State (NCT of Delhi) Vs. Jitender Sharma - (High Court of Delhi) (29 Apr 2019)

When two views are possible, the Appellate Court should not reverse a judgment of acquittal, merely because another view was possible

MANU/DE/1458/2019

Criminal

The State has instituted the present petition seeking grant of leave to assail the judgment in Session Case arising out of FIR under Sections 376 of Indian Penal Code, 1860, read with sections 4 of Protection of Children from Sexual Offences Act, 2012 (POCSO) registered at Police Station, whereby the Respondent was acquitted of the charges. The gravamen of the charge, for which the Appellant has been convicted, is for having committed rape upon his own daughter/the prosecutrix, a girl aged about 13 years, at the time of commission of the offence.

The first issue that needs determination is, as to whether the prosecution has been able to establish the date of birth of the victim, so as to bring home the guilt of the accused under the ambit of the provisions of the POCSO Act. The second issue is as to whether the testimony of the victim can be said to be creditworthy and reliable.

It is an admitted position that, the IO (PW-15) has proved on record the date of birth certificate issued by Municipal Corporation of Delhi qua victim M. As per the certificate, the date of birth of victim M is 27th December, 1999. The prosecution has therefore proved that, the victim was a minor at the time of commission of the alleged sexual assault, by the accused.

The learned Trial Court, after examining the material evidence on record and in particular the testimony of the victim found that, there were substantial material improvements in the statement of victim M, i.e. PW-4, which have the effect of rendering her testimony highly unreliable.

Further, the Forensic Science Laboratory (FSL) result is not conclusive. In the instant case, the statement of the prosecutrix is shaky, inconsistent and cannot be relied upon in addition to the incident itself being reported 6 months after the alleged commission of the crime. In the present case, on a cumulative reading and appreciation of the entire evidence on record, the evidence of the prosecution is unworthy of acceptance, since the same is found to be replete with infirmities and not supported by the medical evidence on record.

When two views are possible, the appellate Court should not reverse a judgment of acquittal, merely because another view was possible. Where two views are reasonably possible from the very same evidence, the prosecution cannot said to have prove its case beyond reasonable doubt. If the High Court on reappraisal of the evidence considers the possibility of another view being reasonably be plausible, then the view which favours the accused should be adopted unless the High Court returns a definite conclusion that the findings recorded by the trial court are perverse and against the weight of the evidence on record.

There are no substantial and compelling reasons to differ with the findings arrived at by the learned trial Court, based upon just appreciation of the material evidence available on record in the case. There is no ground to interfere with the impugned judgment. The leave petition is accordingly dismissed.

Tags : ACQUITTAL EVIDENCE CREDIBILITY