Delhi High Court
State vs Nikhil Kumar on 15 December, 2023
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: September 15, 2023
Decided on: December 15, 2023
+ CRL.A. 781/2023
STATE ..... Petitioner
Through: Mr. Yudhvir Singh
Chauhan, APP for State
with SI Rajnish, PS Lodhi
Colony.
V
NIKHIL KUMAR ....Respondent
Through: Mr. Rakesh Nautiyal,
Advocate with Respondent
in person.
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present appeal is filed under section 378(1)(b) of the
Code of Criminal Procedure, 1973 (hereinafter referred to as "the
Code") on behalf of the petitioner/State (hereinafter referred to as
"the petitioner") to set aside the judgment dated 13.08.2019
(hereinafter referred to as "the impugned judgment") passed by
the court of Sh. Parveen Singh, ASJ-01, Special Judge/(POCSO),
North-East District, Karkardooma Courts, Delhi (hereinafter
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referred to as "the trial court") in FIR bearing no.0469/2017 under
section 354A IPC and section 12 of the Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred to as "POCSO
Act") whereby the respondent was acquitted for the charges under
section 354A IPC and section 10 POCSO Act.
2. The factual background is that Ct. Akhilesh on 12.09.2017 at
about 6:40 pm received information from Police Control Room from
a caller who was saying that his granddaughter was molested by one
boy at House no. 106, Chauhanpur, Matawali Gali and said
information was recorded vide DD No 77B which was handed over
to ASI Jeevanand for further action. ASI Jeevanand after receipt of
DD No 77B reached at House no 109, Village New Chauhanpur,
Karawal Nagar where caller Sri Chand handed over the said boy
namely Nikhil/the respondent/the accused (hereinafter referred to as
"the respondent") and thereafter ASI Jeevanand handed over the
respondent and victim to SI Monika. SI Monika made inquiry from
the victim who stated that the respondent had oral sex with her. The
victim was sent to JPC Hospital along with her mother and HC
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Rehana. HC Rehana after medical examination of the victim
collected the said MLC and handed over to SI Monika.
2.1 SI Monika recorded the statement of the victim wherein
victim stated that she along with her sister namely Jyoti on
12.09.2017 at about 05:30/06:00 pm was playing badminton on the
roof of their house. The shuttle cock during play was dropped on the
roof of the house of neighbor. The victim went there to pick the
shuttle cock back where she found that the respondent was alone at
the house and rest of the members were at the terrace. The
respondent called the victim and stopped her at the stairs of his
house and thereafter made the victim to sit at the stairs. The
respondent opened his pants and took out his penis and asked the
victim to lick penis and also kissed at cheeks of the victim. The
victim refused to lick penis of the respondent. The victim took
shuttle cock from the respondent and came to the roof and thereafter
came back to her house. SI Monika on basis of statement of the
victim prepared rukka and FIR bearing no.0469/2017 was got
registered under section 354A IPC and section 12 of POCSO Act.
ASI Rohtash (hereinafter referred to as the "Investigating Officer")
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was entrusted with further investigation. The respondent was also
medically examined on 13.09.2017. The respondent was arrested.
The Investigating Officer conducted further investigation.
2.2 The victim was produced before the Metropolitan Magistrate
for recording of statement under section 164 of the Code which was
recorded on 13.09.2017. The victim in statement under section 164
of the Code stated as under:-
In evening of last day, she was playing badminton and
shuttle cock was dropped in court yard of the respondent.
The victim went to court yard to pick the shuttle cock
where she was stopped by the respondent. The respondent
looked at her vagina and hips. The respondent made her to
lie on floor and asked her to lick his penis. The victim did
not lick penis of the respondent and tried to run away from
there with shuttle cock. The respondent also kissed her on
mouth. The victim ran away from there. The respondent is
not a good person and touched her with badly.
2.3 The Investigating Officer collected documents pertaining to
age of the victim from Sub-Registrar (Birth & Death Department),
Municipal Corporation of Delhi and date of birth of the victim was
found to be 19.11.2010. The charge sheet was filed after completion
of the investigation under section 354A IPC and section 10 of the
POCSO Act where the petitioner was implicated. The trial court vide
order dated 15.11.2018 framed charges for offence punishable under
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section 354A and section 10 of the POCSO Act to which the
respondent pleaded not guilty and claimed trial.
