Delhi High Court
Haji Mohd. Altaf vs The State on 4 April, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 18.03.2026
Judgment pronounced on: 04.04.2026
+ CRL.A. 286/2016
HAJI MOHD. ALTAF .....Appellant
Through: Mr. S.C. Buttan, Mr. Himanshu
Buttan, Mr. Ojasvi Annadi Shambhu
and Mr. Nikhil, Advocates.
Versus
THE STATE .....Respondent
Through: Mr. Utkarsh, APP for State
+ CRL.A. 326/2016
NARENDER SINGH .....Appellant
Through: Mr. Ravin Rao, Mr. Akshit Sawal,
Mr. Ayan Sharma and Mr. Akshay
Mathur, Advocates.
versus
THE STATE NCT OF DELHI .....Respondent
Through: Mr. Utkarsh, APP for State
+ CRL.A. 691/2016
SUSHIL GULATI (VICTIM SINCE DECEASED)THR. LEGAL
REPRESENTATIVES ASHA GULATI .....Appellant
Through: Appearance not given.
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versus
STATE & ORS .....Respondents
Through: Mr. Utkarsh, APP for State
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. CRL.A. 286/2016 and CRL.A. 326/2016 under Section
374 read with Section 482 of the Code of Criminal Procedure,
1973 (the Cr.P.C) have been filed by the first and the second
accused (A1 and A2) in Sessions Case No. 141/1/2010 on the file
of the Additional Sessions Judge, Fast Track Court, North-West
District, Rohini Courts, Delhi, assailing the judgment dated
25.02.2016 and order on sentence dated 29.02.2016 as per which
they have been convicted and sentenced for the offences
punishable under Sections 120B, 193, 195, 218, 465, 389 read with
Section 120B of the Indian Penal Code, 1860 (the IPC).
2. CRL.A. 691/2016 under Section 372 Cr.PC. has been filed
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by PW12, Sushil Gulati, the victim in the case seeking
enhancement of the sentence and the compensation awarded.
3. The prosecution case in brief is that on 29.08.2000 the
accused persons four in number, in furtherance of their common
intention entered into a criminal conspiracy to falsely implicate
PW12 in a case of sexual assault and extort money from him. In
furtherance of the said conspiracy and common intention, the
accused persons forged and fabricated documents with the
knowledge and intention that such documents may appear in
evidence during judicial proceedings with a view to get a
conviction of PW12 for offences punishable with imprisonment for
life. Pursuant to the conspiracy hatched, PW12 was arrested on the
allegation of committing rape of PW1. A2 Sub-Inspector, Police
Post Tis Hazari Courts who had the duty to prepare the records,
prepared false and incorrect records. Due to the aforesaid acts,
PW12 was arrested and remanded to police and judicial custody
for several days.
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4. Initially, based on exhibit PW1/B FIS of PW1 given on
30.08.2000 Zero FIR was registered at Subzi Mandi, Police
Station. Subsequently crime number 852/2000, Rajouri Garden
Police Station, that is, exhibit PW11/A FIR, was registered by
Sub-Inspector, Rajouri Garden Police Station alleging commission
of offences punishable under sections 328, 376, 506 read with
Section 34 IPC against PW12. The investigation was taken over by
the Crime Branch, which investigation revealed that PW12 was
innocent. Hence, he was discharged by the trial court as per order
dated 09.04.2001. The further investigation conducted revealed the
role of Haji (A1) and Narender Singh (A2) along with C.M. Dutta
(A3), Chowki-in- charge Rajouri Garden, Police Station and
Sameer Ahmed alias Sonu(A4). Hence the chargesheet/final report
was filed alleging the commission of the offences punishable
under Sections 193, 195, 218, 465, 389, 388, 120B of the Indian
Penal Code, 1860 (the IPC).
5. When the accused persons were produced before the
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trial court, all the copies of the prosecution records were furnished
to them as contemplated under Section 207 Cr.PC. Thereafter, in
compliance of Section 209 Cr.PC, the case was committed to the
Court of Session concerned.
6. On appearance of the accused persons before the trial
court and after hearing both sides, as per order dated 18.08.2007, a
Charge under Sections 120B and 193, 195, 465, 389, 218 read with
Section 120B IPC was framed against A1 to A3, which was read
over and explained to them, to which they pleaded not guilty. A4
Sonu died before the Charge was framed.
7. On behalf of the prosecution, PWs. 1 to 34 were
examined and Exts. PW1/A-D, PW1/DA1-3, PW1/X1, PW2/A,
PW2/DA1, PW3/A-E, PW4/A, PW5/A-C, PW6/A-B, PW7/A,
PW8/A-E, Mark A-F (dated 04.03.2010), PW10/A-B, PW11/A-C,
Mark A-F (dated 19.11.2011), PW12/A-K, PW13/A-B, PW14/A,
PW15/A-B, PW16/A-D, PW17/A-C, PW18/A, PW20/A, PW21/A-
B, PW27/A, PW29/A-B, PW30/A, PW32/A-D, and PW33/A-G
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were marked in support of the case.
8. During the course of the trial, A3 C.M. Dutta, also died
and hence the Charge against him stood abated. After the close of
the prosecution evidence, A1 and A2 were questioned under
Section 313(1)(b) Cr.P.C. regarding the incriminating
circumstances appearing against them in the evidence of the
prosecution. A1 and A2 denied all those circumstances and
maintained their innocence.
8.1 A1 submitted that he does not know PW1 nor has
he ever met her. He submitted that he has been falsely implicated
in the case by some police officials who have conspired against
him.
8.2. A2 submitted that he has been falsely implicated in
the present case and that he has performed his duties sincerely as
per law and as per directions of the senior officials. He also
submitted that he was being made a scapegoat in the case.
9. After questioning A1 and A2 under Section 313(1)(b)
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Cr.P.C, compliance of Section 232 Cr.P.C was mandatory. In the
case on hand, no hearing as contemplated under Section 232
Cr.P.C is seen made by the trial court. However, non-compliance
of the said provision does not, ipso facto vitiate the proceedings,
unless omission to comply with the same is shown to have resulted
in serious and substantial prejudice to the accused (See Moidu K.
vs. State of Kerala, 2009 (3)KHC89 : 2009 SCC OnLine Ker
2888). Here, A1 and A2 have no case that non-compliance of
Section 232 Cr.P.C has caused any prejudice to them.
10. No oral or documentary evidence was adduced by the
accused persons.
11. Upon consideration of the oral and documentary
evidence on record and after hearing both sides, the trial court,
vide the impugned judgment dated 25.02.2016, found A1 and A2
guilty of the offences punishable under Sections 120B, 193, 195,
218, 465, 389 read with Section 120B IPC. Vide order on sentence
dated 29.02.2016, A1 and A2 have been sentence to undergo,
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rigorous imprisonment for a period of 02 years and to a fine of
₹20,000/-, and in default of payment of fine, to simple
imprisonment for a period of 03 months for the offence punishable
under Section 120B IPC; rigorous imprisonment for a period of 04
years and to a fine of ₹1,00,000/-, and in default of payment of
fine, to simple imprisonment for a period of 06 months for the
offence punishable under Section 195 read with 120B IPC;
rigorous imprisonment for a period of 01 year and to a fine of
₹10,000/-, and in default of payment of fine, to simple
imprisonment for a period of 03 months for the offence punishable
under Section 465 read with 120B IPC; rigorous imprisonment for
a period of 01 year and to a fine of ₹10,000/-, and in default of
payment of fine, to simple imprisonment for a period of 03 months
for the offence punishable under Section 218 read with 120B IPC;
and rigorous imprisonment for a period of 02 years and to a fine of
₹10,000/-, and in default of payment of fine, to simple
imprisonment for a period of 03 months for the offence punishable
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under Section 389 read with 120B IPC. It has also been directed
that in case of realisation of the fine amount, a sum of ₹2,00,000/-
be paid as token compensation to the legal representatives of
PW12 Sushil Gulati for causing enormous damage to his
reputation and character. The sentences have been directed to run
concurrently. Aggrieved, A1 and A2 have preferred these appeals.
12. The learned counsel for A1 submitted that the inculpatory
statements made by the witnesses herein is not as per the
procedure contemplated under law. The provisions of Section 306
or 307 CrPC was never resorted to by the Investigating Officer
(IO). The IO ought to have made the prosecution witnesses,
namely, PW1, PW2, PW6 and PW7 also co-accused in this case as
it is clear that they were accomplices in the crime. But, the IO,
without any justification or reasons have made them witnesses,
which is not legally permissible. The trial court erred in not giving
reasons as to why the persons making the inculpatory statements
were not made accused in this case. The trial court also erred in
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holding that the provisions of Sections 195 and 197 CrPC are not
applicable. The prosecution witnesses in connivance with the IO
have entered into a conspiracy to implicate the accused persons in
a false case in order to save themselves. There are no independent
witnesses to corroborate the testimony of the prosecution
witnesses. PW1, PW2, PW6 and PW7 being accomplices in the
crime, their testimony can have no value. Even assuming that their
testimony is admissible, the same cannot be accepted without
corroboration, goes the argument.
12.1. The learned counsel for A2 submitted that there is
absolutely no evidence to show that A2 was at any point of time
part of the criminal conspiracy. On the other hand, he was only
discharging his duties to the best of his abilities and as instructed
by his superior officers. It was submitted that the testimony of
PW1, PW2, PW6 and PW7 can never be relied on as they are also
accomplices in the crime. Reference was made to the dictum in
Abdul Razak vs. Union of India, 2021 SCC OnLine Ker 3282.
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13. Per contra it was submitted by the Additional Public
Prosecutor that as per Section 133 of the Indian Evidence Act,
1872, (the IEA) an accomplice is a competent witness and so the
statements of PW1, PW2, PW6 and PW7 are certainly admissible.
There is no inconsistency in the testimony of PW1 and the same is
corroborated by the statements of the aforesaid witnesses as well
as PW9 and PW12. The testimony of PW7 and PW12 though not
cross examined is admissible under Section 33 of the IEA.
Reference was made to the dictum in Sarwan Singh v. State of
Punjab AIR 1957 SC 637 in support of the arguments.
14. Heard both sides and perused the materials on record.
15. The only point that arises for consideration in this
appeal is whether the conviction entered and sentence passed
against the appellants/A1 and A2, by the trial court are sustainable
or not.
