Mr. Naresh Kumar Chahar, APP for the State v. SHIVJI

Judgment

1. The State has preferred this petition under Section 378 of the Code of Criminal Procedure, 1973 [hereafter „Cr.P.C.‟] seeking leave to appeal against judgment dated 23.10.2018 [hereafter „impugned judgment‟] passed by the learned Additional Sessions Judge-01, Special Court, POCSO (North-West District), Rohini

Courts, Delhi [hereafter „Trial Court‟] in case arising out of FIR No. 607/2014, registered at Police Station (PS) Shalimar Bagh, Delhi, for offence punishable under Sections 377/34 of the Indian Penal Code, 1860 [hereafter „IPC‟] and Section 6 of the Protection of Children from Sexual Offences Act, 2012 [hereafter „POCSO Act‟].

2. The case of the prosecution, in brief, is that upon receipt of a PCR call, DD No. 39A dated 27.06.2014 was recorded regarding a Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:01.03.2025 13:23:14 CRL.L.P. 157/2019 quarrel at Jhuggi No. 11B, Haiderpur Lohiya Camp, Ambedkar Nagar, Delhi. The matter was assigned to ASI Ranvir Singh, who had reached the spot, but found that the persons involved in the quarrel had already been taken to BJRM Hospital in a PCR van. The Investigating Officer (I.O.) had then proceeded to the hospital, where it was ascertained that the minor victim „N‟ had been medically examined, wherein he had disclosed history of alleged sexual assault by two individuals a few days prior. The I.O. had also found that the one Shivji had been medically examined separately in connection with the alleged sexual assault committed by him, on the victim N, five days earlier. The victim was thereafter counseled and, in the presence of his father, he gave a statement wherein he alleged that on

23.06.2014, at about 3:00 p.m., he had gone to an open space near Max Hospital to relieve himself, where two boys namely Shivji and Dildar, who were known to him, had approached him. He alleged that they had forcibly took him towards the railway line, where they had committed unnatural sexual acts with him, by inserting their penises one by one into his anus. The victim further stated that when he had raised the alarm, the accused persons had fled, after which he had returned home. Based on the victim‟s complaint, the present FIR was registered, and the investigation was carried out. The seized samples were collected from the doctor, and the accused Shivji was subsequently arrested. The statement of the victim was also recorded under Section 164 of Cr.P.C. before the concerned Magistrate.

3. During the course of investigation, the co-accused Dildar was Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:01.03.2025 13:23:14 CRL.L.P. 157/2019 apprehended and found to be a juvenile, leading to the registration of a separate case against him before the concerned Juvenile Justice Board (JJB), whereas the charge-sheet was filed against the accused Shivji. On 27.02.2015, the learned Trial Court framed charges against the accused Shivji for offences punishable under Section 6 of the POCSO Act and Sections 377, 506, and 34 of the IPC.

4. The prosecution had examined 15 witnesses, including the doctor who had examined the victim and the accused (PW-5), the victim himself (PW-9), mother of the victim (PW-11), father of the victim (PW-12), and the main I.O. of the case (PW-15). The statement of the accused was recorded under Section 313 of the Cr.P.C.

5. The learned Trial Court, after considering the entire evidence on record, vide impugned judgment dated 23.10.2018, acquitted the accused/respondent of all the charges framed against him in the present case.

6. Aggrieved by the acquittal of respondent, the present petition seeking leave to appeal has been filed by the State.

7. The learned APP for the State argues that the impugned judgment is contrary to the evidence on record and settled legal principles in sexual assault cases. It is contended that the respondent deserves conviction as the prosecution has established its case beyond reasonable doubt. It is submitted that the victim was merely 10 years old, making it natural for him to be frightened of two older boys who had sexually assaulted him. The victim‟s mother had learnt Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:01.03.2025 13:23:14 CRL.L.P. 157/2019 about the incident and confronted the accused‟s mother, leading to a quarrel. It is argued that though the PCR call recorded the incident as a “quarrel” rather than sexual assault, the same does not diminish the gravity of the offence, as disclosures in such cases often emerge gradually. The learned APP further argues that the assault occurred five days before the victim‟s medical examination, and given that it was a single instance where the accused fled upon the victim raising an alarm, the absence of injuries in the MLC is unsurprising, since it is a well-established medical fact that children‟s wounds heal faster than adults‟. Moreover, settled law holds that the testimony of an eyewitness, particularly a child victim, carries greater weight than medical evidence if found credible.

