Ayesha Khatoon vs State (Govt. Of Nct Of Delhi) & Anr on 2 August, 2017

$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: August 02, 2017

+ CRL.L.P. 155/2017

AYESHA KHATOON ….. Petitioner
Through: Mr.Anirudh Yadav
Mr.Ashok Ahlawat, Advocates

versus

STATE (GOVT. OF NCT OF DELHI) ANR….. Respondents
Through: Mr.Kewal Singh Ahuja, APP
for the State

PRATIBHA RANI, J. (Oral)

1. The instant petition has been filed by the complainant/petitioner
seeking leave to appeal against the judgment dated 9th December,
2016 passed by the learned Additional Sessions Judge whereby the
respondent No.2/accused, Deepak Dahiya has been acquitted of the
charges under Sections 376/328/506 IPC.

2. On the basis of allegations made by the complainant/petitioner
in the complaint Ex.PW1/A, FIR No.316/2014 under Section
376/328/506 was registered at PS Mianwali Nagar. The
accused/respondent No.2 was arrested and chargesheeted for the
offences complained of.

3. As per the complaint Ex.PW1/A, on 1st May, 2014 at about 11
a.m., the prosecutrix was taken by the accused in auto from

CRL.L.P.155/2017 Page 1 of 9
Bahadurgarh towards G.T.Karnal Road by-pass Delhi. On the way, he
offered Jal-Jeera containing some intoxicant to her. Thereafter the
prosecutrix was taken to a secluded placed where he raped her. At that
time another friend of the accused was also present in the auto and he
was sitting on the driving seat when the alleged offence was
committed.

4. On respondent No.2 pleading not guilty to the charges, the
prosecution examined eight witnesses. PW-1, the prosecutrix is the
star witness. The accused himself appeared as a witness in his defence
and also examined DW-1, Mr.Sunil, his cousin. The trial Court after
appreciating the prosecution evidence especially the testimony of the
prosecutrix, observed that in view of the material contradictions and
variations in her version and improbability in the prosecution case, it
was not safe to rely on her testimony without corroboration. Thus, the
respondent No.2 was acquitted of the charges.

5. Learned counsel for the Leave Petitioner has submitted that
learned Trial Court erred in disbelieving the testimony of the
prosecutrix on the ground that she is Muslim and cannot go to Mandir
for idol worship. She even does not know how to worship Shivling.
The prosecutrix stated that she is Muslim but she has faith in Hindu
Gods and she used to go to Shiv Mandir at Bahadurgarh to offer
prayers. It has also been contended that learned Trial Court has
wrongly observed that the prosecutrix was left at the place where she
wanted to go i.e. Nangloi whereas she was supposed to go G.T.Karnal
Road and not to Nangloi where she was thrown. The learned Trial
Court has rejected the testimony of the prosecutrix even in respect of

CRL.L.P.155/2017 Page 2 of 9
the site plan despite the fact that prosecutrix stated that she does not
understand the site plan but she led the police to the place of
occurrence. It has also been contended that since the prosecutrix was a
married lady and mother of the two children hence absence of any
injury on her private part was not fatal to the prosecution case. Even
the CFSL report was not sufficient to acquit the accused for the
reasons that semen stains could have been only on her underwear but
at the time of production of case property though her salwar, shirt and
bra were produced, but her underwear, was not produced.

6. Learned counsel for the leave petitioner has further contended
that minor variations in the testimony of the prosecutrix have been
given undue importance to extend the benefit of doubt to accused.
Hence the order dated 9th December, 2016 acquitting him is liable to
be set aside and leave to appeal may be granted to the petitioner.

7. Perusal of the judgment impugned shows that the learned Trial
Court was conscious of the legal position that in the cases of sexual
assault conviction can be based only on the testimony of the victim
provided the evidence inspires confidence. The Trial Court observed
that in this case the testimony of the prosecutrix contained major
contradictions and that in the circumstance, it was unsafe to rely on
her testimony without corroboration. The learned ASJ also observed
that the prosecutrix’s testimony was not even corroborated by the
MLC which did not show any external or internal injury on the person
of the prosecutrix though she was medically examined soon after the
incident. The reasons given by the learned ASJ for disbelieving the
testimony of the prosecutrix are as under:-

