Delhi High Court
State vs Netrapal & Ors. on 10 May, 2011
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.Rev. P.No. 56/2008
Date of Decision : 10.05.2011
State ...... Petitioner
Through: Mr. M. N. Dudeja, APP
Versus
Netrapal & Ors. ...... Respondents
Through: None
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether 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 ?
V.K. SHALI, J. (oral)
1. This is a criminal revision petition filed by the State against
the order dated 05.09.2007 passed by the learned Additional
Sessions Judge, Patiala House Courts, New Delhi in respect of
an FIR No. 294/2006, under Section 365/368/376/34 IPC
registered by P.S. Mandir Marg, New Delhi
2. Briefly stated the prosecution's case is that one Ms. Poonam
lodged a complaint with police alleging that she was working
as a maid in House No. 62, Gandhi Sadan, New Delhi. It is
alleged that a person by the name of Narender/accused used
to run a shop near the said house and the prosecutrix used to
purchase various articles from him. It is alleged that the
accused, Narender induced her into a marriage proposal to
Crl.Rev. P.56/2008 Page 1 of 5
which she consented, and accordingly, on 14.07.2006 the
accused, Narender introduced the respondent, Netrapal to the
prosecutrix. The prosecutrix along with Netrapal went to
Ghaziabad. From Ghaziabad she is alleged to have been
taken to Netrapal's village but on reaching the village she
refused to marry. It is alleged that on the night of 14-15th
July, 2006, she remained in the village and on 16.07.2006,
she came back to Ghaziabad and stayed there with Netrapal,
Manju, wife of Netrapal and Maha Devi. It is alleged that on
17.07.2006 at about 2.00 A.M. accused, Narender came to
the bed of the prosecutrix and raped her. On 19.07.2006, it
is alleged that the accused Narender took her on the
motorcycle and left her at the Loni Border whereupon the
prosecutrix telephonically informed Ritu, the daughter of her
employer Ms. Kamlesh and later on it resulted in registration
of the FIR. The prosecutrix was medically examined and her
hymen was not found to be intact though there was no
external injury. The prosecutrix did not allow the internal
examination.
3. The accused, Narender was arrested and was examined by
the doctor at the Ram Manohar Lohia Hospital. On
examination, it was found that he was having history of
Urinary Calculi. The accused, Narender was examined by one
Dr. Rajiv Sood, Senior Urologist, the Head of Urological
Department as he had claimed that he is suffering from
Crl.Rev. P.56/2008 Page 2 of 5
erectile dysfunction. The PIPE (Pharmacologically Induced
Penile Erection Test) with half ML Papaverine and then with
2ML papaverine was done. This test did not give the
requisite rigidity, to his penis and consequently, doctor
opined that the accused, Narender was incapable of
performing sexual intercourse. On the basis of this medical
opinion, the accused, Narender sought discharge.
4. The learned APP had argued that the prosecutrix had made a
statement under Section 164 Cr.P.C. that she was raped by
the accused, Narender, and therefore, it was sufficient for
framing of charge. The learned Sessions Judge came to the
conclusion after examining the documents and the
statements of the witnesses that the charge of rape against
the accused Narender is groundless as he was incapable of
performing sexual intercourse.
5. Section 239 Cr.P.C. clearly lays down that if the charge of a
particular offence is groundless then the accused deserves to
be discharged. Relying on the said provision, the learned
Additional Sessions Judge had discharged the accused, which
has been assailed by the State in the present case.
6. It was contended by the learned APP notwithstanding the
opinion of the doctor, the learned Sessions Judge ought to
have framed the charge against the accused under Section
Crl.Rev. P.56/2008 Page 3 of 5
376 IPC, as there was a statement of the prosecutrix in this
regard.
7. No doubt, the prosecutrix had made a statement under
Section 164 Cr.P.C., but the question which ultimately will
arises is, as to whether such statement even if it remains
unassailed can be said prima facie correct in the light of the
opinion of the doctor, which shows by medical evidence that
the accused is incapable of performing sexual intercourse.
That is why the language of Section 239 Cr.P.C. is that if the
charge is considered to be groundless the accused deserves to
be discharged. Contemporaneous and attending
circumstances and facts of the present case clearly make out
a case that the allegations against the respondent/accused
are groundless, so far as the allegation of rape is concerned.
Therefore, the learned Sessions Judge was right in
discharging the accused. There were no injury marks on the
private parts of the prosecutrix and further she has also not
allowed the doctor to carry out the internal examination,
which clearly gives rise to a suspicion that it has been done
deliberately as it may reveal the truth. Normally, a woman
placed as the complainant would not refuse to undergo the
medical examination, if she has lodged a report with the
police for an offence of rape. Therefore, this militates against
the case of the prosecution prima facie. So far as the offence
under Section 365 and 368 IPC are concerned, the learned
Crl.Rev. P.56/2008 Page 4 of 5
Judge has observed that the prosecutrix had stated that she
is of 20 years of age and she had accompanied the accused
Netrapal with her consent, and therefore, no prima facie case
under Section 365 or 368 IPC is made out, much less a case
under Section 109 IPC for abetment is made out.
Accordingly, I do not find that there is any incorrectness,
illegality or impropriety in the impugned order passed by the
learned Sessions Judge in discharging the accused. The
petition is dismissed.
V.K. SHALI, J.
May 10, 2011
KP
