CRL.L.P./252/2017 of STATE (GOVT OF NCT OF DELHI) Vs RAMESHWAR MANNA

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+CRL.L.P. 252/2017 and Crl.M.A. No.7040/2017

STATE GOVT OF NCT OF DELHI

..... PetitionerThrough:Ms. Aashaa Tiwari, Additional PublicProsecutor along with SI SandeepSharma, PS-Vasant Kunj (North), forthe State.

versus

RAMESHWAR MANNA..... RespondentThrough:Mr. Manjeet Godara, Advocate.

..... Respondent

CORAM:HON'BLE MR. JUSTICE VIPIN SANGHIHON'BLE MR. JUSTICE P.S.TEJIO R R03.11.2017

P.S. TEJI, J. (ORAL)

Crl. M.A. No. 7040/2017 (Condonation of delay of 48 days in filingthe leave petition)

1.The State has filed the application under Section 5 of theLimitation Act read with Section 482 of Cr. P.C. for seekingcondonation of delay of 48 days in preferring the accompanying leavepetition to challenge the impugned judgment dated 08.12.2016 passedby learned Additional Session Judge, New Delhi in case FIR No.437/2014, registered under Section 328/376/506 of IPC at PoliceStation Vasant Kunj (North), Delhi.

2.In the application for condonation of delay, it has beensubmitted that the judgment was delivered on 08.12.2016 but the

certified copy of the judgment was applied for thereafter and the samewas delivered on 10.01.2017. The file was sent to the Lt. Governorseeking permission to file the appeal on 13.01.2017 which wasassigned on 17.03.2017 to Directorate of Prosecution and then thecase was received in the office of Standing Counsel on 21.03.2017and ultimately the matter was entrusted to Additional PublicProsecutor to prepare and file an appeal before this Hon’ble HighCourt.

3.Argument submitted by the learned Additional PublicProsecutor for the State is that there is cumbersome procedure toprocess the matter for filing the leave to appeal and it is formulatedafter the opinion of the legal experts and the opinion formed byvarious officers, as result the present appeal could not be filedwithin the prescribed time and the same caused delay of 48 days.She has referred to judgment of Hon’ble Supreme Court in case ofState of Nagaland v. Lipok AO and others 2005 (3) SCC 752.

4.Keeping in view the explanation and the law laid downin case of State of Nagaland v. Lipok AO and others (supra), thisCourt is of the opinion that the object of the judicial system is toprovide justice.The present case is involving the offences underSection328/376/506IPC.Consequently,theapplicationforcondonation of delay is allowed and the delay in filing the applicationfor the grant of leave is hereby condoned.

5.The present leave petition has been filed by the Stateunder Section 378(1)(a) of the Cr.P.C. seeking leave to appeal againstthe judgment dated 08.12.2016 passed by the Court below.

6.Leave to appeal has been sought by the State feelingdissatisfied by the judgment of acquittal delivered by the Court below.

7.As per FIR of the instant case, the prosecutrix used tolive with her brother Woymkesh near the house of the accused.Woymkesh (brother of prosecutrix) used to go to work from 9 a.m. to11 p.m.The allegations levelled are that the accused who livednearby, had asked the prosecutrix to prepare meals for him.Woymkesh called the husband of the complainant (Basanti) to cometo their jhuggi, as the prosecutrix appeared to be in fear of someone.On enquiry, the prosecutrix informed that the accused gave her somewater after which she could not recall the incidents of the day. Onfurther probing, the prosecutrix informed the complainant that theaccused gave her some intoxicating liquid, committed rape on her andthereafter threatened her not to disclose this to anybody.

8.After completion of investigation, charge sheet was filedin the Court. Charge under Section 328/376/506 IPC and Section 6 ofPOCSO Act was framed against the accused to which he pleaded notguilty.To prove its case, the prosecution examined 14 witnesses,namely, Prosecutrix (PW1), HC Rajender Singh (PW2), DevranjanPatra(mama) (PW3), brother of victim (PW4), Basanti (mami) (PW5),

Dr. Shailender Gautam (PW6), Ct. Sanjay (PW7), Lady Ct. Satwanti(PW8),Lady Ct. Kavita (PW9), Ct. Jaswant (PW10), SI Sudhir(PW11), Dr. Neelam Verma (PW12), IO Santosh Chauhan (PW13)and Gaurav Rao Ld. MM (PW14).

