Delhi High Court
State vs Liyakat Ali & Anr. on 13 December, 2023
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: September 12, 2023
Decided on: December 13, 2023
+ CRL.A. 769/2023
STATE ..... Petitioner
Through: Mr. Yudhvir Singh
Chauhan, APP for the State
SI Hemant PS Sultan Puri
V
LIYAKAT ALI & ANOTHER ..... Respondents
Through: Mr. Rajesh Mahajan,
(DHCLSC) and Mr. R.K.
Bora, Advocate with R-1 and
2 in person.
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present appeal is filed under article 378 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code") to
impugn judgment dated 08.03.19 (hereinafter referred to as "the
impugned judgment") passed by the court of Sh. Amit Kumar,
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Additional Sessions Judge (Special Court, POCSO ACT), North
West, Rohini Courts, Delhi (hereinafter referred to as "the trial
court") in Sessions Case no.157/2015 arising out of FIR no
1134/2014 registered under sections 354/323/506/34 of the Indian
Penal Code, 1860 (hereinafter referred to as "IPC") and under
section 8 of Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as "POCSO Act") at P.S. Sultan Puri.
2. The factual background of the case is that FIR bearing no
1134/2014 dated 05.10.2014 was got registered under sections
354/323/506/34 IPC and under section 8 of POCSO Act on the basis
of the complaint made by father of the victim (hereinafter referred as
"the complainant"). The complainant on 05.10.2014 along with
prosecutrix/victim (hereinafter referred to as "Victim") came to PS
Sulatn Puri and met ASI Rajender Singh Tomar who recorded
statement of the complainant. The complainant stated that he along
with family was residing at Sultan Puri and was doing tailoring work.
The victim on 01.10.2014 along with her two brothers was sleeping
on the roof and the complainant at about 1.30 am went to roof for
smoking where saw that Liyakat (hereinafter referred to as "the
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respondent no. 1") who was residing on the first floor of the same
building had made the victim sleep close to him. The complainant
lifted the victim from there and made her sleep with brothers and did
not speak to anyone due to late night. The complainant next day went
to work and returned back at about 9.00 pm. The wife of the
complainant asked the victim to go to the roof for sleeping but the
complainant started weeping and refused to go to the roof. The victim
told that the respondent no.1dragged her to his bed and kissed her and
also tried to remove her trouser (lower). The complainant asked the
victim as to why she did not inform in the night itself to which she
told that she was scared. The complainant immediately called Jaffar
(hereinafter referred to as "the respondent no. 2"), the elder brother
of the respondent no1. The respondent no.2 did not listen to the
complainant and said that the complainant is falsely implicating the
respondent no. 1. The complainant on the next day went to his work
and came back in night of 03.10.2014. The complainant visited room
of the respondent no. 2 but he was not found there. The complainant
asked the wife of the respondent no. 2 not to send the respondent no.1
to sleep on the roof. However, the respondent no.1 again went to
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roof to sleep in night. The complainant again approached the
respondent no. 2 but the respondent no. 2 threatened the complainant
to commit wrong act with the victim and the wife of the complainant.
The respondents no.1 and 2 had also beaten the complainant when
complainant told them for approaching the police. The complainant
came back to his room and slept therein and on the next day i.e.
04.10.2014 went to his work and came back at 9.00 pm. The
respondents no. 1 and 2 came to house of the complainant and tried
to assault him with a scissor. Thereafter the complainant approached
police station along with the victim. The victim was taken to the
hospital for medical examination but the victim refused for her
internal medical examination. The present FIR bearing no. 1134/2014
dated 05.10.2014 was got registered under sections 354/323/506/34
IPC and under section 8 of POCSO Act at P.S. Sultan Puri.
2.1 SI Deepak Purohit (hereinafter referred to as "the
Investigating Officer") was entrusted with further investigation. The
respondent no.1 was arrested. The statement of the victim under
section 164 of the Code was recorded on 07.10.2014 wherein the
victim stated that on 01.10.2014 when she was sleeping on the roof in
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the night then the respondent no.1 dragged her towards him and
kissed her and also pulled her trouser (lower) down. Thereafter the
victim came down stairs to sleep with her mother and also informed
the complainant. The complainant called the respondents no.1 and 2
and wife of the respondent no 2. The date of birth of the victim was
found to be 05.03.2002. During investigation offence punishable
under section 341 IPC was added. The respondent no 2 was not
arrested. The charge sheet was filed after conclusion of the
investigation.
