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Consensual sex valid Bail postulated in Rape

IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : 1st SEPTEMBER, 2015
DECIDED ON : 1st DECEMBER, 2015

CRL.A. 859/2013

PRADEEP @ BALLI ….. Appellant
Through : Mr.Joginder Tuli, Advocate with Mr.Ashu Kr. Sharma & Ms.Pooja Arora, Advocates.
versus

STATE, NCT OF DELHI ….. Respondent

Through : Mr.Amit Gupta, APP.

CORAM:HON’BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

JUDGEMENT

Aggrieved by a visualisation antiquated 15.5.2013 of schooled Addl. Sessions Judge in Sessions Case No. 06/13 opening out of FIR No. 80/09 PS Mangol Puri by that a appellant – Pradeep @ Balli was convicted for committing offences punishable underneath Sections 458/376/328/506-II, IPC and Section 25 Arms Act, a benefaction interest has been elite by him. By an sequence antiquated 16.5.2013, he was awarded several jail terms with fine. All a concrete sentences were to work concurrently.

2. Briefly stated, a charge box as reflected in a charge-sheet was that in February, 2009 and on 6.3.2009 during House No. A-9A, Awantika Enclave, Mangol Puri, Delhi, a appellant after committing chateau tresspass and putting a prosecutrix ‘X’ (assumed name) aged around 16 years in fear committed rape on her. On 11.4.2009, a country-made pistol commissioned with a live cartridge fibbing in a automobile temperament No. DL-6CG-0079 parked in front of his prosaic No. 607, pocket-A, Sector-6, Narela was recovered during his instance. On receipt of sign of a occurrence on 9.3.2009, Daily Diary (DD) No. 14A (Ex. PW-16/A) came into existence during 10.10 a.m. during PS Mangol Puri. The Investigating Officer, after recording victim’s matter (Ex.PW-1/A) lodged First Information Report. ‘X’ was medically examined; she available her 164, Cr.P.C. statement. Statements of a witnesses conversant with a contribution were recorded. Exhibits collected during review were sent for conference to Forensic Science Laboratory. Efforts were finished to detain a perpetrator of a crime. The appellant could be arrested on 9.4.2009. Pursuant to his avowal statement, a country-made pistol was recovered from a automobile temperament No. DL-6CG-0079. Arvind Kumar (since acquitted) was also concerned for harbouring a appellant. Upon execution of investigation, a charge-sheet was filed opposite both — a appellant and Arvind Kumar for committing several offences. The charge examined thirty-three witnesses to settle a case. In 313, Cr.P.C. statement, a indicted persons denied their impasse in a crime and pleaded fake implication. DW-1 (Vishal Gaurav) was examined in defence. After conference a opposition contentions of a parties and on appreciation of a evidence, a Trial Court, by a impugned judgment, clear Arvind Kumar of a charges. It is applicable to discuss that State did not defence a pronounced acquittal. Being depressed by conviction, a appellant has filed a benefaction appeal.

3. we have listened a schooled Counsel for a parties and have examined a file. Undisputably, a appellant and a prosecutrix ‘X’ were proficient with any other before a incident; a appellant lived in her community and carried out business of property-dealing nearby. The appellant had visiting terms during a prosecutrix’s chateau and had assisted them in solemnisation of Priyanka’s matrimony with her mother’s step hermit in December, 2008. There was no before passion between a parties. It has emerged that about 4 years before to a occurrence a argue had taken place between a appellant and X’s mom over a pardonable emanate that was staid after on. The parties had confirmed their considerate family thereafter.

