State vs Saurabh Vashisht
2013 Latest Caselaw 3562 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.L.P. No.141/2013 & Crl.M.A.No.3457/2013


                                           Date of Decision 13.08.2013
IN THE MATTER OF :
STATE                                              ..... Petitioner
                         Through : Mr. Naveen Sharma, APP for State
                         with ASI Surender Pal Hudda, PS Krishna
                         Nagar.

                         versus

SAURABH VASHISHT                                      ..... Respondent

Through : None.

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI

1. The present petition has been filed by the petitioner/State under

Section 378 Cr.P.C. praying inter alia for grant of leave to assail the

judgment dated 27.9.2010 passed by the learned ASJ in SC

No.181/2012, whereunder the respondent has been acquitted in case

FIR No.528/2008 registered under Section 376/506 IPC at PS Krishna

Nagar, Delhi.

2. The brief facts of the case as culled out from the impugned

judgment are that in October, 2007, the prosecutrix had come in

contact with the respondent through internet chatting, whereafter both

the parties had started meeting each other and the respondent had

expressed to her that he was in love with her and had insisted that he

wanted to marry her. One day on 17.02.2008, the respondent took

the prosecutrix to his house and when his family members were not

present there, the respondent had forcibly established a physical

relationship with her and thereafter continued to exploit her while

holding out a promise of marriage to her. The prosecutrix alleged that

in the month of September, 2008, she had tried to commit suicide out

of desperation and the respondent had got her admitted in a hospital

for treatment. Thereafter, when the prosecutrix had informed her

parents about her relationship with the respondent, the parents of

both the parties had met with each other but they did not agree to

their marriage. The prosecutrix then filed a complaint with the SHO,

PS Krishna Nagar, Delhi on 18.11.2008 and subsequently, the

aforesaid FIR was registered on 9.12.2008 under Section 376 IPC.

3. After the investigation was concluded, the case was committed

to the Sessions Court and charges were framed against the

respondent. The prosecution had examined 12 witnesses in support of

its case, including the prosecutrix (PW-2), the Manager of a hotel in

Mussoorie (PW-3), and IO Sarabjit Singh Minhas (PW-12). After

recording the testimony of the prosecution witnesses, the statement of

the respondent was recorded, wherein he had stated that he had

established a physical relation with the prosecutrix with her implicit

consent and there had never been any force, pressure or false

assurance from his side. However, no defence evidence was led in the

case.

4. After examining the ocular and the documentary evidence on

record and considering the arguments addressed by the counsels for

the parties, the trial court had arrived at the conclusion that the

prosecution had miserably failed to prove the charge against the

accused/ respondent beyond reasonable doubt and resultantly, he was

acquitted for the offence under Section 376 IPC. Aggrieved by the

aforesaid acquittal order, the State has filed the present petition

seeking leave to file an appeal against the said judgment.

5. Learned APP for the State submits that the trial court had erred

in overly emphasising the events that had occurred after the incident

of rape in the month of February, 2008 instead of taking note of the

events prior to the incident, i.e., the act of the respondent taking the

prosecutrix to his residence knowing fully well that there was nobody

at home and using a ploy to persuade her to visit his residence to

meet his parents. He further submits that the trial court had failed to

appreciate the fact that till the stage when the respondent had

established a physical relationship with the prosecutrix, there was no

talk of any promise to marry her and therefore it could not be

concluded that the prosecutrix was a consenting party to the physical

relationship with the respondent. It is lastly argued that the delay in

lodging the aforesaid FIR against the respondent cannot be treated as

fatal to the case.

6. The Court has heard learned APP for the State, perused the

impugned judgment and examined the trial court record. A perusal of

the records reveals that at the time of the incident, the prosecutrix

(PW2) was 24 years of age. She had stated in her cross-examination

that when the respondent had requested her to meet his parents, she

had decided to change their relationship to something more than that

of friendship. She had also admitted that she used to meet the

respondent normally even after the incident of February, 2008, and

used to talk with him for hours together and used to exchange SMSs

and e-mails with him.

7. As regards exchange of e-mails between the prosecutrix and the

respondent, the trial court had particularly noted in para 12 of the

impugned judgment that the prosecutrix had admitted that on

24.7.2008, she had sent an attachment (Ex.PW-2D-1) along with an

e-mail message to the respondent and the content of the said

attachment was a vulgar article. Considering the aforesaid admission,

it was observed that the prosecutrix and the respondent had an

intimate love affair and therefore credence could not be placed on her

version that she was subjected to sexual intercourse against her will

either on the first occasion in the month of February, 2008 or

thereafter.