2.2 The Court of Sh. Vinod Yadav, Additional Sessions Judge-01,
North-West District, Rohini Courts, Delhi vide order dated
30.01.2016, framed charges for the offences punishable under
sections 323/34 and 506/34 IPC against the respondents no.1 and 2.
The respondent no.1 was also charged for the offences punishable
under section 341 IPC and under section 9(m) of POCSO Act
punishable under section 10 of POCSO Act read with section 18 of
POCSO Act. The respondents no. 1 and 2 pleaded not guilty and
claimed trial.
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2.3 The prosecution in support of its case, examined 7 witnesses
including the victim as PW1, mother of the victim as PW2 and the
complainant as PW3. The prosecution also examined police officials
who participated in the investigation including investigating officer
SI Deepak Purohit as PW4.
2.4 The statements of the respondents no. 1 and 2 were recorded
under section 313 of the Code wherein they denied incriminating
evidence and pleaded innocence and false implication. The
respondent no. 1 stated that he has been falsely implicated by the
victim AL over a monetary dispute and no such incident had
happened. The respondent no. 2 stated that he has been falsely
implicated in this case by the child victim under the guidance and
advice of her parents, NGO counsellor and police officials over a
monetary dispute of Rs.1,50,000/- as could not arrange more money
to give to parents of the victim AL on credit basis. No such incident
ever took place.
2.5 The trial court vide impugned judgment acquitted the
respondents no.1 and 2 primarily on grounds of material
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contradictions and unexplained delay in lodging FIR. The relevant
portion of the impugned judgment is reproduced verbatim as under:-
Coming to the main incident, there are material
contradictions in the statement of the victim recorded u/s
164 Cr.P.C. and recorded in the court as well as the
statement of her parents. There is also unexplained delay in
reporting the matter to the police. The victim in her
statement recorded u/s 164 Cr.P.C. did not mention any
incident of her father coming to the roof and moving her
back to sleep with her brothers, in this statement, she even
did not mention anything about the alleged quarrel
between her parents and the accused persons. She had
simply stated about accused misbehaving with her and that
she came down stairs and informed her father. While
deposing in the court, victim stated regarding her father
coming upstairs and dragging her towards her brothers
and regarding quarrel between her parents and the
accused. Further, victim never stated that accused had been
sexually assaulting her since last two days or that any such
incident happened earlier before the night of 01.10.2014 but
her mother specifically stated that victim told her that
accused Liyakat had been sexually assaulting her at roof at
night for last two days. Further, victim stated all along that
when her father moved her back towards her brothers, she
came down and slept with the mother whereas father
specifically stated that when he moved his daughter back
towards her siblings, she slept with them. Further, father
stated that when he saw the victim lying with the accused
she was awake and frightened and he sincerely felt that she
was scared yet not only that he did not react immediately,
he did not react even in the morning or in the following
evening when victim was again asked to go and sleep on the
roof. Instead he went to his work as usual. It is highly
improbable that a father who noticed his daughter lying on
the bed of the accused and scared yet did not took any
action immediately or thereafter for next five days.
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Further, as per the prosecution case the accused were
confronted on 02.10.2014 followed by alleged quarrel on
that day, on 03.10.2014 and 04.10.2014 yet not even a PCR
call was made by the complainant. As per complainant, he
was given beatings by fists and blows and was also attacked
with a scissor on 04.10.2014 yet he went to his work as
usual and further the other inhabitants of the house or the
neighbours did not hear any hue and cry of the
complainant or his family members. Further, the mother of
the victim stated that on 01.10.2014, she along with her
husband slept in the room at around 12.00/12.30a.m.
whereas the father of the victim stated that he was awake
because of work in the night of 01.10.2014 till he went to the
roof to smoke. The victim in her cross examination stated
that except of Liyakat and her siblings including victim,
none else used to sleep on the roof whereas the mother of
victim stated that she along with her entire family used to
sleep on the roof and they were not going to sleep on the
roof since 2-3 days before 01.10.2014 just because of extra
stitching work. Victim awakened and frightened did not
raise any alarm despite seeing her father and father despite
noticing victim frightened, did not take any action. Further,
the delay in reporting the matter to the police remained
unexplained. The alleged incident of sexual assault
occurred on 01.10.2014 followed by quarrels and the
complainant attended his job as usual continuously on all
the days. The entire story of the prosecution does not
inspire any confidence and there are sufficient doubt in the
prosecution story. Both the accused persons are acquitted
accordingly.
