State v. Raj Kumar Kashyap @ Pappu

G. S. SISTANI, J FEBRUARY 23, 2016 gr CrI. LP 774/2014

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL LEAVE PETITION No. 774/2014 % Date of decision: 23'''^ February, 2016 STATE APPELLANT Through : Ms. Aasha Tiwari, APP for the State with SI Jagdeep Singh, Police Station - Geeta Colony. ..T Versus RAJ KUMAR KASHYAP @ PAPPU " w RESPONDENT Through : None. - CORAM : HON'BLE MR. JUSTICE G. S. SISTANI \ HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGALi I SANTIGA DHINGRA SEHGAL. J. (ORAL) | Crl. M. A. 18383/2015 (Delay in filing) 1. This is an application under Section 5 of Limitation Act read with Section 482 of the Code of Criminal Procedure filed by the State seeking condonation of delay of 7 days in filing the present leave to appeal petition. 2. Heard. For the reasons stated in the application, delay in filing the present leave to appeal petition is condoned. 3. Application stands disposed of. Crl. M. A. 18384/2015 (Delay in re-filing) 4. This is an application under Section 482 of the Code of Criminal Procedure filed by the State seeking condonation of delay of 3 days in re-filing the present leave to appeal petition. Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. 5^ 5. Heard. Delay in re-filing the present leave to appeal petition is condoned. 6. Application stands disposed of. Crl. LP No. 774/2014 7. The present leave to appeal has been filed by the State under Section 378(3) of the Code of Criminal Procedure being aggrieved by the impugned judgment dated 05.06.2015 passed by Learned Additional Sessions Judge, Fast Track Court, Shahdara, Karkardooma, Delhi thereby acquitting the respondent. 8. Assailing the impugned judgment, the learned counsel for the State contended that the judgment passed by the Trial Court is based on conjectures and surmises contratry to law and the proved facts; that the learned Trial Court erred in not appreciating the testimony of the prosecutrix in the right perspective and acquitted the respondent on the basis of minor conradictions; that the Trial Court erred in finding the testimony of the prosecutrix unreliable and coming to the erroneous conclusion that the prosecutrix went with the respondent on her own; that the sole testimony of the prosecutrix is sufficient to convict the accused without any further corroboration; that the prosecutrix was less than 18 years of age on the date of alleged occurrence and her consent was immaterial; that the learned trial court has overlooked the report "freshly hymen-torn" in the MLC of the prosecutrix; that the case of prosecution is based on the sound circumstantial evidence and could not be brushed aside during the cross examination of the witnesses; that since the age of victim was about 17 years at the time of occurrence, the accused is also liable to be convicted under POCSO Act, 2012; that for the above reasons, the Addditional Public Prosecutor for the State strongly urged for grant of leave to appeal to challenge the impugned judgment of acquittal. 9. Before delving into the merits of the present leave to appeal, we deem it appropriate to re-produce the facts as noticed by the Trial court, which are as under;- "On 20.07.2009, complainant Dinesh Sharma (PW-7) came at the Police Station and gave statement that his daughter W (name withheld), aged about 17 years, student of class 12th, had left for school at 7.00 am on 16.07.2009 but did not return back. He suspected that accused Raj Kumar Kashyap @ Pappu enticed away his daughter. Upon this, FIR was registered under Section 363 IPC. On 21.07.2009, W herself came at PS Geeta Colony and gave a statement that since last about one year, she has been receiving fits. She obtained treatment from various private doctors, but without any result. Someone from the neighborhood told her father about a "Tantrik" Raj Kumar Kashyap @ Pappu at Kailash Nagar, Gandhi Nagar. Her parents took her to him for treatment. Accused Raj Kumar Kashyap gave her a Tabeez and Bhabhuti and did some T