9.The main witnesses examined by the prosecution toprove the guilt of the accused were the victim herself (PW1), mama(PW3) and mami (PW5). As aforesaid, the trial court acquitted theaccused as the charge could not be established beyond reasonabledoubt. It has been submitted that the trial court erred in coming to theconclusion that from the testimony of witnesses, it appears that victimhad gone to her mami’s house on 10.06.2014 so the incident asalleged from 10.06.2014 to 13.06.2014 could not have happened.Further, the Ld.Trial Court did not appreciate the fact deposed byPW1 victim in the court in which she specifically stated she waspreparing food for the accused in the kitchen when the accused cameinside the kitchen and caught hold of her from behind and brought herto bed in the room and laid upon her. Accused thereafter touched herinappropriately and committed rape on her. It was further submittedthat the Ld.Trial Court did not appreciate the fact that there was nostrong motive to falsely implicate the accused and also failed toappreciatethefactthatthereislackofmaterialomissions,improvements and/or contradictions which go to the root of the case.

10.We have heard Ld.APP Ms.Aashaa Tiwari and Ld.Counsel for the respondent.

11.A perusal of the testimonies of the victim (PW1), PW3and PW5 show that they are full of discrepancies and inconsistencies.As per PW1, the accused had committed penetrative sexual assault onher on three different occasions. She alleged that on two occasions,she did not have the knowledge that such an act was being doneowing to the fact that she was sedated. However, on the thirdoccasion, she had not consumed any intoxicant. As per PW5, in herinitial statement it was stated that the third act was done on13.06.2014 whereafter the matter was reported to the police on14.06.2014. However, when the prosecutrix was brought to thehospital, she narrated the history of assault to the Doctor on14.06.2014. As per the history noted down by the Doctor, it appearsthat the alleged sexual assault took place on 09.06.2014, 08.06.2014and 07.06.2014. As per PW5, in her initial statement Ex. PW1/A, shestated that the accused committed the third act on 13.06.2014 andprevioustwoactson12.06.2014(Thursday)and11.06.2014(Wednesday).

12.Further, as far as the scientific analysis/ DNA reportEx.PA is concerned, the same is silent regarding any sexual assault.Similarly, MLC Ex.PW1/B of the prosecutrix is also silent withrespect to any fresh injury on any parts of the genital. There is aremark stating “hymen torn”, however it does not mention whether itis freshly torn or an old tear.

13.In Atender Yadav vs State Govt Of Nct Of Delhi 2013(4) JCC 2962, the Court observed that :

“It is true that in case of rape, theevidence of the prosecutrix must be givenpre-dominantconsiderationandincertaincasesevenwithoutanycorroboration,testimonyoftheprosecutrix should be given due credenceand weightage as in all the rape casesthe prosecutrix suffer great stress,trauma, humiliation and due to thisfactor alone many cases of rape are noteven reported by the victims. However, atthe same time, it cannot be denied thatfalse allegation of rape can cause equaldamage,humiliation,embarrassment,harassment, disgrace and agony to theaccused as well.”

In the case of Tameezuddin @ Tammu vs. State of (NCT) ofDelhi (2009) 15 SCC 566,the Supreme Court held as under:

“It is true that in case of rape the evidenceof the prosecutrix must be given predominantconsideration, but to hold that this evidencehas to be accepted even if the story isimprobable and belies logic, would be doingviolence to the very principles which governthe appreciation of evidence in criminalmatter. We are of the opinion that story isindeed improbable.”

14.From careful reading of the impugned judgment andthe material placed on record, including the testimony of prosecutionwitnesses, we find that the trial Court had given clear, cogent andconvincing reasons for disbelieving the testimony of the prosecutrix.

15.In view of the aforesaid circumstances, we are notinclined to interfere with the impugned judgment. Therefore, thepresent leave petition filed by the state is dismissed.

P.S. TEJI, J

NOVEMBER 03, 2017pkb

VIPIN SANGHI, J