CRL.L.P./381/2017 of STATE GOVT OF NCT OF DELHI Vs KAPIL

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.L.P. 381/2017STATE GOVT OF NCT OF DELHI..... PetitionerThrough:Mr. Rajat Katyal, Additional PublicProsecutorfortheStatewithInspector Daya Sagar, SHO SoniaVihar,Delhi,InspectorMithleshCAW Cell, North East, Sub-InspectorSubhash, Police Station Sonia Viharand Sub-Inspector Manu Dev, PoliceStation Amar Colony, Delhi.versusKAPIL..... RespondentThrough:Mr.SunilKumar,Advocate withrespondent in person.

CORAM:HON'BLE MR. JUSTICE VIPIN SANGHIHON'BLE MR. JUSTICE P.S.TEJI

O R R30.10.2017

P.S. TEJI, J.

Crl. M.A. No. 10825/2017 (Condonation of delay of 37 days infiling the leave petition)

1.The State has filed the application under Section 5 of theLimitation Act read with Section 482 of Cr. P.C. for seekingcondonation of delay of 37 days in preferring the accompanying leavepetition to challenge the impugned judgment dated 23.02.2017 passedby learned Additional Session Judge (North-East)-01, KarkardoomaCourts, Delhi in S.C. No.44735/2015 in case FIR No. 112/2012,registered under Section 363/376/328/342 of IPC at Police StationSonia Vihar, Delhi.

2.In the application for condonation of delay, it has beensubmitted that the judgment was delivered on 23.02.2017 but thecertified copy of the judgment was applied on 09.03.2017 and thesame was delivered on 15.03.2017.The file was sent to the Lt.Governor seeking permission to file the appeal on 04.03.2017 whichwas assigned on 27.04.2017 to Directorate of Prosecution and then thecase was received in the office of Standing Counsel on 08.05.2017and ultimately the matter was entrusted to Additional PublicProsecutor on 11.05.2017.

3.Argument submitted by the learned Additional PublicProsecutor for the State is that there is cumbersome procedure toprocess the matter for filing the leave to appeal and it is formulatedafter the opinion of the legal experts and the opinion formed byvarious officers, as result the present appeal could not be filedwithin the prescribed time and the same caused delay of 37 days.He has referred to judgment of Hon’ble Supreme Court in case ofState of Nagaland v. Lipok AO and others 2005 (3) SCC 752.

4.Keeping in view the explanation and the law laid downin case of State of Nagaland v. Lipok AO and others (supra), thisCourt is of the opinion that the object of the judicial system is toprovide justice.The present case is involving the offences underSection363/372/328/342IPC.Thedelayissubstantial.Consequently, the application for condonation of delay is allowed andthe delay in filing the application for the grant of leave is herebycondoned.

Crl.L.P. 381/2017

5.The present application has been filed by the State underSection 378(1)(a) of the Cr.P.C. seeking leave to appeal against thejudgment dated 23.02.2017 passed by the Court below.

6.Leave to appeal has been sought by the State feelingdissatisfied by the judgment of acquittal delivered by the Court below.It has been submitted that the trial court erred in observing that thereis no cogent evidence on record to corroborate the allegations of rape;that the place of incident could not be identified through all thewitnesses;thatthereareconsiderableinconsistenciesanddiscrepancies in the statements of the victim qua the incident of rape;that contradictory version was given by two set of witnesses makingtheir testimony unreliable and unworthy of credence.It is furthersubmitted that the medical report clearly shows that the hymen of thevictim was torn with fresh bleeding and the history given by thevictim before the doctor was well connected with the version of thevictim. It was further submitted that the recovery of victim from thejhuggi of accused proves the taking away of the minor by the accused.There is enough evidence on record to prove the factum of rape andkidnapping of victim by the accused.7.As per FIR of the instant case, the allegations levelled arethat on 21.08.2012, complainant Hukum Singh lodged missingreport of his daughter/victim aged about 12 years to the police whichwas converted into an FIR. On 22.08.2012, the victim was produced

before the police by the complainant with the allegations that she wasabducted by accused Kapil. Accused was apprehended and thereafterarrested. It was alleged by the victim that she was kidnapped by theaccused along with his associates after she was made to inhalesomething. It was also alleged that the accused had committed rapeupon her.

8.After completion of investigation, charge sheet was filedin the Court. Charge under Section 363/328/342/376 IPC was framedagainst the accused to which he pleaded not guilty. To prove its case,the prosecution examined 19 witnesses, namely, Hukum Chand(PW1), victim (PW2), Ct.Sandeep (PW3), Ct.Chahak Singh (PW4),Ct.Surender Singh (PW5), Kamlesh (PW6), Shri Ram @ Ramu(PW7),HCJaiPrakash(PW8),Sh.BrijeshKumar(PW9),Ms.Rajeshwari Varshney (PW10), Ct.Aarti (PW11), HC Reena(PW12), SI Manu Dev (PW13), Ct.Jitender Sigh (PW14), SI Mithlesh(PW15), SI Subhash Chand (PW16), Dr.Sushma Kumari (PW17),ASI Naresh (PW18) and Dr.Priya Sinha (PW19).

