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State vs Hawan Pratap Singh @ Pappi & Anr on 26 September, 2019

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On : 13.08.2019
Judgment Pronounced On : 26.09.2019

CRL.A.659/2016

STATE …. Appellant

versus

HAWAN PRATAP SINGH @ PAPPI ANR …. Respondents
Advocates who appeared in this case:
For the Appellant : Mr. Ashish Dutta, APP
For Respondent No. 1 : Respondent No. 1 in person.
For Respondent No. 2 : Mr. Jaideep Malik, Advocate.

CORAM:
HON’BLE MR. JUSTICE SIDDHARTH MRIDUL
HON’BLE MR. JUSTICE BRIJESH SETHI

JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present appeal instituted by the state under the provision of

Sectionsection 378 of the Code of Criminal Procedure, 1973 (hereinafter

referred to as ‘SectionCr.P.C’) assails the judgment dated 01.05.2015,

rendered by learned Additional Sessions Judge-Special FTC-2

(Central), Tis Hazari, Delhi, in Session Case No. 37/2013, titled as

CRL.A.659/2016 Page 1 of 25
‘SectionState vs. Hawan Pratap Singh @ Pappi Anr.’, emanating from

F.I.R No. 156/2012 registered at Police Station NDRS; whereby the

learned Trial Court has acquitted the accused, Hawan Pratap Singh @

Pappi and Pintu Kumar, Respondent No. 1 and Respondent No. 2

herein, respectively, of the charges framed against them under Sectionsection

376(2)(g)/Section506/Section34 of the Indian Penal Code, 1860 (hereinafter referred

to as ‘SectionIPC’).

2. The case of the prosecution as elaborated by the learned Trial

Court is briefly encapsulated as follow: –

” 1. …On 05.09.2012 on receipt of DD No.2A at PS NDRS SI
Dalip Singh reached at PP Sanghtarashan. Prosecutrix ‘A’
(name withheld to protect her identity) was found present at the
PP along with her elder sister ‘N’ (name of her sister also
withheld to protect her identity). The statement of the
complainant ‘A’ Ex.PW-1/A was recorded at PP Sanghtarashan
by PW-21 SI Dalip Singh.

2. It is the case of the prosecution that vide her complaint
Ex.PW1/A, the complainant ‘A’ revealed that she was living
with her elder sister ‘N’ at a house in Madhi Wali Gali, Vishnu
Garden, Delhi and about six month ago, her sister ‘N’ had sold
the aforesaid house. Thereafter, both of them started living in
temples and gurudwaras. She further stated that her father left
for an unknown place about 7-8 years ago and her mother
expired 15 days ago.

3. Complainant ‘A’ further stated in her complaint that on
04.09.2012, at about 3 AM she along with her sister ‘N’ had
gone to PS NDRS along her belongings. When they reached
the main hall of the railway station, one railway police official
namely Pintu met them and inquired from them as to where
they want to go. They informed him that they want to go to
Jammu. Upon hearing this, Pintu got deposited their two bags
in the Cloak room at Platform No.1 and also took their mobile

CRL.A.659/2016 Page 2 of 25
number. As per the complainant, at about 7 AM, she went to
kirti nagar along with her sister ‘N’ for who had to take an
injection. Pintu continued to call them and told them that he
had booked a room for them and asked them to come here.

4. Complainant ‘A’ further alleged in her complaint that she
and her sister ‘N’ revealed these facts to one boy namely Pappi,
who does ‘Seva’ in ‘7 Manjila Mandir’ situated in Tilak Nagar,
Delhi. Thereafter, he accompanied both of them to New Delhi
Railway Station in a TSR which was parked outside the
Railway Station. Complainant then took the boy i.e. Pappi and
went inside the Railway Station to collect their luggage.
Officials of Cloak Room asked her to call Pintu as the luggage
was deposited by Pintu in his name. When they called Pintu, he
took them to room No.201 on the IInd Floor on the pretext of
showing them the room. On reaching there, Pintu and Pappi
talked to each other and locked the room from inside.
Thereafter, both of them threw her on a bed and raped her
forcibly one by one. Complainant ‘A’, also alleged that both of
them also threatened to kill her in case she would raise an
alarm or disclose about this incident to anyone. Complainant
‘A’ after coming out of the room narrated all the facts to her
elder sister ‘N’. Some one made a call at 100 number and they
were brought to PP Sanghtarashan.

5. It is further the case of the Prosecution that after recording
the statement of the Prosecutrix ‘A’, SI Dalip Singh got the
Prosecutrix medically examined at LHMC Hospital and got the
case registered under Section 376/Section506/Section34 IPC.

6. Further investigation of the case was handed over to
Insp.Meera Sharma, SHO PS NDRS. The IO, during
investigation, got the place of incident i.e. Room no.201, IInd
Floor, PG Side, NDRS inspected through the Crime Team and
photographed, vide report dated 05.09.2012. IO also prepared
the site plan of the place of incident and seized two bed sheets,
two pillow covers and one handkerchief from the place of
alleged incident. The prosecutrix was again got medically
examined and the examining doctor seized her clothes and
other exhibits. During investigation accused Pintu was
apprehended on 05.09.2012 at 4:15 PM from PS NDRS, RPSF
Line, near Platform No.16. He also got recovered one
underwear which we was wearing at the time of the alleged
incident and the same was also seized by the IO.

