Delhi High Court
Atiq Ansari vs State (Nct Of Delhi) on 16 April, 2018
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 16.04.2018
+ CRL.REV.P. 32/2018
ATIQ ANSARI ..... Petitioner
versus
STATE (NCT OF DELHI) ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. S.S. Haider, Advocate
For the Respondents : Mr. Mukesh Kumar, APP for the State.
SI Suman, PS Paharganj.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
16.04.2018
SANJEEV SACHDEVA, J. (ORAL)
CRL.REV.P. 32/2018 & Crl.M.A.599/2018 (stay)
1. The petitioner is aggrieved by order dated 01.12.2017, whereby, the
charge has been framed against the petitioner under Sections 328/376 IPC.
2. The allegations in the FIR are that the prosecutrix was known to the
accused-petitioner. It is contended that, on 16.07.2017, the prosecutrix met
the petitioner along with her friend and after having lunch the friend left.
Thereafter, the petitioner is alleged to have asked the prosecutrix to
accompany him to meet a lady client of his. They went to a hotel where the
prosecutrix did not find the lady client. On being inquired, it is alleged,
that she was informed by the petitioner that the client would be joining
them soon. Thereafter, it is alleged that she was given water to drink by the
petitioner from a bottle, on drinking which, she became in a semiconscious
state wherein she could see but her body was not responding. It is
contended that she was thereafter sexually assaulted.
3. Learned counsel for the petitioner submits that there is no material to
substantiate the subject allegations. He submits that his client has been
falsely implicated. However, in the subject petition, he is restricting his
challenge to the framing of charge under Section 328 IPC.
4. Learned APP for the State submits that the offence under Section
328 was not prima facie made out, accordingly, chargesheet was also filed
under Section 376 IPC. However, the Court, after examining the record,
framed charges under Section 376/328 IPC.
5. Learned APP for the State points out that as per the medical
examination of the petitioner, no traces of any stupefying drug was found in
the blood stream of the complainant, who had been immediately medically
examined. Learned APP for the State also points out that the water bottle
from which water was given to the complainant had been seized and sent
for forensic examination.
6. At the time when charges were framed, the forensic report was not
available. It has been received subsequently. Copy of the examination
report dated 27.03.2018 has been produced in Court. The same is taken on
record.
7. The result of the examination report is as under:-
"11. RESULTS OF EXAMINATION REPORT
On Chemical, Microscopic, TLC & GC-HS examination,
metallic poisons, ethyl and methyl alcohol, cyanide,
phosphide, alkaloids, barbiturates, tranquilizers and
pesticides could not be detected in exhibit '4'.
8. Perusal of the medical record shows that no traces of any stupefying
substance was found in the blood stream of the prosecutrix, even the
Forensic Science Laboratory Report dated 27.03.2018 shows that metallic
poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids,
barbiturates, tranquilizers and pesticides could not be detected in the
water. There is thus no evidence to substantiate the commission of offence
under Section 328 IPC.
9. Accordingly, the petition is allowed. The Order-on-Charge is
modified. The petitioner is discharged of the offence under Section 328
IPC.
10. It is clarified that this order will have no bearing on the charge under
Section 376 IPC.
11. The petitioner is further aggrieved by the directions passed by the
Trial Court on the application, filed by the petitioner, under Section 91
Cr.P.C. It is contended by the learned counsel for the petitioner that along
with the said application the petitioner had filed before the Trial Court
transcripts of the conversation as well as SMSs, which were exchanged
between the prosecutrix as well as the petitioner.
12. The Trial Court, while disposing of the said application, had only
directed seizure of the call detail record and did not direct preservation of
the electronic evidence qua the SMSs as well as the conversation
exchanged between the petitioner and the prosecutrix.
13. In my view, if there is any electronic evidence qua conversation and
SMSs exchanged between the petitioner and the prosecutrix, and has any
bearing on the facts of the case, the Trial Court should direct preservation
of such evidence, so that the same may be available at the appropriate stage.
14. In view of above, the order dated 01.12.2017, insofar as it disposes
of the application under Section 91 Cr.P.C., filed by the petitioner is
concerned, is set aside. The Trial Court is directed to examine the relevance
of the said electronic evidence and pass appropriate orders with regard to
the preservation of the electronic evidence, if so warranted.
15. Order Dasti under the signatures of the Court Master.
SANJEEV SACHDEVA, J
APRIL 16, 2018/st
