Delhi High Court
State vs Pankaj @ Sonu on 8 September, 2010
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.A 12891/2010 & CRL.LP No.257/2010
% Date of Decision: 08.09.2010
State .... Petitioner
Through Mr.Saleem Ahmed, Additional Standing
Counsel
Versus
Pankaj @ Sonu .... Respondent
Through Nemo
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
ANIL KUMAR, J.
*
Crl.M.A No.12891/2010
This is an application seeking condonation of delay of 169 days in
filing the leave petition.
For the reasons stated in the application delay is condoned.
CRL.LP No.257/2010
1. The petitioner/state has sought leave to appeal against the order
dated 30th October, 2009 in F.I.R.No.1004/2006, under Sections 366,
328 & 376 of Indian Penal Code acquitting the respondent of the said
charges.
2. Briefly the case of the petitioner is that the respondent had
allegedly kidnapped the prosecutrix Ms.Chandni (changed name) at
about 12:00 noon on 26th June, 2006 from her house at Street No.5,
Station Block, Prem Nagar-1, Sultanpuri, Delhi. It is alleged that she
was given sweets (barfi) laced with some chemical which made her giddy
and this was allegedly done with the intention to seduce her and have
illicit intercourse and rape her in a park of Mangol Puri.
3. The matter was allegedly reported to the police by the mother of
Ms.Chandni, namely, Smt.Shyamo Devi, PW-2 on 28th June, 2006, two
days after her daughter was allegedly kidnapped, and on her complaint
an FIR Ex.PW-7/A was registered where after the respondent was
arrested. After the arrest of the respondent on fulfilling the formalities,
the charges under Sections 366, 328 and 376 of Indian Penal Code were
framed on 9th February, 2007 to which the respondent pleaded not
guilty. In the trial court, eight witnesses were examined by the
prosecution including the mother, Smt. Shyamo Devi, of Ms.Chandni as
PW-2. The statement of the accused was recorded under Section 313 of
Criminal Procedure Code where he claimed himself to be innocent and
contended that he has been falsely implicated. He deposed that he was
having an affair with Ms.Chandni, and consequently, her father
objected to it, and thereafter, he was falsely implicated in the present
case. The trial court while acquitting the respondent noted that the
prosecutrix was minor at the relevant time. Grave and serious
contradictions in the depositions of prosecutrix (PW-1), her mother (PW-
2) and Investigating Officer ASI Krishan Kumar (PW-7) were noticed and
considered. According to the trial court, the contradictions in the
statements were very material which went to the root of the matter and
in the circumstances it has been held that the prosecution has failed to
establish the charges levelled against the respondent.
4. From the testimony of prosecutrix (PW-1), her allegation was that
at about one and a half years back the respondent had come to her
house in the absence of her parents and had given her a piece of sweet
(barfi) and after eating it she fell giddy. The accused had asked her to
sit in a rickshaw on the pretext of taking her to doctor, however, instead
of taking her to doctor, he took her at Mangol Puri in a bushy area
where she was raped and kept there for the whole night. She further
deposed that she was raped again by the respondent on the next day,
and for one week she was taken to various places and the accused
repeatedly raped her without her consent. After a week, she was
apprehended by the police official where her mother had also come from
Mangol Puri Railway Station after which she was medically examined
and her undergarments were seized by Doctor, which are exhibited as
Ex. P1 to Ex. P4. Prosecutrix (PW-1), however, in the cross-examination
deposed that Pankaj @ Sonu was not known to her and whenever
prosecutrix's mother would go way, an old couple residing near her
Jhuggi used to take care of her.
5. According to PW-1, prosecutrix, sweets (barfi) laced with
something which made her giddy was given to her at about 3:00 p.m.
and she became unconscious and regained conscious at about 5:00
p.m. She stated that during one week when she was with the
respondent, she travelled to various places where different persons were
present, however, she did not tell anyone about she being raped
repeatedly by the respondent on different dates against her consent and
wishes, as he had threatened to kill her. She also deposed that the
respondent used to go with her even when she used to go for the call of
nature.
6. The mother of the prosecutrix (PW-2), however, deposed that
about one and one and a half years back she had gone to Bahadurgarh
and when she came back she found her daughter Ms.Chandni was
missing and her other siblings were alone in the house. She stated that
for 2-3 days she tried to trace out the daughter, but she could not
succeed and other residents of the locality had reported the matter to
the police. She deposed that she was made to put her thumb
impression on certain papers and her daughter was recovered from
Mangol Puri Railway Station. However, at the time of recovery of her
daughter from Mangol Puri Railway Station, she was not present, and
she was informed later regarding recovery of her daughter. The mother
was declared hostile and was cross-examined in which she denied that
she had reported the matter to the police official and also denied that
she had expressed any suspicion on the accused Pankaj @ Sonu. She
did not admit that accused Pankaj @ Sonu and her daughter were
apprehended in her presence at the Mangol Puri Railway Station.
