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State ( Govt Of Nct Of Delhi) vs Arif on 5 March, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 05th March, 2020

+ CRL.A. 1044/2019

STATE (Govt. of NCT of Delhi) …Appellant
Through: Mr. Ashish Dutta, APP.

versus

ARIF …Respondent

Through: Mr. Harsh Prabhakar, Amicus
Curiae with Mr. Dhruv
Chaudhary, Advocates.
CORAM:
JUSTICE SIDDHARTH MRIDUL
JUSTICE I.S.MEHTA

JUDGEMENT

I.S. Mehta, J.

1. Instant appeal is arising from the Judgment dated 02.08.2018
passed by the learned Additional Sessions Judge, (North-West)-01
Special Court, POCSO, Rohini, District Courts, Delhi in Sessions
Case No. 124/15 arising out of FIR No. 538/15 registered under
Sections 354A/354D/376/384 IPC and Section 4 POCSO Act at PS
Sultan Puri, Delhi whereby the respondent/accused was acquitted from
the charges leveled against him.

2. Brief facts stated are that on 08.06.2015, PW6 W/ASI Sajni
received information through wireless from SHO PS Sultan Puri of
sexual assault on minor girl, on receiving said information, PW6

CRL.A. 1044/2019 Page 1 of 10
alongwith NGO Counselor reached to PS Sultan Puri and made
preliminary inquiry from PW3 prosecutrix ‘E’ and her mother PW10.
Thereafter, PW6 got prosecutrix ‘E’ counseled and her statement
(rukka) Ex.PW3/A was got recorded and W/ASI Sajni sent prosecutrix
to SGM Hospital alongwith her mother and Lady Ct. Manju for
conducting her medical examination vide MLC Ex.PW3/B and
thereafter FIR No. 538/15 was got registered under Sections
354A/354D/376/384 IPC and Section 4 POCSO Act at PS Sultan Puri,
Delhi on basis of said statement. Statement Ex.PW3/A is reproduced
below :

She stated that she is 12th pass and is living with
her parents on aforesaid address. She knows one boy Arif
who works at lathe mill shop infront of their house. He
follows her while she up downs to school. She
overlooked many times but Arif kept on stalking her. She
did not narrate her parents due to fear of consequences.
Accused Arif took her phone number forcefully and used
to call her from Mobile No. 9015124453. Accused Arif
used to threaten her saying he has taken her photograph
and he will defame her if she will not speak with him.
The accused Arif asked her to fetch money, gold earring
and gold ring, which she gave on 24.12.2014 when she
was on her way to tuition, Arif followed her and
proposed a date with him to which she refused and went
to her tuition. On her way back to home, Arif met her just
couple of feet away from her house and told her to
accompany him on motorcycle under the fear. However,
she does not know the number of Motorcycle. The
accused Arif took her to Japanese Park and started
teasing her. Accused then started molesting her to which
she objected, despite her objection, accused Arif groped
her and opened her salwar and forcefully fingered into
her private parts. Accused Arif till date follows her and

CRL.A. 1044/2019 Page 2 of 10
tells her to meet at a secluded place as he intends to make
physical relation with her. On 08.06.2015, her mother
Suman opened her almirah and found missing some
money and gold ornaments. Her mother inquired
whereabouts of missing money and gold ornaments from
her. She under the fear disclosed everything to her
mother. Her parents brought her to PS Sultan Puri. Legal
action be taken against accused Arif, missing money and
gold ornaments be returned to her. She made statement in
presence of her mother voluntarily. Statement is read
over to her, same is correct.

