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Heena vs State Govt. Nct Of Delhi & Ors. on 26 October, 2018

$~19 20

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 26.10.2018

+ CRL.REV.P. 360/2017 Crl. M.A. 8084/2017
HEENA ….. Petitioner
versus

STATE GOVT. NCT OF DELHI ORS. ….. Respondents
+ CRL.REV.P. 555/2017 Crl. M.A. 12186/2017
THE STATE GOVT OF NCT OF DELHI ….. Petitioner
versus
ROHIT KUMAR TOMAR ORS ….. Respondents
Advocates who appeared in this case:
For the Petitioners : Mr. Sandeep Das with Ms. Mehak Khurana, Advs.
(Crl. Rev. P. 360/2017)
Mr. Hirein Sharma, Addl. PP for the State with
Inspr Sushila (Crl. Rev. P. 555/2017)

For the Respondents : Mr. Hirein Sharma, Addl. PP for the State with
Inspr. Sushila (Crl. Rev. P. 360/2017)
Mr. D.S. Kohli and Mr. Raghav Mehdiratta, Advs.
for R-2 (Crl. Rev. P. 360/2017)
Mr. D.S. Kohli and Mr. Raghav Mehdiratta, Advs.
for R-1 (Crl. Rev. P. 555/2017)

CORAM:
HON’BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER

% 26.10.2018

CRL.REV.P. 360/2017 555/2017 Page 1 of 14
SANJEEV SACHDEVA, J. (ORAL)

1. The petitioner in Crl. Rev. P. 360/2017 is the prosecutrix on
whose complaint subject FIR No. 29 of 2016 under Section
354/406/34 read with Sections 3 and 4 of Dowry Prohibition Act was
registered. Subsequently, after the statement of the prosecutrix was
recorded under Section 164 Cr. P.C., Section 376 IPC was added.

2. Prosecutrix filed Crl. Rev. P. 360/2017 impugning the order
dated 30.01.2017 whereby the trial court has discharged the accused
of all offences.

3. Crl. Rev. P. 555 of 2017 has been filed by the State impugning
said order on charge dated 30.01.2017, whereby the accused were
discharged.

4. Pending the present proceedings, the prosecutrix as well as the
accused have entered into a settlement whereby the parties have
agreed to settle all their disputes subject matter of the present FIR as
also other civil and criminal litigations pending between them.

5. Prosecutrix is also present in Court in person and is also
represented by her counsel. She submits that she has settled the
disputes with the respondent as also his family and does not wish to
press her petition any further and is satisfied with the order of the trial
court whereby the accused have been discharged of all offences under
the subject FIR. Settlement agreement has been filed, same is taken

CRL.REV.P. 360/2017 555/2017 Page 2 of 14
on record.

6. Learned Addl. PP contends that there is sufficient material to
frame a charge against the accused and the trial court erred in
discharging the accused.

7. Even though, the petitioner has settled with the respondents.
Since the State has impugned order discharging the accused of all
offences, I propose to consider the impugned order dated 30.01.2017
on merits.

8. The allegations in the FIR are that the father of the prosecutrix
came in contact with respondent no. 1 (hereinafter referred to as
‘Boy’) and his family through one common mediator. Subsequently
the families met and it was agreed that they shall get married. Ring-
cum-engagement ceremony was also organized in the presence of
friends and family. It is alleged that substantial amount of money was
spent for making the said arrangements.

9. It is contended that subsequently the Boy came to the house of
the prosecutrix along with a friend for giving a marriage card of his
friend and requested her to meet him separately in a room. It is alleged
that in the room, he misbehaved with her and wanted to establish
physical relationship, to which she refused, on which he left.
Thereafter, once again it is alleged that he met her on the engagement
of his friend on 30.04.2014 and publicly hugged her and showed

CRL.REV.P. 360/2017 555/2017 Page 3 of 14
intimacy. Thereafter it is contended that demands for dowry were
made as also for provision of a car which were not satisfied.
Subsequently, it is alleged that, the boy refused to marry her on the
ground that he was already married.

10. On this complaint, subject FIR was registered. Subsequently,
the statement of girl was recorded under Section 164 Cr. P.C.,
wherein she contended that on 30.04.2014, when he had met her at the
Ring-cum-engagement ceremony of his friend, he had taken her to the
parking lot of the hotel and committed the offence of rape on her, as
defined under Section 375(b) of the IPC, by fingering her.

11. After investigation chargesheet was filed under Sections
354/406/376/34 read with Sections 3 and 4 of the Dowry Prohibition
Act.

12. Trial court by the impugned order dated 30.10.2017 held that
no offence was made out and there was substantial unexplained delay
in lodging of the complaint and contradictory statements were made
by the prosecutrix and that there was no allegations of demand of
dowry or entrustment.

