State (Nct Of Delhi) vs Jata Shankar
2016 Latest Caselaw 2380 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 21st MARCH, 2016
                                DECIDED ON : 28th MARCH, 2016

+                         CRL.A.239/2015
      STATE (NCT OF DELHI)                                ..... Appellant
                          Through :    Mr.Amit Gupta, APP.

                          VERSUS
      JATA SHANKAR                                        ..... Respondent
                          Through :    Mr.Pramod Kumar Dubey,
                                       Advocate with Ms.Megha,
                                       Advocate.

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

S.P.GARG, J.

1. Aggrieved by a judgment dated 03.02.2010 of learned Addl.

Sessions Judge in Sessions Case No.123/08 arising out of FIR No.343/05

PS Najafgarh whereby the respondent was acquitted of the charge, the

State has preferred the instant appeal which is contested by the

respondent.

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

sheet was that on 18.05.2005 at about 09.45 p.m. at House No.RZ-105, S-

Block, New Roshanpura, Najafgarh, the respondent committed rape upon

the prosecutrix 'X' (changed name) aged around 35 years. Incident was

reported to the police and Daily Diary (DD) No.40A came into existence

at 22:15 hours at P.S. Nazafgarh. The Investigating Officer after recording

victim's statement (Ex.PW-1/A) lodged First Information Report. 'X'

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

accused was arrested and medically examined. Exhibits collected during

investigation were sent to Forensic Science Laboratory for examination.

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

appellant in the Court. The prosecution examined 11 witnesses. In 313

Cr.P.C. statement, the accused denied his involvement in the crime and

pleaded false implication. He examined DW-1 (Hukam Chand) and DW-2

(Mahender Nath Tiwari) in defence. The trial resulted in respondent's

acquittal. Being aggrieved and dissatisfied, the State has filed the instant

appeal.

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

examined the file. Admitted position is that the victim aged around 35

years was mother of two grown up children who were sleeping in the

tenanted room at the time of incident. The appellant was aged around 63

years and had let out the tenanted room to the victim about 8 / 10 days

prior to the incident. The occurrence had taken place at the respondent's

room where he used to stay. The prosecution case is primarily based upon

solitary statement of the prosecutrix which does not find corroboration

from any other independent sources. The occurrence took place at around

09.45 p.m. and the prosecutrix was medically examined promptly at 02.15

a.m. at Rao Tula Ram Memorial Hosptial. No visible external injury

whatsoever was found on her body including private parts. The

respondent was not named in the alleged history recorded therein. There

were no struggle or violence marks on her body to infer forcible rape.

Nothing has come on record to show if the prosecutrix who was a young

lady of 35 years had offered resistance to the alleged sexual assault

committed by an old man aged around 63 years. The exhibits collected

during investigation were sent to Forensic Science Laboratory for

examination. However, these do not corroborate victim's version. The

prosecutrix claimed that after the sexual assault, the respondent had

discharged. In that eventuality, there was every possibility of the

respondent's clothes to have stained with 'semen'. However, in the FSL

report (Ex.PW-11/C), no semen could be detected on Ex-5A

(Respondent's Lungi) and Ex.-5B (Respondent's Underwear). It was not

ascertained if spermatozoa found on Ex-1 (Victim's Salwar) and Ex-2

(Two glass slides said to be vaginal smears) was that of the appellant. No

independent witness was associated at any stage of investigation. It has

come on record that number of tenants used to occupy the nearby rooms.

However, none of them was joined in the investigation.

4. The Trial Court, in the detailed judgment, has noted number

of material discrepancies and contradictions in the version stated by the

prosecutrix to discredit her testimony. These contradictions and

inconsistencies go to the root of the case and rule out if the prosecutrix

was sexually assaulted against her consent. The victim had on her own

gone to the respondent's room allegedly on the pretext to offer him a glass

of water. This circumstance does not appeal to mind. Possibility of the

prosecutrix to have physical relations with the respondent with consent

cannot be ruled out. It appears that sudden arrival of the victim's husband

at the spot prompted her to implicate the respondent. The Trial Court has

referred to the statement of the victim (Ex.PW-1/A) given to the police at

first instance and her 164 Cr.P.C. statement (Ex.PW-10/A) made before

the Court. The victim has made vital improvements. In her Court

statement also, she had improved her version and deviated from her

previous statements. Nothing has emerged on record if the victim had

raised any hue and cry at the time of incident. No such cry or alarm was

heard by any other inmate of the nearby rooms. PW-3 (Shish Pal), the

victim's husband, arrived at the spot but did not hear any scream of the

victim from outside the room. Only after peeping through the window, he

found something amiss and pushed the door to gain entry inside the room.

Nothing is on record to show if the respondent was aware about the

absence of the victim's husband. The victim who was having no close

familiarity with the respondent and had occupied the tenanted

accommodation about 8 or 10 days before is not expected to go to the

respondent's room alone to offer water particularly when she herself was

suffering from 'loose motion'. Nothing is on record to show if any

attempt was made by the victim to flee from the spot despite having ample

opportunity. The impugned judgment is based upon the fair appraisal of

the evidence and needs no intervention. The respondent deserves benefit

of doubt.

5. The principles which would govern and regulate the hearing

of appeal by this Court against an order of acquittal passed by the Trial

Court have been succinctly explained by the Apex Court in a catena of

evidence. In 'State of Goa vs. Sanjay Thakran & Anr.', (2007) 3 SCC 75,

it was held :

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against

the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

6. Similar principle has been laid down by the Apex Court in

the cases of 'State of Uttar Pradesh vs. Ram Veer Singh and Ors.', AIR

2007 SCW 5553 and in 'Girja Prasad (Dead) by LRs vs. State of M.P.',

AIR 2007 SCW 5589. Thus, the powers which this Court may exercise

against an order of acquittal are well settled.

"It is also a settled legal position that in acquittal appeal, the appellate court is not required to re- write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper."

7. In the light of above discussion, the appeal lacks merit and is

dismissed. Trial Court record be sent back forthwith with the copy of the

order. Intimation be sent to the Superintendent Jail.

(S.P.GARG) JUDGE MARCH 28, 2016 / tr