Virender Singh vs State
2010 Latest Caselaw 1430 Del

R-12

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                               Date of Decision:15th March, 2010


+                  CRL. APPEAL NO.5/2008

       VIRENDER SINGH                        ..... Advocate
                Through:      Ms.Shraddha Bhargava, Advocate

                              Versus

       STATE                                  ..... Respondent
                   Through:   Ms.Richa Kapoor, Advocate


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?       Yes

     3. Whether the judgment should be reported in the
        Digest?                                   Yes

PRADEEP NANDRAJOG, J. (Oral)

1. Noting that none appears for the appellant at the

hearing of the appeal we appoint Ms.Shraddha Bhargava

Advocate on the panel of the Delhi High Court Legal Services

Committee as the Amicus Curiae to argue the appeal.

2. Fee of learned counsel is fixed in sum of Rs.7,500/-,

to be paid by the Delhi High Court Legal Services Committee.

3. With reference to the testimony of the prosecutrix

Ms.‟SB‟, believing her version to be true, the learned Trial

Judge has convicted the appellant for the offence of having

raped the prosecutrix.

4. Vide order on sentence dated 6.11.2007, holding

that the appellant being a member of the police force justified

imposition of sentence to undergo imprisonment for life, thus,

sentence imposed upon the appellant is to undergo

imprisonment for life for the offence of rape. For the offence

of intimidating the prosecutrix i.e. the offence punishable

under Section 506 IPC, the appellant has been sentenced to

undergo RI for one year.

5. The appellant examined himself as DW-1 and

before that when examined under Section 313 Cr.P.C, stated

as under:-

"I was posted as constable at PS Kalkaji for about 1- 1½ year prior to the date of my apprehension. During the course of my duty I met the prosecutrix while MCD official wanted to demolish a shutter placed by her at her shop cum residence. After that she also met me and complaint about a lady residing at B 133 behind her house. She gave me her mobile number as well as I also gave my mobile number to her. I alongwith ASI Anita conducted the inquire to that complaint and on 23/12/04 I went to her house alongwith ASI Anita where her father and retired ACP Hukum Chand Rana were present and subsequently a false case was registered by prosecutrix on the dictation of Hukum Chand Rana and I was arrested.

She used to call me on my cell phone occasionally and I also used to respond. I had a mobile phone number 9818165880 and Sangeeta had a mobile phone no. 9818105276. There are many calls exchange between before to the date of incident and also on the night of the alleged incident i.e. 23/12/04 details of these calls have been put by me in my cross examination of prosecutrix.

On 22/12/04 at about 10:15 p.m that Sangeeta accompanied me from her house to Jain Restaurant at Connaught Plact and we took dinner there and remained there till 12 mid night. She told me that I should do something of her in laws and also the neighbourer with whom she had quarreled. She insisted that I should lodge false complaint against her in laws on which I told her that I will inform them of her intention. I came back to her house and she wanted me to drop her on the back side of her house and when she left the gypsy she left the purse in the gypsy and I then went to her house to deliver the purse, she asked me to take tea and she started seducing me which I resisted because of which she got annoyed. She also called me in the morning but disconnected it and on seeing missed call I called her and tried to pacify her. Her father is a close friend of Hukum Chand Rana Retired ACP and in consultation with them a false complaint was lodged and I was arrested because she apprehended that I might inform her in laws about her intentions of making false complaint. I would like to produce evidence in defence."

6. A perusal of the testimony of the prosecutrix shows

that she was having a matrimonial problem with her husband

and the appellant who was a beat constable in the area and

had probably been helping her in the said matter.

7. The prosecutrix claimed that on 23.12.2004 at

around 9:30 PM the appellant came to her house and asked

her for a glass of water. As she went to the kitchen to bring

water, appellant followed her and threatened her using his

service pistol and compelled her to succumb to his demand for

sexual favour. As per the prosecutrix after satisfying his lust

the appellant remained in her house till 5:30 AM. She was

confused and did not know what to do till she consulted her

parents and only thereafter reported the matter to the police

the next date i.e. on 23.12.2-004 at around 1:45 PM.

8. On being cross-examined the prosecutrix admitted

that telephone No.26210874, a landline number, was installed

in a boutique being run by her and that she was the subscriber

of a mobile telephone having No.9818105276. She neither

affirmed nor denied that the mobile number of the appellant

was 9818165880.

9. During cross-examination she admitted having

given her mobile number to the appellant. Confronted with

various calls made from the landline No.26210874 and the

mobile No.9818105276 to the mobile No.9818165880 she

feigned ignorance of having rung up the appellant. But, she

admitted: „the accused used to telephone to me and I also

used to telephone him in case of any difficulty‟.