4. At a outset, it might also be mentioned that X’s date of birth relied on by a charge is 2.8.1992. PW-24 (Anil Kumar), Sub-Registrar (MCD) brought applicable register and valid entrance during Sl. No. 837 whereby birth of a prosecutrix was recorded. The registration was finished in a record on 4.8.1992 vide Ex. PW-24/A. PW-20 Ms. Nirmal Bankar, Vice-Principal, Govt. Co-ed School, P-Block, Sultanpuri, Delhi, also testified that as per propagandize record, X’s date of birth was 2.8.1992. She valid a applicable papers (Ex. PW-20/A and Ex. PW-20/B). The Trial Court after deliberating all a applicable element came to a end that X’s age was 16 years, 7 months and 4 days on a date of purported occurrence i.e. 6.3.2009. The appellant has not constructed any request to a contrary. This date of birth available most before to a occurrence when X’s relatives had not approaching such an occurrence to occur can’t be disbelieved.

5. Appellant’s self-assurance is essentially formed on a unique matter of a prosecutrix ‘X’ that has not been advanced by any other eccentric source. Needless to say, self-assurance can be formed on a solitary testimony of a prosecutrix supposing it lends declaration of her testimony. In case, a Court has reasons not to accept a chronicle of a prosecutrix on a face value, it might demeanour for corroboration.

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6. The initial occurrence of purported rape took place in February, 2009. In her censure (Ex. PW-1/A), ‘X’ did not exhibit a accurate or estimate date when she was intimately assaulted for a initial time in February, 2009. She also did not exhibit if that time, a appellant was armed with any arms or he had brought any wonderful piece or had sprayed it in a room where her relatives and siblings were sleeping to make them unconscious. She did not explain if a appellant was in possession of any revolver or she was criminally intimidated on 6.3.2009 when she was ravished twice during 3.30 a.m. She did not surprise if on both a occasions, her relatives were administered any unwholesome substance. She also wanting to divulge if a appellant had harmed her palm or she was forced to write letters with her blood.

7. In 164, Cr.P.C. matter (Ex. PW-1/B) available on 16.3.2009, ‘X’ finished critical improvements and disclosed that given December, 2008, a appellant had an immorality eye on her and used to provoke and harass her. In February, 2009, he forced her to open a doorway of her room during a indicate of revolver. Thereafter, he sprinkled some piece on her relatives as a outcome of that they became unconscious. She was criminally intimidated and forced to write letters after injuring her hand. She did not privately state if on that night, a appellant committed rape on her. Regarding a occurrence antiquated 6.3.2009, she suggested that a appellant came around 3.30 a.m. (night) and forced her to devour liquor. He practical wine on her vagina and committed rape on her. She serve disclosed that a indicted used to discharge her a ‘pill’ to equivocate pregnancy. She blamed a Investigating Officer Prem Lata for not recording her progressing matter correctly.

8. In her Court matter as PW-1, ‘X’ concerned a indicted for committing rape on her in February, 2009 and on 6.3.2009. She deposed that in February, 2009 during around 3.30 a.m. someone knocked during a doorway of her room. When she non-stop it, a appellant kept a revolver on her shoulder and gained entrance in a room. From that room, he entered in her parents’ room and sprayed something contained in a bottle on them and told her that they won’t be means to arise up. Thereafter, he committed rape on her opposite her wishes. He also harmed her hand, licked a blood and got some letters created from her forcibly. Again on 6.3.2009 during around 3.30 a.m. when she was sleeping in her room, a indicted gained entrance after stealing a cooler commissioned in a window. He woke her adult by attack her with a ‘Danda’. She non-stop a doorway due to fear. Again, a indicted sprayed some element in her parents’ room, consumed wine and forcibly committed rape on her. She was raped twice or thrice in a really vicious demeanour that night. The appellant also forcibly administered her a inscription to equivocate pregnancy. In a cross-examination, she was duly confronted on several contribution staid in her examination-in-chief that did not find discuss in her initial censure (Ex. PW-1/A). She certified that letters (Ex. PW-1/DD, Ex. PW-1/DE and Ex. PW-1/DF) were created by her. It had taken about 5 or 10 mins to write minute (Ex. PW-1/DD). She denied that she was in adore with a accused. She certified that she had not told a occurrence to her relatives immediately. The indicted had harmed her palm on both a occasions. Her relatives did not come to know about it as she used to wear full sleeve sweater. She serve certified that on both a occasions during a time of purported incident, conjunction she nor a appellant had switched ‘on’ a lights in a room.

