Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., dismissed a criminal revision petition filed by the State against the order of the trial court whereby the accused-respondent discharged from the offence punishable under Section 12 (prevention from sexual harassment) of the Prevention of Children from Sexual Offences Act, 2012.

An FIR was registered against the accused on the complaint of the mother of the minor victim. It was alleged that while the victim was playing with her friends, the accused came to them and said: “do rupees doonga, mere ghar chal, panch minute ki baat hai”. However, none of the girls went with him. The accused was tried and discharged as aforesaid. Aggrieved thereby, the State (represented by Hirein Sharma, APP) preferred the instant revision petition.

The High Court noted that the observations of the trial court that statement of the victim and the complainant, recorded under Section 164 CrPC did not reflect that the accused committed any offensive act upon the victim or he had any sexual intent. It was further observed that the main ingredient of Section 12 of the POCSO Act, i.e., sexual intent, was missing in the entire act of the accused and, therefore, the prima facie offence of sexual harassment was not made out against him and he was accordingly discharged.

The High Court noted that the victim, in her statement, had not stated anything regarding any sexual intent or sexual assault; the FIR was registered on the statement made by her mother, wherein she had made some allegations against the accused.

The High Court was of the opinion that the fact remains that the victim did not mention any act of sexual assault or sexual intent, therefore, there was no illegality or perversity in the order passed by the trial court thereby discharging the accused. Finding no merits in the instant petition, the Court dismissed the same. [State v. Anil, 2019 SCC OnLine Del 10995, decided on 06-11-2019]

Case BriefsSupreme Court

Supreme Court: In an appeal against the verdict of Gujarat High Court that quashed the criminal proceedings against a man accused for sexually assaulting and blackmailing his employee, the 3-judge bench of UU Lalit, Indu Malhotra and R. Subhash Reddy, JJ has set aside the verdict and held that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the respondent was consensual.

The Court said,

“where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.”

The Court was hearing the case where the respondent had taken inappropriate pictures of the appellant while she was asleep. He had gone to visit the appellant when she was unwell. Taking advantage of the situation, he started blackmailing her to make viral her pictures and to terminate her employment. He then started committing rape on her. When she resigned from the job, he contacted her fiancé and told him is not of good character, she had physical relationship with him and with other boys. When the fiancé refused to meet him, he sent a cover to his residence containing her nude/inappropriate pictures. The parties later entered into a written agreement wherein it was agreed that the dispute between the parties is settled and that the respondent has allegedly paid a huge amount to the appellant.

The Court noticed that whether the respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further whether he has continued to interfere by calling appellant’s fiancé or not are the matters for investigation. It, hence, held that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC.

Holding that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the respondent was consensual, the Court said,

“When it is the allegation of the appellant, that such document itself is obtained under threat and coercion, it is a matter to be investigated.”

[Miss XYZ v. State of Gujarat, CRIMINAL APPEAL NO.1619 OF 2019, decided on 25.10.2019]

Case BriefsSupreme Court

Supreme Court:

“The heinous crime committed should not be led into prosecuting a person only because he was part of the Management of the School.”

The bench of L Nageswara Rao and Hemant Gupta, JJ said while quashing the trial against a member of the School management in a case relating to sexual assault of a 6-year-old girl in her school in Haldwani.

The FIR filed by the father of the prosecuterix mentioned that a teacher had sexually assaulted his daughter. In the first statement recorded, the prosecuterix mentioned that the teacher had deliberately and repeatedly assaulted her. However, in another statement, she stated that after she returned from washroom, two Uncles came and picked her away. She also mentioned that these two persons work outside school. She said that one of them wore spectacles. The father of the prosecutrix filed an application to summon the person who wears spectacles, as identified by the victim. She then identified the appellant as the bespectacled person. The principal of the School, however, in a statement issued by her, said that the anger was directed against the Management of the School of which the appellant is a part and hence, his name was dragged in a offence he never committed.

