Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 930/2024
SHIVAM .....Appellant
Through: Mr. Rajesh Mishra, Adv.
versus
STATE GOVT. OF NCT OF DELHI .....Respondent
Through: Ms. Kiran Bairwa, APP for the State.
SI Rahul Tomar, PS Gandhi Nagar
% Date of Decision: 03.12.2024
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
J U D G M E N T
DINESH KUMAR SHARMA, J. (Oral)
CRL.A. 930/2024 and CRL.M(B) 1668/2024
1. The present appeal under Section 415(2) B.N.S.S. of 2023 read with
Section 528 of B.N.S.S. of 2023 has been filed against the judgment
dated 27.03.2024 and the order on sentence dated 27.05.2024, passed
by the Court of ASJ-06, Special Judge (POCSO Act), East District,
Karkardooma Courts, Delhi, in S.C. No. 86/2017, arising out of FIR
No. 348/2016, under Sections 363/366/354A/354D IPC and 8/12
POCSO.
CRL.A. 930/2024 Page 1 of 9
Signature Not Verified
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Signed By:PALLAVI VERMA
Signed By:DINESH KUMAR
SHARMA
Signing Date:05.12.2024
15:35:01
Signing Date:05.12.2024
15:36:06
2. Vide judgment dated 27.03.2024, the appellant was convicted for
offences punishable under Sections 10/12 POCSO along with
Sections 354/354A/354D/511 IPC. Vide order on sentence dated
27.05.2024 the appellant was sentenced to SI for 05 years with fine
Rs.5000 and in default of fine further SI for 15 days for offence under
Section 10 POCSO, SI 03 years with fine Rs.3000 and in default of
fine further SI of 10 days for offence under Section 12 POCSO, SI 03
years with fine Rs.3000 and in default of fine further SI of 10 days for
offence under Section 354 IPC, SI 03 years 6 months with fine
Rs.3000 and in default of fine further SI of 10 days under Section 511
IPC for attempt to commit offence under Section 363 IPC and SI 05
years with fine Rs.5000 and in default of fine further SI of 15 days
under Section 511 IPC for attempt to commit offence under Section
366 IPC. All the sentences were ordered to run concurrently.
3. Facts in brief are that on 09.08.2016, the police received a call
subsequent to which they went to Gandhi Nagar where the victim's
father and uncle had detained the accused/appellant, Shivam. The 12-
year-old victim (at the time of incident), a Class-V student, stated that
the appellant had been harassing her for the past 4-5 days on her way
back home from school, thereby asking her to come to his house and
by inappropriately touching her. Furthermore, the victim stated that
on the day of the incident, the accused/appellant again approached the
victim and tried to drag her towards Som Bazar. The accused was
detained by the passer-by and uncle of the victim.
CRL.A. 930/2024 Page 2 of 9
Signature Not Verified
Signature Not Verified
Signed By:PALLAVI VERMA
Signed By:DINESH KUMAR
SHARMA
Signing Date:05.12.2024
15:35:01
Signing Date:05.12.2024
15:36:06
4. Investigating Officer, SI Neelam, during the course of investigation
collected age-related documents of the victim and after completion of
investigation charge sheet was filed. Charges were framed against the
appellant on 06.01.2018 under Sections 10 and 12 of the POCSO Act
and Sections 354, 354A, 354D, and 363/366 IPC.
5. During trial total nine witnesses were examined. The
accused/appellant was examined under Section 313 Cr.P.C., wherein
he claimed to be not guilty and stated that he had falsely been
implicated in the case. It is pertinent to mention that the parents of the
victim were not produced by the prosecution and stated to be non
traceable.
