Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 486/2017 & Crl. M. A. No.13841/2017
STATE ..... Petitioner
Through: Mr Amit Gupta, APP for State.
versus
RAJU ..... Respondent
Through Mr. Harsh Vardhan Sharma,
Advocate.
W/SI Prabha, P.S. R. G. Metro.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
O R D E R
% 07.02.2020
VIBHU BAKHRU, J
1. The petitioner has filed the present leave to appeal against a
judgment dated 10.01.2017 rendered by Special Judge (POCSO
Act)/ASJ-01 (Central Delhi) Tis Hazari Courts, whereby the respondent
was acquitted of the charges of committing offences punishable under
Sections 363/354/354A of the Indian Penal Code, 1860 (IPC) and
Section 10 of the Protection of Children from Sexual Offences Act,
2012 (POCSO Act).
2. The said proceedings arose from the FIR No. 130/2014 under
Sections 308/323/354B/34 of the IPC, registered with PS Prasad Nagar.
The case of the prosecution is that on 15.03.2014, on the basis of
information received from one Brij Mohan, police officials reached at
CRL.L.P. 486/2017 Page 1 of 11
House No. 16/226 I, Bapa Nagar, Delhi where they found the
respondent alongwith a young child ‘R’ (her name is withheld for
protecting her identity). Initially, R claimed herself to be the daughter
of the respondent, however, on verification, it was found that she was
not his daughter. Thereafter, the child was taken to her father and her
statement led to the registration of the FIR in question (FIR No. 130/14).
3. The victim’s statement was recorded under Section 164 of the
CrPC, wherein she stated that on the day of choti holi , she was going to
her father. On her way, she met her father’s friend Raju
(accused/respondent) who took her to Anand Parbat in an auto-
rickshaw. She stated that he took her to a room in his house and closed
the door of the said room. Thereafter, he started misbehaving with her
and touched her inappropriately at her private part ( galat
jagah;“bathroom ki jagah par haath laga rahe the” ). She raised an
alarm and thereafter, his nephew came and asked the accused to leave
her or he would call the police. Both accused and his nephew had an
altercation thereafter and then, the said bhaiyya called the police. After
the police arrived at the spot, the accused asked the victim to tell the
police that he was her father otherwise he won’t drop her to her father’s
place. She stated that under fear of this threat, she told the police that
the accused was her father. Thereafter, the police took the accused to
the police station.
4. On the basis of the allegations, charges for commission of
offences under Sections 363/354/354A of the IPC and Section 10 of the
POCSO Act, were framed against the petitioner. He pleaded not guilty
CRL.L.P. 486/2017 Page 2 of 11
to those charges and the matter was set down for trial.
5. During the trial, the prosecution examined seven witnesses. The
victim (R), who was 10 years old at the material time, deposed as PW2.
She was examined in question-answer format, wherein she stated that
she knew the respondent and he used to come to their house as he was
her father’s friend. She further deposed that one day, the respondent had
met her on the way at about 3 pm while she was coming back from
school. She was going to her father’s shop after school. In the pretext
of giving her pichkari and balloon, he took her Anand Parbat in auto-
rickshaw. He took her to the first floor of his house and after taking her
inside the room, he touched her private part ( shushu ) over the clothes.
She raised an alarm and as a result, one person ( bhaiyya ) came there.
Thereafter, the accused (respondent herein) asked her to not raise the
alarm otherwise he would not take her to her father’s shop. She further
deposed that the said person enquired from the accused as to why he
had brought R there. In reply, the accused told him to mind his own
business. There was a small altercation between the accused and the
said person. Thereafter, the said person called the police. According to
R, the accused had asked her to tell the police that he was her father.
Thereafter, the police arrived and she told the police that she was the
daughter of the accused. Thereafter, the police took her to her father’s
shop, from where she alongwith her sister and father went to the police
station. She stated that her statement was recorded in the police station.
6. In her cross-examination, she stated that the accused had taken
her to his home with the permission of her father and the purpose of
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taking her was to buy “ pichkari ” and balloons for her. She further
deposed that the accused had met her at 02:45 pm and the police had
arrived at 03:00 pm. She stated that after they had reached the accused’s
house, he left her in the room and went outside to bring pakoras for her.
Thereafter, the “ bhaiyya (the informant PW6) had come there after
about five minutes when we ate pakoras .” She further deposed that she
did not raise any alarm when she was eating pakoras with the accused
and when the said bhaiyya came to the room. She accepted that the said
informant had reached there by chance and not by any alarm. She had
further told police that the accused had touched her shushu over her
clothes.