9. On scanning a above referred statements, it reveals that ‘X’ has given paradoxical and opposing versions during opposite stages of a investigation/trial. She is not consistent. Vital improvements have been finished by her in her matter underneath Section 164, Cr.P.C. and in her Court deposition and she has been duly confronted on that. The story presented by a prosecutrix is utterly extraordinary clearly formidable to be supposed on a face value. The initial rape occurrence allegedly took place in a second week of February, 2009 as disclosed in a interrogate during around 3.00 a.m. (night). Appellant’s entrance in a room where a prosecutrix was sleeping alone was friendly. ‘X’ did not lift any alarm or protest. She did not surprise her relatives even after appellant’s depart from a crime spot. There was no arise / constraint for a prosecutrix to open a doorway for a male to whom she deliberate to be a male of bad character, during peculiar hours though holding her relatives into confidence. Natural greeting of a prosecutrix would have been to immediately rush to her parents’ room and surprise them about a appellant’s surprising participation outward a room. She did not forestall a appellant to enter inside a room and rather non-stop a doorway to yield easy entrance to him. The appellant afterward allegedly sprinkled some distilled piece to make her relatives and other family members sleep. Even that time, ‘X’ did not lift any alarm or try to escape. She did not get herself medically examined. She did not worry if her relatives had suffered any mistreat due to administration of distilled substance. She did not even uncover damage suffered by her on her hand. She continued to go to her propagandize in routine. She secluded her injuries by wearing full sleeve sweater. She was utterly normal after a initial occurrence on February, 2009. She did not cruise it fit to change to her parents’ room to nap thereafter. She continued to nap alone in a room after a purported terrible incident. Again, on 6.3.2009 a appellant was means to advantage entrance during around 3.00 or 3.30 a.m. when X’s relatives were sleeping in a adjoining room. Again, a prosecutrix did not lift any paint and cry. She was ravished twice or thrice during that night. Nothing is on record to uncover if any insurgency was offering by a prosecutrix to equivocate a crime. It has rather come on record that letters (Ex. PW-1/DD, Ex. PW-1/DE and Ex. PW-1/DF) were created by her. The defence that she was forced to write these letters lacks credibility. Letter (Ex. PW-1/DD) is utterly in fact and is in a healthy flow. A chairman underneath fear or hazard presumably can’t have a scratch as reflected in a minute (Ex. PW-1/DD). Contents of a minute uncover that ‘X’ was in adore with a appellant and had invited him to strech there. Letters (Ex. PW-1/DD, Ex. PW-1/DE and Ex. PW-1/DF) uncover that ‘X’ was angry with her mother’s control who had got inkling of their relationship. All these resources tend to uncover that a earthy family (if any) between a dual were ‘consensual’. The appellant had no reasons to harm X’s palm or force her to write letters in blood. Apparently, it was finished so to demonstrate his adore for a prosecutrix. The prosecutrix even did not surprise her relatives immediately after pang heartless rape on 6.3.2009. Only on 8.3.2009, she emitted a occurrence to them. It appears that after her relatives sensed something foul, ‘X’ was forced to exhibit a affairs and a censure (Ex. PW-1/A) came to be lodged.

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10. ‘X’ was medically examined vide MLC (Ex. PW-13/A). PW15 (Dr. Surekha) found that on internal conference labia majora and labia minora were normal; hymen was absent; uninformed erosion was seen on a fourchette; no draining was found. Apparently, a prosecutrix had not postulated any critical injuries on her physique including private tools to infer influential rape. A lady aged around 16/17 years carrying been ravished forcibly/brutally twice during a night inserted 6/7.3.2009 opposite her wishes is approaching to means aroused outlines on her body. Nothing is on record to uncover if any insurgency was offering to forestall a assault. No such onslaught outlines were found on her body. Absence of injuries on X’s physique give arise to an deduction that she was a consenting celebration to coitus.