Considering the facts and circumstances of the case, the Court noticed that the prosecutrix is a small child. It is parents of the child who have taken the photographs either from the website of the School or from the Facebook to introduce a person with spectacles as an accused. The initial version of the father of the prosecutrix and of the prosecutrix herself, as disclosed by her father in the FIR, is assault by one person. It said that even if the father of the child has basis to be angry with the Management of the School but, there is no prima facie case of any active part on the part of the appellant is made out in violating the small child. The involvement of other persons on the statement of the child of impressionable age does not inspire confidence that the appellant is liable to be proceeded under Section 319 of the Code. In fact, it is suggestive role of the family which influences the mind of the child to indirectly implicate the appellant.

“Obviously, the father of the child must have anger against the Management of the School as his child was violated when she was studying in the School managed by the appellant but, we find that the anger of the father against the Management of the School including the appellant is not sufficient to make him to stand trial for the offences punishable under Section 376(2) of the IPC read with Sections 5/6 of the POCSO Act.”

The Court also took note of the fact that the prosecution after investigations has found no material to charge the appellant. It, hence, held that statement of the child so as to involve a person wearing spectacles as an accused does not inspire confidence disclosing more than prima facie to make him to stand trial of the offences. Therefore, the order of summoning the appellant under Section 319 of the Code is not legal.

[Mani Pushpak Joshi v. State of Uttarakhand, 2019 SCC OnLine SC 1362, decided on 17.10.2019]

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J. while addressing a petition expressed disappointment in respect to the manner in which POCSO Act is being misused, as, in the present case, the wife went down to the extent where she has put up false allegation of sexual assault against her husband with their daughter who is aged 11 years old only with the motive to get custody of her daughters.

“One of those unfortunate cases, where the wife has resorted to giving a complaint against her husband alleging that he has committed sexual assault against their daughter.”

In the present case, the 2nd respondent gave a complaint to the respondent police stating that there is an illicit relationship between the petitioner – father of their daughter. She adds that, she was able to identify and see some bodily changes in her elder daughter and also she had become pregnant. Her pregnancy was terminated through native medicines.

Respondent police had registered an FIR for an offence under Section 6 of the Protection of Child from Sexual Offences Act, 2012.

Petitioner apprehended arrest and approached this Court by filing the Anticipatory Bail Petition. Court summoned the minor girl in order to enquire her in person. She completely denied the allegations made against the petitioner.

Observations made by the Court:

Court categorically found that the de facto complainant lodged a false complaint with an ulterior motive to threaten petitioner and thereby petitioner was granted anticipatory bail.

Present petition is aimed to quash the FIR which is itself an abuse of process of law and is being used to threaten the petitioner to wreck vengeance against the petitioner.

Court on summoning the victim girl noted that, she had narrated the entire incident clearly where it can be seen that the defacto complainant was attempting to take the daughters into her custody and for that purpose, she cooked up a false story against the petitioner. It was also added to the Court’s observation that, the victim girl had taken a very consistent stand both at the time of giving a statement under Section 164 CrPC and at the time when she was personally enquired by this Court.

This case has shocked the conscience of the Court and it is unbelievable that the mother just for the sake of taking custody of her child, can go to the extent of making such serious allegations against her husband.

Court while analysing the seriousness of the false allegation also stated that it is an eye-opener for the Court as now the Court is aware of the extent with which POCSO Act can be misused.

“2nd Respondent without caring for the future of her own daughter, proceeded to give a complaint alleging illicit relationship between her husband and daughter”—This is the worst type of false prosecution a Court can ever encounter.

Therefore, respondent police is directed to immediately proceed against 2nd respondent under Section 22 of the POCSO Act for having given a false complaint and accordingly action to be taken in accordance with the law.

This case should be a lesson for all those who attempt to misuse the provisions of this Act, just to satisfy their own selfish ends.

Thus Criminal Original Petition is accordingly allowed. [N. Chandramohan v. State, 2019 SCC OnLine Mad 3666, decided on 20-08-2019]

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J. hearing a criminal appeal filed by a person convicted of rape and sexual assault under Penal Code, 1860 (hereinafter ‘IPC’) and Protection of Children from Sexual Offences Act, 2012 (hereinafter ‘POCSO’), partly allowed the appeal and set aside conviction under POCSO Act on the ground that punishment imposed under IPC was greater and more rigorous than that imposed under POCSO Act.

