The Delhi High Court (DHC) in State v. Kaishar Ali, has recently reiterated that the power to grant leave to a petition against an acquittal must be exercised with care, as the presumption of innocence of the accused is further strengthened by his/her acquittal by the trial court and an order of acquittal should only be disturbed if there are substantial and compelling reasons to hold that the trial court was wrong.
In this case, a man was accused in a case registered under the Protection of Children from Sexual Offences (POCSO) Act for having had consensual sexual intercourse with a woman who had misrepresented her age before him.However, the girl had informed the police and the trial court that she had left with the accused of her own free will and that she had misled him to believe that she was a major i.e. that she was 18 years of age. The two had eloped after the girl's 12th Board Exam in 2015 and had intended to get married.
The trial court had acquitted the accused on two broad grounds namely, that it could not be held with certainty that the girl was a minor on the day she left home with the accused and that there was no element of the accused "taking away" or enticing the girl, as evident from the girl's deposition i.e. there was absence of "mens rea" which was required for a conviction under POCSO.
The DHC Bench comprising of Justices Manmohan and Sangita Dhingra Sehgal agreed with the trial court's decision and opined that no offence would lie since the accused was misled into believing that the girl was 18 years of age. Accordingly, the Court observed:
"Though this Court is in agreement with the contention of learned APP for State that the prosecutrix was a minor on the date of the incident, yet the element of mens rea, which is an essential ingredient of Sections 363/366/376 IPC is missing. In the present case, it is only because of a misrepresentation by the prosecutrix with regard to her age, which the respondent-accused bonafidely believed to be true that he allowed her to accompany him.
In fact, the statement of the prosecutrix clearly negates any charge including Section 6 of POSCO. Consequently, as the respondent-accused had not knowingly committed any offence, none of the charges can be said to have been proven."
In this regard, the DHC relied on the Apex Court's judgment in Ghurey Lal v. State of Uttar Pradesh, (2008) 10 SCC 450, wherein it was remarked:
"The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has “very substantial and compelling reasons” for doing so.Though the appellate court's power is wide and extensive, it must be used with great care and caution.”
The Apex Court made the above observation while emphasising that a trial court's appreciation of the case must be given due weightage, more so when the accused is acquitted. It had observed that:
"Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong. “
Applying these principles, the DHC Bench proceeded to uphold the acquittal and held that:
"It is also settled law that any acquittal order cannot be lightly interfered with by the Appellate Court, though it has wide powers to review the evidence and to come to its own conclusion. The power to grant leave must be exercised with care and caution because the presumption of innocence is further strengthened by the acquittal of an accused."
Accordingly, the State's petition was dismissed.
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