3. The Appellant/State being aggrieved filed present appeal and
challenged impugned judgment on grounds that impugned judgment
is not sustainable in law and is based on imagination, presumption,
conjectures and surmises. The trial court has not properly appreciated
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the evidence led by the prosecution particularly testimony of the
victim as PW1 which remained consistent throughout. The
complainant as PW3 explained delay in lodging FIR. The trial Court
has ignored vital evidence and has not properly applied its mind. The
trial court has failed to appreciate that there are no major variations
which are not fatal to prosecution. The petitioner also raised other
grounds to challenge impugned judgment.
3.1 The Additional Public Prosecutor for the petitioner/State also
argued on grounds which are mentioned to challenge impugned
judgment and also referred testimony of the victim AL as PW1. The
Additional Public Prosecutor argued that the victim AL as PW1
supported case of prosecution which is corroborated by the
testimonies of PW2 and PW3. The trial court has relied on
contractions/discrepancies which are insignificant and are minor. The
prosecution has also explained delay in lodging FIR. The Additional
Public Prosecutor argued that impugned judgment is liable to be set
aside.
4. The counsel for the respondents no.1 and 2 argued that the trial
court acquitted the respondents no.1 and 2 by giving cogent and
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sound reasoning in impugned judgment which does not call any
interference. The contradictions pointed out by the trial court in the
impugned judgment are material and go to the root of the prosecution
case when coupled with the delay in reporting the incident to the
police. The Appellate Court must give due weight and consideration
to the decision of the trial court as the trial court had the distinct
advantage of watching the demeanour of the witnesses and was in a
better position to evaluate the credibility of the witnesses. The
counsel for the respondents no.1 and 2 further argued that the burden
of proving the foundational facts lies with the prosecution despite
section 29 of POCSO Act and only when the foundational facts are
proved on record through credible evidence and beyond reasonable
doubt only then the presumption can be invoked. The counsel for the
respondents no. 1 and 2 argued that the appeal is liable to be
dismissed.
5. The prosecution to prove its case examined the victim as PW1,
mother of the prosecutrix as PW2 and the complainant who is father
of the victim as PW3. A witness is considered to be an important
factor or integral part of the administration of justice and role of a
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witness is paramount in the criminal justice system. The witness by
giving evidence assists the court in discovery of the truth. The
Supreme Court in Mahender Chawla and Others V Union of India
and Others, (2019) 14 SCC 615 observed that witnesses are
important players in the judicial system, who help the judges in
arriving at correct factual findings. The instrument of evidence is the
medium through which facts, either disputed or required to be
proved, are effectively conveyed to the courts. The victim/PW1 was a
child at time of commission of offence subject matter of present FIR.
The trial court in impugned judgment after considering evidence led
by the prosecution pertaining to age of the victim/PW1 rightly and
legally observed that the prosecution has duly proved that the victim
was a minor below 12 years at the time of incident on01.10.2014.
6. Section 118 of the Indian Evidence Act, 1872 deals with the
witnesses who can testify. It provides that all persons shall be
competent to testify unless in the consideration of court they are
prevented from understanding the questions put to them or from
giving rational answers to those questions by tender years, extreme
old age, disease, whether of body or mind, or any other cause of the
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same kind. The issue of evidentiary value of the testimony of child
witness has been considered by the Supreme Court on many
occasions. It is observed and held that the credibility of a child
witness depends upon the circumstances of each case and the
precaution which should have been taken while assessing the
testimony of a child witness is that the witness must be reliable and
demeanor of child witness must be like any other competent witness
without likelihood of being tutored. The Supreme Court in Dattu
Ramrao Sakhare and Others V State of Maharashtra, (1997) 5
SCC 341 also referred by the trial court in relation to child witnesses,
held as under:-
5. ...A child witness if found competent to depose to the
facts and reliable one such evidence could be the basis of
conviction. In other words even in the absence of oath the
evidence of a child witness can be considered under Section
118 of the Evidence Act provided that such witness is able
to understand the questions and able to give rational
answers thereof. The evidence of a child witness and
credibility thereof would depend upon the circumstances of
each case. The only precaution which the court should bear
in mind while assessing the evidence of a child witness is
that the witness must be a reliable one and his/her
demeanour must be like any other competent witness and
there is no likelihood of being tutored.
