Delhi High Court
State (Nct Of Delhi) vs Vishal on 29 March, 2019
Author: Sangita Dhingra Sehgal
Bench: Sangita Dhingra Sehgal
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. L.P. 824/2018
% Judgment reserved on: 20th March, 2019
Judgment pronounced on: 29th March, 2019
STATE (NCT OF DELHI) ....Appellant
Through: Mr. G.M. Farooqui, APP for State with SI
Raju Yadav, PS Sultanpuri.
Versus
VISHAL ....Respondent
Through: None
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. By this petition under Section 378(3) of the Code of Criminal
Procedure, 1973 (hereinafter as 'Cr.P.C'), the appellant/State seeks
leave to appeal against the judgment dated 01.09.2018 passed by the
learned Additional Sessions Judge, POCSO Court, North West
District, Rohini Court, Delhi whereby the respondent/Vishal was
acquitted of the charge under Section 12 of POCSO Act and Section
504 read with Section 506 of the Indian Penal Code, 1860
(hereinafter as 'IPC') in FIR No.659/2013, Police Station Sultan
Puri.
2. Brief facts of the case, as noticed by the learned Trial Court, are as
under:-
"i. On 12.07.2013 Smt. R and Sh. M came to PS
alongwith their respective daughters S and P and
reported that one boy Vishal who is student of class IX
in the school of victims has misbehaved with their
daughters yesterday and today and also threatened to
deface them with blade and acid.
CRL.L.P. 824/2018 Page 1 of 11
ii. DD No. 25A was recorded in this regard and NGO
was called to counsel the victims and there statements
were recorded where they stated that they are students
of class VII in govt. school D-2, Sultan Puri and on
11.07.2013, they were standing at the door of their class
room when the neighbor Vishal who is in class IX came
there and asked them to marry him or else he will
deface them with blade and acid. When they told him
that they will inform the principal then he replied
"principal kya mera danda ukhad legi" then they
informed this to their madam who asked them to go to
the class room. After school was over, victims informed
to their respective parents. Today when they came to
the school them he again asked whether they want to
marry him or not. They informed the principal who
called the PS.
iii. On their statements DD No. 69B was recorded as
accused Vishal appeared to be a juvenile. IO carried
out the investigation and accused was apprehended and
was produced before JJB-II. JJB conducted the age
inquiry on the accused and vide order dated 10.10.2013
declared him adult as on the date of incident.
iv. Thereafter on 22.10.2013, present FIR was
registered and statement of the victim P was recorded
under Section 164 Cr.P.C where victim S was not
traceable at that time. Accused was granted
anticipatory bail on 20.11.2013."
3. After completing the investigation, a charge sheet was filed. Charges
were framed against the accused for the offence punishable under
Section 12 of POCSO Act or in the alternate Section 509 read with
Section 506 IPC to which he pleaded not guilty. In order to bring
home the guilt of the accused persons, the prosecution has examined
5 witnesses in all.
CRL.L.P. 824/2018 Page 2 of 11
4. Statement of the accused was recorded under Section 313 of Cr.P.C
wherein he stated that a FIR bearing no. 382/2013 dated 25.06.2013
has been registered against the parents of victim (S) in which his
mother is a witness and as such he has been falsely implicated in the
present case at the instance of their parents. The accused lead four
witnesses in his defence.
5. After appreciating and considering the rival contentions of the parties
and scrutinizing the evidence, the learned Trial Court acquitted the
accused for the charged offences.
6. Assailing the impugned judgment, Mr. G.M. Farooqui, learned
counsel for the State opened his submissions by contending that the
impugned judgment dated 01.09.2018 is based on conjectures and
surmises and the same is against the facts and the settled proposition
of law. He further submitted that both the victims have been
consistent in their testimonies and the trial court acquitted the
accused on the basis of minor contradictions which do not go to the
root of the case.
7. The learned APP further submitted that the trial court erred in
placing reliance on the previous enmity between parents of victim S
on one hand and mother and parental aunt of accused on the other
hand. Mr. G.M. Farooqui, lastly submitted that the learned Trial
Court erred in acquitting the accused and the impugned order should
thus be set aside.
8. I have heard the learned counsel for the State and perused the
available material on record.
CRL.L.P. 824/2018 Page 3 of 11
9. The learned Trial Court has already established the age of the
accused, the JJB had conducted an age inquiry of the accused and
found that at the time of the incident he was a major. The prosecution
has also established the age of the victim P and victim S. They were
both minors at the time of the incident. So, the accused was also
charged under Section 12 of POCSO Act.
