State vs Anil Bhardwaj
2013 Latest Caselaw 3726 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CRL.L.P. No.377/2013

                                           Date of Decision 23.08.2013
IN THE MATTER OF :
STATE                                                    ..... Petitioner
                          Through : Mr. Saleem Ahmed, ASC with
                          Ms. Charu Dalal, Advocate and ASI Vijay Pal.

                          versus

ANIL BHARDWAJ                                            ..... Respondent
                          Through : Nemo

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 Cr.P.C. praying inter alia for grant of leave to assail the

judgment dated 20.10.2010 passed by the learned ASJ in SC

No.67/2001, arising out of case FIR No.222/2000 lodged by the father

of the deceased prosecutrix under Sections 306/363/366/376 IPC with

PS Alipur, Delhi and case FIR No.221/2000 under Sections 309/306

IPC with PS Nabi Karim, Delhi on information received from the

accused respondent.

2. The brief facts of the case as culled out from the impugned

judgment are that on 10.6.2000, a case of kidnapping was registered

at PS Alipur, Delhi at the instance of the complainant, Ashok Kumar,

(father of the prosecutrix) against the respondent herein on the

ground that he had lured his daughter, who had accompanied the

respondent from her house to her school for rechecking the class XII

paper and she had not returned till late in the night. The police had

tried to search for the prosecutrix but all efforts were fruitless till

23.7.2000. On 23.7.2000, a DD entry was registered at PS Alipur,

Delhi to the effect that after consuming some poisonous substance,

the respondent herein and the prosecutrix were brought to RML

Hospital from a hotel by the name of Lal Haveli at Nabi Karim by its

Manager (PW-3) and case FIR No.221/2000 was registered under

Section 309 IPC on the statement of the respondent and the

prosecutrix who breathed her last in the hospital in the wee hours on

23.7.2000.

3. On completion of the investigation, charge-sheet was filed

against the respondent under Sections 306/363/366/376 IPC and the

case was committed to the Sessions Court on 9.11.2000.

4. On 20.11.2007, charges were framed against the respondent

under Sections 363/366/417/306 IPC. The prosecution examined 36

witnesses in all, including PW-6 and PW-9, witnesses from the school

where the prosecutrix was studying, PW-12/father of the deceased

prosecutrix, PW-13/grandfather of the deceased prosecutrix, PW-

3/Manager of the hotel from where the prosecutrix and the respondent

were brought to the hospital, PW-15/the doctor who had attended to

the prosecutrix when she was admitted in the hospital, PW26/SI

Rajbir Singh and PW-30/SI Dayanand.

5. After examining the evidence produced by the prosecution and

taking into consideration the evidence placed on record the trial court

concluded that the prosecution had not been able to prove the offence

under Sections 363/366/417/306 IPC against the respondent and he

was acquitted.

6. Learned ASC for the State assails the impugned judgment on

the ground that the sessions court had failed to take into consideration

the fact that the deceased prosecutrix was a minor aged 17½ years on

the date of the incident and as per her school certificate, her date of

birth was 15.12.1982. He seeks to substantiate the aforesaid

submission by referring to the school records produced by PW-9/the

accountant of the school. He states that the trial court had failed to

take into consideration the testimonies of PW-12 and PW-13, father

and grandfather respectively of the deceased prosecutrix, who had

stated that the deceased had made a dying declaration to them in the

hospital, wherein she had clearly stated that she was harassed by the

respondent, who had raped her and forced her to marry him.

7. Lastly, learned counsel draws the attention of this Court to the

deposition of PW-15/the doctor who was attending to the prosecutrix,

to state that when PW-15 had examined the prosecutrix in RML

Hospital at 12.30 AM in the night, she was in a semi-conscious state

and she had told him that she had taken a tablet of some poison. He

submits that if the prosecutrix was conscious enough to make such a

statement to the doctor, then the testimonies of her father and

grandfather that she had made a dying declaration ought not to have

been discounted by the trial court. Based on the aforesaid submission,

learned counsel seeks leave to file an appeal against the impugned

judgment.

8. The Court has considered the submissions made by learned ASC

for the petitioner/State and has examined the impugned judgment in

the light of the arguments addressed by him. A perusal of the

impugned judgment reveals that the date of birth of the prosecutrix,

i.e., 15.12.1982 as recorded in the school certificate and in the

Withdrawal/Admission Register produced by PW-9, was not supported

by her birth certificate as the said witness had volunteered that the

same was unavailable in their records. In fact, PW-9 had stated that

the prosecutrix was admitted in the school in class XI on the basis of

the mark sheet and certificate issued by the CBSE.

9. The trial court had rightly observed that the certificate of birth

of the deceased, issued by the MCD, could have been very well

collected or obtained by the prosecution which would have established

her correct age, but the same was not done. In such circumstances,

in the opinion of this Court, there is no error in the findings returned

by the trial court that the prosecution had not been able to prove that

the age of the prosecutrix was 17½ years at the time of the incident

or that her date of birth was 15.12.1982 as alleged.

10. Further, the trial court held that the prosecution had not been

able to establish that the respondent had enticed the prosecutrix

without her consent for the reason that the girl's father (PW-12), at

whose instance FIR No.222/2000 was got registered, had himself

informed the police that his daughter had accompanied the respondent

to her school to recheck her class XII paper. Thus, the offence under

Section 363 IPC was not established against the respondent.

