Single-judge Division held that prosecution case failed to inspire belief. Post-incident contact, lack of immediate medical examination, and compounding at sentencing stage indicated consensual relations. Appeal against rape conviction allowed.
Conviction and sentence under Section 376 IPC set aside; bail bond discharged; trial court record remitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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*** IN THE HIGH COURT OF DELHI AT NEW DELHI**
RESERVED ON : AUGUST 05, 2015 DECIDED ON : NOVEMBER 05, 2015
RAGHUVINDER HARNA ..... Appellant Through : Mr.K.K.Sud, Sr.Advocate with Mr.Subhash Chandra Sagar, Advocate. versus
STATE OF NCT OF DELHI ..... Respondent Through : Mr.Navin K.Jha, APP for the State. Mr.Gaurav Kumar Singh, Advocate for R2 & R3.
CORAM: HON’BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
the instant appeal has been preferred by him. By an order dated
Crl.A.1177/2011 Page 1 of 16
24.08.2011, he was sentenced to undergo Rigorous Imprisonment for seven years with fine `1,00,000/-.
Crl.A.1177/2011 Page 2 of 16
the appellant was acquitted of the charge under Section 506 IPC and the State did not challenge the said acquittal.
Crl.A.1177/2011 Page 3 of 16
Duty Officer to depute PW-9 (WASI Manisha Sharma) to carry out further investigation. She immediately went to the spot and took the Crl.A.1177/2011 Page 4 of 16
prosecutrix for medical examination at BJRM hospital. After recording victim’s statement (Ex.PW-5/A) on 07.12.2009, she lodged the instant FIR. The appellant was implicated for sexual assault upon the prosecutrix in the absence of her husband and children. It is pertinent to mention that
‘X’ and her husband had made call at 100 to PCR from Mobile No.9717410977 to the effect ‘Ek Ladke Ne 03.12.2009 Ko Mera Rape Kiya Tha, Police Bhejen’. It further records that ‘X’ had informed that on 13.11.2009 her husband’s friend had raped her after mixing ‘something’ in tea.
nephew’s death, she did not muster courage to apprise her predicament to her husband. In her Court statement as PW-5, she improved the version and gave a different and inconsistent reason for not informing her husband about the rape incident. She disclosed that the appellant had threatened to kill her entire family if she informed the incident to her husband. Only on 06.12.2009 while taking tea with her husband at 7:00 a.m., she informed him about the entire incident. Since she was under heavy ‘depression’, her husband called few relatives to have consultation and thereafter they decided to make a PCR call. Her husband dialed 100 and she spoke to the officer. Thereafter, her husband had a talk with him. She elaborated that her nephew had attempted to commit suicide and was on ventilator since 10.11.2009 as a result of which there was a lot of tension at home. She was in a state of depression on his death on 15.11.2009. Finding herself in depression when her husband enquired on 06.12.2009, she divulged the entire incident to him. PW-3 (Balbir Singh) too deposed that after finding ‘X’ in constant depression, he enquired for its reasons. He tried to console ‘X’ thinking that she was in depression on account of his nephew’s death. On that, ‘X’ disclosed the entire incident as to how after
his departure to office on 13.11.2009, the appellant had committed rape
upon her taking advantage of her loneliness in the house.
Crl.A.1177/2011 Page 6 of 16
“ The FIR in criminal case is vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information
Crl.A.1177/2011 Page 7 of 16
regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant’s version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question.”
