State (Nct Of Delhi) vs Shakeel on 10 October, 2017

$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: October 10, 2017

+ CRL.L.P. 439/2017

STATE (NCT OF DELHI) ….. Petitioner
Through: Ms.Kusum Dhalla, APP for the
State with SI Pankaj Kumar PS
Vasant Kunj South

versus

SHAKEEL ….. Respondent
Through: Mr.R.S.Mishra Mr.Anand
Mishra, Advocates

PRATIBHA RANI, J. (Oral)

1. The State is seeking leave to appeal against judgment dated
19th March, 2016 passed by Additional Sessions Judge-01 in Sessions
Case No.110/14 whereby the respondent Shakeel has been acquitted of
the charges under Section 451/354D/506 IPC and Section 8/12 of
POCSO Act.

2. Notice of the leave petition was sent to the respondent and the
LCR was also requisitioned.

3. The grievance of the State is that the victim in this case was
thirteen year old girl who was staying with her maternal uncle at
Delhi. The respondent/accused Shekeel entered her room on 18 th July,
2014 at 8:00 AM and tried to hold the hand of PW-3 ‘F’ (name

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withheld to conceal her identity). When she raised alarm her parents
and maternal uncle who were present on the terrace, came down and
chased the accused Shakeel. They managed to apprehend him and he
was handed over to the police.

4. Learned APP for the State submitted that the learned Trial
Court had acquitted the appellant noticing the
variations/improvements in the version of the child victim and her
parents – father (PW-2), mother (PW-6) and maternal uncle (PW-1)
about the nature of the incident and the manner of apprehension and
arrest of the respondent/accused ignoring that her statement so far as
presence of the respondent/accused in the room of PW-3 ‘F’ and he
being apprehended by her family members thereafter and her
complaint that he tried to hold her hand, was consistent. But despite
that learned Trial Court has acquitted him, hence, leave to appeal may
be granted.

5. The incident dated 18th July, 2014 was first reported to the
police vide DD No.28B (Ex.P-3) at 10:22 AM. The informant was
PW-1 Abdul Umar Mohd. (maternal uncle of PW-3 ‘F’) who called
from his mobile informing about a quarrel near Rajokri Pahari,
Harijan Basti Bus Stand. The DD was assigned to HC Rishi Rose
who along with Const. Dinesh (PW-4) left for the spot. The second
information in respect of the said incident was recorded vide DD
No.53B (Ex.P-4) at 3:30 PM and the informant was again PW-1
Abdul Umar Mohd. (maternal uncle of victim) who at that time
reported that the respondent accused Shakeel had been doing wrong
act for the past one year. This DD was assigned to SI Babu Lal PW-8

CRL.L.P. 439/2017 Page 2 of 9
who along with Const. Mahender and lady Const.Nirmal left for the
spot. HC Rishi Rose whom DD No.28B, Ex.P-3 was marked to attend
the call has not been examined. The outcome of the inquiry, if any,
made in respect of the call of quarrel made at 10:22 AM is not
available on record. However, Const.Dinesh has been examined as
PW-4 who on receipt of DD No.28B accompanied HC Rishi Rose to
the spot. His examination-in-chief reads as under:

“On 18.07.2014 I was posted at PS Vasant Kunj
(South) as Constable. On that day on receipt of DD
no.28B regarding quarrel at about 10:20 PM I alongwith
HC Rishi Rose went to the spot i.e. Harijan Basti,
Rajokari where prosecutrix alongwith her parents and
maternal uncle met us. The victim was produced before
HC Rishi Rose. The parents told us that victim was
subjected to “ched chad” and they were telling that they
would give their report before the SHO concerned. They
had also produced the accused before HC Rishi Rose
who took the aforesaid persons to the PS and were
making inquiry from them. During the course of inquiry,
SI Babu Lal came there and told us that maternal uncle
of victim called at 100 number and a call DD no. 53B
was recorded to that effect and same was marked to SI
Babu Lal. HC Rishi Rose produced the victim, her
parents, her maternal uncle and accused Shakeel present
in the Court today (correctly identified) before SI Babu
Lal. SI Babu Lal made interrogation from accused and
he was arrested vide arrest memo Ex.PW 1/A and IO
prepared the personal search memo Ex.PW 1/B. Both
the memos bears my signatures at point B. My statement
was recorded by the IO.

Xxx by Sh. R.S.Mishra, Ld. Counsel for the accused.

