Shalu Raghav vs State Govt Of Nct Of Delhi & Anr on 30 May, 2017

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI

DECIDED ON : 30th MAY, 2017

+ CRL.REV.P. 83/2016 CRL.M.A.No.1902/2016
SHALU RAGHAV ….. Petitioner
Through : Ms.Neetu Singh, Advocate.

versus

STATE GOVT OF NCT OF DELHI ANR ….. Respondents
Through : Mr.Amit Gupta, APP.
Mr.Kedar Yadav, Advocate for R2.
AND
+ CRL.REV.P. 58/2016
STATE (NCT) OF DELHI ….. Petitioner
Through : Mr.Amit Gupta, APP.

versus

MONIL YADAV ….. Respondent
Through : Mr.Kedar Yadav, Advocate.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (Oral)

1. Aggrieved by an order dated 07.10.2015 of learned Addl.
Sessions Judge in Sessions Case No.29/2015 arising out of FIR No.135/2014
PS Chanakya Puri whereby the respondent No.2 – Monil Yadav (hereinafter
referred as ‘the respondent’) was discharged of the offences punishable

Crl.R.P.83/2016 connected matter Page 1 of 6
under Sections 376/328/506 IPC, State and the victim have preferred the
present petitions which are contested by the respondent.

2. I have heard the learned counsel for the parties and have
examined the file. On 18.06.2014, the prosecutrix ‘X’ (assumed name)
lodged a written complaint at PS Chankya Puri disclosing that Bal Mukund
Sharma @ Panchal (hereinafter referred to ‘A-I’) and his associate-the
respondent, resident of Kaushambi Indrapuram, Ghaziabad were known to
her for about a year. A-I often used to talk on her mobile No.9711578279 to
provide her a job. ‘The respondent’ also used to talk to her on A-I’s mobile.
The prosecutrix further alleged that on 25.04.2014 both A-1 and the
respondent took her to Delhi in the parking of Ashoka Hotel at about 12.00
noon; administered stupefying substance in the cold drink and committed
rape upon her in the car. Again, on 03.06.2014 in similar manner they both
committed rape upon her in the parking lot near ISBT Kashmiri Gate, Delhi
in the car. They had also committed rape upon her several times in Hindon
Vihar (Ghaziabad) as well. She was criminally intimidated not to disclose
the incident.

3. During investigation, statements of the witnesses conversant
with the facts were recorded. ‘X’ when taken for medical examination,
declined to undergo internal medical examination. Statement of the
prosecutrix under Section 164 Cr.P.C. was recorded. A-I was arrested. Call
Detail Records of the mobiles belonging to various individuals were
collected. Upon completion of investigation, a charge-sheet for commission
of offences punishable under Sections 328/506/376 IPC was filed against
A-I in the Court. ‘The respondent’ was kept in column No.12 claiming lack
of evidence against him.

Crl.R.P.83/2016 connected matter Page 2 of 6

4. By an order dated 04.08.2014, the learned Metropolitan
Magistrate took cognizance against the respondent to face trial in the
criminal proceedings. By an order dated 14.11.2014, the Revisional Court in
Crl.Rev.No.77/2014 dismissed the revision petition and directed the
respondent to appear before the Trial Court. Seemingly, the said order has
attained finality.

5. By the impugned order, the learned Trial Court charged A-I for
commission of offences punishable under Sections 328/376 IPC. The
respondent, however, was acquitted of all the charges.

6. In her complaint dated 18.06.2014 ‘X’ had implicated both A-I
and ‘the respondent’ to have committed rape upon her on various occasions.
She specifically disclosed the dates 25.04.2014 and 03.06.2014 when both
A-I and the respondent had sexually assaulted her in the car, firstly in the
parking of Ashoka Hotel and thereafter in the parking of ISBT. The
prosecutrix also disclosed that A-I used to remain in touch with her on his
mobile No.9810016616. She further informed that the respondent had a
mobile No. 9899797332; her own mobile number was 9711578279.

7. In her 164 Cr.P.C. statement recorded on 20.06.2014, ‘X’
reiterated her version disclosed to the police and gave graphic detail as to
how A-I and the respondent used to commit rape upon her on the allurement
to provide her a job.

