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State vs Habib on 16 May, 2014

Delhi High Court State vs Habib on 16 May, 2014Author: Sunita Gupta

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 16th May, 2014

+ CRL.L.P. 295/2014

STATE ….. Petitioner Through: Mr. Ravi Nayak, APP for the State.

Inspector Yashpal Singh, ATO, PS

Swaroop Nagar, ASI Devender, IO

Security

versus

HABIB ….. Respondents Through: None

%

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

HON’BLE MS. JUSTICE SUNITA GUPTA

JUDGMENT

: SUNITA GUPTA, J. (Oral)

Crl. M.A. No. 6824/2014

By this application filed under Section 482 Cr.P.C. r/w Section 5 of Limitation Act, the petitioner/State is seeking condonation of delay of 58 days in filing the accompanying criminal leave to appeal. For the reasons stated in the application, the same is allowed. Delay of 58 days in filing the accompanying petition seeking leave to appeal against the impugned judgment is condoned.

The application stands disposed of.

CRL.L.P.295/2014

1. The present criminal leave to appeal has been preferred by Crl. A. Nos. 295/2014 Page 1 of 22 the petitioner/State under Section 378 (3) Cr.P.C. to challenge that part of the judgment dated 16th November, 2013, passed by learned Additional Sessions Judge-01, North Rohini, Delhi whereby the respondent was acquitted of the charges under Section 328/344/366/376 of the Indian Penal Code, 1806 (hereinafter referred to as IPC).

2. To appreciate the contention raised by learned counsel for the petitioner/State, a brief summary of the prosecution case is given below:-

3. On 4th January, 2009, complainant Smt. Manwati @Shanti,w/o late Charan Singh, R/o Gurudwara Road, Masjid Wali Gali, Khasra No. 447, Swaroop Nagar, Delhi came to the police station and lodged a complaint regarding missing of her daughter ‘D’, aged about 16 years (herein after also referred as Prosecutrix) from 27th December, 2008 and she raised her suspicion upon one boy, namely, Habib, s/o Jamil Khan. On the basis of this complaint, FIR under Section 363 IPC was registered. On 10th January, 2009, Smt. Manwati obtained the School Leaving Certificate and thereafter handed over of ‘D’ wherein her date of birth was mentioned as 22nd December, 1991. Information was sent to Missing Persons Squad and CBI. Information was also gathered Crl. A. Nos. 295/2014 Page 2 of 22 from Ronak. On 30th April, 2009, respondent/accused Habib was arrested in case FIR No. 97/09 under Section 363/365/366/328/344/384/34 IPC registered with PS Swaroop Nagar but no fruitful information could be gathered. Later on, the Investigating Officer came to know that the prosecutrix ‘D’ had come to her brother-in-law’s house on 30th April, 2009, thereafter her statement under Section 161 Cr. P.C. was recorded. She was medically examined. Her statement under Section 164 Cr.P.C. was also got recorded. Accused was arrested in this case. After completing investigation, charge sheet was submitted against the accused.

4. Charge under Section 363/366/328/376/344 IPC was framed against the accused to which he pleaded not guilty and claimed trial.

5. In order to substantiate its case, prosecution has examined as many as 20 witnesses. All the incriminating evidence was put to the accused while recording his statement under Section 313 Cr.P.C. wherein he denied the allegations levelled against him and stated that prosecutrix was more than 18 years of age. She was residing with her sister. Since father-in-law of her sister used to misbehave Crl. A. Nos. 295/2014 Page 3 of 22 with her and tried to outrage her modesty, as such, she left the house of her sister and started residing at Rajokari village. He did not prefer to lead any defence evidence.

6. After minutely scrutinizing the evidence coming on record, the learned Additional Sessions Judge came to the conclusion that the age of the prosecutrix was below 18 years. The prosecution had succeeded in proving that the prosecutrix went from the lawful custody of her guardian on 17th December, 2008. A room was taken on rent by the accused, where the prosecutrix was kept and since the prosecutrix was less than 18 years of age on the date of incident, as such, her consent was immaterial. Therefore, offence under Section 363 IPC was proved. He was accordingly convicted of this offence. However, prosecution failed to prove that the prosecutrix was kidnapped by the accused to compel her for marriage or force her to have illicit intercourse or seduce her to do illicit intercourse or that she was administered some intoxicating substance in the cold drink. As such, offences under Section 366/328 IPC were not proved. As regards offence under Section 376 IPC is concerned, it was held that prosecutrix had gone along with the accused voluntarily and resided at the house at Village Rajokari for almost four months and had sexual relations with the Crl. A. Nos. 295/2014 Page 4 of 22 accused with her own consent and since she was above age of 16 years, therefore, she was capable of giving consent for sex, accordingly, he was also acquitted of the charge of rape punishable under Section 376 IPC.

