Delhi High Court
State Of Nct Of Delhi vs Rashid on 3 February, 2015
Author: G. S. Sistani
Bench: G. S. Sistani, Sangita Dhingra Sehgal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL LEAVE PETITION No. 51/2015
% Date of decision: 3rd February 2015
STATE OF NCT OF DELHI .......... APPELLANT
Through : Mr. Sunil Sharma, APP for the State
along with SI Yash Pal, P. S.
Chandni Mahal.
versus
RASHID ...........RESPONDENT
Through : None
CORAM :
HON'BLE MR. JUSTICE G. S. SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
CRL.M.A 1593/2015
1. Exemption allowed subject to all just exceptions.
Application stands disposed of.
CRL.L.P 51/2015
2. By the present criminal leave petition filed under section 378(1) of the
Code of Criminal Procedure, the state seeks leave to appeal against
the judgment dated 31.10.2014 passed by the learned ASJ in sessions
case No. 56/2013 whereby the respondent (accused before the trial
court) was acquitted of the charges punishable under section 376(2)(f)
of Indian Penal Code read with section 4 and 6 of the POCSO Act.
3. The relevant facts, as noticed by the trial court are that on 16.12.2012
at about 11:05PM intimation was received from mobile no.
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9210300090 that rape has been committed with a girl at House No.
X18, DDA Flats, Turkman gate, Delhi. The information was reduced
into writing vide DD No. 27(Ex.PW17A).
4. SI Sangeeta (PW18) recorded the statement of the Complainant,
father of the victim (Ex.Pw1/A) wherein he stated that on 16.12.2012
he had sent his nephew aged about 9 years and his daughter aged
about 6years to the opposite block to deliver food to his sister and at
about 10:45 PM his nephew returned home and informed the
complainant that his daughter was caught by one boy in the stairs who
pulled down her pyjama and was doing 'chera khani' with her. The
complainant rushed downstairs and apprehended the said boy at the
distance of about 200mts. A call was made to the PCR, FIR was got
registered under section 376 IPC read with section 4 of the POCSO
Act, victim was medically examined and accused was arrested. On
completion of investigation, charge sheet was filed. Thereafter
charges against the accused were framed under section 376 (2) (f) IPC
read with Section 4 and 6 of the POCSO Act.
5. The respondent pleaded not guilty to the charge, upon which the
prosecution examined 22 witnesses to bring home the guilt of the
respondent.
6. Learned trial court while passing the impugned judgment has
observed that intimation of the incident was received by the PCR on
16.12.2012 from mobile no. 9210300090 which was found to be
registered in the name Savita Bhasin but as per prosecution case, the
call was made by the Fufi of the victim (PW9). During investigation
no effort was made to interrogate Savita Bhasin from whose number
PCR received the information about the incident and no evidence was
adduced to establish that Fufi of the victim (PW9) had any connection
with Savita Bhasin. Trial Court further observed that there is a
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possibility that the name of PW9 as an informant was introduced later
on when police failed to find out the alleged Savita Bhasin.
7. It is also noticed by Learned Trial Court that the Investigating Officer,
Sangeeta (PW18) recorded the statement of Fufi of victim (PW9)
nearly after two and a half months i.e on 2.3.2013. The version of
PW18 that PW9 had gone out of station and hence she could not
record her statement does not get any support from PW9 as she
deposed in her examination that she went out only in the month of
June and this shows that the Investigating Officer, Sangeeta (PW18)
has made a false statement in the court that PW9 told her that she was
out of station. The Trial Court has relied upon Paramjit Singh vs
State of Punjab 1997 (1) RCR 336. The relevant para has been
reproduced below:
".......the main reason for discarding their
evidence is that their statements under section 161
of CrPC came to be recorded on 8th August, 1991
after about four and a half months. No
explanation whatsoever was given by the
Investigating Officer Gurmeet Singh (PW11) as to
why their statements could not be recorded
earlier. Both these witnesses were members of the
patrolling party and even after knowing that on
22nd March, 1991, Sukhdev Singh left along with
the appellants and was admitted in the hospital in
an injured condition, they did not come forward to
tell about this fact. It is in these circumstances, we
do not feel it safe to accept their evidence on this
vital circumstances, namely, Sukhdev Singh was
last seen alive in the company of appellants."