8. The Trial Court in the impugned order placed reliance upon the
‘X’s statement to frame charge under Sections 376/328 IPC against A-I.
However, victim’s statement was considered unreliable or deficient qua the
respondent and he was exonerated of all the charges. This approach of the
Trial Court cannot be justified. There were specific allegations against the

Crl.R.P.83/2016 connected matter Page 3 of 6
respondent by the complainant in her initial complaint dated 18.06.2014 as
well as in her 164 Cr.P.C. statement. The respondent was specifically
named in the FIR. Nothing has emerged to infer that the respondent had no
acquaintance with A-I or that ‘X’ nurtured ill-will or animosity to falsely
implicate him for sexual assault. No ulterior motive was assigned to the
prosecutrix for respondent’s false implication in the crime. At the stage of
consideration of charge, there were no cogent or valid reasons for the Trial
Court to suspect the victim’s statement without giving her an opportunity to
prove it during trial. Settled position of law is that the conviction can be
based even on the sole testimony of the prosecutrix if it inspires confidence
and can be relied upon; no independent corroboration is even asked for in
such an eventuality.

9. The investigating agency, seemingly’, was interested to
exonerate ‘the respondent’. Initially, he was put in column No.12 and
charge-sheet was filed against him without arrest. Learned Metropolitan
Magistrate in her wisdom took cognizance against the respondent for
commission of the aforesaid offences. Challenge to the order taking
cognizance in revision resulted in dismissal. The revisional Court has given
cogent reasons to justify the cognizance taken by learned Metropolitan
Magistrate.

10. During investigation, the investigating agency collected Call
Detail Records of mobile phone 9899797332 and found it belonging to
Subhash Yadav – respondent’s father. On 25.04.2014 and 03.06.2014 there
was no conversation over this mobile with the prosecutrix or A-I. It was
further ascertained that on 25.05.2014 and 03.06.2014, its location was at
Indrapuram, Vaishali and Kaushambi (Ghaziabad) respectively. On

Crl.R.P.83/2016 connected matter Page 4 of 6
analysing call details of mobile No.9999145569 it was found it was issued in
the name of the respondent in February, 2012. Again, there was no
conversation on this mobile with the prosecutrix or A-I. Call Detail Records
of mobile No.9711578279 revealed that it was issued in the name of Deepak

– victim’s brother in May, 2014. It was active only from 29.05.2014 to
12.06.2014. There was no cell ID available on 25.04.2014. Mobile
No.9899194885 in the name of one Inderjeet was used by the victim and her
mother. There was no conversation with ‘the respondent’ on this mobile.

11. The Trial Court committed grave error to give clean chit to the
respondent relying upon Call Detail Records of the mobile phones referred
above. In her complaint dated 18.06.2014, the victim had specifically
disclosed that ‘the respondent’ used to have conversation with her on A-I’s
mobile. Moreover, it is a matter of trial whether the mobile phones referred
above remained in the custody of the various individuals at the relevant
time. The CDR record is only a corroborative piece of evidence. At this
stage, it cannot be presumed that the respondent was having his mobile in
his possession at the time of commission of the alleged crime. Victim’s
Statement qua the respondent cannot be brushed aside at this stage. It is for
the respondent to prove ‘alibi’ by leading credible evidence during trial.
Initially, Mobile no.9899797332 was issued in the respondent’s name.
Subsequently, allegedly it was transferred in his father’s name in 2011. It is
to be ascertained during trial as to who used to have the custody of the
mobile.

12. The Trial Court has discussed the relevant law to be taken into
consideration at the time of consideration of charge while framing charge

Crl.R.P.83/2016 connected matter Page 5 of 6
against A-I. No sound reasons exist not to apply the said ‘law’ qua the
respondent.

13. Resultantly, the impugned order discharging the respondent
cannot be sustained and is set aside. The respondent shall appear before the
Trial Court on the date fixed i.e. 08.07.2017 to face trial.

14. Observation in the order shall have no impact on merits of the
case.

15. The petitions and all pending application(s) stand disposed of.

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

(S.P.GARG)
JUDGE
MAY 30, 2017 / tr

Crl.R.P.83/2016 connected matter Page 6 of 6

Leave a Comment

Your email address will not be published. Required fields are marked *