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State vs Rehan @ Mohd. Wazid on 21 January, 2020

$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 68/2020

STATE ….. Petitioner
Through: Ms. Aashaa Tiwari, APP for the State
with Inspector Pawan Kumar, SI
[
Vipin Teotia, PS Khajuri Khas.
versus

REHAN @ MOHD. WAZID ….. Respondent
Through: None.

% Date of Decision: 21st January, 2020.

CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

JUDGMENT

MANMOHAN, J: (Oral)

Crl.M.A. 1210/2020
Allowed, subject to all just exceptions.

Accordingly, present application stands disposed of.
Crl.M.A.1209/2020
Keeping in view the averments in the application, the delay of 58 days
in filing the present petition is allowed.

Accordingly, present application stands disposed of.
CRL.L.P. 68/2020

1. Present criminal leave petition has been filed on behalf of the State
challenging the judgement dated 1st August, 2019 passed by Judge, Special

CRL. L.P. 68/2020 Page 1 of 6
Court (POCSO Act), Additional Sessions Judge-01, North-East,
Karkardooma Courts, Delhi arising out of FIR No. 226/2017 registered with
Police Station Khajuri Khas, Delhi acquitting the respondent-accused under
Sections 363/366/376 IPC and Section 4 of Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act”).

2. Brief facts of the present case, as noted in the impugned judgment, are
reproduced hereinbelow:-

“Brief facts as per the case of the prosecution are, that on
18.05.2017, complainant Mohd. A went to the police station and
lodged a complaint of his daughter/victim S aged about 17 years
03 months being missing. He alleged that on 16.05.2017 at about
05.00 p.m., his daughter had left home without informing anyone
and thereafter, she did not return. He suspected that some
unknown person had enticed his daughter and had taken her
away. On these allegations, the present FIR u/s 363 IPC was
registered.

2. During investigation, on 19.05.2017, one Salman Ansari
had informed SI Bishambhar that he was a friend of victim and
victim had called him at Dilshad Garden Metro Station.
Thereafter, SI Bishambhar alongwith WCt. Ritu went at Dilshad
Garden Metro station from where victim was recovered. Victim
was counseled and she alleged that when accused Rehan had
abandoned her, she made a call to Salman for her help. Victim
was medically examined. Victim alleged that Rehan had done
wrong acts with her. Thereafter, sections 376 IPC and 4 POCSO
Act were added. Thereafter, statement of victim u/s 164 Cr.P.C.
was recorded. Thereafter, on 23.05.2017, at the instance of
victim and her mother, accused was arrested from gate no. 7,
GTB Hospital. After completion of investigation, charge sheet
was filed against the accused.

3. On 23.09.2017, charge u/s 363/366 IPC, u/s 376 IPC and
u/s 4 POCSO Act was framed against accused to which he
pleaded not guilty and claimed trial.”

CRL. L.P. 68/2020 Page 2 of 6

4. The findings of the Trial Court are reproduced hereinbelow:-

“51. In view of my above discussions, I find that first of all, the
victim has not been found to be a credible witness due to the fact
that she claims to have been raped by the accused in Shalimar
Hotel whereas as per the prosecution’s own case, she had been
found to be staying alone in one Sharda Hotel, which the victim
had categorically denied. Secondly, the prosecution had had
opportunities to find the independent witnesses to verify the claim
of the victim with regard to the fact that she was with the accused
but the prosecution did not do so. Thirdly, the prosecution did
not collect any telephone records of either of the victim or of the
accused to establish any connection between the victim and the
accused during this period. Fourthly, the victim was not
recovered from the accused or at the instance of the accused but
was recovered with the help of one Salman. At the same time, the
role of the IO in this recovery seems to be under a cloud of
suspicion. I accordingly find that due to these serious doubts, the
prosecution has failed to prove its case beyond reasonable
doubts. Accused is thus entitled to benefit of doubt. The accused
is accordingly acquitted of all the charges framed against him.
His bail bond stands cancelled. Surety stands discharged. File be
consigned to record room.”