7. It is further the case of the Prosecution that thereafter on the
same day i.e. 05.09.2015, accused Hawan Pratap Singh @

CRL.A.659/2016 Page 3 of 25
Pappi was arrested from Sanatan Dharam Mandir, Tilak Nagar,
Delhi. Both the accused were got medically examined, the
report regarding their potency was obtained and the exhibits
taken by the doctors who examined the accused persons, were
seized. The accused persons pointed out the place of incident
and separate pointing out memos were prepared. Both the
accused were remanded to JC on the next day i.e. 06.09.2012
by the concerned area Metropolitan Magistrate.

8. On 06.09.2012, statement of victim ‘A’ was got recorded
under Section 164 Cr.PC and she was thereafter sent to Nari
Niketan. The IO also obtained the CCTV footage from the
NDRS and got the Prosecutrix counselled. Photocopies of Duty
Roster of accused Pintu was also obtained along with CAFs
and CDRs of Mobile Nos. of Prosecutrix ‘A’ and Pinto and
were thereafter seized. The exhibits were sent to FSL. The
school record regarding age of the Prosecutrix ‘A’ was also
seized during the course of investigation. As per the said school
record, the date of birth of the Prosecutrix ‘A’ was revealed as
23.10.1996 and the age of the prosecutrix was found to be less
than 16 years on the date of alleged incident. After completion
of investigation, charge sheet was submitted before the court.”

3. Upon completion of investigation, charge-sheet was filed

against the respondents for the offences punishable under Sectionsection

376(2)(g)/Section506/Section34 IPC and charges were framed against them under the

said sections. The respondents pleaded not guilty and claimed trial.

4. To establish the case against the appellant, the prosecution

examined 22 witnesses at trial.

5. The statement of the respondents under Sectionsection 313 Cr.P.C.

recorded, wherein they denied the case of the prosecution and stated

that they were falsely implicated in the case. The respondents lead

defence evidence and examined 4 witnesses in their support.

CRL.A.659/2016 Page 4 of 25

6. The Trial Court, on consideration of the evidence led as well as

a perusal of the documents with respect to the age of the prosecutrix,

came to the conclusion that the prosecution had failed to establish that

the Prosecutrix ‘A’ was below 16 years of age at the time of the

incident. The observations of the Trial Court, in this regard are

reproduced as follow:

“53. I have considered the said submissions in the light of the
evidence on record produced by PW-15. Admittedly, the only
evidence led by the Prosecution to establish the age of the
Prosecutrix/victim is the record produced by PW-15. PW-15
brought the admission record of his school, as per which one
Anju was admitted in Class IIA in the said school in 24.07.07
vide entry No.12105 (Ex.PW-15/A). An application was
submitted at the time of admission of Km. Anju by her mother
namely Smt.’M’, copy of the said application ix Ex.PW-15/C.
PW-15 also deposed that ‘S.M’, father of Anju also submitted
the affidavit at the time of admission of his child. (Ex.PW-
15/D).

54. A careful perusal of the aforesaid documents however
clearly shows that the said records pertain to one Km. Anju and
the Prosecution has failed to lead any evidence to establish that
the name of the Prosecutrix was also Anju. Moreover, the
supporting affidavit (Ex.PW-15/D) though in the name of
Sh.’S.M’ is apparently signed by Smt.’M’. Further, as per the
charge sheet, the surname of the Prosecutrix as police has
stated is ‘Ahuja’, whereas in the admission record produced by
PW-15 there is surname of ‘Pahuja’. Thus, the documents
produced by PW-15 cannot be relied upon, nor can they said to
establish that they pertained to the Prosecutrix ‘A’ or that her
age was below 16 years at the time of the alleged incident.

55. In view of the above discussion, the documentary proof
produced by the Prosecution in order to establish the age of the
Proescutrix must necessary be discarded. Consequently, it must
be held that Prosecution has been unable to establish that
Prosecution ‘A’ was below 16 years of age at the time of the
alleged incident.”

CRL.A.659/2016 Page 5 of 25

7. Further, broadly speaking, the Trial Court acquitted the

respondents, inter alia, finding that the testimony of the prosecutrix

‘A’ was not credible and trustworthy and was at complete variance

with the case of the prosecution and in contradiction with the

testimony of her sister ‘N’. The Trial Court also concluded that the

limited CCTV footage, that was exhibited during trial, was also at

variance with the statement of the prosecutrix ‘A’.

