State Nct Of Delhi vs Eliazer Kindo @ Anup on 24 May, 2017

$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of hearing and order: May 24th 2017

+ CRL.L.P. 322/2017
STATE NCT OF DELHI ….. Petitioner
Through: Mr. Kewal Singh Ahuja, Additional
Public Prosecutor for the State

versus

ELIAZER KINDO @ ANUP ….. Respondent
Through: None.
CORAM:
HON’BLE MR. JUSTICE P.S.TEJI
ORDER

%
P.S. TEJI, J. (ORAL)

Crl. M.A. No.8831/2017 (Exemption)
Exemption allowed subject to all just exceptions.
Application stands disposed of.

Crl. M.A. No.8830/2017 (Condonation of delay)

1) By this application filed under Section 5 of Limitation Act read
with Section 482 of Cr. P.C., the petitioner seeks condonation of delay
of 179 days in filing the accompanying petition for seeking leave to
appeal under Section 378(1) of Cr. P.C. against the order dated
19.08.2016 whereby the accused has been acquitted from the offence
under Section 365/370/376 of IPC.

2) Heard the submissions made on behalf of the State.

Crl. L.P. No. 322/2017 Page 1 of 5

3) In the application for condonation of delay, the ground taken is
that after the passing of impugned judgment, the matter was sent to the
various authorities and after passing through various channels the file
of the case alongwith opinion was sent to Department of Law, Justice
and Legal Affairs. The APP of the trial court gave opinion dated
31.08.2016 that the case was not fit for appeal, to which the Chief
Prosecutor (West) has also endorsed on 01.09.2016 followed by the
endorsement dated 05.09.2016 of the Directorate of Prosecution.
However, after examining the matter in detail, it was considered by
the office of the Hon’ble Lt. Governor to file an appeal in the matter.
Accordingly proforma for appeal was attached on 02.03.2017 and
forwarded to the Directorate of Prosecution and then to the office of
the Standing Counsel, Delhi high Court on 04.03.2017. certain
documents got translated and due to other personal difficulties of the
Public Prosecutor including medical treatment of family member in
the month of March, change in roster in the month of April the appeal
could not be drafted on time. The ground taken causing delay was that
there was procedural delay which was beyond the control of the State.

4) Apparently, there is delay of 179 days in filing the instant
appeal. The aforesaid submissions made by the learned APP for the
State is that the matter took time to take approval from various
authorities and due to change in opinion with regard to filing the
appeal against the impugned judgment by the authorities, which
caused the delay in filing the appeal.

5) While dealing with the application on behalf of the State for

Crl. L.P. No. 322/2017 Page 2 of 5
condonation of delay, this court deems it fit to scrutinise the impugned
judgment to find out the merit in the appeal preferred by the State.

6) On perusal of the impugned judgment dated 19.08.2016, this
court observes that the learned Additional Sessions Judge in para 6 of
the judgment recorded that the prosecutrix never made any complaint
regarding sexual assault caused by the accused to anybody at any
occasion and she made allegations of sexual assault in her statement
under Section 164 of Cr. P.C. before the Magistrate only. It has come
in the statement of PW-10 that PW-5 and new employer Ms. Bhatia
talked with each other and PW-5 also talked with prosecutrix and thus
the chances of being tutored of prosecutrix in connivance with PW-9
cannot be ruled out to make such statement before the Magistrate
against the accused. The learned Additional Session Judge further
recorded that here it is to be noted that PW-12 i.e. first Investigating
Officer in the present case has deposed that after recovery of the
prosecutrix the accused was relieved from PS on 27.12.2014 as by that
time no allegation of rape came on record. While recording further,
learned Additional Session Judge has observed in his judgment that if
that was the position, the version of prosecutrix that prosecutrix was
inquired and thereafter it came on record that rape was committed by
accused after abducting her becomes doubtful as even after this
inquiry in the evening at 7/8 PM on 27.12.2014, the accused was
allowed to go and was arrested only on the next day. It is further
observed in judgment that corroboration of testimony of the
prosecutrix as a condition for judicial reliance is not a requirement of

Crl. L.P. No. 322/2017 Page 3 of 5
law but a guidance of prudence under the given facts and
circumstances. Relying on the judgment of Supreme Court, in Rang
Bahadur Singh vs. State of U.P., 2000 II AD (SC) 103, the learned
Additional Session Judge quoted the relevant portion of the judgment
as “that the time tested rule is that acquittal of a guilty person should
be preferred to conviction of an innocent person. Unless the
prosecution establishes the guilt of the accused beyond reasonable
doubt a conviction cannot be based on the accused. A criminal court
cannot afford to deprive liberty of the appellants, life-long liberty,
without having at least a reasonable level of certainty that the
appellants were the real culprits.” Accordingly, the Respondent in the
present leave petition was acquitted from the offence with which he
was charged as it was held that the prosecution has failed to prove its
case under Section 366, 370 and 376 of IPC against the respondent
beyond reasonable doubt.

7) After going through the contents of the leave petition and the
impugned judgement, this court does not find any illegality or
infirmity in the judgment passed by learned Additional Sessions Judge
and finds no merit in the appeal.

8) Now coming to the application for condonation of delay, it has
been seen in various cases that the State does not prefer appeal within
the stipulated time and takes defence of tedious procedural delay in
obtaining approval. The State does not have the right to file the
appeals at belated stage seeking ground that of a procedural delay.
The State is expected to expedite the matter in case they want to prefer

Crl. L.P. No. 322/2017 Page 4 of 5
against the order/judgment of acquittal or conviction. In the
considered view of the Court, no proper explanation has been given by
the State which caused the delay in filing the instant appeal.

9) The legislature was wise enough while enacting Section 378
Cr.P.C. by giving six months time to the State to prefer an appeal
against the judgment of conviction or acquittal, as the case may be.
The procedural delay as claimed by the prosecution cannot be a
ground to condone the delay. The State is expected to file the appeal
well within the time prescribed in the statute. If any delay is caused,
the person responsible for the same is to be enquired and
departmental action is required to be taken against him. Only in
exceptional circumstances, the delay, if any, caused by the State in
filing the appeal is to be condoned, that too by explaining the delay of
each and every day supported by documentary evidence.

10) In view of the above mentioned facts and circumstances, this
Court is of the considered opinion that the prosecution has failed to
make out any ground for leave to file the appeal against the acquittal
of the accused/respondent and the same is dismissed being barred by
limitation.

11) Application is accordingly dismissed.

12) As a result, leave petition bearing Crl.L.P. No.322/2017 is also
dismissed being barred by limitation.

P.S.TEJI, J
MAY 24, 2017
pkb

Crl. L.P. No. 322/2017 Page 5 of 5

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