Delhi High Court
State vs Sanjay Kumar & Anr on 7 March, 2012
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ CRL. L.P. No. 271/2007
Date of Decision : 07.03.2012
STATE ...... Petitioner
Through: Mr.Sunil Sharma, APP
Versus
SANJAY KUMAR & ANR ...... RespondentS
Through:Mr. Harish Kumar, Adv.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (Oral)
1. This is a leave to appeal filed by the State against the
judgment dated 07.08.2007 passed by Sh. Bharat
Parashar, the learned Additional Sessions Judge, New
Delhi in respect of case SC No. 155/2006 pertaining to
FIR No. 1265/2005, under Section 363/366/34 IPC and
376 IPC read with Section 109 IPC, registered by P.S.
Nangloi, New Delhi.
2. Briefly stated the facts of the case leading to the filing of
the present appeal are that one Shankar Shah was
residing at H. No. C-218, Nangli Vihar, Extn. Part-1, Near
Shiv Mandir, Vilalge Baprola, Delhi along with his family
consisting of four children and wife. The respondent no.
1/Sanjay Kumar was also residing in the said house
along with his wife and a small daughter. On
23.12.2005, at about 8.00 AM one Leela daughter of
Shanker Shah aged about 12 years (name of the
prosecutrix has been changed) left for her school.
However, when she allegedly reached near Kakrola Mor,
the respondent no.1/Sanjay Kumar met her and he told
her that he will get her married with his brother-in-law.
It has been alleged that since Leela refused, Sanjay
Kumar forcibly made her to sit in a bus and took her to
Shahdara and in the way he threatened her of dire
consequences. At Shahdara, Sanjay Kumar handed over
the custody of the prosecutrix to his father/Om Prakash
who took her to Barot in the house of his sister, where
they stayed in the night. In the night, Om Prakash had
sexually intercourse with the minor girl against her
wishes and consent. It has been alleged that the
prosecutrix made a call from Barot to his father,
however, the telephone was disconnected.
3. So far as Shankar Shah is concerned, he lodged originally
a missing report about his daughter wherein he
mentioned that he suspected the involvement of Sanjay
Kumar/respondent no. 1 in the episode. Sanjay Kumar
was apprehended by the police and during the
investigation, he disclosed all the facts and took the
police party to Barot and from there the prosecutrix was
recovered. The statement of the prosecutrix under
Section 164 Cr.P.C. was recorded. The accused/Om
Prakash was also arrested. The prosecutrix was got
medically examined at Sanjay Gandhi Memorial Hospital.
Their undergarments, semen and blood samples were
collected and sent for examination to FSL. After
completion of investigation, the charge sheet was filed
under Section 363/366/376/34 IPC against both the
accused persons. The prosecution has examined nine
witnesses in order to prove the case. The statement of
the accused persons were recorded who denied their
involvement in the commission of any offence. They
also examined DW-1/Rakesh and DW-2/Naresh in
support of their defence.
4. The learned Trial Court after analyzing the testimony of
all these witnesses and hearing the arguments acquitted
the accused persons on the ground that the prosecution
was not able to prove the guilt of the accused persons
beyond reasonable doubt as there was no corroboration
from any scientific or medical evidence on record.
5. I have heard the learned APP as well as the learned
counsel for the respondents and have also gone through
the record.
6. I do not find any illegality, infirmity or impropriety or
wrong appreciation of evidence arrived at by the learned
Additional Sessions Judge.
7. The learned Additional Sessions has rightly concluded
that the story which has been set up by the prosecution
about the kidnapping of the minor girl by Sanjay Kumar
and then handing over the same to his father who was
much older and alleged to have been subjected to sexual
intercourse in a crowded room of his sister is highly
improbable. I had called the accused to be present at
the time of hearing of the appeal. He was an old person
who was hardly able to stand without support. Even five
years or so earlier, his position would not have so good
as to imagine he could sexual intercourse. Further, this
is against the normal conduct of a human being. There
are number of factors which have been noticed and which
persuade this Court to disbelieve the prosecution case.
These points are as follows:
(a) The prosecution case is that the prosecutrix was
going to school and she was kidnapped forcibly by
Sanjay Kumar and taken in a bus to Shahdara. If
the prosecutrix was kidnapped then she would not
have carried an extra pair of suit in her bag while
going to school which has come in evidence. The
very fact that she was carrying suit clearly shows
that though she was minor and she was going to
her school with different set of mind to proceed
somewhere else rather than going to study. The
prosecution has alleged that she was forcibly taken
to Shahdara. If she would have been taken forcibly
there must have been resistance from the side of
the prosecutrix and this must have been noticed by
the number of persons, individuals in the crowded
city rather than she merrily goes in a bus to
Shahdara along with Sanjay Kumar.
(b) The prosecutrix makes a call from the PCO to her
father that she is in Barot, and thereafter,
disconnect the telephone while as the call was
traced to a PCO in Dwarka Mor itself, therefore, it
clearly shows the bent of mind of the prosecutrix
right from the day she left her father's house that
she had something different in her mind rather than
going to school.
(c) The case of the prosecution is that the respondents
threatened her and took her forcibly, but her
statement under Section 164 Cr.P.C. has not stated
anything about the threat having been given to her.
(d) The next point which is highly unbelievable is the
factum that Om Prakash is alleged to have
committed rape after the prosecutrix was handed
over by Sanjay Kumar to his father. I had an
occasion to see both the accused persons in Court,
especially Om Prakash was an old man with
decaying health. Even at the time, when the
incident is alleged to have taken place, he would
have been slightly better than what he is today.
The normal conduct of Sanjay Kumar would have
been that in case he had kidnapped the girl or
eloped with girl though he was married, he would
have tried to establish physical relationship himself
with the prosecutrix rather than handing over the
custody of the minor child to his father, who was
much older. The story that the prosecutrix was
subjected to sexual assault in one room where the
sister of Om Prakash was residing is also
unbelievable in as much as it has come in the
evidence that there were other four more members
sleeping in the room in question where the incident
alleged to have been taken place.
(e) The incident is alleged to have taken place on 23-
24th December, 2005 and the prosecutrix was
medically examined on 26.12.2005, the doctor
opined that the hymen of the prosecutrix was found
to be torn and the same was old and healed one.
The appellant's undergarments have been seized
and sent to the FSL and a report has been received
from the FSL which does not corroborate with the
testimony of the prosecutrix.
8. All these pieces of evidence create a reasonable doubt
about the genuineness of the prosecution case.
Therefore, the prosecution in my view has failed to prove
the guilt of the accused persons beyond reasonable
doubt. Therefore, I give the benefit of doubt to the
respondents and I do not find any ground to grant the
leave to appeal in the instant case and the petition is
accordingly dismissed.
V.K. SHALI, J.
MARCH 07, 2012
KP