CRL.L.P.155/2017 Page 3 of 9

’36. As per the testimony of prosecutrix, PW1 and PW-
8/IO SI Sharmila, prosecutrix has given only the name of
the accused as well as his mobile no. to the IO in her
complaint. PW-4 HC Rajesh Kumar had stated that he
had gone to Bahadurgarh and from Bahadurgarh he had
received telephone call from the IO of the present case
i.e. PW-8 to bring the “accused Deepak Dahiya son of
Om Parkash resident of Bahadurgarh, Haryana” as he
was wanted in the rape case which was being
investigated by SI Sharmila. In the testimony PW-8, SI
Sharmila has no where stated that prosecutrix was aware
of the name of father of the accused or that she had
carried out any investigation for knowing the name of
father of the accused prior to the arrest of the accused.
PW-4 HC Rajesh and PW-8 SI Sharmila and
PW-1/prosecutrix have not been able to explain as to
how the father’s name of accused was communicated to
PW-4 HC Rajesh Kumar by the IO/SI Sharmila on
02.5.14 is very next day of the alleged incident or rape,
whether it was disclosed by prosecutrix to the IO or not?
This also raises doubt against the genuineness of the
prosecution case and it also proves that accused has
been falsely implicated at the behest of his family
members, against whom, he is having property dispute
pending. Otherwise there was no occasion for the IO to
know the name of the father of the accused as Om
Parkash Dahiya, as till date time neither accused was
arrested nor complainant/prosecutrix had given the
parentage of accused to IO.

37. Even otherwise, PW4 HC Rajesh had stated that
he was present in Bahadurgarh for some investigation in
another matter, where as PW-8 SI Sharmila had stated
that police team had also gone to Bahadurgarh from PS
Mianwali Nagar for investigation in this case, therefore
she telephone HC Rajesh and told the registration no. of
the auto and driver of the auto as Deepak Dahiya and
asked him to search for the auto as well as driver. PW-8

CRL.L.P.155/2017 Page 4 of 9
has no where stated that she had disclosed the name of
the father of the accused to PW-4 HC Rajesh Kumar and
PW-8/SI Sharmila which has not been reconciled by the
prosecution in any manner.’

8. There is no dispute about the proposition of law that the
testimony of a prosecutrix can be acted upon without corroboration in
material particulars. A victim of sexual assault stands on a higher
pedestal than an injured witness, however, in the instant case in view
of the wide variations in the testimony of the prosecutrix, the Trial
Court rightly declined to believe her statement without any
corroboration.

9. In the decision report as Dr. Sunil Kumar Sambhudayal Gupta
Ors. v. State of Maharashtra, (2010) 13 SCC 657, the Hon’ble
Supreme Court considered various aspects of dealing with a case of
acquittal and after placing reliance upon earlier judgments of this
Court particularly in Balak Ram Anr. v. State of U.P., AIR 1974 SC
2165; Budh Singh Ors. v. State of U.P., AIR 2006 SC 2500; S.
Rama Krishna v. S. Rami Reddy (D) by his LRs. Ors., AIR 2008
SC 2066; Arulvelu Anr. v. State, (2009) 10 SCC 206; and Babu v.
State of Kerala, (2010) 9 SCC 189, held that:

“22. It is a well-established principle of law, consistently
re-iterated and followed by this Court is that while
dealing with a judgment of acquittal, an appellate court
must consider the entire evidence on record, so as to
arrive at a finding as to whether the views of the trial
Court were perverse or otherwise unsustainable. Even
though the appellate court is entitled to consider, whether
in arriving at a finding of fact, the trial Court had placed
the burden of proof incorrectly or failed to take into

CRL.L.P.155/2017 Page 5 of 9
consideration any admissible evidence and/or had taken
into consideration evidence brought on record contrary
to law; the appellate court should not ordinarily set aside
a judgment of acquittal in a case where two views are
possible, though the view of the appellate court may be
the more probable one. The trial court which has the
benefit of watching the demeanor of the witnesses is the
best judge of the credibility of the witnesses.

23. Every accused is presumed to be innocent unless his
guilt is proved. The presumption of innocence is a human
right. Subject to the statutory exceptions, the said
principle forms the basis of criminal jurisprudence in
India. The nature of the offence, its seriousness and
gravity has to be taken into consideration.

The appellate court should bear in mind the presumption
of innocence of the accused, and further, that the trial
court’s acquittal bolsters the presumption of his
innocence. Interference with the decision of the Trial
Court in a casual or cavalier manner where the other
view is possible should be avoided, unless there are good
reasons for such interference.

