Geeta Sharma vs State Nct Of Delhi & Anr on 21 July, 2017

$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: July 21, 2017

+ CRL.L.P. 137/2017 CRL.M.A.4027/2017

GEETA SHARMA ….. Petitioner
Through: Mr.Manoj K.Mishra
Mr.Umesh Dubey, Advocates

versus

STATE NCT OF DELHI ANR ….. Respondents
Through: Ms.Kusum Dhalla, APP for the
State with W/ASI Kiran Sethi
PS Patel Nagar

PRATIBHA RANI, J. (Oral)

1. By way of this petition, petitioner is seeking leave to appeal
against judgment and order of acquittal dated 21st March, 2016 passed
by the learned Addl. Sessions Judge, Tis Hazari Courts, New Delhi in
Sessions Case No. 16/16 arising out of FIR No.163/2015 registered at
P.S. Patel Nagar. In the above noted case, respondent No.2, Saurabh
Upadhyay was charged for committing the offence punishable under
Sections 328/376 IPC.

2. Learned counsel for the petitioner has submitted that petitioner
has made the statement before the learned Trial Court as she was
persuaded to do so by the respondent No.2/accused and she has now
also filed a criminal complaint against him under Sections 406/498-A
IPC. Learned counsel for the petitioner has also relied upon one
decision of Hon’ble Supreme Court reported as Bablu Kumar

CRL.L.P. 137/2017 Page 1 of 11
Another Vs. State of Bihar Another, (2015) 8 SCC 787 in support
of his submissions urging this Court to ensure fair trial in the matter
and justice to the petitioner who has been misled by the respondent
No.2.

3. Learned counsel for the petitioner further submits that accused
has also not been examined under Section 313 Cr.P.C.

4. The law with regard to the grant of leave is well settled by
catena of judgments. Leave to appeal can be granted where it is
shown that the conclusions arrived at by the trial court are perverse or
there is misapplication of law or any legal principle. The High Court
cannot entertain petition merely because another view is possible or
that another view is more plausible. In Arulvelu and Anr. Vs. State
represented by the Public Prosecutor and Anr. 2009 (10) SCC 2006,
while referring with approval the earlier judgment in Ghurey Lal vs.
State of Uttar Pradesh, (2008) 10 SCC 450, the Supreme Court
reiterated the principles which must be kept in mind by the High Court
while entertaining an appeal against acquittal. The principles are:-

“1. The accused is presumed to be innocent until proven
guilty. The accused possessed this presumption when he was
before the trial court. The trial court’s acquittal bolsters the
presumption that he is innocent.

2. The power of reviewing evidence is wide and the
appellant court can re-appreciate the entire evidence on
record. It can review the trial court’s conclusion with respect
to both facts and law, but the Appellate Court must give due
weight and consideration to the decision of the trial court.

3. The appellate court should always keep in mind that
the trial court had the distinct advantage of watching the
demeanour of the witnesses. The trial court is in a better

CRL.L.P. 137/2017 Page 2 of 11
position to evaluate the credibility of the witnesses.

4. The appellate court may only overrule or otherwise
disturb the trial court’s acquittal if it has ‘very substantial
and compelling reasons’ for doing so.

5. If two reasonable or possible views can be reached –
one that leads to acquittal, the other to conviction – the High
Courts/appellate courts must rule in favour of the accused.

6. Careful scrutiny of all these judgments lead to the
definite conclusion that the appellate court should be very
slow in setting aside a judgment of acquittal particularly in a
case where two views are possible. The trial court judgment
cannot be set aside because the appellate court’s view is more
probable. The appellate court would not be justified in setting
aside the trial court judgment unless it arrives at a clear
finding on marshalling the entire evidence on record that the
judgment of the trial court is either ‘perverse’ or wholly
unsustainable in law.”

5. Before the learned trial Court the statement of prosecutrix ‘GS’
(name withheld to disclose the identity) has been recorded which is to
the following effect:-

“On SA

I know the accused Saurav Upadhyay since March, 2013
through Facebook. I can identify accused Saurav
Upadhyay, if shown to me. At this stage the witness has
seen the accused through screen and correctly identified
him, who is present in the Court today. At that time the
accused was preparing for second attempt to appear in
Civil Services Examination. He had already been selected
for IRS (Indian Revenue Services). At that time I was
doing job at Noida as EOTA (Engineering Operation
Technical Asstt.). We became friends for one month and
then developed love. Thereafter, we started live in

CRL.L.P. 137/2017 Page 3 of 11
relationship. Now I got married with him on 29.11.15.
Today I have brought digital marriage certificate in the
Court. The photocopy of the same is Ex.PW1/A. Our
parents have also accepted our marriage. The complaint
was lodged by me due to misunderstanding. Earlier our
parents were not agreeable for our marriage and the
accused was under training at Nagpur at that time. I
lodged the complaint Ex.PW1/B at the PS, which bears
my signatures at point A. I was taken to the hospital,
where I refused for my internal examination. The MLC is
Ex.PW1/C, which bears my signatures at point A. I was
also produced before Ld. MM, where my statement u/s
164 Cr.P.C. was recorded.