Appellant, a taxi driver, was hired by the victim and her two friends to go sightseeing in and around Gangtok. It was alleged that he took the girls for sightseeing and during this period became violent with the victim’s friend. When they wished to return, he began making demands for money and forced the victim’s friend to get off from the car and drove off with the victim while she was unconscious. The victim filed a criminal case against the appellant for commission of rape, penetrative sexual assault on a minor as well as for voluntary causing hurt. Special Judge, POCSO Act convicted the accused-appellant under Sections 323, 354, 354B, 376(1) of IPC and Sections 3(a) and 4 of the POCSO Act. Aggrieved thereby, this appeal was filed.

K. T. Tamang, legal aid counsel for the appellant, argued that since there was a gap between the alleged incident and the seizure of the victim’s article along with the appellants clothing it could not be ascertained if the bodily fluids found on the clothes belonged to the appellant. He relied on the case Ramdas v. State of Maharashtra, (2007) 2 SCC 170 to ask for corroboration of the victim’s testimony as she had hidden that she had consumed alcohol. He argued that based on the admission made by the Investigating Officer (IO), the appellant and the victim’s friend had purchased the alcohol. Hence, the victim had not been sedated but had consumed alcohol. He also submitted that the medical evidence ruled out all the possibilities of ocular evidence being true and thus ocular evidence should be disbelieved, as per the case of Abdul Sayeed v. State of MP, (2010) 10 SCC 259.

SK Chetri (Additional Public Prosecutor) appeared for the State and established the minority of the victim at the time of the incident. He also proved that it was the appellant who had driven the victim and her two friends on the day of the incident. He further proved that victim’s friend was hit by the appellant while they were in the car before they were made to get off from the vehicle. He had also successfully proved that there were bruise marks on the victim’s neck and contusions on the appellant’s chest both of which dated back to the time of the offence. The victim’s deposition was further corroborated by both oral as well as material evidence, although there were a few minor discrepancies between the witness statements.

The Court observed that besides the deposition of the victim about penetration there was no direct medical proof of rape. However, the victim was 17.5 years of age at the time of the commission of the offence and therefore capable of understanding what rape meant. In addition to this, the injuries on the victim as well as the appellant reflected signs of resistance. It was noted that the evidence of the victim was not totally inconsistent with the medical evidence, and it was settled that ocular testimony of a witness has greater evidentiary value vis-a`-vis medical evidence. Even the medical evidence did not completely rule out the possibilities of the commission of rape by the appellant. Further, there was no direct contradiction between ocular and medical evidence.

The Court was of the view that the Special Judge could have punished the appellant only under Section 376 IPC and not under Section 4 of the POCSO Act. Consequently, the sentence under Section 4 of the POCSO Act was set aside as punishment under Section 376(1) IPC mandated the compulsory imposition of rigorous imprisonment with hard labor which was greater in degree than the one provided under Section 4 of the POCSO Act.  Hence, the appeal was partly allowed.[Prem Rai v. State of Sikkim, 2019 SCC OnLine Sikk 81, decided  on 07-06-2019]

Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. reduced the sentence of 5 years rigorous imprisonment awarded to the appellant by the trial Judge to 3 years for the commission of an offence under Section 7 (sexual assault) made punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012.

The appellant was tried and convicted for committing the offence of sexual assault on the prosecutrix when she was returning from mela. The appellant had filed the present appeal against the said judgment. R.G. Chakraborty, Advocate representing the appellant strenuously argued that the entire story was false and the appellant was totally innocent. Per contra, A. Roy Barman, Additional Public Prosecutor appearing for the State submitted that the prosecution had been able to prove the case beyond any shadow of doubt.