It is incorrect to suggest that I did not join the
investigation and the accused was not arrested in my
presence. It is incorrect to suggest that IO had taken my

CRL.L.P. 439/2017 Page 3 of 9
signatures on the personal search memo Ex.PW 1/B and
arrest memo Ex.PW 1/A at the PS itself. It is incorrect to
suggest that I am deposing falsely. ”

6. Statement of PW-8 SI Babu Lal who reached the spot on receipt
of DD No.53B recorded at 3:30 PM has stated that he along with
Ct.Mahender and W/Ct.Nirmala left the police station. As there was
no mention of the address in the DD, he called on the mobile of the
caller and came to know that he was sitting in the police station. He
again went to the police station and met the caller Abdul Umar Mohd.,
maternal uncle of the victim and the parents of the victim. HC Rishi
Rose and HC Dinesh were also present there. After verifying the facts
the victim was sent for medical examination and thereafter her
counseling was got done through the NGO. Her statement Ex.PW3/A
was recorded on the basis of which FIR was registered.

7. The prosecution has failed to explain that if information in
respect of the quarrel was received at 10:22 AM and all the concerned
parties including the accused were brought to the police station soon
thereafter, then how the same caller i.e. PW-1 Abdul Umar Mohd.,
maternal uncle of the victim could have made another call after about
7 hours to PCR while sitting in the police station to the ignorance of
the duty officer/the officials making the entries in the Roz Namcha
and if no address was disclosed in the second DD No.53B, Ex.P-4,
recorded at 3:30 PM then how PW-8 SI Babu Lal could have left the
police station with two constables without knowing the destination.

8. It is necessary to mention here that so far as the
respondent/accused is concerned, he is closely related to the victim’s

CRL.L.P. 439/2017 Page 4 of 9
family. The family of the victim as well the respondent/accused both
are resident of the same place i.e. village Uttawara in Haryana. PW-2
Abdul Alam, father of the victim has admitted that the
respondent/accused is closely related being his nephew (Bhatija). His
cross-examination being relevant to understand the real nature of the
dispute is extracted here under:-

“I have read urdu. I have studied up to class V. It
is correct that I have two other daughter Fatima, Aged
about 15-16 years and Talseema, Aged about 17 years.
The accused is y nephew (Bhatija) by relation. It is
incorrect to suggest that my daughter Fatima had
friendship with the accused. It is correct that a
panchayat was called in the village. It is incorrect to
suggest that the said panchayat was called for finishing
the friendship between my daughter Fatima and the
accused. Vol. It ws in regard to the friendship between
the prosecutrix and the accused. It is correct that the
matter was settled but it is incorrect that the amount
settled was 1.5 lakhs to be paid to us by the family of the
accused. Vol. The settlement was that these 2 lakhs were
to be deposited with the panchayat to be given to us while
the remaining 2 lakhs were to be paid after two months
and the accused was to be turned out of the village
however, neither the accused was sent out of the village
nor any money was given to us.”

9. However, PW-6 Smt.Ajija, mother of the victim, in her
examination-in-chief while stating that respondent/accused used to
obstruct in the study of her daughter (PW-3) stated that she called the
Panchayat at her native place and Panchayat penalized him with
direction to pay ₹4 lakh as punishment and to leave the village for two
years. The respondent/accused has no local address and the plea taken

CRL.L.P. 439/2017 Page 5 of 9
by him is that he was brought from the native place and falsely
implicated in this case.

10. It is pertinent to note that in the arrest memo Ex.PW-1/A only
the permanent address of the arrestee has been given and the same is
mentioned as his present address. The column Nos.4 and 6 i.e. the
details pertaining to FIR number and Section of law as well date and
time of arrest have been left blank. Even the date of preparation of
arrest memo is not mentioned under the signature of the Investigating
Officer or any of the witnesses.

11. Learned Trial Court has given sound reasons for disbelieving
the testimony of the child victim, her parents and maternal uncle. The
operative part of the reasoning given by the learned Trial Court is
extracted here under:

26. As far as incident dated 18.07.2014 at about 8.00
a.m. at H.No.1163 Near Naap Tol Office, Harijan Basti,
Rajokri is concerned, the same was firstly reported to
police by PW-1. The information was recorded in Ex.P-3
i.e. DD No.28 B and again in DD no.53B there was an
information regarding molestation of a 13 years old girl
for the past one year by one boy. DD No.28B was
recorded at 8.22 a.m. while DD No.53B was recorded at
3.30 p.m. on 18.07.2014.