8. It is also contended that the learned Trial Court erred in disregarding the victim‟s testimony, which remained consistent with his previous statements, including under Section 164 of Cr.P.C. The learned Trial Court also failed to recognize that the statement of a sexual assault victim, if reliable, does not require independent corroboration. Additionally, it is contended that the learned Trial Court has overlooked the natural reluctance of minor witness Laddu, who had allegedly overheard the accused‟s extra-judicial confession. Given his age, it was unsurprising that he or his family were not willing to let him testify before the Court and therefore, this should not have been a ground to cast doubt on the prosecution‟s case.

9. In view of the above, the learned APP contends that the impugned judgment suffers from legal and factual infirmities, and Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:01.03.2025 13:23:14 CRL.L.P. 157/2019 therefore, deserves to be set aside.

10. Since no one had appeared on behalf of the respondent, this Court had only heard arguments on behalf of the State/petitioner.

11. The impugned judgment as well as the Trial Court Record has been perused and examined by this Court. This Court has also gone through the testimonies of the prosecution witnesses.

12. Before adverting to the merits of the case, it shall be apposite to take note of a few judicial precedents on the scope of interference in an appeal, or a petition seeking leave to appeal, filed against the judgment of acquittal.

13. The Hon‟ble Supreme Court Balmukund and Anr. v. State of Madhya Pradesh: 2024 SCC in Ballu @ Balram @ OnLine SC 481 had observed that unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. The relevant extract of the decision reads as under: “8. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.

9. Apart from that, it is to be noted that the present case is a case of reversal of acquittal. The law with regard to interference by the Appellate Court is very well crystallized. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted…… *** 20. The High Court could have interfered in the criminal appeal only if it came to the conclusion that the findings of the trial Judge were either perverse or impossible. As already Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:01.03.2025 13:23:14 CRL.L.P. 157/2019 discussed hereinbefore, no perversity or impossibility could be found in the approach adopted by the learned trial Judge.

21. In any case, even if two views are possible and the trial Judge found the other view to be more probable, an interference would not have been warranted by the High Court, unless the view taken by the learned trial Judge was a perverse or impossible view.” (Emphasis added)

14. Similarly, in Kalinga @ Kushal v. State of Karnataka By Police Inspector Hubli: (2024) 4 SCC 735, the Hon‟ble Supreme Court observed as under: “25. This Court cannot lose sight of the fact that the Trial Court had appreciated the entire evidence in a comprehensive sense and the High Court reversed the view without arriving at any finding of perversity or illegality in the order of the Trial Court. The High Court took a cursory view of the matter and merely arrived at a different conclusion on a re-appreciation of evidence. It is settled law that the High Court, in exercise of the entire evidence. appellate powers, may reappreciate However, reversal of an order of acquittal is not to be based on mere existence of a different view or a mere difference of opinion. To permit so would be in violation of the two views theory, as reiterated by this Court from time to time in cases of this nature. In order to reverse an order of acquittal in appeal, it is essential to arrive at a finding that the order of the Trial Court was perverse or illegal; or that the Trial Court did not fully appreciate the evidence on record; or that the view of the Trial Court was not a possible view.

26. At the cost of repetition, it is reiterated that the anomaly of having two reasonably possible views in a matter is to be resolved in favour of the accused. For, after acquittal, the presumption of innocence in favour of the accused gets reinforced. In Sanjeev v. State of H.P., (2022) 6 SCC 294, this Court summarized the position in this regard and observed as follows: “7. It is well settled that:

7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:01.03.2025 13:23:14 CRL.L.P. 157/2019