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State vs Soniya & Anr. on 27 November, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 596/2019
STATE ….. Petitioner
Through: Ms. Aashaa Tiwari, APP for the State.

versus

SONIYA ANR. ….. Respondents
Through: None.

Reserved on : 20th November, 2019
% Date of Decision : 27th November, 2019

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

JUDGMENT

MANMOHAN, J:

CRL. M.A. 39677/2019
Keeping in view the averments in the application, the delay in filing
the criminal leave petition is condoned.

Accordingly, the application stands disposed of.
CRL.L.P. 596/2019

1. Present criminal leave petition has been filed on behalf of the State
challenging the judgment dated 11th July, 2019 passed by Additional
Sessions Judge-01 (POCSO), Shadara District, Karkardooma Courts, Delhi
acquitting the accused in FIR No. 173/2013 registered with Police Station
Harsh Vihar, Delhi under Section 323/Section328/Section346/Section363/Section376/Section109/Section120-B IPC,

CRL. L.P. 596/2019 Page 1 of 9
Section 4 of Protection of Children from Sexual Offences Act, 2012 and
Sections 3/Section4/Section5 of Immoral Traffic (Prevention) Act, 1956.

BRIEF FACTS

2. The relevant facts as noted by the Trial Court are as under:-

“3) In brief the prosecution case is that initially present case
was registered on 07.10.2013 for offence punishable u/s 363 SectionIPC
on the statement of father of victim that his minor victim daughter
aged about 15 years (name withheld) went missing since
04.10.2013 at about 6:00 p.m. All necessary efforts were made to
trace the victim. On 30.11.2013 victim appeared before the police
alongwith her family members and made statement. On the same
day, she was got medically examined, however she had refused for
her internal medical examination. Thereafter she was admitted to
Ashram. On 02.12.2013, her statement was got record u/s 164
SectionCr.PC from Ld. Metropolitan Magistrate concerned wherein she
had levelled allegations regarding kidnapping and other heinous
offense against her sister-in-law Soniya and tenant Satish s/o
Mohar Singh. On the direction of Chairman, CWC, victim was re-
medically examined and exhibits were seized. After discussing the
case with senior police officers, offences punishable u/s
323/328/346/376/109/120B SectionIPC, 4 POCSO Act and 3/4/5 ITP Act
have been added. Further investigation has been carried out by
Inspector/SHO. On 08.12.2013, accused Smt. Soniya was arrested
from her maternal home. Accused Satish Kumar was arrested
from Mandoli Chungi at the instance of secret informer. Accused
Satish was got medically examined and exhibits were seized.
Exhibits were got deposited with FSL and Result is awaited. It is
also mentioned that during investigation call details record of
mobile number of both accused were obtained, and on checking it
is revealed that there was no conversation between both of
accused. After completion of the investigation, chargesheet has
been filed.

4) Subsequently FSL Result was filed. As per same, since
semen could not be detected on the exhibits of victim, DNA
examination was not done.

CRL. L.P. 596/2019 Page 2 of 9

Charge

5) After supplying necessary copies to the accused, My Ld.
Predecessor vide order dated 19.05.2014 charged the accused
Soniya for offence punishable u/s 120B SectionIPC and 342/376/109 SectionIPC
r/s S. 4 5 of ITP Act, to which she pleaded not guilty and
claimed trial. Accused Satish Kumar was charged for offence
punishable u/s 120-B SectionIPC and 328.346.363/376 SectionIPC and 4
POCSO Act, to which he also pleaded not guilty and claimed
trial.”

3. The Trial Court by way of its impugned judgment acquitted the sister-
in-law-respondent no. 1 and Satish-respondent no. 2. The relevant portion
of the impugned order is reproduced hereinbelow:-

“45. Firstly coming to the role of the accused
Soniya……Victim had in fact went missing on 04.10.2013 as per
complaint of her father and not after 2/3 days of Raksha
Bandhan. Therefore said incident is falsely stated. Victim had
not stated about sexual intercourse when initially she was
examined by the doctor on her recovery and stated that she was
raped in her own house on 03.11.2013 when she was examined
after she gave statement u/s 164 Cr. P.C. Therefore version of
the victim is false that rape was committed upon her on the day
of Raksha Bandhan…..It is quite unbelievable that wife of
brother of victim i.e. Soniya would remain at her in-laws house
and sent her husband to give rakhi on her behalf to her brother.
The house of parents of accused Soniya is also not far from her
in-laws’ house…….The version of the incident of rape on the
day of Raksha Bandhan is concocted which also find credence
from the matrimonial dispute going on in between brother of
victim and her wife i.e. (accused Soniya) which resulted in
settlement on 18.1.2018 at Mediation Cell and culminated in
separation/divorce, as per her defence.

