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Smt. Rachna Singh vs State And Anr. on 13 May, 2019

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* 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 appeal has been filed under Section 372 of the Code of
Criminal Procedure 1973 challenging the judgment dated 05th January, 2019
whereby the accused-respondent no. 2 was acquitted of charges under
Section 328/Section376(2)(n)/Section343/Section506 Indian Penal Code, 1860 (‘SectionIPC’). The
relevant portion of the Trial Court judgment is reproduced hereinbelow:-

“… Medical examination of prosecutrix was carried out to which
she refused her internal medical examination…
…The statement made by the prosecutrix in the court that she
came into contact with accused through Linkedin, social
networking site for the purpose of her research work has not
been mentioned in written complaint made by prosecutrix neither

Crl.A.No.626/2019 Page 1 of 8
in the complaint dated 05.01.2017 made to the DCP, Dwarka nor
in the complaint dated 17.01.2017 written to the SHO PS Pahar
Ganj, therefore, this is major contradiction in the statement of
prosecutrix made to the police as well as to the court as to how
the prosecutrix came into contact with accused. …
… but in the cross examination itself, she has admitted that on
15.12.2016, accused took her firstly to Shivaji Stadium Metro
Station and from there he took her to Aerocity Metro Station and
he went away after dropping her there. He had also returned her
aforesaid belongings alongwith her mobile phone. When she
reached her home, she checked her mobile phone and found that
accused had deleted recording of her chatting through
whatssapp and SMS exchanged between them. The prosecutrix
being highly educated lady could not make call to anyone during
13.12.2016 to 15.12.2016 because her mobile phone was taken
by the accused but as per her own statement and testimony made
in the court that on 15.12.2016, accused had returned her
belongings along with mobile phone but she could not make any
call to the police or any other person in respect of the complaint
of the alleged incident of rape is itself unbelievable.
That, the prosecutrix has also stated that the room was booked in
the hotel Hari Piorko at Pahar Ganj by the accused himself and
at that time she was having suitcase, handbag and laptop bag
with her and she was comfortable with the accused and “it is
correct that from coming out of the hotel they both took auto and
went to Shivaji Stadium Metro Station and from there both took
metro and reached Aerocity Metro Station and accused went
inside the airport and took his flight and the prosecutrix see off
accused and went to her home at Dwarka and she did not make
any phone call on 15.12.2016 to any of his friend or relative or to
anyone else in respect of alleged incident of rape.”…
… it is very improbable and unbelievable that she is not aware
about the completion of the formalities for taking room in any
hotel or that room number of that hotel is not remember to her
particularly when she stay there from 13.12.2016 to 15.12.2016.
….

Crl.A.No.626/2019 Page 2 of 8

54. That, the statement of prosecutrix is highly unreliable
and untrustworthy and inspire no confidence on the ground that
PW 11 W/SI Veena Sharma, I.O. of this case who had obtained
the copy of the entry register from the said hotel where offence of
rape alleged to have been committed by accused with the
prosecutrix and it reveals that the prosecutrix had also submitted
her I.D. proof in that hotel and perusal of the said I.D. proof,
which was seized by the I.O. during the investigation reveals that
the same reflects the name and address of the prosecutrix and
address on the said I.D. is of Aligarh, U.P. Therefore, testimony
of the prosecutrix itself is unreliable.

55. That, during the cross examination, prosecutrix has
deposed that she had not handed over her mobile phone to the
police during the investigation of police as police did not ask her
for the same but the I.O. who is PW11, herein has deposed that
she had asked prosecutrix to hand over her mobile phone but she
refused to handover the same. Therefore, the testimony of the
prosecutrix is not of much credence.

56. Prosecutrix has admitted that she is the daughter of
retired commandant from CRPF and she did not make any call to
the police or to the PCR in respect of alleged offence of rape…

57…… It has also been deposed that “I cannot say if I made 529
calls on his i.e. mobile phone of accused number
9415684928from her mobile phone number 9690297262 between
16.12.2016 to 29.01.2017.”

58. The prosecutrix being highly educated, married and of
matured understanding lady and is daughter of retired
Commandant of CRPF and by making her statement in respect of
non remembering her mobile number as well as landline number
installed at her residence is unbelievable and it is not expected
from highly educated and prudent person.

59. That, the prosecutrix has alleged that she met with
accused when she get the invitation of attending the seminar on

Crl.A.No.626/2019 Page 3 of 8
13.12.2016 is also unbelievable as date 13.12.2016 was gazette
holiday on the occasion of Milad-Un-Nabi (Birthday of Prophet
Mohammad). Moreover, the RTI reply of the IIM, Noida which
was filed during arguments on bail by ld. Defence counsel also
reflects that no seminar / conference was held on 13.12.2016 at
IIM, Noida, U.P. as it was gazette holiday nor any invitation
letter issued from IIM, Noida to the prosecutrix has been placed
on record nor the same was handed over by the prosecutrix to
the I.O. at the time of the investigation of the present case FIR.

60. … this witness has admitted that the entrance of the hotel
is manned by security guard 24 hours and no one can enter in the
hotel without permission of the guard and there are guidelines of
Delhi Police not to allot any room to local resident of Delhi and
they had checked the IDs of the guests before allotting them room
and retained their copies and as the prosecutrix has supplied her
I.D. proof and as per I.D. proof, she was not resident of Delhi
and was allotted Room no.224 for one night and room no.223
was booked for 2 nights and they did not receive any complaint
from any guest of the aforesaid rooms during their stay.
.. she could have brought the incident to the notice to the guard
of that hotel or could have make a call to the police or to inform
the manager or to the waiter or could have easily come out from
the hotel room to make a call to the police or raised an alarm but
she did not make any call nor bring the notice of hotel staff or to
any one of the alleged incident of rape.