2.4 The prosecution in support of its case examined 11 witnesses
including victim as PW1. The statement of the respondent was
recorded under section 313 of the Code wherein the respondent
denied incriminating evidence and pleaded innocence and false
implication. The respondent stated that he was beaten by uncle,
father and Sri Chand (grandfather) of the victim. The grandmother
of the victim and his mother are cousins. There was a property
pending dispute between his family and family of victim for
purchase of property no. 110 which was purchased by the mother of
the respondent and family of the victim also wanted to purchase that
house and due to this he was falsely implicated in this case. The
respondent preferred not to lead defence evidence.
2.5 The trial court vide impugned judgment acquitted the
respondent for offence punishable under section 354A IPC and
section10 of the POCSO Act primarily on the ground that the
testimony of the victim cannot be said to be of sterling quality and it
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will be unsafe to rely on the sole testimony of the victim as there are
various contradictions. The relevant portion of the impugned
judgment is reproduced verbatim as under:-
37. Considering the fact that the victim is the sole witness
upon which the prosecution seeks to rely, these
contradictions cannot be completely ignored especially in
view of the fact that victim on being shown her previous
statements, which resulted in these contradictions, did not
put forward any explanation or stated that she had
forgotten these details but she outrightly denied making
these statements.
38. Considering the evidence discussed above, I find that
defence has been able to dent the testimony of victim and
she cannot be said to be a witness of sterling quality.
Therefore, it will be unsafe to rely on the sole testimony of
victim. I accordingly find that the prosecution has failed to
prove its case beyond all reasonable doubts. The accused is
accordingly acquitted of all the charges framed against
him. His bail bond stands cancelled. Surety stands
discharged.
3. The petitioner/State being aggrieved filed the present appeal
to challenge the impugned judgment on the 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 evidence led by the prosecution particularly
the testimony of the victim aged about 7 years. The impugned
judgment is not based factual matrix of the case and has ignored
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vital evidence led during trial. There is no material contradiction in
testimony of the victim. There is no material variation in statement
of victim recorded under section 164 of the Code and her statement
under section 161 of the Code. The trial court did not appreciate
presumption under section 29 and 30 of the POCSO Act while
appreciating the deposition of the victim. The victim was examined
after about 1 1/2 year of the incident and as such minor
contradictions in her deposition do not affect case of the
prosecution. The trial court wrongly disbelieved the testimony of
witnesses by observing that there are variations and contradictions.
It was prayed that impugned order be set aside.
3.1 The respondent filed reply wherein stated that the respondent
was falsely implicated in the present case. The trial court has passed
impugned judgment in accordance with law and does not call for
any interference. The trial court has rightly appreciated evidence.
The appeal is liable to be dismissed.
4. The prosecution case is primarily resting on testimony of the
victim as PW1. A witness is prime instrument to assist the court in
discovery of truth and is considered to be an important factor or
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integral part of the administration of justice. The role of a witness is
paramount in the criminal justice system. The trial court recorded
testimony of the victim as PW1 without oath after being satisfied that
the respondent was able to understand the questions put to her and to
give rational answers to the question. PW1/the victim deposed that
one day she was playing badminton with her sister on the roof of the
house and the shuttle had fallen on the roof of the adjoining house.
The sister of the victim asked her to bring the shuttle and thereafter
the victim went downstairs and entered in adjoining house. The
victim started to climb the stairs. The victim in stairs met one bhaiya
who pulled her nicker and checked her vagina (Su-su as witness
deposed) and checked her rectum. The victim was made to lie on
floor by said bhaiya who asked the victim to lick penis. The victim
refused to lick penis of the respondent then the respondent kissed on
her cheek. The victim came back at her home and informed the sister
and they also informed their mother. The respondent was beaten by
paternal uncle (chacha). The police also came there and brought her
to police station where she told everything to one aunty. The victim
also admitted her signatures on statement Ex.PW1/A recorded under
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section 164 of the Code and also admitted contents of statement
Ex.PW1/A after being read over to her. The victim as PW1 also
recollected the name of said bhaiya as Nikhil after hearing contents
of statement Ex. PW1/A. The victim as PW1 also identified the
respondent as Nikhil bhaiya. The victim as PW1 in cross examination
admitted that the mother of the respondent was a regular visitor to her
house and brother of the respondent namely, Rajesh and his wife and
children are residing at the first floor of the house of the respondent.
