State Of Nct Of Delhi vs Ashish Kumar
2018 Latest Caselaw 5971 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                               Date of Decision: 03.10.2018

%       CRL.A. 477/2018

        STATE OF NCT OF DELHI                              ..... Appellant

                           Through:    Mr. Avi Singh, ASC

                           versus

        ASHISH KUMAR                                       ..... Respondent

                           Through:    Mr. B. Badrinath, Adv (DHCLSC)
                                       a/w respondent in person.

        CORAM:
        HON'BLE MR. JUSTICE VIPIN SANGHI
        HON'BLE MR. JUSTICE I.S. MEHTA

VIPIN SANGHI, J. (ORAL)

1. The present appeal has been preferred by the State upon grant of leave to assail the judgment dated 30.09.2016 passed by the Ld. ASJ- 01(West) Tiz Hazari Courts: Delhi in Sessions Case No. 56/2012 (Old No.), 56241/2016 (New No.), arising out of FIR No. 217/2012, under Sections 363/376/511 IPC, registered at PS Uttam Nagar. By the impugned judgment the respondent accused stands acquitted of the charge framed against him under Sections 363/376/511 IPC.

2. The prosecutrix was a child who was barely 3 years old on the date of the incident. The date of the incident is 15.05.2012, and the date of birth of

the prosecutrix was established on record to be 14.12.2008. The FIR in the present case came to be registered on the statement of the mother of the prosecutrix, who was examined as PW3. She alleged that she lived at her given address with her 3 children - including the prosecutrix, who was her younger daughter. The accused resided in a rented accommodation in the neighborhood of the complainant and the family of the complainant and the family of the accused were on visiting terms. On 15.12.212 at 06.30 P.M she had gone to take some household articles from a shop in the neighborhood, and after 10 minutes at 06.40P.M when she returned, she did not find her daughter "J"- the prosecutrix, and she was missing. She started searching for the prosecutrix and while searching for her, she reached the house of the accused. The door of the room of the accused was found to be shut and when she opened the door of the room of the accused, she found the accused sitting on a cot; the prosecutrix was sitting in his lap; her underwear had been removed; the zip of the pant of the accused was open, and; the penis of the accused was protruding out of his pant. Soon upon the arrival of the complainant and upon seeing her, the accused closed the zip of his pant and started to make the prosecutrix wear her underwear. At this stage, the complainant shouted and raised a hue and cry and on hearing the cries, her husband and neighbours had also gathered. When the accused attempted to flee from the spot, the complainant caught held of him. She stated that number 100 was dialed by someone and her husband had handed over the accused to the police, whereafter the medical examination of the prosecutrix was done at DDU Hospital. No injury was found on the private parts of the prosecutrix and internal medical examination of the prosecutrix

was not consented to by the mother. She sought action against the accused since he had attempted to rape the prosecutrix.

3. The statement of the prosecutrix was not recorded either under Section 161 Cr.P.C., or under Section 164 Cr.P.C. She was not cited as a witness.

4. Ld. counsel for the respondent has contended that failure of the prosecution to examine the prosecutrix - a material witness, is fatal to the case of the prosecution. He has pointed out from the MLC of the prosecutrix Ex. PW6/A, that in the history as narrated by the complainant/ mother of the prosecutrix, she had stated that the story was narrated by baby girl. The submission of learned counsel for the respondent, therefore, is that the prosecutrix was in a position to narrate the incident and was, therefore, a competent witness. Mr. Badrinath places reliance on Illustration (g) to Section 114 of the Indian Evidence Act to submit that the presumption arises in favour of the accused. He has cited a decision of the Supreme Court, namely, Narain & Ors. V. State of Punjab, 1959 Supp (1) SCR 724 in this regard.

5. Pertinently, during the examination of the I.O.-PW16- ASI Sushma, she stated in her examination in chief that she did not record the statement of the prosecutrix as she was aged about 3 years at that time, and was not able to speak. Hence she was not cited as a witness. The cross examination of PW16 conducted on behalf of the accused shows that no challenge was raised to the said explanation furnished by the I.O. for not recording the statement of the prosecutrix and for not citing her as a witness. It was not

the defence of the accused that the prosecutrix had the capacity to make her statement.