8. The relevant observations of the Trial Court, in respect to the

testimony of the prosecutrix, are as follows:

“70. From the aforesaid statement of the Prosecutrix ‘A’ the following
facts clearly emerge:

a) ‘A’ was not aware of the name of the accused Pintu and Hawan
Pratap even on the day when her examination-in-chief was
recorded i.e. on 02.02.2013. Till date of recording of her
examination-in-chief and even on 11.02.2013 when she was
cross-examined, the victim was not aware of the names of
accused Pintu and Hawan Pratap. It is noteworthy that even her
statement under section 164 Cr. PC (Ex.PW-1/B) does not find
mention to the name of any of the accused persons and she has
only referred to them as “railways officers” and “Mandir wala
Ladka” in her said statement Ex.PW-1/B.

b) Prosecutrix ‘A’ (PW-1) time and again deposed before the court
that she was under pressure of the IO/Insp.Meera Sharma not
only for registration of the FIR of the case but also for giving
consent for her medical examination and even at the time of
recording of her statement under Sectionsection 164 Cr.PC. She has
also deposed before the court that IO/Insp.Meera Sharma
released one of the railway officer who was apprehended from
the railway station and pressurize her as she did not want her to
disclose anything about the third offender.

c) The most striking feature which emerges from the testimony of
Prosecutrix ‘A’ is that as per the witness, she was raped firstly

CRL.A.659/2016 Page 6 of 25
by two railway officials, including accused Pintu and thereafter
by accused Hawan Pratap. Thus, as per the testimony of PW-1
three persons including two railway officials committed rape
upon her.

71. This claim of the Prosecutrix is entirely different from the case
of Prosecution. It may be necessary at this juncture to revisit the
contents of the charge sheet, as per which the prosecutrix ‘A’ was
allegedly raped by only two person i.e accused Pintu and Hawan
Pratap.

72. What is also striking is that the complaint Ex.PW-1/A, on which
the case in hand was registered, clearly bears the name of the accused
Pintu and Pappi, although, the Prosecutrix testified before the court that
she was unaware of the names of either of the accused persons even till
date, when she has been cross-examined by the defence. She rather
voluntarily added that she came to know about the name of accused
Hawan Pratap in the court on that day during her cross-examination
when it was told to her by Learned defence counsel. Admittedly, her
statement under Sectionsection 164 Cr.PC (Ex.PW-1/B) also does not mention
the name of either of the accused persons.

73. A reference to her MLCs (Ex.PW-1DA Ex.PW-1DB) would
also show that in both the said MLCs she while disclosing the alleged
history to the examining doctors, told that the alleged sexual assault
was by “two railway officers”. Admittedly, accused Hawan Pratap is
not a railway official. It was also testified by the prosecutrix ‘A’ that
one of the railway officials was apprehended at the railway station and
was let off by Insp.Meera Sharma and she has been pressurized by her
not to reveal anything about the third railway officer.

74. It appears from the above discussion and careful scrutiny of the
testimony of the Prosecutrix ‘A’ that she was allegedly raped by three
persons and not by two persons as projected by the prosecution. The
testimony of the Prosecutrix ‘A’ is thus clearly at variance with case of
the Prosecution as per the charge-sheet. She has also categorically
deposed before the court that she was under pressure of Insp.Meera
Sharma and that she did not want to get any case registered as they
were already facing lot of problems.

75. In the light of the aforesaid facts and circumstances and from
the testimony of the victim ‘A’ it is apparent that his testimony is at
variance from the case as borne out from the charge sheet and cannot be
categorized as reliable or credible piece of evidence.

Testimony of PW-14 ‘N’, sister of the Prosecutrix : Variation in
statement of Prosecutrix ‘A’ and her sister ‘N’.

CRL.A.659/2016 Page 7 of 25

76. Contrary to the testimony of PW-1, her sister PW-14 ‘N’
deposed that on 04.09.2012, at about 3AM she along with her sister ‘A’
reached at NDRS for going to jammu and while they were sitting at
railway station, they found that they had lost their train tickets.

77. It may be reiterated that in her examination-in-chief the
Prosecutrix ‘A’ deposed that they had gone to the railway station with
all their belongings as they had no place to live. It may also be relevant
to revert to the cross-examination of PW-1 at this juncture, wherein she
admitted that she had stated before the police at the time of recording of
her statement under Sectionsection 161 Cr.PC as well as learned MM that they
had to go to Jammu and that they had cooked up the story to go to
Jammu even at the railway station otherwise they could not have stayed
at railway station. PW-1 ‘A’ also deposed that they had gone to stay at
railway station as they did not have any money to live at any hotel.

78. Now coming back to the testimony of PW-14 ‘N’, wherein she
deposed that she saw accused Pintu present at the railway station in
uniform. Accused came to them and asked from them about the reason
for sitting there. She told the accused that they had lost their train
tickets. Accused Pintu took her sister ‘A’ to Cloak room and got
deposited their luggage. At about 7AM, PW-14 ‘N’ along with her
sister went to doctor as she was feeling unwell. Accused Pintu made
several calls on her mobile and informed that he had booked one room
for them. She refused for the same stating that they do not require any
room.

