State vs Sandeep Sharma & Ors
2013 Latest Caselaw 3523 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            CRL.L.P. 134/2013

                                                       Decided on 08.08.2013

IN THE MATTER OF :
STATE                                                       ..... Appellant
                                Through: Mr. Dayan Krishnan, ASC for State


                          versus

SANDEEP SHARMA & ORS.                                      ..... Respondent
                  Through: None.


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

1. The present petition has been filed by the petitioner/State under

Section 378 (1)(b) Cr.P.C. praying inter alia for grant of leave to file an

appeal against the acquittal order 6.3.2012 passed by the learned ASJ,

Saket Court, in SC No.10/2006/2010, arising out of case FIR No.775/2004

(Ex.PW-3/A) lodged under Sections 367/377/506/323/34 IPC at PS Kalkaji,

Delhi.

2. The brief facts of the case as set up by the prosecution and relevant

for deciding the present petition are that on 28.8.2004, at about 8.00 AM,

when the complainant, Imran Khan was travelling in a public bus along with

his friend Amjad Khan, four persons, namely, Mohd. Yunus @ Chhotu

Bihari(accused No.3), Sandeep Sharma @ Tittoo (accused No.1), Dinesh

(accused No.2) and one Shakeel had forced him out of the bus and had

taken him in a TSR to a locked factory premises at Lakkarpur Jungle, where

he was assaulted and his clothes were removed whereafter, accused No.1

had caught his hands and made him kneel, accused No.2 threatened him

with a knife and accused No.3 had sodomised him. Thereafter, all the

accused persons had threatened to kill the complainant if he informed

anybody or made any noise and they took him to Okhla Service Road, T-

Point R.D. Marg in a TSR and dropped him there. The complainant reached

the police station at 11.00 AM and made a complaint. After 4-5 hours of

waiting at the police station, he was sent to AIIMS for a medical

examination. The subject FIR came to registered at 9.05 PM.

3. Initially, accused Nos.1 & 2 were arrested on 31.8.2004 and a charge-

sheet was filed against them on 18.10.2004. Accused No.3 was arrested

after a month, on 18.11.2004. However, Shakeel could not be arrested by

the police. Vide order dated 27.7.2006, the Sessions Court charged all the

accused with offence punishable under Sections 367/377/506/323/34 IPC.

4. Initially, the case was tried by the learned MM, who had proceeded to

record the testimony of the prosecution witnesses and that of the accused

persons under Section 313 Cr.P.C. At that stage, having noticed the fact

that an offence under Section 367 IPC is exclusively triable by the Sessions

Court, the case was committed to the Sessions Court.

5. All the witnesses were then recalled by the Sessions Court for their

examination and cross-examination. Out of seven witnesses, cited by the

prosecution and duly examined before the learned MM, six witnesses had

appeared for their examination and cross-examination before the Sessions

Court. However, the seventh witness, Amjad Khan, a friend of the

complainant who was allegedly accompanying him in the bus on the date of

the incident and had appeared before the learned MM, failed to appear

before the Sessions Court as he remained untraceable.

6. Out of six witnesses, who had appeared before the Sessions Court, the

most important witnesses are the complainant (PW-1), IO-ASI Attar Singh

(PW-2) and Dr. Manish (PW-4). After conclusion of the evidence of the

prosecution witnesses, the accused persons were examined under Section

313 Cr.P.C. and all the incriminating evidence was put to them. They

however denied the said evidence and alleged false implication and stated

that they were innocent. Thereafter, arguments were advanced by both

sides. After perusing the record and analyzing the evidence, the trial court

arrived at the conclusion that the prosecution evidence was not trustworthy

enough to convict the accused persons. As a result, benefit of doubt was

given to them and all of them were acquitted in the case.

7. Aggrieved by the aforesaid acquittal order, the State has preferred the

present petition and seeks leave to file an appeal. The main grounds urged

by learned ASC for the State to assail the impugned judgment are that the

trial court had erred in overlooking the medical evidence placed on record

which had corroborated the testimony of the complainant and further, that

having regard to the nature of the crime, no public witness could be found

and in such circumstances, the testimony of the complainant readwith the

medical evidence were sufficient to convict all the accused.

8. This Court has examined the trial court record, including the evidence

placed on record, both, ocular and documentary, and has carefully

considered the impugned judgment in the light of the submissions made by

the learned ASC for the State.