the appellant and her husband were friends for the last about 14/15 years. The appellant had visiting terms at their residence. In August, 2009, after his transfer from Kolkata to Delhi, the appellant had visited her husband in the Bank to get a suitable rented accommodation in Delhi as he wanted to shift along with his family. She further disclosed that after August 2009, the appellant had visited them at her house twice or thrice also. On 12.11.2009 the appellant stayed overnight. On 13.11.2009 at around 08.30 a.m. after her husband left for duty, he stayed back on the pretext to meet one or two individuals to whom he had asked to arrange rented accommodation. At around 09:00 a.m. she served breakfast to the appellant. He asked her to bring her breakfast there. After taking breakfast, when she was picking utensils, the accused caught hold of her
Crl.A.1177/2011 Page 8 of 16
forcibly by hand; made her to fall on the bed and subjected her to rape against against wishes forcibly. In her initial version (Ex.PW-5/A), the prosecutrix did not claim if the accused had administered ‘something’ in tea and had sexually assaulted her thereafter. She did not disclose if any ‘resistance’ was offered by her that time or she suffered any injury, whatsoever, on her body including private parties due to forcible rape. ‘X’ did not get herself medically examined immediately. Only on 06.12.2009 PW-4 (Dr.Anjali Vaish) medically examined her vide MLC Ex.PW-4/A at BJRM hospital. No visible old/fresh external injuries were seen over external genitalia. Apparently, the prosecutrix had not sustained any violent injury marks over her body to infer commission of forcible rape. 11. In her 164 Cr.P.C. statement (Ex.PW-5/C), the prosecutrix reiterated her version given to the police adding that when she attempted to cry, the accused closed her mouth. She hurled several abuses and threatened him to disclose the incident to her husband. On that, she was criminally intimidated by the appellant. Non-disclosure of such a horrible incident to her husband and other family members due to fear has no substance as the appellant was not armed with any weapon to cause real apprehension in her mind. The Trial Court did not believe her version regarding criminal intimidation and acquitted the appellant of the said Crl.A.1177/2011 Page 9 of 16
charge. Obviously, the prosecutrix was under no fear or apprehension not to raise alarm or hue and cry at the time of incident or soon after his departure from the house. There were two land-line telephones installed in the victim’s house that time. She did not inform the police or her husband on duty at his office. She remained silent/mum for number of days. She did not convey an information to the security guards available in the said colony. The appellant was conveniently allowed to go without any demur. X’s post event conduct is unnatural.
In her Court statement, PW-5 (‘X’) disclosed that after having breakfast with the appellant, when she was clearing the utensils, the accused caught hold of her hand. She made unsuccessful attempt to get herself released from him but he forcibly committed rape upon her. After the incident, when she expressed her intention to inform her husband, the accused criminally intimidated her telling that nothing would happen and these things were very common. She asked the accused to leave the house immediately. In the cross-examination, she informed that a maid used to visit their house at 07:40 or 8:00 a.m. to work for half an
hour; the accused had stayed overnight at their house on one or two occasions earlier also. She denied that accused’s stay with them on the
night intervening 14/15.11.2009 for celebration of his birthday. She Crl.A.1177/2011 Page 10 of 16
expressed ignorance if greeting card (Ex.PW-5/DX-1) was given by her daughter to him on his birthday. She admitted to have made several telephone calls to the accused after the said incident. She reasoned that it was under compulsion and she had warrned the appellant not to dare to visit them. She voluntarily added that on 13.11.2009 she had called the accused on mobile and had warned him not to come to her house. She denied the suggestion that she was making regular telephone calls to the accused. She, however, voluntarily admitted that she had made couple of calls to the accused not to come to the house after the incident. She was unable to tell as to when and for what duration telephone calls were made by her to the accused. It is pertinent to note that at no stage of investigation/trial the prosecutrix herself revealed to have made telephone calls to the appellant after the incident. In the cross-examination, she was evasive to inform as to when and for what duration, various telephone calls were made by her to him. She had no occasion to be in touch with the appellant and his family after the alleged rape incident merely to prevent him not to visit her house. Call details pertaining to appellant’s mobile 9560074499 were collected by the Investigating Officer during