6.1 The Supreme Court in Ratansinh Dalsukhbhai Nayak V
State of Gujarat, (2004) 1 SCC 64 also held as under:-
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7. ...The decision on the question whether the child witness
has sufficient intelligence primarily rests with the trial
Judge who notices his manners, his apparent possession or
lack of intelligence, and the said Judge may resort to any
examination which will tend to disclose his capacity and
intelligence as well as his understanding of the obligation of
an oath. The decision of the trial court may, however, be
disturbed by the higher court if from what is preserved in
the records, it is clear that his conclusion was erroneous.
This precaution is necessary because child witnesses are
amenable to tutoring and often live in a world of make-
believe. Though it is an established principle that child
witnesses are dangerous witnesses as they are pliable and
liable to be influenced easily, shaped and moulded, but it is
also an accepted norm that if after careful scrutiny of their
evidence the court comes to the conclusion that there is an
impress of truth in it, there is no obstacle in the way of
accepting the evidence of a child witness.
6.2 The Supreme Court in P. Ramesh V State Rep by Inspector
of Police, (2019) 20 SCC 593 also held as under:-
15. In order to determine the competency of a child witness,
the judge has to form her or his opinion. The judge is at the
liberty to test the capacity of a child witness and no precise
rule can be laid down regarding the degree of intelligence
and knowledge which will render the child a competent
witness. The competency of a child witness can be
ascertained by questioning her/him to find out the
capability to understand the occurrence witnessed and to
speak the truth before the court. In criminal proceedings, a
person of any age is competent to give evidence if she/he is
able to (i) understand questions put as a witness; and (ii)
give such answers to the questions that can be understood.
A child of tender age can be allowed to testify if she/he has
the intellectual capacity to understand questions and give
rational answers thereto. A child becomes incompetent only
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in case the court considers that the child was unable to
understand the questions and answer them in a coherent
and comprehensible manner. If the child understands the
questions put to her/him and gives rational answers to those
questions, it can be taken that she/he is a competent witness
to be examined.
6.3 The courts as a rule of prudence before accepting the testimony
of a child witness cautioned that the testimony has to be evaluated
carefully being susceptible to tutoring. The Supreme Court in State
of Madhya Pradesh V Ramesh and Another, (2011) 4 SCC 786
held as under:-
14. In view of the above, the law on the issue can be
summarized to the effect that the deposition of a child
witness may require corroboration, but in case his
deposition inspires the confidence of the court and there is
no embellishment or improvement therein, the court may
rely upon his evidence. The evidence of a child witness must
be evaluated more carefully with grater circumspection
because he is susceptible to tutoring. Only in case there is
evidence or record to show that a child has been tutored,
the court can reject his statement partly or fully. However,
an inference as to whether child has been tutored or not,
can be drawn from the contents of his deposition.
The Supreme Court in Ranjeet Kumar Ram @ Ranjeet Kumar
Das V State of Bihar, 2015 SCC OnLine SC 500 also observed that
evidence of the child witness and its credibility would depend upon
the circumstances of each case and only precaution which the court
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has to bear in mind while assessing the evidence of a child witness is
that the witness must be a reliable one.
6.4 The acceptance of testimony of a child witness under
POCSO Act came into consideration before the Courts on many
occasions. The Supreme Court in Ganesan V State Rep. by Its
Inspector of Police, (2020) 10 SCC 573 while dealing with
conviction under POCSO Act held that the statement of the
prosecutrix, if found to be worthy of credence and reliable, requires
no corroboration and the court may convict the accused on the sole
testimony of the prosecutrix. A Coordinate Bench of this Court in
Rakesh @ Diwan V The State (GNCT of Delhi), 2021 SCC
OnLine Del 3957 accepted testimony of the child victim as
trustworthy, reliable and admissible. The Calcutta High Court in
Animesh Biswas V State of W.B., 2023 SCC OnLine Cal 2633
observed that the sole testimony of the victim, a child witness could
be relied upon in cases of sexual assault provided her evidence was
trustworthy, unblemished, and of sterling quality. This court in Ajeet
Singh V The State Govt. of NCT of Delhi & another, Criminal
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Appeal bearing no 612/2023 decided on 31.10.2023 also took similar
view.