6. In the present appeal filed, the impugned judgment has been assailed
on the following grounds:
a) The victim’s statement under Section 164 Cr.P.C. contradicts
the police report, suggesting manipulation to falsely implicate
the appellant. The Trial Court failed to consider that key
prosecution witnesses, including the victim (PW1), gave
inconsistent statements. The police fabricated a false story, and
the appellant did not commit the alleged offenses. PW-2, an
eyewitness, did not identify the appellant as he was not cross-
examined by the prosecution. The prosecution did not prove the
case beyond a reasonable doubt, and the impugned judgment is
liable to be set aside.
b) The appellant submitted that the place of incident is in a
CRL.A. 930/2024 Page 3 of 9
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Signed By:PALLAVI VERMA
Signed By:DINESH KUMAR
SHARMA
Signing Date:05.12.2024
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Signing Date:05.12.2024
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residential area, yet the Investigating Officer (IO) did not join
any public/independent witnesses. Instead, the police fabricated
a false story and created a case against the accused/appellant.
Furthermore, in her statement under Section 164 Cr.P.C., PW-1
(the victim) did not allege kidnapping or molestation and did
not support her earlier version recorded by the police.
c) Both PW-1 and PW-2 gave inconsistent statements, making
their testimonies unreliable. Learned Trial Court failed to
provide proper legal aid, as the counsel was unavailable during
PW-1’s testimony, rendering it invalid. Additionally, the court
erred by relying on unproven hypothesis instead of the required
credible evidence.
7. Learned Counsel for the Appellant has submitted that there were no
allegations against him in the victim's statement under Section 164
Cr.P.C., and that the police manipulated the FIR to falsely implicate
him. Furthermore, it has been submitted that the prosecution
witnesses, including the victim (PW1), gave inconsistent statements at
different stages. Learned counsel submits that crucial witnesses like
PW2 did not support the prosecution's case and even failed to identify
the appellant. Moreover, learned counsel submitted that the Trial
Court did not provide proper legal aid to the appellant, and the
testimony recorded without the appellant’s counsel cannot be
considered valid evidence.
8. Per Contra, learned APP has opposed the present appeal, submitting
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Signed By:PALLAVI VERMA
Signed By:DINESH KUMAR
SHARMA
Signing Date:05.12.2024
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that the learned Trial Court correctly recorded the judgment of
conviction of the appellant, emphasizing that the appellant committed
a very serious offense and the appeal ought to be construed strictly.
9. It is pertinent to note that PW-1/victim was not cross-examined.
Moreover, PW-2/brother of the victim who was stated to be at the
place of the incident failed to identify the appellant and was also not
cross-examined. The record further reveals that witnesses mentioned
at SI. No.3 and 4 i.e. the father and uncle of the victim were not
traceable, whereas the mother of the victim was not even included in
the list of prosecution witness and hence, were not examined. An
application under Section 311 Cr.P.C. was filed for recalling PW-
1/victim for cross-examination, which was dismissed by the learned
Trial Court vide order dated 13.12.2023, on the ground that the
application is filed at a very belated stage and further observed the
fact that since father of the victim was not traceable since 2018, so no
useful purpose will be served even if the said application was allowed.
10. In Harendra Rai vs. State of Bihar 2023 SCC OnLine SC 1023 the
Apex Court inter alia held that the purpose of Section 311 CrPC is not
to reopen trial, but the same is to ensure that the court may recall a
witness and re-examine the witness if the evidence of such witness
appears to be essential for the just decision of the case. In the facts of
the present case, the cross-examination of the star witness has not
been conducted and also the examination of the father and uncle of
the victim, which violated the principles of natural justice and the
CRL.A. 930/2024 Page 5 of 9
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Signed By:PALLAVI VERMA
Signed By:DINESH KUMAR
SHARMA
Signing Date:05.12.2024
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Signing Date:05.12.2024
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right of the accused to fair trial.
11. As per the statement of victim under section 164 dated 10.08.2016,
placed on record, there are no allegations of molestation or
kidnapping qua the accused/appellant. The statement of the victim
under section 164 Cr.P.C. is as under;
Thus, there are material inconsistencies in the statement of the
prosecutrix which makes her unreliable.