investigation. However, for the reasons best known to her, these call details were not relied on and placed on judicial file. When PW-9 (W/ASI Crl.A.1177/2011 Page 11 of 16
Manisha Sharma), the Investigating Officer was confronted in the crossexamination about it, she admitted that call details running into 27 pages (Ex.PW-9/DX1) were collected. These were taken on judicial file after taking it out from the police file. The prosecutrix admitted that there were two land-line telephone Nos.27498090 and 27498394 installed at her residence but their call details were not collected during investigation. Perusal of call details record (Ex.PW-9/DX1) reflects that the prosecutrix and the appellant were in touch till 28.11.2009. After the alleged incident, 15 calls were exchanged out of which ten were made by the prosecutrix to the appellant while he made five calls to her. Telephone conversation on 19.11.2009 was for more than 27 minutes. She had conversation with the appellant’s wife on 02.12.2009 at landline No.3324219577 at his Kolkata residence. ‘X’ did not apprise her husband any time about making such telephone calls to the appellant or his family. Apparently, an attempt was made by the prosecutrix to suppress the vital information. The investigation conducted is not upto the mark. The Investigating Officer did not examine any security guard or seized Visitors’ Register to verify as to on what specific dates the appellant used to visit the proecutrix; no witness from the locality was examined. The Investigating Officer did not collect any document to show as to when victim’s nephew had expired Crl.A.1177/2011 Page 12 of 16
and when the body was brought to Delhi. FSL reports (Ex.PW-6/A and 6B) do not connect the appellant with the crime. PW-3(Balbir Singh) made feeble attempt to corroborate ‘X’s version but made vital improvements in his deposition before the court for which he was duly confronted. PW-3 (Balbir Singh) failed to offer any reason not disclosing these vital facts in his 161 Cr.P.C. statement (Ex.PW-3/DX-1).
ulterior motive to implicate the appellant to have physical relations with her after a gap of about 23 days. It seems that after the victim’s husband senses something ‘amiss’ and suspected extra-marital relationship between the two, ‘X’ was forced to lodge complaint against the appellant. She had no occasion to falsely claim to have physical relations with the appellant to have reflection on her own chastity. Inference can be drawn that physical relations on 13.11.2009 were the outcome of free consent of the appellant and the prosecutrix and she was a willing and consenting party. Obviously, it did not attract Section 376 IPC.
on behalf of both the parties informing the court that they would move
this Court for quashing of the FIR. Prayer was made to pass sentence
order subject to the quashing petition which the parties intended to move Crl.A.1177/2011 Page 14 of 16
before the High Court. Considering the said submissions whereby compromise was arrived at between the parties at the stage of sentence, the appellant was awarded RI for seven years with fine 1,00,000/subject to the outcome of quashing petition. Fine amount of 1,00,000/was ordered to be given to the prosecutrix as compensation under Section 357 Cr.P.C. These developments lend credence to the appellant’s contention that physical relations were consensual. The victim had agreed to exonerate the appellant. Needless to say, appellant’s conduct even to have physical relations with ‘X’ with consent was unpardonable as he not only betrayed victim’s husband who reposed utmost trust upon him but also his wife and children. He was well aware that physical relations with his friend’s wife would amount to commission of offence of ‘adultery’ under Section 497 IPC underlying object of which is to secure purity and sanctity of marriage by penalizing conjugal infidelity.
Crl.A.1177/2011 Page 15 of 16
of the order. Copy of the judgment be sent to the Superintendent Jail for
information.
(S.P.GARG) JUDGE
NOVEMBER 05, 2015/ sa
Crl.A.1177/2011 Page 16 of 16
3 issues framed by the court
Whether the conviction under Section 376 IPC can be sustained when contended physical relations were consensual.
Whether substantial delay in lodging FIR without satisfactory explanation vitiates reliability of prosecutrix's version.
Whether continued post-incident contact between parties negates claim of rape.
Colour shows how this judgement treated each authority
Jail Prakash Singh v. State of Bihar & Anr.Referred¶31
Jail Prakash Singh v.State of Bihar & Anr. 2012 CRI.L.J.2101 · Who else cites this
RAGHUVINDER HARNA
STATE OF NCT OF DELHI
S.P.GARG
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
