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2019 Supreme(Del) 1448
IN THE HIGH COURT OF DELHI
Manmohan, Sangita Dhingra Sehgal, JJ.
Rachna Singh - Appellant
Vs.
State And Ors. - Respondents
Crl. A. 626/2019 and Crl. M.As. 10219-10221/2019
Decided On : 13-05-2019
For the Appellant :Simran Sadyora and Sanjeev Bhatia, Advocates
For the Respondent: Aashaa Tiwari, APP. and Vishvendra, SI
The central legal point established in the judgment is the requirement to prove the factum of sexual intercourse for the presumption of absence of consent to be attracted, and the significance of the reliability of the testimony in cases of sexual offences.
Headnote:
Presumption of absence of consent - Criminal Appeal - Indian Penal Code, 1860 - Section 328, Section 376(2)(n), Section 343, Section 506 - Indian Evidence Act, 1872 - Section 114A
Fact of the Case:
The appellant-prosecutrix challenged the acquittal of the accused-respondent no. 2 from charges under Section 328, Section 376(2)(n), Section 343, Section 506 of the Indian Penal Code, 1860. The appellant argued that the presumption of absence of consent under Section 114A of the Indian Evidence Act, 1872 should have shifted the onus to the accused.
Finding of the Court:
The Court found the testimony of the appellant-prosecutrix to be unreliable and untrustworthy, citing various contradictions and lacunae in her statements and actions. It concluded that the factum of sexual intercourse was not proved, and there were compelling reasons for rejecting her testimony. Consequently, the appeal was dismissed.
Issues: The issues revolved around the reliability of the appellant-prosecutrix's testimony, the applicability of the presumption of absence of consent, and the burden of proof in cases of sexual offences.
Ratio Decidendi: The Court held that the presumption under Section 114A of the Indian Evidence Act, 1872 would only be attracted if the factum of sexual intercourse is proved. It emphasized the unreliability of the appellant-prosecutrix's testimony and the various contradictions and lacunae in her statements and actions.
Final Decision: The appeal was dismissed, and the acquittal of the accused-respondent no. 2 from the charges under Section 328, Section 376(2)(n), Section 343, Section 506 of the Indian Penal Code, 1860 was upheld.
JUDGMENT :
Manmohan, J.
Present appeal has been filed under Section 372 of the Code of Criminal Procedure 1973 challenging the judgment dated 05th January, 2019 whereby the accused-respondent no. 2 was acquitted of charges under Section 328/376(2)(n)/343/506 Indian Penal Code, 1860 ('IPC'). The relevant portion of the Trial Court judgment is reproduced here-in-below:-
"Medical examination of prosecutrix was carried out to which she refused her internal medical examination
The statement made by the prosecutrix in the court that she came into contact with accused through Linkedin, social networking site for the purpose of her research work has not been mentioned in written complaint made by prosecutrix neither in the complaint dated 05.01.2017 made to the DCP, Dwarka nor in the complaint dated 17.01.2017 written to the SHO PS Pahar Ganj, therefore, this is major contradiction in the statement of prosecutrix made to the police as well as to the court as to how the prosecutrix came into contact with accused.
but in the cross examination itself, she has admitted that on 15.12.2016, accused took her firstly to Shivaji Stadium Metro Station and from there he took her to Aerocity Metro Station and he went away after dropping her there. He had also returned her aforesaid belongings along with her mobile phone. When she reached her home, she checked her mobile phone and found that accused had deleted recording of her chatting through whatsapp and SMS exchanged between them. The prosecutrix being highly educated lady could not make call to anyone during 13.12.2016 to 15.12.2016 because her mobile phone was taken by the accused but as per her own statement and testimony made in the court that on 15.12.2016, accused had returned her belongings along with mobile phone but she could not make any call to the police or any other person in respect of the complaint of the alleged incident of rape is itself unbelievable.
That, the prosecutrix has also stated that the room was booked in the hotel Hari Piorko at Pahar Ganj by the accused himself and at that time she was having suitcase, handbag and laptop bag with her and she was comfortable with the accused and "it is correct that from coming out of the hotel they both took auto and went to Shivaji Stadium Metro Station and from there both took metro and reached Aerocity Metro Station and accused went inside the airport and took his flight and the prosecutrix see off accused and went to her home at Dwarka and she did not make any phone call on 15.12.2016 to any of his friend or relative or to anyone else in respect of alleged incident of rape."
it is very improbable and unbelievable that she is not aware about the completion of the formalities for taking room in any hotel or that room number of that hotel is not remember to her particularly when she stay there from 13.12.2016 to 15.12.2016. .
54. That, the statement of prosecutrix is highly unreliable and untrustworthy and inspire no confidence on the ground that PW 11 W/SI Veena Sharma, I.O. of this case who had obtained the copy of the entry register from the said hotel where offence of rape alleged to have been committed by accused with the prosecutrix and it reveals that the prosecutrix had also submitted her I.D. proof in that hotel and perusal of the said I.D. proof, which was seized by the I.O. during the investigation reveals that the same reflects the name and address of the prosecutrix and address on the said I.D. is of Aligarh, U.P. Therefore, testimony of the prosecutrix itself is unreliable.
55. That, during the cross examination, prosecutrix has deposed that she had not handed over her mobile phone to the police during the investigation of police as police did not ask her for the same but the I.O. who is PW11, herein has deposed that she had asked prosecutrix to hand over her mobile phone but she refused to handover the same. Therefore, the testimony of the prosecutrix is not of much credence.
56. Prosecutrix has admitted that she is the daugh
