DELHI HIGH COURT
Sangita Dhingra Sehgal, J.
State (NCT of Delhi) and Anr. —Petitioners
versus
Munna @ Rikas and Anr. —Respondents
Crl.L.P.20 of 2016 and Crl.A.957 of 2015
Decided on 13.10.2017

IMPORTANT POINT
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.

Headnote:Indian Penal Code, 1860—Sections 376(2)(e), 344 and 506—Appellant convicted for offence under but acquitted of offences under Sections 366, 372/511/34 IPC and co-accused acquitted of all charges—Appeal by accused and state appeal against acquittal—Prosecution, a young girl had reached Railway Station Delhi about 5-6 months ago and accused took her on a pretext to get a job for her—Accused-appellant took her to various places, kept her with him and continued to commit rape on her—Trial Court found that age of prosecutrix was between 16-18 as opined on basis of bone and wrist ex-ray but sexual intercourse wih her was without her consent and will—Appeal—Prosecution failed to prove age of prosecutrix by unimpeachable document and no illegality in findings reashed by trial court on that point—Though there were number of inconsistencies and contradictious in statements of prosecutrix recorded at different stages, her statement regarding offences against her was consistent throughout—Defence taken by accused that prosecutrix had consensual sexual relationship with accused, she being silent about incident, was unacceptable—Mere silence could not be taken as proof of consensual sexual relations when she stated that she was being threatened—Conviction called for no interference—Acquittal for other offences and acquittal of other accused also called for no interference.

       Held: During her cross examination, the prosecutrix/PW1 denied that her mother had expired, her father had remarried, she came to Delhi willingly 5-6 months ago and she ever met an old man at the Old Delhi Railway Station, however, she admitted to being taken to Panipat, raped there by accused Munna@Rikas, she was threatened by the accused so as to prevent her from running away, the accused thereafter took her to an unknown place and raped her after administering to her some intoxicating tablets. PW1 further admitted that in Noida she was kept at the house of co-accused Suman Kumar who used to keep a watch on her and did not allow her to leave; she admitted that when she was brought to the flat at Shastri Nagar, Delhi the accused Munna@Rikas raped her in the absence of co-accused Suman Kumar and when he again tried to rape her in the presence of the co-accused, the prosecutrix started crying and that after some heated arguments, Suman left the room and called the police, who reached and apprehended the accused. During her cross-examination she denied that she was residing with the accused of her own will.

       After careful analysis of the testimonies of the prosecutrix (PW1), it appears that there are number of inconsistencies and contradictions in her statements recorded at different stages, however, her statement regarding the offences against her was consistent throughout. There are doubts as to how the prosecutrix reached Delhi and it is not clear whether she came to Delhi willingly after discord with her step mother or was abducted from outside her school. Thus, the Trial Court is correct in holding that the prosecution could not prove beyond reasonable doubt that the accused persons had kidnapped the prosecutrix.

       Further, the MLC report and the FSL report clearly point towards the factum of sexual intercourse between the respondent No. 1 and the prosecutix. However, as per the FSL report, the prosecutrix was subjected to sexual intercourse a few hours before she was discovered by the police which goes to show rape was committed on the prosecutrix. The defence taken by the accused that the prosecutrix had consensual sexual relations with him which is pointed out from her silence about the incident, holds no ground as mere silence cannot be taken as proof of consensual sexual relations as she has also stated that she was being threatened by the accused. Thus, any act of sexual intercourse in the absence of consent would amount to an act of rape.

       Further, to my mind, the prosecution miserably failed to adduce any iota of evidence to show that the accused persons ever intended to sell the prosecutrix for the purpose of prostitution.

       The contention of the prosecution that respondent No.2/Suman Kumar called the police only after he had an argument with respondent No.1/Munna@Rikas does not prove that he had common intention with respondent No.1/Muuna@Rikas for the offences that he committed against the prosecutrix. (Paras 24 to 28)

       Result: Appeals dismissed.