Advocate and Cop Conspired to Frame Innocent Witness in Fake Gang Rape Case: Delhi High Court Upholds Conviction, Calls It "Clear Abuse of Process of Law"

In a case exposing a chilling conspiracy between a practising advocate and a police Sub-Inspector to destroy an innocent man for daring to rescue a molestation victim, the Delhi High Court has upheld the conviction of both accused while sharply censuring the trial court for allowing the victim to be summoned over twenty times and sent home without cross-examination — a process the Court called a "clear abuse of the process of law."

Justice Chandrasekharan Sudha, deciding the consolidated appeals , also enhanced the compensation payable to the legal representatives of the deceased victim from Rs. 2,00,000 to the entire fine amount of Rs. 3,00,000, holding that the harassment and humiliation he endured could not be adequately measured in money.

The case has its origins in a courageous act. On June 6, 2000, Sushil Gulati (PW12), a resident of Rajouri Garden, Delhi, rushed to rescue Jeevan Lata Gandhi, wife of his neighbour PW9, from the clutches of one C.M. Dutta (A3), a serving chowki-in-charge of the Rajouri Garden area, who was misbehaving with her. Gulati succeeded in rescuing her. A3 left after threatening Gulati with dire consequences. The incident led to the registration of Crime No. 579/2000 under Sections 354 and 506 IPC against A3, in which Gulati was the principal witness. A3 was subsequently suspended from service.

The principal questions before the Court were: whether the prosecution witnesses PW1, PW2, PW6 and PW7, being accomplices, could be examined without following the procedure of pardon under Sections 306 or 307 CrPC, and whether their testimony was admissible; whether the uncross-examined testimony of PW12 Sushil Gulati could be relied upon after his death; and whether the compensation awarded was adequate.

On Accomplice Evidence — Sections 306/307 CrPC Not Mandatory Prerequisites

The most forceful legal argument of the accused was that PW1, PW2, PW6 and PW7 were accomplices in the conspiracy and could not have been examined as prosecution witnesses without first being tendered pardon under the procedure prescribed in Sections 306 or 307 CrPC. Reliance was placed on a Kerala High Court ruling in Abdul Razak alias Abu Ahmed v. Union of India, (2021) SCC OnLine Ker 3282, which had held that a co-accused tried and convicted for the same offence cannot be examined as a witness unless the pardon procedure under Section 306/307 is followed.

The Court distinguished that ruling decisively. In Abdul Razak, the proposed additional witness had himself been arraigned as a co-accused in the very same transaction. In the present case, none of the four prosecution witnesses had ever been arraigned as accused at any point. The Court relied on the Supreme Court's authoritative ruling in Lakshmipat Choraria v. State of Maharashtra, AIR 1968 SC 938, which had established that under Section 118 of the Indian Evidence Act all persons are competent to testify, and under Section 133 an accomplice is a competent witness against the accused. "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." The Court held: "The provisions of Section 306 or 307 CrPC are not mandatory conditions for examining a witness who was never arraigned as an accused." The argument was accordingly rejected and the competency of all four witnesses affirmed.

On the Uncross-Examined Testimony of PW12 — Section 33 of the Evidence Act

PW12 Sushil Gulati, the victim himself, had appeared before the trial court on over twenty occasions across nearly three years after completing his examination-in-chief. On each date he was present and ready to be cross-examined. On each occasion the defence sought and obtained adjournments — on grounds ranging from the defence counsel being abroad, the Public Officer being on leave, trial court records having been sent to the High Court in revision proceedings, and the absence of the main counsel. Gulati died on December 19, 2014, without ever being cross-examined.

The Court held that the conditions of Section 33 of the Indian Evidence Act were squarely fulfilled: the witness was dead, and the adverse party had been given the right and opportunity to cross-examine but had declined to avail it. "Where ample and repeated opportunity was granted to the defence to cross-examine PW12 but was not availed, the ingredients of Section 33 IEA are clearly attracted and PW12's evidence is admissible as though cross-examined."

The Court then directed its sharpest words at the conduct of the trial court itself: "The trial court ought to have been more vigilant and ought not to have granted adjournments on the mere asking by the defence." It held that the granting of repeated adjournments was in "clear or blatant violation" of this Court's own earlier direction to dispose of the matter expeditiously within eight months, issued in 2009. The Court called out the insensitivity of an argument advanced by the accused before the trial court — that they had no "insight or supernatural knowledge" that the witness would die. "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."

On the Role of a Lawyer and a Police Officer

The Court reserved particular censure for the nature of the accused. A1 was a practising advocate — an officer of the court. A2 was a Sub-Inspector of Police — a protector of citizens. Both had betrayed their offices to victimise an innocent man. "A lawyer is an officer of the Court, whose duty is to defend his client and assist the court and not to 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." The Court expressed that a more stringent sentence ought to have been imposed to send a strong message, but noted that since the State had not filed an appeal for enhancement of sentence, the sentence could not be enhanced by the High Court in these proceedings.

On the Appeal Not Being Pressed — Must Be Decided on Merits

The legal representatives of PW12 had filed CRL.A. 691/2016 seeking enhancement of compensation. During hearing, one of the appellants stated they did not wish to pursue the appeal. The Court declined to dismiss the appeal on this basis, relying on Supreme Court authority in Bani Singh v. State of U.P., AIR 1996 SC 2439 and G. Raj Mallaiah v. State of Andhra Pradesh, AIR 1998 SC 2315. "Once an appeal is admitted, the appellate court has to decide it on merits. The Court cannot dismiss the appeal for default." The Court proceeded to decide it on merits.

On Enhancement of Compensation

The trial court had directed that Rs. 2,00,000 out of the total fine of Rs. 3,00,000 be paid as "token compensation" to PW12's legal representatives. The High Court found this inadequate. It enhanced the compensation to the entire fine amount of Rs. 3,00,000, noting with sorrow 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." The Court also noted pointedly that PW12 "never got justice during his lifetime."

CRL.A. 286/2016 (A1's appeal) and CRL.A. 326/2016 (A2's appeal) were dismissed and conviction under Sections 120B, 193, 195, 218, 465 and 389 read with 120B IPC upheld. CRL.A. 691/2016 (victim's appeal) was partly allowed with compensation enhanced to Rs. 3,00,000, the entire fine amount, payable to the legal representatives of PW12 Sushil Gulati.

Date of Decision: April 4, 2026