Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. L.P.512/2017
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Date of Decision: 6 September, 2017
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STATE ..... Petitioner
Through Mr. Avi Singh, ASC with Ms.Anaya
Singh, Advocate
Versus
ANAND KUMAR JHA ..... Respondent
Through None
CORAM:
HON'BLE MR. JUSTICE G. S. SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
CHANDER SHEKHAR, J. (ORAL)
CRL.M.A. 14642/2017(delay)
1. For the reasons stated in the application, delay of 99 days in filing of
the petition is condoned.
2. The application stands disposed of.
Crl. L.P.512/2017
3. The petitioner, by way of this petition, is seeking leave to appeal
against the impugned judgment of acquittal dated 21.02.2017 passed
by Learned Additional Session Judge, Karkardooma Court, New
Delhi in Sessions Case No. 44573/2015 arising out of FIR
Crl.L.P.512/2017 Page 1 of 12
No.22/2011 under Sections 376 IPC and 6 of POCSO Act registered
at Police Station Khajuri Khas.
4. The case of the prosecution as noticed by the Trial Court is that on
05.01.2015 PW-7 Yasmeen, mother of the victim made a complaint
to the police that she had been residing in a rented house with her
husband and children. She was a housewife and her husband Rahis
used to work as a labourer. On 02.01.2015, her daughter, the victim
aged about 6 years, student of class first, was playing outside the
house at 06:00 p.m. After playing the victim returned to her house
and at that time she was having a packet of namkeen in her hand.
When PW-7 complainant asked the victim about the packet the
victim told her that it was given to her by one uncle, namely Anand
Jha, the respondent and that he had taken her to a distant place where
lot of vehicles were parked. There he took off victim’s pajami , laid
over her, he put off his pant and touched his urinating organ onto
victim’s urinating part. PW-7 further stated that she told all these
facts to her husband. Thereafter, they started keeping eye upon the
victim, whenever she used to play so that the respondent Anand Jha
could be caught red-handed as he tries to coax and take away the
victim again on the pretext of getting her namkeen , for committing
wrong acts with her. PW-7 further started that on 05.01.2015, at
about 06:30 p.m., when the victim was playing in the gali ,
respondent came to her, caught her hand and tried to take her away.
She informed her brother-in-law (PW-14) Ashu Qureshi, who chased
the respondent and almost caught him before the respondent managed
Crl.L.P.512/2017 Page 2 of 12
to escape and that the victim informed her that he was the same
Anand uncle, who had committed the above acts with her three days
ago.
5. After registration of the complaint the respondent was apprehended.
6. By the order dated 31.03.2015, the Trial Court framed charges under
Section 376 IPC and Section 6 of the POCSO Act against the
respondent. The prosecution in order to prove its case examined 15
witnesses. The respondent herein did not lead any defence evidence.
The statement of the respondent was recorded under Section 313
Cr.P.C. whereby he pleaded not guilty.
7. Learned ASC for the State submitted that the Trial Court has
committed an error while acquitting the respondent and it failed to
take into consideration, the age of the child-victim. The Trial Court
has also failed to take into consideration that the statement of the
victim is corroborated by the mother in her statements, both under
Section 161 Cr.P.C. as well as Section 164 Cr.P.C. recorded before
the Magistrate. However, no submission has been made with regard
to the Trial Court’s observation that the father of the victim has not
been examined during the investigation as well as during the trial,
despite having knowledge of the said incident.
8. It is further submitted by the learned ASC for the State that the Trial
Court has failed to take into consideration the explanation for the
delay in lodging of FIR on 05.01.2015 while the incident had taken
place on 02.01.2015; that there is a gap between the date of the
Crl.L.P.512/2017 Page 3 of 12
incident and the date of lodging of the FIR because the parents
wanted to nab the accused red handed.
