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Unreliable Testimony of Prosecutrix High Court Acquitted a Accused in Rape Case.

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.A. 626/2019 & CRL.M.As. 10219-10221/2019

SMT. RACHNA SINGH ….. Appellant
Through: Ms. Simran Sadyora, Advocate with Mr. Sanjeev Bhatia, Advocate.

versus

STATE AND ANR. ….. Respondents

Through: Ms. Aashaa Tiwari, APP for State with SI Vishvendra, PS Paharganj.

Date of Decision: 13th May, 2019

CORAM: HON'BLE MR. JUSTICE MANMOHAN,HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
                             JUDGMENT

MANMOHAN, J: (Oral)

1. Present interest has been filed under Section 372 of a Code of Criminal Procedure 1973 severe a visualisation antiquated 05th January, 2019 whereby a accused-respondent no. 2 was clear of charges under Section 328/376(2)(n)/343/506 Indian Penal Code, 1860 (‘IPC’). The applicable apportionment of a Trial Court visualisation is reproduced hereinbelow:-

“… Medical hearing of prosecutrix was carried out to that she refused her inner medical examination… …The matter done by a prosecutrix in a justice that she came into hit with indicted by Linkedin, amicable networking site for a purpose of her investigate work has not been mentioned in created censure done by prosecutrix conjunction in a censure antiquated 05.01.2017 done to a DCP, Dwarka nor in a censure antiquated 17.01.2017 created to a SHO PS Pahar Ganj, therefore, this is vital counterbalance in a matter of prosecutrix done to a military as good as to a justice as to how a prosecutrix came into hit with accused. … … though in a cranky hearing itself, she has certified that on 15.12.2016, indicted took her firstly to Shivaji Stadium Metro Station and from there he took her to Aerocity Metro Station and he went divided after dropping her there. He had also returned her aforesaid effects along with her mobile phone. When she reached her home, she checked her mobile phone and found that indicted had deleted recording of her chatting by whatssapp and SMS exchanged between them. The prosecutrix being rarely prepared lady could not make call to anyone during 13.12.2016 to 15.12.2016 since her mobile phone was taken by a indicted though as per her possess matter and testimony done in a justice that on 15.12.2016, indicted had returned her effects along with mobile phone though she could not make any call to a military or any other chairman in honour of a censure of a purported occurrence of rape is itself unbelievable. That, a prosecutrix has also settled that a room was requisitioned in a hotel Hari Piorko during Pahar Ganj by a indicted himself and during that time she was carrying suitcase, purse and laptop bag with her and she was gentle with a indicted and “it is scold that from opening out of a hotel they both took automobile and went to Shivaji Stadium Metro Station and from there both took metro and reached Aerocity Metro Station and indicted went inside a airfield and took his moody and a prosecutrix see off indicted and went to her home during Dwarka and she did not make any phone call on 15.12.2016 to any of his crony or relations or to anyone else in honour of purported occurrence of rape.”… … it is really extraordinary and unimaginable that she is not wakeful about a execution of a formalities for holding room in any hotel or that room series of that hotel is not remember to her quite when she stay there from 13.12.2016 to 15.12.2016. ….

54. That, a matter of prosecutrix is rarely dangerous and strange and enthuse no certainty on a belligerent that PW 11 W/SI Veena Sharma, I.O. of this box who had performed a duplicate of a opening register from a pronounced hotel where corruption of rape purported to have been committed by indicted with a prosecutrix and it reveals that a prosecutrix had also submitted her I.D. explanation in that hotel and hearing of a pronounced I.D. proof, that was seized by a I.O. during a review reveals that a same reflects a name and chateau of a prosecutrix and chateau on a pronounced I.D. is of Aligarh, U.P. Therefore, testimony of a prosecutrix itself is unreliable.

55. That, during a cranky examination, prosecutrix has deposed that she had not handed over her mobile phone to a military during a review of military as military did not ask her for a same though a I.O. who is PW11, herein has deposed that she had asked prosecutrix to palm over her mobile phone though she refused to handover a same. Therefore, a testimony of a prosecutrix is not of most credence.

56. Prosecutrix has certified that she is a daughter of late commandant from CRPF and she did not make any call to a military or to a PCR in honour of purported corruption of rape…

57…… It has also been deposed that “I can't contend if we done 529 calls on his i.e. mobile phone of indicted series 9415684928from her mobile phone series 9690297262 between 16.12.2016 to 29.01.2017.”

58. The prosecutrix being rarely educated, married and of grown bargain lady and is daughter of late Commandant of CRPF and by creation her matter in honour of non remembering her mobile series as good as landline series commissioned during her chateau is unimaginable and it is not approaching from rarely prepared and advantageous person.

59. That, a prosecutrix has purported that she met with indicted when she get a invitation of attending a convention on 13.12.2016 is also unimaginable as date 13.12.2016 was bulletin holiday on a arise of Milad-Un-Nabi (Birthday of Prophet Mohammad). Moreover, a RTI respond of a IIM, Noida that was filed during arguments on bail by ld. Defence warn also reflects that no convention / discussion was hold on 13.12.2016 during IIM, Noida, U.P. as it was bulletin holiday nor any invitation minute released from IIM, Noida to a prosecutrix has been placed on record nor a same was handed over by a prosecutrix to a I.O. during a time of a review of a benefaction box FIR.