8. Learned trial court has also pointed out that local police received the
intimation from PCR at about 11:05PM and by 11:30 PM,
Investigating Officer, Sangeeta (PW18) and SI Ram Niwas (PW19)
were at the spot along with their staff but surprisingly Investigating
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Officer, Sangeeta (PW18) had taken five hours in recording the
statement of complainant (PW1) despite the fact that complainant was
very much present at the spot. Also the contents of rukka are contrary
to the deposition of PW18 and there is no document on record to
establish that when the copy of FIR was sent to the Illaqa Magistrate
or to the concerned court in terms of section 157 of the Code of
Criminal Procedure.
9. Learned Trial Court further observed that biological samples of victim
and accused were taken and sent to FSL for analysis. As per FSL
report, no semen/vaginal epithelial cells were found on Ex.F1 and F2
(filter paper described to contain finger wash of right and left hand of
the accused) and no such cell was found on Ex.F3 (filter paper
described to contain penis wash for vaginal cells) and Ex.G1 and G2
(jeans pant and tshirt of the accused) which disproves the prosecution
version that accused had inserted his finger in the vagina of the
victim.
10. It has also been noticed by the Learned Trial Court that at the time of
incident, Victim (PW6) and cousin of victim (PW7) were present but
victim (PW6) failed to identify the accused and the testimony of PW6
is not helpful. Also cousin of victim (PW7) identified the accused
during trial but he deposed that entire incident had taken place within
a minute. So it's quite improbable that he would be in a position to
recognize the features of the accused properly since there was no
electric pole near the place of occurrence and there was darkness at
the place of incident.
11. In the background learned counsel for the state submits that the trial
court has passed the impugned judgment on hypothetical
presumptions, conjectures and surmises and the order is perverse and
lacks legality. Counsel further submits that the learned trial court
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failed to appreciate the evidence led by the prosecution witnesses and
wrongly acquitted the respondent.
12. Learned counsel for state further argued that no doubt victim (PW6)
failed to identify the accused during trial, but there is sufficient
evidence and material on record to bring home the offences charged
against the respondent.
13. Regarding cousin of victim (PW7), learned counsel for the state
submits that PW7 identified the accused in court and deposed that he
had seen the accused commit the offence on the victim which duly
proves the case of the prosecution regarding commission of the
offence. Also the testimony of PW7 is fully corroborated by
Complainant (PW1) and brother of complainant (PW10) which
clearly nails the accused person in the case and the accused person
ought to have been convicted.
14. With regard to deficiencies in the prosecution matter, particularly in
the testimony of Investigating Officer (PW18), learned counsel for
state submits that lapses on the part of PW18 are insufficient to
discard the entire prosecution case and minor lacunas in the
investigation should not affect the case of the prosecution adversely.
15. Learned counsel for state also submits that there is no delay in
registration of FIR and if there is any delay, same is not fatal to the
prosecution case.
16. We have heard the counsel for the petitioner and also carefully
perused the impugned judgment dated 31.10.2014. In our view, trial
court has given good and valid reasons to disbelieve the prosecution
case. Regarding the delay in registration of FIR, it can be said that
Investigating Officer, Sangeeta (PW18) had taken about 5 hours in
recording the statement of complainant (PW1) and the plea taken by
PW18 to justify the lapse on her part that she was busy in medical
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examination of the victim and recorded the statement only after
returning from hospital is false because as per the MLC
(Ex.PW14/A), victim reached the hospital at about 12:26AM which
means that the statement of complainant(PW1) was recorded by
PW18 prior to reaching the hospital. Thus there is an inordinate and
unexplained delay in registration of FIR and also in recording of the
statement of witnesses u/s 161 Code of Criminal Procedure. Also
there is a delay in sending the copy of FIR to Illaqa Magistrate u/s 157
Code of Criminal Procedure. Hence in our opinion, trial court has
rightly rejected the case of the prosecution on the point of delay in
FIR.
17. In addition there is an important contradiction in the testimony of
Investigating Officer, Sangeeta (PW18). Initially she deposed that she
was busy in the medical examination of the victim and could not
record the statement of the complainant (PW1) prior to 3AM but in
cross examination when the attention was drawn towards the rukka
(Ex.PW18/A) she admitted that she had recorded the statement of
complainant prior to going to hospital which casts a reasonable doubt
over the prosecution case.