At this stage, a sealed envelope sealed with the seal
of SS is opened and proceedings u/s 164 Cr.P.C. are
taken out. The statement u/s 164 Cr.P.C. is shown to the
witness who identified her signatures at point A. The
statement is Ex.PW1/D. The statement before Ld. MM
was also given under misunderstanding and depression
as it was recorded on the same day i.e. day of lodging the
report.

The physical relations were made with the accused
with my own consent. I do not want to pursue with the
present case as I am living happily with the accused. I
pray that the accused may be acquitted as he is innocent
and did not commit any offence against me.

At this stage, Ld. Addl. PP for the State seeks
permission to cross-examine the prosecutrix as she is
resiling from her previous statement.

Heard. Allowed.

CRL.L.P. 137/2017 Page 4 of 11

Xxxxxxxxxxx by Ms.Madhu Arora, Ld. Addl.PP for the
State

It is wrong to suggest that I did not lodge the complaint
before the police and made the statement before Ld. MM
due to misunderstanding and depression. It is wrong to
suggest that I had given the alleged history at my own
before the doctor at the time of my medical examination.
It is wrong to suggest that I did not maintain physical
relations with the accused at my own free will and
consent. It is wrong to suggest that I had given a free
statement before the police and before Ld. MM that I
maintained physical relations at different placed with the
accused on his promise to marry me. It is wrong to
suggest that on 06-08/04/13 accused administered some
drink to me with intent to facilitate the commission of
offence of rape upon me. It is wrong to suggest that today
I am deposing falsely being married with accused.

Xxxxxxxxx by Ms.Tania Singh, Ld. Counsel for accused.

NIL. (opportunity given)

RO AC

Sd/-

ASJ (SFTC)-01, West, THC,
Delhi/21.03.16″

6. The learned Trial Court vide judgment dated 21st March, 2016
acquitted the accused for the offences charged under Sections 328/376
IPC for the following reasons:-

“9. The prosecutrix, has not deposed an iota of evidence
of her being raped by the accused. She has deposed that
accused has not committed any offence against her and

CRL.L.P. 137/2017 Page 5 of 11
nor deposed anything incriminating against the accused.
She has deposed that she had physical relations with the
accused with her free consent and accused had honoured
his promised by marrying her. She has deposed that the
accused is innocent and has alsoprayed that he may be
acquitted.

10. In the circumstances, as PW1, the prosecutrix, who is
the star witness has turned hostile and has not supported
the prosecution case and more importantly has not
assigned any criminal role to the accused not deposing
anything incriminating against the accused. The precious
Court time should not be wasted in recording the
evidence of formal or official witnesses when the
prosecutrix herself, the most material witness, as well as
the complainant has not supported the prosecution case
and is hostile.

11. Statement under section 313 of the Cr.P.C of the
accused Saurav Upadhayay is dispensed with as there is
nothing incriminating against him when the prosecutrix
is hostile and nothing material has come forth in her
cross examination by the prosecution.

12. In the light of the aforesaid nature of deposition of the
prosecutrix, PW1, who happens to be the material
witnesses, I am of the considered view that the case of the
prosecution cannot be treated as trustworthy and
reliable. Reliance can also be placed upon the judgment
reported as Suraj Mal versus The State (Delhi Admn.),
AIR 1979 S.C. 1408, wherein it has been observed by the
Supreme Court as:

“Where witness make two inconsistent statements
in their evidence either at one stage or at two

CRL.L.P. 137/2017 Page 6 of 11
stages, the testimony of such witnesses becomes
unreliable and unworthy of credence and in the
absence of special circumstances no conviction can
be based on the evidence of such witness.”

13. Similar view was also taken in the judgment reported
as Madari @ Dhiraj Ors. v. State of Chhattisgarh,
2004(1) C.C. Cases 487.

14. Crucially, the materials and evident on the record do
not bridge the gap between “may be true” and must be
true” so essential for a Court to cross, while finding the
guilt of an accused, particularly in cases where the
prosecutrix has herself claimed that the accused is
innocent and has not committed any offence.

15. Consequently, no inference can be drawn that
accused Mr.Saurav Upadhayay is guilty of the charged
offence under section 376/328 of the IPC. There is no
material on record to show that accused Saurav
Upadhayay since 06-08/04/2013 at different places
(address mentioned in file and withheld to protect the
identity of the prosecutrix), committed rape upon the
prosecutrix several times on the pretext of marrying her
and also threatened her.

16. From the above discussion, it is clear that the claim
of the prosecution is neither reliable nor believable and
is not trustworthy and the prosecution has failed to
establish the offence of rape and threat. The evidence of
the prosecutrix makes it highly improbable that such an
incident ever took place. She has categorically deposed
that she had physical relations with the accused with her
free consent and accused had honoured his promise by
marrying her.

