Raghuvinder Harna vs State Of Nct Of Delhi
2015 Latest Caselaw 8390 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                        RESERVED ON : AUGUST 05, 2015
                        DECIDED ON : NOVEMBER 05, 2015

+                       CRL.A. 1177/2011


       RAGHUVINDER HARNA                             ..... Appellant
                   Through :        Mr.K.K.Sud, Sr.Advocate with
                                    Mr.Subhash Chandra Sagar,
                                    Advocate.
                        versus


       STATE OF NCT OF DELHI                         ..... Respondent
                     Through :      Mr.Navin K.Jha, APP for the State.
                                    Mr.Gaurav Kumar Singh, Advocate
                                    for R2 & R3.

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


S.P.GARG, J.

1. Aggrieved by a judgment dated 03.08.2011 of learned

Additional Sessions Judge in Sessions Case No.1126/2010 emanating

from FIR No.357/09 registered at Police Station Shalimar Bagh by which

the appellant Raghuvinder Harna was convicted under Section 376 IPC,

the instant appeal has been preferred by him. By an order dated

24.08.2011, he was sentenced to undergo Rigorous Imprisonment for

seven years with fine `1,00,000/-.

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

sheet was that on 13.11.2009 at around 9.30 a.m. at House No.550, C&D

Block, Shalimar Bagh, Delhi, the appellant committed rape upon the

prosecutrix 'X' (assumed name), aged around 41 years and criminally

intimidated her. Information about the incident was conveyed to the

police on 06.12.2009. The Investigating Officer after recording victim's

statement (Ex.PW-5/A) lodged First Information Report on 07.12.2009.

'X' was medically examined; she recorded her 164 Cr.P.C. statement.

Statements of witnesses conversant with the facts were recorded. The

accused was arrested and taken for medical examination. Exhibits

collected during investigation were sent to Forensic Science Laboratory

for examination. Upon completion of investigation, a charge-sheet was

filed against the appellant for commission of offences under Sections

376/506 IPC. To establish its case, the prosecution examined nine

witnesses. In 313 statement, the appellant pleaded false implication and

denied his involvement in the crime. The trial resulted in his conviction

as mentioned previously under Section 376 IPC. It is relevant to note that

the appellant was acquitted of the charge under Section 506 IPC and the

State did not challenge the said acquittal.

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

examined the file. Appellant's conviction is primarily based upon the

solitary statement of the prosecutrix 'X'. Needless to say, conviction can

be based upon the sole testimony of the prosecutrix provided it lends

assurance of her testimony. In case, the Court has reasons not to accept

the version of the prosecutrix on its face value, it may look for

corroboration.

4. Admitted position is that 'X' and her family members were

acquainted with the appellant for about 12/13 years prior to the incident.

Victim's husband PW-3 (Balbir Singh), Assistant Manager, Reserve Bank

of India, lived along with his family comprising of he himself, his wife

('X') and two children since June 2009 at Shalimar Bagh. The appellant

was Chief Manager, Allahbad Bank, Baroda House at the time of

occurrence. Earlier before his transfer to Kolkata in 1997, he used to work

at Parliament Street Branch. In 2009, he was again transferred from

Kolkata to Delhi. Both the family had maintained their good relations

since then.

5. It is also not in controversy that on 12.11.2009, the appellant

had visited 'X's house at Shalimar Bagh in the evening and had stayed

there overnight. It is alleged that on 13.11.2009, next morning, after the

departure of her husband and children to office and school/college

respectively, the appellant sexually assaulted 'X' against her wishes. She

was threatened of dire consequences if she disclosed the incident to her

husband.

6. The alleged incident of rape occurred on 13.11.2009 in the

morning. Intimation about the crime was conveyed for the first time to the

police on 06.12.2009. Inordinate delay of about 23 days in lodging the

report has remained unexplained. Daily Diary (DD) No.22A (Ex.PW2/D)

came into existence at 9.30 p.m. at Police Station Shalimar Bagh on

06.12.2009. The information conveyed to the police that time was of

commission of rape by a 'boy' upon the victim on 03.12.2009. On receipt

of the information, the investigation was assigned to SI Baljeet Singh

(PW-7) who with Constable Krishan Gopal went to the spot and met 'X'

