The State sought leave to appeal against the acquittal of the respondent for offences under Sections 354B IPC and 10 POCSO Act. The court examined the material contradictions in the testimonies of the victim's mother and father regarding time, place and circumstances, found no infirmity in the trial court's reasoning, and dismissed the petition for leave to appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF DELHI AT NEW DELHI
STATE .....Petitioner
versus
SACHIN ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Utkarsh, APP for the State SI Deepak Kumar, PS- Jh.Puri For the Respondent : Ms. Sunita Arora (DHCLSC), Adv.
CORAM
HON’BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
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Protection of Children from Sexual Offences Act, 2012 (‘ POCSO Act ’).
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required to be cross-examined. It was also conceded that there was no requirement for modification of the statement of the accused under Section 313 of the CrPC.
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ANALYSIS
“ 19. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal “shall be entertained except with the leave of the High Court”. It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub-section (3) of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code.
20. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside. 21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute
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details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and, hence, no leave should be granted.
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24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate court against an order of acquittal recorded by the trial court. We only state that in such cases, the appellate court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial court should not be disturbed. Where there is application of mind by the appellate court and reasons (may be in brief) in support of such view are recorded, the order of the court may not be said to be illegal or objectionable. At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and reappreciation, review or reconsideration of evidence, the appellate court must grant leave as sought and decide the appeal on merits. In the case on hand, the High Court, with respect, did neither. In the opinion of the High Court, the case did not require grant of leave. But it also failed to record reasons for refusal of such leave.”
(emphasis supplied)
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outside or crossing over the adjoining roof, and admitted that the house of the respondent is not adjacent to her house.
by the complainant and did not witness the incident herself. The said conclusion does not appear to be erroneous. Even so, from a bare perusal of the impugned judgment, it cannot be said that the evidence of the victim was not duly appreciated by the learned Trial Court. The initial testimony suggests that the victim herself saw the incident
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happen, however, she has later categorically stated that she was asleep. The same goes to the very root of the matter and has rightly been taken note of by the learned Trial Court.
“39. This leaves us, at the end, with , and therefore her testimony needs to be scrutinized with due care and caution, especially since in. a crowded locality, in hot summer month, when people would have been present In abundance, sleeping in the gali as well as on the terraces of their small houses in the neighbourhood of the victim's house in Jahangir Puri, nobody else ever saw the accused going up to the terrace of the victim.
40. As per PW 2, as deposed by her in her examination in chief, the incident took place at about 3.00 PM, when she suddenly woke up and found that the accused was lowering pajami of her daughter and that the zip of his pant was in open condition. In her examination in chief, PW 2 deposed that her daughter was sleeping on the terrace of his house on the cot, while she was sleeping on the ground on the terrace itself, whereas in her cross-examination, she stated that she was sleeping on the cot adjoining to the cot, on which her daughter was sleeping, and the position of her daughter was towards her. If that be the case, either there was no space between the two cots, then where exactly was the accused sitting and removing the pajami of the victim, is not clarified, or if there was space between the two cots, on which cot had the accused sat for doing the alleged nefarious act, is not explained.
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42. In her examination In chief, PW 2 stated that she woke up at 3.00 AM, when she saw the alleged offence being committed by the accused, but In her cross-examination, she stated that the Incident had happened at around 2.00 AM. Strangely she added a new fact In her cross examination to the effect that the Incident happened at
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around 2.00 AM when she heard the voice of her daughter and thereafter noticed the time on the clock to be about 2.00 AM. As per the testimony of PW 1, who Is daughter of PW 2, she did not notice the accused removing her pajami as she was sleeping, and she did not raise any voice, then from where PW 2 heard the voice of her daughter, is not explained.
43. Further more, a glaring discrepancy comes to the fore on a minute scrutiny of the testimony of the sole eye witness of the occurrence i.e. PW 2, who in her cross-examination, on one hand, stated that the incident took place at about 2.00 AM, though in her cross-examination, she stated the timing of the incident to be 3.00 AM. She also admitted that she had gone to sleep after consuming 'Sehri' (food eaten early in the morning during Ramzaan), may be at 2.00 PM and that after consuming Sehri with her daughter and Jethani, she woke up only in the morning. She also admitted that no incident took place before eating Sehri and that after taking Sehri, she lied down in a room, which was constructed on the terrace and that after taking Sehri, she fell asleep and woke up only in the morning.