6. In our view, the decision in Narain (supra) is of no avail to the respondent since that was a case relating to a competent witness. However, in the present case, firstly, the child/ prosecutrix was not a competent witness in as much, as, she was not able to speak- as deposed by PW16, and secondly, the mother- the complainant PW3 claims to be an eye witness to the occurrence. In our view, the statement of PW16 having not been challenged, the incompetence of the prosecutrix to be examined as a witness, therefore, is not open to be challenged by the accused at this stage.

7. So far as the recording made in the MLC Ex.PW6/A- relied upon by the respondent/ accused is concerned, the same is neither here nor there. Firstly, a child starts communicating- particularly with his/ her parent even before developing sufficient vocabulary to be able to speak in structured sentences. Secondly, in the present case, the mother PW3 claims to have herself witnessed the occurrence. In fact, a child that small is likely to be completely oblivious of the situation and may not absorb- as something unusual, the development of his/ her undergarment being pulled down, and of the other person opening his zip and putting out his penis. Reliance placed on Illustration (g) to Section 114 of the Indian Evidence Act is misplaced, since the prosecutrix was not a competent witness- on account of her age and her inability to speak.

8. Learned counsel for the respondent submits that there are embellishments in the statement of the complainant PW3 in as much, as,

there are discrepancies in her statement as recorded in the Rukka Ex. PW3/A, and in her testimony recorded before the Court. In her statement recorded under Section 161 Cr. P.C., PW3 stated that when she returned from the shop at about 06.40 P.M. and did not find the prosecutrix, she went looking for her daughter in the neighborhood to the residence of Ashish. She found that the door of the room of Ashish was shut. She opened the door and saw that Ashish was sitting on the cot with the prosecutrix in his lap with her underwear down. The zip of the pant of Ashish was open and his penis was protruding out. When he saw the complainant, he closed the zip of his pant and started putting on the underwear of the prosecutrix. At this stage, she shouted and upon her raising a hue and cry, her husband and the neighbours collected at the spot. The accused tried to run away from the spot and she caught held of him and then her husband came and caught held of the accused. Somebody called Number 100, whereafter the police arrived.

9. However, when PW3 deposed before the Court, she stated that when she came back from the shop and did not find her daughter i.e., the prosecutrix, she searched around and called her by name. Ashish was residing in the neighborhood in House No. 152 and during search for her daughter, she reached the house of the accused. She first saw from the Jaali Portion of the gate and found the accused sitting on the cot, and he had opened the zip of his pant and the prosecutrix was sitting in his lap and was wearing her undergarment. She shouted, and some neighbours of the lane collected. The accused opened the door of his room and was apprehended with the help of the neighbours while he was trying to run away. In the meantime, her husband- Vinod reached there. Somebody at that time called

on number 100. The accused was handed over to the police.

10. The submission of learned counsel for the respondent is that these variations constitute contradictions and shake the credibility of PW3. We cannot accept this submission. Minor embellishments are bound to creep in when statements of witnesses are recorded at different stages, namely during investigation and while recording the testimony in Court. This is on account of lapse in memory. A witness may record his or her statement more elaborately at one stage, and may be more precise at another stage. What has to be seen is whether the core of the testimony is intact, or not. The core of the testimony of PW3, in the present case, is;

                  (i)     That the complainant went to the shop to buy
                  something at 06.30P.M.
                  (ii)    She returned to her home at 06.40 P.M. and did not
                  find the prosecutrix.

(iii) She started looking for the prosecutrix in the neighborhood.

(iv) She arrived at the room of the accused.

(v) She saw the prosecutrix in the lap of the accused with her underwear pulled down and the zip of the accused open and his penis protruding.

(vi) She shouted and raised an alarm when people from the neighborhood gathered.

(vii) The accused tried to run away.

(viii) She caught hold of the accused.

(ix) Her husband thereafter arrived.

(x) Somebody called the police on Number 100.

(xi) The accused was handed over to the police.

11. Considering the fact that the accused was charged with a serious offence which could entail a sentence of imprisonment for 5 years or more, in our view, it was incumbent on the IO to carry out thorough and complete investigation so as to tie up all loose ends. It was necessary for the IO to have collected the corroborative evidence to fortify the statement of the complainant-PW-3.

