On December 3, the Delhi High Court set aside the conviction of an accused in minor’s sexual assault case, while noting that there were material improvements in the statements of the child victim and her mother.
The Bench of Justice Manoj Kumar Ohri was hearing an appeal filed on behalf of the appellant-accused against the judgment whereby the appellant was convicted for the offence punishable under Section 6 of the POCSO Act and was sentenced to undergo rigorous imprisonment for a period of 10 years.
The child victim (6 years of age), in her statement recorded under Section 164 Cr.P.C., stated that on the day of the incident, the appellant pulled her and sexually assaulted her and she cried and her mother came. An FIR was subsequently registered against the accused on the statement of the mother of the child victim.
The appellant was convicted for the offence punishable under Section 6 of the POCSO Act by the Special Judge: POCSO Act, Rohini Courts, Delhi in December 2019 and was sentenced to undergo RI for a period of 10 years along with payment of a fine of Rs 10,000, in default whereof to further undergo SI for 30 days.
Allegations By Victim and Her Mother
The case of the prosecution is that on 13.03.2016, FIR No. 247/2016 under Sections 376 IPC and under Section 4 of the POCSO Act was registered at P.S. Begumpur against the accused herein for committing penetrative sexual assault upon the victim on the complaint of mother of victim who stated therein that she is housewife and her husband ply electric rickshaw. She has three daughters and her elder daughter ‘S’ is 6 years old.
On 12.03.2016 at about 06.30 pm S was playing with her younger sister in the gallery outside her room. She was lying in her room due to her ill health. After some time, S came to her along with her younger sister and went outside leaving her sister there. After some time, she heard the cry of her daughter S, she immediately came outside the room and saw her daughter coming while crying from the adjacent room and holding her pajami.
After sometime Rahul who was present in the same room, came outside the room and went away. When she asked her daughter, she told that Rahul had called him inside his room and bolted the room from inside. He gagged her mouth and pulled down her underwear and pajama and spit on her vagina. Then he inserted his finger in her vagina. She cried due to pain, then Rahul left her and opened the door immediately.
Her husband came late in the night and she was also not well that is why they could not come in the night of 12.03.2016. The statement of the victim under Section 164 Cr.P.C. was recorded wherein she corroborated the incident.
After The charge-sheet has been filed u/s 376 IPC and u/s 4 of the POCSO Act against the accused namely and after hearing arguments on the point of charge, charge for the offence punishable under Section 5(m) of POCSO Act was framed against the accused by the Ld. Predecessor of this Court to which he pleaded not guilty and claimed trial.
Appeal By Accused
Ms. Richa Dhawan, learned Standing Counsel, DHCLSC appearing on behalf of the appellant, has assailed the impugned judgment on the ground that the trial court failed to appreciate that the testimony of the child victim and her mother were not creditworthy as there were material improvements not only in the statements of the child victim but also, her mother Ms. ‘RV’.
As per the prosecution case, although at the relevant time, the child victim was playing with her younger sisters but the sisters were not cited as witnesses. Also, the landlord of the premises was deliberately not cited as a witness.
Delhi High Court
The Court noted that a perusal of the statement of the child victim under Section 164 Cr.P.C. and her in-court examination would show that the child victim has slightly improved her version.
The Court also referred to another aspect of the cross-examination of the child victim, wherein she had admitted that before coming to the Court, her mother told her as to what is to be spoken in the Court.
While answering the Court questions, the court observed that the child victim also stated that before being taken to the hospital, her mother had guided her as to what is to be stated to the doctor.
The court remarked:
The creditworthiness and the admissibility of the statement of child victim and her mother is under challenge not only on the aspect of improvements but also on the aspect of tutoring.
It is no longer res integra that the sole testimony of a child victim, before being accepted should be evaluated very carefully. It should be devoid of any embellishment, improvement or tutoring.
Dealing with Evidence of Child Witness
The Delhi High Court further cited the Apex Court’s ruling in the case of Mangoo v. State of M.P. AIR 1995 SC 959, M.P. v. Ramesh & Anr. (2011) 4 SCC 786, State of Madhya Pradesh v. Rajaram Alias Raja (2019) 13 SCC 516 wherein it was stated by the top court, time and again, that while dealing with the evidence of a child witness, the Court must determine as to whether the child has been tutored or not.
In this case while dealing with the testimony of the minor child, the court said,
In the present case, not only there are material improvements in the statements of the child victim and her mother but there are also material contradictions as already observed. Furthermore, the child victim categorically stated that she was told by her mother about what to say in the Court.
In light of the above discussion, the Court opined that the “creditworthiness of the testimony of the child victim was in doubt.” It said,
It cannot be said with certainty that her testimony does not suffer from the vice of tutoring. The testimony of the mother of the child victim is full of material improvements.
The court also looked at no corroboration in the form of MLC or the FSL. In these circumstances, the Court noted that “the appellant’s false implication couldn’t be ruled out.”
Granting relief to the accused who has spent nearly a year in jail, the court said,
The appellant is granted benefit of doubt and his appeal is allowed. The impugned judgment and order on sentence, as referred to earlier, are set aside. The appellant is directed to be immediately set free if not required in any other case.
The appeal is disposed of in the above terms. A copy of this order be communicated electronically to the appellant through the concerned Jail Superintendent as well as the trial court.