5. Ms. Aashaa Tiwari, learned APP for the State contends that the
prosecutrix had „by and large‟ supported the case of the prosecution and had
specifically named the respondent-accused in her statements. She states that
the Trial Court had failed to appreciate that even though the prosecutrix had
mistakenly named the wrong hotel, yet in view of the MLC of the
prosecutrix which mentions that the hymen was freshly torn, it could be
inferred that the prosecutrix was not alone in the hotel. She lastly submits
that the sole testimony of the prosecutrix can be relied upon to convict the
respondent-accused.

CRL. L.P. 68/2020 Page 3 of 6

6. Having heard the learned APP for the State and having perused the
paperbook, this Court is of the opinion that the prosecutrix is the most
material witness in the present case. However, her testimony does not
inspire confidence as it is in direct conflict with the case put forth by the
prosecution. Firstly, the place of incident i.e. „Hotel Shalimar‟ as told by the
prosecutrix was not found to be in existence. Secondly, the prosecutrix had
categorically denied staying at „Sharda Hotel‟ – contrary to the
prosecution‟s case and evidence on record. Thirdly, the manner in which the
prosecutrix states to have been recovered is contrary to the prosecution‟s
case.

7. No independent witness has been examined by the prosecution to
corroborate the story of the prosecutrix. Neither Salman (who helped the
police to recover the prosecutrix), nor Mehrunisha (with whom the
prosecutrix had allegedly stayed the intervening night of 17 th -18th May,
2017) or the sister of respondent-accused (with whom the prosecutrix had
allegedly stayed the intervening night of 18 th -19th May, 2017) had been
examined to establish that respondent-accused was present with the
prosecutrix. Consequently, in absence of any evidence corroborating the
testimony of the prosecutrix, the same cannot be relied upon to convict the
respondent-accused as it is full of contradictions.

8. It is also an admitted fact that when the prosecutrix had left her house
of her own volition she was in possession of a mobile phone; yet she did not
contact her parents. Even the mother of the prosecutrix had deposed that she
had not contacted her daughter/prosecutrix, despite being aware that the
prosecutrix had a phone. The relevant portion of the testimony of the mother
of the prosecutrix (PW-2) is reproduced hereinbelow:-

CRL. L.P. 68/2020 Page 4 of 6

“……The victim had a mobile phone. I do not remember
the number of that mobile phone. We did not make any call on
the mobile of the victim to know her whereabouts. We had made
a call to Salman and he said that he did not know about the
victim.”

9. The receptionist of „Sharda Hotel‟ – Mr. Ravi (PW-14) had
specifically deposed that the prosecutrix was not accompanied by anyone,
when she stayed the night at „Sharda Hotel‟ on 16 th May, 2017. The relevant
portion of his testimony is reproduced hereinbelow:-

“….Whenever a man and woman or a girl and a boy together
come to take a room on rent, we obtain the identity of both those
persons and the guest register reflects that there were more than
one person in that room. I was not present in the hotel on that day,
but as per our practice from entry 685 I can say that on that day
the guest i.e. the victim was not accompanied by anyone. I was
also not present at that time when the guest had checked out.”

10. This Court is of the view that the aforesaid facts and circumstances
cast a shadow of doubt on the case of the prosecution.

11. Further, in the opinion of this Court, the prosecution has failed to
connect the respondent-accused to the present case inasmuch as no evidence
has been brought on record to establish that he was with the prosecutrix on
the date of the incident or thereafter.

12. Consequently, despite the medical evidence confirming that the
hymen of the prosecutrix had been freshly torn, there is no evidence to link
the respondent-accused with the incident.

13. Accordingly, this Court is in agreement with the finding of the Trial
Court that the prosecution has failed to establish the case against respondent-
accused beyond reasonable doubt and he is entitled to benefit of doubt.

CRL. L.P. 68/2020 Page 5 of 6

14. Consequently, the present leave petition, being bereft of merit, is
dismissed.

MANMOHAN, J

SANGITA DHINGRA SEHGAL, J
JANUARY 21, 2020
KA

CRL. L.P. 68/2020 Page 6 of 6

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