The victim as PW1 denied suggestions that when she had gone to the
house of the respondent at that time his mother and sister were on the
roof and were spreading wheat for drying or that mother of the
victim had tutored her to give the statement or that there was a
property dispute between her family and the family of the respondent
or that she falsely implicated the respondent being tutored by her
mother. The victim as PW1 admitted that there was no open
courtyard/aangan in the house of the respondent.
4.1 The prosecution also examined R, mother of the victim who
deposed that the victim on 12.09.17 at about 5:00/6:00 pm was
playing badminton on her roof with sister. PW2 further deposed that
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as informed by the victim/PW1, the shuttle cock fell down on the
roof of adjacent house where the respondent used to reside. The
Victim further told her that she along with respondent had gone to
collect the shuttle cock from the roof of that House where the
respondent took off the nicker of the victim and checked her from
front as well as behind. The victim also informed PW2 that the
respondent took out her penis and asked the victim to lick it.
Thereafter PW2 went to the house of the respondent and confronted
him. PW2 also identified the respondent. PW2 in cross examination
denied suggestion that the respondent had not done any act or that he
was falsely implicated due property dispute.
5. The Additional Public Prosecutor argued that the trial court has
not properly appreciated the testimony of the victim as PW1 who was
just aged about 8 years at time of deposition and there are no material
contradictions in the testimonies of witnesses examined by the
prosecution which can affect case of the prosecution. The Additional
Public Prosecutor further argued that there is no significant variation
in statement of victim Ex.PW1/A recorded under section 164 of the
Code and her statement under section 161 of the Code. The trial court
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has not considered presumption under section 29 and 30 of the
POCSO Act while appreciating the deposition of the victim. It was
argued that impugned order be set aside.
5.1 The counsel for the respondent argued that the respondent is
falsely implicated in present FIR Ex.PW2/2 which was registered on
the basis of statement of the victim. The prosecution is solely based
on the testimony of the victim/PW1. The victim in Rukka Ex. PW2/1
stated that she was playing badminton on the roof along with sister at
about 5:30/6:00pm and the shuttle cock fell on the roof of house of
the respondent and also stated the respondent was present in the
house and other family members were present on the roof. PW2
Ishwar Singh deposed that he received a Rukka on 13.09.2017 at
about 12:15 am from PW8 SI Monika for registration of FIR Ex.
PW2/2. The counsel for the petitioner further argued that the victim
PW1 in statement under section 164 of the Code Ex.PW1/1 stated
that she was playing badminton in the evening the shuttle cock cross
over in the courtyard of the house of the respondent.
5.1.1 The counsel for the petitioner further argued that there are
material contradictions in the testimony of the victim as PW1 and the
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statement Ex.PW1/1 of the victim recorded under section 164 of the
Code which created doubt that the victim PW1 was tutored. The
victim initially stated that she was playing badminton with her sister
and the shuttle cock had fallen on the roof of the house of the
respondent while in statement Ex.PW1/1 the victim stated that the
shuttle cock had fallen in |the courtyard of the house of the
respondent. The victim as PW1 deposed that the shuttle cock had
fallen on the roof of the adjoining house and there was no open
courtyard or aangan in the house of the respondent. It reflects that the
victim was tutored. The victim in her initial statement stated that the
respondent was alone at his house and everyone else of his family
was on roof whereas the victim in statement Ex.PW1/1 did not say
anything about family members of the respondent. The victim in
statement Ex.PW1/1 stated that shuttle cock was lying in the court
yard in the house of the respondent where the respondent stopped her
and committed alleged act whereas the victim in testimony as PW1
deposed that the respondent had given the shuttle cock to her.
