Case BriefsHigh Courts

Sikkim High Court: A Division Bench of Bhaskar Raj Pradhan and Arup Kumar Goswami, JJ. while upholding the Judgment of acquittal passed by Special Judge (POCSO), held that,

A delicate balance is required to be maintained between the judicial perception of the anguish of the victim and the presumption of innocence of the accused and an inequitable tilt either way may not render sound justice.

Sole testimony of minor prosecutrix was that she was sexually assaulted by respondent that was disbelieved by Special Judge (POCSO).

Assistant Public Prosecutor submitted that the sole testimony as stated above had not been demolished during the cross-examination and as such the Special Judge erred in discarding it.

Complainant (PW-1) with whom the minor prosecutrix was staying for the last 4 months had filed the FIR against the respondent. In the FIR it was stated that when complainant enquired from the minor prosecutrix, she was informed that respondent had been assaulting and raping her for a very long time.

Gynaecologist opined that clinical and cytopathological report was not suggestive of recent forceful sexual intercourse. She admitted that hymen can tear and rupture from so many other things besides sexual intercourse.

Minor Prosecutrix further stated that although PW-1 and her husband slept together in the same house but nobody noticed the respondent sexually assaulting her and whenever she tried to raise an alarm he used to put his hand on her mouth.

Daughter of the respondent told minor witness (PW-3) that the minor prosecutrix was a girl of immoral character. The minor prosecutrix deposed that she was deeply hurt and mentally affected after hearing this and started crying when the complainant (PW-1) saw her. At this moment, the minor prosecutrix told the complainant (PW-1) about the sexual assault.

Decision of the Court

Bench — keeping in mind the ambit and scope of the judicial examination in the present appeal against acquittal, stated that judgment of acquittal passed by the Special Judge is neither perverse nor against the weight of the evidence on record.

Special Judge had disbelieved the deposition of penetrative sexual assault made by the minor prosecutrix. Disbelief was fortified by the medical as well as forensic evidence.

Reasoning for the above decision

Defence had brought out the animosity between the complainant (PW-1) and the sole prosecutrix on the one side and the respondent and his daughter on the other. The negative result of both the medical and forensic evidence collected immediately after the alleged assault does not help the prosecution case further, more so, when she alleged forceful penetrative sexual assault.

Defence has also been able to bring out certain facts about the altercations and fight between them immediately preceding the lodging of the FIR.

All of the above leans towards the claim of innocence of the respondent.

Thus, in the above view, judgment of acquittal is upheld. [State of Sikkim v. Karna Bahadur Rai, Crl. A. No. 07 of 2019, decided on 14-03-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Siddharth Mridul and Anu Malhotra, JJ. dismissed an appeal filed against the Judgment of the trial court whereby the appellant was convicted for murder under Section 302 read with Sections 120-B and 34 IPC.

Sunil Dalal, Devashish Bhadauria and Jaskaran Singh, Advocates representing the appellant, inter alia, raised a challenge to the credibility of the prosecution witnesses who turned hostile. It was contended that the appellant was falsely implicated in the case.Per contra, Radhika Kolluru, Additional Public Prosecutor representing the State, supported the impugned judgment.

The High Court relied on Govindaraju v. State, (2012) 4 SCC 722, for the proposition that evidence of hostile witness ought to stand effected altogether, and that the same can be accepted on careful scrutiny, to the extent found dependable, and duly corroborated by other reliable evidence available on record. Relying further on Mrinal Das v. State of Tripura, (2011) 9 SCC 479, the High Court observed: “The legal position that obtains is that, the evidence of a hostile witness remains admissible, and is available for a Court to rely on the dependable part thereof, as found acceptable and duly corroborated by other reliable evidence, available on record. Whether the testimony of a hostile witness subject to scrutiny may be relied for nullified would depend on the circumstances of each case. It could be used for corroboration or he corroborated and relied upon or nullified for the availability of better evidence.”

In light of above principle, the Court perused the evidence of the hostile witnesses and held that their testimonies could have relied on the instant case to the extent to which they were dependable and corroborated by the evidence.

Similarly, appellant’s contentions regarding lack of proof of motive and discrepancy in evidence were also rejected, and it was held that no interference was warranted in the impugned judgment. Accordingly, the conviction and sentence awarded by the trial court was upheld and the appeal was dismissed.[Ashok v. State (NCT of Delhi), 2019 SCC OnLine Del 10192, decided on 20-09-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of the Delhi High Court comprising of Sunil Gaur and Pratibha M. Singh JJ., dismissed an appeal against conviction before it. The appellant had been convicted under Section 302 IPC for the pre-meditated murder of the deceased and pleaded for scaling down of the offence convicted for to culpable homicide not amounting to murder under Section 304 IPC.

The trial Court had convicted the accused relied on the dying declaration of the deceased (Ext. PW 3/A), the evidence of his wife (PW 3) and the evidence of the accused’ brother (PW 7). The appellant challenged the conviction on the grounds that the evidence of the initial investigating officer (PW 19) and the accompanying constable (PW 14) were inconsistent regarding the time of preparation of rukka (statement given) and that the same creates serious doubts as to authenticity of the prosecution’s case. Further, the appellant submitted that PW 7’s statements in the cross examination were vastly different than his statements in the examination-in-chief and hence, the ocular evidence is inconsistent and unreliable.

The Court took note of the submissions and held that the dying declaration of the deceased was fully corroborated by evidence of PW 3 who was an eyewitness to the incident. Her testimony remained unshaken in the cross-examination. Regarding PW 7 turning hostile, the Court observed that his cross-examination had taken place almost 13 months after recording of evidence and opined that such a long gap may have urged him to turn hostile.

Relying on the Supreme Court judgment in Ramesh v. State of Haryana, (2017) 1 SCC 529, the Court reiterated that it is common for witnesses to turn hostile in criminal cases and that it should not be a reason to let the accused go scot free if there are other evidences to support the charges against the accused. Explaining the importance attributed to a dying declaration, the court relied on Lakhan v. State of M.P., (2010) 8 SCC 514 to reiterate that a conviction can be upheld solely on the basis of a dying declaration meaning that a dying declaration is to be disbelieved only if there are suspicious circumstances surrounding the same. The rukka was thus held to be reliable evidence unshaken by the contradictory versions of PW 7. Appeal dismissed. [Vishal v. State, 2018 SCC OnLine Del 8709, decided on 21-4-2018]