7. Assailing this part of the impugned judgment, Sh. Ravi Nayak, learned Additional Public Prosecutor for the State submits that the entire evidence led by the prosecution has not been appreciated by the learned Additional Sessions Judge in correct perspective. The Trial Court erred in overlooking the statement of the material witnesses. The learned Trial Court also erred in taking the date of birth mentioned in the School record as trustworthy. The medical opinion ought to have been taken to ascertain her exact date of birth in view of the suggestion of PW12 who had advised X-ray of the prosecutrix for age determination. Testimony of prosecutrix herself is sufficient to convict the accused and no corroboration to the same is required, however, the learned Trial Court erred in finding the testimony of the prosecutrix unreliable and coming to the erroneous conclusion that the prosecutrix went with the accused with her own consent. Based on the above submissions, learned Public Prosecutor for the State strongly urges for grant of leave to appeal to challenge the impugned judgment of Crl. A. Nos. 295/2014 Page 5 of 22 acquittal.

8. We have heard the learned Additional Public Prosecutor for the State and given our thoughtful considerations to the arguments advanced by him and also perused the Trial Court Record.

9. In the instant case, the learned Trial Court has convicted the appellant for offence under Section 363 IPC but acquitted of all the remaining charges. As already noticed, against the judgment of acquittal, the State has preferred application for leave to appeal. We have, therefore to examine whether the impugned judgment suffers from any perversity calling for interference.

10. The law relating to an appeal against an order of acquittal was succinctly laid down by Hon’ble Supreme Court in State of Goa v. Sanjay Thakran and Another (2007) 3 SCC 755 and it will be advantageous to reproduce the observations made by the Supreme Court as under:-

14. By a series of decisions, this Court has laid down the parameters of appreciation of evidence on record and jurisdiction and limitations of the appellate court, and while dealing with appeal against order of acquittal this Court observed in Tota Singh and Anr. v. State of Punjab (1987) 2 SCC 529, as under:

6. …The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some Crl. A. Nos. 295/2014 Page 6 of 22 manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.

15. Further, this Court has observed in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 :

7. …This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then – and then only – reappraise the evidence to arrive at its own conclusions….

and in State of Rajasthan v. Raja Ram (2003) 8 SCC 180:

7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A Crl. A. Nos. 295/2014 Page 7 of 22 miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. {See Bhagwan Singh v. State of M.P. (2002) 4 SCC 85}. The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793, Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana (2000) 4 SCC 484.

16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with.

11. Similar view was taken in Govindraju @ Govinda v. State by Sriramapuram P.S. & Anr. 2012 III AD (SC) 453, Murlidhar @ Gidda & Anr. v. State of Karnataka, 2014 IV AD (SC) 557 and Ramesh Vithal Patil v. State of Karnataka & Ors., 2014 IV AD Crl. A. Nos. 295/2014 Page 8 of 22 (SC) 565, Ashok Rai v. State of U.P. & Ors. 2014 V AD (SC) 1. In the light of the aforesaid principles laid down, we shall consider the evidence placed on record to find out whether the courts below have committed any error in dealing with the evidence, which can be said to be patently illegal, or that the conclusion arrived at is wholly untenable, calling for interference by us.

12. As regards the submissions of learned Public Prosecutor for the State that the testimony of prosecutrix does not require any corroboration, this submission has force, inasmuch as, testimony of a victim of sexual assault stands at par with testimony of an injured witness and has undoubtedly a greater weight. Therefore, corroboration for testimony of victim is not insisted upon provided that it does not suffer from any basic infirmity and principal factors do not lent it unworthy of credence.

13. Hon’ble Apex Court in State of Maharashtra v. Chandraprakash Kewal Chand Jain, AIR 1990 SC 658 laid down that a woman, who is a victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The court observed as under:- “A prosecutirx of a sex-offence cannot be put on par with an Crl. A. Nos. 295/2014 Page 9 of 22 accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must be attached in evaluation of her evidence as in the case of an injured complainant or a witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act, which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the proseuctrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.”