10. It is a well settled law that the conviction can be done solely based
upon the testimony of the victim. The same is reiterated in the case
of State of Himachal Pradesh v. Asha Ram: AIR 2006 SC 381, the
Apex Court highlighted the importance to be given to the testimony
of the prosecutrix as under in para 5:
5. ...It is now well-settled principle of law that conviction
can be founded on the testimony of the prosecutrix alone
unless there are compelling reasons for seeking
corroboration. The evidence of a prosecutrix is more
reliable than that of an injured witness. The testimony of
the victim of sexual assault is vital, unless there are
compelling reasons which necessitate looking for
corroboration of her statement, the courts should find no
difficulty in acting on the testimony of a victim of sexual
assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. It is also a
well-settled principle of law that corroboration as a
condition for judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a guidance of
prudence under the given circumstances. The evidence of
the prosecutrix is more reliable than that of an injured
witness. Even minor contradictions or insignificant
discrepancies in the statement of the prosecutrix should
CRL.L.P. 824/2018 Page 4 of 11
not be a ground for throwing out an otherwise reliable
prosecution case.
11. The Apex Court in Shivasharanappa and Ors. vs. State of
Karnataka and Ors.: (2013) 5 SCC 705 had discussed about the
credibility and reliability of a child witness, it was held as
hereinbelow:
"16. Thus, it is well settled in law that the court can rely
upon the testimony of a child witness and it can form the
basis of conviction if the same is credible, truthful and is
corroborated by other evidence brought on record.
Needless to say, the corroboration is not a must to record
a conviction, but as a rule of prudence, the court thinks it
desirable to see the corroboration from other reliable
evidence placed on record. The principles that apply for
placing reliance on the solitary statement of witness,
namely, that the statement is true and correct and is of
quality and cannot be discarded solely on the ground of
lack of corroboration, applies to a child witness who is
competent and whose version is reliable."
12. In the light of the principle discussed above, I deem it appropriate to
peruse the testimonies of relevant witnesses i.e. victim (S) and victim
(P) during her examination in chief, victim (P) deposed as under:
Examination in chief of victim (P)
"Pehle ek bar jab mein 7th class me padati thi, meri
friend Sheetal aur mein class ke gate ke pass khade the
toh Vishal, jo ki 9th class me padata tha, humare pass
aaya. Vishal ne kaha ki mujhse shadi karlo nahi toh mei
tum par tezab dal dunga yah blade mar dunga. Hum uski
complaint karne Vice Principal madam ke paas gaye toh
CRL.L.P. 824/2018 Page 5 of 11
unhone kaha ki uska naam aur class puch kar aao. Hum
uss ladke ke paas naam aur class puchne gaye toh who
bola "kyu mere sath raat gujarani hai kya aur Principal
kya mere jhande ukhad legi". Humne yeh baat Vice
Principal madam ko bata di thi. Unhone kaha ki kal
aayega toh kal dekhenge. Phir maine ghar aakar apne
mummy papa ko sari baat bata di. Mere papa ne phone
kar diya.
Dusre din mei school gayi toh usne mujhe phir tang kiya.
Usne kaha ki nahi karni mujhse shadi aur usne Sheetal ka
hath pakadkar usko dhakka diya. Maine Sheetal ko pakad
liya nahi toh who gir jati. Hum Principal madam ke paas
gaye aur sari baat bata di. Principal madam ne humare
parents ko bulaya aur police ko bulaya. Phir police
humme thane le gayi. Vishal ko bhi thane le gayi..."
Victim (P) during cross examination deposed as under:
"...class ke bachhe bata rahe the aur phir jab maine
Sheetal se pucha toh Sheetal ne bhi bataya tha ki 'Vishal
keg har me kissi ko kamare me bandh karke mara tha,
Sheetak ke gharwalo ne'.
Victim (S) during her examination in chief deposed as
under:
"...11.07.2013 ko mein Pallavi ke sath school gayi thi
aur apni class ke bahar khadi thi toh humare pados me
rehnewala ladka Vishal, jo humare school me 9th class me
padata tha, humare pass aaya. Usne mujhse aur Pallavi
CRL.L.P. 824/2018 Page 6 of 11
se kaha ki yah toh mujhse shadi kar lo nahi toh chirra
mar kar, tejab dal kar chehra bigad dunga. Jab maine
aur meri friend Pallavi ne kaha ki hum uski shikayat
Principal se karenge toh Vishal bola ki Principal mam
kya mera danda ukhad lengi. Hum dono Principal mam
ke pass gaye aur unhe sab bataya. Tab Principal mam ne
kaha ki aap class mei jaao. Uske baad school over hone
ke baad ghar aa kar humne apne parents ko sab bataya.
Dusre din jab hum school gaye toh Vishal humme school
me mila aur bola ki batao shadi karni hai yah nahi yah
chirra mar kar tejab dal kar chehra bigad du. Hum phir
Principal mam ke pass gaye aur unhe sab bata diya.
Principal mam ne police bula li..."
During cross examination of victim (S), she deposed as
under:
"...Yeh sahih ai ki mere sabhi family members ka
Mithlesh aur Babita ke sath jhagada hua tha. Mujhe nahi
pata ki mere parivar ke khilaf Mithlesh aur Babita ne koi
case banwaya tha yah nahi. Yeh baat sahih ai ki Mithlesh
aur Bbita ka meri family se jhagada present case se pehle
hua tha. Yeh sahi hai ki jhagade ke baad mere papa thane
gaye the. Mujhe nahi pata ki mere bhai thane gaye the
yah nahi. Mujhe nahi pata ki mere mummy, papa
jhagadewale case ke liye Court jate the yah nahi..."
