State vs Sonal Sahani & Ors

Vibhu Bakhru, J

The State has filed the present petition seeking leave to appeal against a judgment dated 13.07.2016 passed by the ASJ (Spl. FTC), Rohini Courts,

Delhi (hereafter the ‘impugned judgment’), whereby the respondents (five in number) were acquitted of the offences punishable under Sections

376/406 of the Indian Penal Code, 1860 (IPC) and Section 4 of the Dowry Prohibition Act, 1961.

It is the petitioner’s case that the impugned judgment is bad in law inasmuch as, the Trial Court has held the delay in filing an FIR in the case to

be fatal to the case of the prosecution. Further, the petitioner contends that the Trial Court erred by not convicting the respondents based on the sole

testimony of the prosecutrix, which is sufficient to prove the prosecution’s case.

The prosecution’s case, in brief, is that respondent no. 1 raped the prosecutrix on 14.02.2010 who, at the material time, was aged fifteen years

and had done so on several occasions prior to the said date. Respondent no. 1 was engaged to the prosecutrix on 12.07.2008 and it is alleged that on

the said occasion, he was gifted a motorcycle, gold chain, cash etc. but, subsequently, a further demand of Rs. 5 lakhs was made by the respondents

from the family of the prosecutrix for redecorating their house. It is also stated that in case of not acceding to the respondents’ demand, the

respondents threatened to kill the brother of the prosecutrix. Thereafter, respondent no. 1 started pressuring the prosecutrix to establish physical

relationships with him stating that there was no difference between an engagement and a wedding. And, on the pretext of taking the prosecutrix to

meet his family members, he took her to his house where he forcibly established a physical relationship with her and thereafter, continued to do so

several times.

On 14.02.2010, respondent no. 1 called the prosecutrix to meet him on the pretext of it being Valentine’s Day and took her to his house where

the prosecutrix found no one present. It is the prosecution’s case that respondent no. 1 once again forcibly established sexual relationship with her

on the said date.

Thereafter, FIR No. 112/2010 was registered with PS Maurya Enclave against the accused and his family members (respondents herein). The

accused were charged with the commission of the offences punishable under Sections 376/406 of the IPC and Section 4 of the Dowry Prohibition

Act, 1961. The accused pleaded to be not guilty and the matter was set down for trial.

During the course of the trial, the prosecution examined fifteen witnesses.

By the impugned judgment, the Trial Court acquitted the accused persons of all the charges on the grounds that, inter alia, the testimony of the

prosecutrix could not be relied upon as there were inconsistencies in her testimony. The allegations were not substantiated by any corroborative

evidence. Further, the mother of the prosecutrix (who was examined as PW-12) contradicted the testimony of the prosecutrix. The Trial Court could

not find any credible evidence to establish a demand for dowry. And, the FSL report did not indicate the presence of semen after the medical

examination of the prosecutrix.

The prosecutrix, who deposed as PW3, stated that the accused would come outside her school and would try to woo her. At her father’s

behest (who admittedly, at the material time, was ailing and would remain admitted to AIIMS), the accused came to her house and told her parents

that he wished to get married to PW3. Thereafter, she and the accused were engaged on 12.07.2008. On the said date, PW3 stated that her family

gave articles to the accused’s family which were beyond their capacity. After their engagement, the accused asked PW3 to accompany him to his

house to meet his parents in Paschim Vihar, Delhi. Upon reaching his house, she found that there was no one present and thereafter, the accused

forcibly established sexual relations with her. PW3 stated that this incident occurred two or three days after her engagement with the accused. Even

when she would be alone in her own house, the accused would visit her house and forcibly establish sexual relations with her. She further deposed

that the accused and his family would forcibly ask her to sleep with the accused on days when she would visit their house. PW3 stated that whenever

her parents would visit the house of the accused, his family would demand Rs. 5 lakhs to renovate their house.

PW3 stated that on 04.02.2010, she had given a complaint and had informed her mother that she had physical relations with the accused due to

demands made by his family. She also stated that one of the accused, Himanshu Sahani, had demanded Rs. 25,000 per month for ten years to perform

her marriage with the accused. Thereafter, she lodged another complaint with PS Bindapur on 07.02.2010, however, this matter was settled with the

intervention of the police.

She alleged that on 14.02.2010, the accused asked PW3 to meet him and took him to his house on the pretext of meeting his parents. PW3 stated

that he again forcibly established sexual relations with her. In her cross-examination (which was conducted by the ld. APP), she affirmed that on

06.02.2010, when her parents had gone to the residence of the accused to talk with his parents, a quarrel had broken out and her mother had made a

call at 100 number and a report was made to PS Bindapur.