CRL.A. 930/2024 Page 6 of 9
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Signed By:PALLAVI VERMA
Signed By:DINESH KUMAR
SHARMA
Signing Date:05.12.2024
15:35:01
Signing Date:05.12.2024
15:36:06
12. In regard to the statutory presumption under Section 29 of the Act, it
cannot be said that the prosecution version has to be accepted as the
gospel truth. The presumption can never be absolute. It is a settled
proposition that the Court should strive to find out the true genesis of
the incident in cases where witnesses are neither wholly reliable nor
wholly unreliable. In the present matter the closure of right of cross-
examination has prejudiced the accused/appellant. Though in serious
offences the statement of the prosecutrix can be relied upon without
further corroboration, but the quality and credibility must be
exceptionally high and such testimony should be of sterling quality.
13. Perusal of the record also indicates that statement under Section 313
Cr. P.C. has not been properly recorded by learned Trial Court as the
incrimination evidence has not been put properly.
14. The requirement of section 313 of the Cr.P.C. is salutary and is not a
mere formality. The object of recording the statement of the accused
under section 313, Cr.P.C. is to put all incriminating evidence to the
accused so as to provide him an opportunity to explain such
incriminating circumstances appearing against him in the evidence of
the prosecution.
15. In Asraf Ali vs. State of Assam (2008) 16 SCC 328, it was inter alia
held that the object of a statement recorded under Section 313 Cr.P.C.
is that to establish a direct dialogue between the court and the
accused. The court further held that it is the right of accused to be
questioned about the matter and any important point in evidence
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Signed By:PALLAVI VERMA
Signed By:DINESH KUMAR
SHARMA
Signing Date:05.12.2024
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leading to an opportunity to explain himself in the said statement
under Section 313 Cr.P.C.
16. In the present case, it is imperative to say that the examination of
accused/appellant under Section 313 Cr.P.C.is improper and defective
and has thereby caused prejudice to him. It is well settled that, merely
on the account of non-compliance/inadequate compliance of section
313 CrPC, or defective examination of the same does not vitiate the
trial unless prejudice is shown to be cause to the accused. In the
present case, prejudice has been caused to the accused by way of
improper and defective examination under section 313 Cr.P.C.
leading to his conviction.
17. This Court finds that the failure to cross-examine critical witnesses
undermines the reliability of the evidence on record. The
contradictions in the statement of the prosecutrix go to the root of the
allegations and create reasonable doubt regarding the veracity of the
complainant/victim’s case. This procedural lapse, combined with the
inconsistencies in the complainant's statements, raises doubts about
the case of the prosecution. Learned Trial Court's reliance on
uncorroborated and inconsistent evidence is erroneous, and the
appellant's conviction cannot sustain in these circumstances.
18. In view of the above findings, the appeal is allowed, the judgment of
conviction and order on sentence dated 27.03.2024 and 27.05.2024,
respectively, passed by the learned Additional Sessions Judge-06,
Special Judge (POCSO Act), Karkardooma Courts, Delhi, in FIR No.
CRL.A. 930/2024 Page 8 of 9
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Signed By:PALLAVI VERMA
Signed By:DINESH KUMAR
SHARMA
Signing Date:05.12.2024
15:35:01
Signing Date:05.12.2024
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348/2016, are hereby set aside and the appellant is acquitted and be
released from the concerned jail, if appellant is not required in any
other case.
19. Accordingly, the present appeal along with pending application stands
disposed of.
DINESH KUMAR SHARMA, J
DECEMBER 3, 2024/ SC/KR/NA
CRL.A. 930/2024 Page 9 of 9
Signature Not Verified
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Signed By:PALLAVI VERMA
Signed By:DINESH KUMAR
SHARMA
Signing Date:05.12.2024
15:35:01
Signing Date:05.12.2024
15:36:06