Ravinder Kumar vs State Of Nct Of Delhi
2015 Latest Caselaw 1710 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : FEBRUARY 18, 2015
                           DECIDED ON : FEBRUARY 27, 2015

+                          CRL.A.84/2006

       RAVINDER KUMAR
                                                       ..... Appellant
                           Through :   Mr.M.L.Yadav, Advocate.

                           versus

       STATE OF NCT OF DELHI
                                                        ..... Respondent
                           Through :   Ms.Kusum Dhalla, APP.

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

S.P.GARG, J.

1. The appellant-Ravinder Kumar is aggrieved by a judgment

dated 30.11.2005 in Sessions Case No.04/05 emanating from FIR

No.564/02 registered at Police Station Anand Vihar by which he was held

guilty for committing offences punishable under Section 366/376 IPC. By

an order dated 06.12.2005, he was sentenced to undergo RI for ten years

with fine `2,000/- each under Section 366 and 376 IPC. Both the

sentences were to operate concurrently.

2. Briefly stated the prosecution case as projected in the charge-

sheet was that on 16.10.2004 at about 07:30 a.m. at bus stop, Jagriti

Enclave, Delhi, the appellant abducted 'X' (assumed name), aged around

20 years, and sexually assaulted her till 21.10.2004 in a room located in

Indira Puri, J.J.Colony, Gaziabad (U.P.). When 'X' did not return as

usual from her college on 16.10.04, her father Ved Parkash searched her

at various places. In the FIR lodged on 17.10.2014, appellant's

involvement in kidnapping 'X' was suspected. The investigation was

assigned to WSI Kaushal Pandey. On 21.10.2004 at ISBT, Anand Vihar,

the prosecutrix and the appellant were apprehended during their presence

at platform No.C-126. Victim's statement under Section 161 Cr.P.C. was

recorded and the appellant was arrested. The prosecutrix was medically

examined; she recorded her 164 Cr.P.C. statement. Statement of

witnesses conversant with the facts were recorded. After completion of

investigation, a charge-sheet was filed in the court against the accused.

The prosecution examined 13 witnesses to establish the appellant's guilt.

In 313 statement, the accused 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 record. The appellant's conviction is primarily based upon

the solitary statement of the prosecutrix. In her deposition (Ex.PW-1/1),

she implicated the appellant for committing rape upon her after putting

her in fear and threat.

4. The moot question that arises for consideration is as to

whether 'X' was abducted with an intent to subject her to sexual

intercourse. Admitted position is that the appellant was driver in a private

bus No.DL-1P-B-1850 plying on route No.313 'X', a student at Kalindi

college, Patel Nagar used to take the said bus for going to her college

from Jagriti Enclave at around 7:30 a.m. In the process, both became

acquainted with each other; they used to have conversation for long time.

Many a times, no ticket fare was charged from her. The accused used to

keep a seat for her in the bus. The prosecutrix admitted in her statement

(Ex.PW1/A)) that she used to take the seat offered by the accused; he used

to have talk with her; offer water to drink and wanted to make friendship

with her. She clarified that she had refused to marry the accused.

Apparently, the accused and the prosecutrix were acquainted with each

other prior to the incident and there was some intimacy between the two.

In the FIR lodged by the victim's father, it is recorded that from victim's

friend Priyanka, he came to know that 'X' used to have conversation with

the driver of the bus. She even used to have talk with him on mobile. The

complainant suspected not only the appellant but also Ashwini Kumar @

Raju, owner of the bus to have abducted his daughter. Subsequently, the

complainant deviated from the statement and exonerated Ashwini Kumar

@ Raju.

5. Undisputedly, the appellant and 'X' lived together from 16th

October, 2004 till 21st October, 2004 before they were apprehended

allegedly at ISBT Anand Vihar. Appellant's case is that they were

apprehended from Mussori and the police brought them to Delhi. The

story presented by the Investigating Officer about their arrest at ISBT

does not inspire confidence as nothing has been revealed as to how and

under what circumstances, they got inkling about their presence at the said

place all of a sudden at odd hours. Even if the prosecution case is taken

as correct regarding appellant's arrest and recovery of the prosecutrix at

ISBT Anand Vihar, it appears that the prosecutrix was not under any fear

that time. She had accompanied him from Indira Puri, J.J.Colony in a

three-wheeler scooter to ISBT Anand Vihar in morning hours to go to

Nanital. At no stage, she raised hue and cry. The appellant was not

armed with any weapon to cause fear in her mind.

