Crl.L.P.106/2009 Page 1 of 4 i.1 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision:23rd March, 2010 + CRL.L.P. No.106/2009 STATE N.C.T. OF DELHI ..... Petitioner Through: Mr.Saleem Ahmed, ASC for State. versus SONU ..... Respondent Through: Mr.Anil Gautam, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON’BLE MR. JUSTICE SURESH KAIT 1. Whether the 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? Yes PRADEEP NANDRAJOG, J. (Oral) 1. The State seeks leave to appeal against the judgment and order dated 24.09.2008. 2. Vide impugned judgment the learned Trial Judge has acquitted the respondent of the charge punishable under Section 376/506 IPC. 3. Prosecutrix PW-1 and her mother PW-2 have been disbelieved by the learned trial Judge. 4. With reference to the observations of the learned Crl.L.P.106/2009 Page 2 of 4 Trial Judge in para 21 of the impugned decision, learned counsel for the State urges that it is apparent that the learned Trial Judge has been greatly influenced by the fact that the witnesses of the prosecution i.e. PW-1, PW-2 and PW-10 were related to each other and independent witness has not been examined. It is pointed out that the learned Trial Judge has also been influenced by the fact that the social conduct of PW- 2 i.e. mother of the prosecutrix PW-1, was not good and for said reason, learned counsel urges, testimony of PW-2 has not been correctly appreciated. Lastly, it is urged that assuming that the prosecutrix was a consenting party to having sex with the respondent, she being a minor her consent was immaterial. 5. It is true that in para 21, the learned Trial Judge has prefaced the discussion and the evidence by referring to the close relationship between PW-1, PW-2 and PW-10, the learned Trial Judge has also prefaced that the social conduct of the mother of the prosecutrix was not creditworthy. 6. But, we find that aforesaid features have not been used while discussing the evidence. 7. In para 22 of the impugned decision, the learned Trial Judge has discussed the testimony of PW-1 i.e. the prosecutrix and has highlighted as many as 5 serious contradictions or improvements in what the prosecutrix Crl.L.P.106/2009 Page 3 of 4 deposed in Court vis-à-vis her statement Ex.PW-1/1 on basis whereof the FIR was registered. 8. Inter alia, the learned Trial Judge has brought out the contradictory stand of a one-time rape vis-à-vis repeated rape as stated on different times by the prosecution. The learned Trial Judge has also found a contradiction whether the prosecutrix narrated the incident of rape to PW-2 or PW-10 or only to PW-10. That apart, the learned Trial Judge has found a serious improvement and also an improbability in the testimony of the prosecutrix in the Court who claims that when she told her mother that the respondent had raped her, her mother wanted to verify the truthfulness of the same and required the prosecutrix to lie on a bed while the mother hid herself in another room and when the respondent started fondling with the prosecutrix the mother saw the said act and took the accused away from the room in which the prosecutrix was sleeping. Further improbability as also improvement noted by the learned Trial Judge is that the prosecutrix stated that her brothers were sleeping in the same room where she was raped but were threatened by the accused with violence if they protested. 9. We find that the discussion of the testimony of the prosecutrix by the learned Trial Judge is premised on the fundamentals of appreciation of ocular evidence. We concur Crl.L.P.106/2009 Page 4 of 4 with the view taken by the learned Trial Judge that so shifting and vacillating is the testimony of the prosecutrix that it is difficult to believe her. If that be so, we cannot even hold that it is a case of sex by consent. It would be difficult to accept the claim of the prosecutrix that she was subjected to sexual intercourse by the respondent. 10. As regards the testimony of PW-2, the mother of the prosecutrix, the learned Trial Judge has dealt with the same in para 23 of the impugned decision. We concur with the view taken by the learned Trial Judge. 11. It is settled law that the presumption of innocence gets re-fortified with a decision of acquittal. It is settled law that as long as the learned Trial Judge has appreciated the evidence within the known parameters of the principles of law relating to evaluation of the testimony of the eye-witnesses, merely because another view is possible would not be a justification by the Appellate Court to take a contrary view. 12. No case is made out to grant Leave to Appeal against the impugned decision. The Leave Petition is dismissed. PRADEEP NANDRAJOG, J. March 23, 2010 SURESH KAIT, J. dk