State vs Wasim & Ors on 18 July, 2017

$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 18th July, 2017
+ CRL.L.P. 391/2017
STATE ….. Appellant
Through : Ms.Radhika Kolluru, APP
versus
WASIM ORS ….. Respondent
Through : Nemo

CORAM:
HON’BLE MR. JUSTICE G.S.SISTANI
HON’BLE MR. JUSTICE CHANDER SHEKHAR

G.S.SISTANI, J. (ORAL)

Crl.M.A. 11225/2017 (delay)

1. Although no grounds are made for condonation of delay in filing the
present leave to appeal, but since we have heard the leave to appeal on
merit, the delay of 101 days in filing the present leave to appeal is
condoned.

2. The application stands disposed of.

CRL.L.P. 391/2017

3. The present leave to appeal has been filed by the State under Section
378(1) of the Code of Criminal Procedure, 1973 („
Cr.P.C.‟) against
the order of acquittal dated 29.11.2016 passed by the Additional
Sessions Judge, Shahdara District, Karkardooma Courts in SC
317/2016 (old SC 173/2014).

4. Tersely put, the case of the prosecution is that on 17.08.2014 at 11:30
AM at Welcome Police Station, one Islam along with his
daughter/prosecutrix aged about 17 years came to the police station
and informed the Duty Officer that he had previously got recorded DD
Crl.L.P. 391/2017 Page 1 of 6
70-B dated 13.08.2014 with regard to the missing of his
daughter/prosecutrix who has now been found. The prosecutrix was
then produced before W/SI Gunjan Singh, to whom the prosecutrix
narrated the wrong act suffered by her. Prosecutrix informed that on
03.08.2014, she had come to stay with her uncle Taju Mohd. at F-261,
Gali No.3, near Maharaj Masjid, Janta Mazdoor Colony, Delhi and on
13.08.2014 at 12:30 night when she came downstairs to the bathroom,
someone knocked at the door calling the name of her uncle. When she
opened the door, four boys entered into the house and two of them had
covered their faces with clothes and she identified two others as the
accused no.1 and 2/respondents no. 1 and 2 herein. The respondents
no.1 and 2 were previously known to the prosecutrix as they used to
tease her on her way to school at Meerut and for this reason, her
parents had sent her to Delhi. Thereafter, the four boys pressed her
mouth and forcibly put her into a vehicle and took her to Meerut and
on the way back, respondents no.1 and 2 forcibly made physical
relations with her repeatedly. They then took her to village
Kalchheena, Ghaziabad where respondent no.2 got a suit from her
sister for the prosecutrix and she changed in the clothes in a room
there. Later, in the same big vehicle, probably Innova or Scorpio, they
took her to Nizamuddin Railway Station, where respondents no.1 and
2 made her sit in a train. Respondent no.1 gave her tea and after
drinking it, she became unconscious and when she regained senses,
she found herself in Surat. There, they took her in a room and when
they were talking outside, she heard them saying to someone that
“maal aa gaya hai, paise lekar aa jao” (the goods have arrived, come
with the money), at which she raised alarm, public gathered there and
respondents no.1 and 2 ran away. Amongst the crowd, was her mama

READ  Sukdeb Halder-vs-State Of West Bengal on 19 June, 2002

Crl.L.P. 391/2017 Page 2 of 6
(maternal uncle), who identified her and brought her to the police
station.

5. On the basis of the complaint and the medical examination, FIR No.
465/2014 under Sections 363/328/376-D/34 of the Indian Penal Code,
1860 and
Section 4 of the Protection of Children from Sexual
Offences Act, 2012 („POCSO Act‟) was registered. The statement of
the prosecutrix under
Section 164 Cr.P.C. was recorded and since
nothing incriminating was stated by the prosecutrix against the
respondent no.3, the charge sheet was filed arresting the
accused/respondent Shahnawaz. Charges were framed by the Trial
Court against the respondent no.1 and 2 for the offences under
Section
363/
376-D/328/366-A/34 IPC and Section 6 POCSO Act. All the
respondents pleaded not guilty and claimed trial.

6. To bring home the guilt of the respondents, the prosecution cited total
28 witnesses and examined 9 witnesses. Of the prosecution witnesses
PW-1 to PW-7 were public witnesses, including the prosecutrix (PW-

1). All these witnesses turned hostile and even the prosecutrix (PW-1)
turned hostile when she was re-called for further cross-examination on
28.11.2016. Accordingly, the Trial Court finding all the public
witnesses being hostile held that no purpose would be served in
examining the remaining police and official witnesses. The Trial
Court further held that all the public witnesses have not deposed even
a single word against the prosecutrix and acquitted all the
accused/respondents herein, which has led to the filing of the present
leave to appeal.