14. In Rameshwar v. State of Rajasthan, AIR 1952 SC 54, Hon’ble Apex Court declared that corroboration is not the sine qua non for a conviction in a rape case. In the aforesaid case, Vivian Bose, J. speaking for the Court observed as follows: “19….The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge….The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or them. There Crl. A. Nos. 295/2014 Page 10 of 22 is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.”

15. In Hem Raj v. State of Haryana, 2014 III AD (SC) 546, it was observed as under:

6. In a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible; if it inspires total confidence, it can be relied upon even sans corroboration. The court may, however, if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it short of corroboration required in the case of an accomplice. Such weight is given to the prosecutrix’s evidence because her evidence is on par with the evidence of an injured witness which seldom fails to inspire confidence. Having placed the prosecutrix’s evidence on such a high pedestal, it is the duty of the court to scrutinize it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and

circumspection and only after its conscience is satisfied about its creditworthiness rely upon it.

16. These observations leave no manner of doubt that a conviction can be recorded on the sole, uncorroborated testimony of a victim provided it does not suffer from any basic infirmities or improbabilities which render it unworthy of credence. We shall now read the prosecutrix’s evidence keeping the above caution in mind.

17. A perusal of the testimony of the prosecutrix goes to show that the same does not satisfy the aforesaid test. The learned Trial Court has meticulously dealt with the testimony of the prosecutrix as well as other witnesses examined by the prosecution. As regards the age of the prosecutrix, the learned Trial Court referred to the Crl. A. Nos. 295/2014 Page 11 of 22 judgment of Jarnail Singh v. State of Haryana, 2013 VII AD (SC) 313, where it was held that Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 to determine the age will be applicable in cases of victim also where victim is a child. As per Rule 12, the age recorded in the school is to be given preference, if the same is available and the Court finds it trustworthy and there is no need to look for any other evidence for determination of age of a person.

18. Prosecution had examined PW8 Ms. Surender Bhardwaj, TGT (Hindi), Govt. Girls Senior Secondary School No. 1, Adarsh Nagar, Delhi where the prosecutrix had studied. As per the admission record, date of birth was mentioned as 22 nd December, 1991. There was no other evidence regarding age of prosecutrix and, as such, her date of birth was taken as 22nd December, 1991.

19. The submission of learned Additional Public Prosecutor for the State that PW12 had advised X-ray of the prosecutrix for age determination and, as such, the medical opinion regarding her age ought to have been taken is bereft of merit, inasmuch as, if the prosecution was not relying upon the date of birth as recorded in the school record, the Investigating Officer of the case should have got the ossification test of the prosecutrix conducted but that was Crl. A. Nos. 295/2014 Page 12 of 22 not done. State cannot be allowed to take advantage of its own lapses by submitting that the age as recorded in the School record should not be considered for ascertaining the age of prosecutrix. The learned Trial Court, thus, rightly took her date of birth as 22 nd December, 1991 as recorded in the school record.

20. As regards the testimony of the Prosecutrix (PW1), she has deposed that in the year 2009, she was studying in class IX in the Govt. Girls Senior Secondary School, Adarsh Nagar and used to come from her house at Bhalaswa Dairy to attend the school. On 27th December, 2008, she was going to Adarsh Nagar market for shopping purpose when suddenly accused Habib came in her way and stopped the vehicle in front of her. He then told her that Ronak and one boy named Lal were sitting in the car and they want to talk to her but after she sat in the said vehicle she could not see anyone and as she tried to come out of that vehicle, accused Habib caught hold of her hand by stating that he wanted to talk to her about Ronak and Lal and started the vehicle. Accused Habib then stopped the vehicle at some distance, brought cold-drinks in two glasses and on drinking the said drink she became unconscious. After regaining consciousness, she found herself locked in a room. Accused Habib came to the room in the night, offered her food and on her denial to Crl. A. Nos. 295/2014 Page 13 of 22 eat the food he started beating and misbehaving with her and further told her to allow him to do whatever he wanted to do. Thereafter, accused had physical relations with her against her wishes and without her consent. The next morning, accused left the room but had left one lady to keep an eye on her and if she had to go to the toilet that lady used to accompany her. She was confined in the said room for a period of about four months and during that period accused Habib raped her several times. One day, accused brought her friend Ronak in the said room and when the prosecutrix asked for her help, she refused to do so. Accused also brought Lal to the said room on some another day and so both Ronak and Lal were aware that she has been confined in the said room by the accused Habib. Accused again brought Ronak to the room and this time she remained with her in that room for about 13 days and thereafter she left with Habib. On the subsequent day, she got an opportunity to escape from the said room, thereafter she reached the STD booth from where she made a telephone call to her brother-in- law (Jija) and told him the location of the said booth. Her jija alongwith one other person reached there and from there she was taken to her jija’s house where other family members were also called. After two days, she was taken to the PS Swaroop Nagar Crl. A. Nos. 295/2014 Page 14 of 22 where the IO prepared her recovery memo, Ex. PW 1/A and was thereafter taken to BJRM hospital, where she was medically examined after obtaining the consent from her mother for her internal examination and in the hospital doctor also took her vaginal swab. Thereafter, in the court, her statement u/s. 164 Cr.P.C. was recorded by the Ld. MM.