79. At this juncture, the testimony of PW-14 ‘N’ may again be read
in conjunction with that of Prosecutrix ‘A’, who had deposed that she
had called one of the railway officer requesting him to find a place for
them to stay. PW-14 further deposed that accused Hawan Pratap
offered help to them and accompanied them to railway station is TSR.
She remained in the TSR, while her sister ‘A’ and accused Hawan
Pratap went to accused Pintu to take back their luggage. After 15
minutes she received phone call of her sister ‘A’ on her mobile phone
who was screaming and she told her that she had been raped and also
told her to flee away from there as they want to rape you also.
Thereafter, she made a call at 100 number.

80. Here again the testimony of PW-14 ‘N’ and PW-1 ‘A’ are at
variance with each other. As per PW-1 ‘A’ she was told by one of the
railway officer before the commission of the alleged rape to call her
sister as they wanted to rape them one by one. PW-1 also deposed that
she did not listen to him and told her sister to go away. On the other
hand, her sister i.e PW-14 ‘N’ deposed that ‘A’ called her and warned
her that they want to rape her also and told her to flee away from there.

CRL.A.659/2016 Page 8 of 25

The testimony of PW-14 that she made a call at 100 number is also
apparently contrary to the very case of the Prosecution, as it is the case
of the Prosecution that the call at 100 number was made by Krishna
Anand (PW-5). I may also be relevant to note that no only PW-1 but
PW-14 also claimed that “My sister was given beatings and she was
asked to give her statement before learned MM as directed by the
police. Insp. Meera Sharma had given beatings and threats to my
sister.”

…..

93. The prosecution relied upon the testimony of PW-13 ASI Sube
Singh, Incharge CCTV Control Room at NDRS to prove the CD of
CCTV footage of cameras installed at railway station. PW-13 deposed
that on the request of the police, he prepared a CD of CCTV footage of
Camera No.7 from 09:10PM to 09:14 PM, Camera No.9 from 09:10
PM to 09:12PM and Camera No.19 from 07:58AM to 08:02AM. The
said CD is Ex.PW-1/DX.

94. In his cross-examination however, the witness admitted that vide
letter dated 07.09.2012 the IO had asked them for CCTV footage for
the period from 8:30AM to 9:30PM 0f 04.09.2012. He voluntarily
added that CCTV footage which he had submitted running into 2-4
minutes was specifically prepared at the instance of SHO Meera
Sharma and her staff after they watch the entire recording for the
aforesaid specific period.

95. From the testimony of PW-13 it clearly emerges that though the IO
initially, by way of her communication dated 07.09.2012 (which forms
part of the charge sheet) had asked for the CCTV footage on
04.09.2012 from 8:30PM to 9:30PM, however, three clips of 04
minutes, 02 minutes and 04 minutes, respectively from the three
different cameras installed at railway station were obtained in a CD.
PW-13 clarified that the said CCTV camera footage running into 2-4
minutes was specifically prepared at the instance of Insp.Meera Sharma
and her staff after they watched the entire recording. Selective clippings
brought before the court at the instance of Insp.Meera Sharma thus
must necessarily be read adversely against the prosecution. Apparently,
an attempt has been made conceal some parts of the CCTV recordings
and selective recordings of the CCTV have been brought before the
court as evidence.

96. The little CCTV recordings that was exhibited during the trial was
also shown to the victim i.e PW-1. After watching two recordings in
CD containing video recording from camera no.9 and camera no.7 from
9:10PM to 9:12PM and 9:10PM to 9:14PM respectively, both dated
04.09.2012 the witness i.e PW-1 stated that neither she nor accused
Hawan Pratap is visible in any of these recordings. In her further cross-

CRL.A.659/2016 Page 9 of 25

examination recorded on 05.06.2013 the witness was shown recoding
from CD (Ex.PW-1/D) recoded from camera no.19 from 7:58AM to
8:02AM on 04.09.2012. She admitted that in the said recording she is
seen moving on the platform along with one bag.

97. This testimony of Prosecutrix (PW-1), to my mind, is extremely
damaging to the case of the prosecution. It is noteworthy that it is the
claim of the prosecutrix that she was having two bags with her which
were deposited in the cloak room by accused Pintu before she left from
railway station along with her sister ‘N’ as her sister ‘N’ had to be taken
to a doctor. It is the claim of prosecutrix ‘A’ as well as PW-14 ‘N’ that
they left from the railway station at about 7-7:30AM. The CCTV
footage from camera no.19 from 7:58AM to 8:02AM of 04.09.2012
however admittedly shows prosecutrix moving on the platform along
with one bag. Thus, her claim that she left along her sister ‘N’ to go to
doctor at 7-7:30AM after having deposited their luggages in the cloak
room is falsified by this clipping.”

