‘Investigation is also not up to the mark’: Delhi High Court acquits 4 men sentenced to life in abduction & gangrape case
Justice Manoj Jain [01-04-2024]

Read Order: PAWAN SHARMA AND ORS v. STATE GOVT OF NCT OF DELHI [DEL HC- CRL.A. 495/2023]

LE Correspondent

New Delhi, April 2, 2024: While observing that no incriminating word had been whispered by the victim as well as her parents and neither PCR form nor call detail records of victim’s mobile were placed on record, the Delhi High Court has set aside a Trial Court order convicting four men in a rape and abduction case and sentencing them to rigorous imprisonment for life.

The Single-Judge Bench of Justice Manoj Jain was considering a matter where all the four appellants had been held guilty and convicted for offences under Sections 328/366/342/34 IPC & Section 376D IPC and have been sentenced, to rigorous imprisonment for life with fine and in-default sentence.

The facts as presented in the prosecution story were that an information was received at the police station that girl, who had been kidnapped and raped by four persons, was able to escape from their clutches and was present at Mandi House, Metro Station. The Police Officials met ‘G’ (name withheld) who was immediately taken to Lady Hardinge Medical College for medical examination.

After such medical examination, she and her mother came to the station and ‘G’ then revealed that she had left her house for ‘Shiv Mandir’ to offer worship. At a short distance from her house, one vehicle came from behind. Thereafter, someone caught hold of her and put one handkerchief on her nose which made her unconscious. When she regained consciousness, she found herself naked in one room with all the appellants whom she knew already as they were natives of her village. They all were also naked and claimed that she had been brought to Water Plant situated at Ballabhgarh. They all, without her consent and in a forcible manner, made physical relation with her and confined her there. In the morning, they all left her on the road and thereafter she managed to reach Delhi.

6. At her instance, police arrested all of them from their native village of District Mathura, UP. In the statement of ‘G’ which was recorded under Section 164 Cr.P.C., she rather claimed that she had left her home without telling anyone as she was under tension. She claimed that she went to her village and since she reached there very late, out of fear, she got recorded FIR. Despite being asked, as to whether she wanted to say anything else, she did not utter any further word. All in all, in her such three lines statement made under Section 164 Cr.P.C., she never claimed that she had been kidnapped and sexually assaulted by anyone, much less by the appellants. Charge-sheet was filed and all the four appellants were directed to be charged for the aforesaid offences.

The Bench noted that despite her exhaustive cross-examination, the victim denied that she had been abducted or raped by the appellants. In her such cross-examination conducted by the prosecution, she admitted that she had made call to the police but pleaded her ignorance whether such call was made by her from Mathura or Delhi. Though she admitted her signatures on various documents but reiterated, in no uncertain terms, that complaint had been given by her under the influence of her parents. Thus, she apparently disowned the contents of all such documents, including her own complaint. As per the Bench, testimony of her parents also did not serve the purpose of prosecution.

“We may hasten to add that if father of ‘G’ is to be believed, ‘G’ was missing for few days whereas according to her mother she returned same evening, when she had gone missing. Both such versions are not in synchronization with prosecution case as she allegedly returned next morning”, the Bench said.

It appeared to the Bench that no effort was made to obtain the Call Details Record and to place the same on record. Holding back such valuable piece of evidence had to be taken as a circumstance against the prosecution. “We will not mince any word in commenting that Call Details Record of ‘G’ would have also reflected her location which could have even strengthened the case of prosecution but is not explicable as to why such valuable piece of evidence was not bothered to be collected. Thus, a golden opportunity went begging”, the Bench said.

“Section 313 (1) (b) Cr.P.C. comes into play when the prosecution witnesses have been examined. Before any such accused is called for his defence, it becomes the duty of the Court to explain the circumstances appearing in evidence against him”, the Bench further clarified.

As per the Bench, the Trial Court also did not give any weightage to the fact that such statement was made by her on 29.07.2018 and immediately thereafter when she was produced before the concerned Magistrate, she, in her statement under Section 164 Cr.P.C., categorically claimed that she had left the home of her own and same version was reiterated by her in the witness box. Therefore, there was virtually nothing which could have indicated that she had been kidnapped and then confined and gang-raped.

Moreover, since the victim was raped by 4 men, there should have been some injury on her body suggesting forcible sexual assault. However, the concerned doctor did not notice any fresh injury and also did not find any fresh bleeding. Hymen rupture was found, albeit, to be the old one. Moreover, when ‘G’ had lodged her report, she had categorically claimed that she knew all the accused persons who were native of her village but despite that it is not explained why she has given the name of one of the accused as ‘Rohit’ and later corrected the same by claiming that name of such accused was ‘Ved’.

Holding the DNA report to be insignificant, the Bench said, “Last but not the least, it is admitted case of prosecution that ‘G’ was major at the relevant time and even if semen was detected on the ‘legging’ of victim and the DNA extracted from the same matched with the DNA profile of the accused persons, it could not have been automatically assumed that it was a case of sexual assault, particularly when ‘G’ has not uttered even a single word in this regard. It could have been also taken as a case of consensual physical relationship.”

Thus, finding not enough material on record to prove the case of prosecution and noting that no incriminating word had been whispered by ‘G’ and her parents, the Bench said, “Investigation is also not upto the mark as neither PCR form nor CDR of mobile of ‘G’ were placed on record. Keeping in mind the fact that ‘G’ was major at the relevant time, DNA report, which was not even put to the accused under Section 313 Cr.P.C., does not carry any value.”

Allowing the appeal, the Bench acquitted all the accused persons of the charges.