13. From the perusal of the statements of Victim P and Victim S it
appears that there are various contradictions in their testimonies. At
one instance it is portrayed that the victims did not know the accused
CRL.L.P. 824/2018 Page 7 of 11
'Hum uski complaint karne Vice Principal madam ke paas gaye toh
unhone kaha ki uska naam aur class puch kar aao' whereas victim S
stated that 'humare pados me rehnewala ladka Vishal, jo humare
school me 9th class me padata tha, humare pass aaya', signifying
that she knew the accused. At another instance victim P stated that
'Usne kaha ki nahi karni mujhse shadi aur usne Sheetal ka hath
pakadkar usko dhakka diya. Maine Sheetal ko pakad liya nahi toh
who gir jati' but this specific detail was not reiterated by victim S in
her testimony rather she had stated that on the next day 'Vishal
humme school me mila aur bola ki batao shadi karni hai yah nahi
yah chirra mar kar tejab dal kar chehra bigad du'.
14. Another important aspect which comes to light is the fact that on
11.07.2013 both the victims had gone home and informed their
respective parents about the incident yet no action was taken. The
conduct of the parents of both the victims were unnatural. Instead of
informing the police or reporting the matter immediately to the
Principal of the school, they chose to send their children to school on
the next which appears to be unnatural conduct. It was only on the
next day, after a repetition of the alleged misbehavior by the accused
the police was informed. The victims in their statement had stated
that Principal madam ne humare parents ko bulaya aur police ko
bulaya. Phir police humme thane le gayi. Vishal ko bhi thane le gayi'
which is again contrary to the case of the prosecution, as per which
the victims had gone to the police station with their parents on their
own. Strangely enough the Principal and vice principal of the school
who were very important witnesses in the present case were not
CRL.L.P. 824/2018 Page 8 of 11
arrayed as witnesses. As per the testimony of both the child victims,
on both the occasions, they have diligently informed the Principal
and Vice principal of the school about the repeated alleged offence,
but prosecution to the best of their knowledge, chose not to array
them as a witness who were vital witnesses in completing the chain
of events.
15. At this stage it is essential to pour some light over the statement of
the accused, the relevant portion of the same is reproduced below:
"An FIR No. 382 dated 25.06.2013, PS Sultan Puri u/s
323/341/342/34 IPC has been registered against the
victim S's parents namely Om Prakash and Rajbala and
my mother also sustained injuries in the said incident and
stood as a witness in the said case against them. Victim
P being a friend of victim S has deposed against me.
I am innocent. I have been falsely implicated in this case
by the victim children at the instance of their parents. I
have nothing to do with the offence of the present case.
This is a false case against me."
16. In support of the accused, DW-1/mother of the accused testified the
following:
"On 24.04.2013, at about 5/6 pm, a quarrel had taken
place between Babita on one side and Om Parkash,
Santosh, Kala and Raj Bala (wife of Om Prakash), on
other side and all the four persons namely Om Prakash,
Santosh, Kala and Raj Bala, were giving beating to
Babita. At that time, Om Parkash was having one danda
in his hand and he was giving beating Babita with the
said danda. When, I tried to intervene and to rescue
Babita, who is my relative, I was also given beatings by
CRL.L.P. 824/2018 Page 9 of 11
all the aforesaid persons and Om Prakash abused me.
All the aforesaid four persons dragged Babita in the
room of Om Prakash. Someone informed the police and
police arrived at the spot. Police got us medically
examined and recorded my statement. An FIR in this
regard was registered and same is having no. 382/2013
dated 25.06.2013 u/s 323/341/342/34 IPC, PS Sultan
Puri.
After registration of the FIR, Om Prakash and his
relatives came to my house many time and pressurized me
to withdraw the said FIR and not to depose against them
in the case, otherwise they would implicate me and my
family members in false criminal cases.
17. From the aforementioned testimonies it becomes established that
there was some enmity between the families of the accused and
victim S, a FIR 382/2013 was also registered regarding an altercation
which had taken place between the family members of the parties.
Keeping in view the same, one cannot disregard the possibility of
false implication of the accused in the present case.
18. Averting to the facts of the case, there are many contradictions in the
statements of the victim's testimony, even the principal/vice
principal was not examined by the prosecution, and she has been
termed as a vital witness, given both the victims had reported the
alleged incident to the Principal first.
19. Having regard to the principles laid down by the Apex Court in the
case of Ghurey Lal vs. State of U.P., reported at 2008 (10) SCC
450, we do not find that there is any illegality or perversity in the
reasoning given in the impugned judgment. The learned trial court
CRL.L.P. 824/2018 Page 10 of 11
has taken a holistic view in the matter and carefully analyzed the
evidence of all the witnesses. Accordingly, no ground to interfere
with the impugned judgment is made out and the leave petition is
dismissed.
SANGITA DHINGRA SEHGAL, J.
MARCH 29, 2019 SU CRL.L.P. 824/2018 Page 11 of 11