16. Before I go into the merits of the case, I will first
consider the main argument of the learned defence counsel for A1
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and A2 that the testimony of PW1, PW2, PW6 and PW7 is
inadmissible in evidence and cannot be relied on as the provisions
of 306 or 307 CrPC was never resorted to. In support of the
argument reference was made to the dictum in Abdul Razak Alias
Abu Ahmed (Supra). In the said case the petitioner, one of the
accused in a case pending before the Special Court for the Trial of
NIA cases, Ernakulam, Kerala, challenged the order passed by the
Special Court allowing an application submitted by the National
Investigation Agency (NIA) permitting examination of one S.V.K
as an additional witness in the case. According to the petitioner,
the additional witness sought to be examined, was a co-accused
who was tried and convicted by the NIA Court at New Delhi on
the basis of the chargesheet filed by NIA, New Delhi Unit, based
on the very same transactions and hence was not a competent
witness. It was contended that an accused in a case can be
examined as a witness only under Section 315 Cr. PC; the
conditions under which were not satisfied in the said case.
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16.1. The sum and substance of the allegations contained in
the charge sheet was that the petitioner therein along with accused
no. 6, and S.V.K, the proposed additional witness, in furtherance
of their common intention to wage war against Syria, and to
physically join the proscribed terrorist organisation ISIS, attempted
to reach Syria together. During transit when they reached Turkey,
the petitioner and the additional witness, were apprehended by
Turkish officials and later deported to India, while one among
them, the 6th accused managed to enter Syria.Upon deportation,
both the petitioner and S.V.K arrived together at Delhi Airport and
were detained by the Special Cell of the Police at Delhi. Several
documents and digital devices were seized from both of them.
S.V.K was immediately taken into custody and a case was
registered against him by the NIA Unit of Delhi. The petitioner
who was released returned to Kerala, his native place. Upon
reaching Kerala, he was apprehended by the State Police and a
crime registered, which was later taken over by NIA Cochin Unit,
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who filed the chargesheet after completion of investigation.
16.2. As against S.V.K, the Delhi Unit of NIA filed a charge-
sheet. Pertinently in the said charge-sheet, the petitioner was
arraigned as the 6th accused. The charge-sheet of the NIA, Delhi
unit, detailed the investigation against several accused persons
including the petitioner, but S.V.K alone was charge sheeted for
the offences punishable under the various Sections of IPC, the
Unlawful Activities (Prevention) Act, 1967 and Section12 of
Passports Act, 1967. In the said charge-sheet it was stated that as
per the evidence collected, role of some more suspects had
emerged. It was further stated that, as prosecutable evidence needs
to be collected against the other accused as regards their role,
including that of the petitioner, investigation against them was
continuing. S.V.K pleaded guilty of the charges levelled against
him as per the charge sheet of the NIA, Delhi unit, pursuant to
which he was convicted. He was undergoing imprisonment in
Tihar Jail, New Delhi. The investigation against the petitioner was
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continued by the NIA and the charge sheet, was filed by their
Cochin Unit in the Special Court at Ernakulam. During the trial
conducted by the Special Court, all the witnesses cited by the
prosecution were examined except the Chief Investigating Officer.
At this juncture, the prosecution moved an application under
Section 311 Cr.PC seeking permission to examine S.V.K who was
convicted in Delhi for an identical offence, which he carried out
along with the petitioner-accused, as an additional witness. It was
found that in both the charge sheets the acts which gave rise to the
offence was identical and S.V.K, the proposed additional witness
and the petitioner had an active role in the conspiracy as also the
other acts constituting the offences charged. The essential facts
which led to the charge sheet and the major offences charged
against the accused were found to be one and the same.
16.3. The question that therefore, arose for consideration in
the said case was whether a person accused of the very same
offence arising from the very same transaction, could be permitted
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to be examined as a witness in respect of the trial that was being
conducted against the co-accused. It was held that the right of an
accused against self-incrimination is a right embedded in the
constitutional mandate of Article 20(3) and one of the basic tenets
of criminal jurisprudence. There could be only two exceptional
circumstances where an accused could be examined as a witness
against other persons accused of the very same offences, i.e. (i) if
he has been tendered pardon by following the procedure
contemplated under Section 306 or 307 of Cr. PC or (ii) under the
circumstances mentioned in Section 315 Cr.PC. Both such
situations did not arise in the case. A person, who is arraigned as
an accused in a case, can be examined as a witness against the
other accused persons, in a trial relating to the very same offence,
arising from the very same cause of action only in the
circumstances covered by Sections 306 or 307 Cr.PC. Under
Section 315 Cr.PC an accused can be examined as a witness in the
trial, on his request in writing and to disprove the charges him, in
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which event the protection under Article 20 (3) does not arise,
since the accused voluntarily mounts the box as a witness, and
there is no element of compulsion. However, the additional
witness sought to be examined was not a person who was
subjected to the proceedings contemplated under Section 306 or
307 Cr.PC. From the materials available on record, it was evident
that, even as per the case of the prosecuting agency, the
transactions which formed the basis of the charge sheet submitted
against the petitioner and the charge sheet submitted against
S.V.K, the additional witness, were one and the same. Therefore,
the entire proceeding against the petitioner was akin to a ‘split-up’
trial based on very same charge sheet, where a co- accused cannot
be permitted to be examined as witness; even if he was tried and
convicted before the trial of the petitioner. Sections 306 or 307
could not be availed at that stage as pardon had to be granted
before the final judgment was passed against the person who was
sought to be examined. Section 315 also could not be invoked,
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even with a request in writing, as the additional witness was not
being tried and so there was no question of his giving evidence in
his defence. The additional witness for all the said reasons could
not be treated as a competent witness for the prosecution. Holding
so, the impugned order of the trial court by which the application
of the NIA allowing examination of S.V.K as additional witness
was set aside and the CRL.MC was allowed.
17. The dictum in the aforesaid decision is not applicable to
the facts of the present case because in the said case the additional
witness who was sought to be examined had also been arraigned as
a co-accused. In the case on hand, none of the prosecution
witnesses at any point of time had been arraigned as an accused in
the case. In this context I refer to the dictum of the Apex Court in
Lakshmipat Choraria v. State of Maharashtra, AIR 1968 SC
938. The appellants therein were convicted and sentenced for the
offences punishable under Section 120B IPC and Section 167 (81)
of the Sea Customs Act. The appellants were found to have entered
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into a criminal conspiracy among themselves and with others
including one Yau Mockchi, a Chinese citizen in Hong Kong, to
smuggle gold into India. The suitcases with the gold concealed
were brought into India by air stewardesses, and Ethyl Wong
(PW1), an Anglo Chinese girl employed by Air India, was one of
them. Discovery came, after gold was successfully smuggled on
many occasions, when Yau Mockchi approached one Sophia
Wong of the B. O. A. C. line. She was engaged to a police officer,
who informed her superior officers. A trap was laid. Yau Mockchi
was caught with a suitcase with gold in it. On the search of his
person and also of his place of business, visiting cards of several
persons including those of Ethyl Wong and the appellants and their
addresses and telephone numbers, and other incriminating letters,
accounts cables, etc., were found. On the strength of these
materials, the prosecution commenced.
17.1. During the trial, Ethyl Wong when examined as PW1
gave a graphic account of the conspiracy and the parts played by
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the appellants and her own share in the transactions. Her testimony
was clearly that of an accomplice. Although she could have been
prosecuted, she was not arraigned as an accused and it was her
testimony which was the subject of a major part of the arguments
before the Apex Court. The main argument advanced was that
Ethyl Wong could not be examined as a prosecution witness
because (a) no oath could be administered to her as she was an
accused person since Section 5 of the Indian Oaths Act bars such a
course and (b) it was the duty of the prosecution and / or the
Magistrate to have tried Ethyl Wong jointly with the appellants.
The breach of the last obligation, it was submitted vitiated the trial
and the action was discriminatory. In the alternative, it was
submitted that even if the trial was not vitiated as a whole, Ethyl
Wong’s testimony must be excluded from consideration and the
appeal reheard on facts.
17.2. The question whether PW1 Ethyl Wong was a
competent witness was answered in the affirmative by the Apex
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Court. It was held that under Section 118 of the IEA, all persons
are competent to testify unless the court considers that they are
prevented from understanding the questions put to them for
reasons indicated in that section. Under Section 132 IEA, a witness
shall not be excused from answering any question as to any matter
relevant to the matter in issue in any criminal proceeding (among
others) upon the ground that the answer to such question will
incriminate or may tend directly or indirectly to expose him to a
penalty or forfeiture of any kind. The safeguard to this compulsion
that no such answer which the witness is compelled to give
exposes him to any arrest or prosecution or can it be proved
against him in any criminal proceeding except a prosecution for
giving false evidence by such answer. In other words, if the
customs authorities treated Ethyl Wong as a witness and produced
her in court, she was bound to answer all questions and could not
be prosecuted for her answers. The argument that the Magistrate
ought to have promptly put her in the dock because of her
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incriminating answers overlooks Section 132 (Proviso). The
section is further fortified by Article 20 (3) which says that no
person accused of any offence shall be compelled to be a witness
against himself. This Article protects a person who is accused of
an offence and not those questioned as witnesses. A person who
voluntarily answers questions from the witness box waives the
privilege which is against being compelled to be a witness against
himself because he is then not a witness against himself but against
others. Section 132 IEA sufficiently protects him since his
testimony does not go against himself. In this respect the witness is
in no worse position than the accused who volunteers to give
evidence on his own behalf or on behalf of a co-accused. There too
the accused waives the privilege conferred on him by the Article
since he is subjected to cross examination and may be asked
questions incriminating him. The evidence of Ethyl Wong could
not, therefore, be ruled out as that of an incompetent witness. Since
Ethyl Wong was a self-confessed criminal, in conspiracy with
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others who were being tried, her evidence was accomplice
evidence. The word accomplice is ordinarily used in connection
with the law of evidence and rarely under the substantive law of
crimes. Accomplice evidence denotes evidence of a participant in
crime with others. Section 133 IEA makes the accomplice a
competent witness against an accused person. Therefore, Ethyl
Wong’s testimony was held to be that of a competent witness.