9. Learned ASC for the State also submitted that a conviction in rape
case can be made on the basis of sole testimony of the victim without
any corroboration though, in this case, the statement of the victim
was corroborated by her mother and all the facts on record prove the
case of the prosecution beyond any doubt.
10. Now, let us examine the contentions raised by the learned ASC for
the State in the light of evidence on record. The FIR Ex. PW-6/A was
registered on the complaint of the PW-7, mother of the victim. She
specifically named the respondent while providing other details of the
incident. However, in her deposition before the Court, PW-7 did not
name the respondent while submitting the facts as told to her by the
victim regarding the alleged acts of the respondent. She has further
testified that the respondent again tried to take away the victim on
05.01.2015 but he was followed by PW-14 Ashu Quareshi, uncle
( mausa ) of the victim and was caught by him before the respondent
somehow managed to run away. However, they followed the
respondent and reached his house. She called the PCR and then
complaint vide Ex. PW-6/A was recorded in the Police Station. It is
evident from the testimony of PW-7, mother of the victim that she
had not named the respondent and it implies that the mother of the
victim was not aware about the name of the respondent till that time.
However, she identified the respondent in the Court and then deposed
she came to know the name of the respondent in the Police Station
Crl.L.P.512/2017 Page 4 of 12
where he was brought and arrested in this case. She clarified in her
cross examination that she did not know the name of the respondent
till her statement was recorded in the Police Station and further she
came to know the name of the respondent in the Police Station when
he was brought there, which means that she did not know the name of
the respondent when she gave her complaint to the PW-6 Lady
Constable Sharmila. Whereas, the name of the respondent finds
mentioned in her complaint Ex.PW-6/A which implies that the
respondent was firstly apprehended only then complaint Ex.PW-6/A
was written or that name of the respondent was already known to the
mother of the victim. PW-8 HC Rajesh also deposed that the
complainant disclosed the name of the respondent when he first met
her, again contrary to the version of PW-7.
11. In the MLC of the victim Ex. PW-5/A, in the alleged history, which
was narrated by the PW-7 complainant, the name of the respondent
was not mentioned. The victim was taken to medical examination on
05.01.2015 and she was examined on 06.01.2015 at about 03:05 a.m.
PW-5 the doctor who had prepared the MLC submitted in her cross
examination that alleged history was given by the mother of the
victim but the name of the respondent is not recorded therein and that
she had verified the facts from the victim as well. PW-5 further
deposed that the name of the respondent was not disclosed by the
mother of the victim despite her asking about the same.
12. It has come on record that incident took place on 02.01.2015 and the
victim disclosed about it to her mother PW-7 on the same night.
Crl.L.P.512/2017 Page 5 of 12
However, she did not inform the Police; explanation is that, she
waited to catch the respondent red handed till 05.01.2015. It is
alleged against the respondent that he tried to take away the victim
once again.
13. The father of victim has not been examined though in the complaint
Ex-6/A, the complainant submitted that she had disclosed about the
incident to her husband and then they both started keeping an eye on
the victim. However, the father as noted above has not been
examined by the prosecution.
14. The complainant named the respondent in her complaint Ex.PW-6/A
wherein the name of the respondent finds mentioned. However,
according to PW-14 Ashu Quareshii uncle ( mausa ) of the victim, he
specifically admitted the fact that the victim did not know the name
of the respondent, prior to 05.01.2015 which is contrary to the victim
naming the respondent in her statement under Section 161 Cr.P.C.