and her husband there. After making inquiries, he came to know that it

was a case of sexual assault and vide DD No.23A (Ex.PW-2/E) urged the

Duty Officer to depute PW-9 (WASI Manisha Sharma) to carry out

further investigation. She immediately went to the spot and took the

prosecutrix for medical examination at BJRM hospital. After recording

victim's statement (Ex.PW-5/A) on 07.12.2009, she lodged the instant

FIR. The appellant was implicated for sexual assault upon the prosecutrix

in the absence of her husband and children. It is pertinent to mention that

'X' and her husband had made call at 100 to PCR from Mobile

No.9717410977 to the effect 'Ek Ladke Ne 03.12.2009 Ko Mera Rape

Kiya Tha, Police Bhejen'. It further records that 'X' had informed that on

13.11.2009 her husband's friend had raped her after mixing 'something'

in tea.

7. Substantial delay in lodging the FIR has not been

satisfactorily explained by the prosecutrix and her husband. 'X' has given

inconsistent reasons for it. In the FIR, (Ex.PW-5/A), she claimed that the

occurrence was not disclosed to her husband due to shame. She was also

under fear due to threats on phone to kill her entire family if she dared to

apprise her husband about it. She further disclosed that finally on

06.12.2009 at around 7:00 a.m., she gathered courage to tell her ordeal to

her husband who after discussing it with relatives made telephone call at

100. In her 164 Cr.P.C. statement (Ex.PW-5/C) 'X' disclosed that as she

was under fear due to threats of dire consequences to get her husband

murdered, she had maintained silence. She further reasoned that due to

nephew's death, she did not muster courage to apprise her predicament to

her husband. In her Court statement as PW-5, she improved the version

and gave a different and inconsistent reason for not informing her husband

about the rape incident. She disclosed that the appellant had threatened to

kill her entire family if she informed the incident to her husband. Only on

06.12.2009 while taking tea with her husband at 7:00 a.m., she informed

him about the entire incident. Since she was under heavy 'depression',

her husband called few relatives to have consultation and thereafter they

decided to make a PCR call. Her husband dialed 100 and she spoke to the

officer. Thereafter, her husband had a talk with him. She elaborated that

her nephew had attempted to commit suicide and was on ventilator since

10.11.2009 as a result of which there was a lot of tension at home. She

was in a state of depression on his death on 15.11.2009. Finding herself in

depression when her husband enquired on 06.12.2009, she divulged the

entire incident to him. PW-3 (Balbir Singh) too deposed that after finding

'X' in constant depression, he enquired for its reasons. He tried to

console 'X' thinking that she was in depression on account of his

nephew's death. On that, 'X' disclosed the entire incident as to how after

his departure to office on 13.11.2009, the appellant had committed rape

upon her taking advantage of her loneliness in the house.

8. On perusal of the above statements of PW-3 and PW-5 in the

light of information conveyed to the police, it does not appeal to mind that

'X's state of 'depression' was the sole reason for not divulging the

horrible incident to her husband or any other relative. No material

document has been placed on record to show if any time, the prosecutrix

had taken medical treatment for her alleged 'depression'. Nothing is on

record to show if due to death of victim's nephew, PW-3 (Balbir Singh)

did not attend his office for any particular period. The reason to delay the

FIR being in state of depression was not given in the First Information

Report or in 164 Cr.P.C. statement. It has come on record that even after

the incident, 'X' used to remain in touch with the appellant on phone. She

had even made telephone call to him at his residence at Kolkata on

landline for sufficient duration. It belies 'X's assertion that she being in

state of depression was unable to disclose the incident to her husband.

9. Early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of the version. In the case of Jail Prakash Singh v.State of Bihar & Anr. 2012 CRI.L.J.2101 the Supreme Court held:-

"The FIR in criminal case is vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information

regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."

10. In her complaint (Ex.PW-5/A), the prosecutrix disclosed that

the appellant and her husband were friends for the last about 14/15 years.