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5.1.2 The counsel for the respondent further argued that the victim in
initial statement stated that everyone in family of the respondent was
at roof while in cross examination, the victim denied that when she
had gone to the house of the respondent, his mother and sister were
on the roof and were spreading wheat for drying. PW1 also stated
that the respondent was alone at his house but in cross examination
deposed that her mother was in a room on the ground floor. The
testimony of the victim as PW1 was not of sterling quality and for
this counsel for the respondent referred cross examination of the
victim as PW1. It was further argued that the trial court has
meticulously examined the evidence led by the prosecution and
appeal is liable to be dismissed.
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
same kind. The issue of evidentiary value of the testimony of child
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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.
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6.1 The Supreme Court in Ratansinh Dalsukhbhai Nayak V
State of Gujarat, (2004) 1 SCC 64 also held as under:-
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
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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
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,
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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
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
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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
Appeal bearing no 612/2023 decided on 31.10.2023 also took similar
view.
6.5 The testimony of the victim is narrated of entire incident with
clarity and trustworthy, credible and can be safely relied on. The
testimony of the victim as PW1 inspires confidence of the court.
7. The perusal of the initial statement of the victim as per rukka
Ex.PW2/1, statement Ex.PW1/1 and deposition of the victim as PW1
reflects that there are variations and contradictions. The trial court in
impugned judgment also referred contradictions and variations in
evidence led by the prosecution. The relevant portion of impugned
judgment highlighting contradictions and variations in the statements
and deposition of the victim as PW1 is reproduced as under:-
30. There is no contest to the contention of Id. Addl. PP that
in the cases where the offences are committed in isolation,
the sole testimony of the victim can be sufficient to bring
home the guilt of the accused. However, at the same time,
such a testimony has to be very credible and of sterling
quality. Meaning thereby, that there should be no
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improvements, inconsistencies or contradictions, which
would make the court to doubt the credibility of the victim.
31. In the present case, according to the initial complaint of
the victim, she was playing badminton on her roof and the
shuttle cock crossed over and fell on the roof of the house of
the accused. She further stated that she went to that house
and at that time, accused was alone and everybody else was
on the roof.
32. Therefore, here the first point which needs to be taken
into consideration is the contention of Id. counsel for
accused that had it been the case and the roofs were
adjoining each other, the victim in normal course, should
not have gone to the house of the accused to climb to the
roof and collect the shuttle cock but she could have asked
the neighbours to throw the shuttle cock back.
33. It is correct that this situation has not been put by ld.
Counsel tor accused to the victim during her cross
examination, however at the same time, it is also to be
noticed that the victim has categorically denied that at that
time, the family member of the accused were at the roof of
his house. Not only so, she had denied making this
statement to the police. She was confronted with her
statement Ex.PWl/Dl and she did not put forward any
explanation and only denied making this statement.
However, the same is a part of the record.
34. It is also to be noticed that according to the initial case
of the prosecution and the initial statement of the victim,
accused was in a position to commit the alleged act as he
was alone at the house. However, during her cross
examination, the victim admitted that the brother of
accused alongwith his wife and children was residing in the
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first floor that house but she stated that she had not seen
the children of Rajesh in that house on that day and
therefore, she could not admit or deny the presence of
children in the house. She volunteered that the mother of
the accused was in a room on the ground floor. Therefore,
the victim must have seen the mother of accused. Thus, in
the presence of his mother and within the area of visibility,
it could not have been possible for the accused to commit
such an act.
35. It is also to be noticed that on the one hand, in the initial
statement, the victim had stated that after the alleged
incident, she went on the roof, got the shuttle cock and then
went home. However, when she appeared as PWl, she
stated that after the incident, it was not she who went to the
roof to collect the shuttle but it was the accused who had
given the shuttle to her. Meaning thereby, the accused had
gone upstairs to collect the shuttle cock and came back. She
was confronted with this position and she denied that she
had stated to the police that she herself had gone to the roof
and collected the shuttle cock and then went to her house.
She was confronted with portion B to B of her statement
Ex.PWl/Dl where this fact was recorded but rather than
giving an explanation, she denied making any such
statement to the police.
