State (NCT of Delhi) v. Shekhar

9. Further reliance can be placed on Krishan Kumar Malik vs. State of Haryana reported at (2011) 7 SCC 130, wherein the Apex Court has held that:

10. It is vital to note that if the statement of the prosecutrix fails to inspire confidence or is not worthy of credence then the same should not be the basis for conviction. The same was reiterated in Sadashiv Ramrao Hadbe v. State of Maharashtra reported at (2006) 10 SCC 92, wherein the Supreme Court held that:

11. The prosecutrix during her statement recorded under Section 164 Cr. P.C. deposed as under:- “08.04.2015 Ko Morning Me Mai School Ke Liye Nikli Thi. Wahan Raaste me se Shekhar Mujhe Auto Se Shakoorpur Le Gaya. Wahan Mujhe Do Din Rakha. Wahan Shekhar Ne Mere Sath Jabardasti Ki. Rape Kiya Tha. Jab Meri Family Ne Shekhar Ke Khilaf Report Ki To Usne Mujhe Morning Me Chor Diya. Phir Mai Wahan Se Ghar Aa Gai. Phir Mere Parents Mere Ko Thane Lekar Aaye. Mujhse Poochtach Ki Gai Aur Mujhe Hospital Le Jaya Gaya. Wahan Mera Medical Hua Tha. Wahan Se Dobara Thane Le Jaya Gaya. Wahan Se Mujhe Naari Niketan Bhej Diya. Saturday Sunday Naari Niketan Rahi. Mai Apne Parents Ke Sath Jana Chahti Hun. Bas.”

12. The prosecutrix in her testimony before the Trial Court deposed as under:- “My date of birth is 30.11.1997. I am residing with my family at the address mentioned against my name in the list of witnesses, which is owned by my father. My family consist of myself, my parents, my two sisters and one brother. Presently I am studying in class 12th from Open School. At the time of incident I was studying in class 11th and was regularly attending the school in the area of Village Nithari. Accused Shekhar, present in the court today (correctly identified by the witness through the design of wooden partition), was known to me for the last 4-5 years as he was running a small electric shop near my house. We used to talk to each other while going and coming from the school. On 07.04.2015 accused told me that he had taken a room on rent at Shakur Pur and he wanted to show me that room to which I refused to go with him. On 08.04.2015 at 7:00 am. When I was going to my school and was about to reach accused met me on the way and he seduced (apni baaton main mujhe behla fusla liya) and asked me to go roaming around but he took me to that room in an auto rickshaw and left me there and locked me inside that room. I remained alone in that room on that day. On 09.04.2015 accused came back and we got married in that room thereafter he did ‘ zabardasti’ with me against my wish.

XXXXX XXXX XXXXX XXXX On 10.04.2015 accused came to me and told me that my parents had lodged my missing report and thereafter he took me and left me outside Ambedkar Hospital, Rohini and he went away from there. I called my father from one PCO and told him about my status. My father came and took me to police station Aman Vihar. From there I was taken to SGM Hospital, Mangol Puri, Delhi where my medical examination was conducted. I did not tell anything to the Doctor at the time of my medical examination except that the physical relations between me and accused were established with my consent. Vol. As the accused was having my video I could not tell anything to the Doctor or anywhere in my statement. Thereafter I was brought to the police station where one Madam came and I was counselled. My statement was also recorded by Manisha Madam. I was not taken by the accused to any Temple which was stated by me to the police. At that time I was under pressure and I was scared….” During cross examination the prosecutrix deposed as under:- “I had a love affair with accused. I have never failed in any class. I do not know the date and year of marriage of my parents. My sister immediately younger to me is aged about 16 years and she studies in class 11th. It is correct that there is no MCD birth certificate issued in my name. At the time of my admission in school my father had not submitted any document with regard to my age. It is wrong to suggest that my father had got recorded my date of birth on the basis of estimation. I do not know whether my father had understated my age by 2 years. It is wrong to suggest that my father had understated my age by 2 years. It is further wrong to suggest that at the time of incident I was more than 18 years of age and had crossed the age of discretion. I used to talk to accused on phone occasionally. It is wrong to suggest that I had asked the accused on phone to talk to my parents about our marriage failing which he would suffer severe consequences.

XXXX XXXXX XXXX XXXX It is correct that I had not told about the accused having videographed me in my all the statements made by me before different authorities prior to today. It is wrong to suggest that my counsel, who is present outside the court had asked me to add the allegations about the videography today in court. It is wrong to suggest that I have today deposed in the matter after getting tutored by my father as well as my counsel."

