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delay in filing/ lodging of FIR in rape case is a grounds of acquittal.

 

. That, the prosecutrix has alleged that she met with accused when she get the invitation of attending the seminar on 13.12.2016 is also unbelievable as date 13.12.2016 was gazette holiday on the occasion of Milad-Un-Nabi (Birthday of Prophet Mohammad). Moreover, the RTI reply of the IIM, Noida which was filed during arguments on bail by ld. Defence counsel also reflects that no seminar / conference was held on 13.12.2016 at IIM, Noida, U.P. as it was gazette holiday nor any invitation letter issued from IIM, Noida to the prosecutrix has been placed on record nor the same was handed over by the prosecutrix to the I.O. at the time of the investigation of the present case FIR.

  1. … this witness has admitted that the entrance of the hotel is manned by security guard 24 hours and no one can enter in the hotel without permission of the guard and there are guidelines of Delhi Police not to allot any room to local resident of Delhi and they had checked the IDs of the guests before allotting them room and retained their copies and as the prosecutrix has supplied her I.D. proof and as per I.D. proof, she was not resident of Delhi and was allotted Room no.224 for one night and room no.223 was booked for 2 nights and they did not receive any complaint from any guest of the aforesaid rooms during their stay. .. she could have brought the incident to the notice to the guard of that hotel or could have make a call to the police or to inform the manager or to the waiter or could have easily come out from the hotel room to make a call to the police or raised an alarm but she did not make any call nor bring the notice of hotel staff or to any one of the alleged incident of rape.

.. There is delay of 32 days to report the matter to the police and the prosecutrix is not been able to explain the delay to lodge the complaint to the police for the alleged offence of rape….

xxx xxx xxx

  1. That, there is no evidence in respect of intoxicated substance allegedly given by the accused to the prosecutrix in a coffee and there is no medical report in this regard and the prosecution is not able to prove the same against the accused.
  2. Therefore, in these facts and circumstances, this court is of the considered view that prosecution has not been able to prove its case as well as the charges of the offence u/s328/376(2)(n)/343/506 IPCagainst the accused beyond reasonable doubt and hence, accused XXXXXXX  is hereby acquitted from the charges punishable u/s 328/376(2)(n)/343/506 IPC.”

(emphasis supplied)

The appellant-prosecutrix submits that the Trial Court had failed to appreciate that there is a presumption under Section 114A of the Indian Evidence Act, 1872, as to absence of consent in a case for prosecution of the offence under Section 376IPC and consequently the onus to prove that he had not committed the offence under Section 376(2)(n) IPC had shifted to the accused-respondent no. 2.

The appellant-prosecutrix further contends that the Trial Court had erred in not appreciating the fact that the appellant- prosecutrix is a chronic asthmatic patient, cannot do regular activities without medication, has a physical deformity in her left leg and is also suffering from cerebral palsy due to which it is difficult for her to raise her voice even in an emergency situation.

Having perused the paper book, this Court is of the view that the presumption under Section 114A of the Indian Evidence Act, 1872 would only be attracted if the factum of sexual intercourse is proved.

Having perused the paper book, this Court is of the view that the presumption under Section 114A of the Indian Evidence Act, 1872 would only be attracted if the factum of sexual intercourse is proved.

In the present case, it is noteworthy that the appellant-prosecutrix had refused internal medical examination.

Further this Court is in agreement with the view of the Trial Court that testimony of the appellant-prosecutrix is ‘highly unreliable’, ‘untrustworthy’ and ‘inspires no confidence’ for the following reasons:-

  1. The appellant-prosecutrix alleged that she had received an invitation to attend a seminar on 13th December, 2016 at IIM, Noida. However, 13th December, 2016 was a gazetted holiday on the occasion of Milad- Un-Nabi (Birthday of Mohammad). Furthermore, the RTI reply sent by IIM, Noida stated that on account of the gazetted holiday, there was no seminar scheduled for 13th December, 2016 and they had not sent any invitation to the appellant-prosecutrix. B. There is a major contradiction in the statement of the appellant-

prosecutrix inasmuch as, in the written complaint dated 05th January, 2017 made to the DCP, Dwarka, and the complaint dated 17th January, 2017 to the SHO PS Pahar Ganj, the appellant-prosecutrix had not mentioned that she had come in contact with the accused-respondent no. 2 through LinkedIn for the purpose of research work. However, she has mentioned the aforesaid fact in her statement before the Court.

  1. The appellant-prosecutrix had submitted her I.D. proof to the hotel and in the same she had mentioned her address of Aligarh, UP as Delhi Police Guidelines do not permit the hotel to allot a room to a local Delhi resident.
  2. The entrance of the hotel room is manned by security guards 24 hours and no one can enter the hotel without the permission of the guard. The appellant-prosecutrix could have easily come out of the hotel room to make a call to the police or raise an alarm or could have requested any of the hotel staff to make a call. The appellant- prosecutrix is mobile and does not suffer from such a serious disability that she could not have raised an alarm.

Appellant-prosecutrix had made 529 calls to accused-respondent no.2 between 16th December, 2016 (after the date of rape) to 29th January, 2017 (before filing of the complaint). Her act of making so many repeated calls is not consistent with her allegations.

Keeping in view the aforesaid cumulative findings, this Court is of the view that the testimony of the appellant-prosecutrix is unreliable and inspires no confidence and there are compelling reasons for rejecting of her testimony. Further, Section 114A of the Indian Evidence Act, 1872, is not attracted as the factum of sexual intercourse is not proved. There are also various lacunae in the case of the prosecution and the benefit of doubt will have to enure to the benefit of the accused-respondent no. 2. Consequently, the present appeal being bereft of merits, is dismissed.

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.A. 626/2019 & CRL.M.As. 10219-10221/2019

XXXXXXXXXXXXX             ….. Appellant

versus

STATE AND ANR.                ….. Respondents

 

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