It is definitely a matter of utmost significance to note that none other than one of the most prestigious High Courts in India that is the Delhi High Court while displaying total straightforwardness in a most learned, laudable, landmark, logical and latest judgment titled Sahjan Ali Through Parokar Banu Khatun vs State Through SHO PS Madhu Vihar in CRL.A. 397/2024 and cited in Neutral Citation No.: 2024:DHC:9947-DB that was reserved on 23 November 2024 and then finally pronounced on 23 December 2024 has acquitted a man serving life imprisonment on charges of rape and sexual assault of a 14-year-old girl under the Protection of Children from Sexual Offences (POCSO) Act and Indian Penal Code. It must be noted that a Division Bench comprising of Honble Ms Justice Pratibha M Singh and Hon’ble Mr Justice Amit Sharma was most forthcoming in very clearly holding that the survivor’s statement does not indicate sexual intercourse or sexual assault. The Delhi High Court noted that the minor did not categorically state that there was any sexual assault, and that there was no evidence to support such finding.
By the way, we need to note that the case stemmed from a complaint that was filed by the minor girl’s mother disclosing that she had been lured and kidnapped from her home by an unknown person. The minor had later disclosed to the police that there was a ‘physical relationship’ between them. The Delhi High Court found that the Trial Court had not given any rationale for the conviction and award of life term.
By any reckoning, the Delhi High Court while acquitting the accused very rightly said that:
It is thus unclear as to the manner in which the Trial Court came to the conclusion that there was any sexual assault by the Appellant. The mere fact that the survivor is below 18 years cannot lead to a conclusion that there was penetrative sexual assault. What we cannot afford to gloss over is that the Delhi High Court noted that the minor did not categorically state that there was any sexual assault, and that there was no evidence to support such finding. It is thus entirely in the fitness of things that the Delhi High Court held that, The fact that she voluntarily went with the Appellant is also not disputed. However, the leap from physical relations or samband to sexual assault and then to penetrative sexual assault is one which has to be established on record by means of evidence, and the same cannot be presumed or deduced as an inference. So it was but ostensible that the Court added that:
In such cases, the benefit of doubt ought to be in favour of the accused. Very rightly so!
At the very outset, this brief, bold, brilliant and balanced judgment authored by Hon’ble Ms Justice Pratibha M Singh for a Division Bench of the Delhi High Court comprising of herself and Hon’ble Mr Justice Amit Sharma sets the ball in motion by first and foremost putting forth in para 1 that:
This hearing has been done through hybrid mode.
CRL.M.(BAIL) 678/2024 in CRL.A. 397/2024
As we see, the Division Bench discloses in para 2 that:
This appeal has been filed by the Appellant-Sahjan Ali, assailing the judgement of conviction dated 21st December, 2023 and order on sentence dated 20th March, 2024 passed by the ld. ASJ-06 (POCSO), Karkardooma Courts, Delhi in SC No. 171/2017, arising from FIR No. 88/2017 filed at PS Madhu Vihar under Section 363, 366, 376 of IPC and Section 4 of POCSO Act. The relevant portion of the order on sentence reads as under
4.6 In absence of any mitigating circumstance, the convict Sahjan Ali, s/o Sikandar Ali, rlo. H. No.B94114, Gali No. 4, Joshi Colony. Delhi-l 10092 is held liable for following punishments u/sec. 4 POCSO Act:
- Imprisonment for life for the remainder of his life, and
- Fine of Rs.50,000/- (Rupees Fifty Thousand only).
Background
To put things in perspective, the Division Bench envisages in para 3 that:
The background of the case is that a complaint was lodged on 18 th March, 2017, in PS Madhu Vihar alleging that the minor girl Ms. X, aged about 14 years, was lured and kidnapped from her home by an unknown person on 17th March, 2017. The complainant in the said FIR was the mother of Ms. X. On the same day, Ms. X was found in Faridabad along with the Appellant.
As it turned out, the Division Bench enunciates in para 4 that:
The Appellant was arrested and the survivor was sent for medical examination at Lal Bahadur Shastri Hospital. The MLC No 58769 was recorded with respect to the said examination which records that no external injuries were found on the survivor.
Do note, the Division Bench notes in para 5 that:
Subsequently, on 20th March, 2017, the statement of the survivor under Section 164 of Cr.P.C was recorded by the ld. Metropolitan Magistrate (Mahila Court No.1), Karkardooma Courts, Delhi, in which she, inter alia, stated that she had a physical relationship with the Appellant.