17.3. The appellants also contended that oath could not
have been administered to Ethyl Wongin view of the
prohibition contained in Section 5 of the Indian Oaths Act. It
was contended that in interpreting the exclusionary clause
every person against whom there is an accusation (whether
there be a prosecution pending against him or not) is an
accused person, more so a person against whom an
investigation is going on or has been made. Referring to the
Sections of the then Code of Criminal Procedure where the
word ‘accused’ occurs, it was attempted to be established that
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sometimes the word is employed to denote a person on trial
and sometimes a person against whom there is an accusation
but who is not yet put on his trial. The expression ‘in a
criminal proceeding’ was also referred to and contended that
the words are of sufficient amplitude to take in a person
against whom an investigation is to be made or has been
made on an accusation. In either case, it was contended that,
the case of Ethyl Wong would fall within the exclusionary
clause. This argument was also rejected and it was held thus-
“11. The position that emerges is this: No pardon could
be tendered to Ethyl Wong because the pertinent provisions
did not apply. Nor could she be prevented from making a
disclosure, if she was so minded. The prosecution was not
bound to prosecute her, if they thought that her evidence was
necessary to break a smugglers ring. Ethyl Wong was
protected by S.132 (proviso) of the Indian Evidence Act even if
she gave evidence incriminating herself. She was a competent
witness, although her evidence could only be received with the
caution necessary in all accomplice evidence, The expression
‘criminal proceeding’ in the exclusionary clause of S.5 of the
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word accused. The same expression is used in the proviso to
S.132 of the Indian Evidence Act and there it means a criminal
trial and not investigation. The same meaning must be given to
the exclusionary clause of S.5 of the Indian Oaths Act to make
it conform to the provisions in pari materia to be found in
S.342, 342A of the Code and S.132 of the Indian Evidence Act.
The expression is also not rendered superfluous because if
given the meaning accepted by us it limits the operation of the
exclusionary clause to criminal prosecutions as opposed to
investigations and civil proceedings. It is to be noticed that
although the English Criminal Evidence Act, 1898, which
(omitting the immaterial words) provides that “Every person
charged with an offence …. shall be a competent witness for
the defence at every stage of the proceedings” was not
interpreted as – conferring a right on the prisoner of giving
evidence on his own behalf before the grand jury or in other
words, it received a limited meaning, see Queen v. Rhodes,
(1899) 1 QB 77.
12. xxxxx
13. On the side of the State many cases were cited from the
High Courts in India in which the examination of one of the
suspects as a witness was not held to be illegal and accomplice
evidence was received subject to safeguards as admissible
evidence in the case. In those cases, S.342 of the Code and S.5
of the Indian Oaths Act were considered and the word
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actually on trial before a court and not a person who could
have been so tried. The witness was, of course, treated as an
accomplice. The evidence of such an accomplice was received
with necessary caution in those cases. These cases have all
been mentioned in. In re, Kandaswami Gounder AIR 1957
Mad. 727 and it is not necessary to refer to them in detail here.
The leading cases are: Queen Empress v. Mona Puna, 1892
ILR (16) Bom 661; Banu Singh v. Emperor, 1906 ILR (33) Cal
1353, Keshav Vasudeo v. Emperor, ILR 59 Bom. 355 : AIR
1935 Bom 186, Empress v. Durant, (23) ILR 1899 Bom. 213,
Akhoy Kumar Mookerjee v. Emperor, ILR 45 Cal. 720 : AIR
1919 Cal. 1021; A. V. Joseph v. Emperor, ILR 3 Rang 11 : AIR
1925 Rang 122; Amdumiyan v. Emperor, ILR 1937 Nag. 315 :
AIR 1937 Nag. 17 (FB), Gallagher v. Emperor, ILR 54 Cal. 52
: AIR 1927 Cal. 307 and Emperor v. Har Prasad, ILR 45 All.
226 : AIR 1923 All. 91. In these cases (and several others cited
and relied upon in them) it has been consistently held that the
evidence of an accomplice may be read although he could have
been tried jointly with the accused. In someof these cases the
evidence was received although the procedure of S.337,
Criminal Procedure Code was applicable but was not
followed. It is not necessary to deal with this question any
further because the consensus of opinion in India is that the
competency of an accomplice is not destroyed because he
could have been tried jointly with the accused but was not
and was instead made to give evidence in the case. S.5 of theCRL.A. 286/2016 & connected matters Page 26 of 85
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Indian Oaths Act and S.342 of the Code of Criminal
Procedure do not stand in the way of such a procedure.”
(Emphasis Supplied)
18. The aforesaid position was reiterated by the Apex court in
Chandran alias Manichan alias Maniyan & Ors. v State of
Kerala 2011 KHC 4315; AIR 2011 SC 1594. In the said case also,
an argument was raised that the evidence of an accomplice who
was arrayed as a prosecution witness could not be taken into
consideration and it would be inadmissible because the witness
though an accomplice was neither granted pardon under Section
306 CrPC nor was he prosecuted and that the prosecution unfairly
presented him as a witness for the prosecution. This contention
was rejected in light of the dictum in Lakshmipat Choraria
(Supra). It was held that the evidence of an accomplice was
admissible and there was nothing illegal in accepting the same.
19. In the light of the aforesaid precedents, the argument
advanced by the learned counsel for A1 and A2 that the testimony
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of the prosecution witnesses is inadmissible or cannot be relied on
is liable to be rejected.
20. At the risk of repetition, I once again refer to the
prosecution case. On 06.06.2000 while PW12 Sushil Gulati was
sitting in the office of one Balraj Bhasin situated at Rajouri Garden
Extension, Dr. Jeevan Prakash Gandhi (Dr. Gandhi), father of
PW9, rushed to their office in a perplexed state and informed them
that a stranger had intruded into his house and was misbehaving
with his daughter-in law. Immediately, PW12 Sushil Gulati along
with Balraj Bhasin rushed to the house of Dr.Gandhi, where they
saw A3 Chandramohan Dutta (A3 C.M. Dutta) misbehaving with
PW9’s wife. PW12 Sushil Gulati knew A3 C.M. Dutta as the latter
was earlier posted as chowki-in-charge of Rajouri garden area.
PW12 Sushil Gulati rescued Jeevan Lata Gandhi, wife of PW9,
from the clutches of A3 C.M. Dutta. This was not to the liking of
A3 C.M. Dutta who left the house after abusing and threatening
PW12 Sushil Gulati. The said incident resulted in registration of
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Crime No. 579/2000 alleging commission of offences punishable
under Sections 354 and 506 IPC against A3 C.M. Dutta, in which
crime, PW12 Sushil Gulati was the main witness. Registration of
the molestation case infuriated A3 C.M. Dutta and he threatened to
implicate PW12 Sushil Gulati in a false case. Accordingly, a plot
was devised by A1 to A4 for implicating PW12 Sushil Gulati in a
false rape case for which the services of PW1, PW2, PW6, and
PW7 was sought and obtained.
20.1. PW1 Rajni Gupta, earlier working in the marketing
division of M/s Power & Power Company knew A1 Haji Mohd.
Altaf, a practising lawyer at Tis Hazari Courts who had helped her
earlier in procuring a disability certificate. PW1 due to her
disability had to leave her marketing job and so she approached A1
Haji Mohd. Altaf in order to ascertain whether it would be possible
for her to avail or get a job on the basis of her disability certificate.
In the chamber of A1, PW1 Rajni Gupta happened to meet PW2
Savita as well A4 Sameer Ahmad @ Sonu, who was working as
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munshi and was associated with A1. PW1Rajni Gupta was in need
of money and hence she agreed to become part of the conspiracy.
Accordingly, with the assistance of PW2, PW6 Balbir Kaur and
PW7 Najma, all the four accused persons acting in concert, staged
a scene of rescue of PW1 from a roadside. As planned, A2 the then
chowki-in-charge, Rajouri Garden, arranged for a PCR van to take
PW1 to the hospital where she gave her initial statement under a
fictitious name ‘Seema Kaur’, that is, exhibit PW1/B FIS/FIR to
the police to the effect that she was raped by PW12 Sushil Gulati,
and two of his associates in a moving car and thereafter thrown on
to the road. Based on Ext. PW1/B FIS/FIR, Zero FIR, i.e. Ext.
PW10/A was registered at Police Station Sabzi Mandi. Thereafter,
FIR No. 852/2000 i.e. Ext. PW11/A was registered at Police
Station Rajouri Garden alleging commission of offences
punishable under Sections 328, 376 , 506 read with 34 IPC against
PW12 Sushil Gulati and others. The clothes of the victim, blood
sample as well as vaginal swab of PW1 taken at the Hindu Rao
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Hospital were seized. On 01.09.2000 statement of PW1 Rajni
Gupta as Seema Kaur was recorded by the magistrate concerned
under Section 164 CrPC, wherein she reiterated her case of rape by
PW12 Sushil Gulati others. Thereafter, the investigation of the
case was transferred to the Crime Branch. PW1 Rajni Gupta @
Seema Kaur was interrogated at length, during which interrogation
the conspiracy that had been hatched against PW12 Sushil Gulati
and how a crime of rape was cooked up, was revealed. Pursuant to
the same, a second statement of PW1 under Section 164 Cr.PC
was recorded on 11.09.2000 in which she confessed that the rape
allegation was false and fabricated and that the same had been
enacted pursuant to the conspiracy hatched by the four accused
persons in order to implicate PW12 Sushil Gulati. The DNA
reports exonerated PW12 Sushil Gulati, on the other hand it
revealed that the source of semen found on PW1 was that of
A4Sonu and that of one Babloo Mandal, a friend of PW1. Pursuant
to the same A4 Sonu was arrested. On 08.03.2001, A3 C.M. Dutta
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surrendered before the court. A1 Haji Mohd Altaf and A2
Narender Singh were arrested on 17.03.2001 and 19.03.2001
respectively. Investigation conducted by the Crime branch
revealed that PW12 Sushil Gulati was completely innocent. Hence,
the final report/charge sheet was submitted against A1 to A4
alleging commission of offences punishable under the above
mentioned Sections.
21. Now coming to the evidence on record, relied on by the
prosecution to prove the case. The reason why A3 C.M. Dutta
harboured enmity against PW 12 is spoken to by the latter as well
as by PW9. PW9 Dr. K.D. Gandhi deposed that C.M. Dutta (A3)
was known to him through his brother -in- law K.K. Vaid. C.M.