As per prosecutrix’s evidence, the High Court found that the appellant came in contact with the prosecutrix physically with sexual intention. However, there was no evidence that the appellant touched private parts of the prosecutrix. The Court was of the opinion that while maintaining the appellant’s conviction, the order of sentence passed against him warrant’s alteration. It was observed: “Since there is no specific evidence that the appellant had touched the private parts of the prosecutrix, in my opinion following the doctrine of proportionate punishment, justice would be made if the sentence of 5 years is reduced to 3 years.” The sentence was reduced accordingly. At the same time, other parts of the impugned judgment relating to conviction and sentence under Section 341 and 342 IPC remained unaltered. [Asok Das v. State of Tripura, 2019 SCC OnLine Tri 190, decided on 13-05-2019]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of K.Harilal and Annie John. JJ. allowed a revision petition filed by mother of a 15-year old girl, who was subjected to sexual assault by a family friend named Imam Mr Shafeek Al-Kasmi.

The instant petition under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 challenging the order of respondent whereby it was declared that petitioner’s minor daughter required care and protection and that the child’s counselling shall be carried out by admitting her in an institution. 

Mr Ram Mohan G., counsel on behalf of the petitioner, submitted that the continued detention of a child under the orders of respondent was prejudicial to her interests and well being as she required the moral support, guidance and presence of her mother.

Mr Suman Chakravarthy, Senior Government Pleader appearing on behalf of respondent, submitted that even though the sexual assault took place in February 2019, petitioner and her relatives did not report the matter to police due to which the child could not be medically examined. Further, as per the report of District Child Protection Officer, it was not congenial to restore the child to the petitioner, since the accused was a well-known religious leader and a frequent visitor of their family, who had not been arrested so far. Therefore, the child was not safe with the petitioner.

The learned Judges interacted with the child in Chambers in the absence of her mother and relatives. The child expressed her willingness to go along with her mother or maternal grandmother but was not ready to live in the institution. 

The Court opined that inquiry, as contemplated under Section 36 of the Act, was not conducted by the respondent in the presence of petitioner or other family members of the victim. Respondent did not try to ascertain the wishes of the child. Thus, the mandate of Section 3 of the Act was violated. It was held that when the child needs care and protection, then before putting the child in Children’s Home, there should be the application of mind by the committee and it must also take into account the child’s wishes along with the investigation report of Child Welfare Committee.

In view of the above, the impugned order was set aside and Superintendent of Child Shelter Home was directed to release the child forthwith to the petitioner-mother.[Sheeja Navas v. Child Welfare Committee, 2019 SCC OnLine Ker 1156, Order dated 08-03-2019]

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Supreme Court: Slamming the Bihar government for its management of shelter homes, the Court has ordered the transfer of the Muzaffarpur shelter home sexual assault case from Bihar to a court in New Delhi. The Court also said the transfer of the CBI officer probing the sexual assault case amounted to a violation of its order.

The Bench headed by CJI Ranjan Gogoi said that the cases should be transferred from the Bihar CBI court to a POCSO (Protection of Children from Sexual Offences) Saket trial court within two weeks and ordered the Saket trial court to conclude the trial within six months.

Seeking an explanation on the sad state of affairs, the Court said:

“Enough is enough. Children cannot be treated like this. You cannot let your officers treat children this way. Spare the children.”

The Court said that it will summon the chief secretary if the state fails to give all information.

Several girls were allegedly raped and sexually abused at an NGO-run shelter home in Muzaffarpur. The issue came to light in May last year following a report by the Tata Institute of Social Sciences.

(Source: PTI)

Case BriefsHigh Courts

Bombay High Court: A Single judge Bench comprising of K.L. Wadane, J. partly allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under Sections 450 and 354-A IPC along with Section 8 of the Protection of Children from Sexual Offences Act, 2000.