36. It is also to be noticed that in the initial complaint, the
victim had stated that after collecting the shuttle cock, she
went home and informed her mother, who informed about
it to everyone else. However, in her statement u/s 164
Cr.P.C, she was silent as to how the matter was disclosed to
others. On the other hand, while appearing as PWl, she
stated that after collecting the shuttle cock, she went to her
house and informed her sister, who was on the roof.
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Thereafter, both of them went downstairs and informed
their mother. She was confronted with the situation as to
whether she herself had informed her mother or first, she
had informed her sister J and she deposed that she had not
told the police that initially she had told about the incident
to her sister J. Therefore, with regard to the disclosure of
the commission of the offence, there is an improvement
made by the victim.
8. It is correct and reflecting that there are contradictions,
discrepancies and variation in evidence led by the prosecution which
are also highlighted by the trial court in impugned judgment and also
pointed out by the counsel for the respondent during arguments. 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
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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
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.
8.2 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.
8.3 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
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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
shock at the time of occurrence and as such the normal
discrepancy does not affect the credibility of a witness.
8.4 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.
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8.5 The Supreme Court in Birbal Nath V The State of
Rajasthan & others, Criminal Appeal no. 1587 of 2008 decided on
30.10.2023 relied on Rammi V State of M.P., (1999) 8 SCC 649
wherein it was held as under:-
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.
8.6 The contradictions, variations and discrepancies in evidence
led by the prosecution as pointed out by the trial court in impugned
judgment and counsel for the respondent are minor and insignificant
variations and do not affect case of the prosecution. The testimony of
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the victim as PW2 cannot be discarded due to minor and insignificant
variation and contradictions. The trial court should have appreciate
and analyze the testimony of the victim as PW1 after considering fact
that the victim at time of deposition was just 8 years. The trial courts
in cases pertaining to child sexual abuses need to appreciate
testimony of child victim with sensibility and sensibility and should
not discard testimony of a child witness on surfacing of minor
contradictions and variations unless these contradictions, variations
and discrepancies affect root of the prosecution case. The victim at
time of deposition was just aged about 8 years and cannot be
expected to depose with perfection and minute details of the incident.
It is proved that the respondent removed his nicker in front of the
victim and took out his penis and asked the victim to lick his penis
and also kissed the victim. It appears that the trial court in impugned
judgment did not carefully analyze and appreciate the evidence of the
prosecution appropriately in the 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. The arguments
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advanced by the counsel for the respondent in this regard are without
any legal basis.
9. The Additional Public Prosecutor during arguments also
referred section 29 of POCSO Act argued that the trial court in
impugned judgment did not consider presumption as per section 29
of the 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 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. 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, the
Special Court shall presume that such person has committed or
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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.
10. The respondent in statement under section 313 of the Code
denied incriminating evidence and pleaded false implication and
innocence. The respondent stated that there was a property dispute
regarding purchase of the property bearing no 110 between his family
and the family of the victim which has been purchased by the mother
of the accused and due to this he was falsely implicated in this case.
The statement under section 313 of the Code not being a substantive
piece of evidence ensures principle of natural justice to the accused.
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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. 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. Section 313 of the
Code confers a valuable right upon an accused to establish his
innocence. The respondent in cross examination of the victim as PW1
and PW4, mother of the victim also took similar defence. The
defence taken by the accused does not inspire any confidence in
absence of specific details and appear to be vague, sham and without
any basis.
11. The victim was 7 years old at the 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
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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 (POCSO Act) 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 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 the evidence
led by it has proved in accordance with law that the respondenton
12.09.2017 at about 5:30/6:00 pm committed aggravated sexual
assault upon the victim who was a minor girl of 7 years of age by
removing his nicker and taking out his penis and asking the victim to
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lick his penis and kissed the victim. The impugned judgment cannot
be sustained and is accordingly set aside. Accordingly, the offence
under section 354A IPC and section 10 of POCSO Act are proved in
accordance with law and the respondent is convicted for these
offences.
12. List on 12.01.2024 for arguments on quantum of sentence.
DR. SUDHIR KUMAR JAIN
(JUDGE)
DECEMBER 15, 2023
AK
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