Dutta (A3) had threatened him over phone on numerous occasions
between June 2002 to 2006and claimed that he had received
approximately more than 1000 such threatening calls. PW9 further
deposed that in June 2000, he received a telephone call from Sushil
Gulati (PW12), his neighbour, informing him that a young man
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was molesting his wife. Upon reaching his residence and calling
the PCR, he found that the assaulter had already fled. He further
deposed that on the same night, C.M. Dutta (A3) came outside his
residence along with his relatives and associates at which time
police officials were present inside his house recording his
statement. He further deposed that C.M. Dutta (A3) and his
associates threatened the police officials from outside, upon which
the SHO, police station Rajouri Garden was called to the spot. An
exchange of heated words took place between the SHO and C.M.
Dutta (A3) and associates. The next day PW9 along with his wife
appeared before the DCP and gave a statement which resulted in
the suspension of C.M. Dutta (A3) from service. PW9 further
deposed that on the same day, C.M. Dutta (A3) followed him to
his residence and again threatened him to withdraw the complaint.
In July 2000, while he was returning to his residence, a bus
belonging to one Prabhjot Singh Gandhi obstructed his car, and
thereafter Prabhjot Singh Gandhi and one Kailash Lamba
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approached him and threatened him to withdraw FIR No. 579 of
2000, failing which they would harm him and his witnesses. PW9
further deposed that after about two to three months, a counter case
was registered against him by C.M. Dutta (A3) and wife alleging
commission of offence punishable under Section 406 IPC and
certain other provisions. C.M. Dutta (A3) continued to extend
threats to him over telephone. PW9 further deposed that in
December 2000, a compromise was arrived at before the High
Court in Criminal Writ Petition No. 1285 of 2000 between the
parties. He also deposed that he had made several complaints
against Prabhjot Singh Gandhi, Kailash Lamba, C.M. Dutta (A3)
and wife from time to time. PW9 was not cross examined despite
sufficient opportunity being granted.
22. PW12, Sushil Gulati, deposed that on 06.06.2000, on
being informed by Dr. Gandhi (father of PW9) regarding the
misbehaviour by C.M. Dutta (A3) with the former’s daughter -in-
law Jeevan Lata Gandhi (wife of PW9), he along with one Balraj
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Bhasin and others reached the house and found C.M. Dutta (A3)
misbehaving with her. They rescued Jeevan Latha Gandhi from
further assault by C.M. Dutta (A3), who left after threatening him
and others with dire consequences. On the same night, he again
went to the house of Dr. Gandhi on being called and found C.M.
Dutta (A3)and associates creating disturbance. PW12 informed the
SHO, PS Rajouri Garden over phone regarding the incident
pursuant to which a truck carrying police force arrived at the house
of PW9. However, by then, C.M. Dutta (A3)and associates fled the
scene. Subsequently, on 07.06.2000, he was called to police station
Rajouri Garden where his statement was recorded. He later came
to know from PW9 that a crime under Section 354 IPC had been
registered against C.M. Dutta (A3). PW12 further deposed that
thereafter, C.M. Dutta (A3) and his wife Sanyogita Dutta started
threatening him and pressurising him to withdraw the case, failing
which he would be falsely implicated. On 29.08.2000 at about
10.30 pm, he received a suspicious telephone call asking about the
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details of his car from one Balbir Singh and shortly thereafter PCR
officials reached his house. He was taken by police officials to
police station Sabzi Mandi, where he was beaten by police
officials including Addl. SHO Hari Ram Malik and Sub Inspector
(SI) Vineet Soni. PW12 Sushil Gulati further deposed that SI
Vineet Soni mocked him by saying that as he got C.M. Dutta (A3)
suspended, he should enjoy the fruits of the same. He was then
taken to Baba Hindu Rao hospital and shown to a lady who failed
to identify him. At this time SHO Hari Ram Malik told the
ladythat the person shown to her is Sushil Gulati. PW12, further
deposed that at a later point of time he had identified Seema Kaur
@ Rajni Gupta. At that point, Najma (PW7) and Sonu (A4) were
also present. Thereafter, Narender Singh (A2) also came. PW12
further deposed that he was illegally detained, beaten at various
police stations, and forced to sign in blank papers. He also deposed
that he was subjected to repeated custodial violence and was taken
to multiple places including police station Rajouri Garden, police
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station Kirti Nagar, and hospitals for medical examination.
22.1 PW12 further deposed that during his custody, he saw
Seema Kaur @ Rajni Gupta (PW1) and Balbir Kaur (PW6) in the
police station interacting with police officials in a jovial manner,
which according to him indicated the conspiracy and fabrication.
He also stated that police officials in his presence discussed the
preparation of documents of a rape case against him and forced
him to sign documents. PW12 further deposed that he was beaten
by SI Rajbir Singh with a lathi, and thereafter Inspector Hari Ram
Malik and Inspector Hoshiyar Singh showed him a visiting card,
which according to him had earlier also been shown to him at
police station Subzi Mandi. On the front side of the said visiting
card his name was hand written, while the card was printed in the
name of Balraj Bhasin and Associates bearing the address WZ
106/44. On the reverse side of the card, the words “Maruti Car
White 800 0444” were hand written. Upon seeing the said card, he
pointed out to Inspector Hari Ram Malik that initially only an
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incomplete number “0444” of his Maruti car had been written, but
when it was subsequently shown to him at police station Rajouri
Garden, the complete number of his car had been mentioned. He
further deposed that thereafter he was taken to DDU Hospital,
where an unknown person advised him not to give his semen
sample to the police, lest the same be planted against him.
Thereafter he was taken to RML Hospital, where his medical
examination was conducted. PW12 deposed that attempts were
made to obtain his semen sample with the aid of creams, however,
the same could not be obtained as he was unable to ejaculate, and
hence only his blood sample and pubic hair were collected. He
further deposed that the said medical examination took place in the
intervening night of 30.08.2000 and 31.08.2000 and it was
recorded in the MLC that he was not cooperating for giving semen
sample. PW12 further deposed that at about 03.30 pm he was
produced before DCP Sh. Kewal Singh, where Additional DCP Sh.
Ajay Kumar was also present. In his presence, Additional DCP
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observed that commission of rape in a small car with transparent
white glass appeared improbable, and both the officers discussed
certain points for inquiry and directed Inspector Hoshiyar Singh to
visit the place where the prosecutrix was found. PW12 further
deposed that DCP Sh. Kewal Singh suggested that they should
meet Advocate O.P. Wadhwa at about 05.00 pm. By this time, a
message was received that investigation of the case had been
transferred to the Crime Branch, and thereafter he was again put in
lock up. During investigation by the Crime Branch, he disclosed
his whereabouts on 29.08.2000 and denied involvement in the
alleged offence.
22.2. PW12 further deposed that Babloo Mandal
disclosed before him that the latter had sexual intercourse with
PW1, and that the latter had no knowledge of any conspiracy.
PW12 further deposed that while in jail, Sonu (A4), who came into
his ward as a part of the planning, threatened him and demanded
money, and also disclosed that the conspiracy had been hatched by
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certain advocates including Haji (A1) and others. PW12 further
deposed that both his and Sonu’s (A4) blood samples were
collected at DDU hospital and subsequently, he was informed that
his DNA report was negative, whereas that of Babloo Mandal and
another person was positive.. PW12 further deposed that he made
complaints to higher authorities including the Lieutenant Governor
and Commissioner of Police regarding his false implication and
conspiracy, that is, Ex. PW12/A and Ex. PW12/B. PW12 also
deposed that he had informed the IO that prior to the incident,
PW1 had visited his house and met his mother, and had handed
over a letter written by one Sita Gupta, whom he later came to
know as the owner of the house where Haji (A1) was residing as a
tenant. PW12 was not cross-examined despite multiple
opportunities being given by the trial court.
23. The testimony of PW12 is supported by the testimony of
PW1Rajini Gupta; PW2 Savita Gupta; PW6 Balbir Kaur and PW7
Najma. Exhibit PW1/B FIS of PW 1, the informant, described as
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Seema Kaur, roughly translated reads thus- “….. On 17.08.2000, I
went to Tis Hazari Court to get my physical disability certificate
made. There, I met a man named Sushil Gulati (PW 12), who
introduced himself as a property dealer and gave me his visiting
card, which had his house and office address and telephone
number written on it. He told me that the SDM was his friend and
that he would help me in getting the certificate. Three of four days
later, after speaking to Sushil Gulati (PW12) over the telephone, I
went to his house at Q-34 Rajouri Garden around 5:00 P.M.as per
his invitation. Sushil Gulati (PW12) and his mother were present
there. Sushil Gulati (PW12) told me that my work had not been
done yet and asked me to approach him after 8 to 10 days. On
29.08.2000 at about 1:00 p.m., I called Sushil Gulati at the office
number given on the card. Sushil Gulati (PW12) spoke to me and
asked me to reach at the office address mentioned in the card, that
is, WZ-106/144 near MIG flats, Rajouri Garden by 02.30 pm. I
reached the said address at about 02.30 pm. In the office I found
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two men, one about 28 to 30 years old and another about 34 to 35
years old. I enquired about Sushil Gulati (PW12). They told me
that they were also waiting for him. They offered me a seat and so,
I also sat in the office with them. By about 04:30-05:00 p.m.,
Sushil Gulati arrived in a white Maruti car bearing registration
number DL-2-CL-0455 and said that the SDM sahab was not
available on that day and that he would take me to another office
and get me a job as a telephone operator. Sushil Gulati (PW12)
sent one of the two men sitting in his office to get soft drinks. The
said man returned shortly with four glasses of soft drinks. I drank
the soft drink offered to me. Thereafter, Sushil Gulati (PW12) and
his two friends made me sit in his Maruti car bearing registration
number DL-2-CL-0455. I started feeling dizzy. Sushil Gulati sat
with me on the back seat and his two friends, whose names I do
not know, sat in the front. I was seated in the car at about 05.45
P.M. After a while, my disorientation increased and I kept losing
consciousness, though intermittently, I remained half conscious.
