Delhi High Court
Ms.S vs State & Ors. on 10 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 10th July, 2018
+ CRL.L.P. 311/2016
Ms. S ..... Petitioner
Represented by: Mr. Joginder Tuli, Ms. Joshini
Tuli and Mr. Ashu Kr. Sharma,
Advocates.
versus
STATE AND ORS. ..... Respondent
Represented by: Mr. Ashok Kumar Garg, APP
with SI Basi, PS Mehrauli.
Mr. M.A. Hussain, Advocate
for R-2 and 3.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. As per the practice directions the name of the prosecutrix is withheld
to conceal her identity and she has been referred to as 'Ms. S'.
2. Aggrieved by the judgment dated 11th February, 2016, whereby the
learned Additional Sessions Judge acquitted respondent No. 2 Dharmender
for the offence punishable under Section 376 IPC and in alternative under
Sections 493/342/376(2)(g)/313 IPC and respondent No. 3 Rampal for the
offences punishable under Sections 376(2)(g)/376/377 IPC, the
petitioner/prosecutrix has preferred the present leave petition.
3. Sequence of events leading to the prosecution case is that DD No.16A
(Ex.PW-13/A) was recorded on an information received on 16 th August,
2013 at 10.30 AM whereby the caller stated that her husband had locked her
at their house and she was not feeling well. Aforesaid information was
assigned to SI S.P. Samariya (PW-13). He along with Ct. Subhash went to
the spot but he could not find anyone there. He came to know that the
victim had been taken to the hospital by the PCR. There he received another
information from AIIMS Trauma Centre vide DD No.21A (Ex.PW-13/B).
Consequently, he went to the hospital and collected the MLC. He came to
know that the prosecutrix had been discharged. When he contacted her on
her mobile number, she stated that she would come to the police station and
get her statement recorded.
4. Statement of the prosecutrix was recorded vide Ex.PW-11/A wherein
she stated that she was living with her husband Dharmender at address 'X'
for the past one month. Her husband was a driver and belonged to UP. She
belonged to Rohini Delhi. About 2 years back she came to know
Dharmender in Rohini. They both fell in love. They both had physical
relations and on 26th March, 2013 they got married in Arya Samaj Mandir,
Harit Vihar, Burari according to Hindu rites and ceremonies. When her
husband was not marrying her she complained against him in February,
2013 in Police Station Harit Vihar. Before this he had put her in the business
of prostitution. In November, 2011 she was caught in a raid however, later
she left all this. Both she and Dharmender started living together as husband
and wife in Chhatarpur. On 16th August, 2013 at about 5:30 PM Dharmender
forcibly had sexual intercourse with her. When she resisted he beat her,
pushed her, abused her, in anger locked her in the room and went away. She
gathered courage and called at 100 number. She was feeling dizzy and
anxious. The PCR van came and took her to AIIMS Trauma Centre where
her medical examination was got done. She told everything to her parents.
She wanted legal action against her husband as while leaving he had
threatened to kill her.
5. On the basis of the aforesaid statement, FIR No.558/2013 (Ex. PW-
1/A) was registered at PS Mehrauli for the offences punishable under
Sections 342/506/509 IPC. Dharmender was arrested on 16th August, 2013
vide arrest memo Ex. PW-8/A.
6. On 29th August, 2013 the statement of the prosecutrix was recorded
under Section 164 Cr.P.C wherein she levelled allegation of rape against
Rampal, brother of Dharmender. Rampal was arrested on 5th September,
2013 vide arrest memo Ex. PW-10/C.
7. On completion of investigation chargesheet was filed under Sections
342/506/509/376/377/34/313/498A IPC.
8. Prosecutrix was examined as PW-11 in Court. Learned Trial Court
acquitted the respondents on the basis of the inconsistencies in the testimony
of the prosecutrix which are discussed below:
9. The prosecutrix stated that Dharmender married her at Arya Samaj
Mandir, however, in her testimony she did not state that the marriage
ceremony was a fraudulent ceremony or she was deceived into believing that
she was married with Dharmender. Moreover no evidence has been led by
the prosecutrix to show that Dharmender deceitfully married her.
Prosecutrix in her statement recorded under Section 164 Cr.P.C. stated that
Dharmender used to take her to his friend's house, mixed something in her
drink, raped her and thereafter blackmailed her with a mobile clipping and
asked her to have sexual intercourse with him and other persons. However,
this version is not stated in her testimony in Court and her complaint. No
mobile clipping has been produced by the prosecutrix in support of this
allegation. Prosecutrix also stated that Dharmender send her for prostitution
and in this regard FIR No. 454/2011 was registered at PS K.N.Katju Marg,
under Sections 3/4/5/8 of Immoral Traffic (Prevention) Act but no evidence
was produced to show the involvement of Dharmender in the said case.
10. Prosecutrix in her testimony claimed that once when she was present
at the house of Dharmender, she overheard his conversation with someone
saying that he had a beautiful girl, she would charge ₹5000 and asked that
person to come to his house and see the girl. After sometime, that person
came and Dharmender showed the prosecutrix and took ₹5,000. However,
no such averment is made in any of the previous statements. Prosecutrix in
her cross-examination admitted that she did not make any complaint that she
was forced into prostitution.
11. Prosecutrix also alleged that on 10th September, 2012, Dharmender
took her to the house of Rampal in Subhash Colony, Ballabgarh where
Rampal raped her in the car. There is no mention of such an allegation in her
complaint.
12. Another contradictory statement of the prosecutrix is that she stated in
her testimony that after she was raped by Rampal, Dharmender got her
home, gave beatings with kicks and blows to her in her stomach because of
which she developed pain. Dharmender took her to the doctor who gave her
medicines. When she came back to the house, Dharmender again gave her
beatings because of which she started bleeding. When she asked him to take
her to the doctor, he refused and instead gave her a medicine because of
which she had a miscarriage. There is no mention of this incident also in the
complaint. In her statement under Section 164 Cr.P.C., she stated that
miscarriage took place the same day when she and Dharmender came back
from Ballabhgarh but there was no mention about Dharmender having
beaten her or taken her to the doctor.
13. Prosecutrix stated in her testimony that Rampal committed sexual
intercourse with her forcibly in April 2013. There is no whisper about this
incident in her complaint. In her statement under Section 164 Cr.P.C., she
stated that Rampal committed anal sex with her, without mentioning the
month, date or time.
14. Lastly, prosecutrix claimed that Dharmender blackmailed her into
doing prostitution but she has nowhere given the name of any person to
whom he sent her for the same. No witness has been examined by the
prosecution to prove that the prosecutrix was wrongfully confined by
Dharmender.
15. Considering that the findings of the learned Additional Sessions Judge
are based on the glaring inconsistencies and improvements in the testimony
of the prosecutrix, the view expressed by the learned Additional Sessions
Judge is a plausible view. Hence, the impugned judgment acquitting the
respondent Nos. 2 and 3 cannot be said to be perverse warranting
interference by this Court.
16. Leave to appeal petition is dismissed.
17. Trial Court record be sent back.
(MUKTA GUPTA)
JUDGE
JULY 10, 2018
'vn'
