Crl.Rev. P.56/2008 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.Rev. P.No. 56/2008 Date of Decision : 10.05.2011 State …… Petitioner Through: Mr. M. N. Dudeja, APP Versus Netrapal & Ors. …… Respondents Through: None CORAM : HON’BLE MR. JUSTICE V.K. SHALI 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest ? V.K. SHALI, J. (oral) 1. This is a criminal revision petition filed by the State against the order dated 05.09.2007 passed by the learned Additional Sessions Judge, Patiala House Courts, New Delhi in respect of an FIR No. 294/2006, under Section 365/368/376/34 IPC registered by P.S. Mandir Marg, New Delhi 2. Briefly stated the prosecution’s case is that one Ms. Poonam lodged a complaint with police alleging that she was working as a maid in House No. 62, Gandhi Sadan, New Delhi. It is alleged that a person by the name of Narender/accused used to run a shop near the said house and the prosecutrix used to purchase various articles from him. It is alleged that the accused, Narender induced her into a marriage proposal to Crl.Rev. P.56/2008 Page 2 of 5 which she consented, and accordingly, on 14.07.2006 the accused, Narender introduced the respondent, Netrapal to the prosecutrix. The prosecutrix along with Netrapal went to Ghaziabad. From Ghaziabad she is alleged to have been taken to Netrapal’s village but on reaching the village she refused to marry. It is alleged that on the night of 14-15th July, 2006, she remained in the village and on 16.07.2006, she came back to Ghaziabad and stayed there with Netrapal, Manju, wife of Netrapal and Maha Devi. It is alleged that on 17.07.2006 at about 2.00 A.M. accused, Narender came to the bed of the prosecutrix and raped her. On 19.07.2006, it is alleged that the accused Narender took her on the motorcycle and left her at the Loni Border whereupon the prosecutrix telephonically informed Ritu, the daughter of her employer Ms. Kamlesh and later on it resulted in registration of the FIR. The prosecutrix was medically examined and her hymen was not found to be intact though there was no external injury. The prosecutrix did not allow the internal examination. 3. The accused, Narender was arrested and was examined by the doctor at the Ram Manohar Lohia Hospital. On examination, it was found that he was having history of Urinary Calculi. The accused, Narender was examined by one Dr. Rajiv Sood, Senior Urologist, the Head of Urological Department as he had claimed that he is suffering from Crl.Rev. P.56/2008 Page 3 of 5 erectile dysfunction. The PIPE (Pharmacologically Induced Penile Erection Test) with half ML Papaverine and then with 2ML papaverine was done. This test did not give the requisite rigidity, to his penis and consequently, doctor opined that the accused, Narender was incapable of performing sexual intercourse. On the basis of this medical opinion, the accused, Narender sought discharge. 4. The learned APP had argued that the prosecutrix had made a statement under Section 164 Cr.P.C. that she was raped by the accused, Narender, and therefore, it was sufficient for framing of charge. The learned Sessions Judge came to the conclusion after examining the documents and the statements of the witnesses that the charge of rape against the accused Narender is groundless as he was incapable of performing sexual intercourse. 5. Section 239 Cr.P.C. clearly lays down that if the charge of a particular offence is groundless then the accused deserves to be discharged. Relying on the said provision, the learned Additional Sessions Judge had discharged the accused, which has been assailed by the State in the present case. 6. It was contended by the learned APP notwithstanding the opinion of the doctor, the learned Sessions Judge ought to have framed the charge against the accused under Section Crl.Rev. P.56/2008 Page 4 of 5 376 IPC, as there was a statement of the prosecutrix in this regard. 7. No doubt, the prosecutrix had made a statement under Section 164 Cr.P.C., but the question which ultimately will arises is, as to whether such statement even if it remains unassailed can be said prima facie correct in the light of the opinion of the doctor, which shows by medical evidence that the accused is incapable of performing sexual intercourse. That is why the language of Section 239 Cr.P.C. is that if the charge is considered to be groundless the accused deserves to be discharged. Contemporaneous and attending circumstances and facts of the present case clearly make out a case that the allegations against the respondent/accused are groundless, so far as the allegation of rape is concerned. Therefore, the learned Sessions Judge was right in discharging the accused. There were no injury marks on the private parts of the prosecutrix and further she has also not allowed the doctor to carry out the internal examination, which clearly gives rise to a suspicion that it has been done deliberately as it may reveal the truth. Normally, a woman placed as the complainant would not refuse to undergo the medical examination, if she has lodged a report with the police for an offence of rape. Therefore, this militates against the case of the prosecution prima facie. So far as the offence under Section 365 and 368 IPC are concerned, the learned Crl.Rev. P.56/2008 Page 5 of 5 Judge has observed that the prosecutrix had stated that she is of 20 years of age and she had accompanied the accused Netrapal with her consent, and therefore, no prima facie case under Section 365 or 368 IPC is made out, much less a case under Section 109 IPC for abetment is made out. Accordingly, I do not find that there is any incorrectness, illegality or impropriety in the impugned order passed by the learned Sessions Judge in discharging the accused. The petition is dismissed. V.K. SHALI, J. May 10, 2011 KP