9. After appreciating the evidence on record and the reasons

elaborated above, the Trial Court has acquitted the respondents of the

charges framed against them, while concluding as follows:

“111. In view of the above discussion, I find that the Prosecution case
is nothing but a jumbled compilation of facts bits of evidence which
cannot be categorized as ‘credible’. The facts brought on record during
trial has falsified the very basis of the case of the prosecution in as
much as the victim has denied that she even knows the contents of her
complaint Ex. PW-1/A, on the cases of which the aforesaid FIR was
registered. She has time and again stated before the court that she has
been pressurized by the IO/Insp. Meera Sharma at various stages of
investigation. Though it has come on record that accused Hawan Pratap
and Pintu were identified by her during the course of trial as the person
who raped her on 04.09.2012 however, the entire claim of the
prosecutrix ‘A’ becomes doubtful in view of various contradictions
which have been pointed out earlier while discussing her testimony.
Moreover, her claim in the court is clearly at variance with the case of
the prosecution as borne out from the charge sheet, which has also been
discussed in the preceding paragraphs of the judgement. The alleged
place of incident, the recoveries stated to have been affected from the
said place of incident and the place and manner of arrest of the two
accused is extremely doubtful and not proved as per the case of the
prosecution. Apart from this, the most striking fact which has featured

CRL.A.659/2016 Page 10 of 25
in the evidence during trail is that apparently one of the assailants was
let off by Insp.Meera Sharma, though as per the prosecutrix ‘A’, he was
apprehended. This matter is extremely serious.

112. In these circumstances, the accused persons, to my mind, must be
given benefit of doubt in view of the facts as has been brought before
the court in the course of trial, particularly as drawn out from the cross-
examination of the relevant prosecution witnesses. Accordingly, both
the accused persons viz., Hawan Pratap Singh @ Pappi s/o Sh. Cheddi
Singh and Pintu Kumar s/o Sh. Upender Yadav are hereby acquitted of
all the charges on which they were facing trial.”

10. Mr. Ashish Datta, Learned APP appearing on behalf of the

State, whilst assailing the judgment of the Trial Court, urged before us

that the prosecutrix ‘A’ was aged below 16 on the date of the incident,

and in this regard her relevant school record was brought on record,

but the Trial Court erroneously disregarded the said record due to

there being minor errors in the documents.

11. It is further urged before us by the Learned APP, that the

testimony of prosecutrix ‘A’, was credit worthy, reliable and

supported the case of the prosecution and that the Trial Court has gone

on an unnecessarily pedantic examination of her testimony, whilst

finding it unreliable. Variations, if any, it is asserted by the Learned

APP, in the statement of the prosecutrix, are minor and do not shake

her credibility.

12. Per Contra, learned counsel appearing on behalf of the

respondent whilst supporting the impugned judgment in its entirety,

CRL.A.659/2016 Page 11 of 25
would urge that the same does not call for any interference; and

further contended that there were major contradictions and

discrepancies in the case of the prosecution, in particular, testimony of

the prosecutrix, which did not support the case of the prosecution, but

rather acts as the fatal lynchpin in demolishing the case of the

prosecution.

13. We have heard counsel appearing on behalf of the parties and

perused the evidence on record.

14. We first proceed to examine the findings, with regard to the

determination of age of the prosecutrix.

15. The date of birth of the prosecutrix is claimed to be 23.10.1996.

As date of incident is 04.09.2012, the prosecutrix would be less than

16 years of age on the said date of the incident.

16. In this regard, PW-15, who was the Principal of the school

where the prosecutrix was stated to have been admitted in class II-A,

produced school admission register (Ex PW 15/A), which, as per entry

dated 24.7.07, gives date of birth of one ‘Anju Pahuja’ as 23.10.96,

who is claimed to be the prosecutrix ‘A’.

17. Neither the first name, nor the second name of the prosecutrix

‘A’ matches that of ‘Anju Pahuja’, the name mentioned in Ex PW

CRL.A.659/2016 Page 12 of 25
15/A. Additionally, even the supporting affidavit (Ex PW 15/D),

though in the name of one ‘Surender Mohan’, is signed by one

‘Madhu’.

18. The documents produced cannot be relied upon and must

necessarily be disregarded, as they completely fail to establish that

they pertain to the prosecutrix, in the present case. Consequently, the

prosecution has failed to establish that the prosecutrix was below the

age of 16 at the time of commission of the alleged incident.

19. We therefore, do not find any cause to interfere with the finding

of the Trial Court, in this regard.

20. We now proceed to examine the finding, with regard to the

charges framed against the respondents.

21. The Trial Court returned a finding of acquittal in favour of the

respondents, for the charges framed against them under Sectionsection

376(2)(g)/Section506/Section34 IPC, and found the testimony of the prosecutrix

untrustworthy, unreliable and self-contradictory with her earlier

assertions, read in conjunction with other evidence on record.

22. It is relevant to point out that the prosecutrix, was cross

examined, at great length, in court, wherein she was confronted, in

particular, with her earlier statements given under Sectionsection 164 Cr.P.C.

CRL.A.659/2016 Page 13 of 25
(Ex. PW1/B); her complaint given to the police/rukka (Ex. PW1/A);

along with other evidence on the record. The testimony of the

prosecutrix assumes significance and warrants careful scrutiny

particularly in light of the facts and circumstances of the present case,

as also, the findings returned by the Trial Court.