60. … this declare has certified that a opening of a hotel is manned by certainty ensure 24 hours and no one can enter in a hotel though accede of a ensure and there are discipline of Delhi Police not to distribute any room to inner proprietor of Delhi and they had checked a IDs of a guest before dispersal them room and defended their copies and as a prosecutrix has granted her I.D. explanation and as per I.D. proof, she was not proprietor of Delhi and was allotted Room no.224 for one night and room no.223 was requisitioned for 2 nights and they did not accept any censure from any guest of a aforesaid bedrooms during their stay. .. she could have brought a occurrence to a notice to a ensure of that hotel or could have make a call to a military or to surprise a manager or to a waiter or could have simply come out from a hotel room to make a call to a military or lifted an alarm though she did not make any call nor move a notice of hotel staff or to any one of a purported occurrence of rape.

.. There is check of 32 days to news a matter to a military and a prosecutrix is not been means to explain a check to board a censure to a military for a purported corruption of rape….

xxx xxx xxx

63. That, there is no justification in honour of inebriated piece allegedly given by a indicted to a prosecutrix in a coffee and there is no medical news in this courtesy and a charge is not means to infer a same opposite a accused.

64. Therefore, in these contribution and circumstances, this justice is of a deliberate perspective that charge has not been means to infer a box as good as a charges of a corruption u/s 328/376(2)(n)/343/506 IPC against a indicted over reasonable doubt and hence, indicted Abhijeet Singh is hereby clear from a charges punishable u/s 328/376(2)(n)/343/506 IPC.”

(emphasis supplied)

2. Learned warn for a appellant-prosecutrix submits that a Trial Court had unsuccessful to conclude that there is a hypothesis under Section 114A of a Indian Evidence Act, 1872, as to deficiency of agree in a box for charge of a corruption under Section 376 IPC and hence a responsibility to infer that he had not committed a corruption under Section 376(2)(n) IPC had shifted to a accused-respondent no. 2.

3. Learned warn for a appellant-prosecutrix serve contends that a Trial Court had erred in not appreciating a fact that a appellant- prosecutrix is a ongoing asthmatic patient, can't do unchanging activities though medication, has a earthy monstrosity in her left leg and is also pang from intelligent palsy due to that it is formidable for her to lift her voice even in an puncture situation.

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4. Having perused a paper book, this Court is of a perspective that a hypothesis under Section 114A of a Indian Evidence Act, 1872 would usually be captivated if a factum of passionate retort is proved.

5. In a benefaction case, it is notable that a appellant-prosecutrix had refused inner medical examination.

6. Further this Court is in agreement with a perspective of a Trial Court that testimony of a appellant-prosecutrix is ‘highly unreliable’, ‘untrustworthy’ and ‘inspires no confidence’ for a following reasons:-

A. The appellant-prosecutrix purported that she had perceived an invitation to attend a convention on 13th December, 2016 during IIM, Noida. However, 13th December, 2016 was a gazetted holiday on a arise of Milad- Un-Nabi (Birthday of Mohammad). Furthermore, a RTI respond sent by IIM, Noida settled that on comment of a gazetted holiday, there was no convention scheduled for 13th December, 2016 and they had not sent any invitation to a appellant-prosecutrix. B. There is a vital counterbalance in a matter of a appellant-

prosecutrix inasmuch as, in a created censure antiquated 05th January, 2017 done to a DCP, Dwarka, and a censure antiquated 17th January, 2017 to a SHO PS Pahar Ganj, a appellant-prosecutrix had not mentioned that she had come in hit with a accused-respondent no. 2 by LinkedIn for a purpose of investigate work. However, she has mentioned a aforesaid fact in her matter before a Court.

C. The appellant-prosecutrix had submitted her I.D. explanation to a hotel and in a same she had mentioned her chateau of Aligarh, UP as Delhi Police Guidelines do not assent a hotel to distribute a room to a inner Delhi resident.

D. The opening of a hotel room is manned by certainty guards 24 hours and no one can enter a hotel though a accede of a guard. The appellant-prosecutrix could have simply come out of a hotel room to make a call to a military or lift an alarm or could have requested any of a hotel staff to make a call. The appellant- prosecutrix is mobile and does not humour from such a critical incapacity that she could not have lifted an alarm.

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E. There is no justification placed on record to advise that a appellant-

prosecutrix was administered distilled piece and a outcome lasted for 3 days.

F. On 15th December, 2016 after a purported incident, a accused-

respondent no. 2 allegedly took a appellant-prosecutrix to Shivaji Stadium Metro Station. There he admittedly returned her belongings, including her mobile phone. It is rarely extraordinary that a appellant- prosecutrix, being a daughter of a late Commandant of CRPF and herself being a Professor, could not make call to a military or any other chairman after receiving her mobile phone.

G. There is a check of 32 days in filing a FIR, according to a Trial Court or during slightest 20 days as certified by a appellant-prosecutrix. According to a appellant-prosecutrix, there was a check as her hermit was abroad. But such an pretext on a partial of a appellant- prosecutrix is formidable to accept as appellant-prosecutrix is an prepared lady who is gainfully employed as a Professor in a university.

H. The appellant-prosecutrix also did not palm over her mobile phone to a I.O. The appellant-prosecutrix deposed that a military during review did not ask for it. However, a I.O, who deposed as PW11, settled that she had asked a appellant-prosecutrix to palm over her mobile phone though she refused to do so.

I. Appellant-prosecutrix had done 529 calls to accused-respondent no.2 between 16th December, 2016 (after a date of rape) to 29th January, 2017 (before filing of a complaint). Her act of creation so many steady calls is not unchanging with her allegations.

7. Keeping in perspective a aforesaid accumulative findings, this Court is of a perspective that a testimony of a appellant-prosecutrix is dangerous and inspires no certainty and there are constrained reasons for rejecting of her testimony. Further, Section 114A of a Indian Evidence Act, 1872, is not captivated as a factum of passionate retort is not proved. There are also several lacunae in a box of a charge and a advantage of doubt will have to enure to a advantage of a accused-respondent no. 2. Consequently, a benefaction interest being bereft of merits, is dismissed.

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