9.The main witnesses examined by the prosecution toprove the guilt of the accused were the victim herself (PW2), herfather (PW1) and the doctors PW17 and PW19.A perusal of thetestimony of the victim (PW2) shows that it is full of discrepanciesand inconsistencies. She had stated that accused met her at 5[th]Pushta,Sonia Vihar and asked her to accompany him but on her refusal, hemade her to inhale something. In the statement Ex.PW2/B, she hadgiven different version that the accused had forcibly put her in an

auto and then made her to inhale something.In her statementrecorded under Section 164 Cr.P.C., she gave different versionstating that when she had left for her tuitions, accused and his friendscame there, picked her up and put her in rickshaw, shut her mouthand made her to inhale something. During her cross-examination, shestated that she had not seen the accused with any spray or cloth in hishand. It has come in the testimony of the victim that there was trafficmovement at the place from where she was allegedly kidnapped bythe accused.The place of incident being public place and alsocongested with traffic, was not conducive place for the accused topick up the victim or put her in rickshaw or make her to inhalesomething or forcibly put her in an auto.

10.Another glaring discrepancy in the testimony of thevictim (PW2) is that in her statement Ex.PW2/B she had stated thatshe regained her senses at Azadpur, but in her deposition before theCourt she did not depose the place where at she came back to hersenses. The victim was declared hostile by the prosecution as she didnot support the case of the prosecution.

11.Apart from the distorted testimony of the victim (PW2),testimony of PW1-Hukum Chand, father of the victim shows that it isalso of no consequence. PW1 had stated that on the day of the allegedincident, the victim had gone for tuitions but did not return to herhouse, whereupon he searched for the victim, but to no avail,following which on the next day he reported the matter to the police.He further stated that on the day of registration of the case, he

received phone call from the victim on the mobile phone of his sonwho told him that she was confined at place and then the phone gotdisconnected. At that time, his son and brother-in-law of the accusedwere present in his house and he called the PCR who advised him tocontact the concerned police station. As per his version, brother-in-law of the accused had redialled the number and scolded the personon the other side and asked him to leave the victim at the house of thecomplainant. Thereafter, PW1 along with brother-in-law of accusedand some other persons went to the house of the accused at Azadpurand on the way, they saw the mother of the accused coming alongwith the victim and accused.

12.PW1 was declared hostile by the prosecution and wascross-examined by the learned Addl. PP for the State during which hestated that the victim had not disclosed the place where she wasconfined, nor disclosed the name of the person who had confined her.He denied that the victim disclosed the said place either as the jhuggi,or the name of the accused.

13.Perusal of the above mentioned testimony of victim(PW2) and her father (PW1) show that they are replete withcontradictions and discrepancies.The medical examination of thevictim also did not establish the case of the prosecution. Dr.PriyaSinha (PW19) had proved the report of the victim as Ex.PW19/A.PW19 had stated that there were no signs of external injury on theperson of the victim. Though she stated that the hymen of the victimwas torn and there was bleeding, she admitted that it was not

mentioned whether it was fresh or an old tear, nor was it mentionedwhether the victim had any menses.

14.The FSL report Ex.PW13/A shows that DNA profile wasgenerated from the blood sample of the victim and the accused.Itwas recorded in the report that comparison of DNA profile could notbe made due to the non-availability of the DNA profile from thesource of exhibits of the victim, as semen could not be detected on thesource of exhibits of the victim, which makes the case of theprosecution doubtful to substantiate that any rape was committedupon the victim by the accused.

15.In Atender Yadav vs State Govt Of Nct Of Delhi 2013(4) JCC 2962, it was observed that :

“It is true that in case of rape, theevidence of the prosecutrix must be givenpre-dominant consideration and in certaincasesevenwithoutanycorroboration,testimony of the prosecutrix should be givendue credence and weightage as in all therape cases the prosecutrix suffer greatstress, trauma, humiliation and due to thisfactor alone many cases of rape are not evenreported by the victims. However, at thesame time, it cannot be denied that falseallegation of rape can cause equal damage,humiliation,embarrassment,harassment,disgrace and agony to the accused as well.”

In the case of Tameezuddin @ Tammu vs. State of (NCT) ofDelhi (2009) 15 SCC 566, the Hon‟ble Apex Court held as under:

“It is true that in case of rape the evidenceof the prosecutrix must be given predominantconsideration, but to hold that this evidencehas to be accepted even if the story isimprobable and belies logic, would be doingviolence to the very principles which governthe appreciation of evidence in criminalmatter. We are of the opinion that story isindeed improbable.”

16.It also appears to us that the investigation in this case wasnot conducted meticulously. It came up in the statement of the victimrecorded under Section 161 of Cr.P.C. that she had made call fromthe mobile phone of the accused to the mobile phone of her brother,after she had been kidnapped. Despite this statement being made byher, no efforts were made to obtain the call details either of theaccused, or the brother of the victim to pinpoint the locationwherefrom the call was made, if at all it was made. If the same hadbeen done, it would have been relevant, at least, in respect of theoffence under Section 363 IPC.17.In view of the aforesaid circumstances, we are notinclined to interfere with the impugned judgment. Therefore, thepresent leave petition filed by the state is dismissed.

P.S. TEJI, J

OCTOBER 30, 2017/pkb

VIPIN SANGHI, J