21. In her cross-examination, she stated that her statement u/s 164 Cr.P.C. was recorded by the Ld. MM in which she had stated that since July, 2008, she used to reside at the house of her elder sister at Kewal Park. She had stated that accused Habib was the brother of Ronak and they alongwith Lal entered into conspiracy in taking her away. She admitted the fact that on some occasions, accused Habib used to drop her to the school but denied the suggestion that due to the aforesaid reason she had developed friendship with him. She admitted that her mother used to object on dropping her to school by the accused as she used to inform her mother the days as and when accused used to drop her. She admitted that the diary Ex. PW 1/D1 to Ex. PW 1/D3 is in her own handwriting as she used to write the diary but went on stating that most of the portions in the diary were got written from her forcefully. Regarding the photograph Ex. PW 1/D4, she denied the Crl. A. Nos. 295/2014 Page 15 of 22 suggestion that the said photograph was got clicked by her with the accused as she was in love and affection with him, rather the same was done forcibly under a threat. She also admitted that all the photographs and drawings/ pictures Ex. PW 1/D5 were got prepared from her forcefully. She further denied the suggestion that she did not raise alarm when accused Habib caught hold of her hand because she was having friendly relations with him and was going with him voluntarily. She admitted that she had not given the description of the lady who used to keep an eye on her during the confinement period to the police as the police itself did not inquire about the same. She admitted the fact that Lal and Ronak used to visit that room during her confinement but denied the suggestion that Lal and Ronak noticed that she was residing happily in the said room and that is why they did not inform her family members or the police.

22. The learned Trial Court did not find the testimony of the prosecutrix to be reliable on the following grounds:- (i) The accused was previously known to her as she has admitted in her cross examination that sometime accused used to drop her to school in his taxi. Her mother and brother used to object her dropping at school by accused which shows they were Crl. A. Nos. 295/2014 Page 16 of 22 having friendship otherwise, why she will go in his taxi. (ii) According to her, the accused had taken her in a car in a crowded place. When she did not find R and Lal in the vehicle, she tried to come out from the vehicle. But, accused caught hold her hand and started plying the vehicle, but she failed to explain as to why she did not raise alarm.

(iii) According to prosecutrix, she was given cold drink by the accused and when she regained her consciousness, she found herself in a room which was at village Rajokari, belonging to PW Shakuntala Devi. According to PW 19 ASI Devinder, there were sixteen rooms in the said house. If accused had taken her in unconscious condition then definitely other residents would have noticed accused carrying prosecutrix and would have objected to it. As such, her version that she was brought to the room where she was kept does not appear to be convincing.

(iv) According to the prosecutrix, she was confined in the room. However this part of her testimony does not find corroboration from PW4 Shakuntala who had testified that she had given the said room on rent to Samir @ Habib, i.e., accused and accused used to reside with one girl Mehak and introduced her as his sister and she had inquired from Mehak and Mehak told that her parents had Crl. A. Nos. 295/2014 Page 17 of 22 already died and accused is her brother and she wanted to live with him. There was no reason why PW4 Shakuntala will falsely depose in favour of accused.

