NDLI: Krishan Kumar Malik Vs. State of Haryana

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Penal Code 1860
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Indian Penal Code (45 of 1860)
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Penal Code, 1860: ss.376(2)(g) and 366 - Abduction of PW-9 (prosecutrix) from her aunt's house and subsequent gang-rape - Eight accused - Solitary evidence of the prosecutrix - Six accused convicted under s.366 while accused-appellant and another accused convicted under both s.366 and s.376(2J(g) - Conviction of appellant - Justification. - Held: Not justified - The evidence of the prosecutrix did not inspire confidence - She did not mention the name of appellant in the FIR, instead she described him as Gitta (Short statured) with beard, even though she was aware of his name - · No explanation was offered by her in this regard - Initially the prosecutrix reported that there were in all persons but later on she deposed that there were only eight persons and at some place she narrated that only 7 persons were there -During investigation, the prosecutrix was taken to the area, to point out the Kathi, where she was spid to have been subjected to rape, but she failed to identify the said kothi, which fully belies her case - All through, the prosecutrix described appellant as gitta (short statured) man with beard, whereas he was in fact 5' 6" tall and thus by no stretch of imagination, he could be called a gitta (short statured) man - Also, no spot maps were prepared either by the Naib Tehsildar or by the lnvestigaing Officer - This was a lacuna on the part of the investigating agency and prosecution, the benefit of which must accrue to the Appellant - According to the prosecutrix, she was abducted from the house of her aunt where her husband and sons were also present, but the prosecution did not examine the aunt or her husband, their sons or any of their neighbours - No plausible and valid reasons were given for their non-examination - There were several significant variations in material facts in the s.164 statement of the prosecutrix, her s.161 statement · (Cr.P. C.), FIR and deposition in Court- The mother and sister of the prosecutrix were not examined, even though their evidence would have been vital as contemplated under s. 6 of the Evidence Act as they would have been Res Gestae witnesses - High Court, on the same set of evidence acquitted two accused, without assigning any cogent, valid or specific reasons for it whereas on the same very set of evidence, the Appellant was found guilty - Why the same benefit could not have been bestowed to the Appellant has not been dealt with specifically in the impugned judgement of the High Court - In the undergarments of the prosecutrix, male semen were found but these were not sent for analysis in the forensic laboratories which could have conclusively proved, beyond any shadow of doubt with regard to the commission of offence by the Appellant - This lacuna on the part of the prosecution proves to be fatal and goes in favour of the Appellant - Appellant is a physically handicapped person to the extent of 55% as per Doctor's Report - This handicap would have been much better identification of the Appellant, which the prosecutrix did not mention at all - There were thus various shortcomings, irregularities and lacuna on the part of the prosecution ; Appellant accordingly acquitted.Evidence Act, 1872 - s. 6 - Res gestae witness - Held: The statements said to be admitted as forming part of res gestae must have been made contemporaneously with the act or immediately thereafter. Code of Criminal Procedure, 1973 - s.53A - Allegation of rape - Effect of incorporation of s.53A CrPC - Held: After incorporation of s.53A in CrPC w.e.f. 23.06.2006, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused - Prior to 2006, even without the aforesaid specific provision in the Cr.P. C. prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the accused - In the B instant case, in the undergarments of the prosecutrix, male semen were found but these were not sent for analysis in the forensic laboratories which could have conclusively proved, beyond any shadow of doubt with regard to the commission of offence by the accused-appellant - This lacuna on the part of the prosecution goes in favour of the accused-appellant - Medical Jurisprudence.
Judge	Hon'ble Mr. Justice Deepak Verma
Neutral Citation	2011 INSC 437
Petitioner	Krishan Kumar Malik
Respondent	State Of Haryana
SCR	[2011] 8 S.C.R. 774
Judgement Date	2011-07-04
Case Number	1252

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