Delhi High Court
Santosh Kumar vs State on 19 November, 2018
$~R-2
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on :- 19th November, 2018
+ CRL.A. 28/2018
SANTOSH KUMAR ..... Appellant
Through: Mr. Saurabh Kansal, Advocate
with Mr. Pallavi Sharma
Kansal, & Mr. Deepak Pandey,
Advocates / DHCLSC
versus
STATE ..... Respondent
Through: Mr. Kewal Singh Ahuja, APP
for the State
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. Appellant Santosh Kumar stood trial in Sessions Case
(No.58634/2016) in the court of Special Judge (POCSO Act) on the
basis of report under Section 173 of the Code of Criminal Procedure,
1973 (Cr.P.C.) submitted upon conclusion of investigation into first
information report (FIR) No.803/2015 of Police Station Alipur and,
by judgment dated 30.10.2017, he was held guilty and convicted on
the charge for offences punishable under Section 376(2)(i) of Indian
Penal Code, 1860 (IPC) and Section 6 of the Protection of Children
from Sexual Offences Act, 2012 (POCSO Act). By order dated
31.10.2017, the trial court has awarded rigorous imprisonment for
fourteen years for the offence punishable under Section 376(2)(i) IPC,
no separate punishment having been awarded under Section 6 of the
POCSO Act.
2. The appeal at hand challenges the abovesaid judgment and
order on sentence, the plea of the appellant being that he was falsely
implicated on mere suspicion and that the act of penetrative sexual
assault against the prosecutrix - a child stated to be aged about ten
years - has not been brought home.
3. During the course of hearing at the appeal, reference was made
to the MLC (Ex.PW-2/A) which was prepared in the casualty of
Satyawadi Raja Harish Chandra Hospital, (SRHC) Hospital, Narela,
Delhi-110040 at 10:15 p.m. on 05.09.2015 in respect of the
prosecutrix. The said MLC (Ex.PW-2/A) purports to have been
prepared in the handwriting and under signatures of Dr. Pallavi of
Obst. & Gynae Ward of the said hospital. It was pointed out that aside
from the narration of the observations based on physical examination
of the prosecutrix, there are atleast three additions, one in the nature of
a statement of the mother of the prosecutrix recorded at 10:15 p.m.,
with endorsement by the father of the prosecutrix by his thumb
impression and another statement of the same persons, i.e., parents of
the prosecutrix, recorded at 10:30 p.m., they having first refused to
permit internal examination of the child and later having acceded to it,
the third addition (shown by penciled bracket in the record)
concerning observations of the examining medical officer regarding
internal examination, the crucial portion whereof refers to positive
indication of bleeding per vagina.
4. The trial court record would show that Dr. Pallavi, the
examining medical officer was not examined at the trial. It would also
show that no summons was ever served on the said examining medical
officer. Though summons addressed to her were issued on several
dates, but on each such summons liberty was given to the medical
superintendent of the hospital to depute some other doctor
("substituted doctor") in case she (Dr. Pallavi) had left the services of
the hospital. It appears that, pursuant to such liberty, the medical
superintendent of the concerned hospital deputed Dr. Shweta Jain
(PW-7), who appeared as witness for prosecution on 03.08.2016, she
only proving the handwriting and signatures of Dr. Pallavi on the
MLC (Ex.PW-2/A), the deposition sheet showing that opportunity for
cross-examination having been given to the accused. The
corresponding order sheet of 03.08.2016 reveals that the appellant was
produced from custody, presence of his counsel not having even been
ascertained or recorded.
5. This court agrees with the grievance of the appellant that the
above was not the appropriate manner of gathering evidence or
recording statement of such a crucial witness. No doubt, the
prosecution may rely on the evidence of an alternative witness if the
witness earlier cited has become unavailable or her presence cannot be
secured without unreasonable delay. But the suggestion for alternative
witness cannot come from the Court on assumption that the witness
may not be readily available, not the least without an attempt being
made to reach out to such witness.
6. Non-examination of the examining medical officer Dr. Pallavi
may lead to serious miscarriage of justice. The MLC, in case of this
nature, is crucial piece of evidence, particularly against the backdrop
of the fact that the forensic scrutiny of biological sample is statedly
not of any assistance either way in this case. The deposition of the
concerned medical officer is essential to just decision of the case and
in its absence there is likelihood of miscarriage of justice.
7. For the above reasons, the impugned judgment and order on
sentence are set aside. The case is remanded to the trial court for
further proceedings in accordance with law with direction that Dr.
Pallavi shall be summoned and examined as a witness, she being
tendered for cross-examination by the defence, for which purposes the
trial court shall ensure due availability of legal assistance to the
appellant at all stages hereafter. The case shall be taken to further
stages as per procedure prescribed in law, after the statement of Dr.
Pallavi has been recorded, including by recoding afresh the statement
of the appellant under Section 313 Cr.P.C. with renewed opportunity
afforded to him for leading evidence, if any, in defence.
8. The trial Court will render a fresh decision after completion of
the exercise as indicated above. Needless to add, the trial Judge will
not feel bound by the decision earlier taken or any observations made
in this order. Nothing referred to above will be treated as expression
of opinion on merits of the case.
9. Given the nature of the case and the period of incarceration
already undergone by the appellant, further proceedings in terms of
the remit order will have to be expeditious. The trial Judge will make
endeavor to render fresh decision within three months of the date of
first appearance now being fixed. The case will be taken up by the
concerned court on 19.12.2018.
10. A copy of this order shall be sent and served on the appellant
through the concerned Jail Superintendent.
11. The trial court record shall be returned forthwith along with
copy of this order for needful compliance.
12. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 19, 2018
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