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State Nct Of Delhi vs Shalabh Gupta on 13 May, 2019

$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Date of Decision: 13.05.2019

% CRL.L.P. 513/2013

STATE NCT OF DELHI …. Petitioner
Through Mr. Tarang Srivastava, APP for State.
SI Nikhil Raman, PS Geeta Colony.
versus
SHALABH GUPTA ….. Respondent
Through Mr. Amit Sharma and Mr. Ahmad
Ziad, Advocates.

CORAM:
HON’BLE MR. JUSTICE A.K.CHAWLA

JUDGMENT

A.K.CHAWLA, J. (ORAL)

1. By the instant petition filed under sub-Section (1) of Section 378
Cr.P.C., the State seeks leave to entertain appeal against an order-judgment
of acquittal passed by the ld. District Judge/Addl. Sessions Judge (N/E),
whereby, the respondent-the accused was acquitted of the charge of rape.

2. Concisely, the relevant facts are that on 30.06.2007 at 07:05 hrs, FIR
No.264/2007 PS Geeta Colony under Sections 376/Section506/Section34 IPC was
registered on the complaint made by the prosecutrix for the commission of
the offences under Sections 376 and Section506 IPC on 27.06.2007 at about 11.00
p.m. on the road on Pontoon Bridge, near Cremation Ground, Geeta Colony.

CRL.L.P. 513/2013 Page 1 of 7

As per the allegations, the prosecutrix had known the accused for the last
few years and in February, 2007, he proposed to marry her and on the day of
the incident, which was her birthday, he committed rape on her telling her
that this was his birthday gift much against her wishes. After the incident,
the accused is said to have expressed regrets for about 20 minute and
thereafter, both of them went to Atta Bazar Parking at about 11.45 p.m. and
from there, the prosecutrix picked up her own car and moved around in
insensible condition and did not go back home refusing to attend to the calls
received from the family members and even Delhi Police PCR Van searched
for her. It was only on the receipt of the message of sickness of her father,
she is said to have gone back home but did not narrate the incident and it is
only on 29.06.2007 at about 11.00 p.m., she disclosed of the incident to her
family members and thereafter only, she came to the police station along
with her family members and lodged the complaint. On the conclusion of
the investigations, the challan was filed for trial of the offences under
Section 376/Section506/Section34 IPC. The Trial Court framed charge for the offence
under Section 376 IPC, to which the respondent pleaded not guilty and
claimed trial. In support of its case, the prosecution examined PW-1 ASI
Jagmal Singh; PW-2 Sh. Naresh Kumar, ld. MM; the prosecutrix PW-3;
PW-4 HC Subhash; PW-5 Ct. Daya Ram; PW-6 Dr. Virender Kumar; PW-7
Ct. Ranjeet; PW-8 Retd. SI Maha Singh; PW-9 Dr. Kamal Kumar; PW-10
SI Israil Khan-IO and PW-11 HC Mool Chand and closed PE. Incriminating
evidence and the circumstances were put to the respondent in his statement
recorded under Section 313 Cr.P.C. The respondent however did not lead
any defence evidence. Vide the impugned judgment, the respondent was

CRL.L.P. 513/2013 Page 2 of 7
acquitted of the charge under Section 376 IPC.

3. What is the perversity in the impugned judgment, which invites grant
of leave by this Court, is the pertinent question for consideration in the
instant petition.

4. The respondent come to be acquitted of the charge by the Trial Court
with the observations in the impugned judgment as follows:

“14. Law is stated as appearing from judgments cited from
both sides that prosecutrix in an offence of sexual assault is
not an accomplice and rather is to be treated as injured/
witness. There is no law requiring court to ask for support
and corroboration to her testimony before her evidence is
accepted. Conviction can be based on solitary evidence of
the prosecutrix provided the evidence appears trustworthy
and inspires court’s confidence to believe it without any
further support. Support and corroboration is infact a rule
of prudence and not of law. Having taken scrutiny of the
evidence of the prosecutrix I find it is a bit difficult to accept
her case that offence of rape has been committed against
her. What all prosecutrix has stated in evidence on the point
of offence of rape is that she and accused were together on
the evening of the date of incident and they both had
together a dinner in a restaurant till 11.00 pm. Accused
then took prosecutrix in his Santro car from restaurant
premises in Noida and brought the car to a place Paltoon
bridge near cremation ground, Geeta colony. She further
deposed that accused asked her to offer her a birthday gift
and then despite her protest accused forcibly committed
rape on her. This is in all witness has deposed and this is
what in all witness had described in her FIR statement. To
the opinion of this court some kind of further description of
the offending act of accused ought to have come on record.