13. The prosecutrix in her statement under Section 164 Cr. P.C.,
based on which chargesheet was filed under Section 376 IPC, stated
that the subject offence was committed on 30.04.2014 in the parking
lot of the hotel Radisson Blu.

CRL.REV.P. 360/2017 555/2017 Page 4 of 14

14. As the Boy was a serving officer, first complaint, in the form of
a legal notice was sent by the prosecutrix, to the Air Force authorities
on 30.10.2015 and thereafter a complaint was made on 16.12.2015 to
police authorities. In both the complaints, in paragraph 12 with regard
to the incident of 30.04.2014, she stated as under: –

“That on dated 30.04.2014, complainant met with
accused no. 1 in the Lagan /Sagaai of his friend Gaurav
and he was publicly hugging and moving with
complainant and showing intimacy and introducing her
to others in the Lagan/Sagaai of his friend Gaurav”.

15. In both the legal notice to the Air Force authorities and the
complaint to the police authorities, the prosecutrix was silent about
any incident of the offence of rape. She has merely stated that he was
publicly hugging and moving with complainant and showing intimacy
and introducing her to others in the Lagan/Sagaai of his friend
Gaurav.

16. On the said complaint to the Police Authorities, subject FIR
was registered. In her initial statement under Section 161 Cr. P.C.
given on 12.01.2016, she confirmed her earlier version given to the
police, based on which the FIR was registered. She once again did not
state anything about the alleged offence of rape. Subsequently on
14.01.2016 in her statement under Section 164 Cr. P.C. the allegations
with regard to commission of offence under Section 375(b) were
introduced.

CRL.REV.P. 360/2017 555/2017 Page 5 of 14

17. It was alleged that the offence happened in the parking lot of
the Hotel Radisson Blu, in a car. Trial Court noticed that at the time of
consideration of the application for bail, the court had noticed the
statement of the security officer of the hotel, who had stated that the
parking was in the basement and only valet parking was permitted in
the basement and no private person could drive a car to the parking
lot.

18. Trial court in the impugned order as noticed above referred to
the contradictions as also the fact that in the entire complaint as well
as the statement recorded under Section 164 Cr. P.C. and also the
supplementary statements there was no specific averment of demand
of dowry against any of the accused.

19. Trial Court on perusal of the records is of the view that no
offence under Sections 3 and 4 of the Dowry Prohibition Act is made
out. Further the trial court noticed that there were no allegations of
entrustment of any property to the Boy or his family. Accordingly, the
trial court was of the view that prima facie no offence under Section
406 IPC is made out against them.

20. The Trial Court has held as under: –

“21. In the entire complaint as well as in the statement
of the prosecutrix recorded u/s 164 Cr. P.C. and the
other supplementary statements, there is no specific
averment of demand of dowry against accused no. 2 to 5
at any point of time. The only allegation of the

CRL.REV.P. 360/2017 555/2017 Page 6 of 14
prosecutrix is that on 20/09/15 the accused persons
particularly parents, sister Meenakashi and her husband
Pankaj came to the parental home of complainant in
order to see the hotel which was to be booked for the
marriage on 22/02/2016, between the complainant and
accused no. 1. As per the choice of the parents and other
relatives of accused no.1, the Centaur Hotel, IGI Airport,
New Delhi was booked and an amount of Rs. 25,000/-
was paid by brother of the complainant on dated
10/08/2015 and “Band” was also booked. Apart from
this, there is no allegations levelled by the prosecutrix-
complainant against accused no. 2 to 5 of making any
demand. Even in this paragraph there is no allegation
made against accused no. 2 to 5 regarding demand of
dowry. The only allegation against accused no. 3 to 5 is
that they have come to see the hotel on 20/09/15 whereas
the hotel had already been booked on 10/08/15. It has no
where been alleged by the prosecutrix that after seeing
the hotel on 20/09/15, accused no. 2 to 5 have raised any
demand, further or had not liked the place, which has
been booked for the marriage. Therefore, I am of the
opinion that no prima facie case is made out against
accused no. 2 to 5 in respect to the demand of dowry.
Hence, accused no. 2 to 5 are discharged for the offence
u/s 3 and 4 of Dowry Prohibition Act.

***** ***** *****

24. In the entire complaint made by the prosecutrix, it
has no where been alleged by prosecutrix that any
property or article was ever entrusted to the accused no.
2 to 5 or for that matter to accused no. 1. It has only been
averred by the complainant that on the occasion of
engagement ceremony, certain gifts were given to
accused persons and other family members. It is common
knowledge that gifts given to a person are never

CRL.REV.P. 360/2017 555/2017 Page 7 of 14
considered to an “entrustment” made in favour of that
person. Once the article is admitted to have been given to
the accused persons as gift, it cannot be said that same
were entrusted by the complainant or her family to them
for safe keeping or that accused persons have mis-
appropriated the same for their own use. Admittedly,
gifts sweets etc. were given to accused no. 1 to 5 and
their family members for their use and hence, I am of the
opinion that allegation levelled against accused persons
does not fall within the purview of section 405 IPC.
Hence no prima facie case u/s 406 IPC is made out
against accused no. 2 to 5. Hence accused no. 2 to 5 are
discharged for the offence u/s 406 IPC as well as under
section 3 and 4 of Dowry Prohibition Act.