The appellant had visiting terms at their residence. In August, 2009, after

his transfer from Kolkata to Delhi, the appellant had visited her husband

in the Bank to get a suitable rented accommodation in Delhi as he wanted

to shift along with his family. She further disclosed that after August

2009, the appellant had visited them at her house twice or thrice also. On

12.11.2009 the appellant stayed overnight. On 13.11.2009 at around

08.30 a.m. after her husband left for duty, he stayed back on the pretext to

meet one or two individuals to whom he had asked to arrange rented

accommodation. At around 09:00 a.m. she served breakfast to the

appellant. He asked her to bring her breakfast there. After taking

breakfast, when she was picking utensils, the accused caught hold of her

forcibly by hand; made her to fall on the bed and subjected her to rape

against against wishes forcibly. In her initial version (Ex.PW-5/A), the

prosecutrix did not claim if the accused had administered 'something' in

tea and had sexually assaulted her thereafter. She did not disclose if any

'resistance' was offered by her that time or she suffered any injury,

whatsoever, on her body including private parties due to forcible rape. 'X'

did not get herself medically examined immediately. Only on 06.12.2009

PW-4 (Dr.Anjali Vaish) medically examined her vide MLC Ex.PW-4/A at

BJRM hospital. No visible old/fresh external injuries were seen over

external genitalia. Apparently, the prosecutrix had not sustained any

violent injury marks over her body to infer commission of forcible rape.

11. In her 164 Cr.P.C. statement (Ex.PW-5/C), the prosecutrix

reiterated her version given to the police adding that when she attempted

to cry, the accused closed her mouth. She hurled several abuses and

threatened him to disclose the incident to her husband. On that, she was

criminally intimidated by the appellant. Non-disclosure of such a horrible

incident to her husband and other family members due to fear has no

substance as the appellant was not armed with any weapon to cause real

apprehension in her mind. The Trial Court did not believe her version

regarding criminal intimidation and acquitted the appellant of the said

charge. Obviously, the prosecutrix was under no fear or apprehension not

to raise alarm or hue and cry at the time of incident or soon after his

departure from the house. There were two land-line telephones installed

in the victim's house that time. She did not inform the police or her

husband on duty at his office. She remained silent/mum for number of

days. She did not convey an information to the security guards available

in the said colony. The appellant was conveniently allowed to go without

any demur. X's post event conduct is unnatural.

In her Court statement, PW-5 ('X') disclosed that after

having breakfast with the appellant, when she was clearing the utensils,

the accused caught hold of her hand. She made unsuccessful attempt to

get herself released from him but he forcibly committed rape upon her.

After the incident, when she expressed her intention to inform her

husband, the accused criminally intimidated her telling that nothing would

happen and these things were very common. She asked the accused to

leave the house immediately. In the cross-examination, she informed that

a maid used to visit their house at 07:40 or 8:00 a.m. to work for half an

hour; the accused had stayed overnight at their house on one or two

occasions earlier also. She denied that accused's stay with them on the

night intervening 14/15.11.2009 for celebration of his birthday. She

expressed ignorance if greeting card (Ex.PW-5/DX-1) was given by her

daughter to him on his birthday. She admitted to have made several

telephone calls to the accused after the said incident. She reasoned that it

was under compulsion and she had warrned the appellant not to dare to

visit them. She voluntarily added that on 13.11.2009 she had called the

accused on mobile and had warned him not to come to her house. She

denied the suggestion that she was making regular telephone calls to the

accused. She, however, voluntarily admitted that she had made couple of

calls to the accused not to come to the house after the incident. She was

unable to tell as to when and for what duration telephone calls were made

by her to the accused. It is pertinent to note that at no stage of

investigation/trial the prosecutrix herself revealed to have made telephone

calls to the appellant after the incident. In the cross-examination, she was

evasive to inform as to when and for what duration, various telephone

calls were made by her to him. She had no occasion to be in touch with

the appellant and his family after the alleged rape incident merely to

prevent him not to visit her house. Call details pertaining to appellant's

mobile 9560074499 were collected by the Investigating Officer during

investigation. However, for the reasons best known to her, these call

details were not relied on and placed on judicial file. When PW-9 (W/ASI

Manisha Sharma), the Investigating Officer was confronted in the cross-

examination about it, she admitted that call details running into 27 pages

(Ex.PW-9/DX1) were collected. These were taken on judicial file after

taking it out from the police file. The prosecutrix admitted that there were

two land-line telephone Nos.27498090 and 27498394 installed at her

residence but their call details were not collected during investigation.

