Manoj vs State
2015 Latest Caselaw 3323 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : MARCH 18, 2015
                                DECIDED ON : APRIL 24, 2015

+      CRL.A.794/2011 & Crl.M.A.No.16843/14, Crl.M.B.Nos.2177/12,
       1711/12 & 1130/11

       MANOJ                                            ..... Appellant
                          Through :    Mr.Avninder Singh with Ms.Sumi
                                       Anand, Advocates.

                          versus

       STATE                                            ..... Respondent
                          Through :    Ms.Kusum Dhalla, APP.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 23.03.2011 of learned

Additional Sessions Judge in Sessions Case No.62/10 arising out of FIR

No.94/06 Police Station Mandir Marg by which the appellant Manoj was

convicted under Section 376, he has preferred the instant appeal. By an

order dated 25.03.2011, the appellant was awarded RI for seven years

with fine `2,000/- under Section 376 IPC.

2. Briefly stated, the prosecution case as set up in the charge-

sheet was that on the night intervening 8/9.03.2006 in a garage of H

Block, Kali Bari Marg, New Delhi, the appellant committed rape upon 'X'

(assumed name), aged about 16 years. The Investigating Officer lodged

First Information Report after recording victim's statement (Ex.PW-8/A).

The prosecutrix 'X' implicated the appellant Manoj for forcibly

committing rape upon her on the pretext to marry her. 'X' was taken for

medical examination. The accused was arrested and medically examined.

Statements of witnesses conversant with the facts were recorded. After

completion of investigation, a charge-sheet was filed against the accused

under Section 376 IPC. The prosecution examined eleven witnesses to

substantiate its case. In 313 statement, the appellant denied his

involvement in the crime and pleaded false implication. The trial resulted

in his conviction as aforesaid. Being aggrieved and dissatisfied, the

instant appeal has been preferred.

3. I have heard the learned counsel for the parties and have

examined the file. The appellant's conviction is primarily based upon the

sole testimony of the prosecutrix 'X'. She has, however, given divergent

versions about the incident and her evidence does not inspire confidence.

Admitted position is that she was as working domestic help in the house

of Manju Sharma. Manju Sharma had written to the concerned police

station on 08.03.2006 that 'X' working with her as maid since 31.01.2005

had gone to bring 'maggi' from the market at around 05:30 p.m. on

08.03.2006 and did not return. Apparently, 'X' had accompanied the

appellant with her free consent on 08.03.2006 without even informing her

employer. In her statement (Ex.PW-8/A) to the police, she disclosed

about appellant's acquaintance with her about two days before the

incident at Sabzi market, H Block and his inclination for love towards her.

She met the appellant the next day. On 08.03.2006, she met him again at

around 05:00 p.m. at Mandir Marg; went to Talkatora Garden and

discussed family matters. The appellant took her in the garage of H Block

and they had dinner there. During night, the appellant established

physical relations with her on the promise to marry against her wishes.

Admittedly, 'X' was a consenting party when she accompanied the

appellant to the garage and took dinner with him there. She remained

present in the said garage throughout the night. In her 164 Cr.P.C.

statement she disclosed that the appellant had established physical

relations with her 'six' times during that night. Strange enough, she did

not raise hue and cry; no resistance was put by her. The garage was not

located in a secluded place and no residents of the locality heard her cries.

She did not suffer any injury on her body including private ones. In her

Court statement, she disclosed that she was taken in a TSR forcibly. Even

at that time, she did not raise any alarm. It is unclear if she had given

'consent' for physical relations on the pretext of marriage or physical

relations were established forcibly against her wishes. On the next

morning, it was the accused who left her at the place of her work. Even at

that time, the prosecutrix did not complain about his conduct and

behaviour to anyone including her employer. In her examination-in-chief,

she claimed that the entire incident was disclosed/narrated by her to her

employer Manju and she had called the police. PW-10 (SI B Lakra) has

given an entirely different version stating that he had arrived the police

station on getting telephonic message from Police Station Mandir Marg

that a girl was sitting there to lodge complaint of rape. Thereafter, he

went to the Police Station and recorded victim's statement. Admittedly,

Manju was not examined and cited as a witness. IO did not make any

independent inquiry from the neighbourhood where the occurrence took

place. The prosecutrix disclosed about the presence of appellant's friend

in the garage initially, who left soon thereafter. IO did not examine any

inmate of the garage. In his examination, the IO informed that one Sriram

a tenant in the said garage had gone to his native village and his son used

to stay in the said garage. None of them has been examined by the

Investigating Officer.

4. The occurrence took place on the night intervening

8/9.03.2006. The FIR was lodged after a considerable delay on

09.03.2006 at 02:30 p.m. by recording rukka (Ex.PW-10/A). The

prosecutrix was taken for medical examination to Lady Harding Medical

College at around 10:00 p.m. on 09.03.2006. PW-3 (Dr.Beenu Kushwah)

who medically examined her vide MLC (Ex.PW-3/A) deposed that there

was no evidence of any physical assault or of definite tear in hymen.

There was no bleeding or other erosion; no sign of defence. The medical

examination did not reveal if sexual act was done forcibly upon the

prosecutrix. Neither the prosecutrix nor the appellant had suffered any

injuries/scratch marks. Had there been forcible rape, there was every

possibility of the prosecutrix to have sustained struggle marks while

putting resistance. She must not have allowed the appellant to have

repeated physical relations throughout the night particularly when he was

not armed with any weapon to create fear in her mind.

5. The Investigating Officer did not collect cogent proof of

prosecutrix's age though she had studied in a school upto 2nd standard. As

per ossification report (Ex.Pw-5/A) dated 21.04. 2006 she was aged more

than 18 years. The Trial Court also came to the conclusion that the

prosecutrix was more than 16 years of age on the date of occurrence. She

was mature enough to understand the consequences of physical relations.

There was no question of promise to marry as the prosecutrix had met the

appellant only about two days before the incident. Moreover, before the

appellant could fulfill any such alleged promise to marry, on the next day

itself 'X' lodged complaint against him for committing rape upon her.

'X' had no valid reasons to remain in the company of the appellant

throughout night even without any knowledge to her employer. From the

circumstances on record it can be inferred that physical relations (if any)

were consensual. Since 'X' was more than 16 years of age on the day of

occurrence, the appellant cannot be held liable under Section 376 IPC.

'X's statement has not been corroborated by any other oral, medical or

scientific evidence. In the cross-examination, she admitted that the

accused loved her. She denied to have any love affairs with the appellant.

Had it been one side affair, there was no question of promise to marry.

She further admitted that appellant's offer to marry her would not be

accepted by her. Apparently, there was no breach of alleged promise to

marry.

6. On an overall appreciation of the evidence of the prosecutrix

and her conduct, it appears that 'X' is not a reliable witness. I am of the

considered view that the prosecution has failed to establish its case

beyond reasonable doubt. The conviction and sentence recorded by the

trial court cannot be sustained and are set aside.

7. The appeal is allowed. Conviction and sentence are set aside.

The appellant be released forthwith if not required to be detained in any

other case. Copy of this order be sent to the concerned Jail Superintendent

for information and necessary action. Trial court record be sent back

along with a copy of this order.

(S.P.GARG) JUDGE APRIL 24, 2015 sa