The Delhi High Court declined to grant to leave to appeal against the acquittal of a school van driver who was accused of sexually assaulting two girls.

It said that the Trial Court examined evidence in a very meticulous manner.

The State had filed a petition under Section 378(1)(b) of the Criminal Procedure Code (CrPC) seeking leave to appeal against the judgment of the Trial Court by which the accused was acquitted of all the charges.

A Division Bench of Justice Suresh Kumar Kait and Justice Manoj Jain said, “On careful perusal of the entire record, we are of the view that the learned Trial Court has examined the evidence in a very meticulous manner. If we analyze the statements made by the victims under Section 164 Cr.P.C., and compare those with what they stated before the Court, it would become very obvious that they have diluted to the case to the extent of virtual exoneration of accused. Despite specific questions, they did not make any statement which may indicate any sort of penetrative or aggravated sexual assault.”

The Bench also observed that the core duty of the Trial Court remains the meticulous analysis of the evidence led before it and mere fact that there is a statutory presumption would not mean that the prosecution is absolutely relieved of its indispensable obligation of proving basic facts.

APP Manjeet Arya appeared for the State/petitioner while Advocate Vineet Mehta appeared for the accused/respondent.

Brief Facts -

There were two minor victims and there were very grave allegations against the accused. Both the victims made statements under Section 164 of CrPC indicting the accused and keeping in mind the same, the accused was charged. He was a driver of a school van and the victims used to go to school in the van driven by him. It was alleged that he had sexually assaulted both of them. As per the charge framed, he had allegedly committed rape and aggravated penetrative sexual assault upon the victim aged about 3 years and 9 months in 2015 at the school and used criminal force and threatened her.

Qua the other victim aged about 3 years and 3 months, he was alleged to have committed aggravated sexual assault upon her as well in the school. The charges were framed against him under Sections 376(2), 354, and 506 of the Indian Penal Code (IPC) and under the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The Trial Court after considering the fact that there were stark variations in the testimony of the witnesses, acquitted the accused. Hence, the matter was before the High Court.

The High Court in the above context of the case noted, “We are also mindful of the statutory presumption enumerated under Section 29 of the Protection of Children from Sexual Offences Act, 2012. However, the essential precondition remains that it is still the bounden duty of the prosecution to, at least, establish and prove the foundational facts before such presumption is invoked. It is only when the foundational facts are proved, the onus stands shifted on the accused to prove to the contrary.”

The Court further took note of the fact that the accused had remained behind the bars for a considerable period of 16 months during the trial and that the APP concedes that it is not a case of penetrative sexual assault or aggravated sexual assault.

Accordingly, the High Court dismissed the petition seeking leave to appeal.

Cause Title- State v. Kuldeep (Neutral Citation: 2024:DHC:536-DB)

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