27. It is argued by Ld. counsel for accused that this
shows that accused is falsely implicated in this matter
since 3.30 p.m. no information was provided to police
regarding the alleged molestation. It is further stated that
accused was lifted from his native village and was falsely
implicated in the present case. On the other hand it is
argued by Ld. APP for State that DD no.53B clearly
shows that there is the alleged history of molestation of
victim girl by accused for the past one year was given.

CRL.L.P. 439/2017 Page 6 of 9

28. As far as this fact is concerned, from the perusal of
record, it appears that DD No.28B was recorded when
the call was made by PW1. The DD No.53B was also
recorded on the call of same witness PW1. So, the
perusal of time span between two DDs is about more
than 7 hours. So, the possibility cannot be ruled out that
the incident of “Chhed Chhad” was an aftherthought.

29. It is further argued that there are different
statements given by victim regarding the alleged incident
of molestation. As per her in Ex.PW3/A she had stated
“galat niyat se mera haath pakad kar rumal se mera muh
debadiya aur meri salwar ka nara kiche laga”.
However, in her statement as PW3 dated 20.08.2015 she
had stated “the accused Shakeel caught hold of my
hand”. It is stated that due to different statements at
different forums, the testimony of prosecutrix could not
be relied. It is further stated that neither PW2 nor PW5
had stated about the alleged incident of gaging the mouth
of the prosecutrix aur trying to unite her salwar by
pulling string. It is stated that due to this reason, the
testimonies of none of prosecution witnesses can be
relied. It is further stated that there is difference in
testimonies regarding the alleged place of arrest of
accused as well as the persons who had arrested the
accused is stated that as per PW1 accused ran away.
PW1 chased him on his motorcycle and accused
concealed himself in the bushes in the jungle and police
was called and accused was apprehended. As per PW2
accused was apprehended by the public gathered at the
spot. As per PW3 i.e. prosecutrix accused was
apprehended by her mama and public persons. As per
PW6 accused was apprehended at the spot.

30. Now in this case, the testimony of victim is
changing with respect to the incident of molestation
which took place on 18.07.2014. No doubt in the cases
of sexual assault on woman, the testimony of victim is
itself sufficient for the conviction of the accused but if the
same is unchanging, reliable and trustworthy. In this

CRL.L.P. 439/2017 Page 7 of 9
case, with respect to the incident dated 18.07.2014,
regarding the manner in which the incident took place,
i.e. the alleged act of molestation, the statement of
prosecutrix is changing at different forums. So, in these
circumstances, the same is does not appears to be
trustworthy or believable.

31. Even the testimonies of PW1, PW2, PW3 and PW6
is different regarding the place of arrest of accused and
the manner in which he was arrested. This also cause
doubt as to whether the accused has done the said act of
molestation and thereafter he ran away.

32. On account of my aforesaid discussion, the
prosecution failed to prove its case beyond reasonable
doubt.

33. Accordingly, accused is acquitted for the offences
u/sec.451 IPC and u/sec.8 POCSO Act (for the incident
dated 18.07.2014). Similarly, accused is also acquitted
for offence u/sec.451 IPC (for the incident of dragging
the prosecutrix by feet at about 2:00 a.m. in night at
village at District Palwal Haryan). Similarly, accused is
acquitted for the offence u/sec.12 POCSO Act r/w
Sec.354D IPC (for the offence of sending SMSs and
criminal intimidation by showing country made pistol).”

12. Legal position is well settled that the Appellate Court should be
very slow in setting aside a judgment of acquittal particularly in a case
where two views are possible. The Trial Court judgment cannot be set
aside merely because the Appellate Court’s view is more probable.
The Appellate Court would not be justified in setting aside the Trial
Court judgment unless it arrives at a clear finding on marshalling the
entire evidence on record that the judgment of the Trial Court is either
‘perverse’ or wholly unsustainable in law. (Vide : 2009 (10) SCC
2006).

CRL.L.P. 439/2017 Page 8 of 9

13. In the case of State of U.P. vs. Nandu Vishwakarma AIR
2009 SC 3188, it was observed that ‘when on the basis of the evidence
on record two views could be taken – one in favour of the accused and
the other against the accused – the one favouring the accused should
always be accepted.

14. Thus, I do not find it to be a fit case to grant leave to appeal.
Accordingly, the leave petition is hereby dismissed. Trial Court
record be sent back forthwith along with a copy of this order.

PRATIBHA RANI, J.

OCTOBER 10, 2017
‘hkaur’

CRL.L.P. 439/2017 Page 9 of 9

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