***** ***** *****

26. As regards the offence under section 406 IPC, I
have already discussed in detail about requirement of
section 406 IPC and the allegations levelled by the
prosecutrix qua that section, while discussing the facts of
the case in respect to accused no. 2 to 5. Similarly, as
against accused no. 1, there is no allegation of
entrustment of any property, there is only averment that
certain gifts were given to him on the occasions of
engagement ceremony, therefore, I am of the opinion that
ingredients of section 405 IPC are not made out prima
facie in this case. Further, it is the case of the Accused
No. 1, Rohit Kumar Tomar that amount of Rs. 5.5 lacs
have already been deposited by way of FDR by the
accused no. 1 as per the directions of the Hon’ble High
Court of Delhi in lieu of the articles given to accused
persons. Hence, I am of the opinion that no prima facie
case u/s 406 IPC is made out against accused no. 1.

27. As regards section 3 and 4 of Dowry Prohibition

CRL.REV.P. 360/2017 555/2017 Page 8 of 14
Act, there is no single word or allegation against accused
no. 1 in respect to the section 3 and 4 of Dowry
Prohibition Act. There is no “demand of dowry” alleged
against accused no. 1. Therefore, I am of the opinion that
no prima facie case under section 3 and 4 of Dowry
Prohibition Act is made out against accused no. 1, hence
accused no. 1 is discharged for the offence under section
3 and 4 of Dowry Prohibition Act.

28. There are two incidents which have been alleged
against accused-one is dated 26/04/2014 and other
incident is dated 30/04/2014. The complaint had been
drafted by the complainant on 16/12/15 which is detailed
typed complaint but the same was given to DCP (West),
Delhi on 30/12/2015 and finally FIR was lodged on
16/01/2016. Thus, there is gap of almost two years in the
date of commission of alleged offence and the lodging of
present FIR.

29. In the complaint dated 16/12/2015, complainant
had stated that on 26/04/15, accused no. 1 had visited
her house with his friend and accused no. 1 caught hold
of hand of complainant and put his hand on her breast
and asked sexual favour from her but complainant
refused the same reiterating that they should not have
physical relationship unless they are married. The
accused no. 1 was very much excited and he took out his
mobile phone and shown some inappropriate /porn
photographs to complainant in order to instigate her to
have sexual favour from her. But, no incident other than
this has happened on that day.

30. These are the allegations which can at best, fall
within the definition of “outraging the modesty of
woman” as provided under section 354 IPC. Therefore,
offence under section 354 IPC has been added in the
charge sheet. However, subsequently while statement of

CRL.REV.P. 360/2017 555/2017 Page 9 of 14
the prosecutrix was being recorded under section 164 Cr.
P.C., she had elaborated the incident of 26/04/2014 and
had stated different facts then the facts stated by her in
the complaint. Although even those facts fall within the
purview of section 354 IPC.

31. At this stage, it is important to consider the
provision of section 354 IPC, which provides that,
“whoever assaults or uses criminal force to any woman”,
intending to outrage or knowing it to be likely that he will
thereby outrage her modesty, (shall be punished with
imprisonment or either description for a term which shall
not be less than one year but which may extend to five
years and shall also liable to fine).

***** ***** *****

33. It is needless to say that both accused no. 1 Rohit
Kumar Tomar and prosecutrix were well educated,
mature persons, coupled with the fact that they both were
engaged at the time of alleged incident of 26/04/2014. It
cannot be presumed by any stretch of imagination that
kissing or hugging a person, you are already engaged
with will be the culpable intention of ‘outraging
modesty’. In the modern society, this is becoming an
acceptable behaviour of engaged persons thus to my
opinion does not fall within the definition of section 354
IPC. The allegation levelled by prosecutrix in statement
u/s 164 Cr. P.C. are completely contradictory to her first
statement, hence are suspicious and not fit for reliance as
per the judgment of Prashant Bhaskar Vs. State, as
mentioned above.

34. As regards the section 376 IPC, it has been stated
by the prosecutrix in her complaint that on 30/04/2014,
complainant met with accused no. 1 in the Lagan/Sagaai

CRL.REV.P. 360/2017 555/2017 Page 10 of 14
of his friend Gaurav and “he was publicly hugging and
moving with complainant and showing intimacy and
introducing her to others in the Lagan/Sagaai of his
friend Gaurav”. In her complaint, complainant has no
where mentioned about any wrongful act committed by
the accused on 30/04/2014. The allegations levelled by
the complainant in the complaint against accused no. 1
in respect to 30/04/2014 is that he was hugging and
moving with complainant and showing intimacy and
introducing her to others. There is no even a whisper in
the complaint that accused no. 1 had one any act towards
commission of physical assault against the complainant.