Do further note, the Division Bench further notes in para 6 that:
Upon completing the investigation, a chargesheet was filed and the Court framed charges against the Appellant on 16th July, 2018 under Section 376 IPC as also under Section 4 of the POCSO Act, 2017.The order on charge reads as under :
I, Gurdeep Singh, Additional Sessions Judge-01 & Special Judge (POCSO), Shandara District, Karkardooma Courts, Delhi, do hereby charge you accused (1) Sahjan Ali s/o Sh. Sikandar Ali, age 22 years as under:-
That on 17.03.2017, at about 10:00 a.m. from B-94, Gall No.6, Joshi Colony, Delhi within the jurisdiction of PS Madhu Vihar, Delhi, you accused took the minor victim girl child (name withheld) aged about 14 years to Faridabad, U.P. and committed rape upon her in a rented room, and thereby you committed an offence punishable U/s 376 IPC and within my cognizance.
Secondly during the above said date, time and place you accused committed penetrative sexual assault on the above said minor victim child in the manner stated above and thereby you committed offence of penetrative sexual assault punishable u/s 4 POCSO Act and within cognizance of this court.
Most significantly, the Division Bench while referring to the relevant Sections i.e. Section 375 of IPC and Section 3 of POCSO Act, 2017 as stated in para 17 encapsulates in para 18 what constitutes the cornerstone of this notable judgment postulating that:
A plain reading of the above provisions would clearly show that in order to convict an accused for offences under the above stated sections, it is essential for the prosecution to prove that the accused had committed physical/sexual acts such as penetration, insertion etc., upon the survivor.
In the statement given by the survivor under Section 164 of CrPC before the ld. Metropolitan Magistrate, the survivor only states that the boy (Appellant) made ‘samband’ with her. However, the victim, in her subsequent statements, had categorically denied that there was any form of sexual assault on her. A perusal of the MLC shows that there are no external injuries on the victim. The terminology used in the MLC is not clear and the prosecution has not examined any medical expert/doctor to explain the MLC.
Be it noted, the Division Bench notes in para 20 that:
Therefore, the entire case hinges only on the victim’s evidence i.e., her statement under Section 164 CrPC and her testimony in Court which are not sufficient by themselves to convict the Appellant under Section 376 IPC and Section 4 of the POCSO Act inasmuch as in her testimony or statement under Section 164 CrPC she does not categorically state that there was any sexual assault let alone penetrative sexual assault. Even the MLC does not support a finding of penetrative sexual assault.
Most forthrightly, the Division Bench points out in para 21 holding that:
It is thus unclear as to the manner in which the Trial Court came to the conclusion that there was any sexual assault by the Appellant. The mere fact that the survivor is below 18 years cannot lead to a conclusion that there was penetrative sexual assault
The survivor, in fact, used the phrase ‘physical relations’, but there is no clarity as to what she meant by using the said phrase. Even the use of the words ‘samband banaya’ is not sufficient to establish an offence under Section 3 of the POCSO Act or under Section 376 IPC. Though consent would not matter if the girl is a minor under the POCSO Act, the phrase ‘physical relations’ cannot be converted automatically into sexual intercourse let alone sexual assault.
Most sagaciously and most remarkably, the Division Bench propounds in para 22 holding that:
The fact that she voluntarily went with the Appellant is also not disputed. However, the leap from physical relations or samband to sexual assault and then to penetrative sexual assault is one which has to be established on record by means of evidence, and the same cannot be presumed or deduced as an inference. In such cases, the benefit of doubt ought to be in favour of the accused. Moreover, the impugned judgment completely lacks any reasoning and also does not reveal or support any rationale for the conviction.
Conclusion
As a corollary, it is worth noting that the Division Bench notes in para 23 that:
Under such circumstances, the judgment is liable to be set aside. The Appellant is acquitted.
What’s more, the Division Bench holds in para 24 that:
The appeal is allowed in the above terms. All pending applications are disposed of.
Finally, the Division Bench then concludes by holding in para 25 that:
Copy of this judgment be communicated to the concerned Jail Superintendent for information and compliance.
In sum, we thus see in this leading case that Delhi High Court very rightly acquits the man in a POCSO case. It is also manifestly made clear by the High Court that physical relationship does not imply sexual assault. The minor also did not state that there was any sexual assault and there was no evidence also to support such finding of sexual assault. So the accused was thus very rightly acquitted by the Delhi High Court. No denying or disputing!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