In her cross-examination, she stated that she and the accused were in love and wanted to marry each other. She could not recollect as to whether

in her complaint dated 04.02.2010, she had stated that after two or three days of her engagement, the accused had forcibly established sexual relations

with her. She affirmed that she had stated this fact to the police in her complaint recorded on 23.03.2010. She further stated that she even told this

fact to the ld. MM in her statement under Section 164 of the CrPC. She stated that the complaint dated 04.02.2010 was written by her mother and

was signed by her. She stated that she had mentioned in the said complaint that the accused would forcibly establish sexual relations with her,

however, on being confronted with the said complaint (Ex. PW3/B), no such fact was found to be mentioned therein.

The mother of the prosecutrix deposed as PW-12. She stated that her daughter was engaged to the accused (Sonal Sahni) on 12.07.2008 and she

had spent more than her capacity on the engagement ceremony. She stated that after engagement, the accused used to come to her house. She stated

that whenever she used to visit the house of the accused, his parents used to suggest that a floor be constructed over their house where her daughter

would reside, they also informed her that the same would require Rs. 5,00,000/- to construct and further Rs. 5,00,000/- for interior decoration. She

claimed that the parents of the accused had demanded Rs. 10,00,000/- for the said purpose and had told her that it was her responsibility to do so. She

also stated that Himanshu Sahni, brother of the accused Sonal Sahni had demanded Rs. 25,000/- per month for ten years as the accused Sonal Sahni

was not working. She also claimed that the accused Sonal Sahani’s sister demanded a gold set. She further stated that on 04.02.2010, her

daughter had told her that she was taken by the accused Sonal Sahni 4-5 days after the engagement on the pretext of getting her to meet his parents

but on reaching his house, she found that there was no one present there and he had allured her to establish physical relationships with her without her

consent. She stated that her daughter had further told her that she was forced to sleep with the accused Sonal Sahni whenever she used to visit their

house. She stated that her daughter had given a complaint to PS Maurya Enclave on 04.02.2010 addressed to the DCP. She stated that she had also

given a complaint on 04.02.2010 (Ex.PW3/C) to keep her earlier complaint pending because she wanted to settle the matter with the accused. She

testified that on 06.02.2010, she along with her daughter (the prosecutrix), visited the house of the accused and confronted the accused with the facts

as disclosed by her daughter including physical relations established by the accused with her. She stated that the parents of the accused Sonal Sahni

acknowledged that they were aware of the said facts but found that the same was not unnatural because the prosecutrix was going to be their

daughter-in-law after her marriage with their son. She stated that, thereafter, she along with her husband went to PS Bindapur. At that time, her

daughter had been concealed by the accused in their house and therefore, she could not accompany her to the police station. She stated that,

thereafter, when the SHO asked her about the prosecutrix, she was called by the accused Sonal Sahni and the matter was compromised. PW2 was

also cross-examined and in her cross-examination, she contradicted her earlier statement and said that the prosecutrix had accompanied her to the

police station on 06.02.2010.

The Trial Court, after examining the evidence obtaining in the case found that the testimony of PW3 (prosecutrix) and PW12 (the mother of the

prosecutrix) was not credible as they had contradicted their own testimonies. The Trial Court further found that the allegations of kidnapping made by

them were found to be incorrect. The Court also found that the allegations that the accused Sonal Sahni established physical relationships with the

accused was vague as no specific incident except an incident on 14.02.2010 had been mentioned. The Court also found that the accused Sonal Sahni

had established physical relations with the prosecutrix on 14.02.2010 was also difficult to accept as prior to the said date, several complaints had been

filed and there was much acrimony between the parties. In such circumstances, it was not accepted that the prosecutrix would once again go to the

house of the accused especially after the parents of the accused were fully aware that she and the accused Sonal Sahni had sexual intercourse on

several occasions.

The Trial Court reasoned that since the prosecutrix and PW12 were not sterling witnesses, it was essential that the allegations levelled by them be

corroborated by other evidence. However, the same was found wanting. Accordingly, the Trial Court had acquitted the accused of the offences for

which they were charged.