13. From a plain reading of her statements recorded at various stages it is evident that there are various inconsistencies and improvements in the statements/testimonies of the prosecutrix. During her examination-in-chief, she deposed that on 08.04.2015, the accused seduced her and took her to a room in Shakarpur where he locked her, however, in her statement recorded under Section 164 Cr. P.C. she failed to mention about forceful confinement. In her examination-in-chief she deposed that on ‘On 09.04.2015 accused came back and we got married in that room thereafter he did zabardasti’, however, in her statement under Section 164 Cr. P.C. the factum of marriage has not been revealed by the prosecutrix. Further, in her testimony recorded by the Court she deposed that on 10.04.2015 she called her father who took her to the police station, however, in her statement recorded under Section 164 Cr. P.C. she stated that ‘To Usne Mujhe Morning Me Chor Diya. Phir Mai Wahan Se Ghar Aa Gai’. Moreover, during cross-examination she admitted that she was having a love affair with the accused and she had mistakenly deposed in her statement under Section 161Cr.P.C. that she married the accused in a temple.

14. The statement/testimony of the prosecutrix is also in contradiction with the testimony of PW-12, Pradeep Malik, landlord of the house where the alleged incident took place. During his examination-inchief PW-12 deposed that ‘on 10.04.2015, I came to know of the aforesaid fact. I went there and found accused shekhar and his wife present in the said room’. During cross-examination the witness deposed that ‘the wife of the accused was wearing vermilion on her forehead’. The testimony of the PW-12 completely negates the version of the prosecution that the prosecutrix was confined in a room and was raped.

15. As per school records produced by the prosecution the date of birth of the prosecutrix was 30.11.1997, however, the same was not supported by any other documentary proof. Further during crossexamination the prosecutrix as well as her mother failed to give any cogent reply to the suggestion made by the counsel for defence that the father of the prosecutrix understated the age of prosecutrix by 2 years, in the school records, which creates a doubt in the story of the prosecution that the prosecutrix was below the age of 18 years at the time of alleged incident. Infact, PW-4 Smt. Meena, (mother of the prosecutrix) during her cross-examination deposed that ‘I had not got recorded the date of births of my children with the authorities there. I had shifted to Delhi at about 12 years ago. I do know whether after coming to Delhi my husband had understated the age of prosecutrix by 2 years at the time of her admission in the school. My all the children were not studying in the village and I got all of them admitted to the school in Delhi simultaneously. After coming to Delhi I got all of them admitted in 1st Class. Al my four children were born within a gap of 6 years’.

16. MLC, Ex. PW-6/A was proved by Dr. Urmila, S.R. Gyne, SGM Hospital as per which there was no external or internal injury on the body of the prosecutrix which further negates the charges punishable under Section 376 of the IPC. The opinion of FSL expert suggests that the semen detected from the body of the prosecutrix was proved to be of the accused, however, in absence of knowledge of the exact age of the prosecutrix coupled with the fact that the record depicts that the act of sexual intercourse was consensual, the accused deserves to be given the benefit of doubt.

17. In the present case, on a cumulative reading and appreciation of the entire evidence on record, we are of the considered view that the evidence of the prosecution has been held to be unworthy of acceptance because the same is found to be replete with infirmities and found to be not supported by the testimony of any independent witness. There are considerable inconsistencies and discrepancies in the statement of the victim, which consequently make it fabricated and unreliable. According to the prosecution, the accused seduced the prosecutrix and took her in an auto and locked her inside a room in Shakarpur. The story of the prosecution seems highly improbable as for two days the prosecutrix took no steps to free herself from illegal confinement, she neither raised an alarm to gain attention of the neighbors nor took any steps to approach the police authorities. The medical evidence also does not support the case of the prosecution. Therefore, the prosecution has failed to disclose the true genesis of the crime and to establish the charges against the accused punishable under the Indian Penal Code beyond reasonable doubt.

18. It is a settled law that while deciding a leave to appeal petition filed by the State, in case two views are possible, the High Court must not grant leave, if the trial court has taken one of the plausible views, in contrast thereto in an appeal filed against acquittal. Upon re-appraisal of evidence and relevant material placed on record, in case the High Court reaches a conclusion that another view can reasonably be taken, then the view, which favours the accused, should be adopted unless the High Court arrives at a definite conclusion that the findings recorded by the trial court are perverse, the High Court would not substitute its own views on a totally different perspective.

19. Having regard to the principles laid down by the Apex Court in the case of Ghurey Lal vs. State of U.P., reported at 2008 (10) SCC 450, we do not find that there is any illegality or perversity in the reasoning given in the impugned judgment. The learned trial court has taken a holistic view in the matter and carefully analysed the evidence of all the witnesses.

20. Accordingly, no grounds to interfere with the impugned judgment are made out and the leave to appeal is dismissed.

SANGITA DHINGRA SEHGAL, J MANMOHAN, J OCTOBER 31, 2019 gr