23. The Hon’ble Supreme Court of India in SectionRai Sandeep v. State of

NCT of Delhi, reported as, AIR 2012 SC 3157, whilst considering the

facts, in a case where the accused/appellant was charged for an

offence under Section 376 (2)(g) SectionIPC, laid down the golden standard

required to be met in order to appreciate the evidence of a prosecutrix,

as follows:

“15. In our considered opinion, the ‘sterling witness’ should be of a
very high quality and caliber whose version should, therefore, be
unassailable. The Court considering the version of such witness should
be in a position to accept it for its face value without any hesitation. To
test the quality of such a witness, the status of the witness would be
immaterial and what would be relevant is the truthfulness of the
statement made by such a witness. What would be more relevant
would be the consistency of the statement right from the starting
point till the end, namely, at the time when the witness makes the
initial statement and ultimately before the Court. It should be
natural and consistent with the case of the prosecution qua the
accused. There should not be any prevarication in the version of such a
witness. The witness should be in a position to withstand the cross-
examination of any length and strenuous it may be and under no
circumstance should give room for any doubt as to the factum of the
occurrence, the persons involved, as well as, the sequence of it. Such a
version should have co-relation with each and everyone of other
supporting material such as the recoveries made, the weapons used, the
manner of offence committed, the scientific evidence and the expert
opinion. The said version should consistently match with the version of
every other witness. It can even be stated that it should be akin to the test

CRL.A.659/2016 Page 14 of 25
applied in the case of circumstantial evidence where there should not be
any missing link in the chain of circumstances to hold the accused guilty
of the offence alleged against him. Only if the version of such a witness
qualifies the above test as well as all other similar such tests to be
applied, it can be held that such a witness can be called as a ‘sterling
witness’ whose version can be accepted by the Court without any
corroboration and based on which the guilty can be punished. To be
more precise, the version of the said witness on the core spectrum of
the crime should remain intact while all other attendant materials,
namely, oral, documentary and material objects should match the
said version in material particulars in order to enable the Court
trying the offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty of the charge
alleged.”

25. In the decision reported as SectionKrishan Kumar Malik v. State of Haryana
(supra) in respect of the offence of gang rape Under Section 376 (2) (g),Section
Indian Penal Code, it has been held as under in paras 31 and 32:

31. No doubt, it is true that to hold an accused guilty for
commission of an offence of rape, the solitary evidence of the
prosecutrix is sufficient provided the same inspires
confidence and appears to be absolutely trustworthy,
unblemished and should be of sterling quality. But, in the
case in hand, the evidence of the prosecutrix, showing
several lacunae, which have already been projected
hereinabove, would go to show that her evidence does not
fall in that category and cannot be relied upon to hold the
Appellant guilty of the said offences.

32. Indeed there are several significant variations in material
facts in her Section 164 statement, Section 161 statement (SectionCode
of Criminal Procedure), FIR and deposition in court. Thus, it
was necessary to get her evidence corroborated independently,
which they could have done either by examination of Ritu, her
sister or Bimla Devi, who were present in the house at the time
of her alleged abduction. The record shows that Bimla Devi
though cited as a witness was not examined and later given up
by the public prosecutor on the ground that she has been won
over by the Appellant.”

24. With the above observations in mind, we proceed to examine

the evidence on record, particularly the testimony of prosecutrix ‘A’.

CRL.A.659/2016 Page 15 of 25

25. The facts lead up in such a way that it is the case of the

prosecution that, on 04.09.2012, the prosecutrix along with her sister,

came to the New Delhi Railway Station, where they were approached

by the accused railway officers who enquired from them their purpose

for being at the station. The prosecutrix informed them that they came

to the station as they had to go to Jammu, and could not go back to

their home as it was late in the night. This position finds reflection in

the complaint as well as the statement of the prosecutrix under Sectionsection

164 Cr.P.C. In her examination in court, however, she admitted that

this story was cooked up and false.

26. The prosecutrix rather, also denied her previous residential

status, which led up to her coming to the railway station. She had

earlier stated that they live in a rented accommodation in Nihal Vihar

and Chandan Vihar, and had left those places due to dreadful incidents

there. As they were then rendered homeless, they lived in a

Gurudwara for some time and then came to the station on the date of

the incident. However, in her examination in court, she denied stating

in her statement under Sectionsection 164 Cr.P.C. that she lived in the

aforestated rented accommodation and then stated that she was under

pressure from Inspector Meera Sharma (the I.O.) to state the same.

CRL.A.659/2016 Page 16 of 25

27. It is also the case of the prosecution that, after the prosecutrix

had deposited their luggage bags in the cloak room of the railway

station, the prosecutrix along with her sister, went to a doctor at Kirti

Nagar – as her sister was keeping ill – subsequent upon which they

returned to the railway station; and that it is during the said journey

that one of the accused came to be known to the them and

accompanied them to the railway station.

28. Although the prosecutrix stated that the said doctor had been

treating her sister over a long period of time, yet, the prosecutrix, did

not know either the name of the said doctor, nor his address.