7. Ms.Kolluru submitted that the judgment of the Trial Court is bad in
law as the Trial Court has failed to properly appreciate the evidence
on record and is based on conjectures and surmises and hence, cannot

Crl.L.P. 391/2017 Page 3 of 6
stand the scrutiny of law. It is submitted that the Trial Court has come
to a finding of acquittal on the basis of imagined doubts and de hors
the evidence which surfaced during trial. Learned counsel for the
State submitted that the prosecutrix (PW-1) had fully supported the
case of the prosecution at the time of her examination-in-chief on
11.01.2016 and it was only when an application under
Section 311
Cr.P.C. was moved by the respondents after a gap of 10 months that
she in a volte-face denied the whole case of the prosecution. It is clear
that the prosecutrix was won over by the defence and was deposing on
28.11.2016 under their influence, threats or pressure. Thus,
Ms.Kolluru prays that the impugned judgment be set-aside and the
respondents be convicted of the offence charged with.

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8. We have heard the learned counsel for the State and carefully
examined the impugned judgment of the Trial Court.

9. This is a case where all the public witnesses have turned hostile and
have not supported the case of the prosecution. The prime thrust of
the case of the prosecution was based upon the prosecutrix (PW-1),
Imran (PW-2) (brother of prosecutrix), Mohd. Islam (PW-3) (father of
the prosecutrix), Hashmin (PW-4) (aunt of prosecutrix), Ashar Mohd.
(PW-5) (uncle of the prosecutrix), Naseem (PW-6) (relative of PW-3),
and Taj Mohd. (PW-7) (uncle of the prosecutrix).

10. All the relatives of the prosecutrix, i.e. PW-2 to PW-7, turned
completely hostile and did not depose even a single word against the
accused/respondents. All of them were thoroughly cross-examined by
the Addl. PP for the State before the Trial Court, but in vain. Nothing
came in their testimony or the cross-examination by the Addl. PP. As
regards, the prosecutrix (PW-1), though she initially supported the
case of the prosecution, but when she was called for further cross-

Crl.L.P. 391/2017 Page 4 of 6

examination, she completely exonerated the accused/respondents. In
her cross-examination, she stated that her age is of 20 years age and
categorically admitted the suggestions put to her as under:

“I am married today and living in my matrimonial house. It is
correct that complaint Ex.PW1/A had been given in Police
Station at the instance of my relatives and police officials and
the contents of the same had not been mentioned voluntarily by
me. It is correct that statement recorded u/s 164 Cr.PC before
ld. MM on dated [sic] 20.08.2014 was given by me at the
instance of my relatives and police officials of PS Welcome
and the said statement had not been given by me voluntarily. It
is correct that statement given by me before this court earlier
on 11.01.2016 was also given at the instance and tutoring of
police officials and my relatives and the said statement was
also not given voluntarily by me. It is correct that I have no
complaint or grievances against the accused persons present
in case today as they had not committed any offence with me
and therefore, I do not want them to be punished. It is correct
that I am giving the statement today voluntarily and free from
any pressure and the statement [sic: statements] given by me
earlier were under pressure of police and my relatives.”

(Emphasis Supplied)

11. In view of the aforegoing deposition and the categorical denial of the
incident by other public witnesses, we are of the view that there is no
infirmity in the impugned judgment of the Trial Court. We may
notice the judgment of the Apex Court in
Prahlad Singh v. State of
M.P., (1997) 8 SCC 515, wherein the prosecutrix had admitted that
she had been told to identify the accused/appellant therein by her
father and the police officials. In this background, the Supreme Court
found the order of conviction of the High Court to be based on
“surmises and conjectures without having an iota of acceptable
evidence bringing complicity of the accused” and accordingly
acquitted the accused.

Crl.L.P. 391/2017 Page 5 of 6

12. Accordingly, when the prosecutrix herself has given completely
contradictory statements and exonerated the respondents/accused in
her cross-examination, no conviction could be sustained on her
testimony. No support can be drawn from the testimony of other
public witnesses and as noticed by the Trial Court in paragraph 11 by
the medical evidence.

13. Even otherwise, it is settled law that the appellant court may only
interfere in an appeal against acquittal when there are substantial and
compelling reasons to do so [
See Sheo Swarup v. King-Emperor,
AIR 1934 PC 227 (2);
M.G. Agarwal v. State of Maharashtra, AIR
1963 SC 200 (paragraph 16 and 17);
Tota Singh and Anr. v. State of
Punjab, AIR 1987 SC 108: (1987) 2 SCC 529 (paragraph 6);
State of
Rajasthan v. Raja Ram, (2003) 8 SCC 180 (paragraph 7);
Chandrappa v. State of Karnataka, (2007) 4 SCC 415 (paragraph

42); Ghurey Lal v. State of U.P., (2008) 10 SCC 450 (paragraph 73);
and
Muralidhar @ Gidda v. State of Karnataka, (2014) 5 SCC 730
(paragraph 12)].

14. Accordingly, we find no ground to interfere in the judgment of the
Trial Court. The personal bonds and the sureties under
Section 437-A
Cr.P.C. are discharged.

15. The leave to appeal is dismissed.

G. S. SISTANI, J.

CHANDER SHEKHAR, J.

JULY 18, 2017 //
Crl.L.P. 391/2017 Page 6 of 6

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