44. This being her admission that after consuming Sehri, she went to the room to sleep and woke up only in the morning, makes her version not beyond doubt, as admittedly she never got up before morning, while the alleged occurrence took place after she had consumed Sehri around 2.00 AM or 3.00 AM. A clarification, on this aspect, was brought forth in the re-examination of this witness, but since accused was not afforded an opportunity to cross examine the said witness, as regards her reexamination, the same cannot be considered by the court.
45. At this stage, if the testimony of the husband of PW 2, who has been examined as PW 7, is revisited, in his cross-examination, he has stated that he alongwith his daughter and sister-in-law ate Sehri at about 4.00 AM, while in his examination in chief he has stated that his wife raised an alarm at about 3-3.15 AM, when he had apprehended the accused, which makes the timing of the alleged incident questionable and not established, and even raises a doubt as to whether the incident did actually take place, or not.
46. Noteworthy it Is, at this stage that while in her examination in chief, PW 2 stated that the accused was wearing a pant, the zip of which was in open condition, in her cross-examination, she stated that the accused was wearing only his undergarments, thus bringing out a vital and material contradiction, which goes to the root of the matter.
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53. Though, no defence witness has been brought forth by the accused to corroborate his version, but with the ever changing and contrary version of the mother of the victim, the only alleged eye witness who from her own contradictions, makes her presence on the spot of alleged occurrence, and she having witnessed the alleged incident, highly doubtful, and makes the defence of the accused more plausible.
54. In view of the testimony of the only eye witness i.e. mother of the victim examined as PW2, who sometimes stated that she was sleeping in the room, sometimes stated that she was sleeping on the floor, and sometimes stated that she was sleeping on the cot adjoining to the victim, the timings of her going to sleep, her contradictions as regards the clothing of the accused, and the victim herself not having noticed the accused lowering her pajami, I am of the opinion that the prosecution has failed to establish the guilt of the accused, beyond a shadow of reasonable doubt. The contradictions and inconsistency in the testimony of the eye witness, necessarily demand that the benefit of doubt be given to the accused.”
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learned Trial Court found it dubious as to where the accused was positioned while committing the alleged act. The most clinching aspect that creates a doubt in the testimony of PW2 is that as per her, she woke up due to the voice of the victim, while the victim herself made no mention of raising any alarm and instead said that she was asleep and did not notice anything amiss. If that be so, it is unclear as to what caused PW2 to rouse from her sleep and why PW7 and the victim’s brother, who were sleeping on the same cot as her, did not wake up. There is also some inconsistency in relation to the very time of the incident where she first deposed that the incident took place at 3AM and stated in her cross examination that the incident had taken place at 2AM. She further also substantiated that she had seen the time on the clock when she woke up as well.
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stated that no incident took place prior to the Sehri. The relevant portion of the impugned judgment is reproduced hereunder:
“45. At this stage, if the testimony of the husband of PW 2, who has been examined as PW 7, is revisited, in his cross-examination, he has stated that he alongwith his daughter and sister-in-law ate Sehri at about 4.00 AM, while in his examination in chief he has stated that his wife raised an alarm at about 3-3.15 AM, when he had apprehended the accused, which makes the timing of the alleged incident questionable and not established, and even raises a doubt as to whether the incident did actually take place, or not. ”
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well [Ref. Altaf Ahmed v. State (GNCTD of Delhi) : 2020 SCC OnLine Del 1938 ]. In the present case, as noted by the learned Trial Court, there are grave inconsistencies in relation to spot of incident as well as the time of incident. Moreover, as discussed above, the presence of the accused at the spot has been found to be doubtful. It was in such circumstances that the learned Trial Court opined that while the accused had not led any defence evidence to corroborate his version of being falsely implicated due to religious acrimony, the case of the prosecution was doubtful and the guilt of the accused had not been proved beyond a shadow of doubt.
AMIT MAHAJAN, J
MARCH 07, 2025
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3 issues framed by the court
Whether leave to appeal under Section 378 CrPC should be granted to the State against the acquittal of the respondent for offences under Sections 354B IPC and 10 POCSO Act.
Whether the trial court erred in disbelieving the testimony of the sole eyewitness complainant due to material contradictions.
Whether the presumption under Section 29 of the POCSO Act compelled interference despite doubts about the prosecution case.
Colour shows how this judgement treated each authority
State of Maharashtra v. Sujay Mangesh PoyarekarRelied on¶16
(2008) 9 SCC 475 · Who else cites this
Nirmal Premkumar v. StateReferred¶22
2024 SCC OnLine SC 260 · Who else cites this
Altaf Ahmed v. State (GNCTD of Delhi)Relied on¶34
2020 SCC OnLine Del 1938 · Who else cites this
5 provisions across 3 enactments
State
Sachin
Amit Mahajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