7. It was the case of the defence that there were no public witnesses
despite the presence of persons at the said place and the FIR in question
was registered after about six hours. Further, the victim (the child) was
of ten years of age and after her statements in her cross-examination,
she could not be treated as a reliable witness. It was further contended
that the child was taken by the accused (the respondent herein) with her
father’s consent and thus, no offence of kidnapping could be made out.
8. The Trial Court, after examining the evidence as obtaining in the
case, observed that the prosecution’s case rests solely on the testimony
of the child (the victim). The court observed that and while evaluating
her testimony, it had to be kept in mind that the child is of
impressionable age (10 years of age). The Trial Court, in the light of
observations made in Dattu Ramrao Sakhare v. State of Maharashtra:
(1997) 5 SCC 341 regarding the reliability on the evidence obtained
CRL.L.P. 486/2017 Page 4 of 11
through a child witness, held that in the circumstances of the case,
expecting PW2 to be precise about the time would be unreasonable
specially keeping in view her age and understanding. The Trial Court
perused her testimony and found out that the incident occurred in the
afternoon on 15.03.2014 and this fact was corroborated by the
testimony of other witnesses – PW3 Ct. Irfan Mohd., PW4 HC Naresh
Kumar and PW6 Brij Mohan. According to PW3, he went to the spot at
about 03:45 pm. Further, it was deposed by PW4 – who was working
as the duty officer – that he recorded DD No. 20A on 15.03.2014 at
about 03:42 pm. PW6 deposed that the timings of the arrival of the
accused alongwith the victim at Bapa Nagar, Pyare Lal Road, I Block
Gali No. 2, Delhi was at about 03:00 pm - 03:30 pm. Thus, it was
evident that the incident had occurred at around 03:00 pm or so and
thus, any minor discrepancies in the timings were of no consequence.
9. As regards to the non-joining of public witnesses, the Trial Court
observed that although 10-15 persons had gathered at the spot, the non-
joining of other public witnesses was inconsequential as the informant
Brij Mohan (PW-6) was a member of the public.
10. However, the Trial Court held that the statements made by the
victim in her cross-examination proved fatal to the case of the
prosecution, as she had deposed in her cross-examination that she was
taken by the accused to his house with the permission of her father and
the accused had done the same in order to buy pichkari and balloons for
her. In the circumstances, the allegations under Section 363 of the IPC
could not be sustained against the accused, as he did not take away the
CRL.L.P. 486/2017 Page 5 of 11
victim from her lawful guardian by any foul means. The Court further
observed that in her examination, the victim had stated that the accused
had taken her inside the room and had inappropriately touched her over
the clothes and thereafter, she raised an alarm. Whereas, in her cross-
examination, she stated that the accused, after taking her to his house,
had gone outside to bring pakoras which were eaten by both of them
together. PW6 had arrived at the spot after about five minutes of the
consumption of the pakoras and she further confirmed that PW-6 had
arrived there by chance as she did not raise any alarm.
11. The Trial Court observed that the testimony of PW-6 was
contrary to that of the victim, as PW6 had deposed that he had noticed
the accused coming alongwith the victim in his room and he had gone
to the room of the accused and enquired about the girl. He was not
satisfied and got suspicious, thereafter, he made a call to the PCR
suspecting some foul-play. According to the Trial Court, this indicated
that he arrived at the spot without any alarm or reason and there is no
explanation as to how the accused, after having a small altercation with
PW-6, went to fetch pakoras and ate the same as well along with the
victim. In the circumstances, the Trial Court held that the
“ corroborative piece of evidence in the shape of PW6 was unable to
corroborate, supplement and substantiate the testimony of the victim,
rather his own testimony comes under cloud .”
12. The Trial Court further held that during the incident, the victim
was helpless for a period of 15-20 minutes and in the scenario, the
accused could have made an attempt to do something inappropriate by
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taking her clothes off but no such attempt was made on his behalf. Thus,
the intention to commit the molestation or outrage the modesty of the
child could not be inferred. Although the victim had stated that she was
touched inappropriately, the possibility of she getting touched
unintentionally could not be ruled out.
13. In view of the above, the accused was given the benefit of doubt
and was acquitted of all the charges put against him.
14. The case of the prosecution rested, principally, on two witnesses
– the victim who was examined as PW2 and one Brij Mohan (the
nephew of the accused) who was examined as PW6. Undeniably, the
testimony of both – the victim and PW6 – raise doubts as to the case set
up by the prosecution. PW6 has testified that he had gone to the room
of his chacha (the accused) and had seen that he had brought a little girl
in his room. He stated that he enquired from his chacha as to who is the
girl and in response, he stated that she was his daughter. The respondent
(accused) is unmarried. PW6 stated that the accused had asked him to
go to his house and he released that there was something wrong
happening and he made a PCR call.