The appellant was accused of committing sexual assault on a minor victim on the pretext of giving her chocolate. the accusation and charges against the appellant stood proved in the trial court. Consequently, he was convicted as aforesaid and sentenced accordingly. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court, after perusal of the record, partly affirmed the judgment of the trial court to the extent it convicted the appellant under Section 354-A IPC and Section 8 POCSO Act. However, regarding Section 450 IPC, it was observed that an accused can be convicted for the offence punishable under the said Section only if another offence for which he has been convicted is punishable with imprisonment for life; otherwise, the conviction under Section 450 IPC is bad in the eyes of law. Since in the instant case, the other offences for which the appellant was convicted were not punishable with imprisonment for life, the Court acquitted him from the offence punishable under Section 450 IPC. The appeal was disposed of in the terms above. [Hanumant v. State of Maharashtra,2018 SCC OnLine Del 12142, dated 29-09-2018]

Case BriefsSupreme Court

Supreme Court: Navin Sinha, J. speaking for Ranjan Gogoi,  J. and himself and K.M. Joseph, J. dismissed an appeal, which if not the circumstances of the case were prevalent would have been an appropriate case to be directed for prosecution.

The factual matrix of the case briefs out the relevant points to be considered while comprehending the present cases which are, the prosecutrix was aged 9 years at the time of sexual assault in the year 2004 by an unknown person; along with the prosecutrix was PW-3 who was a minor too. Further, it has been stated that the FIR was lodged by the mother of the prosecutrix and in furtherance, to that, a medical test was conducted which clearly had established the sexual assault signs on the prosecutrix. Six months later when the trial took place PW-3 and prosecutrix both denied the sexual assault and also declined dock identification. Therefore, Trial Court acquitted the appellant, which further was reversed by the High Court on an appeal by the State.

The Supreme Court on noting the submissions placed by the learned counsel who was opposing the appeal, the Court stated that “We find no infirmity in the reasoning of the High Court that, 6 months was a sufficient time and opportunity for the accused to win over the prosecutrix by a settlement through coercion, intimidation, persuasion and undue influence.”

The Court on placing reliance on State v. Sanjeev Nanda, 2012 (8) SCC 450, stated that the mere fact of prosecutrix turning hostile is not relevant, and it also does not efface the evidence with regard to the sexual assault upon her and the identification of the appellant as the perpetrator.

Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses turn hostile.”

The Apex Court in the present case stated it to be a “travesty of justice” if the appellant were acquitted simply on the basis of prosecutrix turning hostile by giving no consideration to the overwhelming evidence placed. Additionally, the Court was of the view that it was a fit case to direct prosecution of the prosecutrix under Section 344 CrPC for tendering false evidence. However, the Court took a different view even after being aware of the perpetrator in the present case only on the basis that the stated occurrence took place 14 years ago and at present she must be married and settled in a new life, all of which may possibly be jeopardized if the present appeal is not dismissed. Therefore, the appeal stands to be dismissed. [Hemudan Nanbha Gadhvi v. State of Gujarat,2018 SCC OnLine SC 1688, decided on 28-09-2018]

 

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Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar & Dr. DY Chandrachud, JJ directed all High Courts to ensure that the cases of sexual assault of children are fast-tracked and decided expeditiously by special courts. The bench also asked the the high courts to instruct the trial courts not to grant unnecessary adjournments during trial of cases under the Protection of Children from Sexual Offences (POCSO) Act.  The Court also directed that the High Courts may constitute a committee of three judges to regulate and monitor the trials of sexual assault cases of children.

The Court was hearing the petition filed by advocate Alakh Alok Srivastava after the horrific incident of rape of an 8-month girl child allegedly by her 28-year-old cousin on January 28 in a locality near Netaji Subhash Place in north-west Delhi had come to light.  He had also sought the provision of death penalty in such cases and framing of guidelines that investigation and trial of cases involving rape of children below 12 years of age under POSCO Act, should be completed in six months from the date of registration of the FIR.

The Union Cabinet had on April 21 approved the ordinance to provide stringent punishment, including death penalty, for those convicted of rape of girls below 12 years. The move of the Centre came after a public outcry for award of death penalty to such sexual offenders, including the assaulters of an 8-year-old girl who was gang raped and killed at Kathua district of Jammu and Kashmir recently.

