Delhi High Court
Harkirat Singh Ryait vs State (Nct Of Delhi) & Anr. on 1 September, 2016
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 1st SEPTEMBER, 2016
+ CRL.REV.P.397/2016 & CRL.M.A.No.8860/2016
HARKIRAT SINGH RYAIT ..... Petitioner
Through : Mr.N.Hariharan, Sr.Advocate with
Mr.Harmeet Ruprah, Mr.Amartya
Kanjilal, Mr.Ambar Tiwari,
Mr.Aditya Singh & Mr.Vaibhav
Sharma, Advocates.
versus
STATE (NCT OF DELHI) & Anr. ..... Respondents
Through : Mr.Amit Gupta, APP.
Ms.Shikha Kaushik, Advocate with
Mr.Ravinder Samual Singh, Advocate
for Respondent No.2.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (Oral)
1. Present revision petition has been preferred by the petitioner -
Harkirat Singh Rayait to challenge the legality and correctness of an order
dated 14.05.2016 of learned Addl. Sessions Judge whereby he was charged
for commission of offences punishable under Sections 328/376 IPC. Status
report is on record.
2. I have heard the learned Senior Counsel for the petitioner and
learned Addl. Public Prosecutor assisted by learned counsel for the
respondent No.2 and have examined the file.
3. At the outset, it may be mentioned that during course of
arguments, learned Senior Counsel, on instructions, opted not to challenge
order on charge under Section 376 IPC and restricted his arguments to
challenge the legality and correctness of charge under Section 328 IPC only.
4. Learned Senior Counsel urged that there was no convincing and
cogent evidence on record to infer if the victim was given any 'chocolate' as
a result of which she became drowsy. There is no medical evidence on
record to substantiate her oral allegations. The petitioner and the victim
were acquainted with each other since long. Physical relations (if any)
between the two were consensual. Reliance has been placed on 'Prashant
Bharti vs. State (NCT of Delhi)', 2013 (9) SCC 293.
5. Learned Addl. Public Prosecutor and learned counsel for the
respondent No.2 refuting the arguments urged that at this stage, truthfulness
or falsity of the allegations cannot be prejudged.
6. FIR No.303/2015 was lodged at PS Vasant Vihar on the
victim's statement on 09.03.2015. In her complaint, she levelled allegations
of commission of rape upon her by the petitioner. She disclosed that the
petitioner had taken her to a renowned Spa Centre 'Moksha' located in PVR
Priya Market, Vasant Vihar, Delhi. He booked there for couple massage and
jacuzzi sessions. The petitioner had brought some snicker chocolate
candies. On consuming a few chocolates, she felt little dizzy and drowsy;
her resistance power was low. Thereafter, physical relationship was
established by the petitioner. When she realised about it, she opposed but
the petitioner convinced to marry her. In her 164 Cr.P.C. statement also she
reiterated her version given to the police at the first instance. Upon
completion of investigation, a charge-sheet has already been filed against the
petitioner and charge under Sections 328/376 IPC has been framed by the
Court below.
7. From the perusal of the contents of the FIR, it transpires that the
initial alleged physical relationship with the victim was not with her free
consent. For that reasons, seemingly, the petitioner has opted to give up
challenge to the charge framed under Section 376 IPC. Apparently, at the
time of having physical relationship, prima facie, the victim's consent was
vitiated. The petitioner did not give any other 'reason' resulting in physical
relationship between the two at that place. The victim claimed that before
establishing physical relations, she was offered snicker chocolate to eat by
the petitioner and on consuming it, she became drowsy. Thereafter, physical
relationships were established by the petitioner as she was unable to resist.
Since charge under Section 376 is not under challenge, no sound reasons
exist to disbelieve the victim's statement at this stage that physical relations
were the result of her consent being vitiated because of consumption of
snicker chocolate.
8. Since the petitioner had allegedly assured to marry the victim
and subsequently, on several occasions, he had established physical relations
with consent; the prosecutrix did not get herself medically examined on the
day of first incident of commission of rape.
9. Citation 'Prashant Bharti vs. State' (supra) relied upon by the
petitioner is of no helpful as the facts and circumstances of the said case
were entirely different and distinct. In the said case, the Hon'ble Supreme
Court did not believe the version given by the prosecutrix whereby she
alleged that after consuming 'Pepsi' she had felt inebriated and thereafter the
accused therein had misbehaved with her. The prosecutrix therein was
already a 'married' lady and there was no question of the accused therein to
have given her a promise to marry. The prosecutrix therein had got herself
medically examined on the next day of incident and as per medical report,
there was no evidence of 'poisoning'. Moreover, the prosecutrix herself had
filed a Writ Petition (Crl.) No. 257/2008 for quashing of the said FIR before
this Court.
10. At the stage of consideration of charge, the victim's allegation
cannot be discarded.
11. I find no illegality or material irregularity in the impugned
order.
12. The petition lacks in merits and is dismissed. Pending
application also stands disposed of.
(S.P.GARG)
JUDGE
SEPTEMBER 01, 2016 / tr
