Delhi High Court: Appellant-convict filed the present appeal under Section 374(2) of Criminal Procedure Code, 1973 (‘CrPC’) challenging the judgment and order on sentence dated 09-01-2013 and 16-01-2023 respectively passed by Additional Sessions Judge, Special Court POCSO, Saket Court, New Delhi (‘the Trial Court’). Anoop Kumar Mendiratta, J.*, opined that the Trial Court had completely missed to appreciate the contradictions in the present case and the defence of appellant was also duly supported by the police entries. The quarrel at the time of incident and matrimonial differences provided a strong motive for falsely implicating the appellant. The Court opined that “as a wrongful acquittal shakes the confidence of people, a wrongful conviction is far worse. A child abuser in the eventuality of false implication even continues to suffer a blot of social stigma which is much more painful than the rigours of a trial and imprisonment.”
Further, the case was marred by inadequacies and contradictions which struck to the root of the case and, as such, there was a failure to bring the charge against the appellant beyond reasonable doubt. Thus, the Court set aside the judgment and order on sentence passed by the Trial Court and held that appellant was acquitted and released forthwith, if not required in any other case.
Background
In the present case, a written complaint was given by the victim, who was about twelve years on 16-09-2016 stated that ever since her father had expired, she was living with her grandmother, uncle and aunty. Appellant was her aunt’s brother, who visited their house and taught her wrong things. On 10-09-2016, when appellant came to their house, she went to meet him in her aunt’s room. After some time, when her aunt went to bathroom, appellant started kissing her and pressed her chest, but she somehow released herself from his clutches and ran away. In the evening, at the time of going to his house, appellant threatened to kill her in case she made any complaint against him. However, after reaming upset for many days, and on asking by her grandmother, she disclosed the incident on 16-09-2016. Accordingly, the FIR was registered under Sections 354, 509 and 506 of the Penal Code, 1860 (‘IPC’) and Sections 8 and 10 of the Protection of Children from Sexual Offences Act, 2006 (‘the POCSO Act’).
Thus, charge-sheet was presented after completion of investigation and charge was framed against appellant for the offences punishable under Section 506 of the IPC and Sections 6 and 10 of the POCSO Act. The Trial Court held that the victim’s testimony was trustworthy and, as such, there was no bar in law to base conviction on the testimony of solitary witness. Thus, appellant filed the present appeal.
Analysis, Law, and Decision
The Court opined that the principle was well settled that the Court could base conviction on the testimony of the child victim, if the same was credible and truthful. Corroboration was not a must on record but was a rule of prudence. The precaution which the Court should bear in mind while relying upon the testimony of a child victim was that the witness must be reliable, consistent and there was no likelihood of being tutored or under an influence. The version put forth had to be unassailable, trustworthy and of sterling quality, capable of holding appellant guilty on the basis of solitary evidence.
The Court noted that there was a matrimonial dispute between uncle and aunty of the victim, due to which, appellant along with his father and other persons had visited the house of his sister for resolution of matrimonial disputes on 10-09-2016. A call was made to the police after the quarrel and police visited the home. However, despite visit of police to the spot, no complaint of sexual assault was made by the victim. Subsequently, on 16-09-2016, she made the complaint, it was stated that appellant had kissed her and pressed her chest. Thereafter, in her statement under Section 164 of the CrPC, victim improved the version and stated that appellant had made her sit on the lap and kissed her neck. Further, she alleged that appellant kept his hand on her chest and on her vagina. Furthermore, in another supplementary statement of victim under Section 161 of the CrPC, victim alleged that apart from keeping the hand on her vagina, appellant had also inserted the finger.
Thus, the Court opined that keeping these facts in perspective, the delay in lodging the FIR along with variations and contradictions in the victim’s statements assumed significance. Further, it could not be ignored that the entire incident was alleged to have happened only within a short period of time while the victim’s aunt went to the bathroom and was followed by an altercation due to matrimonial disputes on which the police was called but the incident was not revealed. The Court opined that the Trial Court had completely missed to appreciate the contradictions in the present case and the defence of appellant was also duly supported by the police entries. The quarrel at the time of incident and matrimonial differences provided a strong motive for falsely implicating the appellant.
The Court referred to Section 29 of the POCSO Act and opined that at the first instance it was required to establish the foundational fact that the incident as alleged was conveyed by the victim to her grandmother. However, the evidence and statements during the investigation reflected different dates of the alleged communication of the incident, which throwed a doubt on the case. Further, even if the foundational facts were proved the same stood discredited by way of discrepancies brought in cross-examination of the victim and witnesses examined in defence.
The Court opined that the presumption of guilt under Section 29 and 30 of the POCSO Act taken by the Trial Court could not be an edifice to convict the appellant since the victim’s testimony was unreliable and there were serious flaws and gaps in the case. The Court opined that “as a wrongful acquittal shakes the confidence of people, a wrongful conviction is far worse. A child abuser in the eventuality of false implication even continues to suffer a blot of social stigma which is much more painful than the rigours of a trial and imprisonment.” Further, the case was marred by inadequacies and contradictions which struck to the root of the case and, as such, there was a failure to bring the charge against the appellant beyond reasonable doubt.
Thus, the Court set aside the judgment and order on sentence passed by the Trial Court and held that appellant was acquitted and released forthwith, if not required in any other case.
[Veerpal v. State (NCT of Delhi), 2024 SCC OnLine Del 2686, decided on 15-04-2024]
*Judgment authored by- Justice Anoop Kumar Mendiratta
Advocates who appeared in this case:
For the Appellant: Nagendra Kasana, Aditya Sharma, Palak and Rajesh R. Rathod, Advocates;
For the Respondent: Meenakshi Dahiya, APP for State with SI Satyapreet, PS Jaitpur; Bir Singh and Ravi Nirvan, Advocates.
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