Sd/-

3. After registration of said FIR, on same day i.e. 08.06.2015,
investigation was handed over to W/SI Omwati PW7 who, on the next
day i.e. 09.06.2015, arrested the accused Arif vide Arrest Memo
Ex.PW3/D, his personal search was got conducted vide personal
search memo Ex.PW3/E and his medical examination was got done
vide MLC Ex. PW4/A. Thereafter, accused vide his disclosure
statement Ex.PW7/A pointed out place in Japanese Park vide pointing
out memo Ex.PW7/B. Accused took the police team to Muthoot
Fincorp Ltd. at Budh Vihar and got recovered gold articles vide
pointing out memo Ex.PW7/C. PW2 Sh. Suraj Sharma, manager of
said Muthoot Fincorp Ltd. branch was got examined under Section
161 Cr.P.C. and produced documents of pledge of said gold articles
i.e. one Gold Jhumki of 9.1 gms (Ex.P1) and one Gold Ring of 2.7
gms (Ex.P2) in lieu of which accused Arif had taken Rs.20,000/- from
the branch same were seized vide Seizure Memo Ex.PW7/D. Said
Gold articles were seized vide Seizure Memo Ex.PW7/E. On
11.06.2015 PW7 got statement of prosecutrix ‘E’ recorded under

CRL.A. 1044/2019 Page 3 of 10
Section 164 Cr.P.C. vide application Ex.PW1/A. Thereafter, on same
day site plan Ex.PW3/C of the place of incident was made at instance
of prosecutrix ‘E’.

4. Thereafter on 25.07.2015 TIP of the said gold articles was
conducted in Court of Ld. MM Sushil Anuj Tyagi vide TIP
proceedings Ex.PW8/B, wherein prosecutrix ‘E’ was unable to identify
the pair of Gold Jhumki Ex.P1. Thereafter, Section 384 IPC was added
to the FIR while Section 406 IPC was removed.

5. After recording statements of the witnesses and completion of
the investigation chargesheet under Section 354A/354D/376/384/506
IPC and Section 4 POCSO was filed.

6. Charges for commission of offence 12 POCSO Act or in the
alternate 354A/354D IPC, 4 POCSO Act or in the alternate 376(2) IPC
and 506/383 IPC were framed against the accused on 15.12.2015 to
which accused pleaded not guilty and claimed trial.

7. In order to prove its case, prosecution has examined 10
witnesses namely Ms. Susheel Bala Dagar, Ld. M.M. (PW1), Sh.
Suraj Sharma (PW2), Prosecutrix ‘E’ (PW3), Dr. Rohit Kumar (PW4),
Dr. Akanksha Setya (PW5), W/ASI Sajni (PW6), W/SI Omwati
(PW7), Sh. Sushil Anuj Tyagi (PW8), Sh. Sanjay Solanki (PW9) and
Smt. Suman Lata (PW10) after which the prosecution evidence was
closed.

8. Thereafter, statement of accused was recorded under Section
313 Cr.P.C. Thereafter, defence evidence was closed.

9. After concluding arguments, Court below acquitted the accused
from charges framed against him vide Judgment dated 02.08.2018 in

CRL.A. 1044/2019 Page 4 of 10
Sessions Case No. 124/15. Aggrieved from impugned Judgment State
preferred present appeal.

10. Ld. APP on behalf of State has submitted that Court below
misread the evidence on record and reached to the wrong conclusion.
Ld. APP pointed out that statement of prosecutrix ‘E’ recorded under
Section 164 Cr.P.C. and statement of prosecutrix ‘E’ recorded before
the Trial Court is consistent with her Statement Ex.PW3/A.

11. Ld. APP further submitted that statement of prosecutrix ‘E’ PW3
is sufficient to bring home conviction against the present
accused/respondent. The Ld. APP further submitted that statement of
prosecutrix ‘E’ PW3 is corroborated with statement of her parents PW9
and PW10 and other independent witnesses. Ld. APP further
submitted impugned Judgment deserves to be set aside and accused be
convicted of the charge framed against him.

12. Per contra, Ld. Counsel for accused has submitted that
statement of the prosecutrix does not inspire confidence, the statement
of the prosecutrix suffers from material contradiction and the manner
of happening of the incident. He further submits that Court below has
rightly acquitted the accused from all the charges and present appeal
of the State be dismissed.