recorded on 05.01.2015. If the complainant was not aware about the
name of the respondent till he was arrested, as observed by the Trial
Court, it cannot be expected by the victim who was then about six
years old to know about the name of the respondent. It certainly
suggests that the victim was tutored regarding the name of the
respondent as well as his identity. The arrest of the respondent as
held is highly doubtful and we do agree with the finding of the Trial
Court as held as under:-
Crl.L.P.512/2017 Page 6 of 12
“16......According to PW-7 the accused was brought at the
police station on 05.01.2015 itself after about 30 minutes of
recording of her statement. According to PW-11 Ct. Suraj Pal,
PW-12 IO and PW-14 Ashu Qureshi, the accused was arrested
on 06.01.2015, PW-12 deposed that on 06.01.2015 at about
07:00 p.m., information was given by PW-14 Ashu Qureshi
about the presence of accused in his house and thereafter, he
was arrested from there and on apprehension disclosed his
name as Anand Kumar Jha. The arrest memo of the accused,
Ex. PW-11/A also mentions his date of arrest as 06.01.2015
and time as 08:00 p.m. If the testimony of PW-7 is to be
believed, the accused was apprehended on 05.01.2015 and
therefore, all his arrest documents have been planted and ante-
dated. Thus, there is serious doubt regarding the identity of
the accused and it is apparent that he has been planted after
due deliberations and after making preparations for it or in the
alternative all the documents are ante-dated timed and
therefore cannot be relied upon.”
15. We also find that the site plan of the incident Ex.PW-12/B which was
prepared by the Investigating Officer does not bear the signature of
the complainant, despite being prepared at her instance. In this
regard, the Investigating Officer deposed that he had prepared the site
plan at the instance of the mother of the victim but on the other hand
PW-7 the mother of the victim, in her cross examination stated that
she had not visited the place of the incident but later on she had
shown the said place to the Police. If the mother had not visited the
said place, then there was no question to point out the same to the
Police. In the manner, the site plan has been prepared, the
observation of the Trial Court is correct that it was hit by the
provisions of Section 162 of the Cr.P.C. The place of incident is also
Crl.L.P.512/2017 Page 7 of 12
not properly identified during the trial as firstly, the victim deposed
that the respondent took her to a place where many vehicles were
parked where he committed the alleged act inside a „gaadi‟ (car).
The victim did not specifically state the place either in her statement
under Section 161 or 164 of Cr.P.C. There is nothing on record to
suggest that the victim led either the complainant or the Police to the
said place. As already observed hereinabove, PW-7 victim’s mother
deposed that she had not visited the place of incident after the victim
told her about it. If the testimony of the victim is to be believed, the
place of incident was a car parking. However, the site plan Ex.PW-
12/A depicts the place of incident to be Gali No.5, A-Block, Sonia
Vihar, no such parking place has been shown therein. On the
contrary, PW-8 HC Rajesh who was the first to reach the spot
deposed that the complainant had pointed out to the room where the
alleged incident took place and which was inspected by PW-12
Investigating Officer. Thus, according to him the incident took place
in a room, contrary to the version of the victim. However, PW-12
never deposed about any room as the place of the incident. He also
deposed that the respondent had led to the place of incident and
pointed it out, upon which he prepared the pointing out memo.
However, in the cross examination, the IO admitted that the said
pointing out memo was never enclosed with the report under Section
173 Cr.P.C. Thus, the place of the incident itself could not be
identified and is totally unknown.
Crl.L.P.512/2017 Page 8 of 12
16. The respondent had taken a defence that no such incident ever took
place on 02.01.2015 and he had been falsely implicated in this case.
In his examination, under Section 313 Cr.P.C., he took the plea that
on 02.01.2015 at about 02:00 p.m., he was carrying household
articles in his rickshaw on which the mother of the victim was sitting
and when he reached in the gali , children were playing there
including the victim and cautioned them by ringing the bell of the
rickshaw but accidentally victim sustained some injuries on which a
quarrel took place between him and the family members of the
victim. Though, some neighbours tried to pacify the matter, the
victim’s mother lodged a false complaint against him after three days.
The appreciation of the evidence as aforesaid and the lacunae
appearing in the prosecution case makes the story of the respondent
quite plausible. It is also gathered from his statement that some
public persons had also witnessed the incident i.e. the alleged quarrel
between him and victim’s mother as stated by the respondent. In this
regard, PW-12 in his cross examination deposed that he had made
inquiries from the neighbours but none of them gave any statement
regarding the incident. He also deposed that the neighbours had
disclosed that they had no knowledge about the alleged incident.