CRL.L.P. 513/2013 Page 3 of 7

If a boy and girl in a love relationship travelled together in
a vehicle car then the boy finally indulging in act of
physical relationship with girl without her consent ought to
be by some kind of elaboration as to exactly in what
particular place in the car and how accused committed that
foul act/ play. As to how resistance given by girl became
ineffective, how accused accomplished that act without
being pushed away by any kind of act, even by an act of
raising hue and cry. In cross examination prosecutrix when
asked as to what resistance she gave to accused, she replied
that accused being a bit heavy prevailed upon her.
Prosecutrix admits in cross examination which has been
referred to by defence counsel that her clothes were not
torn. She had tried to push him away but he laid upon her
being too heavy. She further states that she pleaded,
shouted and cried. Counsel rightly argued that such a
conduct of shouting and crying in ordinary course of human
behaviour should have come as a narration in FIR but is
missing. To my view counsel rightly argued that absence of
any kind of injury on any part of the body of the prosecutrix
as it appears from the MLC of the prosecutrix, it becomes
difficult to accept the testimony of the prosecutrix that
physical relationship if really indulged in by accused was
without consent.

15. Report has been lodged after more than two days. Had
it been an offence committed to invade the privacy of a girl
and she treated it as a serious offence committed to her, she
would have at least called her parents through her mobile
phone. On the contrary she deposed that being late in the
night she was receiving calls from house on her mobile
phone but she was not picking it up and kept on driving on
roads and finally on receiving a message on her mobile that

CRL.L.P. 513/2013 Page 4 of 7
her father had fallen sick then she reached home in the
early morning hours. Another important fact remained
unsupported and corroborated is that by the time victim
reached home which she says by around 5.00 am of
28.06.2007, accused Shalabh Gupta was already present in
the house and he asked prosecutrix to not to disclose
incident to anybody. She further states that Shalabh Gupta
was with her family in the search of the prosecutrix on that
night. Father of the prosecutrix would have been important
witness to depose circumstances in which accused Shalabh
Gupta reached his house and what facts and information he
conveyed to father of the prosecutrix. Adverse inference
needs to be taken note of when father of prosecutrix has not
been examined. Defence counsel had reasons to assert that
on 28.06.2007 when family of accused was called by the
prosecutrix to speak to Shalabh Gupta, brother of accused
Shalabh Gupta responded that Shalabh Gupta should not be
involved and called and he threatened prosecutrix with dire
consequences. Delayed FIR thus suggests both views,
prosecutrix feeling ashamed and disgusted waited for
response of Shalabh Gupta and possibility of second view
also appearing equally plausible that family of Shalabh
Gupta denying to respond to the call made by prosecutrix
that present case as a revenge was got registered.

16. Admittedly the medical report has not at all given any
support to the case of the prosecution. Defence counsel
rightly argued that no opinion was sought from the doctor if
it was a case of sexual intercourse as an offence of rape
indulged in without consent of the prosecutrix and by force.
To the considered opinion of this court the arguments from
the prosecution side that in the given fact situation
submission by the prosecutrix to the act indulged in by

CRL.L.P. 513/2013 Page 5 of 7
accused could be taken to be no consent is too difficult to
accept. Accused has specifically denied to have indulged in
any such act of sexual relationship with prosecutrix.
Prosecution cannot be said to have proved its charge of
rape against accused. Benefit of doubt deserves to be
considered and given in favour of accused. Accused is
acquitted of the charge.”

5. During the course of hearing, Mr. Srivastava, ld. Addl. PP, was at
pain to explain the absence of any injury on the person of the prosecutrix or
even any of her clothes being torn, in the event, the respondent has forced
himself on her person, more so, when the prosecutrix alleged that it was
forceful and much against her consent. It is a matter of record that but for
the deposition of the prosecutrix, the prosecution has failed to adduce any
scientific evidence to support the allegations of the prosecutrix. Not only
that, no other public witness much less any of her family members to whom
she allegedly confided of the incident, has come to be examined to extend
support to the version of the prosecutrix. Prosecution failed to even examine
the doctor, who had medically examined her. During her cross, the
prosecutirx has disclosed that she had married the accused-the respondent in
a temple on 04.07.2007. This fact of performing of marriage within few days
of the alleged incident of commission of rape upon her by the accused also
raises serious doubt on the veracity of the prosecution story. In the event,
the respondent had forced himself on the prosecutrix much against her
consent and as per her version, she had taken more than two days to
reconcile and then approach the police for lodging of the FIR, her
performing marriage with the accused-the respondent within 6/7 days of

CRL.L.P. 513/2013 Page 6 of 7
registration of the FIR, in fact, invites adverse inference. Is it, the lodging of
the FIR, made the respondent marry her? It appears to be so. The facts and
the circumstances suggest, a relationship between the prosecutrix and the
respondent, which turned sour, resulted in lodging of the FIR. In totality of
the facts and circumstances therefore the conclusions drawn by the Trial
Court cannot be said to be suffering from any perversity. During the course
of hearing, Mr.Sharma, learned counsel for the respondent, also pointed out
that the prosecutrix having also preferred an appeal against the impugned
judgment by way of a Criminal Appeal No.331/2013 did not pursue it and it
was dismissed for non prosecution on 03.05.2017. Be that as it may, this
court does not see any reason to grant leave to appeal.

6. For the foregoing reasons, the leave petition is dismissed.

A.K. CHAWLA, J.

MAY 13, 2019
nn

CRL.L.P. 513/2013 Page 7 of 7

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