Delhi High Court - Orders
Pradeep vs State & Ors on 11 February, 2019
Author: R.K.Gauba
Bench: R.K.Gauba
SHAKUN ANAND
06.03.2019 12:29
$~18 & 19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 716/2018
PRADEEP ..... Appellant
Through: Mr. Mohit Mathur, Sr. Adv. with Mr.
Prakash Kumar, Advocate
versus
STATE & ORS ..... Respondents
Through: Mr. K.S. Ahuja, APP for the State.
+ CRL.A. 832/2018
ABHISHEK ..... Appellant
Through: Mr. Sumit Chaudhary & Mr. S. K.
Rai & Ms. Akasha Bansal,
Advocates.
versus
STATE ..... Respondent
Through: Mr. K.S. Ahuja, APP for the State.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER
% 11.02.2019 Both these appeals challenge the judgment dated 15.02.2018 of the court of Additional Sessions Judge in sessions case no. 29038/2016 which arose out of the report ("charge-sheet") submitted under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.), upon conclusion of investigation into first information report (FIR) no. 1050/2016 of police station New Delhi Railway Station (NDRS). The FIR had been registered on CRL.A. 716/2018 & conn. Page 1 of 7 the basis of statement (Ex.PW-1/A) of the prosecutrix (PW-10) recorded sometime before 8.30 p.m. on 09.09.2016, the incident having allegedly taken place in some deserted park, along Vikas Marg, on way from ITO to Laxmi Nagar between 0100 hours to 0200 hours earlier on said day. The appellants were put on trial on the charge for offences punishable under Sections 365/34 IPC and 376 D of Indian Penal Code, 1860 (IPC). The trial court, by the impugned judgment, found both the appellants guilty as charged for the offence under Section 376D IPC.
Arguments on both the appeals have been heard for some time. A number of concerns have come up, some of which may be summarised as under:-
(i) The prosecutrix (PW-10) at the time of her statement (Ex.PW-
1/A), before police on 09.09.2016 had described herself as a 21 year old widow of late Rajesh, which is also how she had introduced herself to the examining medical officer in Lady Hardinge Medical College at the time of her MLC (Ex.PW- 5/A). The charge-sheet, however, was also accompanied by her statement under Section 161 Cr.P.C., recorded on 11.09.2016, wherein she had revealed that she had given false description of herself on account of sense of shame and fear of being defamed in society on account of such incident having occurred, she being actually married to another person whose society she had left on 05.09.2016 due to some domestic discord. It may be added that the person later described as her husband whose particulars were disclosed by her in the statement under CRL.A. 716/2018 & conn. Page 2 of 7 Section 161 Cr.P.C. on 11.09.2016 was also contacted and examined in his native village in Uttar Pradesh and his statement under Section 161 Cr.P.C. confirming such facts was recorded on 12.09.2016. He (the individual described as the real husband) was mentioned in the list of witnesses but for some reasons not examined at trial, he being dropped. During the examination-in-chief, the prosecutor did not seek clarity from the prosecutrix about the reasons why she had claimed her identity to be different from what it actually was, leaving the discrepancy unexplained.
(ii) In the rukka, Inspector Indu Rani (PW-18) made reference to a person described as Pradhan named Vakil Mehto, son of Moti Mehto, as one who had brought the prosecutrix to the police station leading to the FIR being lodged. The charge-sheet was accompanied by a statement under Section 161 Cr.P.C. of the said Vakil Mehto to whom some role is attributed even by the prosecutrix in her statement forming basis of the FIR. For clarity, it may be added that as per the prosecution case, and narration of events by the prosecutrix in the FIR, during investigation, and in the court, she had alighted from a train from Ludhiana and intended to go to Lucknow by train and was helped and assisted by the said Vakil Mehto in boarding the three wheeler scooter (TSR) of appellant Abhishek (A-2) for proceeding towards Anand Vihar Railway station, he even having given her some money for such travel. As per the CRL.A. 716/2018 & conn. Page 3 of 7 prosecution case, after the alleged gang rape, the prosecutrix had been brought back to the railway station in the same TSR when, upon she raising alarm, A-2 appellant followed by Pradeep (A-1) were apprehended at the instance of the said Vakil Mehto. Conspicuously, however, Vakil Mehto was not shown as a witness in the charge-sheet nor any endeavour made by the prosecution to secure him as additional witness nor any thought given by the presiding trial judge as to need to ascertain his version, which, in the facts and circumstances, would have been crucial.
