Delhi High Court
State Nct Of Delhi vs Sonu on 23 March, 2010
Author: Pradeep Nandrajog
i.1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision:23rd March, 2010
+ CRL.L.P. No.106/2009
STATE N.C.T. OF DELHI ..... Petitioner
Through: Mr.Saleem Ahmed, ASC
for State.
versus
SONU ..... Respondent
Through: Mr.Anil Gautam, 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?
3. Whether the judgment should be reported in the
Digest? Yes
PRADEEP NANDRAJOG, J. (Oral)
1. The State seeks leave to appeal against the
judgment and order dated 24.09.2008.
2. Vide impugned judgment the learned Trial Judge
has acquitted the respondent of the charge punishable under
Section 376/506 IPC.
3. Prosecutrix PW-1 and her mother PW-2 have been
disbelieved by the learned trial Judge.
4. With reference to the observations of the learned
Trial Judge in para 21 of the impugned decision, learned
counsel for the State urges that it is apparent that the learned
Trial Judge has been greatly influenced by the fact that the
witnesses of the prosecution i.e. PW-1, PW-2 and PW-10 were
related to each other and independent witness has not been
examined. It is pointed out that the learned Trial Judge has
also been influenced by the fact that the social conduct of PW-
2 i.e. mother of the prosecutrix PW-1, was not good and for
said reason, learned counsel urges, testimony of PW-2 has not
been correctly appreciated. Lastly, it is urged that assuming
that the prosecutrix was a consenting party to having sex with
the respondent, she being a minor her consent was
immaterial.
5. It is true that in para 21, the learned Trial Judge has
prefaced the discussion and the evidence by referring to the
close relationship between PW-1, PW-2 and PW-10, the learned
Trial Judge has also prefaced that the social conduct of the
mother of the prosecutrix was not creditworthy.
6. But, we find that aforesaid features have not been
used while discussing the evidence.
7. In para 22 of the impugned decision, the learned
Trial Judge has discussed the testimony of PW-1 i.e. the
prosecutrix and has highlighted as many as 5 serious
contradictions or improvements in what the prosecutrix
deposed in Court vis-à-vis her statement Ex.PW-1/1 on basis
whereof the FIR was registered.
8. Inter alia, the learned Trial Judge has brought out
the contradictory stand of a one-time rape vis-à-vis repeated
rape as stated on different times by the prosecution. The
learned Trial Judge has also found a contradiction whether the
prosecutrix narrated the incident of rape to PW-2 or PW-10 or
only to PW-10. That apart, the learned Trial Judge has found a
serious improvement and also an improbability in the
testimony of the prosecutrix in the Court who claims that when
she told her mother that the respondent had raped her, her
mother wanted to verify the truthfulness of the same and
required the prosecutrix to lie on a bed while the mother hid
herself in another room and when the respondent started
fondling with the prosecutrix the mother saw the said act and
took the accused away from the room in which the prosecutrix
was sleeping. Further improbability as also improvement
noted by the learned Trial Judge is that the prosecutrix stated
that her brothers were sleeping in the same room where she
was raped but were threatened by the accused with violence if
they protested.
9. We find that the discussion of the testimony of the
prosecutrix by the learned Trial Judge is premised on the
fundamentals of appreciation of ocular evidence. We concur
with the view taken by the learned Trial Judge that so shifting
and vacillating is the testimony of the prosecutrix that it is
difficult to believe her. If that be so, we cannot even hold that
it is a case of sex by consent. It would be difficult to accept
the claim of the prosecutrix that she was subjected to sexual
intercourse by the respondent.
10. As regards the testimony of PW-2, the mother of
the prosecutrix, the learned Trial Judge has dealt with the
same in para 23 of the impugned decision. We concur with the
view taken by the learned Trial Judge.
11. It is settled law that the presumption of innocence
gets re-fortified with a decision of acquittal. It is settled law
that as long as the learned Trial Judge has appreciated the
evidence within the known parameters of the principles of law
relating to evaluation of the testimony of the eye-witnesses,
merely because another view is possible would not be a
justification by the Appellate Court to take a contrary view.
12. No case is made out to grant Leave to Appeal
against the impugned decision. The Leave Petition is
dismissed.
PRADEEP NANDRAJOG, J.
March 23, 2010 SURESH KAIT, J.
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