mentioned to the police but surprisingly name of the culprit was not mentioned when she went to the hospital for MLC.
23. Fourthly, PW-2/mother of the victim speaks only about a single incident of sexual assault. In her statement under Section 161 of the Cr.P.C., child victim also speaks about a single incident of assault on 29.12.2015. In statement under Section 164 of the Cr.P.C, the child victim says that the accused was regularly committing sexual assault. PW-5 in her statement states that when she asked the child victim about the incident, she told her that the accused did not commit any wrong with her. PW-5 is the prosecution witness, who has not been declared hostile. The evidence of the prosecution witness can be relied upon by the accused if the witness has not been declared hostile (See:- Raja Ram (supra) & Mukhtiar Ahmed Ansari (supra). It is thus seen that there are material inconsistencies relating to the happening of the offence, there are statement that range between a single assault, repeated assault and no assault taking place. It is to be noted that in the police Form the incident recorded was only of „eve-teasing‟ (EX- PW8/A). Thus, the original complaint started with „eve-teasing‟ which went upto 'single assault' and finally reached upto "repeated assault".
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24. This court is conscious of the fact that even single incident alone is sufficient for convicting the accused, however, the court is considering the entire evidence so as to analyze the credibility of the prosecution case. PW 4 & PW 5, landlord and landlady, also stated that the victim's mother is quarrelsome and did not pay rent on time. They further stated that the victim's mother used to quarrel with her husband with respect to liquor consumption. PW-2/mother of the victim however admits that her husband used to consume liquor with accused.
25. In view of the aforesaid, analysis of evidence, this court finds that the evidence of the child victim is not of sterling nature. The same does not inspire confidence of this court to prove the case beyond reasonable doubt. There is no positive medical evidence and the evidence of the mother of the child victim also suffers with material contradictions and does not inspire confidence.
26. In view of the aforesaid, this court sets aside the judgment of conviction and order on sentence passed by the trial court. The appellant is acquitted. He be released forthwith if not required in any other case.
(PURUSHAINDRA KUMAR KAURAV) JUDGE
DECEMBER 01, 2022 p‟ma/MJ
Signature Not Verified Signed By:PRATIMA Signing Date:02.12.2022 11:30:33