(v) As per the testimony of PW7 R, Mehak was the prosecutrix. Both the accused and the prosecutrix remained in the house of PW4 Shakuntala Devi as brother and sister. It reflects that she was living in the said house with her own consent otherwise why she would tell PW4 that she was the sister of accused, rather she could inform her that accused had kidnapped her and confined her forcibly.

(vi) She remained in that house for quite a long period and during that period, she never raised any alarm that she has been confined there or when accused committed rape with her. She was fully grown up girl and could very well protest the act of accused. It was admitted by ASI Devender Singh (PW19) that the house in which prosecutrix was confined was having 16 rooms of hut type and all the rooms were occupied. There was a common latrine and bathroom of all the 16 rooms. The said house was 100 sq. yds. The distance of room and latrine was about 10-15 steps for going to latrine and bathroom. One has to pass through the open space in front of those rooms and the room where the prosecutrix was Crl. A. Nos. 295/2014 Page 18 of 22 confined was the first room of the house and the last room of the house was nearest to the latrine and bathroom. He further admitted that if a person goes for latrine and bathroom, then he will be visible to occupants of the other rooms. In these circumstances, when so many persons were residing in the nearby room, it is not possible to confine her for such a long period of about four months. She would have ample opportunity to inform to neighbourers or run away.

(vii) The plea taken by the prosecutrix that she could not run away as one lady was keeping watch on her was also not believed as she did not give any description or physique of the lady who used to keep an eye on her. The Investigating Officer had admitted in cross examination that he did not make any inquiry regarding the lady. Moreover, it is impossible to keep watch upon the prosecutrix because if the room would have been locked from outside, after confining her inside the room then, that lady would have been noticed by the neighbours and enquired as to what she was doing there and why the prosecutrix was confined in the room and if the door of the room was opened then prosecutrix had an ample opportunity to raise alarm and inform those persons that she was confined forcefully in the said room.

Crl. A. Nos. 295/2014 Page 19 of 22 (viii) The manner in which prosecutrix allegedly ran away also creates a doubt that she was confined. According to her, on the next day of R leaving the room she managed to escape from the said room and reached one STD booth from where she made a call to her brother-in-law Rakesh (PW2) who came and took her to his house. The STD owner was not examined to corroborate her testimony. Moreover, according to PW7 ‘R’, she was confined in the same room where ‘D’ was confined. Then, what prevented the police to recover the prosecutrix on the same day. No reason has come on record why immediately after recovery of the prosecutrix, police was not informed.

(ix) On perusal of the diary and photograph Ex.PW19/B4a to Ex.PW19/B4k and PW19/B4, it is very unlikely that the contents written in the diary can be written forcefully and the photographs of the accused with the prosecutrix also do not appear to be taken forcefully. The photographs reflect that both the accused and the prosecutrix were in deep relationship.

(x) It seems that prosecutrix had run away with the accused from her house and remained with him for such a long time and accused left her abandoned or due to the family pressures, prosecutrix has concocted this false story that accused had kidnapped her by Crl. A. Nos. 295/2014 Page 20 of 22 making her unconscious and committed rape with her. The circumstances rather suggest that prosecutrix had gone voluntarily with the accused and had sex with him voluntarily. (xi) Keeping in view the fact that she was above age of 16 years, therefore, she was capable to give consent for sex. Prosecution had failed to prove that she was kidnapped by compelling her for marriage or had illicit intercourse or that she was administered any intoxicating substance in cold drink. As such, accused was acquitted for offence under Section 363/366/376/328 IPC.

23. On careful reading of the impugned judgment and the material placed on record, including the testimony of prosecution witnesses, we find that the trial Court had given clear, cogent and convincing reason for disbelieving the testimony of prosecutrix. It cannot be said that the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. We do not find that there is any illegality, perversity or infirmity in the order passed by the learned Additional Sessions Judge. The present Criminal Leave Petition preferred by the petitioner/State to challenge the judgment 16th November, 2013, passed by learned Additional Sessions Judge-01, North Rohini, Delhi is, therefore, dismissed.

Crl. A. Nos. 295/2014 Page 21 of 22

24. It is ordered accordingly.

Copy of the judgment along with the Trial Court record be sent back forthwith.

(SUNITA GUPTA)

JUDGE

(KAILASH GAMBHIR)

JUDGE

MAY 16, 2014

rs

Crl. A. Nos. 295/2014 Page 22 of 22

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