According to her, the case was registered against the respondent by
certain persons who had enmity with him, and gave a good certificate to
the respondent and also deposed that he does not have any bad habits
and she had not complained against him.
7. The trial court has considered the deposition of ASI Krishan
Kumar (PW-7) which has inherent contradictions with the statement of
Smt.Shyamo Devi (PW-2). According to him on 28th June, 2004, the
mother had come to the police post and had lodged a missing report,
Ex. PW-2/A, regarding her daughter Ms.Chandni and in the report she
had expressed her suspicion on the respondent. According to ASI
Krishan Kumar, the mother Smt.Shyamo Devi had produced her
daughter herself along with the respondent in the police post. When the
prosecutrix was produced by her mother herself, recovery was shown
vide Memo Ex. PW-7/B and she was taken for medical examination by
lady constable Usha (PW4). According to him, the respondent was also
medically examined. The said constable deposed that statement of the
prosecutrix was recorded under Section 161 of Criminal Procedure
Code, and on the basis of her statement Sections 328 and 376 of
Criminal Procedure Code were also invoked. He also deposed about the
disclosure statement made by the respondent, and the statement of
prosecutrix under Section 164 of Criminal Procedure Code could not be
recorded due to language problem.
8. From perusal of the trial court record and the testimonies of these
witnesses, the learned public prosecutor has asserted that the
testimony of the prosecutrix is corroborated by the medical evidence
and by the testimony of her mother, and there are no serious and grave
contradictions in the depositions of the prosecutrix, her mother and the
investigating officer. It is further asserted that since the accused had
admitted that he had been having an affair with the prosecutrix,
therefore, the testimonies of these witnesses ought to have been
believed and in the circumstances, the alleged contradictions on the
basis of which, the trial court has acquitted the respondent has to be
ignored and are to be treated as minor imperfections. In the
circumstances, it is prayed that leave to appeal be granted against the
order of the trial court acquitting the respondent from the charges
under Sections 366, 328 and 376 of Indian Penal Code.
9. This Court has perused the trial court record and has gone
through various testimonies and documents on record in details along
with the public prosecutor. From the perusal of the testimonies, it is
apparent that there are major contradictions between the testimonies of
PW-1 Ms.Chandni, her mother Smt.Shyamo Devi (PW2) and ASI
Krishan Kumar(PW7). The prosecutrix had stated that she was
recovered with Pankaj @ Sonu by the police and her mother from the
Mangol Puri Railway Station, whereas the ASI Krishan Kumar had
deposed that she was not recovered with the respondent rather PW-2
mother, Smt.Shyamo Devi of the prosecutrix had brought the
prosecutrix and the respondent to the police post where after a recovery
memo was prepared and the prosecutrix along with the accused was
sent for medical examination. Smt.Shyamo Devi, on the other hand,
stated that the police had recovered her daughter from the Mangol Puri
Railway Station, but she was not present at that time. In the
circumstances, all the three witnesses have given three different
versions. Which version is correct cannot be inferred on the basis of any
other evidence or document on record.
10. There are inherent contradictions regarding missing of
Ms.Chandni (prosecutrix). Smt.Shyamo Devi mother has denied that
she had complained to the police about her missing daughter and had
expressed any suspicion on the respondent. She has also denied that
her daughter with the respondent was apprehended by other relatives
from the Mangol Puri Railway Station, and thereafter police had
arrested the accused. She has very categorically stated that she did not
lodge a complaint but her thumb impression was taken on Ex. PW-2/A
and other blank papers which was given to her at the insistence of her
neighbour and relatives. This deposition is diametrically contrary to the
statement of ASI Krishan Kumar who deposed that Smt.Shyamo Devi,
mother of prosecutrix had come to the police post and had lodged a
missing person report, Ex. PW-2/A, and the mother herself had
produced her daughter on 2nd July, 2006 along with accused
respondent where after they had been taken into custody.
11. Dr.Brijesh Singh (PW-5) has deposed that on local examination of
the prosecutrix no external injury on the parts of her body was found
and even no external injury was found on the body of the accused/
respondent. Dr.Manoj Dhingra (PW-6) has deposed that Dr.Meenakshi
had opined that hymen of the prosecutrix was torn. Forensic
examination report Ex. PW-7/H reveals that semen was not detected on
Kameej, Salwar, Dupatta and underwear. The report though opined that
Kameej, Salwar and Dupatta had human blood, but the blood group
was not detected. From the said report and other evidence, it cannot be
inferred that the accused/ respondent had sexual intercourse with the
prosecutrix. In the circumstances, the only evidence of sexual
intercourse by the respondent with the prosecutrix is her statement.
