State vs Sumit Kumar on 6 June, 2017

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

RESERVED ON : MAY 05, 2017
DECIDED ON : JUNE 06, 2017

+ CRL.A. 176/2016

STATE ….. Appellant

Through : Ms.Manjeet Arya, APP.

versus

SUMIT KUMAR ….. Respondent

Through : Mr.G.P.Thareja with Mr.Satender
Singh, Advocates.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The instant appeal has been preferred by the State to impugn
the judgment dated 04.01.2013 of learned Additional Sessions Judge in
Sessions Case No.172/2011 emanating from FIR No.208/2011 at Police
Station Chhawla by which the respondent Sumit Kumar was acquitted of the
charge under Section 376 IPC.

2. Briefly stated, the prosecution case, as reflected in the charge-
sheet was that in the first week of January 2008 at his House No. C-1/1160.
Vasant Kunj, New Delhi and thereafter on several occasions at his house and
on 21.3.2010 at the victim’s house at E-269, Shyam Vihar-I, Najafgarh, New

Crl.A.176/2016 Page 1 of 7
Delhi, the respondent committed rape upon the prosecutrix ‘X’ (changed
name), aged around 31 years. On 06.10.2011, the prosecutrix lodged the
written complainant with the police of Police Station Chhawla implicating
the respondent for commission of rape upon her on various occasions. The
Investigating Officer lodged First Information Report. ‘X’ was medically
examined; she recorded her 164 Cr.P.C statement. The respondent was
arrested and medically examined. Statements of the witnesses conversant
with the facts were recorded. Upon completion of investigation, a charge-
sheet was filed against the respondent under Sections 376/506 IPC. To
establish its case, the prosecution examined six witnesses. In 313 Cr.P.C.
statement, the respondent denied his involvement in the crime and pleaded
false implication. He examined DW-1 (HC Ram Pal) and DW-2 (Megha
Kapoor) in defence. The trial resulted in his acquittal as aforesaid. Being
aggrieved and dissatisfied, the State has preferred the instant appeal.

3. I have heard the learned counsel for the parties and have
examined the file.

4. At the outset, it may be mentioned that the entire case of the
prosecution was based upon the sole testimony of the prosecutrix ‘X’. The
Trial Court was of the view that there were material inconsistencies and
infirmities in her statement and it was not safe to base conviction on her
solitary testimony. The Trial Court also came to the conclusion that the
prosecutrix was a consenting party throughout and there was no promise to
marry ever given by the appellant to obtain her consent for physical
relationship. The Trial Court relied upon various e-mails between the
parties whereby the prosecutrix had not shown if there was any such promise
of marriage by the respondent.

Crl.A.176/2016 Page 2 of 7

5. The prosecutrix ‘X’ and the respondent were acquainted with
each other. They both were working in a company M/s Covergys. The
respondent used to work in the said company. PW-2 (‘X’) disclosed that she
joined M/s Convergys Pvt. Ltd, Gurgaon in October, 2007. She was to
undergo training course. The respondent was one of the trainers to train the
entire batch. She further disclosed that during training, they used to interact
with each other. They developed some sort of intimacy and continued
talking to each other on phone after the training hours. From Prachi, the
respondent came to know that ‘X’ was still unmarried. After coming to
know about it, the respondent started talking to her more. They started
dating each other. The respondent sent her text message ‘I like you. I like
your smile’. Thereafter, they started dating each other and used to meet at
restaurants in Gurgaon as well as in a park near the house of the respondent.

6. The first incident where allegedly the victim was sexually
assaulted took place in January, 2008 when the respondent asked her to
accompany him to his house to see his mother. When she went there, she
did not find respondent’s mother. She deposed that the respondent took her
to his bed room where they started talking to each other. Soon the
respondent started touching her inappropriately. She opposed his moves but
the respondent still continued to touch her. Suddenly he dashed her on the
bed and forced himself upon her. She was shocked and could not respond to
the respondent’s actions. He was not allowing her to speak and kept on
repeating ‘wait wait’. He had kept the volume of the television very high.
The respondent committed sexual intercourse with her. After it was done,
she enquired as to what he had done. The respondent told her not to worry as
he would marry her. She further disclosed that physical relationship took

Crl.A.176/2016 Page 3 of 7
place between the two on several occasions at various places for three years.
The respondent though promised to marry her repeatedly but did not fulfill
it. She was exploited for three years on the false pretext to marry.

