Delhi High Court: In an appeal filed challenging the impugned judgment dated 22-09-2010 and order on sentence dated 25-09-2010 passed by Additional Sessions Judge whereby the Judge convicted both the accused persons for committing offences punishable under Section 363, 365, 34 and 376 of Penal Code, 1860 (‘IPC’). Swarana Kanta Sharma, J., sets aside the conviction of the accused for lack of sufficient material to establish guilt of the accused. The Court further condemns the way cross-examination was conducted by asking questions regarding the sexual relations with her own father which does not form part of the subject matter under consideration and discussing them in Trial Court based on a confidential report prepared after a counseling session mostly done in cases related to child sexual abuse.
The case involves allegations of sexual assault where the victim was dragged into a car and dropped back at the same place, where she was picked from. FIR was registered and after investigation, the charge sheet was filed. The Trial Court sentenced the convicts to undergo rigorous imprisonment for three years with a fine of Rs. 10,000/- each and in default to undergo simple imprisonment for five months, for the offence punishable under Section 363, 34 of IPC and further rigorous imprisonment for five years with a fine of Rs. 10,000/- each and in default to undergo simple imprisonment for five months, for the offence punishable under Section 365, 34 of IPC.
The convicts were further sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 30,000/-, in default to undergo simple imprisonment for one year, for the offence punishable under Section 376 of IPC. Aggrieved by the impugned judgment and order on sentence passed by the learned Trial Court, the appellant had preferred the present appeal.
The Court noted that as per settled legal principles, the testimony of the prosecutrix if found trustworthy, credible, and consistent, can form the basis of conviction in a rape case. Corroboration is not an indispensable requirement for a conviction, and the evidence of a sexual assault victim is on par with that of an injured witness notwithstanding the absence of corroboration. Unless there are circumstances that render the evidence of the victim unworthy of credence, there is no reason to insist on corroboration, except for medical evidence, where it is expected to be forthcoming in the given case.
The Court observed that the testimony of the prosecutrix suffers from several material inconsistencies and contradictions. Moreover, the medical evidence and the doctor’s testimony do not indicate whether there were any indications of forced sexual intercourse. Thus, the conviction of the appellant by the Trial Court was made without proper consideration.
However, the Court remarked that as per Trial Court Record, no reasons were stated in the application moved for leading defence evidence as to for what purpose the defence witnesses were being called except for mentioning their names. It was also not mentioned as to what would be proved by which witness, to have enabled the Trial Court to accept or reject the application moved for summoning defence witnesses. Since at the relevant time i.e. in the years 2008-2010, the POCSO Act, 2012 was not in existence, and the prosecutrix in the case was only 12 years of age, the Trial Court was to be guided by the then Juvenile Justice (Care and Protection of Children) Act, 2000.
The Court was astonished to note that even before the relevant stage of trial of leading defence evidence was reached, the counsel for the accused had a copy of the confidential report of counseling that had taken place at the behest of the SHO concerned, solely for the purpose of supporting the victim of sexual assault. A perusal of the cross-examination of the prosecutrix also reveals that a large bunch of questions had been asked to her about the confidential report wherein she had narrated alleged sexual exploitation by her father. Also, the same had nothing to do with the present case in question, therefore, those questions even in the form of suggestions that the prosecutrix was having physical relations with her own father were not only condemnable but should not have been permitted to be asked under any circumstances.
The Court further remarked that Trial Court should have not only disallowed the questions which were not relevant to the case before it but, also should have been vigilant that a confidential report of the counselor regarding the counseling of the prosecutrix should not have been allowed to be brought in the public domain.
The Court disturbingly noted that that her sexual exploitation, if any, by her father which was the subject matter of the alleged counseling session, was in fact an expression of her tragic life and the suffering that she was disclosing to the counselor in confidence, which under no circumstances, should have been brought in the public domain by way of examination and cross-examination of the counselor and putting the counselor’s report to the prosecutrix.
The Court observed that it is the duty of every Court to not only have a heart which is sensitive but also a mind which is alert while recording and conducting trial, especially in sexual assault cases, so that the internal agony and trauma that a child might have discussed or shared with someone she had thought will keep to himself i.e., the counselor.
The Court sets aside the impugned order and held that the material brought on record by the prosecution was insufficient to return a finding of guilt against the present appellant and the prosecution had failed to establish its case beyond a reasonable doubt.
[Sanjeev Kumar v State of NCT of Delhi, 2023 SCC OnLine Del 2646, decided on 01-05-2023]
Advocates who appeared in this case :
Mr. L.S. Chaudhary, Dr. Ajay Chaudhary, Mr. Vishesh Kumar, Ms. Vinita & Ms. Monika, Advocates for the Appellants;
Mr. Naresh Kumar Chahar, APP for State with SI Mohit, P.S. Swaroop Nagar Advocates for the Respondents.