Perusal of call details record (Ex.PW-9/DX1) reflects that the prosecutrix

and the appellant were in touch till 28.11.2009. After the alleged incident,

15 calls were exchanged out of which ten were made by the prosecutrix to

the appellant while he made five calls to her. Telephone conversation on

19.11.2009 was for more than 27 minutes. She had conversation with the

appellant's wife on 02.12.2009 at landline No.3324219577 at his Kolkata

residence. 'X' did not apprise her husband any time about making such

telephone calls to the appellant or his family. Apparently, an attempt was

made by the prosecutrix to suppress the vital information. The

investigation conducted is not upto the mark. The Investigating Officer

did not examine any security guard or seized Visitors' Register to verify

as to on what specific dates the appellant used to visit the proecutrix; no

witness from the locality was examined. The Investigating Officer did not

collect any document to show as to when victim's nephew had expired

and when the body was brought to Delhi. FSL reports (Ex.PW-6/A and

6B) do not connect the appellant with the crime. PW-3(Balbir Singh)

made feeble attempt to corroborate 'X's version but made vital

improvements in his deposition before the court for which he was duly

confronted. PW-3 (Balbir Singh) failed to offer any reason not disclosing

these vital facts in his 161 Cr.P.C. statement (Ex.PW-3/DX-1).

12. To dispel prosecutrix's claim to have urgency to shift to

Delhi, the appellant examined DW-1(Pramod Kumar) who proved

request letter (Ex.DW-1/A) made by him for retention of Flat No.404 at

Sundaram, Tollygunge, Kolkata-40 to enable his son studying in 10th class

to continue his education there. He was permitted to retain the flat till

31.03.2010. His request to retain telephone No.033-24219577 installed

therein was allowed on 28.08.2009 vide letter (Ex.DW1/B). It belies

prosecution version that the appellant had to meet some property dealer to

arrange residential accommodation in Delhi and on that pretext, had not

left along with the victim's husband on 13.11.2009.

13. Relations between the parties were cordial for the last 14/15

years. The appellant had visiting terms at the victim's residence and had

stayed overnight there on various occasions. The victim and her husband

had no history of hostility any time. Apparently, the prosecutrix had no

ulterior motive to implicate the appellant to have physical relations with

her after a gap of about 23 days. It seems that after the victim's husband

senses something 'amiss' and suspected extra-marital relationship

between the two, 'X' was forced to lodge complaint against the appellant.

She had no occasion to falsely claim to have physical relations with the

appellant to have reflection on her own chastity. Inference can be drawn

that physical relations on 13.11.2009 were the outcome of free consent of

the appellant and the prosecutrix and she was a willing and consenting

party. Obviously, it did not attract Section 376 IPC.

14. Another feature of the case is after conviction on 03.08.2011,

the matter was listed for arguments on point of sentence on 10.08.2011.

On 24.08.2011 the complainant/prosecutrix along with her husband

appeared in the court and informed Additional Public Prosecutor that

appellant's family had approached them to seek forgiveness for his acts.

They requested the court to take lenient view as convict was ready to

publicly apolige to the prosecutrix for his conduct in the presence of

senior family members of both the families. A joint application was filed

on behalf of both the parties informing the court that they would move

this Court for quashing of the FIR. Prayer was made to pass sentence

order subject to the quashing petition which the parties intended to move

before the High Court. Considering the said submissions whereby

compromise was arrived at between the parties at the stage of sentence,

the appellant was awarded RI for seven years with fine `1,00,000/-

subject to the outcome of quashing petition. Fine amount of `1,00,000/-

was ordered to be given to the prosecutrix as compensation under Section

357 Cr.P.C. These developments lend credence to the appellant's

contention that physical relations were consensual. The victim had agreed

to exonerate the appellant. Needless to say, appellant's conduct even to

have physical relations with 'X' with consent was unpardonable as he not

only betrayed victim's husband who reposed utmost trust upon him but

also his wife and children. He was well aware that physical relations with

his friend's wife would amount to commission of offence of 'adultery'

under Section 497 IPC underlying object of which is to secure purity and

sanctity of marriage by penalizing conjugal infidelity.

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

recorded under Section 376 IPC by the impugned judgment cannot be

sustained. The appellant deserves benefit of doubt; the appeal is allowed;

conviction and sentence order are set aside. Bail bond and surety bond

stand discharged.

16. Trial Court record be sent back forthwith along with the copy

of the order. Copy of the judgment be sent to the Superintendent Jail for

information.

(S.P.GARG) JUDGE NOVEMBER 05, 2015/sa