STATE vs GAURAV & ANR.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: December 4, 2023
+ CRL.L.P. 347/2022
STATE ….. Appellant
Through: Mr. Tarang Srivastava, Addl. Public Prosecutor for State with Inspector Ashutosh Kumar
Versus
GAURAV & ANR. ….. Respondents
Through: None.
CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT
HON’BLE MS. JUSTICE SHALINDER KAUR
J U D G M E N T (oral)
1. The present criminal leave petition under Section 378(4) of the Code of Criminal Procedure, 1973 (in short Cr.P.C) has been filed by the appellant-State seeking leave to appeal against the impugned judgment dated 18.12.2019 vide which the respondents have been acquitted for the offences punishable under Sections 363/366/342/506/34 of Indian Penal Code (in short IPC), 1860 and Section 5(g) & 6 of the Protection of Children from Sexual Offences Act, 2012 (in short POCSO) in FIR No. 115/2013, registered at police station Aman Vihar, Delhi.
2. The factual position, on which the prosecution version is found, is that on 19.03.2013 around 3:00-4:00 P.M, the prosecutrix had gone to a medical store to bring medicine for her elder sister, who was having a severe headache, situated in the backside gali of her house. On her way to the store, Rehan caught hold of her and forcibly took her to a nearby room. Rehan used to work at the TV/refrigerator shop in the same gali. Despite her raising an alarm, no one came to her rescue since there was nobody in the gali at that time. In the room, Gaurav/ respondent no.1 was also present there. Rehan pushed her upon Gaurav and both of them tied her hands, mouth and feet with a cloth. Thereafter, they removed her clothes and turn by turn forcibly committed sexual assault (gandi harkat kari thi) upon her against her wishes turn by turn.
3. Thereafter, Rehan called two more persons namely, respondent No.2- Rahul and Dharambir, to the said room. They also forcibly committed sexual assault upon her against her will in the presence of Rehan and Gaurav. Thereafter, Rehan untied her hands, mouth and feet and threatened her not to disclose this incident to anyone, otherwise they would kill her father. They all left the room after bolting it from outside. After half an hour, another person namely Monu opened the room door, the proseuctrix pushed him aside and ran away from there. Due to fear and threat to her fathers life, she did not disclose about this incident to anyone. On the next day i.e. 20.03.2013, prosecutrix narrated the entire incident to her neighbour Smt. Neelam (PW- 12), whom she treated as a mother after her mothers death in 2009 and also to her father, who called the police PCR.
4. On the complaint of the prosecutrix, FIR No. 115/2013 was registered at police station Aman Vihar, Delhi for the offences punishable under Sections 376(2)(G)/363/342/506/34 IPC at police station Aman Vihar, Delhi. During investigation of the case, statement of prosecutrix under Section 164 Cr.P.C. was recorded by the learned Metropolitan Magistrate.
5. After completion of the investigation, on 20.03.2013 charge-sheet for the offences punishable under Sections 376(D)/366(A)/109/363/342/ 506/201/34 of IPC and Sections 4/6/8 of POCSO Act, 2012, was filed against Gaurav, Rehan (JCL), Monu and Dharambir.
6. Vide order dated 26.10.2013 declared accused Gaurav and Rahul as Proclaimed Offender (PO) by the court of learned Metropolitan Magistrate. However, on 17.03.2016, accused Gaurav was arrested and on 02.08.2016 and thereafter, accused Rahul was also arrested. Supplementary charge-sheet was filed against both these accused persons, who were earlier declared PO and Charge under Sections 363/366/342/506/ 34/376(D) IPC and 15(g)/6 of POCSO Act was framed against all the accused persons, to which they pleaded not guilty and claimed trial.
7. The prosecution examined 32 witnesses in support of its case, which included deposition of prosecutrix (PW-9); HC Sukhbir (PW-1) who had received the information in respect of the complaint in question; Dr. Gurdeep Singh (PW-2) who had medically examined the prosecutrix on 20.03.2013; Dr. Bina (CMO) (PW-5) at SGM Hospital, who had medically examined accused Dharmabir on 23.03.2013; Dr. Brijesh Singh, CMO SGM Hospital (PW-6) who had medically examined accused Rehan; Rajesh Kumar (PW-7) who had brought the birth certificate of prosecutrix; Shri Bhupinder Singh (PW-10), learned Metropolitan Magistrate who had recorded the statement of the prosecutrix under Section 164 Cr.P.C.; Ms. Neelam (PW-12); Lal Ram (PW-13), father of the prosecutrix and Dr. Ritu Singhal, Medical Officer, who had proved the MLC dated 20.03.2013 of the prosecutrix; Constable Sandeep (PW-19) who along with W/SI Manju Yadav (PW-23) and Constable Ajay Kumar (PW-10) carried out the investigation; Ms. Seema Nain (PW-22), Assistant Director, FSL who had prepared the FSL report dated 27.11.2013.