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After about 15 to 20 minutes, Sushil Gulati (PW12), who was
sitting on the back seat, removed my salwar and underwear. He
placed my chunni under me on the seat and raped me in the
moving car. Subsequently, his 2 friends took turns in sexually
assaulting me in the same manner. I was unable to raise any alarm
because they had threatened to kill me and due to my heavy state
of intoxication. Later, I became unconscious. When I regained
consciousness, I found myself lying in the road near St. Stephens
hospital, from where the police took me to Hindu Rao Hospital.
Sushil Gulati (PW12) and his two friends, after making me drink a
soft drink laced with some intoxicant, committed forcible sexual
assault on me in a moving car against my will and also threatened
me……….”
24. PW1 in her statement, recorded under Section 164Cr.PC
on 01.09.2000, that is, Exhibit PW1/PX1, reiterated her case in
exhibit PW1/B FIS.
24.1. In PW1’s subsequent statement under Section
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164Cr.PC recorded on 11.09.2000, that is, Exhibit PW1/C, her
case is – In September 1999, while she was working in the
marketing division of a Company, she befriended a boy named
Lucky. Lucky sent her to a lawyer named Haji (A1) at Tis Hazari,
who helped her to get a disability certificate, which she got in
January 2000. Due to her physical disability, she had to leave her
marketing job. She again approached the lawyer to seek his help in
getting a job, who told her that he would help her to get a STD and
DD booth. Two months back, she met Savita (PW2) and Sonu
(A4). She became friends with Sonu (A4).The friendship turned to
love. Sonu (A4) tempted her and asked her to get her limb
operated
upon(सोनू नेमुझेलालचिदयाऔरhandicapकाoperationकरIने कोकहा).
She told him that she did not have money for the same. Sonu (A4)
then asked her to play a ‘game’ by which her leg could be operated
on and she would get a shop too. When she asked him about the
‘game’, Sonu (A4) told her that a policeman Dutta had been
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suspended on the statement of Sushil Gulati (PW12) and that she
would have to get him implicated in a rape case. Sonu (A4)
showed her the photographs of Sushil Gulati (PW12), his car and
gave her his card. As directed by Sonu (A4), she called Sushil
Gulati (PW12) at his residential number. As she was unable to get
him, she called him on his office number. As instructed by Sonu,
(A4) and Haji (A1), she got an appointment to meet Sushil Gulati.
On 08.08.2000 at 5.30 pm, she went to Sushil Gulati’s house at
Rajouri garden by bus along with Sonu (A4). Sonu told her that
she should tell Sushil Gulati that she had been sent by Sita Gupta.
Sonu (A4) waited outside. She went inside the house and met
Sushil Gulati (PW12) and his mother. She told him that she had
been sent by Sita Gupta for seeking his help to get a job. Sushil
Gulati (PW12) assured her that he would help her. Sonu (A4)
showed her the office of Sushil Gulati (PW12) and asked her to
meet the former the next day.
24.2 On 28.08.2000, she again went to the chamber of Haji
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(A1) at Tis Hazari. In the chamber, Haji (A1) and Savita (PW2)
were there. Sometime later, a policeman also came. They
explained to her the plan. Savita (PW2) gave her the address of
one Balbir Kaur (PW6) from Baljit Nagar and told her that the said
lady would play the role of her aunt. Savita (PW2) said that she
would introduce her to the lady. Sonu (A4) told her that as she had
to enact a rape scene, she must have physical relations with him.
(सोनू ने कहा की चु िक मु झे Rape scene दीखना है तो म उसके साथ
वह काम क ).She replied that she would make her own
arrangements. On 28.08.2000, she called her friend Bablu and
asked him to come to DTC colony, Shadipur. On 29.08.2000 at
10:00 A.M. She reached the place where Savita (PW2) was
waiting for her. She along with Savita (PW2) and Bablu went to
see Balbir Kaur’s (PW6) house. Balbir Kaur (PW6) was not there
but her daughter-in-law was there. They came back to a STD booth
and called Haji (A1) and Sonu (A4), who told Savita (PW2) that
she should make arrangements for PW1 and Bablu to have
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physical relations at her house. Savita (PW2) took them to her
house in a rickshaw and left them there at 11.30 am. Savita (PW2)
directed her neighbours not to disturb them. Then, she and Bablu
had physical relations. At 02.00 pm, she called Sonu (A4) who
asked her to reach Tis Hazari at 05.00 pm. So, they locked the door
and gave the key to the neighbour. She and Bablu had lunch
together and thereafter she proceeded to Tis Hazari, where she
reached at 05.00 pm, at which time, Sonu (A4), Haji (A1), Savita
(PW2)and Najma @ Nazmeen (PW7) were present. They
explained the rape scene to her and gave her an orange drink and
some barfi (sweet) with something mixed in it. She had the same.
But she did not feel any intoxication. Najma (PW7) took her to a
room on the upper floor of the chamber and gave an injection with
a syringe with no needle. Najma (PW7) told her that she had to
enact a rape scene and then asked her to open her salwar. Najma
(PW7) herself opened her salwar and put the substance in the
syringe on her private part. They came downstairs and then Sonu
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(A4) gave her tobacco. As soon as she ate the tobacco, she started
feeling dizzy. Then, Sonu (A4), Haji (A1) and the policeman sent
Savita (PW2) and Najma (PW7) to St. Stephen hospital to keep an
eye on her. Sonu (A4) took her on his motorcycle and left her on
the road near St. Stephen hospital, where Savita (PW2) and Najma
(PW7) were already there. When she felt dizzy and held on to a
pole, a policeman came and questioned her. As she could not
reply, the policeman called Savita (PW2) and Najma (PW7) and
asked them about her, but they feigned ignorance. The policeman
called the police at number 100, who took her to the hospital in a
jeep. In the hospital, she gave a statement as tutored by Sonu (A4),
Haji (A1) and the policeman. After the medical examination, the
policeman brought Sushil Gulati (PW12), whom she identified.
Later Sonu and Balbir also came to the hospital. The police took
her to the sabzimandi police station, where she gave a false
statement (Exhibit PW1/B) as instructed by Sonu (A4) and Haji
(A1). PW1 further stated that she gave the earlier false statement
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as she was told that she would get money for the same (िपछला बयां
मे ने सोनू और हाजी के दबाव और लालच म िदया था ोंिक उनहोने
काहा था िक यहीं से हम 5-6 पे िटया िमल सकती है तो ह बां ट लगे I मे रे
साथ िकसी ने Rape नहीं िकया।मुझे और कुछ नही कहना ,मैने ये
बयानअपनी मज से िदया है )
24.3. PW1, when examined before the trial court stood by her
second statement recorded under Section 164, that is, Exhibit
PW1/C.
She also deposed that her blood had been taken from her nostrils
and preserved, and subsequently planted in the car of PW12, and
that blood from the injuries of PW12 had been put on her clothes.
PW1 deposed that after about three to four days of the incident,
officials of the Crime Branch, including a lady officer Chander
Prabha came and took her to Azadpur Crime Branch and upon
seeing Sushil Gulati (PW12) being beaten up by the police, she
came to repent and so disclosed to the police that the entire case
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was false and revealed her true identity. She was again taken to the
court and then she gave Ext. PW1/C 164 statement.
24.4 PW1 stood by her case in the cross-examination. PW1
admitted that whatever she had done in the case was out of greed.
She admitted that she had lodged a complaint with Inspector
Chander Prabha Gulati alleging threats. PW1 further admitted that
she had only met PW12 once on 08.08.2000 and thereafter had
seen him at the Crime Branch office at which time there was no
interaction between them. PW1 denied that she had been removed
from the ‘scene’ to Hindu Rao Hospital in a PCR van by PW24.
She asserted that it was A2 who did so. According to her, A2 was
present alongwith other 2-3 police officials while her statement
was being recorded, though she could not recall who had recorded
it. PW1denied the suggestion that A2 was not present in the
chamber of A1 on 29.08.2000and that he had not come to the spot
or taken her to the hospital, or that he had not collected her hair
samples. She also denied the suggestion that A2 was not present in
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the vehicle in which she was taken to PS Rajouri Garden or that
A2 was not a party to the conspiracy. PW1 further denied that she
had falsely implicated A2 at the instance of Inspector Chander
Prabha.
25. PW2, Savita Gupta, when examined before the trial court,
deposed that in the year 2000 she was involved a case for which
she had engaged Advocate Mohd. Irshad, whose chamber was
situated at Tis Hazari Courts. She further deposed that the two
brothers of the said advocate also used to sit in the same chamber,
one of whom was A1, (whom she correctly identified before the
Court). On28.08.2000 she had gone to the chamber of her
advocate, at which time Haji (A1) was present along with a
disabled girl who disclosed her name as Seema or Komal. PW2
further deposed that SI Narender Singh (A2) had also come to the
chamber for some time, at which time he was in uniform.
According to PW2, Haji (A1) requested her to assist the disabled
girl in obtaining a PCO booth and provided her with a photocopy
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of Ex. PW1/A disability certificate. Thereafter both Advocate
Irshad and Haji (A1) told her that they want a room on rent and so
she, along with her advocate Irshad, went to Baljit Nagar to look
for a rented accommodation. She showed him a room in the house
of PW6 (Balbir Kaur), and the latter shared her telephone number
with Irshad. On29.08.2000 at about 10.30 am, the disabled girl,
whom she had seen in the chamber of Haji (A1), met her at
Shadipur red light. She was accompanied by a boy whom the
former introduced as her brother, and requested her to show them
the house of Balbir Kaur (PW6). Accordingly, she took the girl
(PW1) to the house of Balbir Kaur (PW6). However, Balbir Kaur
(PW6) was not there. The girl then requested permission to rest in
her house which she permitted on humanitarian grounds. She gave
the keys of her house to the girl (PW1). She told the girl that she
had to go to the Court and so asked the girl to hand over the keys
of the house to her neighbour. On the said day, the opposite party
in her case did not appear and so she called Haji (A1) who directed
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her to go to his chamber. Accordingly, in the evening at about
07.30 pm, she again went to the chamber of A1, where the latter,
his brother, the disabled girl Seema (PW1); another lady by name
Najma (PW7) and one boy Sonu (A4) were present.PW2 further
deposed that at that time SI Narendra Singh (A2), who was in
uniform, also came to the chamber and after talking to Haji (A1),
left after some time. Sonu (A4) brought a piece of barfi and gave it
to Seema Kaur (PW1). Thereafter, Haji (A1); Najma (PW7); Sonu
(A4) and Seema Kaur (PW1) went to the first floor of the chamber.