Source: PTI

Case BriefsSupreme Court

Supreme Court: Paying heed to the grievance of a 35-year-old woman, a victim of sexual assault, who sought for termination of pregnancy on the ground that she is HIV positive, the 3-judge bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagouda, JJ directed the Medical Board at AIIMS, New Delhi to examine the petitioner and submit a report to the Court on the next date of hearing i.e. 08.05.2017 so that attempts can be made to save the life of the petitioner.

Earlier, the Patna High Court had directed the Medical Board at Indira Gandhi Institute of Medical Sciences, Patna to examine the petitioner. The report of the said Board stated that a major surgical procedure was required. The High Court hence held that the Medical Board report has stated that it would be unsafe to the life of the petitioner and further there is compelling State’s responsibility to keep the child alive.

 Stating that the quintessential purpose of life, be it a man or a woman, is the dignity of life and all efforts are to be made to sustain it, the Court said that a woman, who has already become a destitute being sexually assaulted and suffering from a serious medical ailment, should not to go through further sufferings. [Indu Devi v. State of Bihar, 2017 SCC OnLine SC 560, order dated 03.05.2017]

 

Case BriefsSupreme Court

Supreme Court: In the case where the mother of a 22 year old girl who died under mysterious circumstances on 1.8.2015 filed a write petition seeking transfer of the investigation from the Crime Branch, Delhi to the Central Bureau of Investigation (CBI) for further investigation, the 3-Judge Bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagoudar, JJ directed the CBI to investigate into the crime independently, without being influenced by any kind of prior investigation or prior status report, and file the status report before this Court within three months hence.

The petitioner had contended that the photographs of the deceased reveal that there has been assault with immense brutality which could not have been caused by an accident. Also, the medical report mentions that the injuries suffered by the victim do not rule out a homicidal assault and the report also reflects that the injuries that have been sustained by the victim may be due to striking of edged heavy blunt weapon during inter-personal violence. It was alleged that there has been no proper investigation in respect of the crime in question and effort is being made for some unfathomable reason to treat it as an accident. The Crime Branch, Delhi contended that it has taken extreme pains to solve the issue.

Considering the contention of the petitioner and the Crime Branch, Delhi, the Court said that though it cannot be said that there has been any kind of laxity in the investigation carried out by the Delhi Police, but there can be no doubt that the CBI is more equipped and the citizens of this country have faith in its investigating abilities. The Court will take up the matter on 10.07.2017. [Neelam Mishra v. Union of India, 2017 SCC OnLine SC 276, order dated 24.03.2017]

Case BriefsHigh Courts

Delhi High Court:  The Single Judge Bench of S.P. Garg, J cautioned the lower court Judges that the identity of the victim or prosecutrix in a sexual assualt case should not be disclosed in the judgment passed by them, in order to protect her reputation. The Court categorically observed, “Before parting with the case, it is noted that in the impugned judgment dated 21.10.2013, name of the prosecutrix/victim has been disclosed/mentioned. The trial court was not expected to indicate the victim’s name in the judgment. The mistake has been carried out by the learned District  and Sessions Judge too while disposing Crl. A. 73/2013. Learned Presiding Officers must avoid disclosing identity of the victim/prosecutrix in such cases in the judgment to protect her reputation.”

Deciding a revision petition challenging the legality and correctness of the Sessions Court’s order by which the petitioner’s conviction under Section 354 of the Penal Code, 1860 and sentence of rigorous imprisonment for one year was upheld, the Court observed that the petitioner did not furnish any plausible explanation to the incriminating circumstances proved against him. The concurrent findings of the courts below based upon fair and proper appreciation of the evidence deserved no intervention. The Court held that considering the gravity of the offence whereby an innocent child aged about seven years was sexually assaulted by the petitioner, aged about 65 years, further leniency was uncalled for. Dismissing the petition, the Court observed that the petitioner was well aware of the consequences of his act, as the prosecutrix was like his granddaughter. [Gopal Yadav v. State (GNCT) Delhi, 2016 SCC OnLine Del 3275, decided on May 25, 2016]