State vs Pintoo on 9 May, 2017

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : MAY 09, 2017

+ CRL.L.P. 438/2016

STATE ….. Petitioner

Through : Ms.Meenakshi Dahiya, APP.

versus

PINTOO ….. Respondent

Through : None.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

CRL.M.A.No.12901/2016

1. For the reasons mentioned in the application, the delay in filing
the Leave petition is condoned.

2. The application stands disposed of.

CRL.L.P. 438/2016

1. Present Criminal Leave Petition has been preferred by the State
to challenge the respondent’s acquittal by a judgment dated 25.08.2015 of
learned Additional Sessions Judge in Sessions Case No. 48/2015 arising out
of the FIR No. 242/2015 registered under Section 376/506 IPC at Police
Station Palam Village.

Crl.L.P.438/2016 Page 1 of 6

2. I have heard the learned APP for the State and have examined
the file.

3. Trial Court has noted various discrepancies and inconsistencies
in the statements of the prosecutrix and other witnesses. In the impugned
judgment, the Trial Court was of the view that the statement of the
prosecutrix was not credible. I have examined the Trial Court record. The
prosecutrix is aged around 33 years, mother of a daughter aged around 13
years. The occurrence took place on 25.4.2015 at around 10.30 p.m. The
incident was not reported promptly to the Investigating Agency and
inordinate delay of four days in lodging the report has remained
unexplained.

4. The prosecutrix and the respondent were acquainted with each
other. In the complaint (Ex. PW1/A) dated 29.04.2015 the prosecutrix
informed the police that on 25.04.2015 when her husband was away, at
around 10.30 PM, she went upstairs to answer the call of nature. On opening
the door of washroom/toilet she found the accused present there. The
respondent suddenly dragged her inside the bathroom; bolted it from inside
and committed rape upon her. She called her daughter who came running.
After releasing her, the respondent fled the spot. She came downstairs along
with her daughter and did not inform anyone. The respondent, thereafter,
came down stairs and threatened her to kill if she narrated the incident to
anyone.

5. In her statement recorded under Section 164 Cr.P.C. (Ex.PW-
1/B) on 25.4.2015 she informed the learned Presiding Officer that when she
had gone to answer the call of nature at around 10.30 p.m., the respondent
was already present in the bathroom and had not bolted the door from inside.

READ  Nishan Singh vs State Of Punjab on 24 April, 2017

Crl.L.P.438/2016 Page 2 of 6

When she opened the door, the respondent caught hold of her hands and
committed rape upon her. Her daughter came up in her search. She saw the
respondent running from the spot. Her daughter after accusing her came
down-stairs.

6. In her Court statement as PW-1, the prosecutrix came up with
another conflicting version. She deposed that on the day of occurrence, her
husband had gone to work around 10.00 p.m. She went on the first floor to
answer the call of nature. When she reached near the toilet, she found that
its door was closed from inside due to someone’s presence there. She
returned to her room. She again went to the toilet after around ten minutes.
This time she found the door open. When she entered inside the toilet, she
saw the respondent present there. She did not know what the respondent had
done to her, she became unconscious. After some time, her daughter came
to the toilet and brought her down. In the meantime, the respondent fled the
spot. After about two days, her daughter told her about the threats extended
by the respondent not to disclose anything to anyone or else they would be
evicted from the tenanted room. On the same day, she along with her
husband and children lodged the report (Ex.PW-1/A). Learned APP after
seeking court’s permission cross-examined her. She denied if she was won
over by the accused. She, however, admitted the suggestion that when she
reached near the toilet, the accused pulled her inside; bolted the door;
gagged her mouth and committed rape upon her. Thereafter, she became
unconscious. In the cross-examination by defence, she disclosed that the
toilet was on the first floor. At first instance when she had gone to answer
the call of nature, a roommate of the respondent was inside the toilet. The
toilet was measuring 2.5 ft. X 2.5 ft. and there was no electricity in it. Her

READ  Bijender vs The State (Nct Of Delhi) on 15 May, 2017

Crl.L.P.438/2016 Page 3 of 6
daughter, aged around 13 years had cried on seeing her condition in the
toilet. She admitted that no call at 100 was made either by her or her
daughter. She admitted that the respondent had not issued any threats to her.
She further disclosed that her daughter had come to know about the incident
of rape on her own and she did not apprise her about it. She, in turn,
informed her father after two days. She further admitted that she had
physical relations with her husband after the occurrence. She further
disclosed that she remained present inside the toilet for about ten minutes in
an unconscious state.

7. On scanning the testimony of the prosectrix, it appears that she
had given divergent and conflicting statements at different stages of the
investigation/trial. She is not at all consistent. She did not raise any alarm
at the time of incident when she was allegedly dragged inside the bathroom
and sexually assaulted. She maintained complete silence for about four days
and did not apprise her husband or anyone else. Possibility of the
prosecutrix to be a consenting party cannot be ruled out. Her post-even
conduct is quite unnatural.

8. PW-2 (Kanika), victim’s daughter, aged around 13 years has
not corroborated her version fully. She testified that on 25.4.2015 at about
10.30 p.m. when she and her brother were watching TV in their room, she
heard cries of her mother and she went upstairs. On knocking the door of the
toilet, it was opened by the respondent. She found her mother standing with
the support of a wall and was unconscious. She caught hold of her hand and
brought her downstairs. Subsequently, the respondent came to extend threats
to her. In the cross-examination, she disclosed that the door was opened on

Crl.L.P.438/2016 Page 4 of 6
her first knock. She did not know anything as to what had happened to her
mother in the toilet on the aforesaid date.

9. PW-3 (Shispal Singh), victim’s husband, informed that the
incident was disclosed to him on 28.4.2015 at around 5 or 6 p.m. by his wife
in the presence of his two children. The victim was medically examined on
29.4.2015. No visible external injuries were found on her person.

READ  Kisnaram vs State on 1 June, 2017

10. Since there are material infirmities in the statement of the
prosecutrix, the conviction on her sole testimony was undesirable. The Trial
Court has discussed all the relevant evidence and the findings that the
version of the prosecutrix was doubtful and could not be accepted on its face
value cannot be faulted.

11. Law relating to appeals against acquittal is well settled. In
State of Rajasthan v. Raja Ram
2003 Cri. LJ 3901, the Court held as under:

“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
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.
The principle to be followed by the appellate Court
considering the appeal against the judgment of acquittal is

Crl.L.P.438/2016 Page 5 of 6
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.”

12. The Leave Petition is devoid of merits and it is dismissed.

(S.P.GARG)
JUDGE
MAY 09, 2017
sa

Crl.L.P.438/2016 Page 6 of 6

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