7. On perusal of the entire statement of the prosecutrix, it reveals
that the prosecutrix, aged around 31 years, was well aware as to what were
the consequences of her establishing physical relationship with the
respondent. Nothing has emerged on record to show if any time, the
victim’s consent for physical relationship was obtained by deceit or on the
false pretext to marry. During long three years, the victim did not insist for
marriage with the respondent. She did not apprise her parents about her
inclination to marry the respondent. She did not examine any her family
member to corroborate her version if any such talks for marriage were going
on between her and the respondent or they were aware of it. The prosecutrix
did not take into confidence her parents. She did not reveal them if physical
relationship had take place with the respondent at any stage on the promise
to marry. It has, however, come on record that during this period victim’s
parents used to give matrimonials in the newspapers for her marriage. The
victim was aware of the matrimonialS and never asked her parents not to go
for that as she was expecting marriage with the respondent. The Trial Court
has given cogent reasons to arrive at the conclusion that at no stage, the
respondent had promised to marry the victim. Various e-mails sent by the
victim have been reproduced in the impugned judgment. In the said e-mails
at no stage, the victim insisted for her marriage with the respondent. Even in
the first week of January, 2008, when the physical relationship occurred,
initially there was no promise to marry. The Trial Court was of the view
that there was no forcible rape upon the victim. She did not raise any alarm.

Crl.A.176/2016 Page 4 of 7

She maintain complete silence on the so called promise to marry. After the
alleged commission of rape, the victim did not take any steps, whatsoever, to
lodge complaint against the respondent. Contrary to that, she continued to
have physical relations with the respondent at various places even at her
residence. There was no compulsion for the victim to have physical relations
with the respondent simply to get the alleged promise to marry fulfilled.
Nothing is on record to show if any injuries, whatsoever, were found on
victim’s body including her private parts in the alleged forcible rape in the
first week of January, 2008. In her MLC no external injuries on her body,
whatsoever, were noticed. Apparently, physical relationships between the
prosecutrix and the victim (if any) were with her consent. This relationship
continued for long three years and the victim had no complaint, whatsoever,
against the respondent’s conduct and attitude any time. Only when the
respondent attempted to keep distance from her, she got enraged and lodged
the instant complaint. She was agitated as the respondent had decided to
perform marriage with another girl. She even approached the said girl who
appeared as defence witness as DW-2. She is Megha Kapoor who performed
marriage with the respondent after engagement on 19.02.2011. The marriage
took place on 06.11.2011. She had no complaints against the respondent.
The victim had come to her office M/s IBM at Gurgaon on 7 th or 8th
September, 2011. She threatened her that she would not allow her alliance
with the respondent. DW-2 informed her parents and in turn they talked to
the parents of the respondent. She further deposed that ‘X’ had issued
similar threats to her parents also on telephone. The victim had no occasion
to intimidate DW-2, the lady with whom the respondent was to marry.

Crl.A.176/2016 Page 5 of 7

8. The impugned judgment based upon fair appreciation of
evidence deserves no intervention. The law regarding appeals against
acquittal is well settled. Even if two views are possible, the appellate court
could not ordinarily interfere with the judgment of acquittal. The appellate
court may overrule or disturb the Trial Court’s acquittal if it has very
substantial and compelling reasons for doing so. In the instant case, nothing
is on record to infer if the judgment recorded by the Trial Court is perverse.
Settled legal position is that conviction can be based upon the sole testimony
of the prosecutrix provided it is reliable and is of sterling quality. The
testimony should be beyond suspect and of very high quality. A case of
sexual assault has to be proved beyond reasonable doubt as any other case
and that there is no presumption that a prosecutrix would always tell the
entire story truthfully. Though the statement of proseuctrix must be given
prime consideration, at the same time, broad principle that the prosecution
has to prove its case beyond reasonable doubt applies equally to a case of
rape. In the instant case, the testimony of the victim is highly disputed and
unreliable. There is delay of three long years in lodging the report with the
police on the alleged promise to marry after the so called commission of
rape took place in the first week of January, 2008. In the State of Rajasthan
vs.Raja Ram 2003 CriLJ 3901 the court held:

“There is no embargo on the appellate Court reviewing the
evidence upon which an order of acquittal is based.
Generally, the order of acquittal shall not be interfered with
because the presumption of innocence of the accused is
further strengthened by acquittal. The golden thread which
runs through the web of administration of justice in criminal
cases is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the accused

Crl.A.176/2016 Page 6 of 7
and the other to his innocence, the view which is favourable
to the accused should be adopted. The paramount
consideration of the Court is to ensure that miscarriage of
justice is prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than from the
conviction of an innocent. In a case where admissible
evidence is ignored, a duty is cast upon the appellate Court
to re-appreciate the evidence in a case where the accused
has been acquitted, for the purpose of ascertaining as to
whether any of the accused committed any offence or not.
[See Bhagwan Singh and Ors. v. State of Madhya Pradesh].
The principle to be followed by appellate Court considering
the appeal against the judgment of acquittal is to interfere
only when there are compelling and substantial reasons for
doing so. If the impugned judgment is clearly unreasonable,
it is a compelling reason for interference.

9. Resultantly, the appeal filed by the State is without substance
and is dismissed.

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

(S.P.GARG)
JUDGE
JUNE 06, 2017/sa

Crl.A.176/2016 Page 7 of 7

Leave a Comment

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