7. Let's examine respective testimonies of the victim as PW1,
mother of the victim as PW2 and the complainant as PW3. The
victim as PW1 primarily deposed that her family was residing at third
floor and the respondent no. 1 was residing at second floor. The
victim and the respondent no. 1 used to sleep on roof. The victim on
01.10.2014 was sleeping on roof with her brothers and sister and the
respondent no. 1 was also sleeping on the roof. The respondent no. 1
at about 1.00/1.30 am dragged her towards him and kissed her and
also tried to remove her pajami (trouser/lower). The complainant also
came to roof for smoking and made her to sleep with her brothers and
sister. The victim came down stairs to sleep with mother. PW1/the
victim further deposed that the complainant on the next day asked her
to go to the roof to sleep then she started weeping and told about the
incident. Thereafter the complainant called the respondent no 1 and
his brother i.e. the respondent no 2 and sister in law to complain but
they quarrelled with the complainant. Thereafter the complainant
made complaint to the police. The victim also admitted her signatures
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on statement under section 164 of the Code Ex. PW1/A. PW1/the
victim in the cross examination deposed that except of victim and her
brothers and sister and the respondent no 1, none else used to sleep
on the roof. The victim immediately noticed when she was dragged
by the respondent no.1 and the complainant also came at roof at same
time. The victim did not raise alarm when the respondent
no.1dragged her towards him as she was scared. The complainant A
did not have any quarrel with either of the respondents prior to
incident. The prosecution also examined T, mother of PW1/the
victim as PW2 who deposed she along with family was residing at
third floor and the respondent no.1 along with his brother i.e. the
respondent no.2 and sister in law (Bhabhi) was residing at second
floor. The family members of PW2 used to sleep on roof but PW2
herself and her husband i.e. the complainant did not sleep on roof for
2-3 days prior to the incident because of extra stitching work. PW2
further deposed that the complainant on 05.10.2014 lodged police
complaint regarding the incident happened on 01.10.2014 with her
daughter i.e. the victim. The victim had informed her and the
complainant on the next day i.e. 02.10.2014 that the respondent no. 1
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had been sexually assaulting her in the night for last two days but the
victim did not tell this incident due to fear. The respondents no. 1
and 2 and wife of the respondent no. 2 quarrelled when called about
incident. The respondent no. 2 on 04.10.2014 also threatened to
commit same act with PW2. PW2 in cross examination deposed none
else other than her family and the respondent no. 1 used to sleep on
the roof. PW2 denied suggestions that a quarrel took place between
the complainant, herself and the respondents no. 1 and 2 as the
respondent no.1 and 2 had not paid money back to the complainant
and PW1 despite demands and due to this the respondent no.1 and 2
were falsely implicated or that the respondent no.1 had ever slept on
the roof or that the respondent no 1never committed any assault on
the victim or that in the intervening night of 04/05.10.2014 again a
quarrel had taken place between her and the respondents no.1 and 2.
The complainant as PW3 deposed as per allegations of the complaint.
8. The respective testimony of the victim PW1, mother of the
complainant PW2 and the complainant PW3 proved following facts:-
i. The complainant PW3 along with family comprising his
wife PW3, three sons and two daughters including the
victim PW1 was residing at third floor of the property
situated in area of Sultan Puri.
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ii. The respondents no. 1 and 2 were residing in same
property at second floor of same property.
iii. The family of the complainant PW3 and the respondent
no. 1 used to sleep on roof. However the complainant PW3
and his wife PW2 in intervening night of 01/02.10.2014 did
not sleep on roof. However the victim PW2 along with her
brothers and sister slept on roof in intervening night of
01/02.10.2014.
iv. The respondent at about 1.30 am in night
pulled/dragged the victim PW1 near to him and kissed her
and also lower down her pajami(trouser). In meantime the
complainant PW1 also came at roof for smoking and made
the victim PW1 to sleep with her brothers and sister.
v. The complainant next day asked the victim PW2 to sleep
on roof but the victim PW2 started to weep and narrated
the incident to her parents i.e. the complainant PW3 and
PW2.
vi. The respondent no. 2 who is brother of the respondent
no. 1 and his wife were called to report incident but they
fought and quarrel with the complainant PW3 and PW2.