46……As per statement of victim u/s 164 Cr. PC that 2/3 days
after Raksha Bandhan when she was sent to bring cream, she
was kidnapped. However, when she was examined in the court

CRL. L.P. 596/2019 Page 3 of 9
she stated that it was 4th day of the month (first day of Navratra,
prior to Dushhra) in the year 2013. Both version cannot co-
exist. In fact she went missing from 04.10.2013 as per missing
complaint. Therefore there are inconsistency between victim
and other witnesses.

47. Victim has also stated about taking money from the
accused. She categorically admitted that it was accused who
told her about the same. She herself has not seen.

48. Now coming to prosecution case regarding accused
Satish………When she was confronted that when police persons
or public persons were present at railway station as to why she
did not seek help from them, she stated that it was a mistake but
she could not give any reason as to why she did not invite
attention of any public person. Thereafter she stated that both
of them used to love each other and she admitted that she was
stayed with the accused voluntarily out of her own wish. She
also admitted that chacha of accused Satish informed her
parents. She further admitted that accused Satish never gave
her any beatings. It is true version that victim had herself went
with the accused and story of kidnapping is false, which further
finds support from CDR where there were no calls made by
accused Soniya to Satish.

xxxx xxxx xxxx xxxx

51. The victim had also concealed in her statement u/s 164
SectionCr.PC that accused had taken her for court marriage to Etah
Mainpuri Court which she had stated when she was again
medically examined…..

xxxx xxxx xxxx xxxx

53. As regards accused Satish, there is no taking as victim
had herself gone with the accused and left her home voluntarily.
As regards incident of rape/sexual intercourse, victim had
refused for her internal medical examination and in view of
inconsistencies, the accused Satish is entitled to acquittal.”

(emphasis supplied)

CRL. L.P. 596/2019 Page 4 of 9
ARGUMENTS ON BEHALF OF THE PROSECUTION

4. Ms. Aashaa Tiwari, learned APP for the State contended that the
prosecutrix is a child as she was only 14 years on the date of incident. She
pointed out that the prosecutrix had informed the doctor during her second
MLC dated 05th December, 2013 that she had been raped by respondent
no.2-Satish in her own house on 03rd November, 2013 and subsequently on a
number of occasions in the last two months. Upon the statement of
prosecutrix, the Doctor while preparing the MLC had recorded ‘History of
full penetration present.’ The Doctor in the MLC had also recorded a finding
that the prosecutrix’s hymen was ruptured.

5. Learned APP for the State submitted that the Trial Court failed to
appreciate that the respondent-accused can be convicted on the sole
testimony of the prosecutrix if it inspires confidence and if it is found
reliable. She further submitted that there is presumption under Sections 29
and 30 of POCSO Act against the respondent-accused and it is for the
respondent-accused to prove to the contrary.

CASE OF PROSECUTRIX/PROSECUTION

6. This Court finds that the case of the prosecution is that prosecutrix’s
sister-in-law – respondent no.1-Soniya was in conspiracy with the accused –
respondent no.2-Satish inasmuch as the statement of the prosecutrix was that
respondent no.1-Soniya not only took money from the respondent/tenant –
respondent no.2-Satish for facilitating the prosecutrix’s first rape on
Rakshabandhan but she was also instrumental in getting the prosecutrix
kidnapped two-three days later inasmuch as respondent no.1-Soniya after
sending the prosecutrix to the market to buy a Betnovate Cream had

CRL. L.P. 596/2019 Page 5 of 9
simultaneously informed respondent no.2-Satish about the location of the
prosecutrix.

COURT’S REASONING

THE EVIDENCE GIVEN BY THE PROSECUTRIX IS NEITHER RELIABLE
NOR INSPIRES ANY CONFIDENCE. THE MEDICAL EVIDENCE ON
RECORD DOES NOT CONNECT THE RESPONDENT NO.2-SATISH
WITH THE ALLEGED CRIME.

7. As far as the allegation that prosecutrix’s sister-in-law – respondent
no.1-Soniya facilitated kidnapping of the prosecutrix, this Court finds that
the prosecutrix in her cross-examination had admitted that she loved
respondent no.2-Satish and had voluntarily stayed with him. The prosecutrix
had also admitted in her cross-examination that it was a mistake on her part
not to raise any alarm or invite the attention of the public even when
respondent no.2-Satish took her to public places like railway station. The
relevant portion of the cross-examination of the prosecutrix is reproduced
hereinbelow:-

“Court Q. Why you did not help for police persons or
public persons at railway station while you were sexually
assaulted and detained for two months?