She wanted to return home, but her Advocate Irshad told her that
as Najma (PW7) had to go to Nangloi, she should accompany her
to which she agreed. Meanwhile, Sonu (A4) took Seema Kaur
(PW1) on a motorcycle and left. She went along with Najma
(PW7) through the backside of St. Stephen’s Hospital, where a
police booth was also situated. Najma (PW7) went to attend the
call of nature by the side of the road. She then saw a crowd
gathered there and they were saying that someone had thrown a
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girl from a bike. She saw a girl lying on the road, who was none
other than Seema Kaur (PW1), whom she had met in the chamber
of Haji (A1). One police official present there did not pay heed to
her though she tried to tell him about having seen the girl earlier in
the chamber of A1. The policeman without listening to her sent a
message from his wireless set to the PCR. A police gypsy arrived
in which SI Narendra Singh (A2) was present and he took the girl
from the spot.
25.1. PW2 further deposed that they were about to take an
auto when Najma (PW7) said that she wanted to make a call to
Sonu (A4). Soon after, Sonu (A4) came and told her that he had to
go to the house of Balbir Kaur (PW6) and that he would drop her
at her house. Accordingly, she, along with Najma (PW7), went
with Sonu (A4) on his motorcycle to the house of Balbir Kaur
(PW6), where she overheard an altercation between Balbir Kaur
and Sonu (A4) wherein Balbir Kaur (PW6) demanded ₹ 2,00,000/-
for going to the hospital to see Seema Kaur (PW1). Balbir Kaur
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(PW6) asked Sonu (A4) to first have a talk with Haji (A1). As
directed by Haji (A1), she along with Balbir Kaur (PW6), Najma
(PW7) and Sonu (A4) went to the house of a person whose name
and address she was unable to recall. Haji (A1) met them there and
he gave ₹500/- to Balbir Kaur (PW6). Thereafter, she returned
home and the others went to the hospital.
25.2 On 01.09.2000, after reading about the incident in the
newspaper, she along with Balbir Kaur (PW6) went to the chamber
of Haji (A1),where accused Haji (A1), Sonu (A4) and Najma
(PW7) were present. She heard them discussing about the false
implication of PW12. According to PW2, she abused Haji (A1),
Sonu (A4) and Najma (PW7) for involving her also and then
returned home. On 02.09.2000 at about 01.30 am, Sonu (A4) and
Balbir Kaur (PW6) came to her house and took her and her son to
the house of Haji (A1) in Trans Yamuna area, where she was
threatened by A1 and A4 not to disclose anything about the
incident and she was allowed to return home only the next
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morning. On 04.09.2000, when she went to attend her case, she
was taken by her advocate Irshad and Haji (A1) to their chamber,
where Sonu (A4) was also present. They gave her a letter to be
handed over to Seema Kaur (PW1) who she was told was present
at the house of Balbir Kaur (PW6). She took the letter and gave it
to Balbir Kaur. Later on, she came to know that the same had been
handed over to the Crime Branch by Balbir Kaur (PW6). PW2 also
deposed that she had met Sonu (A4) for the first time on
28.08.2000 at the chamber of Haji (A1) and was not aware of his
background. PW2 more or less stood by her case in the cross-
examination.
26. PW7 Najma, deposed that from 1998 to 2003 she had
been working as a clerk in the chamber of Advocate Satya Parkash
Khatri, Tis Hazari Courts. While working in the said chamber, in
August2000, she met Sonu (A4) who took her to the chamber of
Haji (A1), where he showed her a photograph of Sushil Gulati
(PW12) and gave her a visiting card, stating that she had to falsely
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implicate him in a rape case. She asked Sonu (A4) the reason for
the same and then the latter told her that Sushil Gulati (PW12) had
got a police officer suspended from service. Initially she refused.
However, on being offered ₹ 15,000, she agreed to the same. She
further deposed that A4 handed over a paper describing the manner
in which the game had to be played. Later on she refused to act as
the victim. However, Seema (PW1) agreed to do the job for
₹40,000.When she refused to act as the victim, Sonu (A4) asked
her to at least give an injection filled with semen in the private part
of Seema (PW1), for which task she was promised ₹15,000/-. She
agreed to the same. On the next day, she went to the chamber of
Haji (A1) where Sonu (A4), Seema (PW1), Savita (PW2) and
Narender (A2) were present. Seema (PW1) was given a burfi and a
cold drink laced with intoxicants. Seema (PW1) told her that the
former was used to taking intoxicants and also that she had come
after having sexual intercourse with someone else. As directed, she
went upstairs with Seema where she found a syringe filled with
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white semi-liquid material. She inserted the same into the vagina
of Seema (PW1) as planned. Arrangements were also made to
show that Seema (PW1) was residing at the house of Balbir Kaur
(PW6), who was to act as her aunt.
26.1 Sonu (A4) and Haji (A1) told her and Savita (PW2) to
go near St. Stephen Hospital. Sonu (A4) told her that he would
bring Seema (PW1) on his motorcycle and would ‘throw’ her near
the aforesaid hospital. She and Savita (PW2) went near St.
Stephen’s Hospital. Meanwhile, Sonu (A4) came there and ‘threw’
Seema (PW1) on the road as planned and left the place. A police
official approached them and asked whether they knew the lady on
the ground. Seema (PW1) pretended to be unconscious. She and
Savita (PW2) acted as per the plan and denied knowing PW1 and
pretended to revive Seema (PW1). PW7 further deposed that
subsequent events involved attempts to contact Balbir Kaur
(PW6), visits to hospital, and discussions regarding payment,
including a demand of ₹2,00,000/- by Balbir Kaur (PW6), which
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was negotiated to ₹1,00,000/-. According to PW7, in the house of
Haji (A1), a quarrel took place for money. Haji (A1) assured
auntie (PW6) that she would be given money after the plan
succeeded. Thereafter, she was paid ₹100/- and PW6 was
paid₹500/- by Haji (A1), PW7 further deposed that Haji (A1) told
her that this plan had made on behalf of Inspector Dutta (A3) who
was suspended because of Sushil Gulati (PW12) and that there was
a larger plan involved of extorting money from PW12 after
securing rejection of his bail application. PW7 identified A2 as the
police official present during the execution of the plan in A1’s
chamber and near the hospital where PW1 was thrown. PW7 also
deposed that she had not received any money during the entire
process.
26.2 PW7 in her cross examination deposed that she acted on
the instructions of Sonu (A4) alone and had no direct interaction
with the other accused persons regarding the plan. She denied that
her statement was made under pressure of the police and affirmed
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that her statement to the police and Magistrate were correct. PW7
also denied the suggestion that she had never seenA2 prior to his
appearance in court.
27. PW6 Balbir Kaur deposed that on 29.08.2000 at about
10.15 pm, she received a telephone call from one Narendar Singh
from Subzi Mandi area, claiming to be a police official that a girl,
namely, Seema had been raped and was admitted in a hospital at
Subzi Mandi. She then replied that she had seen her elder daughter
Seema earlier in the day at which time she was perfectly fine.
However, the said Narendar Singh insisted that she go to the
hospital where Seema was admitted. He also said that Seema was
residing in her house. She denied the same and disconnected the
call. Thereafter, she again received a call from the same person
who insisted that she should reach the hospital, which she again
refused. About 15-20 minutes later, Narendar Singh (A2) along
with Savita (PW2), Najma (PW7) and Sonu (A4), came to her
house. Savita (PW2) informed her that earlier she had brought a
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lady(PW1) to take her house on rent(PW6’s house), but before the
same could be done the lady had been raped and that the said lady
had given her address as that of PW6’s. PW6 further deposed that
when she was informed so by PW2, she had an altercation with the
latter and questioned as to why her address had been given. PW6
also deposed that Narender Singh (A2) at the time was in police
uniform and arrived at her house on a yellow motorcycle. During
this time, Sonu (A4) contacted Haji (A1) on telephone and
conveyed and informed that she was not cooperating with them.
She knew Haji (A1) as she had approached him along with Savita
(PW2) relating to an accident case of her son. Haji (A1) spoke to
her on phone and told her that it was by mistake her address had
been given and as there was no one to look after the lady, she
should help. Though she had a feeling that something was wrong,
she nevertheless agreed to accompany them. Thereafter, she was
taken to Hindu Rao Hospital at about midnight, where she met a
lady who on seeing her started crying after putting the latter’s hand
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around her neck as though as the latter was known to her for quite
long. Thereafter, she was taken along with the lady, who was being
addressed by others as Seema to Subzi Mandi police station.
Narendar Singh (A2) as well as the other officials in the police
station told her that in absence of any lady constable, she was to
remain with Seema for the night. Hence, she stayed with Seema
(PW1). On the next day, she and Seema (PW1) were taken to PS
Rajouri Garden by Narendar Singh (A2), before which some
strands of hair of Seema (PW1) were plucked, which Narendar
Singh (A2)said would be planted in a car.
27.1 PW6 also deposed that when she met Narendar Singh
(A2), the latter told her that the initial two telephone calls had been
made by him. On 30.08.2000 she was asked to take clothes for
Seema (PW1), which she complied and thereafter Seema (PW1)
was sent to Nari Niketan. On 02.09.2000, she went to the court
where, on the request of Haji (A1) and Narendar Singh (A2), she
took custody of Seema (PW1) after signing certain papers.
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Thereafter, she along with Seema (PW1) and Savita (PW2) went to
various police stations and ultimately returned home with Seema
(PW1). On their way, Sonu (A4) attempted to take Seema away
but she resisted. Subsequently, they went to the chamber of Haji
(A1) and later to Trans Yamuna area where discussions took place,
but she refused to hand over Seema (PW1) and brought her back
home. Seema (PW1) stayed at her house, during which time Sonu
(A4) again came and attempted to take Seema (PW1) away, which
was resisted. Thereafter, a letter was brought by Savita (PW2)
given by Haji (A1) and Sonu (A4) containing instructions for
Seema (PW1), including directions to destroy the same after
reading it. PW6 further deposed that Sonu (A4) later came to her
house and threatened her to hand over Seema (PW1), failing which
he would kill her children, whereupon she slapped him pursuant to
which he fled. Thereafter, Crime Branch officials were contacted
and Seema (PW1) was handed over to them. PW6 also deposed
that Narendar Singh (A2) used to visit her house frequently during
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the aforesaid time. PW6 lastly also deposed that before handing
over Seema (PW1) to Crime Branch, upon inquiry, the latter
disclosed to her that the entire incident was a planned conspiracy
at the instance of the accused persons. PW6 was not cross
examined despite opportunity being granted.