6. Allegedly, the prosecutrix was confined for about five days

in a room rented by PW-6 (Nand Kishore). He refuted 'X's version that

both of them lived in the said rented accommodation for that period. He

testified that the accused along with his friend had visited him to take a

room on rent in the month of October/November as his wife was ill. He

rented a room situated on the first floor of his house. Next day at about

07:00 a.m. while coming out of his house, he saw the accused coming out

with a girl and on inquiry, he told to have occupied the room on the

previous day at about 09:00 p.m. The accused had left with the girl after

locking the room. In the cross-examination by learned Additional Public

Prosecutor after declaring him hostile, PW-6 admitted that the accused

Ravinder had told him that the girl was his 'wife'. Apparently, the

proseuctrix had an occasion to meet the landlord. However, for no

reasons whatsoever, she raised any alarm or protested her alleged

abduction. The room in question was not situated in a deserted place. It

was surrounded by other residential houses. Had the prosecutrix raised an

alarm or repeatedly knocked the door or window of the house to attract

the attention of the residents, they must have come to know about her

presence inside the house against her wishes. It is unbelievable that for

five days long neighbours would not come to know about her presence

inside the house. It has come on record that the appellant used to go

outside to arrange clothes or food. On 21st October, 2004 when the

appellant had brought a TSR to take 'X' to ISBT, Anand Vihar, the auto

driver was not informed about the conduct and behaviour of the appellant.

Even at ISBT, Anand Vihar, where there were number of public persons,

nothing was done to attract their attention. The story presented by 'X'

about her abduction in a TSR being driven by the appellant when she was

standing at the bus stand waiting for the bus to arrive does not appeal to

mind. The number of the auto allegedly driven by the appellant to take

her to college has not been revealed; no such TSR was recovered. The

prosecutrix was not expected to consume 'ladoo' from an auto driver

especially when she had apprehensive of staring at her in the bus. The

prosecutrix aged about 20 years, a college going girl was aware of the

consequences of her actions.

7. Conviction can undoubtedly be based on the sole testimony

of the prosecutrix provided it lends assurance of her testimony. It is,

however, well settled that if the statement of the prosecutrix is suspect, the

court may look for corroboration. In case the evidence is read in its

totality and the story projected by the prosecutrix is found to be

improbable, the prosecutrix case becomes liable to be rejected. In the

instant case, 'X's statement has remained uncorroborated. Priyanka, 'X's

class-fellow was not associated in the investigation. 'X' was medically

examined by Dr.Meenakshi (PW-5) by an MLC (Ex.PW-5/A) on 21st

October, 2014. There was no sign of congestion/injury/scratch marks. In

the cross-examination, she admitted that the patient had not told her as to

when she was subjected to rape or was drugged. No marks of injury on

her private parts were found. Had the prosecutrix been subjected to

intercourse forcibly by the accused for five days, she would have certainly

resisted the said act, resulting into struggle marks on her body and also

injury on the body of the accused. Even no injuries were found on the

body of the accused in his MLC.

8. The investigating officer did not examine any witness from

the neighbourhood where 'X' was allegedly confined for about five days.

Even at the time of alleged apprehension at ISBT, Anand Vihar, no

independent public witness was joined. At the time of arrest of the

accused, in his personal search, among other things, a mobile was

recovered. However, no call details of the mobile were collected by the

investigating officer to ascertain his location during the relevant period.

The complainant was evasive to inform if on the day of incident, 'X' had

any mobile. Adverse inference is to be drawn against the prosecution for

withholding reliable electronic evidence.

9. It is evident from the circumstances referred above that 'X'

was not under threat of the accused any time. She had many occasions to

raise alarm/ hue and cry; she however kept mum. A college girl aged

about 20 years who could distinguish between her good and bad, if stayed

with the accused for a period of five days and had sexual relations without

any demur, it could certainly be said that she was a consenting party

throughout. The circumstances brought on record negative the existence

of fear. Suffice it to say that the prosecutrix was quite mature and

accompanied with the accused by her own free will.

10. In the light of the above discussion, conviction and sentence

awarded by the Trial Court cannot be sustained. The appeal is allowed.

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. The appellant be released forthwith if not

required to be detained in any other case.

(S.P.GARG) JUDGE FEBRUARY 27, 2015/sa