(iii) The appellant Pardeep (A-1) relies, inter alia, on affidavit purported to have been sworn on 04.03.2017 by the prosecutrix according to which sexual intercourse was consensual, some money having been assured to her at the instance of the afore- mentioned Pradhan Vakil Mehto but no money having been paid, she on account of the then stage of pregnancy, giving such affidavit because the public prosecutor was "not available", the persons standing trial being "innocent". The copy of the said affidavit (pages 49-50 of the paper book of Crl. Appeal 716/2018) has to be read in conjunction with ground 'E' taken in the concerned appeal. There is no clarity in the averments in the appeal as to from where the copy of the said affidavit had come in the hands of the appellant Pradeep (A-1). Neither its original, nor its copy, appear to be part of trial court record which has been placed before the Court. On being asked, Mr. CRL.A. 716/2018 & conn. Page 4 of 7 Prakash Kumar, Advocate, who has filed this appeal, and who has briefed the learned senior counsel arguing the matter, sought to explain that he was given copy of this affidavit by the father of the appellant. He, however, also pointed out that there is reference to such affidavit having been sworn in the application for bail which was presented on 08.03.2017 by Mr. R.K. Tomar, who was then representing the appellant Pradeep as well as other appellant Abhishek. Though there is indication in fourth para of the said application, as said before, its copy or the original cannot be located on the trial court record. It may be added that the said bail application was dismissed on 06.04.2017 by the trial Judge. Though the contentions urged in the said application with reference to such affidavit were duly noted, there is no reference made in the said order as to an affidavit having been filed nor was the prosecutrix confronted with such affidavit. It is noted that the prosecutrix was examined and cross-examined (also by the public prosecutor) on 05.04.2017 on which date such affidavit purportedly was available to the defence and its copy statedly filed on record. It also needs to be recorded here that it was suggested to the prosectrix during her cross-examination that "accused persons had committed wrong act with her" with her "consent" but she refuted the same as incorrect.
(iv) It is a matter of concern as to at whose instance the prosecutrix had been taken to Oath Commissioner (Ms. Nazia Khanam) for CRL.A. 716/2018 & conn. Page 5 of 7 swearing such affidavit as mentioned above. There is no clarity as to at whose instance such affidavit was typed out in English. From the deposition, and the background, it seems to be not possible that she would be conversant with English language. It is not clear as to who had explained the contents of the affidavit to her. Ordinarily, before attesting of an affidavit, confirmation as to identification of the person is ascertained. Curiously, the Oath Commissioner recorded that the prosecutrix had been identified by "self". The fact that such affidavit had come in the hands of the defence gives rise to the possibility of undue influence being exerted at that point of time which required to be examined. No thought appears to have been given to this by anyone, not the least by the public prosecutor in charge of the case, nor by the presiding trial judge.
(v) The narration in the rukka reveals that the prosecutrix had reached the police station and the matter was brought to the notice of PW-18 Inspector Indu Rani by 9.00 a.m. on 09.09.2016. Yet, the FIR was registered at 8.30 p.m. after 11 hours 30 minutes for which there seems to be no explanation. The investigating agency shall give its explanation with regard to the above aspects by formal report of the Deputy Commissioner of Police of the concerned district after obtaining explanations of the investigating officer and of the ACP under whose signatures the charge-sheet was filed.
CRL.A. 716/2018 & conn. Page 6 of 7The State will ascertain the explanation from the concerned public prosecutor with regard to the above and submit the same on the next date.
The counsel for the appellant Pradeep (A-1), on being asked, submitted that he would contact Mr. R.K. Tomar, Advocate and bring on record his explanation with regard to the above-mentioned affidavit.
Be listed on 8th April, 2019.
The appeals shall be shown in the cause list under the heading 'from regulars'. They shall, however, retain their position in the list of 'Regulars'.
Dasti.
R.K.GAUBA, J.
FEBRUARY 11, 2019/nk CRL.A. 716/2018 & conn. Page 7 of 7