27.2. The materials on record show that as per Ext. PW32/B
DNA report, which is not seen challenged, it was the semen of
Sonu (A4) and Babloo Mandal that were found in the clothes of
PW1.
28. The other witnesses examined by the prosecution are
police officials who deposed about the various steps taken during
the course of investigation.
29. Now, coming to the question whether the aforesaid
evidence is sufficient to prove the prosecution case beyond
reasonable doubt against Haji (A1) and Narendar Singh (A2) and
whether the trial court was justified in finding them guilty of the
offences charged against them.
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30. It is true that Balbir Kaur (PW6) and Sushil Gulati
(PW12) were never cross examined. PW6 was examined-in-chief
on 02.07.2008. However, her cross examination was not conducted
on the said date. On the other hand, it was adjourned at the request
of the defense counsel. The case was adjourned to
21.08.2007[sic](21.08.2008). On the further dates, PW6 was not
examined as the case records had been sent to this court in
connection with a revision petition moved by the accused persons
against the order of framing the charge. On 03.02.2009, it is seen
recorded that Balbir Kaur (PW6) expired. Likewise, PW12’s
examination- in- chief started on 17.02.2011 and was completed
only on 21.01.2012. His cross-examination was adjourned on
several dates, the details of which are as follows –
S. No. Date of Order Order of trial court
1. 21.01.2012 ".....Statement of PW12 completed. Certain
fresh documents filed in the statement. Copy
provided to accused persons. Cross deferred as
defence counsel is not available.
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Put up for RPE on date already fixed i.e.
28.01.12.”
2. 28.01.2012 “….. PW Sushil Gulati, Ct. Lalit and Ct.
Praveen were present, discharged
unexamined.......
Ld. P.O. is on leave today.
As per the directions of Ld. P.O., put up for
purpose already fixed for 18.02.2012."
3. 18.02.2012 "....... Ld. P.O. is on leave today.
Put up for the purpose already fixed for 3.3.12.”
4. 03.03.2012 “………PW Sushil Gulati is present for cross
examination. He is discharged on the request of
accused persons.
Put up for remaining PE on 31/03/2012.”
5. 31.03.2012 “Accused all three on bail.
They seeks adjournment as their counsels are
not available.
Accordingly, PW Sushil Gulati is present and he
is discharged unexamined……
Put up for RPE on 21/04/2012.”
6. 21.04.2012 “Both the accused on bail with proxy counsel.
Proxy counsel seeks adjournment as learned
defence counsel Sh. S.C. Butan is out of
India…….
PW Sushil Gulati is present for cross
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examination. He is discharged
unexamined………
One revision of the accused persons is also
fixed for 16/05/2012 before the Hon’ble High
Court of Delhi and file has been called. So, on
request, put up for prosecution evidence on
26/05/2012.”
7. 26.05.2012 “Discharge accused/witness Sushil Gulati is
present. He hasstated that file has been sent
from the Hon’ble High Court of Delhi through
some special messenger, but still the same has
not been received.
All the three accused on bail.
Revision of the accused persons before the
Hon’ble High Court of Delhi is 03/07/2012.
PW Sushil Gulati and Lalit, who are present in
the court today, are discharged unexamined.
Put up on 07/07/2012.”
8. 07.07.2012 “Discharged accused/witness Sushil Gulati is
present for cross examination.
Accused both on bail.
Accused C.M. Dutta is exempted for today on
medical ground.
Learned defence counsels are not available for
cross examination of PW Sushil Gulati. Waited
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till 2.15 p.m. Accordingly, witness Sushil Gulati
is discharged unexamined.
Put upon 28/07/2012 for RPE.”
9. 28.07.2012 “Discharged accused Sushil Gulati is present
for cross examination.
All the three accused on bail.
Learned counsel for complainant has produced
copy of order of Hon’ble High Court of Delhi,
vide which, TCR was sent back, but the same
has not been received. The next date before the
Hon’ble High Court of Delhi is 16/08/2012.
Constable Ramesh Chand not served.
Inspector Prithvi Singh and Constable Lalit
Sirohi are present. He is discharged
unexamined.
File be awaited.
Put up for prosecution evidence on
04/08/2012."
10. 04.08.2012 ".........Sushil Gulati is discharged unexamined
for cross as main counsel for accused persons is
not available.
Put up on 25/08/2012 for remaining PE and
also for arguments on application for waiver of
cost already pending against the cost imposed
on 05/12/2007.”
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11. 25.08.2012 “Discharged accused/complainant in person.
File not received from the Hon’ble High Court
of Delhi. It is stated by discharged
accused/complainant Sushil Gulati that next
date before the Hon’ble High Court of Delhi is
28/08/2012, so case file has not been sent back
to this Court.
Accused C.M. Dutta, Haji Mohd. and Narender
on bail.
HC Kamal Singh, HC Lalit Sirohi, Constable
Pawan Kumarand Ct Narender Pal are present.
They are discharged unexamined.
IO in-charge PP MIG Flats, PS Rajouri Garden
is on leave till27/08/2012.
Inspector Prithvi Singh refused to accept the
summons. Issue his bailable warrants in the sum
of Rs. 5000/- with one surety in the like amount
for the next date of hearing.
HC Vijay Kumar is out of station.
File be awaited.
Put up for remaining prosecution evidence on
06/10/2012.”
12. 06.10.2012 “Discharged accused/complainant in person.
Accused all three on bail with counsel.
Copy of order also filed by accused C.M. Datta.
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He has filed criminal Revision Petition before
Hon’ble High Court of Delhi, which is pending
for 20/11/2012.
TCR is not received back as next date of hearing
before Hon’ble High Court of Delhi is 08/11/12.
BW of Inspector Prithivi Singh served. He is
absent.
Inspector Rajbir, Ct Pawan, HC Lalit, HC
Kamal Ct Narender are present. All are
discharged unexamined for want of TCR.
HC Vijay Kumar is served but absent. On
request he is exempted for today.
Inspector Ajeet served but absent.
Issue fresh BW as per previous order against
Inspector Prithvi Singh for next date of hearing.
Put up for remaining PE on 24/11/12.”
13. 24.11.2012 “Accused all three on bail.
Discharged accused/complainant is absent.
Inspector Prithvi Singh is out of station.
TCR is also not received back from Hon’ble
High Court of Delhi.
Put up for remaining PE on 15.12.12″
14. 15.12.2012 “All the three accused are on bail.
Discharged accused/complainant in person.
No PW is present.
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TCR is also not received back from Hon’ble
High Court of Delhi.
Ld. P.O. is on leave today.
As per direction of Ld. PO, put up for purpose
already fixed for 19.01.2013.”
15. 19.01.2013 “Accused all three on bail.
Discharged accused/complainant in person.
File be awaited for 23.02.2013.”
16. 23.02.2013 “Discharged accused/complainant in person.
Accused on bail.
Accused C.M. Dutta is absent. Issue his NBWs
and notice to surety U/s. 446 Cr.P.C. for the
next date of hearing.
File be awaited for 16/03/2013.
23/02/2013 at 10.50 a.m.
At this stage, accused C.M. Dutta has appeared.
He has moved application for cancellations of
NBWs. Heard. In view of submission, his NBWs
are recalled. PB and SB restored.
Put up on 16/03/2013, as already fixed.”
17. 16.03.2013 “Discharged accused/complainant in person.
Accused all on bail.
File be awaited for 27/04/13.”
18. 27.04.2013 “Discharged accused/complainant in person.
All accused on bail.
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Still file has not received back. Be awaited for
01/06/2013.”
19. 01.06.2013 “All the accused on bail.
Discharged accused/complainant in person.
It is stated that application of the accused
persons has been dismissed.
File be awaited for 20/07/2013.
20. 20.07.2013 “All the accused on bail.
File received from High Court.
Ld. PO is on leave today.
Put up on 17/8/13.”
21. 17.08.2013 “…. Exemption Appln. is given.
Ld. PO is on leave today.
Put up for the matter already fixed for 21/9/13.
22. 21.09.2013 “……..PW Sushil Gulati is present for cross. He
is discharged unexamined.
Put up for appearance on 17/10/2013.”
23. 23.09.2013 “Accused Narender in person with counsel.
Heard.
In view of the submissions, NBW’s of accused
Narender are recalled. PB and SB restored.
Put up on 17/10/2013, as already fixed.”
24. 17.10.2013 “Accused all three on bail.
File received.
PW Sushil Gulati is not present.
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Issue summons to the witness.
Put up for remaining PE on 26/10/13.”
25. 26.10.2013 “…….PW Sushil Gulati is present. He is
discharged unexamined.
Ct. Vinod is present. He is also discharged
unexamined.
HC Rohtash Singh is on election duty, hence
exempted for today.
Put up for appearance on 30/11/13.”
From the period between 31.10.2013 till 15.11.2014 the matter was listed on
several dates before the trial court for recording of evidence. However,
Sushil Gulati (PW 12) was never examined. On the said dates, the
examination of the other prosecution witnesses is seen conducted.
26. 15.11.2014 “Both the accused on bail with counsel.
PW Sushil Gulati is present for cross
examination. He submits that his sister expired
and he has to go, so, he is discharged for today.
Put upon 12/12/2014 for remaining prosecution
evidence.”
27. 12.12.2014 “Both the accused on bail.
Advocates are on strike.
SI Ram Avtar is present. He is discharged
unexamined for today being IO.
HC Vijay Kumar is exempted for today on
request.
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PW Sushil Gulati is served but absent. Be called
again.
Put up for remaining PE on 24/01/2015.”
28. 24.01.2015 “…..Complainant Sushil Gulati was summoned
for today. However, as per report he has
expired on 19/12/2014. Copy of his death
certificate has already been enclosed. No other
witness except IO SI Ram Avtar (Retired) is
present……..”
