Dismissed

The State Govt of NCT of Delhi v. Sajjan Khan & Ors.

Delhi HC25 Sept 2018CRL.L.P./699/2017

Case brief

AI extract

What is this about?

The High Court of Delhi dismissed the State's criminal leave petition seeking an appeal against the acquittal of the respondent for rape under Section 376 IPC. The Court found no legal infirmity in the trial Court's conclusion that the prosecution failed to prove the rape charges while confirming the conviction for kidnapping under Section 363 IPC due to the victim's age.

What did the court decide?

The criminal leave petition of the State is dismissed with no orders as to costs. The acquittal of the respondent for the offence under Section 376 IPC is upheld.

The State Govt of NCT of Delhi Vs Sajjan Khan… — Child Custody and Guardianship | Delhi HC (2018)

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$~5

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* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.L.P. 699/2017

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THE STATE GOVT OF NCT OF DELHI .... Petitioner Through: Mr. Hirein Sharma, APP for State.

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versus

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SAJJAN KHAN & ORS ..... Respondents Through: Mr. Adit S. Pujari, Ms. Surabhi Dhar & Ms. Tusharika Mattoo, Advocates.

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CORAM: JUSTICE S. MURALIDHAR JUSTICE VINOD GOEL

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O R D E R

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% 25.09.2018

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The State seeks leave to appeal against the impugned judgment dated 20^th July 2017 passed by the learned Additional Sessions Judge/Special Fast Track Court, North, Rohini Courts, Delhi in SC No.57519/2016 (Old No.34/13) arising out of FIR No.905/2006 registered at PS Tilak Nagar to the extent that the trial Court has, by the impugned judgment, while convicting the Respondent for the offence punishable under Section 363 IPC, acquitted him of the offence punishable under Section 376 IPC.

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The first charge against the Respondent was that on 14^th December 2006, at around 9:30 pm, he kidnapped PW-2, aged about 14 years, from the lawful guardianship of her father, thus committing the offence punishable under Section 363 IPC. The second charge was that after administering to her some unwholesome drug with an intention to facilitate the commission of an offence, he committed the offence punishable under Section 328 IPC. Thirdly, between 14^th and 18^th December 2006, in a factory at Rampura, Delhi and at other places, he raped PW-2, thereby committing an offence punishable under Section 376 IPC.

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CRL.L.P. 699/2017 Page 1 of 4

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PW-2 lived with her uncle (PW-4) in a jhuggi at New Shyam Nagar, Tilak Nagar. According to her, on 14^th December 2006, at around 9:30 pm, the Respondent forcibly abducted her and threatened her by showing her a blade and threatened to kill her and her parents; covered her mouth and took her to a factory at Rampura where a lot of stationery was lying; administered a white tablet due to which she felt giddiness and sleepy; and thereafter, raped her. According to her, on the next morning, he again took her to some jhuggi in an auto-rickshaw with a shawl covering her face, made her stay there for four days, and then took her back to the factory where his parents were present.

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According to PW-2, when she complained to his parents about the Respondent having raped her, they helped him escape from the factory. It must be mentioned at this stage that the parents of the Respondent were also arrayed as co-accused but have been acquitted by the trial Court in the impugned judgment.

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On 17^th December 2006, the Respondent’s parents took PW-2 to the PS. She was thereafter medically examined and her statement was also recorded before the Metropolitan Magistrate (‘MM’) under Section 164 Cr PC.

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The prosecution was able to prove in the trial Court, through the evidence of PW-3 who brought the school register, that the date of birth of the PW-2 was 2^nd May 1992 and therefore, she was slightly above 14 years of age but below 15 years of age on the date of commission of the offence.

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As regards the medical evidence, Dr. Rishi (PW-5), the Medical Officer at DDU Hospital, identified the handwriting of the doctor who first examined

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CRL.L.P. 699/2017 Page 2 of 4

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the Respondent. The MLC (Ex.PW-5/A) showed that PW-2 was also referred to the Senior Resident (Gynaecology) who observed the hymen to be absent as per examination, uterus was retroverted, soft, appears small in size. It was noted that two slides were prepared from the PW-2’s vagina and, along with her undergarments, sealed and handed over to the IO. In crossexamination, PW-5 admitted that it was not written in the MLC that the patient was sexually assaulted.

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It appears that the medical evidence could not bear out the allegation of PW-2 about her having been raped and there was nothing on her clothes to connect the Respondent with the crime. As regards the reliability of the evidence of PW-2 herself, the trial Court has, on careful analysis, noted as under:

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(i) The jhuggi where she resided was densely populated and when she was being taken in an auto-rickshaw, no stupefying substance had been administered to her. However, PW-2 did not raise any alarm at that stage.

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(ii) Not only did PW-2 remain with the Respondent for four days but was also photographed with him. She was in fact taken to the shop of the photographer and yet did not use any of the members to inform her family or the police about the acts of the Respondent.

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(iii) According to PW-2, the Respondent went out and brought food for her and even during this period she did not lodge any complaint with anyone. Her explanation that she remained asleep throughout was not convincing.

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Added to this was the delay in PW-4 approaching the police. He appears to have waited for three days after the Respondent went missing to first go

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CRL.L.P. 699/2017 Page 3 of 4

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to the police.

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Learned APP for the State submitted that since part of her deposition was believed to the extent that the trial Court convicted the Respondent for the offence punishable under Section 363 IPC, it had erred in disbelieving PW-2 as regards her allegation about rape having been committed by the Respondent.

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The Court finds that the conviction of the Respondent for the offence under Section 363 IPC was only on account of the fact that the Respondent was shown to be below 15 years of age and the parents of the Respondent had brought her to the PS thus proving that she had remained with the Respondent till then.

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The Court is unable to find any legal infirmity in the analysis of the evidence by the trial Court and its conclusion that the prosecution had failed to prove the case against the Respondent for the offences with which he was charged. No ground has been made out to grant leave to appeal. The criminal leave petition is dismissed, but in the circumstances, with no orders as to costs.

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S. MURALIDHAR, J.

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VINOD GOEL, J.

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SEPTEMBER 25, 2018

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CRL.L.P. 699/2017 Page 4 of 4

The State Govt of NCT of Delhi v. Sajjan Khan & Ors.

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The State Govt of NCT of Delhi v. Sajjan Khan & Ors.

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