Gaurav v. State (NCT of Delhi)

11.4. The defence further relied upon the data regarding the GPS installed in the vehicle used for the commission of the offence. According to PW[6], Ext. PW6/C GPS logs conclusively show that the vehicle remained parked at a single location in Noida from 12:00 AM till 08:37 AM on 14.11.2017. The GPS data establishes that the vehicle was never present near Ansal Plaza between 10:30 PM and 11:30 PM, as alleged by PW[2].The two locations are separated by a distance of approximately 30 kilometres. It was therefore contended that the GPS records furnish a clear alibi for the accused and contradict the prosecution’s version regarding the time and place of the alleged abduction.

11.5. Reference was also made to the testimony of DW[2], Traffic Inspector, Rajasthan State Road Transport Corporation, Delhi Depot, ISBT Sarai Kale Khan,who DW[2] deposed that, as per Ext. DW2/A, buses to Mehandipur Balaji departed at regular intervals at 08:30 PM, 09:30 PM, 10:30 PM and that the last bus at 11:30 PM on 14.11.2017. This evidence disproves the testimony of PW[2] who claimed that she had reached ISBT Sarai Kale Khan at about 08:30 PM, waited for nearly two and a half hours, but no bus had come. Reliance was placed on the dicta in Manoj v. State, 2026 SCC OnLine Del 758, Sharad BirdhichandSarda v. State of Maharashtra, (1984) 4 SCC 116and Anwar v. State (NCT of Delhi), 2026 SCC OnLine Del 914in support of the arguments advanced.

12. Per contra, it was submitted by the learned Additional Public Prosecutor (APP) that the prosecution has proved its case beyond reasonable doubt and that the impugned judgment warrants no interference. It was submitted that by virtue of Section 114A of the Indian Evidence Act, once PW[2] deposes that the sexual intercourse was without her consent, the Court is bound to presume absence of consent. It was submitted that the burden shifts to the accused to rebut the same by leading cogent evidence to the contrary. Further, reliance was placed on the decision of the Apex Court, State of Punjab v. Gurmit Singh, 1996 AIR SC 1393 to canvass the point that Courts must recognize the immense social stigma of sexual assault and generally trust a victim's testimony, as no woman would lightly subject herself to such humiliation. Therefore, it was contended that the testimony of PW[2] alone is sufficient for a conviction, and that the courts should neither demand corroborative evidence as a rule nor reject the case over minor discrepancies.

13. The learned counsel appearing for PW[2],while countering the defence’s challenge to the conduct of PW[2], invited the attention of the Court to the conduct of A[1] and A[2]. It was submitted that the A[2] had taken possession of PW2’s mobile phone and, on 22.11.2017 at about 10:11 AM, used the same to make a video call to PW[3], her husband. According to the prosecution, the said call was made with the object of threatening PW[2] and her husband and extorting money from them.

13.1. It was submitted that the trial court has rightly appreciated the GPS data of the vehicle. The GPS coordinates reveal that, from 00:00 hours on the intervening night of 14.11.2017 and 15.11.2017 till about 01:30 AM on 15.11.2017, the vehicle was continuously moving around different parts of Delhi, including Lajpat Nagar, Andrews Ganj, South Extension, East Kidwai Nagar and Aurobindo Marg. These locations are all in the vicinity of the place from where PW[2] claimed to have been picked up. It was therefore submitted that there existed a clear probability and feasibility of the accused having picked up PW[2] from the said area. The prosecution is not required to establish the exact spot of abduction with mathematical precision. Hence the materials on record are more than sufficient to justify the conviction and sentence of A[1] and A[2] by the trial court.

14. Heard both sides and perused the records.

15. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the appellants/A[1] and A[2] by the trial court are sustainable or not.

16. As per the Court charge, on 15.11.2017 at about 12:30 a.m. PW[2] boarded the taxi driven by A[2] at Ansal Plaza for the purpose of going to her residence at Rohini. After traveling for some distance, A[2] also joined them in the taxi. Thereafter, A[1] and A[2] in furtherance of their common intention criminally intimidated and threatened PW[2] into silence and took her to a secluded place at Greater Noida, raped her and robbed her of all her valuables. They also took video and photos of the sexual assault. They are alleged to have reached the place of occurrence at 01:30 a.m. and that the rape and assault took place from 01:30 a.m. till 05:00 a.m. inside the car. Thereafter, at about 06:00 a.m., PW[2] was dropped at Pari Chowk, Noida. This is the Charge that A[1] and A[2] have to answer.

17. As per the prosecution case, Ext. PW2/A is the statement/information given on 16.11.2017 by PW[2] to PW22 on the basis of which crime no. 427/2018 Haus Khas police station (PS), that is, Ext.

