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State vs Jagat on 6 February, 2020

#6

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Delivered on : 06.02.2020

CRL.L.P.521/2019

STATE …. Petitioner
Versus

JAGAT …. Respondent

Advocates who appeared in this case:
For the Petitioner : Mr. Ravi Nayak, APP for State with ASI/Original I.O. Sita
Ram, PS- New Usmanpur.
For the Respondent : Mr. Ashok Arora, Advocate (Amicus Curiae) with Mr. M.N.
Dudeja, Mr. Harsh Prabhakar and Mr. Aditya Mishra, Advocates
along with Respondent in Person.

CORAM:
HON’BLE MR. JUSTICE SIDDHARTH MRIDUL
HON’BLE MR. JUSTICE I.S. MEHTA

JUDGMENT

SIDDHARTH MRIDUL, J (OPEN COURT).

CRL.M.A. 36190/2019 (for condonation of delay)
The present application under Section 5 of the Limitation Act,
1963, filed on behalf of the applicant/appellant, seeks condonation of
delay of 9 days in filing the accompanying leave petition.

Issue Notice.

CRL.L.P.521/2019 Page 1 of 15

Mr. Ashok Arora, learned amicus curiae accepts notice on
behalf of the non-applicant/ respondent and fairly does not oppose the
application.

For the reasons stated in the application, which are duly
supported by an affidavit, the application is allowed. The delay of 9
days in filing the accompanying leave to appeal petition, is condoned.

The application is disposed of accordingly.

CRL.L.P.521/2019
The present leave to appeal petition under the provisions of
Section 378(3) Code of Criminal Procedure, 1973 (hereinafter
referred as „Cr.P.C.‟) has been instituted on behalf of the State
assailing the impugned judgment dated 29th April, 2019 rendered by
the Trial Court in Session Case No. 199/2018 emanating from FIR
No.273/2018 registered under the provision of Section 377 Indian
Penal Code, 1860 (hereinafter referred as „IPC‟) and Section 6 The
Protection of Children from Sexual Offences (POCSO) Act, 2012
(hereinafter referred as „POCSO‟) Police Station-New Usmanpur,
Delhi titled as ‘State vs. Jagat‟.

Since the contentions raised on behalf of the State are premised
on the statement of the minor victim PW-1; as well as, his statement
recorded under Section 164 Cr.P.C; as also his deposition in Court;
which have evidently been disbelieved by the Trial Court, we consider
it necessary to grant leave to appeal as prayed for and proceed to
determine the case on its merits.

CRL.L.P.521/2019 Page 2 of 15

Leave to appeal is accordingly granted.

Let this appeal be registered and numbered.

CRL.A………………./2020 (to be numbered)

1. With the consent of learned counsel appearing on behalf of the
parties, we have perused the impugned judgment and appreciated the
Trial Court Record including the evidence recorded; and proceed to
adjudicate the appeal by way of the present order.

2. Shorn of all irrelevant details, it was the case of the prosecution
against the accused Jagat that, on 11th April, 2018 upon receipt of
information vide DD No. 81B (Ex.PW5/1), ASI Sita Ram and
Constable Ajay Malik, PW-8 and PW-6 respectively, went to the situs
of the commission of the offence and recorded the statements of the
victim ‘R’ – stated to be 14 years old – and his father PW-10.

3. It was stated by the victim that, his father PW-10 had been
operating a dhaba at 4th Pushta, Kartar Nagar, New Usmanpur, Delhi,
for a period of one year prior to the commission of the offence; and
that the solitary accused Jagat was employed, therein, as a cook. It was
alleged that on 11th April, 2018, whilst his father was away from the
dhaba, Jagat took the victim ‘R’ behind the refrigerator placed within
the dhaba, opened the latter’s trousers and took his penis in his mouth.

4. Immediately, thereafter the father of the victim ‘R’ is stated to
have returned to the dhaba and was promptly informed of the
commission of the offence by Jagat upon his person, by the victim.
The father in turn is deposed to have called the Police Control Room.

