On Thursday 03rd December, the Delhi High Court set aside the conviction of an accused in a minor’s sexual assault case. It noted that there were material improvements in the statements of the child victim and her mother.
Justice Manoj Kumar Ohri was hearing an appeal filed on behalf of the appellant-accused against the judgment where the appellant was convicted for the offence punishable under Section 6 of the POCSO Act and was sentenced to undergo RI for a period of 10 years.
The child victim, in her statement recorded under Section 164 Cr.P.C., stated that on the day of the incident, the appellant pulled her and sexually assaulted her and she cried and her mother came. And the appellant was convicted for the offence punishable under Section 6 of the POCSO Act by the special judge.
The trial court failed to appreciate that the testimony of the child victim and her mother were not creditworthy as there were material improvements in the statements of the child victim and also her mother. The statement of the child victim under Section 164 Cr.Pc and her in-court examination showed that the child victim has slightly improved the version, the court noted.
Referring to other aspects of cross-examination of the child victim, where she admitted her mother told her what to be stated in the court before coming to the court. The child victim also stated that before being taken to the hospital, her mother had told her as to what is to be stated to the doctor.
The Court said,
“The creditworthiness and the admissibility of the statement of the child victim and her mother is under challenge not only on the aspect of improvements but also on the aspect of tutoring. It is no longer res Integra that the sole testimony of a child victim, before being accepted should be evaluated very carefully. It should be devoid of any embellishment, improvement, or tutoring.”
Further, the Delhi High Court cited the Apex Court’s ruling in the case of Mangoo v. State of M.P. AIR 1995 SC 959, M.P. v. Ramesh & Anr. (2011) 4 SCC 786, State of Madhya Pradesh v. Rajaram Alias Raja (2019) 13 SCC 516 wherein it was stated by the SC, time and again, that while dealing with the evidence of a child witness, the Court must determine as to whether the child has been tutored or not.
The Court remarked;
“In the present case, not only there are material improvements in the statements of the child victim and her mother but there are also material contradictions as already observed. Furthermore, the child victim categorically stated that she was told by her mother about what to say in the Court.”
The creditworthiness of the testimony of the child victim was in doubt, the court opined.
“It cannot be said with certainty that her testimony does not suffer from the vice of tutoring. The testimony of the mother of the child victim is full of material improvements”, said the Court.
The Court noted that the appellant’s false implication couldn’t be ruled out. The Court said, there was no corroboration in the form of MLC or the FSL.
Granting the benefit of doubt to appellant-accused, the impugned judgment and order was set aside. And the appellant was directed to be immediately set free if not required in any other case. The appeal was disposed of in the above terms.
Case title: Altaf Ahmed @ Rahul v. State (GNCTD Of Delhi) [CRL.A. 474/2020]
Coram: Justice Manoj Kumar Ohri