11. As regards the offence under Section 366 and 417 IPC, the

sessions court had relied on the deposition of PW-3, i.e., Manager of

the hotel where the prosecutrix and the respondent had stayed. PW-3

had stated in his testimony that the prosecutrix had disclosed herself

to be the daughter of Ashok Kumar (PW-12) and he had denied that

she had told him that the respondent had kidnapped her on a false

promise to marry her. Based on the above testimony, it was held that

the offences under Section 366 and 417 IPC were also not proved

against the respondent.

12. Coming to the alleged dying declaration of the prosecutrix,

referred to by the learned ASC, a perusal of the impugned judgment

reveals that the trial court had referred to the deposition of S.I.

Dayanand PW-30 that stood corroborated by the deposition of S.I.

Rajbir PW-26, which made it apparent that the prosecutrix was unfit

for recording her statement at 1.30 AM on 23.7.2000. It was

observed that according to the attending doctor PW-15, he had

examined the prosecutrix at 12.30 AM in the night and at that time,

she was in a semi-conscious state and she had told him that she had

consumed a tablet of some poison and felt restless and nauseous

thereafter. He had deposed that he had examined the prosecutrix and

she had expired at about 4.30 AM on 23.7.2000.

13. The submission of the learned ASC for the petitioner/State that

the trial court had erred in failing to lay any credence on the

deposition of PW-12 and PW-13 despite there being sufficient evidence

on record to point out that the deceased had made a dying

declaration, is not borne out from a perusal of the impugned

judgment, which reveals that the doctor (PW-15), who is an

independent witness and had attended to the prosecutrix, had

specifically stated in his testimony that at 12.30 AM in the night, she

was found in a semi-conscious state.

14. When she was semi-conscious, had she wanted, the prosecutrix

could have very well informed the doctor that she had been raped by

the respondent or that he had made a false promise to marry her, but

she did not do so. The trial court cannot be faulted in discounting the

statements of PW-12 and PW-13 (father and grandfather of the

deceased) and observing that they had tried to improve their case so

as to make out a false case against the respondent.

15. Further, PW-19, the younger son of the Manager of the hotel

where the prosecutrix and the respondent had stayed, also did not

support the case of the prosecution. The trial court held that the

prosecutrix had not disclosed anything to PW-19 to the effect that she

had married the respondent against the wishes of her family or she

had consumed poison at the instance of the respondent. In the given

facts, it was observed that there was a clear contradiction between the

deposition of PW-19 on the one hand and PW-12 and PW-13 on the

other hand, and it was highly unbelievable that the prosecutrix was

fully conscious and she had disclosed different facts to different

persons in the same duration.

16. Even PW-26/SI Rajbir Singh had deposed that when he had

reached the hospital at midnight, he found that the prosecutrix was

unfit to make any statement and therefore, he had not recorded any

statement in the duration of his stay in the hospital till 4.30 AM on

23.7.2000 and the family members of the parties had not arrived

there till 2:00 AM. In his cross-examination, PW-26 had categorically

stated that the prosecutrix had not given any statement as she was

not fit to do so and PW-12 and PW-13 had also not given any

statement to him. PW-30/SI Dayanand had also corroborated the

statement of PW-26. Similarly, the MLC of the prosecutrix also

revealed that she was unfit for recording her statement till 1.30 AM in

the night. On the contrary, PW-12 and PW-13 had deposed in their

testimonies that they had reached the hospital at 12.30 PM in the

night intervening 22/23.7.2000, which had not been supported by the

testimony of PW-26/SI Rajbir Singh, an independent witness.

17. The above sequence of events amply demonstrate that the

prosecutrix had remained unfit for recording her statement right upto

4.00 AM and she had expired at 4.30 AM on the same day. Thus, the

trial court had rightly observed that there was no opinion of any doctor

till about 2.00 AM in the night or till the death of the prosecutrix at

4.30 AM, that she was in a fit or conscious state for making any

statement. Therefore, the claim of the prosecution that the

prosecutrix had made a dying declaration in the presence of PW-12

and PW-13 was justifiably turned down as being implausible.

18. The deposition of PW-3, the Manager of the hotel where the

respondent stayed along with the prosecutrix reveals that he had also

not supported the case of the prosecution or the allegations that the

prosecutrix had told him that the respondent had purchased sulphas

tablet from Gorakphpur and he had pressurized her not to leave his

company or that the respondent had compelled her to consume

tablet. In the above facts and circumstances, the trial court was

justified in observing that the prosecution had not been able to prove

the offence against the respondent under Section 306 IPC and

concluded that the respondent had not abetted the prosecutrix to

consume the sulphas tablets to commit suicide.

19. Records reveal that the trial court had adversely commented on

the deposition of PW-12 and held that he had improved upon the case

of the prosecution so as to implicate the respondent and therefore,

his deposition was held to be unreliable, apart from being in

contradiction to the MLC of the prosecutrix and the deposition of the

two independent witnesses, PW-26/SI Rajbir Singh and PW-30/SI

Dayanand.

20. In the given facts and circumstances of the present case where

the trial court has carefully examined the entire evidence, both ocular

and medical, brought before it and arrived at a conclusion that the

prosecution has not been able to make out a case against the

respondent under Sections 306/363/366/376 IPC, this Court has not

noticed any legal infirmity, mis-appreciation/non-appreciation of the

evidence or perversity in the findings returned in the impugned

judgment that can entitle the petitioner/State to seek leave to assail

the same by preferring an appeal. Rather, this Court is of the opinion

that the trial court has taken into consideration all the relevant facts

and duly considered the evidence in the right perspective to arrive at

the only conclusion that is possible which is that the prosecution has

failed to make out a case against the respondent and consequently he

had to be acquitted.

21. Leave is therefore declined and the present petition is dismissed.

HIMA KOHLI, J AUGUST 23, 2013 sk/mg