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2016 Supreme(Del) 1068
IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. SISTANI & SANGITA DHINGRA SEHGAL, JJ.
STATE - PETITIONER
Vs.
AMIT - RESPONDENT
CRIMINAL LEAVE PETITION No. 44/2016
Decided On : 26-02-2016
For the Appellant : Ms. Kamna Vohra, Additional Standing Counsel for the State With SI Ombir Singh, P.S. - Welcome.
The burden of proof lies on the prosecution to prove a charge beyond reasonable doubt, and the accused has a right to fair trial with the presumption of innocence in their favor.
Headnote:
Delay in filing - Criminal Procedure - Limitation Act, Section 5 - Code of Criminal Procedure, Section 482
Fact of the Case:
The State filed an application seeking condonation of delay in filing a leave to appeal petition. The State had filed a leave to appeal under Section 378(3) of the Code of Criminal Procedure, challenging the acquittal of the respondent by the Trial Court for the offence under Section 376 (2) (f) of the Indian Penal Code.
Finding of the Court:
The Court found that the evidence did not establish the charge of rape under Section 376(2)(f) of the Indian Penal Code beyond reasonable doubt. The Court also ruled out the offence of attempt to rape and the applicability of the Protection of Children from Sexual Offences (POCSO) Act, 2012 due to the retrospective effect. The accused was, however, found guilty under Section 354 of the Indian Penal Code for assaulting a woman with intent to outrage her modesty.
Issues: The issues before the Court were whether the alleged act amounted to the commission of rape and whether some other offence was made out against the respondent.
Ratio Decidendi: The Court held that the evidence did not establish the charge of rape beyond reasonable doubt and ruled out the offence of attempt to rape. The Court also found the accused guilty under Section 354 of the Indian Penal Code for assaulting a woman with intent to outrage her modesty.
Final Decision: The Court dismissed the leave to appeal, upholding the acquittal of the accused for the offence under Section 376 (2) (f) of the Indian Penal Code, but found the accused guilty under Section 354 of the Indian Penal Code.
SANGITA DHINGRA SEHGAL, J.
Crl. M. A. 1075/2016 (Delay in filing)
1. This is an application under Section 5 of Limitation Act read with Section 482 of the Code of Criminal Procedure filed by the State seeking condonation of delay of 7 days in filing the present leave to appeal petition.
2. Heard. For the reasons stated in the application, delay in filing the present leave to appeal petition is condoned.
3. Application stands disposed of.
Crl. LP No. 44/2016
4. The present leave to appeal has been filed by the State under Section 378(3) of the Code of Criminal Procedure being aggrieved by the impugned judgment dated 01.10.2015 passed by learned Additional Sessions Judge-01, North-East, Karkardooma, Delhi thereby acquitting the respondent.
5. The brief facts of the case as noticed by the learned Trial Court are as under :
"The victim in this case is a girl aged about 7 years and a student of class 2nd at the time of incident. She was residing with her parents, grandparents and brother. She had alleged that on 15.02.2011, when she was going upstairs to her room at the top floor after purchasing milk from a shop, one boy namely Amit who used to do DJ wok with her father and also known to her previously, met and caught hold of her at the second floor and removed her Pajami. She further alleged that when she asked the accused to leave her, he did not do so and instead sat on her waist and inserted his finger into her urinary organ on which she started crying and he also wetted her Pajami. Meanwhile, on hearing the cries of the victim, her mother reached there and on seeing her, accused Amit ran away. On the asking of her mother, the victim told the incident to her and thereafter to her father. On the complaint of the victim, a case was registered for the offences punishable under Sections 376/511 Indian Penal Code vide FIR No.57/2011,dated 16.02.2011.The accused was arrested on the same day."
6. After investigation was over, charge-sheet against the accused was filed before the Court for the offence under Section 376 (2) (f) of the Indian Penal Code and charge was framed against the accused for the said offence. To substantiate its accusation, prosecution examined thirteen witnesses in all to prove its case. Statement of accused under Section 313 of Code of Criminal Procedure was recorded wherein he pleaded his innocence and claimed to be tried.
7. The learned Trial Court, upon analysis, examination and evaluation of the prosecution evidence and after considering the rival submissions recorded acquittal against the accused for the charged offence but found him guilty for the offence punishable under Section 354 of the Indian Penal Code and convicted him accordingly.
8. Aggrieved by the impugned judgment, the State has filed the present leave petition contending that the view and the ultimate conclusion recorded by the learned Trial Court in acquitting the accused for the offence under Section 376 (2) (f) of the Indian Penal Code is manifestly perverse, unsustainable, tainted with non-application of mind to vital evidence, a result of wrong interpretation of evidence of minor victim girl and other substantial evidences, which has resulted into miscarriage of justice. Learned Additional Public Prosecutor for the State further contends that as per the settled legal position even uncorroborated testimony of the prosecutrix can result into conviction of the accused in a rape case but in the instant case, the testimony of the prosecutrix was fully supported by her father (PW3) and her mother (PW2). She further contends that the victim has no motive to falsely implicate the accused She further contends that the evidence of child witness (prosecutrix) alone is sufficient to convict the respondent for the offence punishable under Section 376 (2)(f) as the respondent committed rape on the victim and the scientific evidence led by the prosecution corroborates the commission of the offence, as such the learned Trial Court has failed to appreciat