Thereafter present FIR was got registered on basis of
complaint made by the complainant PW3. The statement
Ex.PW1/A of the victim PW1 was recorded under section
164 of the Code.
8.1 The respective testimonies of the victim PW1, mother of the
victim PW3 and the complainant PW3 are consistent, cogent,
reliable, trustworthy and corroborating with each other in material
particulars and can be safely relied on.
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9. The trial court in impugned judgment while acquitting the
respondents observed that there are material contradictions in the
statement of the victim as PW1 recorded under section 164 of the
Code and her deposition recorded in the court and the respective
testimonies of the parents of the victim/PW1 i.e. the
complainant/PW3 and PW2. The trial court observed that the victim
PW1 in her statement recorded under section 164 of the Code did not
mention any incident of her father coming to the roof and moving her
back to sleep with her brothers and did not mention anything about
the alleged quarrel between her parents and the respondents. The trial
court also observed that the victim PW1 simply stated about the
respondent no .1 misbehaving with her and she came down stairs and
informed her father i.e. the complainant PW3 but in testimony the
victim PW1 stated regarding her father coming upstairs and dragging
her towards her brothers and regarding quarrel between her parents
and the respondents no.1 and 2. The trial court in impugned judgment
regarding contradictions also observed that the victim PW1 never
stated that the respondent no.1 had been sexually assaulting her for
last two days or that any such incident happened earlier before the
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night of 01.10.2014 but her mother PW2 specifically stated that
victim PW1 told her that the respondent no.1 had been sexually
assaulting her at roof at night for last two days. The trial court in
impugned judgment also pointed out various other contradictions in
testimonies of prosecution witnesses.
9.1 It is an accepted legal position that mere marginal variations,
contradictions, discrepancies or improvements in the statements of
witnesses cannot be fatal to the case of the prosecution. Only major
contradictions, discrepancies or improvements on material facts can
shake the very genesis of prosecution case and can create doubts as to
the prosecution case. The Supreme Court in State of Punjab V Jagir
Singh Baljit Singh and Karam Singh, AIR 1973 SC 2407 observed
as under:-
23. A criminal trial is not like a fairy tale wherein one is
free to give flight to one's imagination and fantasy. It
concerns itself with the question as to whether the accused
arraigned at the trial is guilty of the crime with which he is
charged. Crime is an event in real life and is the product of
interplay of different human emotions. In arriving at the
conclusion about the guilt of the accused charged with the
commission of a crime, the court has to judge the evidence
by the yardstick of probabilities, its intrinsic worth and the
animus of witnesses. Every case in the final analysis would
have to depend upon its own facts. Although the benefit of
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every reasonable doubt should be given to the accused, the
courts should not at the same time reject evidence which is
ex facie trustworthy on grounds which are fanciful or in the
nature of conjectures.
9.2 The Supreme Court in Pawan Kumar @ Monu Mittal V State
of Uttar Pradesh and Another, (2015) 7 SCC 148 held as under:-
35. When a witness is examined at length it is quite possible
for him to make some discrepancies. No true witness can
possibly escape from making some discrepant details. But
courts should bear in mind that it is only when
discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that the
court is justified in jettisoning his evidence.
9.3 The Supreme Court in Bhagwan Jagannath Markad and
Others V State of Maharashtra, (2016) 10 SCC 537 observed as
under:-
19. While appreciating the evidence of a witness, the court
has to assess whether read as a whole, it is truthful. In
doing so, the court has to keep in mind the deficiencies,
drawbacks and infirmities to find out whether such
discrepancies shake the truthfulness. Some discrepancies
not touching the core of the case are not enough to reject
the evidence as a whole. No true witness can escape from
giving some discrepant details. Only when discrepancies
are so incompatible as to affect the credibility of the version
of a witness, the court may reject the evidence.
Discrepancies may arise due to error of observations, loss
of memory due to lapse of time, mental disposition such as
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shock at the time of occurrence and as such the normal
discrepancy does not affect the credibility of a witness.
9.4 The Supreme Court in Thoti Manohar V State of A.P,
Criminal Appeal No. 1739 of 2007 decided on 15.05.2012 observed
that minor discrepancies on trivial matters not touching the core of
the matter cannot bring discredit to the story of the prosecution.
