KRISHAN KUMAR MALIK versus STATE OF HARYANA

Citation: [2011] 8 S.C.R. 774 · Decided: 04-07-2011 · Supreme Court of India · Bench: DALVEER BHANDARI · Disposal: Appeal(s) allowed

Cited by 7 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
(2011) 8 S.C.R. 774 
KRISHAN KUMAR MALIK 
v. 
STATE OF HARYANA 
(Criminal Appeal No. 1252 of 2011) 
JULY 04, 2011 
[DALVEER BHANDARI AND DEEPAK VERMA, JJ.] 
Penal Code, 1860: 
c 
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) -
0 
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 
E offered by her in this regard - Initially the prosecutrix reported 
that there were in all 1 O persons but later on she deposed that 
the_re were only eight persons and at some place she naffated 
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 
F 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' 6n tall and 
thus by no stretch of imagination, he could be called a gitta 
(short statured) man - Also, no spot maps were prepared 
G 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 
H 
774 
KRISHAN KUMAR MALIK v. STATE OF HARYANA 
775 
present, but the prosecution did not examine the aunt or her A 
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 B 
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 c 
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 judgment of the High Court - In 
the undergarments of the prosecutrix, male semen were found 0 
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 
E 
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. 
F 
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. 
G 
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 
H 
776 
SUPREME COURT REPORTS 
[2011) 8 S.C.R. 
A 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

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