8. Upon conclusion of prosecution evidence, the statements of the accused persons was recorded under Section 313 of Cr.P.C wherein all the incriminating evidence was put to them to which their stand was of general denial. Respondent no.1/Gaurav stated that he has been falsely implicated in this case in order to extort money from him and also he did not receive any summons and came to know about this case from Monu, when he was acquitted in the present case. Respondent no.2/Rahul stated that he has never been summoned at his permanent residence by any court.
9. On culmination of the trial, the learned Additional Sessions Judge (in short ASJ) after perusing the testimony of witnesses recorded and material on record, with regard to the age of the prosecutrix, has observed that as per prosecution, the age of the prosecutrix was 15 years at the time of alleged incident and even as per record of MCD (EX.PW7/A), her date of birth was 02.05.11997 and also, the accused persons never disputed her age.
10. Learned trial court further observed that there are material contradictions and inconsistencies in prosecutrixs complaint Ex. PW9/A, her statement recorded u/s 164 Cr.P.C (Ex. PW9/B) and her testimony as PW-9 recorded before the court. Further, it was observed that prosecutrix had repeatedly changed her version from time to time, as per her convenience and wish. In view of material contradictions and inconsistencies in the age of the prosecutrix, the learned trial court vide impugned judgment dated 18.12.2019 held as under:-
51. As discussed above, there are material contradictions and inconsistencies in the statements of prosecutrix and the testimony of prosecutrix does not inspire confidence of the court and same cannot be relied upon. It would be highly unsafe to convict the accused persons on the basis of testimony of prosecutrix. Hence, both the accused persons are acquitted of the charges u/S 363/366/342/506/34 and u/S 5(g)/6 of POCSO Act.
52. As far as charge u/s 174A IPC is concerned, prosecution has proved on record that accused Gaurav and Rahul were declared PO vide order dated 26.10.2013. I find force in the arguments of Ld Addl. PP that the proceedings u/s 82 Cr.P.C are conclusive in nature and the word conclusive has been defined in section 4 of Indian Evidence Act which reads as when one fact is declared by this act to be conclusive proof of another, the court shall on proof of one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it. Since no evidence can be given in respect of conclusive evidence, the defence taken by the accused persons with respect to their declaration as PO is not tenable and hence, both the accused persons are convicted u/s 174A IPC.
11. The challenge to the impugned judgment dated 18.12.2019 is on the ground that the same is arbitrary, illegal, perverse and contrary to law and principles of natural justice.
12. During the course of hearing, learned Addl. Public Prosecutor for appellant-State has submitted that the learned trial court has failed to consider the material available on record and deliberately tried to trivialize the serious offences, ignoring the statement of prosecutrix, aged 15 years, recorded under Sections 161 and 164 Cr.P.C. wherein she has alleged penetrative assault by accused Gaurav and Rahul. Also, evidence of father of the prosecutrix (PW-4) and Smt. Neelam (PW-12) has been completely ignored by the learned trial court. Learned Addl. Public Prosecutor for State submits that the respondents/accused deserve to be punished for the offences charged with and thus, setting aside of impugned judgment is sought by the appellant-State.
13. With regard to scope of re-appreciation of evidence in cases of acquittal, the Honble Supreme Court in Bhagwan Singh v. State of M.P., (2002) 4 SCC 85 has observed that while disturbing the decision of acquittal rendered by the trial court, the High Court is duty bound to re-appreciate the evidence and has held as under:-
7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an 000000 has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but Judge-made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence.
14. Also in Ramanand Yadav Vs. Prabhu Nath Jha (2003) 12 SCC 606, the Honble Supreme Court has held as under:-
21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.
15. The Honble Supreme Court in Mohan Vs. State of Karnataka (2022) 12 SCC 619 has held that truth has to be found on the basis of evidence available before the court and there is a hierarchy of courts in dealing with cases and so, the Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity. The Honble Supreme Court spelt out the power of an Appellate Court to hold that every case has its own journey towards the truth and it is the Court’s role to undertake the one. The Supreme Court thus held as under:-
20. Section 378CrPC enables the State to prefer an appeal against an order of acquittal. Section 384CrPC speaks of the powers that can be exercised by the appellate court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the appellate court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The appellate court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty-bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the appellate court shall remind itself of the role required to play, while dealing with a case of an acquittal.
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22. At times, courts do have their constraints. We find different decisions being made by different courts, namely, the trial court on the one hand and the appellate courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The appellate court is expected to maintain a degree of caution before making any remark.