11. Various exhibits collected during review were sent to Forensic Science Laboratory for examination. FSL reports (Ex. PW-11/X1 and Ex. PW-11/X2) are of no advantage to a prosecution. As per these reports, no blood could be rescued on Ex. 1a (one white pyjami), Ex. 1b (one white tip / T-shirt), Ex. 2 (underwear), Ex. 3 (vaginal swab) and Ex. 4 (bedsheet). Semen could not be rescued on Ex. 1a, Ex. 1b, Ex. 2, Ex. 3 and Ex. 4 also.

12. ‘X’ was wakeful that she was being administered I-pill for impediment of pregnancy. She did not protest about it to her parents. This business lends faith to a appellant’s defence that a prosecutrix was a consenting party. X’s relatives never complained before camp of a FIR on 9.3.2009 if any poisonous/ wonderful piece was administered to them as a outcome of that they had turn unconscious. They never got themselves medically examined. No eccentric open declare was compared during any theatre of investigation. The confidence guards posted in a locality; X’s hermit and sister were not examined. Even after a camp of a FIR, no tell-tale of a crime were found during a spot.

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13. There is unexplained check in camp a report. The rape occurrence took place for a initial time in February, 2009. However, it was not reported by a prosecutrix to her family members or any other authority. Even when purported rape occurrence occurred second time on 6.3.2009, a occurrence was not conveyed to a military promptly. Undue check in camp a censure though excusable justification contributes to a doubts in a charge box when it has unsuccessful to settle it otherwise. X’s post-event control is assumed and unacceptable. Till 8/9.3.2009, she confirmed finish overpower and did not implicate a appellant. At a time of incidents admittedly X’s relatives and brothers were benefaction in a adjoining room. ‘X’ being a grown sixteen years aged lady sleeping in between a comfort and reserve of her relatives in her chateau did not warning them on both a occasions. Even if she had uttered a singular word or even whispered, her father-mother sleeping subsequent to her would have woken up. Even after a appellant’s depart from a crime spot, she remained silent and even did not worry to enquire about her parents’ well-being.

14. Recovery of country-made pistol on 11.4.2009 after dual days of his detain in a participation of co-accused -Arvind Kumar is suspect. It was not found in appellant’s possession during a time of his arrest. Allegedly, it was recovered from automobile temperament No. DL-6CG-0079 during his instance. The Investigating Officer did not collect any justification as to whom a pronounced automobile belonged. Nothing has flush as to from where a revolver was procured. In her initial statement, a prosecutrix did not divulge if a appellant was armed with any such weapon. Key of a automobile was not supposing by a appellant. It was purported with Arvind Kumar who has already been clear by a Trial Court.

15. In perspective of critical infirmities, inconsistencies and improvements in a matter of a prosecutrix joined with her assumed conduct, X’s testimony can't be supposed on a face value. It is loyal that in box of rape, justification of a prosecutrix contingency be given supposed consideration, though to reason that this justification has to be supposed even if a story is extraordinary and belies logic, would be doing assault to a really beliefs that oversee a appreciation of justification in a rapist matter.

16. For a above reasons, we am of a deliberate perspective that a charge has unsuccessful to move home any of a charges opposite a appellant over reasonable doubt. Accordingly, visualisation antiquated 15.5.2013 and Order on Sentence antiquated 16.5.2013 are set aside and a interest filed by a appellant is allowed.

17. The appellant, who is already on halt bail compartment a ordering of a appeal, need not to obey in jail. Trial Court record be sent behind forthwith with a duplicate of a order. A duplicate of a sequence be sent to a Superintendent Jail for information.

Petition allowed.

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