CRL.L.P.521/2019 Page 3 of 15

5. On these allegations, the subject FIR came to be registered. As
aforesaid, during investigation the statements of the victim, as well as,
his father were recorded and Jagat was placed under arrest.

6. In order to establish their case against Jagat for the commission
of offences under Section 6 POCSO Act and under Section 377 IPC,
the prosecution examined ten witnesses.

7. The critical testimony, as urged on behalf of the State, relevant
for the determination of the present appeal, is that of PW-1 the victim,
PW-10 the father, PW-8 the I.O. and PW-6 Constable Ajay Malik.

8. Mr. Ravi Nayak, the learned APP appearing on behalf of the
State would canvas that, the victim had been consistent in his
testimony from the very beginning and that his sole testimony by
itself, without any further corroboration, was sufficient to bring home
the guilt of the respondent. Our attention was drawn to the victim’s
testimony to contend that the same was truthful and creditworthy and
that consequently the Trial Court fell into grave error in returning the
finding that, the same was riddled with contradictions and therefore
unreliable.

9. On the contrary, Mr. Ashok Arora, Advocate, the learned
amicus curiae would asseverate that Jagat evidently has been falsely
implicated in this case because of an existing financial dispute
between him and the father of the victim. It was further stated that,
Jagat as an employee of the dhaba used to clear the dues of persons
who provided provisions for the dhaba and that for some period of
time, prior to the alleged commission of the offence, he had neither

CRL.L.P.521/2019 Page 4 of 15
been reimbursed for the expenses disbursed by him to the vendors nor
was he being paid the regular salary, which he was entitled to receive
as an employee.

10. We have heard learned counsel appearing on behalf of the
parties at length, who have invited our attention to the relevant
evidence on record, as well as, to the impugned judgment.

11. We observe that, the Trial Court upon due appreciation of the
evidence, returned findings – with which we concur that – are clear,
cogent and plausible. In this behalf, we consider it appropriate to
extract in-extenso the appreciation of evidence on record by the Trial
Court and the detailed reasons recorded for the latter to return in
returning impugned findings, as hereunder:

“20. The prime witness in this case is the victim. He
appeared as PW 1 and deposed that an year prior to his
deposition, around Deepawali, his father had opened a
dhaba. He did not remember the date or month but it was
one or two months after the Holi of 2018 that one day, he
was sitting at the cash counter. At around 04.00 p.m.,
accused called him near the refrigerator in the dhaba.
Accused opened the zip of victim’s trouser and took victim‟s
penis in his mouth. When accused was forcing him, water
fell from the refrigerator upon his trouser. Thereafter, his
father came. He said nothing to his father. Then his father
sent him to get petrol from a shop. When he returned after
buying petrol, his father again asked as to what had

CRL.L.P.521/2019 Page 5 of 15
happened and threatened to beat him if he failed to tell him
what had happened. He then told everything to his father.
His father called the police. His statement (Ex.PW1/1) was
recorded by the police. He further deposed that Jagat had
done similar acts earlier also and it was done two days
prior to the incident, which was reported to the police. He
further deposed that his statement u/s 164 Cr.P.C was
recorded by the MM. The statement u/s 164 Cr.P.C was
Ex.PW1/2.

21. During his cross examination, he deposed that he
had not told about the first incident to anyone in his family
because the accused had threatened him that in case he told
about it to anyone, accused would beat him. He denied that
his father and accused used to quarrel regularly and
volunteered, that there was only one quarrel that had
happened because the accused was not doing his job
properly. Apart from the accused, there were three other
employees in the dhaba. One was Sanjay, who would
operate tandoor. There was another Sanjay who would
wash utensils and one Rakesh who was a waiter. On that
day, he had reached dhaba at around 02.00 p.m.. At around
04.00 p.m., his father had gone to fetch water. His father
went on bike and he was accompanied by Sanjay, the utensil
washer, who was pillion riding with 50 Ltrs. cane in his lap.
His father came back after half an hour. Police arrived at
05.30 p.m.. Police had also made inquiries from Rakesh and
Sanjay but he did not know if their statements were
recorded by the police. He admitted that accused used to

