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2017 Supreme(Del) 4015
IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. SISTANI, CHANDER SHEKHAR, JJ.
State (Govt. Of N.C.T of Delhi) – Petitioner
Versus
Kishan – Respondent
Crl.L.P.558 of 2017
Decided On : 26-09-2017
For the Petitioner: Ms. Radhika Kolluru, APP. along with SI Mohd. Intayar Ali, P.S. Shahbad Dairy.
The need for the victim's testimony to be of sterling quality and reliable, and the limited circumstances under which the Appellate Court may interfere in an appeal against acquittal.
Headnote:
Delay - Criminal Procedure - Code of Criminal Procedure, 1973 (Cr.P.C.) Section 378(1) - Sections 363, 366, 376 of the Indian Penal Code (IPC) - Summary
Fact of the Case:
The petitioner sought condonation of 93 days delay in filing the leave to appeal. The court found no ground to condone the delay but examined the case on merits and condoned the delay. The State filed a leave to appeal against the impugned judgment where the respondent was acquitted of charges under Sections 363, 366, and 376 of the IPC.
Finding of the Court:
The court found no infirmity with the Trial Court's finding regarding the age of the victim and dismissed the leave petition.
Issues: Delay in filing leave to appeal, age of the victim, consistency of victim's testimony, and interference in appeal against acquittal.
Ratio Decidendi: The court examined the age of the victim based on school records and testimony of parents. It also emphasized the need for the victim's testimony to be of sterling quality and reliable. The court highlighted that the Appellate Court may only interfere in an appeal against acquittal when there are substantial and compelling reasons to do so.
Final Decision: The leave petition was dismissed, and the leave to appeal was also dismissed.
G.S. SISTANI, J.
CRL.M.A. 15866/2017(exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
CRL.M.A.15865/2017(delay)
3. This is an application filed by the petitioner seeking condonation of 93 days delay in filing the leave to appeal. We find no ground to condone the delay in filing the leave to appeal, however, since we have examined the case on merits, delay of 93 days in filing the leave to appeal is condoned.
4. The application stands disposed of.
CRL. L.P. 558/2017
5. The present leave to appeal has been filed by the State under Section 378(1) of the Code of the Criminal Procedure, 1973 (“Cr.P.C.”) against the impugned judgment dated 10.03.2017passed by the learned Trial Court in Sessions Case No.57922/16 arising out of the FIR No.427/12 registered at Police Station Shahbad Dairyunder Sections363, 366 and 376 of the Indian Penal Code (“IPC”), by which the respondent has been acquitted.
6. The case of the prosecution, as noticed by the Trial Court, is reproduced as under:
“1. Accused is facing trial in the present case on allegations of kidnapping prosecutrix“S” aged around 14 years and committing her rape.
2. Initially FIR in question was registered u/s 363 IPC on the basis of missing complaint of father of prosecutrix alleging that her daughter went missing since 29.11.2012. Complainant suspected that prosecutrix was enticed by somebody.
3. Police searched prosecutrix through electronic and print media. On 21.12.2012, investigating team located prosecutrix was residing with accused at SM-61, Village Razapur, Shastri Park, Gaziabad, UP. They were recovered from there. Statement of prosecutrix was recorded wherein she alleged that accused enticed and took her with him. Accused established physical relations with her. Prosecutrix was got medically examined and her statement was also got recorded u/s 164 Cr.P.C.
4. Accused was arrested and charge-sheeted. Initially, charge for offence punishable under Section 363/366/376 IPC was framed against accused. However, an amended charge U/s 363/366 IPC and U/s 6 POCSO Act in alternative U/s 376(2)(i)(n) IPC was framed against accused. Accused pleaded not guilty and claimed trial.”
7. To bring home the guilt of the respondent, the prosecution examined 17 witnesses in all. The statement of the respondent was recorded under Section 313 of Cr.P.C. wherein he claimed to be falsely implicated in the present case. It was further stated that the victim left her home voluntarily and insisted that he should take her along.
8. Ms. Radhika Kolluru, learned counsel for the State submits that the impugned judgment of the Trial Court is contrary to the law and facts on record and the same is based on surmises and conjectures. She further submits that the learned Trial Court has lost track of the fact that the testimony of the victim has been consistent and the law is well-settled that an order on conviction can be passed based on the statement made by the victim. It is strongly urged before the Court that the learned Trial Court has overlooked that at the time of the incident, the victim was 14 years and 07 months of age. Her age was proved by PW-3 Mukesh, who had produced the school certificate during his examination. It is also contended that PW-1 and PW-2, being parents of the victim have also supported the case of the prosecution, which has not been considered by the learned Trial Court.
9. We have heard the learned counsel for the petitioner and considered their rival submissions.
10. The first question which arises for our consideration is with respect to the age of the victim. It is not in dispute that PW-3 Mukesh had produced the record from the first school the victim had attended which was exhibited as Ex.PW-3A/D. PW-4 Chhattarpal was examined who had produced the record from the second school which the victim had attended. It is not in dispute that the certificate was prepared based on an affidavit filed by the father of the victim and not base