17. The victim has made specific allegations against the respondent and
maintained her version before the Court as stated in her statement
under Section 164 Cr.P.C. alleging that the respondent took her to a
place where he had put off her pajami , rubbed himself against her
and then threw the seminal discharge. PW-3, the victim, deposed in
Crl.L.P.512/2017 Page 9 of 12
the Court that one boy gave her namkeen and took her to a place
where many vehicles were parked, made her sit there, took off her
pajami and also his pant half down. She has further deposed that he
made her stand, hugged her, touched his male organ to her private
parts and then took out mucus from his male organ and threw it
away. A close scrutiny of her deposition, as held by the learned Trial
Court, would show that the positions, in which she and the
respondent were, are not compatible. Firstly, she deposed that the
respondent made her sit and took her pajami and then put his pant off
half down when they were inside a car. She then deposed that the
respondent made her stand while he himself was sitting and then he
hugged her and touched his male organ with her private parts, which
is not reconcilable.
18. The case of the prosecution further stands weakened as the mother of
the victim refused for the internal medical examination of the victim
and no external injuries were found. Since there were no external
injuries, MLC is also of no help.
19. The husband of the complainant despite being informed regarding the
incident on 02.01.2015 was not examined by the prosecution. Time
of arrest of the respondent is also doubtful. Site plan is unreliable.
Place of incident is also doubtful as discussed herein above. The
discussions also demonstrate that there was prior knowledge
regarding the name of the respondent and that is evident from the
consistent testimonies of PW-5, PW-6 and PW-7. There is
contradiction regarding time of arrest of the respondent, in view of
Crl.L.P.512/2017 Page 10 of 12
the testimonies given by PW-7, PW-11, PW-12 and PW-14. PW-3
stated that incident took place in the „gaadi ’ (car) whereas PW-18
deposed that PW-7 pointed out a room in Gali No.5, A-Block, Sonia
Vihar. According to the statement of the respondent recorded under
Section 313 Cr.P.C., the quarrel had taken place between him and the
family members of the victim on the ground that respondent was
riding a Rickshaw and victim along with other children was playing
in the gali and the respondent ringed the bell but somehow the victim
sustained some injuries on which quarrel took place and that is why
the mother of the victim falsely implicated the respondent.
20. In the light of the above discussions, we hold that the prosecution has
failed to prove its case beyond any shadow of doubt against the
respondent and we are in agreement with the conclusion arrived at by
the learned Trial Court, consequently the leave to appeal is held to be
devoid of any merit.
21. Even otherwise, it is settled law that the appellate court may only
interfere in an appeal against acquittal when there are substantial and
compelling reasons to do so [See Sheo Swarup v. King-Emperor,
AIR 1934 PC 227 (2); M.G. Agarwal v. State of Maharashtra, AIR
1963 SC 200 (paragraph 16 and 17) ; Tota Singh and Anr. v. State of
Punjab, AIR 1987 SC 108: (1987) 2 SCC 529 (paragraph 6) ; State
of Rajasthan v. Raja Ram, (2003) 8 SCC 180 (paragraph 7) ;
Chandrappa v. State of Karnataka, (2007) 4 SCC 415 (paragraph
42) ; Ghurey Lal v. State of U.P., (2008) 10 SCC 450 (paragraph 73);
Crl.L.P.512/2017 Page 11 of 12
and Muralidhar @ Gidda v. State of Karnataka, (2014) 5 SCC 730
(paragraph 12)] .
22. Accordingly, we find no ground to interfere in the judgment of the
Trial Court. The personal bonds and the sureties under Section 437-A
Cr.P.C. are discharged.
23. The leave to appeal is dismissed.
(CHANDER SHEKHAR)
JUDGE
(G. S. SISTANI)
JUDGE
September 06, 2017/b
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