State vs Nashrulla @ Najrulla @ Babbia
2015 Latest Caselaw 3955 Del

$-28
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        DECIDED ON : 18th MAY, 2015

+                          CRL.A.No.293/2015

       STATE                                         ..... Appellant

                           Through :    Mr.Navin K.Jha, APP.

                           versus

       NASHRULLA @ NAJRULLA @ BABBIA ..... Respondent

                           Through :    Mr.Jivesh Tiwari, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Oral)

1. State has preferred the instant appeal to challenge the legality

and correctness of a judgment of learned Addl. Sessions Judge, Dwarka

Courts, New Delhi in Sessions Case No.28/10 arising out of FIR No.

280/09 under Section 376 IPC registered at Police Station Palam Village

by which the respondent - Nashrulla @ Najrulla @ Babbia was acquitted

of the charge. It is contested by the respondent.

2. I have heard the learned counsel for the parties and have

examined the file. Allegations against the respondent were that on

25.08.2009 before 10.45 p.m., the prosecutrix 'X' (assumed name) aged

around 5 / 6 years was sexually assaulted. On that day, at about 10.45

p.m., one Anand Singh passing from Red Light of Sector 2, 6 and 5,

Dwarka on motorcycle found 'X' wearing only underwear and carrying a

T-shirt in her hands near bushes. She had blood stains on her body parts

and was crying. Anand Singh informed the police and FIR No.280/09

came into existence. 'X' was taken for medical examination. Her family

members were informed. The assailant could not be identified / arrested.

3. On 10.10.2009, the respondent was arrested in case FIR

No.284/09 PS Binda Pur and pursuant to disclosure statement recorded by

him, the Investigating Officer arrested him in this case and took him on

police remand. He allegedly recovered a black colour shirt worn by him at

the time of incident. During investigation, he was identified by 'X' in

judicial Test Identification Proceedings. Statements of witnesses

conversant with the facts were recorded. After completion of

investigation, a charge-sheet was filed against the respondent. The

prosecution examined 21 witnesses to establish his involvement in the

crime. In 313 statement, the respondent denied his involvement in the

crime and pleaded false implication. The trial resulted in his acquittal as

mentioned previously. Being aggrieved and dissatisfied, the State has

come in appeal.

4. The incident was not witnessed by anyone as the occurrence

had taken place behind bushes. None of the passersby heard 'X's cry to

attract his or her attention. The perpetrator of the crime succeeded to flee

the spot and was not seen by anyone at the spot and escaping the spot.

Most crucial witness in the occurrence was 'X' aged about 5 / 6 years.

However, she was unable to give her statement during trial because of her

tender age. She could not record her statement under Section 164 Cr.P.C.

for that reasons. Though she identified the respondent in TIP Proceedings

during investigation but was unable to identify him in her Court statement.

The Trial Court has discussed this aspect in detail and was of the opinion

that identification during investigation was inconsequential particularly

when the accused had alleged that he was shown before her participation

in TIP Proceedings. Mere identification in TIP Proceedings is immaterial

particularly when substantive evidence regarding his identification has not

been spoken to in the Court by any witness. 'X' did not raise an accusing

finger against the accused for sexually assaulting her. The prosecution did

not collect cogent circumstantial evidence to connect the respondent with

crime. The prosecution was unable to find out the assailant for long two

months. Respondent's involvement emerged only when allegedly

disclosure statement was made by him in case FIR No.284/09. No

evidence was collected to establish the respondent's presence at the spot

at the relevant time. It is also not clear as to when and under what

circumstances, the respondent had met 'X'. The examination report at

FSL of various exhibits did not establish the respondent's involvement

with certainty.

5. Since there is no worthwhile, direct, circumstantial or

scientific evidence on record, findings of the Trial Court recording

acquittal cannot be faulted.

6. The appeal lacks merit and is dismissed. Trial Court record

(if any) be sent back forthwith with the copy of the order. A copy of the

order be sent to the Superintendent Jail for intimation.

(S.P.GARG) JUDGE MAY 18, 2015 / tr