Ans. It was a mistake but I cannot give any reason as to why
I did not invite attention of any public person.

At this stage, the prosecutrix states that both of us used
to love each other. It is also correct that I was stayed with
the accused voluntarily out of my own wish.”

(emphasis supplied)

8. The Trial Court had also correctly found that there was a material
contradiction in the statement of the prosecutrix with regard to the date of

CRL. L.P. 596/2019 Page 6 of 9
kidnapping. It is pertinent to mention that the prosecutrix in her statement
recorded under Section 164 Cr.P.C had stated that two-three days after
Rakshabandhan when she was sent to the market to purchase Betnovate
Cream, she was kidnapped. However, when she was examined in Court, she
had stated that she was kidnapped on the fourth day of the month (first day
of Navratra, prior to Dussehra) in the year 2013. Since the prosecutrix is
supposed to have gone missing from 04th October, 2013 as per the missing
complaint, her kidnapping two-three days after Rakshabandhan (date of first
alleged rape) is a falsehood.

9. The prosecutrix in her cross-examination has also admitted that she
had not seen the respondent no.2-Satish paying any money to respondent
no.1-Soniya. The relevant portion of the examination-in-chief and cross-
examination of the prosecutrix on this aspect is reproduced hereinbelow:-

“I had told the police to my statement it was day of
Rakshabandhan of the year 2013, my parents had gone to the
hospital to see my injured brother and my bhabhi asked me to
bring match box from the room as she was preparing tea. As
soon as I entered the room my Bhabhi (accused Soniya)
bolted the door from outside. I found accused Satish inside
the room. Accused Satish developed physical relation with
me against my wishes. I raised noise but no one heard the
same. It is correct that I had told the police that after the
accused did wrong act with me, co-accused Soniya opened
the door and then Satish paid Rs. 500/- to her. It is correct
that I had told the police that when I protested to my Bhabhi
as to why she did it to me and I had lost my respect to which
she replied that she will back my respect.”

xxx xxx xxxx

“It is correct that I myself had not seen Satish having given
Rs.500/- by accused Soniya. Accused Satish had told the

CRL. L.P. 596/2019 Page 7 of 9
same after some days of the rape. It is correct that I was in
talking terms with Satish even after the rape. Again said he
used to force me to talk.”

(emphasis supplied)

10. Consequently, the evidence given by the prosecutrix is neither reliable
nor inspires any confidence.

11. It is pertinent to mention that the prosecutrix had initially refused her
medical examination on 30th November, 2013 and it was only during her
second MLC on 05th December, 2013 that the Doctor had recorded that her
hymen was ruptured. However, the medical evidence on record does not
connect the respondent no.2-Satish with the alleged crime.

THE FACT THAT THERE WAS A MATRIMONIAL DISCORD BETWEEN
RESPONDENT NO.1-SONIYA (SISTER-IN-LAW) AND PROSECUTRIX’S
BROTHER COUPLED WITH THE MATERIAL CONTRADICTIONS IN
HER EVIDENCE LEAVES THIS COURT IN NO DOUBT THAT THE
PROSECUTRIX HAD DEPOSED WITH THE INTENT TO FRAME HER
SISTER-IN-LAW/RESPONDENT NO.1-SONIYA IN THIS CASE.

12. The Trial Court has also pointed out that there was a matrimonial
dispute between the sister-in-law/respondent no.1-Soniya and brother of the
prosecutrix, which culminated in a mediated settlement on 18 th January,
2018 by way of a divorce/separation.

13. The aforesaid fact of matrimonial discord between respondent no.1-
Soniya and prosecutrix’s brother coupled with the material contradictions in
her evidence leaves this Court in no doubt that the prosecutrix had deposed
falsely and with the intent to frame her sister-in-law/respondent no.1-Soniya
in this case.

CRL. L.P. 596/2019 Page 8 of 9

14. Consequently, this Court is of the view that it would neither be fair
nor reasonable to convict either the respondent no.1-Soniya or respondent
no.2-Satish on the sole testimony of the prosecutrix, which had been
wavering and was not consistent.

15. It is also settled law that any acquittal order cannot be lightly
interfered with by the Appellate Court, though it has wide powers to review
the evidence and to come to its own conclusion. The power to grant leave
must be exercised with care and caution because the presumption of
innocence is further strengthened by the acquittal of an accused. [See:
SectionGhurey Lal vs. State of Uttar Pradesh, (2008) 10 SCC 450].

16. In view of the above, the present leave petition, being bereft of merit,
is dismissed.

MANMOHAN, J

SANGITA DHINGRA SEHGAL, J
NOVEMBER 27, 2019
KA

CRL. L.P. 596/2019 Page 9 of 9

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