9. A perusal of the impugned judgment reveals that after considering the

deposition of three of the most relevant witnesses, namely, the complainant

(PW-1), IO-ASI Attar Singh (PW-2) and Dr. Manish (PW-4), the trial court

had arrived at the conclusion that the testimony of the complainant was full

of contradictions. To substantiate the said observation, the court had

observed that although the accused No.3 had been arrested at his instance,

the complainant had failed to identify him in the court. The complainant had

alleged that four persons had forced him off from the bus and committed

carnal intercourse with him, but strangely, he neither raised any hue or cry

when he alighted from the bus, nor did he seek any help from anyone on his

way to the police station. It was further noticed that the complainant had

claimed that he went to the police station alongwith his mother, but

surprisingly, she was not made a witness by the prosecution and IO-ASI

Attar Singh (PW-2) also did not state in his deposition that the complainant's

mother had accompanied him.

10. Coming next to the testimony of Dr. Parthasarthy (PW-1 before

learned MM), who had been examined before the learned MM as also that of

Dr. Manish (PW-4), who was examined before the Sessions Court, it has

been observed in the impugned judgment that both the doctors were

uncertain about the factum of carnal intercourse. Pertinently, Dr.

Parthasarthy (PW-1 before the learned MM), who had prepared the MLC of

the complainant (Ex.PW-1/A) in the hospital had not seized his clothes for

being handed over to the IO for investigation and nor had the IO made any

such effort to seize the apparel of the complainant, which was incumbent

when the offence in question related to carnal intercourse. Had the clothes

of the complainant been seized, it would have certainly assisted in

establishing as to whether there were any stains of semen found on them to

corroborate the prosecution version. The learned ASJ had further observed

that the same was the position with regard to the examination of the

accused persons and the doctor who had examined accused No.3, had not

bothered to seize his clothes for purposes of analysis.

11. Lastly, coming to the testimony of the IO-ASI Attar Singh (PW-2), the

Sessions Court had observed that the time of registering the FIR was

mentioned as 9.05 PM whereas, as per the MLC report (Ex.PW-1/A), the

complainant had been medically examined on the very same date at 9.06

PM, which was rather surprising and it could not be physically possible that

the complainant was taken to AIIMS for his MLC (Ex.PW-1/A) within one

minute of registering the FIR. Moreover, as per the complainant, the

incident in question had occurred just two or three hours prior to his medical

examination. But, there was no evidence on record to corroborate that part

of the complainant's testimony.

12. The trial court has observed that as per the prosecution version, on

the date of the incident, one Amjad Khan (who had appeared as PW-6 before

the learned MM) was accompanying the complainant in the bus and it was in

his presence that the four accused had forcibly made the complainant alight

from the bus and then had taken him away in a TSR. However, at the time

when the deposition of Amjad Khan was being recorded before the learned

MM on 31.1.2005, when the learned APP had pointed out the four accused

persons, who were present in the court, he had stated that he could not

identify any of the accused persons.

13. It is rather strange that Amjad Khan (PW-6 before the learned MM),

who was allegedly known to the complainant and had boarded the bus with

him from Hamdard Nagar, and had stated that the four accused persons had

forcibly made the complainant alight from the bus, neither raised an alarm

nor did he inform the police or anyone else of the said incident. As noted

earlier, the aforesaid witness did not appear before the Sessions Court as he

had remained untraceable and as a result, the complainant's testimony with

regard to the identification of the remaining two accused persons, could not

be corroborated.

14. Having perused the impugned judgment in the light of the evidence

placed on record, this Court is of the opinion that the conclusion arrived at

by the trial court that the deposition of the prosecution witness was not of

sterling quality and insufficient to convict the accused persons does not

deserve to be interfered with. The testimony of the main witness, who is

the complainant in the present case (PW-1), reveals a number of

contradictions. Further, failure on the part of the prosecution to have

seized the complainant's clothes and that of the accused for purposes of

serological analysis so as to verify as to whether there were any stains of

semen found thereon has also added a nail to the coffin.

15. Had a sincere effort been made by the prosecution to support its case

with blemishless scientific evidence, perhaps the conclusion of the trial court

would have been different as the said independent scientific evidence would

have corroborated the testimony of PW-1. But failure on the part of the

prosecution in taking necessary steps to seize the clothes of the complainant

and that of the accused persons for purposes of analysis has left a yawning

gap in the evidence, apart from contradictory testimony of the prime

witnesses including the complainant, thus resulting in the trial court giving

benefit of doubt to the accused persons.

16. In view of the aforesaid fact and circumstances, this Court is not

inclined to allow the present petition for seeking leave to appeal, which is

accordingly dismissed.

                                                         (HIMA KOHLI)
AUGUST 08, 2013                                            JUDGE
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