J U D G M E N T

SIDDHARTH MRIDUL, J. (OPEN COURT)

CRL. M.A. 2425/2022 (Delay)

The present application under Section 5 of the Limitation Act, 1963, has been filed on behalf of the State/petitioner seeking condonation of 438 days’ delay in filing the leave to appeal petition.

In view of the reasons stated in the application, which is duly supported by an affidavit, the same is allowed. The delay of 438 days in filing the accompanying leave to appeal petition is condoned.

The application is disposed of accordingly.

CRL.L.P. 24/2021

1. The present leave to appeal petition assails the impugned judgment dated 18.10.2019, rendered by Additional Sessions Judge- 07, Special Court (POCSO Act), South-East District, Saket Courts, New Delhi, whereby Shivjanam, the sole respondent/accused was acquitted of all the charges framed against him by the Trial Court, under Section 376 of Indian Penal Code (in short ‘IPC’), 1860 and Section 6 of the Protection of Children from Sexual Offences Act (in short ‘POCSO Act’), 2012, arising out of FIR No. 144/14 registered at Police Station Okhla Industrial Area, Delhi.

2. The prosecution’s case against Shivjanam is premised entirely on the testimony of ‘SK’, PW-1, the alleged victim’s mother. ‘SK’ deposed to the effect that on the 26.02.2014, at about 02:15 P.M. in the afternoon, she went to answer the call of nature at the sulabh shauchalya, located in the vicinity of her residence, along with her daughter, the three-year-old victim. It is PW-1’s case that when she emerged from the shauchalya, she witnessed the sole respondent/ accused, who is her neighbour and therefore, known to her, kissing the minor child and fingering her private parts. ‘SK’, PW-1, further stated that she made a call to the Police Control Room within half-an-hour of witnessing the alleged commission of the offence and that her statement, which is Ex. PW-1/A, was recorded by S.I. Raghunath, PW-3.

3. Immediately thereafter, PW-1 and the victim were escorted to All India Institute of Medical Science (AIIMS) for the latter’s medical examination, as reflected in the MLC [Ex. PW-1/D]. On 28.02.2014, PW-1 went to the court of the concerned Metropolitan Magistrate (M.M.) in Saket Courts, where the statement under the provision of Section 164 of the Code of Criminal Procedure, 1973 was duly recorded. In the said statement, PW-1 essentially reiterated the complaint made by her to the Police under Section 161 Cr.P.C, recorded as Ex. PW-1/A.

4. However, it is observed from PW-1’s cross-examination that the room of Shivjanam, the respondent/ accused, is located within the toilet premises itself, and that prior to the alleged commission of the offence, a quarrel had taken place between PW-1 and her family on the one hand, and the accused on the other. It is further observed that in the statement recorded under Section 164 Cr.P.C [Ex. PW-1/E], it is observed that the expression ‘sharir’ was employed, whereas the initial allegation recorded in statement under Section 161 Cr.P.C. [Ex.PW-1/A], was that the accused had inserted his finger into the vagina of the victim.

5. More significantly, it emerged in the cross-examination that, when PW-1 came out of the shauchalya, she saw Shivjanam carrying the victim in his arms from the ‘backside’ (sic).

6. Furthermore, a perusal of the MLC of the minor victim, i.e. Ex. PW-1/D, categorically reflects that there was no external or internal injury visible on the child at the time of the medical examination conducted by Dr. Nipun, PW-7. To elaborate; the victim’s hymen was intact and there was no sign of any vaginitis or indication of any object having been inserted.

7. It is in this backdrop, that the learned Trial Court returned the finding, impugned in the present leave petition, which reads as follows:

“15. On appreciating the testimony of the mother of victim in the light of her previous statements recorded at various stages of investigation and in the light of her cross examination, one finds material contradictions. In