29. This circumstance brings into doubt the entire foundational

facts leading up to the present incident, as to the circumstance of the

prosecutrix’s arrival at the scene of the incident.

30. One of the most peculiar circumstances that stands out, in the

present case, is that the case of the prosecution from the very

beginning, has been that the prosecutrix was alleged raped by two

railway officers, but there seems to be clear confusion as to the

number of people who committed the act on the prosecutrix and

whether the prosecutrix knew the name of the offenders.

31. The prosecutrix in her complaint, mentions the name of one of

CRL.A.659/2016 Page 17 of 25
the offenders as ‘Pintu’ and the other one as ‘Pappi’. She categorically

states that both of them had committed the offences complained of,

against her, and does not at any point mention the name of any third

person.

32. The prosecutrix had undergone two Medicolegal Examinations

(hereinafter referred to as ‘MLC’), exhibited as (Ex PW-1/DA

Ex.PW-1/DB). In both the MLCs, it is categorically stated that she

was assaulted by “two railway officers”. There is clearly no mention

of any third person, nor do the names of the accused respondents find

mention in the MLCs. In her statement under Sectionsection 164 Cr.P.C., she

does not mention the name of any of the offenders, and only refers to

the accused as “railway officers”. It is also here that she specifically

mentions of one “Mandir wala Ladka”, who is also stated to have

committed rape upon her.

33. In her testimony in court, the prosecutrix does not mention the

accused by name and only refers to them as officers, and the boy who

met them at the Seven Storied Temple at Tilak Nagar. She

unequivocally states that she did not know the name of any accused

till the time of her statement under Sectionsection 164 Cr.P.C. She further

testified that she did not know any nickname of the accused Hawan

CRL.A.659/2016 Page 18 of 25
Pratap, then further states that she does not know the name of any

accused person. In her cross examination, she states that she did not

know if the name of the two accused were mentioned in her

complaint. She further states that she did not state the name of the

accused to the police as she was not knowing the accused.

34. It appears that, rather mysteriously, the name of the accused

persons crept into the complaint of the prosecutrix. It remains

unexplained as to how the name of the accused could figure in the

complaint of the prosecutrix, if she was not aware of the same and also

did not state the same to the police.

35. It is not the case of the prosecution that the accused Hawan

Pratap Singh @ Pappi, is a railway officer. It is unclear as to whether

the complainant was assaulted by 2 persons or 3 persons and whether

the accused Hawan Pratap Singh @ Pappi is supposed to be a part of

the two railway officers who are alleged to have assaulted the

prosecutrix, or is the third person.

36. The case of the prosecution is against the two respondents

herein. The prosecutrix in her complaint only mention of 2 persons,

who committed the present offence. During her testimony in court, the

prosecutrix stated that two officers had taken her to a room at second

CRL.A.659/2016 Page 19 of 25
floor of the station and raped her, then subsequently a third person

who she met at Tilak Nagar, came to the room and raped her.

37. The prosecutrix further testified that she was under pressure

from Inspector Meera Sharma, as the latter did not want the former to

disclose anything qua the third offender. She also states that the third

person was also apprehended by the police, but later on released.

38. The testimony of the prosecutrix axiomatically appears to belie

the very foundation of the case of the prosecution.

39. It is also the testimony of the prosecutrix that when she

requested one of the railway officers who had taken her luggage bags,

to return the same, instead of returning the same, the officer told the

prosecutrix to call her sister as well and that they would proceed to do

“galat kaam” with her sister and then with the prosecutrix. On hearing

this, it is stated by her that she told her sister to go away. If such is the

case, it is rather unusual that the sister, never called the police or raised

an alarm at the railway station, which was evidently a crowded place.

40. The above testimony is also contradictory to the testimony of

Neha Ahuja (PW-14), the sister of the prosecutrix. It is the testimony

of PW-14 that she received a called from the prosecutrix, wherein the

prosecutrix had stated that she had been raped and then told PW-14 to

CRL.A.659/2016 Page 20 of 25
flee away as the assailants wanted to rape her as well.

41. The statement of PW-14 also contradicts the case of the

prosecution as to who called the police, after the alleged incident had

taken place. The case of the prosecution has been that one Krishna

Anand (PW-5), called the police. The prosecutrix, in her testimony,

states that it was the auto driver who called the police. However, PW-

14 states in her testimony that she was the one called 100 number.

42. We must also observe that, it appears that the prosecutrix, when

in a quandary, time and again, shifts from her complaint and her

statement under Sectionsection 164 Cr.P.C and denies making statements that

are recorded in her complaint and her statement under Sectionsection 164

Cr.P.C. She denies making several statements which are recorded by

the magistrate who recorded her statement under Sectionsection 164 Cr.P.C.

and repeatedly states that she was under pressure from Inspector

Meera Sharma, the I.O. At one point in fact, she even goes on to state

that she was not aware of the contents of her complaint and only her

signatures were obtained on the same.

