The Division Bench of the Delhi High Court in the case of State vs Abuzar@Rahil consisting of Justices Mukta Gupta and Justice Anish Dayal held that in the absence of the complete cross-examination of the prosecutrix, her deposition cannot be read in evidence and used against the respondent.
Facts
This petition was filed seeking leave to appeal against the judgment passed by the learned Additional Sessions Judge (POCSO) South-East District, Saket Courts, acquitting the respondent for offences punishable u/s 376/506 IPC and u/s 6 of the POCSO Act. The respondent had established a physical relationship with the prosecutrix without her consent. He then promised to marry her, only to blackmail her later stating that he had made a video.
Procedural History
Though the prosecutrix was cross-examined by learned counsel for the respondent on two dates, she stopped appearing thereafter and thus her cross-examination could not be completed. In the absence of her complete cross-examination, the evidence of the prosecutrix as deposed in the examination-in-chief could not have been considered and thus the learned Trial Court acquitted the respondent.
Observations of the Court
Relying on Ripen Kumar Vs. Department of Customs, the Bench reiterated that if the witness does not subject itself for complete cross-examination, the testimony of the said witness cannot be considered. So, the finding of the learned Trial Court on this count could not be faulted.
Regarding the second evidence of DNA analysis, it noted that the sample was drawn from the placental material which did not have the DNA profile of the male participant and thus the DNA profile of the male participant could not be isolated. So, it could not be proved that the respondent was the male contributing to the conception:
“Undoubtedly, to prove the offence of rape, only penetration is required to be proved which could have been proved from the testimony of the prosecutrix herself. However, in the absence of the complete cross-examination of the prosecutrix, her deposition cannot be read in evidence and used against the respondent.”
Judgment
Finding no ground to grant leave to appeal to the State, this petition was dismissed accordingly.
Citation: CRL.L.P. 97/2021
Bench: Justice Mukta Gupta, Justice Anish Dayal
Decided on: 10th November 2022
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