12. Unfortunately, we find that the investigation undertaken in the present case has been rather shoddy. PW7 W/Ct. Ruchi Goswami deposed that on 15.05.2012, she was deputed on Channel No.114 in the Control Room. On that day at 06:53 P.M. she received a call from Number 9990604550 at Nawada Village, House No.152 Tude Wali Gali, Chupal ke Balmiki Wali Gali main "teen saal ki ladki ke sath ek ladke ne galat kaam karne ki koshish ki hai". She filled up the form and forwarded the same to the communication centre for further action The said PCR form was exhibited as PW7/A. Surprisingly, PW16 the IO did not investigate and question the caller of the said call.

13. Moreover, the I.O. PW16 did not record the statement of the shopkeeper whom PW-3 claims to have visited at 6:30 PM. In her statement, all that she stated was that the owner of the shop refused to disclose his name and address and stated that he had no personal knowledge of the incident. She stated that she did not record his statement and that she did not

take any action against him. She stated that the owner told her that the complainant had visited his shop, however, she did not record his statement even to this effect. We find this approach of the I.O. to be completely unacceptable. She failed to exercise her authority vested in her to undertake investigation. Such hands - off approach if countenanced, can lead to failure of all investigations.

14. Similarly, the IO stated in her cross-examination stated that she made inquiries from the persons present in the crowd, who refused to make any statement- stating that the complainant and the accused are neighbours. She did not issue any notice in writing, and did not take any action against them. The failure on the part of the IO to make any endeavor to collect evidence in the case- at the spot, is also demonstrated by the statement made by PW-11 SI Pushpender and PW-15 Constable Mansukh Singh, both of whom responded to the DD entry 36A Ex.PW11/A received at 07:04 pm. In our view the I.O. derilicted in the performance of her duty.

15. It is well settled in law that defective investigation should not lead to acquittal of the accused. The accused has been acquitted only on account of there not being corroborative evidence qua the statement of the complainant- PW-3. In Sunil Kumar v. State 2015 Law Suit (Del) 16, the learned Single Judge of this Court noticed the judgment of the Supreme Court in Hema v. State, 2013 10 SCC 192. The said decision, in turn, referred to several decisions, including the decision in C. Muniappan and Ors. V. State of Tamil Nadu, 2010 9 SCC 567, wherein the Supreme Court observed;

"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation." (emphasis supplied)

16. Considering the aforesaid circumstances, we put it to learned counsel for the respondent that we are inclined to exercise our jurisdiction under Section 391 Cr.P.C., since the failure on the part of the prosecution in leading the corroborative evidence, if not remedied, may result in failure of justice.

17. Learned counsel for the respondent has opposed the said proposal. Mr. B. Badrinath submits that to permit recording of additional evidence at

this stage, would be to the prejudice of the accused. He has argued that the present is a case of false implication. He submits that the defence of the accused was that just prior to Holi in that year, there was a quarrel between the two families, and the mother of the prosecutrix had then warned the family of the accused that she would teach them a lesson.

18. He also submits that apart from the accused, his brother and sister were also present at home and, thus, the possibility of such an incident taking place is ruled out.

19. We may observe that the complainant PW-3 denied existence of any such dispute between the two families. In fact, her positive statement was that the two families were on visiting terms, and that her children used to visit and play with the family of the accused. Pertinently, this statement was made by her during her cross-examination and it was not suggested to her that she was not truthful in this regard. The defence of the accused that there was a dispute between the two families militates against the statement of PW-3 that she was on visiting terms with the family of the accused, and that the accused, his sisters and brothers used to take her daughter to play with them. The cross examination of the prosecution witnesses shows that the accused did not dispute the presence of the prosecutrix at the house of the accused at the relevant point of time. So far as the aspect that the other siblings of the accused were present in the house is concerned, it has come in the evidence of DW-1, that the accused and his family members were residing in a two storey house with two rooms on the ground floor, and one room on the first floor. Thus, the possibility of the siblings of the accused

not being on the ground floor- when the incident took place, is not ruled out.

20. It has been argued on behalf of the state that DW1 was an interested witness being the sister of the accused. He further points out that the name of the father of the accused is Ashok Kumar and not Ravinder Dhaka as deposed by DW1, thus shaking our credibility.

