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2019 Supreme(Del) 1089
IN THE HIGH COURT OF DELHI AT NEW DELHI
R.K. Gauba, J.
Arti - Appellant
Vs.
N.C.T. Of Delhi - Respondent
Crimianal Appeal No. 892 of 2001, Criminal Miscellaneous Appeal No. 49988 of 2018, 49989 of 2018
Decided On : 12-03-2019
G.P. Thareja, Adv., Mani Mishra, Adv., Amit Ahlawat, Adv.
The central legal point established in the judgment is the requirement for the prosecution to prove charges beyond reasonable doubt, and the principle of extending the benefit of doubt to the accused in case of inconsistent and unreliable evidence.
Headnote:
Criminal Conspiracy - Kidnapping - IPC 1860 Section 120B, 328, 363 - The court discussed the charges against the appellant under Section 120B, 328, and 363 of the Indian Penal Code, 1860, and found that the prosecution failed to prove the charges beyond reasonable doubt. The judgment of conviction and order on sentence against the appellant were set aside and vacated.
Fact of the Case:
The appellant was charged with criminal conspiracy and administering sweets with an intoxicating substance to facilitate the kidnapping of a 14-year-old girl. The girl was later recovered from another person's house and alleged rape by him.
Finding of the Court:
The court found that the prosecution failed to prove the charges against the appellant beyond reasonable doubt and set aside the judgment of conviction and order on sentence.
Issues: The issues revolved around the involvement of the appellant in the criminal conspiracy and the administration of intoxicating substances to facilitate the kidnapping.
Ratio Decidendi: The court found that the prosecutrix's statements were inconsistent and lacked credibility, leading to the benefit of doubt being extended to the appellant.
Final Decision: The judgment of conviction and order on sentence against the appellant were set aside and vacated.
R.K. Gauba, J.
The appellant was tried by the court of Additional Sessions Judge (in Sessions Case No.22/2000) along with one Shivraj Gupta alias Gappu on the charge for offences punishable under Section 120B of Indian Penal Code, 1860 (IPC), Section 328 read with Section 120 B IPC and Section 363 read with 120 B IPC on the gravamen that she had entered into a criminal conspiracy with the said other person (i.e. Shivraj) and in furtherance of criminal conspiracy administered sweets with intoxicating substance to the prosecutrix, a girl aged about 14 years at that point of time, to facilitate the commission of offence of she being kidnapped; the said girl having been kidnapped by Shivraj from the lawful guardianship of her father (PW-2), on or about 30.03.1999, from the hutments (jhuggi cluster) in the locality known as Indira Market, Naraina, New Delhi. The other said person Shivraj was put on trial on the additional charge for offence under Section 376 IPC, on the allegations that after having kidnapped the said girl, he had subjected her to forcible sexual intercourse during the period 30.03.1999 to 10.04.1999 at Delhi and other places, the prosecutrix, as per the evidence presented, having been recovered from his house on 10.04.1999 in Shahjahanpur in Uttar Pradesh.
2. By judgment dated 31.10.2001, the appellant herein was held guilty and convicted on the charge for offence under Section 363 read with Section 34 IPC and Section 328 read with Section 34 IPC; Shivraj Gupta having been held guilty and convicted separately on charges for offences under Sections 363, 328, 376 and 34 IPC. By order on sentence dated 01.11.2001, the trial judge awarded imprisonment for a period of two years with fine of Rs.1,000/-, and imprisonment for a period of three years with fine of Rs.3,000/- for offences under Section 363 read with Section 34 IPC and Section 328 read with Section 34 IPC respectively.
3. The above mentioned judgment of conviction and order on sentence were challenged by the appellant through the present appeal. The sentence having earlier been suspended by order dated 22.02.2002, the appeal was not prosecuted, she having failed to appear on it being called out. She has since resurfaced and was taken into custody, she having forfeited the order of suspension of sentence on account of the earlier default.
4. Arguments have been heard, and with the assistance of the learned counsel for the appellant, the record has been perused. In the opinion of this court, the prosecution has failed to bring home the charge against the appellant beyond reasonable doubts. The appeal deserves to be allowed and the judgment of conviction against the appellant along with the order on sentence require to be set aside and vacated. The reasons may be set out hereinafter.
5. The prosecutrix, as said before, was a girl aged about 14 years during the relevant period. She hailed from a very humble background, her father and the family living in a hutment. The appellant herein concededly was their neighbour. PW-2 (father of prosecutrix) is on record to say that the appellant was a quarrelsome lady, and that after the prosecutrix had gone out of his lawful custody, the appellant had attempted to defame the family in the society.
6. The first information report (FIR) (Ex.PW1/A) was got registered by PW-2 on 01.4.1999 informing that his daughter had left home to attend call of nature having gone to a public toilet around 10.00 pm, whereafter she had failed to return home. In the FIR, he expressed suspicion about the involvement of the co-convict Shivraj. However, no reference was made to any possible role of the appellant. Initial efforts to trace the girl in Delhi did not bear fruit. Eventually, PW-2 accompanied the Investigating Officer ASI Hukum Singh (PW-10) to the native village of the co-convict Shivraj in district Shahjahanpur (U.P.) on 1.04.1999. On reaching the village, it was intimated to them that the father of Shivraj had passed away. In the