CRL.L.P.521/2019 Page 6 of 15
make payments for gas cylinder, vegetable vendor and the
rickshaw wala who would transport goods to the dhaba. He
deposed that it was possible that dues of the accused
towards his wages for 10 days and sometimes the payments
which accused used to make, might have been outstanding
towards his father. After Ram Navami of 2018, the sales of
dhaba nosedived. It was possible that because of this
reason, the payments of accused became due. He denied
that because the accused was demanding his dues from his
father, accused was falsely implicated in this case. He
denied that as there were two more employees in the dhaba,
accused could not have committed penetrative sexual
assault upon him. He denied that in order to avoid paying
the dues of accused, his father used him to falsely implicate
the accused. He deposed that at 4.00 p.m., there was no
customer in the dhaba.

22. The second witness is the father of the victim,
who appeared as PW10. He deposed that victim was his
son. He was running a dhaba by the name of Maa
Vindhyabasni Vaishno Dhaba. Accused was working in that
dhaba. On 11.04.18 at about 3.00 p.m, he closed the Dhaba
and went home to take rest. His dhaba had three employees.
One safaiwala, one karigar and Jagat. When he left the
dhaba at 3.00 p.m, his other two employees had gone for an
outing and the victim and accused remained at the shop. At
around 4.00 p.m, he returned to the dhaba and saw that
victim was sobbing. Again he said that victim was lethargic.
He asked the victim as to what had happened and why the

CRL.L.P.521/2019 Page 7 of 15
victim was lethargic. Victim told him that victim was having
pain in his penis. He asked the victim why he was having
pain in his penis and victim said that Jagat had put victim‟s
penis in his mouth and had sucked very hard on it. He made
a PCR call. Police came and arrested the accused.

23. During his cross examination, he denied that
sometimes when he would not be at hotel, accused would
receive the provisions and pay for the same and
volunteered, that sometimes when there would be an
emergent need, accused would go and buy things for dhaba
and he would pay the money spent to the accused. He
admitted that around the period when the incident had
allegedly happened, dhaba was not doing very well and the
income was not much. He denied that due to the financial
crisis in the dhaba, he had not paid the dues of accused for
few months and volunteered, that accused was working on
daily basis and his dues were cleared every day. He
admitted that in his dhaba, they did not require petrol for
any purpose. He denied that the refrigerator in the shop
was placed by the rear wall of the shop and there was no
space behind or by the side of the refrigerator which would
be invisible from the outside. He admitted that there was no
water spread on any portion of the floor of the shop. He
deposed that he and Jagat never had any quarrel. He was
specifically asked that as per the victim, he had left the
dhaba at 4:00 p.m and not at 3.00 p.m. and he stated that
victim had made wrong statement and he had gone at 3.00
p.m. He was then confronted with the victim’s testimony

CRL.L.P.521/2019 Page 8 of 15
where the victim had stated that he had not gone to take rest
but to fetch water and he stated that victim might have
stated so because whenever he would go for rest at home,
he would bring water from home. He was then confronted
with victim’s testimony where victim had stated that he used
to bring water from a place which was five minutes on bike
from his dhaba whereas he had stated that be used to bring
it from home. He deposed that there was a government tap
on the way from his dhaba and it was there that he used to
fill water. He was again asked that on that day, he had not
gone home because the victim had stated that Sanjay, the
utensil washer, sat on his bike with a 50 liter cane to get
water and he replied that he did not remember and
therefore, he could not explain. He was then asked that the
victim had stated that on that day apart from the accused,
he had three workers, namely Sanjay-the utensil washer,
Sanjay-the tandoor operator and Rakesh-the waiter. He
replied that he only had two employees, Sanjay and Satish.
He was then confronted with victim’s testimony where the
victim had stated that when his father left the dhaba, Sanjay
the tandoor operator and Rakesh the waiter remained at the
dhaba whereas he had stated that when he left, there was no
one except accused and the victim at the dhaba. He stated
that the victim had made a wrong statement. On that day, he
had no employee by the name of Rakesh and when he left
the dhaba, victim was alone with the accused. He was then
confronted with victim’s testimony where the victim had
stated that the accused had made payments to vegetable

CRL.L.P.521/2019 Page 9 of 15
vendors etc. and he replied that how could the child know
about it.

