Ms. ‘X’ vs N.C.T Of Delhi And Anr
2016 Latest Caselaw 6535 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Decided on: 19th September, 2016
+                         CRL.REV.P. 623/2016

      Ms. 'X'                                            ..... Petitioner
                          Represented by:     Mr. Kamran Malik, Adv.

                          versus

      N.C.T OF DELHI AND ANR                             ..... Respondents
                     Represented by:          Mr. Ravi Nayak, APP.

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA


MUKTA GUPTA, J. (ORAL)

Crl.M.A. 14597/2016 Exemption allowed subject to just exceptions. Crl.M.A. 14598/2016 For the reasons stated in the application 87 days delay in refilling the revision petition is condoned.

Application is disposed of.

CRL.REV.P. 623/2016

1. On the complaint of the petitioner FIR No.208/2011 under Section 354 IPC was lodged at PS Sunlight Colony.

2. The learned Trial Court vide the judgment dated 12th March, 2015 acquitted the respondent No.2 of the charge. The said judgment was challenged by the petitioner by filing an appeal before the learned Additional

Sessions Judge which was also dismissed vide the impugned Judgment dated 5th February, 2016. Hence the present petition.

3. The petitioner who appeared as PW-3 in her evidence recorded before the Court in her examination-in-chief deposed that she was engaged in the profession of insurance and investment consultancy and marketing business. On 19th June, 2011 at about 4.00 or 5.00 PM when she was present at her residence-cum-office as she received a call from one Rajnish who stated that he wanted to get the insurance of the vehicle of his wife renewed. Though the appointment with Rajnish was fixed at 4.30 PM however he came to her house at about 4.05 PM. The respondent No.2 entered her house and she made him sit on the sofa and shut the main door. She offered him a glass of water, which he refused. The respondent No.2 showed her the registration certificate and blank cheque for insurance which she inspected and stated that she would compute the amount payable on her computer. As she did not have a pen, she got up from her chair to get a pen from her office when the respondent No.2 grabbed her and pushed her into her bedroom. According to the petitioner she pleaded asking him to release her, however he caught hold of both her hands with full force and undressed her forcibly and touched her private parts. As soon as the grip of respondent No.2 eased, she kicked him, rushed into the bathroom and locked herself. Though he kept knocking the door but she did not come out and finally he left and she lodged the complaint.

4. The learned Trial Court noted that the petitioner refused to undergo medical examination. Thus an inference can be drawn that there was no injury on her body. It also noted that as per the petitioner she was showing resistance and if the respondent No.2 had caught hold of her and undressed

her she would have suffered at least some visible bruises on her wrist as a necessary consequence of the resistance of holding her wrist tightly. Further the petitioner shouted for no help at any point of time. Though she stated that she locked herself in bathroom for 1 hour 45 minutes, however despite a small window being there she sought no help. Even after coming out of the bathroom she did not report the incident immediately and called her friends etc. No friend to whom this information was given was cited as a witness. The petitioner did not name the friend to whom she called after the incident nor placed on record her call details. Further her conduct of sending Policy renewal SMS on the mobile phone of the respondent No.2 even after the alleged incident raises serious suspicion about the prosecution case, hence the respondent No.2 was acquitted.

5. The learned ASJ vide the impugned judgment from the cross- examination of the petitioner noted in Paras 8 - 14 as under:

"8. She was cross-examined at length. The following notable points emerge from her cross-examination:

(i) She was living alone as she was unmarried and her parents were living in the home town. In her examination she stated that the accused had visited her 4-6 times earlier. He had invested in 8 mutual funds, one life insurance policy and 1 KYC for Mutual fund with her. He had also given her two further references.

(ii) The accused reached her house at about 4.05 PM and she locked herself in the bathroom at about 4.15 PM and came out at about 6.15 PM i.e. stayed inside the bathroom for about 2 hours approximately.

(iii) She did not get herself medically examined despite the fact that she had stated in her cross-examination that she received rashes on her wrist and chest.

(iv) On one hand, she stated in cross-examination that she had taken the training of self-defence and was a Senior Blue Belt holder and on the other hand she states that she was helpless before the accused as he threw her on the bed forcibly and lay on her.

(v) The manner in which he is stated to have molested her also seems improbable i.e. she says that he had held both her hands and undressed her forcibly and touched her private parts. This seems hard to believe that an accused could hold both the hands of a Blue Belt holder and immobilize her and at the same time continue to undress her and touch her private parts.

(vi) It is also observed from the cross-examination that there was window in her bathroom which could be easily opened but she did not raise any alarm when she locked herself in a bathroom. It is difficult to believe that a person trained in self defence could get so scared that she could not raise her voice. She was living in this self owned property from the year 2010 and before that she was in a rented accommodation in Tughlakabad Extension. She had also stated that the accused had visited her once in the rented premises also. She sent one SMS for policy renewal reminder to the accused even after the incident from her personal mobile number.

9. In his statement under Section 313 Cr.P.C., the accused had denied all the averments and had categorically stated that no such incident took place inasmuch as he did not visit the house/ office of the complainant on that date.

10. No such document has been placed on record to show that any such appointment for that date had been fixed. The complainant had not given any call details to show about the Sunday meeting or message received from the accused on her mobile phone to fix the appointment.

11. On the other hand, the accused has also produced Shri Amit Kumar as DW-1 who stated that on that date at about 3.00 PM, he had gone to the office of the accused at Sarojini Nagar

and had lunch with the accused at that time and stayed there with the accused from 3.00 PM till 5.30 PM.

12. Despite lengthy cross-examination of this witness, nothing material could be extracted to demolish the statement made by him.

13. Then there is introduction of her friend to whom the complainant allegedly talked on phone after coming out of the bathroom. She is a material witness who could have stated about the incident as told to her by the complainant immediately after the so called incident, if such a thing had happened. The complainant has not given any details of this friend or of any call made by her immediately after her coming out of the bathroom at about 6.15 PM i.e. complainant could have (but has not) given the details of this friend; of the phone calls of that day to show the call with accused to fix appointment and call with the friend. It is also observed that this friend who is such a material witness, has not even been cited by the prosecution as a witness.

14. I am thus of the opinion that in these circumstances, it was not safe to rely on the sole testimony of the complainant to convict the accused. In these circumstances and for reasons detailed above, I find no ground to interfere in the judgment of learned MM."

6. The findings of the two Courts below on the evidence as noted above cannot be held to be perverse. The view taken by the two Courts is plausible and that being the situation this Court in exercise of its revisional jurisdiction cannot interfere in the two orders.

7. Petition is accordingly dismissed.

(MUKTA GUPTA) JUDGE SEPTEMBER 19, 2016 'ga'