Delhi High Court
State vs Shambhu on 31 July, 2014
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 274/2014
STATE ..... Petitioner
Represented by: Mr.Vinod Kumar Sharma, Adv.
versus
SHAMBHU ..... Respondent
Represented by: Ms.Aashaa Tiwari, APP for
State.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
ORDER
% 31.07.2014
Crl.M.A. 6067/2014 (delay)
1. An affidavit has been filed by the DCP explaining the delay of 81
days in filing the present petition. For the reasons stated in the affidavit, the
delay in filing the petition is condoned.
2. Application is disposed of.
CRL.L.P. 274/2014
1. The Petitioner impugnes the judgment dated October 22, 2013
acquitting the respondent for the charge of offences under Sections
363/376/377 IPC and Sections 3 & 4 of Prevention of Children from Sexual
Offences Act (in short the POCSO Act).
2. Learned counsel for the Petitioner contends that in view of statement
of prosecutrix in the Court the acquittal was unjustified and a perverse order
has been passed by the learned Trial Court which is required to be rectified
by this Court.
CRL.L.P. 274/2014 page 1 of 4
3. We have heard learned counsel for the Petitioner and perused the
record. The prosecutrix who came to live with her maternal grand father in
village Issapur, Delhi went missing on December 30, 2012. When despite
search the maternal grand father could not trace her a missing report was
lodged on December 31, 2012 resulting in institution of FIR under Section
363 IPC. Efforts were made to trace the prosecutrix. Subsequently on an
information received it was revealed that the prosecutrix was at Mohangarh,
Jaisalmer, Rajasthan with Shambhu the respondent. She was recovered
from hotel Sangam, Jaisalmer, Rajasthan on January 04, 2013 and both the
prosecutrix and Shambhu were brought to Delhi on January 05, 2013.
Statement of prosecutrix was recorded wherein she stated that she was in
love with the respondent and voluntarily accompanied him. They first went
to Faridabad and then to Jaisalmer. The respondent had committed vaginal
and anal intercourse with her against her consent. Thus, Sections 376 and
377 IPC were also added and the prosecutrix was medically examined. Her
statement was recorded under Section 164 Cr.P.C. wherein she stated that
she was having friendship with the respondent and had gone to stay with
him of her own free will and both of them had anal intercourse only once
and that was also with her consent and without any force.
4. On a charge-sheet being filed statement of material witnesses were
being recorded including the complainant Jai Om the maternal grand father
of the prosecutrix who deposed about the search carried out pursuant to the
missing report lodged. Statement of Durga Singh, the Manager of Sangam
hotel at Jaisalmer Rajasthan, was also recorded who stated that the
respondent and the prosecutrix stayed at his hotel in room No. 211. He also
CRL.L.P. 274/2014 page 2 of 4
stated that on January 04, 2013 Police officials from Delhi came to his hotel
and made enquiries. Thereafter, the respondent was apprehended and the
girl was also taken into protective custody.
5. The prosecutrix appeared as PW-10. She stated that she was called by
the respondent to meet her. Thereafter, they went by Metro to Faridabad to
the house of Shambhu's friend and spent a night over there. On December
31, 2012 respondent took her to Jaisalmer where they stayed in a hotel till
January 05, 2013. The respondent committed carnal intercourse with her 2-
3 times against her consent. She however stated that neither at the time of
going to Faridabad from Delhi in the Metro train nor in the hotel at
Jaisalmer she raised any alarm, nor she resisted the moves of Shambhu.
6. The MLC of the prosecutrix Ex.PW-11/A revealed that her hymen
was intact and no injury was seen in Vulva, Labia majora, Labia manora,
Perennial region and anal region. All the regions were found normal and
without any bleeding, scar or bite marks. Further, as per the FSL report
Ex.P-A no blood or semen could be found in the pubic hair, vaginal swab,
vulval swab, perennial swab and anal swab of the prosecutrix.
7. As the prosecution failed to prove that the age of the prosecutrix was
less than 18 years at that time i.e. on December 30, 2012 came to the
conclusion that the prosecutrix could not be held to be minor. The
prosecution neither examined the parents of the prosecutrix nor proved any
date of birth certificate nor any ossification test was got conducted. In the
light of the fact that the prosecutrix made major improvements from her
statement made under Section 164 Cr.P.C., had not sought any help while
travelling from Delhi to Faridabad to Jaisalmer, nor resisted the moves of
CRL.L.P. 274/2014 page 3 of 4
the Shambhu and her version not being corroborated by the MLC or the FSL
report, the Trial Court came to the conclusion that Shambhu was entitled to
the benefit of doubt.
8. Indubitably a victim of rape is not an accomplice and conviction can
be based on her sole testimony without any corroboration if the same
inspires confidence. In the present case the prosecutrix has made varying
statements under Section 161 Cr.P.C., 164 Cr.P.C. and before the Court.
Her conduct does not show that any force or coercion or threat was extended
to her by the respondent. The MLC and the FSL report do not corroborate
her version. It was the duty of the prosecution to have proved the age of the
prosecutrix, however prosecution failed to prove the same by any cogent and
reliable evidence. In view of these findings, which we reiterate, we find that
the impugned judgment suffers from no perversity or illegality and hence no
case for interference is made out.
9. Petition is dismissed.
10. Trial Court Record be sent back.
PRADEEP NANDRAJOG, J.
MUKTA GUPTA, J.
JULY 31, 2014
'ga'
CRL.L.P. 274/2014 page 4 of 4