18. It is the admitted case of prosecution that PW6(Victim) and
PW7(Cousin of victim) were present at the spot of incident but the
testimony of PW6 was rightly discarded as she failed to identify the
accused. Also the testimony of PW7is insufficient to prove the
identity of the accused as there was complete darkness at the place of
incident and PW7 admitted in his cross examination that the entire
incident had taken place within the period of one minute. Thus PW7
had no sufficient time to notice the features of the culprit. Hence
prosecution had failed to adduce any other cogent evidence to prove
the identity of the accused.
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19. Regarding medical evidence, the FSL report is not helpful to connect
the accused with the alleged crime because if accused had inserted his
penis there would have been some semen cell on the underwear/pant
of the accused and some vaginal cell would have been found in the
penis wash but no such evidence was found. Thus there is a possibility
that accused might not be the person who committed the offence.
20. In the case of Swaran Singh Ratan Singh Vs. State of Punjab AIR
1957 S.C. 637, it was held that in criminal cases mere suspicion,
however, strong, cannot take place of proof.
21. The Apex Court in Govindaraju @ Govinda Vs. State & Anr. (2012)
4 SCC 722, court has discussed in detail the scope and power of the
appellate court and reiterated that the presumption of innocence of an
accused is reinforced by the order of acquittal. Relevant portion of the
judgment reads as under:
11. Besides the rules regarding appreciation of
evidence, the Court has to keep in mind certain
significant principles of law under the Indian
Criminal Jurisprudence, i.e. right to fair trial and
presumption of innocence, which are the twin
essentials of administration of criminal justice. A
person is presumed to be innocent till proven guilty
and once held to be not guilty of a criminal charge,
he enjoys the benefits of such presumption which
could be interfered with by the courts only for
compelling reasons and not merely because another
view was possible on appreciation of evidence. The
element of perversity should be traceable in the
findings recorded by the Court, either of law or of
appreciation of evidence.
12. The Legislature in its wisdom, unlike an
appeal by an accused in the case of conviction,
introduced the concept of leave to appeal in terms of
Section 378 Cr.P.C. This is an indication that appeal
from acquittal is placed at a somewhat different
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footing than a normal appeal. But once leave is
granted, then there is hardly any difference between
a normal appeal and an appeal against acquittal.
The concept of leave to appeal under
Section378 Cr.P.C. has been introduced as an
additional stage between the order of acquittal and
consideration of the judgment by the appellate Court
on merits as in the case of a regular appeal. Sub-
section (3) of Section 378clearly provides that no
appeal to the High Court under sub-sections (1) or
(2) shall be entertained except with the leave of the
High Court. This legislative intent of attaching a
definite value to the judgment of acquittal cannot be
ignored by the Courts.
13. Under the scheme of the Cr.P.C., acquittal
confers rights on an accused that of a free citizen. A
benefit that has accrued to an accused by the
judgment of acquittal can be taken away and he can
be convicted on appeal, only when the judgment of
the trial court is perverse on facts or law. Upon
examination of the evidence before it, the Appellate
Court should be fully convinced that the findings
returned by the trial court are really erroneous and
contrary to the settled principles of criminal law."
22. While deciding the present leave to appeal, the aforestated principles
culled out by the Apex Court are to be kept in view. In the present
case the investigation conducted by Investigating Officer, Sangeeta
(PW18) is tainted. There is no compliance of section 157 of Code of
Criminal Procedure and there is inordinate delay in recording the
statements of witnesses u/s 161 of Code of Criminal Procedure by
PW18. Also the explanation given by PW18 for lapses on her part is
unconvincing, untrustworthy and has no sanctity. Further, there is no
evidence on record to establish that the accused was the person who
committed the alleged sexual act with the victim. Hence in our
opinion trial court has rightly rejected the case of the prosecution as it
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failed to bring home the guilt of the accused beyond the shadow of all
reasonable doubts.
23. For the reasons stated above, the judgment of acquittal recorded by
the trial court does not call for any interference. The Leave Petition is
meritless, the same is accordingly dismissed.
G. S. SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
FEBRUARY 03, 2015 gr Crl. Leave Petition No. 51/2015 Page 9 of 9