13. The statement of prosecutrix ‘E’ in trial Court is as under:-

she stated that she knew accused Arif, the accused
used to follow her on her way to school in year 2014. She
used to avoid him but the accused did not stop following
her and even started harassing and commenting on her
person for more than 3-4 months. Due to this fear she did
not disclose this fact to any of the family members. Once
she was stopped by the accused and she has given her

CRL.A. 1044/2019 Page 5 of 10
residence mobile phone number on being threatened by
the accused. Thereon he started calling her on the said
mobile number. Initially she did not respond to his calls
but, after accused threatened her to defame her, she
started talking to him on his mobile phone.

One day, the accused threatened her to such an
extent that she handed over to the accused a pair of gold
jhumki and gold ring alongwith cash Rs. 9,500/-.

On 24.12.2014 she was going to attend her tuition
when accused followed her and asked her to accompany
him for roaming. She had refused to go with him and
attended her tuition class. After attending her tuition
when she came out at 4 PM, accused Arif met her on the
way and again asked to accompany him on the
motorcycle, she again refused to go with him but accused
threatened to kidnap her brother, due to the fear she went
with accused and he took her to “Japinees Park”. In the
Japanese Park accused made her write 2-3 letters and
accused started misbehaving with her and when she
protested accused pressed her breast. Thereafter accused
opened string of her salwar and put his finger in her
private parts. In the meanwhile the accused received a
phone call and she ran away from there. Accused wanted
to meet her in a lonely place and he wanted to establish
physical relations with her. She did not disclose about
this incident to her family members due to fear.

On 08.06.2015 her parents had to go to the native
village and her mother had opened the almirah and found
her jewelry and cash missing from the almirah, she made
inquiry from prosecutrix ‘E’ and then only prosecutrix
disclosed about the incident and all the facts to her
parents, who then took prosecutrix to the PS. In the PS
one counselor was called by the police, who had
counseled prosecutrix and thereafter her statement was
recorded by the police in presence of her mother.
Thereafter, the police had taken her to the hospital where
her medical examination was conducted vide MLC
Ex.PW3/B, and her statement under Section 164 Cr.P.C.

CRL.A. 1044/2019 Page 6 of 10

Ex.PW1/B was recorded. She was taken to the place of
incident by IO to the Japanese Park and the site plan
Ex.PW3/C was prepared at her instance. The accused
was arrested by police on her identification vide Arrest
Memo Ex.PW3/D and his personal search was carried out
vide Personal Search Memo vide. Ex.PW3/E.

14. Although, testimony of the prosecutrix is usually sufficient to
prove guilt of the accused in sexual offence cases. However, in the
present case the statement of PW3 prosecutrix ‘E’ does not inspire
confidence on account of delay in lodging the FIR, FIR No.538/15,
material contradiction and the manner in which the incident happened.
It is an admitted fact coming on record that the incident took place on
24.12.2014 whereas the FIR was registered on the basis of rukka
Ex.PW3/A on 08.06.2015. Admittedly, prosecutrix ‘E’ met with her
parents PW9 and PW10 at the parental home and she remained there
in the company of her parents.

15. As per PW9, father of the prosecutrix ‘E’, he stated that
prosecutrix had come late to the house on 24.12.2014 and on asking
reason of reaching late at home, prosecutrix ‘E’ got perplexed and
narrated the incident to him which is reproduced as under as:-

“On 24.12.2014 my daughter had reached home at
about 5:15-5:30 p.m. My wife had asked from her
about the reason of her late coming. Again said,
on that day me and my wife both had asked about
the reason of late coming of my daughter on that
day. At that time she was very perplexed and when
on the asking of my wife she had told her that the
accused had taken he(r) to Japinees Park. Again
said this fact was told by my daughter to my wife
of 08.06.2015.”

CRL.A. 1044/2019 Page 7 of 10

16. Since, the incident took place on 24.12.2014 and parents of the
prosecutrix did not lodge the complaint with the police station soon
after the incident despite having knowledge of the incident being taken
place and later coming with the rukka dated 08.06.2015 under the garb
of non disclosure by prosecutrix ‘E’ under fear is not convincing.

