State v. Mohinder Bajaj & Anr.

1. This criminal appeal has been prefened by the State to challenge the order dated 8^'' December, 2012 passed by the learned Additional 2013:DHC:7162 Sessions Judge thereby acquitting the accused persons Mohinder Bajaj and Ramesh from the charges under Sections 355/367/506/34 IPC after giving them benefit of doubt on the failure of the prosecution to prove and substantiate the allegations against them.

2. Assailing the order Mr. Naveen Shanna, APP for the State submits that the learned Trial Court committed grave enor by not appreciating the fact that testimony ofPW-1 is admissible under Section 118 ofthe Indian Evidence Act, 1872 and his testimony could not have been disregarded merely because he was suffering from mental retaidation upto 60%. Counsel also argued that the learned Trial Court also failed to appreciate that the law is well settled that sole testimony of the victim of sexual abuse can be a ground to convict the accused persons. Contention raised by counsel for the appellant is that the learned Trial Court committed a grave enor in disregarding the testimony of PW-1 for the reasons that there was no other witness to the incident. Counsel also argued that the learned Trial Court has given undue weightage to the minor and small contradictions regaiding date, time and place in the testimony of the witnesses. Counsel further argued that learned Trial Court did not appreciate the fact that the testimony ofthese witnesses were recorded after agap of 14-15 years from the date of the incident and, therefore, not much significance could be attached to the minor contradictions taken place in their testimonies. Counsel also argued that learned Sessions Court also committed an eiTor in taking a view that there is no medical, forensic or any other circumstantial evidence to support the version given by the victim as in every case medial or forensic evidence may not be available but yet based on the ocular and circumstantial evidence the prosecution can succeed in seeking the conviction ofthe accused persons.

3. Basedon the above submissions, counsel for the appellant seek grant of criminal leave to appeal to challenge the impugned order dated S"" December, 2012. 1have heard learned counsel for the appellant and given my anxious consideration to the arguments advanced by him. 1 have also gone through impugned order passed by the leamed Additional Sessions Judge.

5. The case of the prosecution is that on 1.12.1997 the complainant/ victim Deepak Rai went to Police Station Model Town and gave his statement to the Duty Officer. In his statement Deepak Rai had infomied the police that on 24T[1].1997 at about 9.00 p.m. Mohinder Bajaj and Ramesh who were in amamti car came near Gole Chakkar and made him sit in the car. Ramesh was driving the car at that tmie and they took him in a jungle near ITO where Mohinder Bajaj inserted his penis in his mouth and gave him some rupees which he threw. Thereafter, they dropped him at Rana Pratap Bagh, Gole Chakkar and threatened him not to disclose this incident to anybody. On the basis of the said statement of Deepak Rai, this case was registered. The charges under Sections 377/506/34 IPG were framed against both the accused persons, namely Mohuider Bajaj and Ramesh towhich they had pleaded not guilty and claimed trial,

6. in order to prove its case the prosecution had examined 5 witnesses PW-l being Deepak Rai, who is the complainant ofthe said FIR and the victim of the crime. This witness is physically challenged person, but before recording his statement learned Trial Court satisfied itself about his capability to depose and to answer the questions put forth in his cross-examination. PW-2, Hukumat Rai is the father of the victim. PW-3, Anil Chandi is the resident of the same areawho being the General Secretary of Resident Welfare Association of Rana Pratap Bagh knew the victim as well as his father, PW -4 Sardar Hanninder Singh is also the resident of the same area and he knew both of them for the last 20 years, PW-5, PW-6 and PW-7 are the police witnesses. After critical analysis of the evidence of the said witnesses and perusing the material on record, the Sessions Court found that the prosecution has not been able to prove and substantiate the allegations against the accused Mohinder Bajaj and Ramesh beyond reasonable doubt. The learned Sessions Court thus passed an order of acquittal after giving the accused persons benefit of doubt. The learned Sessions Court is right in observing that only incriminating evidence against the accused is the sole testimony of Deepak Rai, the victim in the alleged crime and his sole testimony remained unconoborated through any other ocular or circumstantial evidence.

7. The sole testimony of the victim Deepak Rai also failed to enthuse any confidence because of the material contradictions in so far as the date, time and place of the incident was concerned. The other -V f witnesses also failed to prove the prosecution story and in fact Sardar Hanninder Singh PW-4 turned hostile and as per the stand taken by the appellant in the present appeal the possibility ofPW- 4 having been won over by the accused Mohinder Bajaj cannot be ruled out.

8. One can also not lose sight ofthe fact that even the complaint was registered after ir.uch delay and, therefore, the learned Sessions Court rightly observed that the benefit ofthe same should be given to the accused persons. For the prosecution to succeed in establishing the guilt against the accused persons the sequence of chain of evidence establishing the guilt has to be proved beyond all probabilities and not mere at every step defence can be created. In the facts of the present case the prosecution has failed to prove the said charges against the accused persons beyond reasonable doubt and even the sole testimony ofPWl iftaken into consideration cannot lead to establish the guilt of the accused persons because ofmany contradictions with regard to the vital facts.

9. There is no illegality, perversity or impropriety in the order passed by the learned Sessions Court. There isno merit in the contentions raised by counsel for the appellant in the present criminal leave to appeal. therefore, the same is accordingly declined.

FEBRUARY 18,2013 rkr KAILASH GAMBHIR, J