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State Of Nct Of Delhi vs Ashish Kumar on 3 October, 2018

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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

Crl.A. 477/2018 Page 1 of 15
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

Crl.A. 477/2018 Page 2 of 15
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

Crl.A. 477/2018 Page 3 of 15
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,

Crl.A. 477/2018 Page 4 of 15
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

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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.

Crl.A. 477/2018 Page 6 of 15

(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

Crl.A. 477/2018 Page 7 of 15
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;

Crl.A. 477/2018 Page 8 of 15

“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

Crl.A. 477/2018 Page 9 of 15
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

Crl.A. 477/2018 Page 10 of 15
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

Crl.A. 477/2018 Page 11 of 15
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

Crl.A. 477/2018 Page 12 of 15
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

Crl.A. 477/2018 Page 13 of 15
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

Crl.A. 477/2018 Page 14 of 15
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

Crl.A. 477/2018 Page 15 of 15

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