CRL.L.P. 137/2017 Page 7 of 11

17. Consequently, accused Mr. Saurav Upadhyay is
hereby acquitted of the charge for the offence under
section 376/328 of the IPC.”

7. It is not a case where on the date of her examination during trial
by exercising some influence or pressure, she was persuaded to make
a statement favouring the accused. Prior to that they had already
approached the Court seeking quashing of FIR. The prosecutrix in this
case is a matured lady who was aged about 27 years at the time of
registration of FIR. She was having friendly relations with the
respondent No.2 since the year 2013 and as per the FIR she had given
consent to have physical intimacy on the promise of respondent No.2
to marry her.

8. Even during hearing of Crl.M.C.1824/2015 on 3rd August, 2015
she informed this Court that she is an adult aged about 27 years and
the FIR was got registered by her under some misunderstanding and
that she, in fact, wanted to marry the accused.

9. In the leave petition the factum of marriage on 29th November,
2015 between the parties is admitted. Thus, the petitioner cannot claim
that she was misled to make a statement before the Court on 21st
March, 2016 which led to the acquittal of the respondent No.2.

10. This Court had observed on number of occasions that the
number of cases where both persons, out of their own will and choice,
develop consensual physical relationship, when the relationship breaks
due to some reason, the women use the law as a weapon for
vengeance and personal vendetta. They tend to convert such

CRL.L.P. 137/2017 Page 8 of 11
consensual acts as an incident of rape may be out of anger and
frustration thereby defeating the very purpose of the provision. This
requires a clear demarcation between the rape and consensual sex
especially in the case where complaint is that consent was given on
promise to marry.

11. The petitioner has annexed the copy of order dated 3 rd August,
2015 passed by this Court in Crl.M.C.No.1824/2015 whereby prayer
was made by the complainant accused for quashing of FIR
No.163/2015 PS Patel Nagar. The Crl.M.C.No.1824/2015 was
dismissed by passing the following order:-

“This is a petition seeking quashing of the FIR
No.163/2015 registered under Section 376 of the IPC at
the behest of respondent No.2. Respondent No.2 is
present. She is an adult stated to be 27 years of age. Her
presence has been identified by the Investigating Officer.
She states that she in fact wishes to marry the petitioner
and the FIR has been got registered under a
misunderstanding. She does not wish that any action
should be taken against the petitioner. The petitioner is
stated to be a Government servant.

In view of this factual matrix, the petitioner be not
arrested till the time when the statement of the
prosecutrix is recorded before the Sessions Judge.

Learned Public Prosecutor for the State under
instructions from the Investigating Officer states that
challan is almost ready and shall be filed positively
within two weeks. The trial Judge will endeavour to
record the statement of the prosecutrix as early as
possible.

CRL.L.P. 137/2017 Page 9 of 11

This Court is otherwise not inclined to entertain a
quashing petition under Section 376 of IPC in view of the
judgment of the Apex Court reported as 10 SCC 303 Gian
Singh Vs. State of Punjab and Anr.,

With these directions, petition disposed of.

Order dasti under the signatures of the Court
Master.”

12. Feeling aggrieved by the order dismissing the petition seeking
quashing of FIR No.163/2015 PS PS Patel Nagar, SLP was filed
before the Hon’ble Supreme Court which was also dismissed on 8 th
February, 2016. Thereafter, the petitioner was examined as PW-1 on
21st March, 2016 wherein she did not make any incriminating
statement against the respondent No.2/accused. Since in a case under
Section 376/328 IPC to prove the factum of alleged sexual assault, she
is the only star witness and she preferred not to support the case of the
prosecution, learned Trial Court was justified in closing the evidence
and acquitting the accused/respondent No.2. There was no purpose to
examine other witnesses which were either formal in nature or relating
to their medical examination or part of investigation.

13. Since the prosecutrix did not support the case of the prosecution
at all there was hardly any incriminating evidence which required
examination of the accused/respondent No.2 under Section 313
Cr.P.C.

14. The petitioner is not able to show how in the facts of this case
the decision of Hon’ble Supreme Court in Bablu Kumar’s case (supra)

CRL.L.P. 137/2017 Page 10 of 11
is applicable and requiring re-trial. On perusal of the LCR, it is
revealed that it is a case where the parties not only got married on 29 th
November, 2015, they sought quashing of criminal case. During trial
she did not make any incriminating statement against the respondent
No.2/accused.

15. When testimony of the Prosecutrix is examined on the above
settled principles on which the testimony of the Prosecutrix is to be
tested, I am of the considered view that in the absence of any
incriminating statement against the respondent No.2, the Court had
hardly any option but to acquit him.

16. Having regard to the standard which the Courts are bound to
follow while considering the petition for leave against the order of
acquittal passed by the trial Court i.e. existence of substantial and
compelling reasons, I am of the opinion that this is not an appropriate
case for grant of leave to appeal.

17. The petition is, therefore, dismissed.

PRATIBHA RANI, J.

JULY 21, 2017
‘pg’

CRL.L.P. 137/2017 Page 11 of 11

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