Giving undue importance to them would amount to adopting a hyper-
technical approach. The court while appreciating the evidence should
not attach much significance to minor discrepancies, for the
discrepancies which do not shake the basic version of the prosecution
case are to be ignored. It was further observed that no evidence can
ever be perfect for man is not perfect and man lives in an imperfect
world. Thus, the duty of the court is to see with the vision of
prudence and acceptability of the deposition regard being had to the
substratum of the prosecution story.
9.5 The Supreme Court in Birbal Nath V The State of Rajasthan
& others, Criminal Appeal no. 1587 of 2008 decided on 30th
October, 2023 relied on Rammi V State of M.P., (1999) 8 SCC 649
wherein it was held as under:-
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24. When an eyewitness is examined at length it is quite
possible for him to make some discrepancies. No true
witness can possibly escape from making some discrepant
details. Perhaps an untrue witness who is well tutored can
successfully make his testimony totally non-discrepant. But
courts should bear in mind that it is only when
discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that the
court is justified in jettisoning his evidence. But too serious
a view to be adopted on mere variations falling in the
narration of an incident (either as between the evidence of
two witnesses or as between two statements of the same
witness) is an unrealistic approach for judicial scrutiny.
The Supreme Court in Birbal Nath observed that lengthy cross
examination of a witness may invariably result in contradictions but
these contradictions are not always sufficient to discredit a witness.
9.6 The contradictions and discrepancies in evidence led by the
prosecution as pointed out by the trial court in impugned judgment
are minor and insignificant variations and do not affect case of the
prosecution. The observations made by the trial court in impugned
judgment are based on assumptions rather than appropriate
appreciation of evidence led by the prosecution in right perspective.
There is force in arguments advanced by the Additional Public
Prosecutor that trial court has unnecessary relied on insignificant and
minor variations and contradictions in passing impugned judgment.
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The arguments advanced by the counsel for the respondents in this
regard are without any legal basis.
10. The trial court in impugned judgment also observed that there
was unexplained delay in reporting the incident to the police. The
Supreme Court in Hariprasad @ Kishan V State of Chhattisgarh,
Criminal Appeal No 1182 of 2012 decided on 07th November, 2023
observed that delay in lodging FIR by itself cannot be regarded as the
sufficient ground to draw an adverse inference against the
prosecution case and it cannot be treated as fatal to the case of
prosecution. It was further observed that the court has to ascertain
the causes for the delay having regard to the facts and circumstances
of the case and if the causes are not attributable to any effort to
concoct a version, mere delay by itself would not be fatal to the case
of prosecution. The incident subject matter of present FIR had
happened in intervening night of 01/02.10.2014 but incident was
reported on 05.04.2014. It is reflecting from evidence led by the
prosecution that the complainant PW3 came to know about incident
on 02.10.2014 the complainant PW3 asked his wife PW2 to call the
respondent no. 2 who is brother of the respondent no.1. The
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complainant PW3 on 03.10.2014 and 04.10.2014 also made efforts to
settle and address the incident with the respondents but the
respondents quarreled with the complainant PW3. Thereafter the
complainant PW3 reported incident to the police. The complainant
PW3 in cross examination also deposed that he did not go to police in
the morning of 04.1 0.2014 due to consideration of modesty of child
victim i.e. the victim PW2 and honour of his family and he wanted to
give one more chance to the respondents to repent for their
deeds.There was as such no inordinate delay in registration of FIR
and delay if any as observed by the trial court was properly explained
in testimony of the complainant PW3.
11. The Additional Public Prosecutor during arguments also
referred section 29 of POCSO Act. Every person accused of an
offence is presumed to be innocent and burden lies upon the
prosecution to establish the guilt of the accused beyond reasonable
doubt. The Supreme Court in State of U.P. V Shanker, AIR 1981
SC 897 observed that it is function of the court to separate the grain
from the chaff and accept what appears to be true and reject the rest.
The Supreme Court in Sujit Biswas V State of Assam, (2013) 12
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SCC 406 held that suspicion, however grave, cannot take the place of
proof and the prosecution cannot afford to rest its case in the realm of
"may be" true but has to upgrade it in the domain of "must be" true in
order to steer clear of any possible surmise or conjecture. The section
29 of POCSO Act provides that where a person is prosecuted for
committing or abetting or attempting to commit any offence under
sections 3, 5, 7 and 9 of POCSO Act, the Special Court shall presume
that such person has committed or abetted or attempted to commit the
offence, as the case may be unless the contrary is proved. However, it
is for the prosecution to prove guilt of the respondents beyond
reasonable doubt even for offences punishable under POCSO Act.
