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IN THE HIGH COURT OF DELHI
VIBHU BAKHRU, J.
Manoj - Appellant
Versus
The State (Govt. of NCT) of Delhi - Respondent
Crl. A. No. 326 of 2017, Crl.M. (Bail). No. 318 of 2020
Decided on : 11-12-2020
For the Appellant :Sumer Kumar Sethi, Dolly Sharma, Advocates
For the Respondent: Ravi Nayak, APP.
The burden of proof does not shift entirely to the accused under Section 29 of the POCSO Act. The prosecution must still prove guilt beyond a reasonable doubt. The accused can discharge his burden by eliciting inconsistencies in the prosecution's case or providing positive evidence of his innocence.
Headnote:
POCSO Act, 2012 - Section 6 - The appellant was convicted for committing aggravated penetrative sexual assault on a child victim under Section 6 of the POCSO Act. The Court examines the burden of proof under Section 29 and concludes that the prosecution has not established the foundational facts of the case. The Court also discusses the limitations of reverse burden clauses and the need for the accused to provide a plausible explanation for false implication. The Court finds that the prosecution has not proven the guilt of the appellant beyond a reasonable doubt.
Fact of the Case:
The appellant has filed an appeal against his conviction for committing aggravated penetrative sexual assault on a child victim under Section 6 of the POCSO Act. The appellant also challenges the order on sentence, where he was directed to undergo rigorous imprisonment for ten years with a fine of Rs. 5,000. The appellant argues that there are inconsistencies in the testimony and medical evidence does not support the allegation. The appellant also claims a delay in lodging the FIR without a plausible explanation.
Finding of the Court:
The Court examines the statements made by the prosecutrix and other witnesses, noting inconsistencies in their testimonies. The Court finds that there is no certainty as to when the alleged offence was committed and no clarity on how the appellant was identified. The medical evidence does not support the prosecution's case. The Court also discusses the burden of proof on the accused under Section 29 of the POCSO Act and concludes that the prosecution has not established the foundational facts of the case. The Court emphasizes that the burden of proof does not shift entirely to the accused and that the prosecution must still prove guilt beyond a reasonable doubt. The Court finds that the appellant has raised doubts about the case and is unable to establish his guilt.
Ratio Decidendi: The Court concludes that the prosecution has not proven the guilt of the appellant beyond a reasonable doubt. The inconsistencies in the testimonies, lack of clarity on the date of the offence, and lack of supporting medical evidence raise doubts about the case. The Court acquits the appellant of the charges and orders his immediate release.
Result: The appeal is allowed, and the appellant is acquitted of the charges. The appellant is directed to be released forthwith, if not wanted in any other case.
JUDGMENT :
1. The appellant has filed the present appeal impugning a judgment dated 16.11.2016 passed by ASJ-01, North Rohini Courts, New Delhi, whereby the appellant was convicted for committing aggravated penetrative sexual assault on a child victim - an offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter the ‘POCSO Act’).
2. The appellant also seeks to challenge an order on sentence dated 22.11.2016, whereby the appellant was directed to undergo rigorous imprisonment for a period of ten years with a fine of Rs. 5,000/- for committing the offence punishable under Section 6 of the POCSO Act. It was further directed that in default of payment of the fine, the appellant would undergo simple imprisonment for a further period of thirty days.
3. The appellant was prosecuted pursuant to registration of an FIR bearing no. 364/13, under Section 376(2) of the Indian Penal Code, 1860 (hereinafter ‘IPC’) at PS Shahbad Dairy. The said FIR was registered on the basis of the statement (Ex PW4/A) made by the mother of the child victim. She alleged that one month prior to lodging the said complaint, the child victim had complained of stomach ache. The complainant (mother of the child victim), thereafter, brought medicines from the medical store. The child victim also complained of pain in her private parts. The complainant noticed red marks near the private parts of the child victim and thereafter, applied medicine. Subsequently, the child victim disclosed that one day when the complainant was quarrelling with her husband (father of the child victim) and she was playing outside, the accused Manoj (the appellant herein) took her to a bathroom outside the house of one Malti. The accused then removed her pajami and inserted finger in her private part and also pressed her chest. The accused threatened the child victim not to disclose about the incident to her mother. She stated that she took the child victim to the Health Post, where she narrated about the incident to social workers Maya and Premwati, and they then took the child victim to BSA Hospital.
4. The accused was arrested on 08.07.2013. Thereafter, charges under Section 6 of the POCSO Act were framed against the accused. The accused pleaded not guilty and the matter was set down to trial.
5. The prosecution examined thirteen witnesses. After evaluating the evidence led in the case, the Trial Court found the appellant guilty of committing an offence punishable under Section 6 of the POCSO Act, and accordingly convicted him.
6. The appellant contends that there are many inconsistencies in the testimony and the statements made by the prosecutrix (child victim) and the medical evidence does not substantiate the allegation that the appellant had committed the offence. The appellant also submitted that there was a considerable delay in lodging of the FIR and there was no plausible explanation for such delay.
Evidence
7. Before proceeding further, it is relevant to examine the statements made by the prosecutrix as well as the evidence led by various witnesses.
8. The statement of the child victim was recorded under Section 161 Cr.PC, on 08.07.2013. She stated that when her parents were quarreling, her mother had sent her outside. She stated that Manoj Bhaiya - the accused - took her on his lap (“godh mein lekar”) to the bathroom of Malti Aunty. She stated that the accused removed her pajami, inserted his finger in her private parts and also pressed her chest. She stated that the accused removed his pant and nothing was worn by him (“kuch nahi pahena tha bhaiya ne”). She stated that he had told her not tell her parents about the incident as it is a ‘dirty thing’ (“gandi baat hoti hai”). He then made her wear her pajami and told her to go back. She stated that she told her mother, one night prior to making this statement.
9. On 09.07.2013, the statement of the prosecutrix was recorded under Section 164 of the Cr.PC. In her statement, she stated that
