Emphasising that a woman’s choice of attire is her personal choice and cannot justify unlawful conduct dropped, the Delhi High Court has dropped POCSO charges due to unreliable birth certificate, and reversed the trial court’s acquittal under Section 354A IPC on appeal. The Court pointed out that POCSO Act could not be invoked as the prosecution failed to prove the prosecutrix’s age, the birth certificate being unreliable, and defective investigation cannot justify acquittal where the substantive evidence is reliable.
Essentially, the High Court ruled that a woman’s clothing, religion, and personal choices have no bearing on whether sexual harassment occurred, and cross-examination founded on regressive notions of modesty or custom has no legitimate place in a court of law. The accused was accordingly convicted under Section 354A(1)(i) IPC, and the matter was listed for sentencing.
On the question of age under the POCSO Act, a Single Judge Bench of Justice Chandrasekharan Sudha found that the prosecution had failed to satisfactorily establish the minority of prosecution witness. The birth certificate showed the date of birth as Nov 20, 1996, but the Sub-Registrar, admitted that the birth was registered only on June 23, 2009, i.e., after approximately 13 years. Critically, the birth registers for the period Jan 01, 1996 to Dec 28, 1996 did not contain any entry corresponding to the birth certificate. The Sub-Registrar also admitted that when registration is done after a year, it requires an order of the SDM, but no such order could be traced. The Sub-Registrar further admitted he could not say whether the certificate was genuine or false. In these circumstances, the Court held that the prosecution had failed to prove the age of the prosecutrix, and therefore the provisions of the POCSO Act could not be invoked.
On the reasons given by the trial court for acquittal under Section 354A IPC, the High Court systematically dismantled each ground. The failure to prove the identity of the caller who informed the police was held to be immaterial, as even the accused did not dispute that the prosecution witness had lodged a complaint against him. The discrepancy in arrest timing was held insufficient to discard the prosecution case, relying on settled law that defective investigation by itself cannot be a ground for acquittal. The Court reiterated that where there has been negligence by the investigating agency, the court is legally obligated to examine the prosecution evidence dehors such lapses to determine whether the evidence is reliable.
On the trial court’s reliance on the failure of the IO to investigate the counter-complaints filed by the accused and local residents against the prosecution witness, the High Court made a critical finding that DA disclosed no cognizable offence whatsoever. The so-called “crimes” attributed to the prosecution witness in that complaint were: residing alone with her mother with no male member in the family, wearing objectionable dress, and allegedly corrupting young boys of the locality. The Court observed that it was unable to find any provision in any law, statute, or rule book that had been violated by prosecution witness. The Court analysed the powers of the police under Chapter XII CrPC, particularly Sections 154, 156, and 157, and held that the right of the police to investigate is subject to the condition that the police officer should have reason to suspect the commission of a cognizable offence.
The Court observed that questions about the religion of the locality’s residents and the clothes worn by prosecution witness were wholly irrelevant, improper, and appeared to be a technique to embarrass, humiliate, and morally judge the prosecutrix based on her clothing. The Court held that a woman’s choice of attire neither diminishes her dignity nor serves as justification for unlawful conduct directed against her. When the counsel was asked why such questions were put, he replied that every neighbourhood has customs and traditions that everyone must follow, which the Court found wholly unacceptable. The Court held that neither religion nor local custom can be used to justify unlawful conduct or to impose restrictions upon the personal choices of a woman.
The Court referred to the dictum in State of U.P. v. Raghubir Singh [(1997) 3 SCC 77], where the Supreme Court had deprecated evidence of a defence witness making imputations on the moral character of a prosecution witness’s mother in a murder case, holding that law does not permit even the child of a prostitute to be murdered and the murderer cannot escape by establishing that the mother was of loose morals. The Court also referred to Sections 146 to 152 of the Evidence Act, holding that the process of cross-examination cannot be reduced to an instrument of humiliation, and the dignity of a witness cannot be sacrificed under the guise of testing her credibility.
On the merits of the offence under Section 354A IPC, the Court found that prosecution witness had given a consistent version across her FIS/FIR, Section 164 statement, and court testimony. The only variation was that in the Section 164 statement she mentioned the accused placing hands on her hips, which was absent in the FIS/FIR and her court testimony. However, she consistently stood by her case of unwanted physical contact, i.e., the accused touching her cheeks despite her objection, and consistent stalking. The Court noted the attitude of the accused when objected to, which essentially conveyed that prosecution witness was a woman of easy virtue and therefore he had every right to harass her.
Briefly, the prosecution case arose from an incident on July 17, 2013, when a 17-year-old girl alleged that one Sajid Ali, a resident of her neighbourhood in Lal Kuan, Delhi, repeatedly stalked her and made sexually coloured remarks against her. On the date of the incident, while she was returning home after fetching medicines, the accused allegedly touched her cheeks and when she objected, he threatened her saying he would “show her what her sharafat (virtue) was” and asked her to leave silently. A complaint was lodged at Hauz Qazi Police Station, leading to chargesheet alleging offences under Sections 354A and 354D IPC and Section 12 of the POCSO Act.
The trial court, however, framed charges only under Section 354A IPC and Section 10 of the POCSO Act. After examining eight prosecution witnesses and one defence witness, the trial court acquitted the accused, citing multiple defects in the prosecution case including failure to prove the identity of the caller, discrepancies in arrest timing, inconsistencies regarding the place where the complaint was recorded, failure of the Investigating Officer to investigate counter-complaints filed by the accused and local residents against the prosecutrix, and non-examination of independent witnesses.
The defence case was that the local residents, described as orthodox, were annoyed for wearing objectionable clothes and had lodged a written complaint against her with the police on the very same day, signed by over 50 residents. The accused claimed he was a signatory to that complaint and that the prosecution witness, with the help of Sub-Inspector Pawan Tomar with whom she allegedly had a relationship, falsely implicated him due to his criminal antecedents. A subsequent complaint was also filed before the DCP Central by the accused and other residents, alleging that such witness and her mother indulged in blackmailing young boys and made obscene gestures.