The statement of Ms.Chandni (PW-1) is also not consistent viz-viz
statement of her mother Smt.Shyamo Devi and ASI Krishan Kumar. Her
statement that the respondent took her to bushy area near Mangol Puri
and there he raped her. Thereafter, he took her to different places and
continuously had sexual intercourse with her at different places,
against her consent also does not inspire confidence. Though the
medical examination had revealed that her hymen was torn, from the
evidence of the witnesses and the report of forensic examination, it
cannot be inferred that he had sexual intercourse with the prosecutrix.
The mother of the prosecutrix has rather deposed that she did not even
complain to the police and that it was at the insistence of other
relatives, a police complaint was lodged and she was made to thumb
mark the papers. The mother says that her daughter was not recovered
with the respondent in her presence whereas the Inspector stated that
the mother had produced the prosecutrix and the respondent before the
police where after the respondent was arrested and the prosecutrix was
sent for medical examination. The prosecutrix stated that she is not
known to the respondent whereas the respondent deposed that he was
having an affair with the prosecutrix. If prosecutrix was not known to
the respondent, her version that she was given sweets (barfi) laced with
something which made her giddy and she became unconscious and
regained conscious after two hours and she was taken to bushy area
near Mangol Puri and raped by the respondent cannot be believed. If
she was raped against her consent, she would not have remained quite
for a number of days as she herself has admitted that she had been
going to different places with the accused where different persons were
present. If the accused has been raping her at various places against
her consent, she would have revealed it or tried to escape from the
clutches of the respondent. This is not the case by the respondent that
he had intercourse with the prosecutrix with her consent. Consent of
the prosecutrix would not be relevant as she was minor at that time.
Rather in the facts and circumstances, the prosecution has failed to
establish that the respondent had sexual intercourse with her. On the
basis of sole testimony of the prosecutrix also it will not be appropriate
to infer that the respondent had sexual intercourse with her as her
statement and version is unreliable. Because of inherent contradictions
it has not been even established as to from where the prosecutrix was
recovered and the alleged places she had gone with the respondent. For
these inherent contradiction, it is improbable that the respondent had
sexual intercourse with the prosecutrix.
12. This is not disputed that the prosecutrix is minor and therefore,
her consent will not be material, but on the basis of the testimonies of
the prosecutrix, her mother, the ASI Krishan Kumar and other
witnesses, it cannot be inferred that the respondent had sexual
intercourse with the prosecutrix. If that be so, the trial court's inference
acquitting the respondent of the charge under Section 376 cannot be
said to be unsustainable or perverse. If the mother of the prosecutrix
had herself produced the prosecutrix along with accused/respondent
and also deposed that he is a good boy and that she has not complained
against him, it cannot be held that he had kidnapped the prosecutrix
and had sexual intercourse with her.
13. On perusal of the entire testimonies and the documents and the
record of the trial court, this Court also concurs with the finding of the
trial court that prosecution has failed to establish the guilt of the
respondent. This cannot be disputed that unless the conclusion of the
Trial Court on the evidence on record are unreasonable, perverse or
unsustainable, the High Court would not interfere with the order of the
acquittal. Though the High Court has the power to assess the evidence
and reach its own conclusion which power is as extensive as in appeal
against the order of conviction, yet as a Rule of Prudence, the High
Court should always give proper consideration to matters such as (i)
the views of the Trial Judge as to the credibility of the witnesses; (ii) the
presumption of innocence in favor of the accused; a presumption which
certainly is not weakened by the fact that the accused has been
acquitted at his trial; (iii) the right of the accused to the benefit of any
doubt, and (iv) the slowness of an Appellate Court in disturbing a
finding of the fact arrived at by a Judge who had the advantage of
seeing the witnesses and noticing their demeanor. On the analysis of
facts and circumstances and the evidence of the prosecution, this Court
does not differ with the conclusions of the Trial Court acquitting the
respondent of the charge under section 376 of IPC and other sections in
the facts and circumstances of the case.
14. No other grounds have been raised by the petitioner seeking leave
against the judgment of the Trial Court 30th October, 2009 in
F.I.R.No.1004/2006, under Sections 366, 328 & 376 of Indian Penal
Code acquitting the respondent of the said charges. The judgment of
trial Court cannot be termed to be unsustainable or perverse and in the
circumstances there are no grounds to grant leave to the petitioner to
impugn the judgment dated 30th October, 2009
15. For the forgoing reasons, the petition to grant leave to appeal
against the judgment of the Trial Court dated 30th October, 2009
cannot be allowed. There are no grounds to grant leave. The judgement
of Trial Court is neither perverse nor unsustainable. The petition to
leave is therefore dismissed.
ANIL KUMAR, J.
SURESH KAIT, J.
SEPTEMBER 08, 2010
VK