31. A perusal of the orders of the trial court given in the
aforesaid table demonstrates that Sushil Gulati (PW12) remained
consistently present before the trial court on all dates of hearing.
However, he was never cross-examined. It is further evident that
the examination-in-chief of PW12 was recorded over a span of one
year, and for nearly two subsequent years, while other prosecution
witnesses were examined; the victim himself was never cross-
examined. As to why, such a procedure was adopted by the trial
court is not clear. More than sufficient opportunity was afforded to
the defense for the cross-examination of PW12.Nevertheless, the
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defense failed to avail the opportunity. Despite being fully
conscious of the fact that referring to the aforesaid orders of the
trial court in detail would make this judgment prolix, the same has
been purposely done to demonstrate the extent to which PW12
Sushil Gulati was harassed. I have already referred to in detail the
testimony of the main prosecution witnesses, which would clearly
prove the prosecution case, as I find no materials to disbelieve
them. PW12 Sushil Gulati was not only falsely implicated in a
heinous crime of gang rape but was also subjected to custodial
violence and undue harassment at the hands of the police. He was
further harassed by being repeatedly summoned to court on
multiple dates, only to be sent back without his cross-examination
being conducted. It is a matter of great concern that the trial court
also did not effectively step in to prevent the harassment. The
request for adjournments for cross-examination is seen granted for
the mere asking. In addition to all this, quite an insensitive
argument is seen advanced on behalf of A1 and A2 before the trial
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court that – “they had no insight or supernatural knowledge that
the witness would die later on.” Nobody need have such “insight
or supernatural knowledge”. But they could have prevented such a
situation by cross-examining PW12 promptly instead of seeking
adjournment on every occasion possible. This is nothing but a
clear abuse of the process of law.
32. Similarly, it is seen that PW6 and PW9 were also not
cross-examined despite opportunity being granted. It appears that
delaying tactics was resorted to in the cross-examination of all the
important prosecution witnesses and the process of law was
misused to the maximum extent possible.
33. Here, it would be apposite to refer to Section 33 of the
Evidence Act, which reads thus:-
“33. Relevancy of certain evidence for proving, in subsequent
proceeding, the truth of facts therein stated.– Evidence given
by a witness in a judicial proceeding, or before any person
authorized by law to take it, is relevant for the purpose of
proving, in a subsequent judicial proceeding, or in a later stage
of the same judicial proceeding, the truth of the facts which itCRL.A. 286/2016 & connected matters Page 76 of 85
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states, when the witness is dead or cannot be found, or is
incapable of giving evidence, or is kept out of the way by the
adverse party, or if his presence cannot be obtained without an
amount of delay or expense which, under the circumstances of
the case, the Court considers unreasonable:
Provided — that the proceeding was between the same parties
or their representatives in interest; that the adverse party in the
first proceeding had the right and opportunity to cross-examine;
that the questions in issue were substantially the same in the
first as in the second proceeding.
Explanation.–A criminal trial or inquiry shall be deemed to be
a proceeding between the prosecutor and the accused within the
meaning of this section.”
(Emphasis Supplied)
34. For the Section to apply that is, the evidence becomes
relevant only when the witness is dead or cannot be found or is
incapable of giving evidence or is kept out of the way by the
adverse party or his presence cannot be obtained without an
amount of delay or expense which, under the circumstances of the
case, the court considers unreasonable. In this case, the ingredients
of Section 33 IEA are clearly attracted as ample opportunity was
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granted to the accused persons to cross-examine the witnesses.
However, the same was never availed and hence, it cannot
thereafter be argued that they never got an opportunity to cross-
examine the witnesses. It also needs to be noted that as per order of
this court dated 17.03.2009 in CRL.M.C. 8107/2006, direction had
been given to dispose of the matter as expeditiously as possible,
preferably within 08 months. The order was given as early as in
the year 2009. In the light of the said order, the trial court ought
not to have granted adjournments for the mere asking. PW12
Sushil Gulati died on 19.12.2014, that is, nearly 03 years after the
completion of his examination-in-chief. There was more than
ample time to complete his examination. The adjournments sought
for and granted is in clear or blatant violation of the order of this
Court. PW12 seems to have been harassed to the maximum extent
possible. Not only was he falsely implicated in an offence of such
heinous nature and later on beaten up/tortured in police custody,
even after the matter came up before the trial court, no effective
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steps are seen taken to protect him or at least prevent harassment.
On the other hand, he is seen to have been harassed to the
maximum extent possible by making him appear before the court
about 20 times, but sending him back without examining him. The
trial court ought to have been more vigilant and ought not to have
granted adjournments on the mere asking by the defence.
35. In the light of the dictum in Lakshmipat Choraria
(supra), PW1, PW2, PW6 and PW7 are competent witnesses.
Though they were extensively cross-examined, nothing was
brought to discredit their testimony. A reading of their testimony
makes it clear that they agreed to become part of the conspiracy
when substantial amounts were offered to them. All the said
witnesses, who appear to be from the lower financial strata of the
society, is seen to have fallen for the same. This Court is in no way
justifying their conduct. But, taking into account their financial
status, they seem to have fallen easy prey to the bait offered by the
accused persons. The argument advanced by the learned counsel
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for A2 that there is no evidence regarding the role of A2 in said
conspiracy sans merit. The witnesses have deposed about the role
of A2 all throughout the incident, beginning from his presence in
the chamber of A1 and that too in uniform. There is no explanation
given by A2 as to why he was present in the chamber of A1 on
different occasions. Savita (PW2) and Najma (PW7) also speak of
the presence of A2 outside St. Stephens Hospital where Seema
Kaur (PW1) was ‘thrown’ by Sonu (A4). I have already referred to
in detail the testimony of the witnesses, where several instances
are referred to showing the involvement and presence of A2 in the
conspiracy.
36. It is true that there are certain inconsistencies in the
testimony of the prosecution witnesses. However, no prosecution
case can be proved with mathematical precision. There are bound
to be inconsistencies in the testimony of the witnesses because the
incident took place in the year 2000 and the trial started only in the
year 2007. The witnesses were examined after a long delay. That
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being the position it cannot be expected that the witnesses would
be able to recall and recount the exact sequence of events that took
place without any variations whatsoever. On an overall
appreciation of evidence, I do not find any reasons to disbelieve
them. Hence, I find no infirmity in the impugned judgment calling
for an interference by this Court.
37. As stated earlier, CRL. A. 691/2016 was filed by the
legal heirs of PW12, that is, by his wife and two children. The
appeals were heard on 17.03.2026 and 18.03.2026. On 17.03.2026,
the third appellant in CRL.A. 691/2016appeared through VC and
submitted that they do not want to pursue the appeal. As no lawyer
was there to represent her, this Court directed her to submit her
request in writing. Till date nothing in writing has come before this
Court. But, once an appeal is admitted, the appellate court has to
decide it on merits. The Court cannot dismiss the appeal for
default.(See Bani Singh v. State of U.P AIR 1996 SC 2439).
Even if an appeal is not pressed, it has to be decided on merits.
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(See G. Raj Mallaiah & Ors. v. State of Andhra Pradesh, AIR
1998 SC 2315). In K.S. Panduranga v. State of Karnataka, AIR
2013 SC 2164, it has been held that the appeal can be decided on
merits in the absence of the counsel, provided the court appoints an
Amicus Curiae.
38. In the case on hand, the submission that the legal
representatives do not want to prosecute the appeal was brought to
the notice of this Court only when the appeals were taken up for
hearing. The appeals are of the year 2016. The incident is of the
year 2000. 26 years have elapsed. PW12 Sushil Gulati, never got
justice during his lifetime. Therefore, this Court did not want to
further delay the matter. Hence, relying on the dictum in Bani
Singh (supra), proceeded to consider the matter on merits after
going through the records in the case.
39. The crime committed by A1, a lawyer and A2, a police
officer is in no way justifiable. A lawyer is an officer of the Court,
whose duty is to defend his client and assist the court and not to
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indulge in such acts of implicating innocent persons in crimes.
Likewise, A2, a police officer, whose duty is to prevent crimes,
has in complete disregard to the same, indulged in acts which are
in no way justifiable. This is a fit case in which a more stringent
sentence ought to have been imposed so as to send a strong
message to the people occupying such positions, be it a lawyer or a
police officer, that Courts would not treat such crimes lightly or
turn a blind eye to such blatant misuse of their position and
authority. However, no appeal has been filed by the State under
Section 377(1)(b) Cr.P.C. against the sentence on the ground of its
inadequacy. On the other hand, the appeal has been filed by the
legal representatives of PW12 Sushil Gulati for enhancing the
sentence and compensation awarded by the trial court. The appeal
has obviously been filed by virtue of the proviso to Section 372
Cr.P.C. which contemplates three situations in which an appeal can
be filed by a victim against an order passed by the trial court – (a)
acquitting the accused; (b) convicting for a lesser offence or (c)
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imposing inadequate compensation. Obviously (a) and (b) are not
attracted in this appeal. What remains is (c), that is, against
inadequate compensation. As noticed earlier, the trial court has
directed that out of the fine amount, an amount of ₹2,00,000/- be
paid as compensation to the legal representatives of PW12 Sushil
Gulati. The total fine amount liable to be paid by A1 and A2 is
₹3,00,000/-, that is, ₹1,50,000/- each. In the light of the extent of
harassment and humiliation to which PW12 Sushil Gulati was
subjected to, I find that the compensation amount awarded is low. I
am quite conscious of the fact that PW12 Sushil Gulati is no more
and that the payment of any amount of compensation would in no
way compensate for the humiliation and mental agony he had to
undergo. Nevertheless, for meeting the ends of justice, I find that
the compensation amount should be enhanced to the entire fine
amount, that is, ₹3,00,000/-.
40. In the result, CRL.A. 286/2016 and CRL.A. 326/2016 are
dismissed. CRL.A. 691/2016 is partly allowed. The order on
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sentence of the trial court is modified thus – the entire fine amount
of ₹3,00,000/- shall be paid as compensation to the legal
representatives of PW12 Sushil Gulati.
41. Application(s), if any, pending shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
APRIL 04, 2026
rs/mj/kd
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