15. It is relevant to note that PW6 did not state that he arrived on the
spot on hearing any alarm from the victim. On the contrary, he stated
that he went to the room as he had seen that he had brought a little girl
to his room. In his cross-examination, he stated that he had followed the
respondent when he was taking the girl into his room. This testimony is
inconsistent with the statement made by PW2 (victim). In her initial
CRL.L.P. 486/2017 Page 7 of 11
statement, she had stated that the respondent had taken her inside the
room and he had touched her private part over her clothes and she had
raised an alarm. In response to a question whether any person had come
after hearing the alarm, she responded that one bhaiya , identified as
PW6, had come there. In here cross-examination, the victim stated that
she had reached the house at about 03:00 pm to 03:30 pm and bhaiya
(referring to PW6) had come there after about 15 to 20 minutes. She
also stated that the respondent had left her in a room and had gone
outside to bring pakoras for her. Thereafter, she and respondent had
eaten them. Her statement was contrary to PW6. Her testimony raises
serious doubts as to the testimony of PW6 that he had followed the
respondent and the girl to his room. If the victim’s statement is
accepted, it would mean that she was in the room for a considerable
period of time before PW6 had arrived there. This would also include
the time she was alone in the room on account of the respondent having
gone to fetch pakoras .
16. There is a serious doubt whether the victim had raised any alarm,
as stated by her in her initial examination. This is so because PW6 does
not testify of hearing any alarm. The victim in her cross-examination
also confirmed that PW6 had come there by chance and not by hearing
any alarm. In fact, she had responded in the negative to a question
whether she had raised any alarm when she was eating pakoras with the
accused and when the said bhaiya had come to the room.
17. It appears from her statement that the accused had gone out to get
pakoras leaving her in the room. He had come back with pakoras and
CRL.L.P. 486/2017 Page 8 of 11
they both had eaten them and at no point she had raised any alarm. PW6
had come to the room about five minutes thereafter and even at that
stage, she had not raised any alarm. This has raised doubt as to whether
the alleged incident had, in fact, occurred. According to the victim, she
had raised an alarm immediately. If her testimony regarding raising the
alarm is discounted, a doubt as to her statement regarding the
commission of the alleged offence would inevitably follow.
18. It is also important to note that the prosecution’s case was of the
victim being kidnapped. In the context of this allegation, the act and the
actions of the respondent taking her into his room has sinister overtones.
However, the prosecution’s case that the respondent had kidnapped the
victim has been unambiguously demolished, as he had taken the
petitioner with the due consent of her father. The fact that he had
brought pakoras for her also give an impression that he was indulging
her as one would indulge any child. The Trial Court had also noted that
if the respondent had any further evil designs with regard to the victim,
he had sufficient opportunity to execute the same but the fact that he did
not do so, raises a doubt as to whether he had, in fact, touched her
private part over the clothes, as alleged.
19. Although the Court is normally reluctant to entertain the
testimony as to the statement made by child witness, however, in the
present case, part of the statement made by the victim is not found to be
correct and thus, a doubt is raised as to her statement as to the alleged
offence. The statements made by the victim also remained
uncorroborated. It is important to bear in mind that in the present case,
CRL.L.P. 486/2017 Page 9 of 11
there is no possibility of any medical or any forensic evidence as no
offence, which would possibly leave any such footprint, is alleged to
have been committed. The punishment for offences under the POCSO
Act is severe and thus, it becomes necessary for the prosecution to
clearly establish the same. The prosecution is required to meet the
necessary standards of proof – establishing that the respondent was
guilty of the offence charged beyond any reasonable doubt.
20. In Ghurey Lal v. State of Uttar Pradesh : (2008) 10 SCC 450 , the
Supreme Court had observed as under: -
“69. The following principles emerge from the cases
above:
1. The appellate court may review the evidence in
appeals against acquittal under Sections 378 and 386
of the Criminal Procedure Code, 1973. Its power of
reviewing evidence is wide and the appellate court
can reappreciate the entire evidence on record. It can
review the trial court's conclusion with respect to
both facts and law.
2. The accused is presumed innocent until proven
guilty. The accused possessed this presumption when
he was before the trial court. The trial court's
acquittal bolsters the presumption that he is innocent.
3. 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.”
21. In the present case, this Court is unable to find any substantial or
CRL.L.P. 486/2017 Page 10 of 11
compelling reason for overruling the decision of the Trial Court to
acquit the respondent. The Trial Court has evaluated the evidence and
its opinion that the prosecution has failed to meet the standard of proof
(beyond reasonable doubt) required to convict the respondent, is a
plausible one.
22. The petition is, accordingly, dismissed. The pending application
is also disposed of.
VIBHU BAKHRU, J
FEBRUARY 07, 2020
RK
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