Delhi High Court
State Govt. Of Nct Of Delhi vs Deepak Bhatiya on 7 March, 2018
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 7th MARCH, 2018
+ CRL.L.P. 35/2011
STATE GOVT. OF NCT OF DELHI ..... Petitioner
Through : Mr.Ravi Nayak, APP with SI Jagdish.
versus
DEEPAK BHATIYA ..... Respondent
Through : None.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (Oral)
CRL.M.A.No. 794/2011 (Delay)
1. For the reasons mentioned in the application for
condonation of delay in filing the leave petition, the delay is
condoned.
2. The application for condonation of delay is disposed of.
CRL.L.P. 35/2011
1. The State has filed leave petition to challenge the legality
and correctness of a judgment dated 29.04.2010 of learned Addl.
Sessions Judge in Sessions Case No.60/2009 arising out of FIR
No.216/2009 registered under Sections 363/376/342/506 IPC at PS
Bindapur whereby the respondent Deepak Bhatiya was acquitted of
the charge.
2. Notice of the leave petition was issued to the respondent.
However, despite several attempts he could not be served.
3. I have heard the learned Addl. Public Prosecutor on
merits and have examined the file. Learned APP urged that the
learned Trial Court did not appreciate the evidence in its true
perspective and recorded acquittal without cogent reasons.
4. On scrutinising the impugned judgment, this court finds
no illegality or material irregularity. Number of discrepancies,
inconsistencies and contradictions were noted by the learned Trial
Court to give benefit of doubt to the respondent. The prosecutrix was
aged around 15 ½ years. As per ossification test, her age was
determined to be more than 15 years but less than 16 years. The Trial
Court committed no error to come to the conclusion that the age of the
prosecutrix could be considered more than 18 years taking into
consideration margin of two years. It was further noted that in the
cross-examination the doctor who had conducted ossification test vide
Ex.PW-6/A admitted that on the basis of dental X-ray, age of the
prosecutrix was not determined. The prosecution for the reasons best
known to it did not collect any school record of the victim though
admittedly she studied in a school. Adverse inference is to be drawn
against the prosecution for withholding the best evidence.
5. The statement of the victim's father was not believed as
he had given inconsistent version. It was observed that the prosecutrix
had left home having annoyance with her mother. PW-1 - victim's
father had given conflicting statement and informed the police that the
prosecutrix had left without any intimation. Non-examination of
material witnesses was taken as lapse on the part of the prosecution.
No plausible explanation was offered as to why the material
prosecution witnesses i.e. respondent's wife who had allegedly taken
the prosecutrix to her home from Golden Temple, Amritsar and Sunil
@ Sonu, one of the suspects, were not examined during investigation
and not cited as witnesses. Recovery of the prosecutrix at the house of
the respondent is suspect. The prosecutrix remained in the
respondent's house for around 20 days. At no stage she raised alarm
for alleged forcible rape by the respondent. It has come on record that
the respondent occupied one room accommodation and lived there
along with his wife and son. The prosecutrix though had liberty to use
mobile and have conversation with several individuals during her stay
at the respondent's house did not contact her parents to inform her
whereabouts. During this period, she had travelled at different places
and had made telephone calls. The victim's father had travelled along
with the police at several places on the basis of the calls made by her
to find her out but she could not be traced. At the time of her
recovery, she did not exhibit any abnormal conduct. No fresh injuries
were found on her body at the time of her medical examination. She
did not disclose the examining doctor as to who was the perpetrator of
the crime. Apparently, the prosecutrix has not presented true facts. It
was not elaborated as to how she had travelled alone from Delhi to
Amritsar for stay at Golden Temple. The Trial Court rightly noted that
the prosecutrix was not expected to leave the Golden Temple
accommodation of her own and to accompany the respondent's wife, a
stranger to her house on her asking. The statement of the prosecutrix
remained uncorroborated. The prosecutrix did not give details as to
how and when she was defiled by the respondent. The prosecution
was unable to prove its case by clinching evidence. Physical
relationship, if any, seemingly was with consent.
6. This Court finds no sufficient and compelling reasons to
grant leave to the State to file appeal against the impugned judgment
which is based upon fair appreciation of evidence.
7. The leave petition is dismissed.
8. Trial Court record be sent back forthwith with the copy of
the order.
(S.P.GARG)
JUDGE
MARCH 07, 2018 / tr