10. Pertaining to the events between 9:30 PM to 5:30

AM on the intervening night of 22nd and 23rd December 2004

the prosecutrix stated that no person had visited her house

during said time period and that she did not remember

whether the appellant received any call on his mobile number.

She denied having made a call at mobile number of the

appellant at 21:35 hrs on 22.12.2004 or that the appellant

rang her on her mobile number at 12:45 AM i.e. in the middle

of the night. She volunteered: „the accused might have

telephoned on my mobile and left it open for 8 minutes‟.

11. As noted hereinabove, the defence of the appellant

was that he did nothing of the sort as claimed by the

prosecutrix and that the prosecutrix has been in constant

touch with him through their respective mobile telephone

numbers and that the two had taken dinner at Jain Restaurant

at Connaught Place where they remained till 12:00 midnight.

Thereafter, he left the prosecutrix to her house.

12. We note that the mobile call details of the

telephone No.9818165880 i.e. of the appellant have been

marked „B‟ during trial by the learned Trial Judge and the same

shows 7 calls made by the appellant to the prosecutrix on

22.12.2004 between 8:05 PM to 5:57 AM the next day i.e.

23.12.2004. The same also shows that at 11:35 PM on

22.12.2004 the prosecutrix has made a call to the appellant.

13. Interestingly, the 8 calls exchanged between the

prosecutrix and the appellant show that the appellant was

within the vicinity of cell tower No.1603 on three occasions, at

the vicinity of cell tower No.1601 on one occasion, in the

vicinity of tower 20581 on one occasion, in the vicinity of tower

No.3271 on two occasions and in the vicinity of tower No.23 on

one occasion. The date and the time of the said 8 calls are as

under:-

             S.No. Date                Time

             1.    12/22/2004          20:05:30

             2.    12/22/2004          20:40:09

             3.    12/22/2004          20:48:52

             4.    12/22/2004          21:24:46

             5.    12/22/2004          21:31:31

             6.    12/22/2004          21:35:28

             7.    12/23/2004          00:40:45

             8.    12/23/2004          05:57:07

14. It is apparent that between 9:30 PM of 22.12.2004

and till 5:57 AM on 23.12.2004 the appellant was within the

vicinity of different mobile towers.

15. The aforesaid prima facie belies the claim of the

prosecutrix.

16. How has the learned Trial Judge dealt with the

aforesaid evidence?

17. To our mind, in a most clumsy and injudicious

manner. The learned Trial Judge has trivialized the same, in

para 8, as under:-

"So far as the relations and making calls are concerned that in my opinion is of no help to the accused. Simply because the accused was having her number and accused was known to the prosecutrix or that the prosecutrix discussed her problems with the accused herein and asked him to solve the same does not mean that he got the right to have sexual intercourse with her."

18. The learned Trial Judge has treated the issue as if it

was child play.

19. It is apparent that material evidence has been

deliberately misread by the learned Trial Judge after trivializing

the same. The stand of the prosecutrix during cross-

examination that on 21:35 hours the two telephone numbers

show a talk of considerable duration is the result of the

appellant telephoning on her mobile and leaving her mobile

open for 8 minutes, to say the least, is ridiculous.

20. It is apparent that the appellant and the prosecutrix

were known to each other. It is apparent that the prosecutrix

was using the services of the appellant to further her interest

in the criminal prosecution which she had launched against her

husband and in return, the appellant was using the youth of

the prosecutrix. It is apparent that the two were on more than

on friendly occasion. If at all they had sex in the night as

claimed by the prosecutrix it has to be sex by consent.

21. In any case the claim of the prosecutrix that the

accused i.e. the appellant remained in her house from 9:30 PM

to 5:30 AM is false.

22. The appellant is accordingly entitled to an acquittal.

23. We may clarify that if the department is interested

in any action against the appellant they may proceed against

him for having intimate relations with a lady in distress and to

that extent misusing his position as a police officer to help her

in prosecuting the husband of the prosecutrix.

24. But, as regards the charge against the appellant of

having raped and criminally intimidated the prosecutrix, we

hold that the appellant is entitled to be acquitted of the said

charges framed against him.

25. The appeal is allowed. Impugned judgment and

order dated 30.10.2007 convicting the appellant for offences

punishable under Section 376 (2)(a) and Section 506 IPC is set

aside. The order on sentence dated 6.11.2007 is quashed.

26. The appellant is directed to be set free unless he is

required in custody in some other case.

27. Since the appellant is in jail we direct that a copy of

this decision be sent to the Superintendent Central Jail Tihar

for necessary action.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE March 15, 2010 mm