At the outset, it is necessary to note that the present appeal has been filed after an inordinate delay of over 300 days. The petitioner has filed an

application seeking condonation of delay. The petitioner has sought to explain the delay by stating that the appeal could not be filed within the

stipulated period, since the file pertaining to the case had been sent to various authorities and after passing through various channels, the opinion

regarding case being fit for challenge before this Court was sent to the Department of Law and Justice, Legal Affairs. It is stated that on 25.05.2017,

the report on discharge was prepared by the Additional Public Prosecutor and the Chief Prosecutor was asked to prepare detailed grounds of appeal

against the acquittal of the accused persons. It is, thus, seen that almost more than ten months had elapsed before the Chief Prosecutor had even

asked to prepare the grounds of appeal. It is stated that on 30.05.2017, the relevant grounds of appeal were sent to the Director of Prosecution and on

09.08.2017, the Director of Prosecution had directed the file to be sent to the learned Standing Counsel for necessary action. This Court is unable to

countenance the aforesaid delay. It is also well settled that the delay has to be explained on a day to day basis. However, in the present case, there is

no explanation for the period from pronouncement of the impugned judgment on 13.07.2016 till 24.05.2017, except to state that the said time was taken

in bureaucratic processes. Thus, the application for condonation of delay is liable to be rejected.

Not with standing the above, this Court has also examined the decision of the Trial Court on merits. This Court concurs with the view of the Trial

Court that the prosecutrix (PW3 and PW12) could not be considered as sterling witnesses and it wold not be apposite to convict the accused solely on

the basis of their testimony. First of all, it is noticed that there were four complaints that were filed. The first complaint was filed by the prosecutrix

and/or her mother, on 31.01.2010. There was no allegation in the said complaint regarding the accused had established any physical relationships with

the prosecutrix. The second complaint was filed on 04.02.2010 (Ex.PW3/B). There was no such allegation in this complaint as well. The third

complaint was filed on 07.02.2010 and it was alleged that the prosecutrix had been kidnapped on the intervening night of 6/7.02.2010. It is stated that

the said disputes were also settled with the accused. According to them, the date of their marriage would be fixed after the prosecutrix had sat for her

examinations. The fourth complaint was filed on 22.03.2010 and the FIR bearing no. 112 of 2010 was registered. In her complaint, the prosecutrix had

alleged that on 14.02.2010, the accused had called her outside and had taken her to his home where she found that there was nobody there and he had

established a physical relationship with her by telling her that they are going to be married shortly and their family members were fully aware of their

relations. She stated that, thereafter, once again his behaviour turned negative (fir se iska Behaviour mere sath kharab ho gaya). She also stated that

she had filed a complaint on 04.02.2010, but the same had been kept pending as she wanted to explore the possibility of resolving the issues. In her

complaint, she had provided no specific information regarding the accused establishing any relationships with her. It is relevant to note that in her

cross-examination, the prosecutrix admitted that she had not been restrained or kidnapped by the accused or his family members. Thus, it was

established that a false complaint had been made in this regard. Although the mother of the prosecutrix, PW12 had testified that on 06.02.2010 the

prosecutrix had been concealed by the accused and therefore, was not present at the police station. In her cross-examination, she admitted that the

prosecutrix had accompanied her to the police station. In view of the above, the prosecutrix and her mother had been discredited as credible

witnesses. Thus, the Trial Court had rightly proceeded to evaluate whether there was any corroborative evidence to support the allegations and found

that there was no such evidence.

In her testimony, PW12 stated that the prosecutrix had informed her on 04.02.2010, that the accused had established physical relations with her.

However, no complaint in this regard was made at the material time. Although a complaint was filed regarding kidnapping, however, the allegation of

an offence under Section 376 of the IPC was not levelled.

This also raises certain doubts as to the allegations made by the prosecutrix and her family.

In the given facts, the Trial Court also held that it was improbable that the incident, as reported, occurred on 14.02.2010 as it was not accepted

that the prosecutrix would be permitted to go with the accused Sonal Sahani to his house or that the prosecutrix would do so without informing her

mother. This is considering the backdrop of acrimony between two families. The Trial Court noted that even assuming that the prosecutrix had

accompanied Sonal Sahani to his house and he had misbehaved with her in any manner, she had promptly reported the same to her mother. Given that

she as well as her mother had already filed complaints with the police.

The view taken by the Trial Court is a plausible view and it is well settled that the Appellate Court would not interfere with the decision of

acquittal unless it finds manifest error in the said decision. (See: Ghurey Lal v. State of Uttar Pradesh: (2008) 10 SCC 450)

This Court does not find any patent or manifest error in the impugned order and therefore, finds no reason to interfere with the same. The petition

is, accordingly, dismissed, both on the grounds of limitation as well as on merits.

The pending application is also disposed of.