16. In the light of afore-noted settled position of law, this Court has gone through the impugned judgment as well as testimony of witnesses recorded before the learned trial court record and we find that prosecutrix in her statement recorded under Section 164 Cr.P.C. before the learned MM (EX. PW-9/A) stated that she had told about the incident to Neelam (PW-12) on 20.03.2013, whereas in her statement recorded before the Court (EX. PW9/B) as well as before the Counsellor of the NGO, she stated that as she reached home, she immediately narrated the incident to PW-12. In her deposition before the Court, the prosecutrix stated that she had told about the incident to PW-12 who had further told to her father (PW-13), who then lodged a complaint with the police. Whereas PW-12 in her deposition has clearly stated before the Court that prosecutrix had not told about this incident to her father and thereby, two prosecution witnesses have put forth a different version in respect of the alleged complaint.
17. This Court in CRL.A.344/2003, State Vs. Devanand dated 18.10.2023 has held that sole testimony of the prosecutrix is sufficient to convict the accused persons for the offence of rape, however, the testimony has to be reliable and trustworthy. To prove the guilt of the accused persons, testimony of the prosecutrix, if shaky, has to be corroborated with medical evidence as well as testimony of other witnesses and other evidence placed on record, above all, her own statements in respect of allegation of rape.
18. This Court has also gone through the FSL Report dated 04.09.2017 (Ex. PW-23/C), which reads as under:-
Conclusion:- DNA profiling (STR analysis) performed on the source of exhibits ‘la’ (Microslide of victim) , ‘lb’ (cotton wool swab of victim), ‘1c’ (cotton wool swab of victim), ‘Id’ (Cotton wool swab of victim), ‘le’ (cotton wool swab of victim) and ‘1j'(underwear of victim ) vide FSL NO. 2013/DNA 2310 and 2013/DNA-2568 and ‘1’ (Blood sample of accused Gaurav) vide FSL 2016/B-3827is sufficient to conclude that DNA Profile generated from the source of exhibit ‘1’ (Blood sample of accused Gaurav) vide FSL 2016/B-3827 is not similar with the DNA Profile generated from the source of exhibits ‘la'(Microslide of victim) , ‘lb’ (cotton wool swab of victim), ‘1c’ (cotton wool swab of victim). 1d’ (Cotton wool swab of victim) ‘le’ (cotton wool swab of victim) and ‘1j ‘(underwear of victim) vide FSL NO. 2013/DNA 2310 and 2013/DNA-2568.
19. The FSL report (EX PW-23/B) in respect of accused Rahul, reads as under:-
RESULT OF DNA EXAMINATION
However, DNA profile could not be generated from the source of exhibit’ 1′ (Blood sample of accused Rahul) viz. FSL No. 2016/B-6210 . Therefore, comparison of DNA profile from the source of exhibit ‘1’ (Blood sample of accused Rahul) viz. FSL No. 2016/B-6210 with DNA profile generated from the source of exhibits ‘la’, ‘lb’, ‘1c’, ‘Id’, ‘le’ (Microslides/Swabs of victim) and ‘Ij’ (Underwear of victim) viz. FSL No.2013/DNA-2310 could not be given.
20. Even in the MLC of the prosecutrix (EX.PW2/A), it is observed that No external injuries are found on body, which is contrary to her ocular evidence wherein she specifically stated that her hands, legs and mouth were tied with a cloth by the accused for a long period of time. The learned trial court has also noted that except for old torn hymen prosecutrix has no other physical injury. Hence, the medical evidence has also not supported the prosecution case.
21. Also, the prosecution has not got examined any other independent witnesses i.e. the owner of the medical store from where the prosecutrix had purchased the medicine and was located in an isolated place and her real sister, for whom she had gone to get medicine.
22. During pendency of the present petition, learned Addl. Public Prosecutor for State on 19.10.2022 informed this Court that the other two accused in this FIR case, namely, Monu and Dharmabir have already been acquitted vide judgment dated 27.02.2016 passed by the learned trial court and State has not filed any appeal against their acquittal. Even in the present case, the appellant-State has failed to point out any material on record to establish guilt of respondents- Gaurav and Rahul for the offences charged with.
23. In view of the above and in our considered opinion, the prosecution story is based upon the material placed on record and there are evident contradictions in the testimony of witnesses examined and also, the medical and scientific evidence on record does not support the case of the prosecution.
24. Thus, finding no merit the present leave petition filed by respondent-State against the judgment dated 18.12.2019 passed by the learned trial court, is hereby dismissed.
(SURESH KUMAR KAIT)
JUDGE
(SHALINDER KAUR)
JUDGE
DECEMBER 4, 2023
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