17. As per the prosecution version, prosecutrix ‘E’ was subjected to
sexual assault by accused Arif whereas the prosecutrix herself narrated
the place of the incident as Avantika Park to PW5 Dr. Akanksha Setya
the Doctor PW5 who examined her on 08.06.2014 at 10:25 PM vide
MLC Ex. PW3/B.

The version of the prosecutrix ‘E’ that she could not narrate the
incident to her parents due to fear of the accused too does not seem to
be correct.

18. The statement of the prosecutrix ‘E’ to the effect that the
accused Arif threatened her to such an extent that she had handed over
to him one pair of gold ear rings (jhumki), one gold ring and Rs.
9500/-cash too is inconsequential in presence of the letters written by
the prosecutrix ‘E’ to the accused i.e. Ex.PW3/DX-1(Colly).

19. It is an admitted fact emerging on the record that the prosecutrix
knew accused Arif for about a year, the incident took place towards
end of year 2014 i.e. 24.12.2014. Prosecutrix ‘E’ never alleges against
the accused of extending threat through a weapon i.e. knife, pistol, etc.
On the date of the incident too i.e. 24.12.2014 the prosecutrix ‘E’
stated that when she was in the company of accused Arif, accused
received a phone call at place of the incident i.e. Japanese Park and
she ran away from the spot. But during the cross-examination she has

CRL.A. 1044/2019 Page 8 of 10
clarified that she did not raise alarm while return journey on
motorcycle with accused Arif, extract of same is reproduced:-

” I did not raise alarm even at the time of return
journey while on motorcycle”

20. Statement of prosecutrix ‘E’ under Section 164 Cr.P.C., Ex.
PW1/B was recorded on 11.06.2015 and the same is proved by Ms.
Susheel Bala Daggar, Ld. MM, Rohini, Delhi. As per the statement,
there is no mention of threat extended to prosecutrix by accused on
point of knife. The statement of the prosecutrix under Section 164
Cr.P.C., also she does not disclose the writing of letters under the
threat of pointing of knife by the accused.

The prosecutrix ‘E’ in her statement before the Court stated that
she has accompanied accused on motorcycle at Japanese Park at point
of knife and she was made to write 2-3 letters on the point of knife is
an improvement made with the passage of the time to justify her
position and conduct as the letters so written were already in
possession of the accused and she was having the knowledge of the
same. The contents of letters Ex.PW3/DX-1(Colly) indicates the
development of contemporaneous natural relationship between the two
individuals and element of extending any kind of threat or fear is
missing.

21. The prosecutrix ‘E’ made visible improvement in her statement
before Court which she did not disclosed in her rukka Ex.PW3/A and
statement under Section 164 Cr.P.C. Ex.PW1/B pertaining to threat
extended by the accused. The prosecutrix ‘E’ refused her internal
medical examination vide MLC Ex.PW3/B, consequentially, nothing

CRL.A. 1044/2019 Page 9 of 10
incriminating is emerging from MLC Ex.PW3/B. The prosecution
neither able to explain the delay in registration of FIR Ex.PW6/B of
more than 5 months from date of the incident satisfactorily in the
instant case nor could establish the place of the incident beyond
reasonable doubt i.e. Japanese Park or Avantika Park as both the parks
are located at different places. The letters Ex.PW3/DX-1 (Colly)
indicates the development of contemporaneous natural relationship
between the two individuals which compels us to disbelieve the
version of the prosecution of accused extending any kind of threat to
the prosecutrix ‘E’ on date of the incident or accused extending any
kind of the threat in demand of cash or jewellery. Thus, we are in a
complete agreement with the finding reached by the Trial Court to be
correct and as such there is no other material point to take the contrary
view. The reliance is placed on Union of India v. Bal Mukund Ors.
(2009) 12 SCC 161.

22. As discussed above we find no merit in contention of Ld. APP,
consequentially, appeal of the State is accordingly dismissed. The trial
court record be sent back alongwith one copy of this Judgment.
No order as to costs.

I.S.MEHTA, J.

SIDDHARTH MRIDUL, J.

MARCH 05, 2019

CRL.A. 1044/2019 Page 10 of 10

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