State v. Onkar

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J. JANUARY 19, 2009 Dharmender

i.6 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : 19th January, 2009 + CRL. APPEAL 53/2008 STATE ..... Appellant Through: Mr.Pawan Sharma, Advocate. versus ONKAR ..... Respondent Through: Nemo. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. (Oral) 1. Police swung into action when a telephonic information was received at PS Tilak Marg on 4.9.2004 at around 11.15 AM, recorded vide DD Entry No.13-A that a person was harassing a woman at 10 Bhagwan Das Road. The police reached the site. The lady allegedly being harassed, G, (the prosecutrix), made a statement to ASI Nar Singh to the effect that she was married and that around 10.00 AM the accused first teased her and thereafter caught her left hand and forcibly dragged her 3/4 floors upstairs and at the spot where the stairs were broken and on a wide step committed rape on her. She claimed that after committing rape, the accused tried to run away. She followed him raising an alarm. Her brother-in-law Ram Suresh who had gone to the market to make purchases had returned and apprehended the accused at the spot. 2. It is not in dispute that a multi-storeyed building popularly known as "White House" has been constructed on 10 Bhagwan Das Road. Semen was lifted from bathroom of flat No.7-AB White House. The prosecutrix was taken to RML Hospital where she was examined by Dr.Meeta Chauhan PW-9, who recorded the MLC, Ex.PW-9/A to the effect that possibility of recent sexual intercourse could not be ruled out by her on examining the prosecutrix. She noted no mark of injury or wound on the person of the prosecutrix. 3. The accused was taken to RML Hospital where PW-4 Dr.B.K.Kundu examined him and recorded in the MLC, Ex.PW- 4/A that no fresh mark of injury on the person of the accused could be noted. 4. Inter alia, from the evidence which surfaced, a plea was urged by the accused; being of sex by consent. In aid thereof, it was urged that it was not a case where the prosecutrix alleged being suddenly pounced upon; her being thrown to the ground and pinned down and the wrong act committed. With reference to the testimony of the prosecutrix where she categorically stated of being dragged up the stairs and pulled up 3-4 floors it was urged that lack of any injury on the person of the prosecutrix was important and suggests of the prosecutrix walking up 3 – 4 floors voluntarily with the accused and thereafter having sex by consent. It was also urged that the prosecutrix alleged having sex on the stair-case and presence of semen inside the bathroom of flat No.7A shows that the prosecutrix visited the flat, probably to urinate; and hence semen falling on the floor and thereafter walking down which is contrary to her testimony that she ran after the accused raising a hue and a cry. 5. With reference to the evidence brought on record it was urged on behalf of the accused that the building is a multi- storeyed building and if the prosecutrix was dragged up by 3 to 4 floors, she would have obviously cried and shrieked, to attract the attention of the residents of the building. It was urged that since nobody heard the cries and shrieks of the prosecutrix, evidenced by the fact that no resident of the multi-storeyed building came out, much less met the police who reached the spot, shows that the prosecutrix voluntarily walked up. It was urged that the evidence probablizes that when the prosecutrix and the accused, after indulging in sex by consent, came down, the prosecutrix got alarmed on seeing her brother-in-law and to show her innocence concocted a cock and a bull story of being forcibly dragged upstairs and raped. 6. The learned Trial Judge has discussed this aspect of the matter as under:- "There is also no evidence on record that the prosecutrix raised any