The Supreme Court in Sunil Kumar V State of NCT, 2021 SCC
OnLine Del 2391 observed that as per section 29 of the POCSO Act,
there is a presumption regarding guilt of the accused. The burden of
proof on the prosecution is not of beyond reasonable doubt. The
prosecution has to lay down and prove the fundamental facts
regarding the guilt of the accused. Once such facts are proved, the
onus is upon the accused to lead evidence to rebut the presumption.
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12. The respondents in respective statement under section 313 of
the Code stated that they have been implicated due to monetary
disputes and quarrels between the complainant PW1 and the
respondents. The respondents also took said defence in cross
examination of the complainant PW3. The statement under section
313 of the Code is not a substantive piece of evidence which intends
to ensure principle of natural justice to the accused. It empowers the
court to examine the accused with the purpose to enable the accused
to explain incriminating circumstances in the prosecution evidence.
The Supreme Court in Samsul Haque V State of Assam, (2019) 18
SCC 161 held that the incriminating material is to be put to the
accused so that the accused gets a fair chance to defend him.
This is in recognition of the principles of audi alteram partem.
The Supreme Court in Reena Hazarika V State of Assam, (2019)
13 SCC 289 observed that a solemn duty is cast on the court in the
dispensation of justice to adequately consider the defence of the
accused taken under section 313 of the Code and to either accept or
reject the same for reasons specified in writing. It was also held that
section 313 of the Code cannot be seen simply as a part of audi
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alteram partem rather it confers a valuable right upon an accused to
establish his innocence. The defence taken by the respondents does
not inspire any confidence in absence of specific details and appear to
be vague, sham and without any basis and cannot be accepted in
absence of material particulars regarding monetary transactions.
13. The victim was less than 12 years at time of incident. The
Child Sexual Abuse is a serious issue/problem being pervasive and
disturbing and large numbers of children are being subjected to
physical, emotional, and sexual abuse. The Child Sexual Abuse
deserves adequate attention of every stake holder directly or
indirectly connected with administration of justice and judicial
process. It requires to be addressed with lot of sensitivity and
sensibility. The Protection of Children from Sexual Offences Act,
2012 was enacted to protect children from offences of sexual assault,
sexual harassment and pornography and to provide for establishment
of Special Courts for trial of such offences. The preamble of the
POCSO Act also reflects that the Government of India has acceded
on 11.12.1992 to the Convention on the Rights of the Child, adopted
by the General Assembly of the United Nations which has prescribed
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a set of standards to be followed by all State parties in securing the
best interests of the child. The POCSO Act considered sexual
exploitation and sexual abuse of children as heinous crimes which
need to be effectively addressed. The child sexual abuse is a crime
not only against the individual but against the fabric of the society
and family. The prosecution from quality and quantity of evidence
led by it has successfully proved that the respondent no.1 in the
intervening night of 01/02.10.2014 at about 1.30 am, at the roof of
house bearing no C-3/386, Sultan Puri, Delhi committed aggravated
sexual assault upon the victim who was a minor girl of less than 12
years by pulling towards him, kissing and by removing her payjami
(trouser) and accordingly convicted for offence under section of 9
(m) of POCSO Act punishable under section 10 of POCSO Act, 2012
read with Section 18 of POCSO Act. The impugned judgment passed
by the trial court pertaining to the acquittal of the respondent no.1 for
the offence punishable under section 10 of POCSO Act cannot be
sustained and is accordingly set aside. However, the offence
punishable under section 341 IPC against the respondent no.1 and the
offences punishable under sections 323/34 IPC and sections 506/34
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IPC against the respondents no. 1 and 2 are not proved in accordance
with law in absence of definite, direct and adequate evidence.
Accordingly, the respondents no. 1 and 2 stand acquitted for these
offences. The appeal is partly allowed.
15. List on 18.12.2023 for arguments on the quantum of sentence.
DR. SUDHIR KUMAR JAIN
(JUDGE)
DECEMBER 13, 2023
N/SD
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