24. He was then asked that the victim had stated that
after he returned, he saw that victim’s trouser was wet and
he asked the victim as to what had happened, but the victim
did not reply and then he sent the victim to buy petrol and
he admitted it. He then deposed that he had asked for the
petrol for his bike which had run out of petrol. When he
enquired from the victim for the first time, the victim told
him everything then be sent the victim to buy petrol. After
the victim had brought the petrol, he sent the victim to take
a bath and thereafter, he made a PCR call.

25. He was then confronted with the victim’s
testimony where the victim had said that before the victim
had brought the petrol, the victim told him nothing and after
the victim had brought the petrol, he again asked him as to
what had happened and threatened him that if he did not
tell, he would beat him. He stated that the victim had not
stated correct facts.

26. He denied that no incident as alleged had
happened with the victim or that the accused had been
falsely implicated because of the financial dispute which he
had with accused as accused was demanding his dues. He
denied that the incident could not have happened as the
accused was not alone with the victim and there were two
more employees.”

CRL.L.P.521/2019 Page 10 of 15

12. From a reading of the above extracted paragraphs, the following
factual matrix is axiomatic;

(i) The initial case of the prosecution as recorded in the
subject FIR was that, Jagat had taken the victim ‘R’ behind the
refrigerator and indulged in fellatio after lowering the latter’s trousers.
It was also their case that, the victim had immediately upon the return
of his father to the dhaba, narrated the entire incident to the latter.
The statement of the victim recorded under the provisions of Section
164 Cr.P.C. was on identical lines, save and except, the circumstance
that it contained an improvement qua the allegation that Jagat had
committed a similar offence on 8th April, 2018, as well. From the
reading of the testimony of the victim ‘R’, it is axiomatic that, the
subject dhaba where the offence is alleged to have been committed
had four employees, namely, the respondent Jagat, one Sanjay who
was a tandoor operator, one Sanjay who used to wash utensils and one
Rakesh who was the waiter.

13. Although it was the case of the prosecution that when the
unsavory incident occurred, the victim was alone with Jagat, the same
is completely belied by the victim’s testimony as contained in the
victim’s cross-examination wherein he categorically admitted that, in
the absence of his father from the dhaba, at the relevant time, Sanjay
and Rakesh were present throughout.

14. It is pertinent to observe that the victim’s father completely
contradicted the victim, by deposing that he employed only two
CRL.L.P.521/2019 Page 11 of 15
persons at the dhaba, namely, Sanjay and Satish. The father further
completely contradicted the testimony of his victim son, by deposing
that when he had left the dhaba, the other two employees had already
gone for an outing.

15. It is further telling that although in the initial statement of PW-
10, the father is stated to have caught Jagat while the latter was
indulging in the ugly act with victim ‘R’; it was subsequently deposed
that the father arrived much after the commission of the offence. It is
further relevant to note that, although the victim stated that he did not
disclose the incident to his father immediately upon the latter’s return
and narrated it to him only much later, after he had returned from
purchasing petrol on the instructions of his father; the father contrary
to this testimony, deposed that immediately upon his arrival and upon
his questioning the victim in this regard, the latter narrated the events
qua the commission of the offence by Jagat upon him. In this behalf,
it is also observed that the victim’s father during his examination-in-
chief did not allude at all to the circumstance of having sent his son to
fetch petrol, at the material time, but during his cross-examination
when confronted with the testimony of the victim to the effect that
immediately after the incident he had been sent to buy petrol,
unequivocally admitted that he had sent the victim to buy petrol only
after he had been apprised by him of the sexual assault. It is further
pertinent to notice that, the father also deposed that after the victim
had bought the petrol as instructed, he sent the victim to take a bath
and only thereafter, called the Police Control Room. This conduct of
the witness is not only unnatural but also completely unbelievable.

