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IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATIBHA RANI, J.
State – Petitioner
Versus
Om Prakash etc. – Respondents
CRL.REV.P. 289 of 2017
Decided On : 31-08-2017
POCSO Act - Discharge of Accused - Section 12 - 354/354B/354D/451/323/509/34 IPC - 12 POCSO Act - 164 Cr.P.C. - Delay in recording statements - Prima facie case for framing charge
Fact of the Case:
The State appealed the discharge of accused persons for the offence punishable under Section 12 of POCSO Act in a case where the initial complaint did not mention the child victim, but her involvement surfaced during the recording of statements under Section 164 Cr.P.C.
Finding of the Court:
The Court found that the delay in recording the victim's statement and the contradictions in the statements raised suspicion, but did not amount to grave suspicion against the accused, thus discharging them. The Court set aside the order and directed the accused to face trial for all the offences complained of.
Issues: The main issue was whether the non-mentioning of the child victim at the time of FIR registration could be a ground for discharge of the accused under Section 12 of POCSO Act.
Ratio Decidendi: The Court emphasized that at the stage of charge, the judge has the power to sift and weigh the evidence to determine if a prima facie case against the accused has been made out. The delay in recording the victim's statement and contradictions raised suspicion but did not amount to grave suspicion against the accused.
Final Decision: The Court set aside the order discharging the accused under Section 12 of POCSO Act and directed them to face trial for all the offences complained of.
Key Points: - The judge has the power to sift and weigh the evidence at the charge stage to determine if a prima facie case has been made out. (!) - Delay in recording the victim’s statement and contradictions raise suspicion but may not amount to grave suspicion, affecting discharge decisions. (!) (!) (!) - The court can discharge if no prima facie case is made, but the scope is limited to prima facie assessment, not full trial evidence evaluation. (!) (!) - The decision emphasizes that FIR need not contain all details and non-naming of an accused in FIR is not necessarily fatal to the case. (!) (!) - The order under challenge (discharge under Section 12 POCSO Act) was set aside, directing the accused to face trial for all offences. (!) (!) (!) - The High Court references established principles on framing charges under Section 227 Cr.P.C. and the need to consider broad probabilities and total effect of evidence. (!) (!) (!) (!) - The case clarifies that the question of whether the victim was present at the time of incident and other corroborative details are to be assessed at trial, not at charge framing. (!) (!) (!) - The case directs transfer and re-hearing before a Sessions Court for trial of all offences. (!) (!)
PRATIBHA RANI, J.
1. Feeling aggrieved by the order dated 22nd November, 2016 whereby respondents/accused persons have been discharged for committing the offence punishable under Section 12 of POCSO Act in case FIR No.540/13, PS New Usmanpur, the State has invoked the revisional jurisdiction of this Court with a prayer to set aside the order on discharge.
2. Case FIR No.540/2013, under Section 354/354B/354D/451/323/509/34 IPC was registered at PS New Usmanpur on the basis of the complaint lodged by Praveen Kumar Rana against his neighbour and other family members in respect of the incident dated 12th December, 2013. When his wife Bharti Rana and daughter were produced before the learned Magistrate for getting their statement recorded under Section 164 Cr.P.C., while reiterating the statement recorded under Section 161 Cr.P.C., his daughter Priyanka Rana further added that modesty of her younger sister who was minor at the time of incident was also outraged by the accused persons. Accordingly, Section 12 POCSO Act was also invoked and the child victim was also produced for getting her statement recorded under Section 164 Cr.P.C.
3. The charge-sheet was filed against all the six accused persons for committing offence punishable under Section 354/354B/354D/451/323/509/34 IPC and Section 12 of the POCSO Act.
4. After hearing the parties on the point of charge, the learned Addl. Sessions Judge has discharged the accused persons for the offence punishable under Section 12 POCSO Act for the following reasons:
6. The main grievance of the Ld. Defence Counsel was to the invoking of Section 12 of the POCSO Act in this case. He submitted that the victim SR was never present at the spot at the time of the alleged incident and only to invoke the provisions of the POCSO Act, she was introduced later on into the incident and her statements were manipulated.
7. I find force in the argument of Ld. Counsel. The initial complaint was lodged by complainant Praveen Kumar Rana, the father of the victim dt.12.12.2013, which form the basis of the present FIR. In that statement, the presence of the victim (SR) is conspicuously absent. There are no allegations in the FIR that any of the accused committed any incident with the said victim. On the same day, i.e. 12.12.2013, statements of the wife of the complainant namely Bharti Rana and her daughter Priyanka Rana were recorded U/S 161 Cr.PC. However, they both also did not allege anything in respect of the victim (SR). In fact, in their entire statement, the presence of the victim cannot be found.
8. It was only on 03.1.2014 when the statement of Bharti Rana and Priyanka Rana were recorded U/s 164 Cr.PC that they made allegations of molesting the victim. There are further contradictions in their statements inter-se. Bharti Rana stated that accused Vishal tore the clothes of the victim while Priyanka Rana stated that Vishal lifted his hand upon the victim and tried to commit indecent act (badtamiji) with her. Statement of the victim was also recorded U/S 161 Cr.PC, however, the same is undated, though all other statements U/S 161 Cr.PC bear the date under the signatures of the IO. In the said statement, the victim stated to the IO that Beer Singh entered their SC No. 88/2016 FIR No. 540/2013 PS New Usmanpur 3 of 5 house forcibly and caught hold the hand of her sister and also did indecent act (badtamiji) with her, while Vishal tore her clothes. Her statement U/S 164 Cr.PC was recorded on 23.1.2014. In that statement, she stated that when she went downstairs, she was also caught and the accused persons, without naming anyone, tore her t-shirt.
9. There is no explanation as to why the statement of the victim (SR) was not recorded on 12.12.2013 if she was present and was available to the IO for recording of her statement, when the statements of all other family members were recorded. It is also to be noted with concern that the statement of Bharti and Priyanka Rana U/S 164 Cr.PC were recorded on 03.1.2014
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