.. There is delay of 32 days to report the matter to the police and
the prosecutrix is not been able to explain the delay to lodge the
complaint to the police for the alleged offence of rape….

xxx xxx xxx

63. That, there is no evidence in respect of intoxicated
substance allegedly given by the accused to the prosecutrix in a
coffee and there is no medical report in this regard and the
prosecution is not able to prove the same against the accused.

64. Therefore, in these facts and circumstances, this court is
of the considered view that prosecution has not been able to
prove its case as well as the charges of the offence u/s

Crl.A.No.626/2019 Page 4 of 8
328/376(2)(n)/343/506 SectionIPC against the accused beyond
reasonable doubt and hence, accused Abhijeet Singh is hereby
acquitted from the charges punishable u/s 328/376(2)(n)/343/506
SectionIPC.”

(emphasis supplied)

2. Learned counsel for the appellant-prosecutrix submits that the Trial
Court had failed to appreciate that there is a presumption under Section
114A of the Indian Evidence Act, 1872, as to absence of consent in a case
for prosecution of the offence under Section 376 IPC and consequently the
onus to prove that he had not committed the offence under Section 376(2)(n)
IPC had shifted to the accused-respondent no. 2.

3. Learned counsel for the appellant-prosecutrix further contends that the
Trial Court had erred in not appreciating the fact that the appellant-
prosecutrix is a chronic asthmatic patient, cannot do regular activities
without medication, has a physical deformity in her left leg and is also
suffering from cerebral palsy due to which it is difficult for her to raise her
voice even in an emergency situation.

4. Having perused the paper book, this Court is of the view that the
presumption under Section 114A of the Indian Evidence Act, 1872 would
only be attracted if the factum of sexual intercourse is proved.

5. In the present case, it is noteworthy that the appellant-prosecutrix had
refused internal medical examination.

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

Crl.A.No.626/2019 Page 5 of 8

A. The appellant-prosecutrix alleged that she had received an invitation
to attend a seminar on 13th December, 2016 at IIM, Noida. However,
13th December, 2016 was a gazetted holiday on the occasion of Milad-
Un-Nabi (Birthday of Mohammad). Furthermore, the RTI reply sent
by IIM, Noida stated that on account of the gazetted holiday, there
was no seminar scheduled for 13th December, 2016 and they had not
sent any invitation to the appellant-prosecutrix.
B. There is a major contradiction in the statement of the appellant-

prosecutrix inasmuch as, in the written complaint dated 05th January,
2017 made to the DCP, Dwarka, and the complaint dated 17th January,
2017 to the SHO PS Pahar Ganj, the appellant-prosecutrix had not
mentioned that she had come in contact with the accused-respondent
no. 2 through LinkedIn for the purpose of research work. However,
she has mentioned the aforesaid fact in her statement before the Court.

C. The appellant-prosecutrix had submitted her I.D. proof to the hotel
and in the same she had mentioned her address of Aligarh, UP as
Delhi Police Guidelines do not permit the hotel to allot a room to a
local Delhi resident.

D. The entrance of the hotel room is manned by security guards 24 hours
and no one can enter the hotel without the permission of the guard.
The appellant-prosecutrix could have easily come out of the hotel
room to make a call to the police or raise an alarm or could have
requested any of the hotel staff to make a call. The appellant-
prosecutrix is mobile and does not suffer from such a serious
disability that she could not have raised an alarm.

Crl.A.No.626/2019 Page 6 of 8

E. There is no evidence placed on record to suggest that the appellant-

prosecutrix was administered intoxicating substance and its effect
lasted for three days.

F. On 15th December, 2016 after the alleged incident, the accused-

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

G. There is a delay of 32 days in filing the FIR, according to the Trial
Court or at least 20 days as admitted by the appellant-prosecutrix.
According to the appellant-prosecutrix, there was a delay as her
brother was abroad. But such an alibi on the part of the appellant-
prosecutrix is difficult to accept as appellant-prosecutrix is an
educated lady who is gainfully employed as a Professor in a
university.

H. The appellant-prosecutrix also did not hand over her mobile phone to
the I.O. The appellant-prosecutrix deposed that the police during
investigation did not ask for it. However, the I.O, who deposed as
PW11, stated that she had asked the appellant-prosecutrix to hand
over her mobile phone but she refused to do so.

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

Crl.A.No.626/2019 Page 7 of 8

7. Keeping in view the aforesaid cumulative findings, this Court is of the
view that the testimony of the appellant-prosecutrix is unreliable and
inspires no confidence and there are compelling reasons for rejecting of her
testimony. Further, Section 114A of the Indian Evidence Act, 1872, is not
attracted as the factum of sexual intercourse is not proved. There are also
various lacunae in the case of the prosecution and the benefit of doubt will
have to enure to the benefit of the accused-respondent no. 2. Consequently,
the present appeal being bereft of merits, is dismissed.

MANMOHAN, J

SANGITA DHINGRA SEHGAL, J
MAY 13, 2019
KA

Crl.A.No.626/2019 Page 8 of 8

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