CRL.L.P.521/2019 Page 12 of 15

16. It is also reflected from the deposition of the I.O. PW-8 and
Constable Ajay Malik PW-6 that, the entire dhaba – stated to be 10
feet. x 18 feet. in area – was completely visible from the outside
clearly establishing thereby that there could have been no area within
the dhaba which was hidden or not visible from the outside thereby
making the testimony of the victim unreliable.

17. In addition, although the two other employees, namely, Sanjay,
the tandoor operator and Rakesh, the waiter, who admittedly were
very much present at the dhaba, at the time of the commission of the
alleged offence, were interviewed by the Police; but inexplicably
neither were their statements recorded by the Police nor were they
examined as witnesses by the prosecution; leading to the inference that
their testimony may have been adverse to the case of the prosecution.

18. We also concur with the finding arrived at by the Trial Court in
relation to the defence taken by Jagat, who articulated and elaborated
his false implication in the commission of the offence. In this behalf,
it is observed that Jagat had categorically and consistently asseverated
that, there were disputes between him on the one hand and the father
of the victim on the other, on account of overdue payments of salary
and reimbursement for the purchase of provisions. It is also a matter
of record that, the dhaba was in dire straits financially and not able to
sustain its operations. This fact was clearly attested to by the father of
the victim himself, as well. It was further admitted by the father of the
victim that as asserted Jagat would regularly defray the costs of the
provisions acquired for the operation of the dhaba to the vendors;
although it was countered that the outstanding amounts were duly

CRL.L.P.521/2019 Page 13 of 15
settled. We also observe that the victim too, in his deposition clearly
and unequivocally admitted to the existence of a quarrel between his
father and Jagat, although he volunteered that disputes were the result
of Jagat purportedly not discharging his duties properly. In this
behalf, it is critical to observe that the father of the victim completely
contradicted the victim son’s testimony and denied having any
financial or other quarrel with Jagat.

19. The above facts and circumstances leave no manner of doubt
that the plea of false implication articulated on behalf of Jagat and the
probability of the dispute over financial matters motivating and
propelling the false allegations of sexual assault, cannot be entirely
ruled out.

20. In view of the foregoing, we find ourselves in agreement on all
four’s with the finding returned by the Trial Court as follows:

“40. In view of the contradictions in the testimony of the
victim and his father, impossibility of the circumstances for
commission of the offence because of the presence of two more
employees and the probability of motive for false implication of
the accused, I find that there are serious doubts in the case of the
prosecution. I accordingly find that the prosecution has failed to
prove its case beyond all reasonable doubts. The accused is
given benefit of doubt. Accused is accordingly acquitted of all
the charges framed against him”

CRL.L.P.521/2019 Page 14 of 15

21. Although, there is no gainsaying the established legal position
that in cases of sexual assault, particularly against minors, the
testimony of the victim can form the foundation for a finding of guilt
against the perpetrator; the same is subject, however, to the testimony
of the victim being of sterling quality and inspiring confidence in the
Court. In the present case, we have found that the testimony of the
victim is riddled with contradictions both inherent, as well as, when
appreciated in conjunction with the testimony of his father and
considered in the backdrop of the medical and forensic evidence, or
lack of it, on record.

22. We are consequently of the view that the present appeal
assailing the impugned judgment whereby Jagat was acquitted for the
commission of the offences under Section 377 IPC and Section 6
POCSO Act is devoid of merit. The same is accordingly dismissed.

23. We would be failing in our duty if we did not record out deep
appreciation to Mr. Ashok Arora, the learned amicus curiae, as well as
Mr. M.N. Dudeja and Mr. Harsh Prabhakar, Advocates for assisting us
in the present appeal.

SIDDHARTH MRIDUL
(JUDGE)

I.S. MEHTA
(JUDGE)

FEBRUARY 06, 2020/nd/d
CRL.L.P.521/2019 Page 15 of 15

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