24. In exceptional cases where there are compelling
circumstances, and the judgment under appeal is found to
be perverse, the appellate court can interfere with the
order of acquittal. The findings of fact recorded by a
court can be held to be perverse if the findings have been
arrived at by ignoring or excluding relevant material or
by taking into consideration irrelevant/inadmissible
material. A finding may also be said to be perverse if it is
`against the weight of evidence’, or if the finding so
outrageously defies logic as to suffer from the vice of
irrationality.”

CRL.L.P.155/2017 Page 6 of 9

Thus, unless there are substantial and compelling
circumstances, the order of acquittal is not required to be reversed in
appeal.

10. The prosecutrix in her cross-examination has been confronted
with a photograph where she is seen with a person named Naveen. Her
version in respect of said photograph is as under:-

“It is correct that I am visible in the photograph. The
photograph is exhibited as Ex.PX-2 and I am visible at
point A. I have seen the man wearing a green shirt who is
visible in the photograph as Ex.PX-2 at point B. I do not
know this man. I do not know whether or not his name is
Mr.Naveen.

It is wrong to suggest that I have come to the Court
with Mr.Naveen on 19.06.2014 at the time of filing of the
charge-sheet and on 10.07.2014 at the time of the
committal of the charge-sheet to this Court. It is wrong to
suggest that I have falsely implicated the accused at the
instance of Mr.Naveen who is visible at point B in the
photograph Ex.PX-2. I have never talked to the man who
is at point B in the photograph Ex.PX-2.

I am not aware that accused Deepak is
complainant in a case at Sonepat i.e. FIR No.228/11 PS
Kharkhoda under Section 307, 447, 148 IPC and father
of the accused was injured in the said case by Mr.Navee
and others.

It is wrong to suggest that in order to pressurize
accused and his father in FIR No.228/11 to settle the
same, I have filed the present false case against the
accused at the instance of Mr.Naveen.”

11. Learned Trial Court has noted the version of DW-1, another
cousin of the accused wherein he has specifically stated about enmity
between Naveen and the family of the accused Deepak Dahiya.

CRL.L.P.155/2017 Page 7 of 9

Even accused Deepak Dahiya has appeared in the witness box and
proved the charge-sheet and another document pertaining to the
criminal case under Section 307 IPC wherein Naveen, who is seen in
photograph with the prosecutrix, is an accused. It is also relevant to
mention here that despite the prosecutrix being examined immediately
after the occurrence, no semen was detected either on her clothes or on
the vaginal swab. Not only that, her version that her underwear was
also seized is not supported by any documentary evidence like seizure
memo. In the complaint Ex.PW1/A, the complainant has mentioned
herself to be wife of Hafiz Nasim whereas in the copy of her Election
I-Card, annexed with this petition as Annexure-A6, the name of her
husband is mentioned as Riyaj. The prosecutrix has claimed that she
had been living alone as her husband had left her after the death of
their two children. However, the voter I.D. card placed as Annexure
A-6 with this petition prepared on 10th September, 2013 records her
husband name as Riyaj which could not have been there in case she
has been divorced by Riyaj. Although the prosecutrix stated that she
demanded water from the accused and he offered her Jal-Jeera and
thereafter, she became unwell. She was medically examined just a few
hours after the occurrence and at that time she was conscious and
oriented and not suffering from any kind of dizziness. No stomach
wash was taken or any treatment was given to her for any medical
problem caused due to Jal-Jeera.

12. As per the version of the petitioner/prosecutrix, the auto in
which she was raped, was having Haryana registration number and
running on diesel. The incident is of 1st May, 2014 and auto running

CRL.L.P.155/2017 Page 8 of 9
on diesel are banned in Delhi. The TSR with registration number of
Haryana having permit to ply only in Haryana could not have been
hired by the complainant to travel from Bahadurgarh to G.T.Karnal
Bypass, Delhi. Learned Trial Court has found the testimony of the
prosecutrix to be wholly unreliable suffering from inconsistency and
not supported by medical or scientific evidence and due to lack of
corroboration on almost on all material aspects has acquitted the
accused.

13. Since the leave petition does not disclose any merit, I am not
inclined to grant leave to appeal. Accordingly, the leave petition is
hereby dismissed.

PRATIBHA RANI, J.

AUGUST 02, 2017
‘pg’

CRL.L.P.155/2017 Page 9 of 9

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