43. The above circumstances highlight and demonstrate a lack of

credibility in the case of the prosecution and the statement of the

prosecutrix.

CRL.A.659/2016 Page 21 of 25

44. Another important piece of evidence that must be examined, in

conjunction with the testimony of the prosecutrix, is the limited CCTV

footage recorded at the New Delhi Railway Station at the relevant

time, which was exhibited in the Trial Court. In the Trial Court, a CD

containing CCTV footage of Camera No. 7 from 9:10 PM to 9:14 PM,

Camera No. 9 from 9:10 PM to 9:12 PM and Camera No. 19 from

07:58 AM to 08:02 AM, was exhibited as Ex. PW-1/DX.

45. The said CCTV footage was proved by ASI Sube Singh, (PW-

13), who was incharge of the CCTV control room at the railway

station. PW-13 testified that the limited CCTV footage, which was

produced in court, was prepared expressly at the instance of Inspector

Meera Sharma.

46. The said CCTV footage which was viewed by us, also does not

support the case of the prosecution. Rather interestingly, when the

CCTV footage of Camera No. 9 and 7 respectively were shown to the

prosecutrix in the Trial Court, she admittedly stated that neither she,

nor the accused (Hawan Pratap Singh @ Pappi) were visible in either

of the two exhibited footages.

47. The prosecutrix further admits to being visible in the relevant

footage of Camera No. 19, where she is seen moving along the

CRL.A.659/2016 Page 22 of 25
platform with one bag. However, the same is in the teeth of the case of

the prosecution, which has always been that both the luggage bags had

been deposited in the cloak room of the railway station. How the

prosecutrix is visible in the subject footage with one of the luggage

bags’ is also a glaring unexplained contradiction.

48. A fortiori the CCTV footage is one of the best pieces of

evidence available and its importance cannot be overlooked. [Ref:

SectionTomaso Bruno v. State of U.P. reported as (2015) 7 SCC 178]

49. All the above highlighted circumstances, in our opinion, do not

support the case of the prosecution and fall foul of the principles laid

down by the Hon’ble Supreme Court in Rai Sandeep (Supra).

50. In light of the facts and observations in the present case, we find

that the testimony of the prosecutrix cannot be relied for the conviction

of the respondents, as charged.

51. It is settled law that that an order of acquittal cannot be

interfered with lightly and must only be done when there are

substantial and compelling reasons to do so. Reference in this regard

is made to the decision of the Supreme Court in SectionGhurey Lal V. State

of U.P., reported as (2008) 10 SCC 450, wherein it was held:-

“70. In light of the above, the High Court and other appellate
courts should follow the well-settled principles crystallised by

CRL.A.659/2016 Page 23 of 25
number of judgments if it is going to overrule or otherwise disturb
the trial court’s acquittal:

1. The appellate court may only overrule or otherwise disturb
the trial court’s acquittal if it has “very substantial and
compelling reasons “for doing so.

A number of instances arise in which the appellate court
would have “very substantial and compelling reasons” to
discard the trial court’s decision. “Very substantial and
compelling reasons” exist when:

(i) The trial court’s conclusion with regard to
the facts is palpably wrong;

(ii) The trial court’s decision was based on an
erroneous view of law;

(iii) The trial court’s judgment is likely to result
in “grave miscarriage of justice”;

(iv) The entire approach of the trial court in
dealing with the evidence was patently
illegal;
(v) The trial court’s judgment was manifestly
unjust and unreasonable;
(vi) The trial court has ignored the evidence or
misread the material evidence or has ignored
material documents like dying

declarations/report of the ballistic expert,
etc.

(vii) This list is intended to be illustrative, not
exhaustive.

2. The appellate court must always give proper weight and
consideration to the findings of the trial court.

3. If two reasonable views can be reached–one that leads to
acquittal, the other to conviction–the High Courts/appellate
courts must rule in favour of the accused.”

52. In view of the foregoing discussion, we find ourselves unable to

conclude that the prosecution was able to prove its case beyond

reasonable doubt or that the judgment of acquittal returned by the Trial

Court, suffers from any perversity, so as to warrant reversal by this

CRL.A.659/2016 Page 24 of 25
Court, in the present appeal.

53. Resultantly, the present appeal fails and is accordingly

dismissed.

54. The bail bonds and surety of the respondents stand discharged.

The Trial Court Record be sent back forthwith.

55. Lastly, the Trial Court, while acquitting the respondents has also

directed the Commissioner of Police, Delhi to initiate inquiry into the

allegations made against Inspector Meera Sharma. As we have found

the testimony of the prosecutrix, itself, to be unreliable, we find that

the direction to initiate inquiry against Inspector Meera Sharma is

unwarranted and the same is accordingly set-aside.

56. Copy of the judgment be sent to the Jail Superintendent, Tihar

Jail for information and also be sent for updation of the records.

SIDDHARTH MRIDUL
(JUDGE)

BRIJESH SETHI
(JUDGE)
SEPTEMBER 26th, 2019
dn/ym

CRL.A.659/2016 Page 25 of 25

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