21. At this stage, we are not delving into this aspect since we are not disposing of the present appeal.

22. Mr. B. Badrinath has sought reliance on Rajeshwar Prasad Misra, v. State of West Bengal and Anr.,(1966) 1 SCR 178, in support of the submission that the present is not a fit case for directing the recording of additional evidence at this stage. He places reliance on the following extract from the said decision;

"Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing, namely, to control discretion of the appellate court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example

it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise. Commentaries upon the Code are full of cases in which the powers under Section 428 were exercised. We were cited a fair number at the hearing. Some of the decisions suffer from the sin of generalization and some others from that of arguing from analogy. The facts in the cited cases are so different that it would be futile to embark upon their examination. We might have attempted this, if we could see some useful purpose but we see none. We would be right in assuming the existence of a discretionary power in the High Court and all that we consider necessary is to see whether the discretion was properly exercised."

23. In our view, the said decision does not advance the submission of Mr. Badrinath. On the contrary the Supreme Court recognized the fact that the legislature has refrained from controlling the discretion of the Appellate Court by laying down the circumstances in which additional evidence may be called for. The Supreme Court, in substance, has observed that necessity to record additional evidence arises not only when it would be impossible to pronounce the judgment, but also when there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal, or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused. As, for example, it should not be received as a disguise for a retrial, or to

change the nature of the case against the accused. The order must not ordinarily be made, if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise.

24. Mr. B. Badrinath submits that the order sheet shows that on 23.01.2014 the Public Prosecutor closed the evidence after availing of the opportunity granted to the State to lead evidence. He also submits that the conduct of further investigation, at this stage, and recording of evidence of other witnesses would deny the accused the opportunity of confronting them with their previous statements under Section 155 of the Evidence Act to impeach their credibility. He submits that the prosecution cannot be permitted to fill up the lacunas in its case by resort to recording additional evidence under Section 391 Cr. P.C.

25. We do not find merit in any of the aforesaid submissions made by Mr. B. Badrinath. In the present case, PW-3 claims to be an eye-witness to the incident. The statement of an eye-witness, if credible, is sufficient to convict the accused. In the present case, we have already noticed that apart from the minor embellishments, the statement of PW-3 recorded under Section 161 Cr.P.C. and the testimony recorded before the Court are consistent. At the same time, there is no denying the fact that there are minor embellishments. Considering the fact that there is no corroboration of the statement of PW3 brought on record - despite the corroborative evidence being available, we are of the view that the conviction of the accused on the existing evidence may not be justified. At the same time, in our view, the accused cannot take advantage of the faulty investigation and, considering the fact that - even at

this stage, it should be possible to collect and produce the corroborative evidence, in the interest of justice, and with a view to prevent failure of justice, we are of the considered view that the present is a fit case for directing additional evidence to be recorded on the basis of further investigation to be undertaken by the IO. No prejudice would be caused to the accused, since his rights to cross examine the witnesses that may be produced by the prosecution, and to challenge their credibility/ competence would be preserved.

26. This is not a case where the prosecution has deliberately failed to examine a witness named in the charge sheet. It is a case of incomplete investigation. Thus, reference to the order dated 23.01.2014 is meaningless. So far as the argument premised on Section 155 of the Indian Evidence Act is concerned, it is not the law that only a person whose earlier statement has been recorded during investigation, can be examined as a prosecution witness. If a previous statement of the witness exists, his former statement may be used to bring out the inconsistencies if any. However, if there is no former statement, so be it.

27. Accordingly, for the aforesaid reasons, we direct the Trial Court i.e., ASJ-1 Tis Hazari Court, Delhi to record additional evidence in the matter keeping in view the observations made hereinabove. The exercise should be completed within four months. The accused is directed to co-operate in the matter and not to take any undue advantage. Once the additional evidence is recorded, the report along with the additional evidence be sent to this Court. The Trial Court record be sent back forthwith to enable the recording of

additional evidence.

28. List the appeal for hearing on 19.02.2019.

29. The appeal shall not be treated as part-heard.

VIPIN SANGHI, J.

I.S. MEHTA, J.

OCTOBER 03, 2018 N.Khanna