05 Nov 2020

The evidence of sexual assault against the victim has to be beyond the shadow of reasonable doubt - Delhi High Court

Case : Rahim v. The State (NCT of Delhi) CRL.A. 41/2020 & CRL. M. (BAIL) 75/2020

Court : Delhi High Court

Bench : Justice Manoj Kumar Ohri

Decided on : 05 Nov 2020

Relevant Statutes

Section 323 and 354 of the Indian Penal Code, 1860

Section 8 of the Prevention of Children from Sexual Offences Act, 2012

Sections 374(2), 164 and 313 of the Code of Criminal Procedure, 1973

Brief Facts and Procedural History

1. The minor victim aged about 17 was coming from her workplace and reached a circle near the public toilet; the accused, wearing a black cap and goggles, and face covered with a cloth, came out from the said toilet and followed her. Near the circle of the road for crossing the road, the accused caught hold of her hand and when she shouted and tried to get rid of the accused, the accused slapped her. The accused also caressed her chest at the said place at that time. Two persons came on a motorcycle and caught the accused and a fight also had ensued. He was taken to the Police Station. She made the complaint to the police and pointed out the place of the incident to them.

2. The appellant (accused) was convicted for the offence punishable under Sections 323/354 of the Indian Penal Code, 1860 & Section 8 of the POCSO Act, 2012 by Additional Sessions Judge/ Special Judge under the POCSO Act, 2012 on 25.10.2019.

3. Appellant challenged the conviction through appeal u/s 374(2) of the Code of Criminal Procedure, 1973

The Issue of the Case

Whether the appellant is guilty of offences punishable under Sections 323/354 of the Indian Penal Code, 1860 & Section 8 of the POCSO Act, 2012?

The Observations of the Court

1. The fact of the victim being a minor was proved beyond doubt.

2. The appellant gave completely different statements at different stages of the trial and the contentions made on the behalf of the appellant have no merit and do not discredit the case of the minor victim.

3. The statement of the minor victim is reliable and admissible to the extent that the appellant had caused the physical assault on her on the day of the incident.

4. Moreover, in the MLC of the victim, it was specifically mentioned that there was no history of sexual assault/trauma.

5. The Honourable High Court opined that although the independent witnesses reached the spot at the time of the incident and heard the cries of the child victim but whether they witnessed the entire incident is not certain.

6. Although the prosecution was able to prove the physical assault committed by the appellant on the minor victim but the appellant is entitled to the benefit of the doubt in respect of sexual assault.

The Decision by the Court

The Honourable Delhi High Court partly allowed the appeal and held that:

1. The appellant’s conviction under Section 323 of the Indian Penal Code, 1860 was upheld and his conviction under Section 354 of the Indian Penal Code, 1860 and Section 8 of the POCSO Act, 2012 was set aside.

2. Since the appellant has already undergone a sentence of more than 4 years and 3 months which is more than the awarded sentence including the default sentence for non-payment of fine under Section 323 of the Indian Penal Code, 1860. Therefore, it was directed that the appellant be immediately set free.

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