Delhi High Court
State vs Radhey Shyam Mishra on 29 January, 2019
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 761/2018
STATE ..... Petitioner
Through: Ms. Aashaa Tiwari, APP.
versus
RADHEY SHYAM MISHRA ..... Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
ORDER
% 29.01.2019
1. The State is aggrieved by the judgment dated 07.1.2018, passed by
learned ASJ-Special (FTC-2), (Central), Tis Hazari Courts, Delhi, acquitting
the respondent in Case No. 576/2017, arising out of FIR No. 622/2016 P.S.
Burari for the offence under Section 376(2)(f) IPC.
2. The case as set up by the prosecution is based on the statement of the
prosecutrix that on 20.12.2016 at about 1.00pm, she had gone to get some
medicine from the clinic of a homeopathic doctor, the respondent herein. At
that time, no one was present in the clinic. As per the prosecutrix, the
accused took her to the patient couch behind the curtain and locked the
clinic from inside and raped her. When the husband of the prosecutrix,
PW-5, Ram Vilas returned home at 9.00PM, she narrated the incident to
him. Since it was night time, they did not go to the P.S. to lodge a complaint
against the accused. A complaint was lodged on the next day i.e., on
21.1.2016 at 10.00AM. Based on the said complaint, investigation was
conducted and a charge for the offence punishable under Section 376 (2) (f)
IPC was framed against the accused.
3. After the trial was concluded, the learned trial court arrived at a
conclusion that the prosecution had not been able to prove its case against
the accused beyond reasonable doubt. For holding so, learned trial court
opined that the testimony of the prosecutrix (PW-1) and that of her husband,
(PW-5) was contradictory as to the sequence of events on the relevant date,
narrated by them. While the prosecutrix deposed that her husband had
returned home at 9.00PM on the date of incident, her husband had stated that
he came to know about the incident only at 7.00PM. However, neither of
them approached the Police Station on that day or called up at 100 number
or even inform the neighbours about the fact that the accused had raped the
prosecutrix. Thus, the delay in making a complaint to the police, remained
explained. Further, the MLC of the prosecutirx (Ex.A-3) suggested that no
fresh external injury was present at the time of her external examination.
The report submitted by the FSL (Ex.PW7/G) concluded that the DNA of
the victim did not match with the DNA of the accused.
4. The trial court has observed in para 61 of the impugned judgment that
the prosecutrix had admitted that she had established physical relation with
her husband after the incident of rape and that too before going to the Police
Station and before her medical examination was conducted, which itself
appears to be quite unusual. Ordinarily, a victim of rape would not act in
such a manner and nor would her husband, who was stated to be under
depression, proceeded to have sexual intercourse with his wife knowing very
well that she had undergone the trauma of sexual assault in the same
morning. In this context, the evidence of the IO, (PW-7) W/Inspector
Mukesh Devi gains significance. In her cross-examination, the IO has
clearly stated she had inspected the clinic of the doctor after his arrest but
did not find any door there that could be bolted from inside. Instead, there
was only a shutter. In the light of the said testimony, the version of the
prosecutrix that she was raped by the accused inside the clinic, after the door
was bolted by him, stands falsified. Even otherwise, the version of the room
being bolted from inside by the accused, was not mentioned in the statement
of the prosecutrix recorded under Section 164 Cr.P.C., on 22.12.2016.
5. There is also doubt cast on the story set up by the prosecutrix about
her rape at the hands of the accused in the light of her statement recorded
during her first examination conducted at Aruna Asaf Ali Govt. Hospital on
22.12.2016 wherein, it is recorded that she was sexually assaulted by
"a local Homeopathic doctor on 20.12.2016 at around 5.00PM" whereas her
own version is that she was raped at 12.00PM on the said date. Moreover,
the accused was known to the prosecutrix, as she had been going to him
earlier for treatment. Therefore, his name not being mentioned in the said
document, is also curious.
6. For all the aforesaid reasons, we do not find any justification for
interfering in the impugned judgment, which is well reasoned and the
conclusion drawn is based on the evidence brought on record.
7. Accordingly, leave prayed for in the petition is declined. The petition
is dismissed.
HIMA KOHLI, J
MANOJ KUMAR OHRI, J
JANUARY 29, 2019/ap