8. Another significant testimony that was taken note of by the

learned ASJ was that of Mr. Mahadev Bhatt, the Manager of a Hotel in

Mussoorie (PW-3), who had deposed that the prosecutrix and the

respondent had visited the hotel on 6.6.2008 and they had left

therefrom on 7.6.2008. Pertinently, while in Mussoorie with the

respondent, the prosecutrix did not complain to the hotel staff that she

had been assaulted by the respondent or that she was not his wife.

The hotel records produced by PW-3 had also established the fact that

the prosecutrix and the respondent were not described as husband

and wife therein.

9. Furthermore, the prosecutrix had admitted in her cross-

examination that she had given her photograph to the respondent to

affix the same on an admit card issued by the Indian Railway

Recruitment Board so as to convince her parents to permit her to go to

Dehradun for sitting for the said examination. She had also admitted

that she had herself booked the tickets for Dehradun and was well

aware of the fact that the admit card that she had showed to her

parents was a fake one. Under the garb of sitting for the examination

to be held by the Indian Railway Recruitment Board at Dehradun, the

prosecutrix had accompanied the respondent to Dehradun and

Mussoorie and had stayed there for three nights. While in Mussoorie,

they had stayed overnight at the hotel in question. This only fortifies

the observations made by the trial court that the prosecutrix had

voluntarily accompanied the respondent to Dehradun and Mussoorie

and she had consented to establishing a physical relationship with him.

10. While discussing the aspect of "consent", the provision of

Section 90 IPC, which deals with the consent known to be given under

fear or misconception was discussed at length by the trial court in the

light of the judicial dictum laid down by the Supreme Court as also the

High Courts and it was observed that where the prosecutrix is a grown

up lady and has voluntarily entered into a relationship with the

accused and then alleged that the accused has established physical

relationship with her a number of times over a period spread over one

and a half year on the promise of marriage, then there has to be

evidence placed on record to establish that she was incapable of

understanding the nature and implication of the act to which she had

consented.

11. In the present case, the evidence placed on record reveals that

the prosecutrix had taken a conscious decision to establish a physical

relationship with the respondent knowing fully well that her marriage

may or may not take place with the respondent since both the parties

belonged to different castes. Despite the said fact if the prosecutrix

had decided to voluntarily enter into a physical relationship with the

respondent and not only that, she had decided to keep her parents in

dark about the same, then the consequences thereof cannot be held

against the respondent.

12. In such circumstances, this Court is inclined to concur with the

findings of the trial court that the prosecutrix had consented to having

sexual intercourse with the respondent of her own free will and

assuming that she had believed the respondent when he had extended

a promise that he would marry her, the prosecution has failed to

establish that he did not have any intention to marry the prosecutrix

and had made a false promise to her.

13. As noted above, it is an admitted case that the parents of the

prosecutrix had visited the house of the respondent to meet his

parents and try and settle the marriage alliance of the parties, but the

same did not fructify due to caste considerations that were found to be

insurmountable. Under such circumstances, it cannot be held that the

respondent had any fraudulent intention to induce the prosecutrix to

establish a physical relationship with him by extending any false

promise to marry her.

14. Lastly, the facts of the case reveal that the first incident of rape

had taken place in February, 2008 and the complaint was lodged by

the prosecutrix with the police after over eight months, on 18.11.2008

and the FIR came to be registered after 22 days, i.e., on 9.12.2008.

The prosecutrix has herself admitted that before lodging the

complaint, a couple of meetings had taken place with the father of the

respondent in the police station and only when a settlement could not

be arrived at, that the aforesaid FIR came to be lodged.

15. The trial court has rightly observed that mere delay in

registration of the FIR may not be sufficient to throw out the case of

the prosecution, but having regard to the other discrepancies/

infirmities pointed out while scrutinizing the evidence brought on

record, the said factor gains significance.

16. Having carefully perused the impugned judgment in the light of

the evidence brought on record, this Court is of the opinion that there

is no legal infirmity, mis-appreciation/non-appreciation of evidence, or

perversity in the impugned judgment that entitles the petitioner/State

to grant of leave to assail the same. Rather, the trial court has taken

into consideration all the relevant facts and duly considered the

evidence, both ocular and documentary, to arrive at the conclusion

that the prosecution has failed to make out a satisfactory case against

the respondent and therefore rightly acquitted him.

17. Leave is therefore declined and the petition is dismissed, along

with the pending application.

18. Trial court record be released forthwith.

HIMA KOHLI, J AUGUST 13, 2013 sk/rkb