35. Whereas in the statement of the prosecutrix,
recorded under section 164 Cr. P.C., she has levelled
allegations against accused no. 1 of ‘fingering’ and this
incident is stated to have taken place in the ‘car’ on
30/04/2014. Later on, during hearing of the bail
application of the accused no. 1 before Hon’ble High
Court of Delhi, it was stated by the prosecution i.e. by
complainant vide her letter dated 06/02/2016 that
incident dated 30/04/2014 had taken place in the
‘parking of Radisson Blu Hotel’. This fact was directed
to be verified by the IO, by the orders of Hon’ble High
Court and on this, report was submitted by the official of
the Radisson Blue Hotel that in the hotel,
customers/guests are not allowed to enter in the parking
as valet services has been provided for the car parking.
Thus, it was clear that no such incident could have taken
place in the parking of hotel.

37. Considering the judgments mentioned above, as
held by Hon’ble Supreme Court as well as by Hon’ble
High Court of Delhi, and the principles laid down by
these judgments that it is the duty of the court to sift the
evidence, and to see that in case two views are equally
possible, and the Judge is satisfied that the evidence

CRL.REV.P. 360/2017 555/2017 Page 11 of 14
produced before him while gives rise to some suspicion
but not grave suspicion against the accused, the court
will be fully within his right to discharge the accused.
Applying these principles to the facts and circumstances
of the case in hand, I am of the opinion that there is no
strong prima facie case made out against accused no. 1
of offence either under section 354 IPC or section 376
IPC, as firstly there is delay of two years in lodging the
complaint by the prosecutrix and secondly there are
contradictory statements made by the prosecutrix and
thirdly in the complaint lodged by the prosecutrix, on
which FIR has been registered, it has no where been
stated by the prosecutrix that accused no. 1 ever tried to
commit any offence against her on 30/04/2014. Mere
allegations of publicly hugging and moving with the
complainant and showing intimacy and introducing her
to others in the Lagan/Sagaai of his friend Gaurav,
knowing fully well that accused no. 1 and prosecutrix
were already engaged and they were attending marriage
ceremony of his friend of accused no. 1, (possible that
they might exhibit some intimacy towards each other
considering the fact that both of them are highly
educated persons) cannot be considered to be an offence
under Section 354 IPC or 376 IPC.

(underlining supplied)

21. In so far as the Boy is concerned, the trial court noticed that
only allegations of giving certain gifts on occasion of Ring-cum-
engagement ceremony were levelled. The Boy in terms of orders of
this court sought to deposit an amount of Rs. 5.5 lakhs with this court.
Subsequently said amount of Rs. 5.5 lakhs have been given to the
prosecutrix towards the amount spent in the engagement function and
the gifts given. Further, Trial court on perusal of the records has found

CRL.REV.P. 360/2017 555/2017 Page 12 of 14
that the allegations under Section 376 and 354 IPC were also not
made out in the facts and circumstances of the case.

22. Records of the case as also the police records have been
perused. Learned APP has not been able to point out to any material to
show that the Trial Court has committed any error in discharging the
accused. There is unexplained delay in lodging the complaint, there
are contradictory statement made by the prosecutrix. Record does not
show any allegation of demand of dowry by any of the accused
persons and there is also no entrustment. There is no error in the Trial
Court holding that prima facie, no case is made out against accused
persons for any of the offences for which they were charge sheeted.
Accordingly, there is no infirmity in the view taken by the trial court
in discharging the respondents. There is no material to raise grave
suspicion against the accused of having committed the offences as
alleged.

23. Further, it may also be seen that parties have since settled all
their disputes and the prosecutrix does not wish to prosecute the
complaint any further and she has even withdrawn her challenge to
the impugned order. All litigations between the parties, civil and
criminal, have been settled and parties do not wish to prosecute their
respective cases.

24. In view of the facts and circumstances of the case as noticed
above and also the fact that prosecutrix does not wish to prosecute her

CRL.REV.P. 360/2017 555/2017 Page 13 of 14
complaint, I find no merit in the petitions. Accordingly, the Revision
Petition, filed by the prosecutrix (Crl. Rev. P. 360/2017), is dismissed
as withdrawn and the Revision Petition, filed by the State (Crl. Rev. P.
555/2017), is dismissed. There shall be no order as to costs.

25. Order Dasti under signatures of Court Master.

OCTOBER 26, 2018 SANJEEV SACHDEVA, J
‘rs’

CRL.REV.P. 360/2017 555/2017 Page 14 of 14

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