PX FIR was lodged. However, a perusal of the records reveals that even before Ext. PW2/A statement was recorded, a detailed statement of PW[2] had been recorded on 15.11.2017, which aspect is clear from the testimony of PW14 and PW15. PW14, then ASI, K.N. Katzu (KNK) Marg, PS deposed that on 15.11.2017 at about 06:20 p.m., a call was received at the PS regarding an incident of rape near Pari Chowk, Noida. The caller was the husband of the victim. On receipt of the call, he reduced the information received into writing, that is, DD No. 44A which has been marked as Ext. PW14/A. Ext. PW14/A reads thus: “DD No. 44A Dt. 15/11/17 PS KNK Marg, Delhi DO PCR CALL समय 6.20 बजे शाम दज है िक w/off ने DO Room आकर तहरीर कराया की Sec 16 HNo 137 P&T G-6 Caller का सराय काले खां गया था जहां से ओटो िकया था। िजसने Green Park अंसल ाजा पर उतार िदया। िजसने कहा िक वहां से टै ी की थी। िजसने िकसी unknown आदमी को बैठा िलया जो टै ी वाले का जानने वाला था जो टै ी को परी चौक नोए ा को ले गया। चाक ु िदखाकर Caller की पि क े साथ रेप िकया व पि का मंगल सुत्र पाजेब आादी व मारपीट की है 9582810913 ह आमद इतला PCR दज रोजनामचा की गई नकल रपट अलग करक े हवाले ASI नवरतन no 589/RD की गई जो हम ct Dinesh no 1524/RD रवाना मौक े क े ये जो मुनािसब कायवािह अ म लायगे बकलम ASI DO...” (Emphasis Supplied)

17.1. Ext. PW14/A roughly translated reads thus:- “....It is recorded at 6.20 PM that w/off came to the DO Room and recorded that Sec 16 HNo 137 P&T G-6 caller had gone to Sarai Kale Khan, from where an auto was taken and dropped at Green Park Ansal Plaza. From there a taxi was taken. In the taxi along with the driver there was another person, and the taxi was taken to Pari Chowk, Noida. Showing a knife, raped the caller's wife and took her mangalsutra, anklet, etc., and assaulted her. 9582810913 on receipt of the information, the PCR call was recorded in the daily diary, a copy of the report was separated and handed over to ASI Navratan no. 589/RD (PW15), who along with Ct. Dinesh NO. 1524/RD left for the spot to take appropriate action...”

18. According to PW14, the aforesaid call was marked to PW15 for necessary action. PW15, another ASI, KNK Marg PS deposed that on 15.11.2017 he received a call from the duty officer relating to DD No. 44A at about 06:20 p.m. On receipt of the said call, he along with Constable Dinesh proceeded to House no. 137, Pocket no. 6, Sector-16 Rohini, where he met PW[2] and her husband (PW[3]). After making enquiries from PW[2] and in the presence of PW[3], he recorded her statement, which has been marked as Ext. PW15/A. PW15 further deposed that by this time the SHO, KNK Marg PS also reached the residence of PW[2] and made enquiries with the latter. The SHO then directed him to take PW[2] and her husband to Haus Khas PS as the incident had occurred within the jurisdiction of the said police station. Before proceeding to the said station, he first took PW[2] to Ansal Plaza, from where she had boarded the taxi. PW[2] pointed out the place of occurrence, but he did not prepare any site plan as no FIR had been registered. He thereafter contacted the duty officer of Haus Khas PS, pursuant to which PW22 WASI reached Ansal Plaza. He then handed over PW2's statement (Ext. PW15/A) recorded by him, appraised PW22 of the facts of the case, and then returned to KNK Marg PS without conducting any further investigation. On being shown Ext. PW14/A DD No. 44A, PW15 deposed that the said DD was neither prepared nor signed by him and that it must probably have been prepared by the duty officer of KNK Marg PS.

19. According to PW22, to whom PW15 had handed over PW[2] along with Ext. PW15/A statement, on 16.11.2017 PW[2] along with her husband had come to Haus Khas PS. She then recorded Ext. PW2/A statement of PW[2] and then handed over the same to the duty officer for registration of the FIR. Pursuant to the same, Ext.

20. Therefore, according to the prosecution, Ext. PW2/A is the statement/information given by PW[2] under Section 154 CrPC on the basis of which crime bearing number 427/2017 was registered, that is, Ext. PWX FIR. In this context it would be apposite to refer to the dictum of the Apex Court in T.T. Antony v. State of Kerala (2001) 6 SCC 181 in which it has been held that apart from a vague telephonic message or a cryptic communication, the earliest information relating to the commission of a cognizable offence that is recorded by the officer in charge of a police station in the station house diary constitutes the First Information Report within the meaning of Section 154 CrPC. Any subsequent information, whether oral or written, furnished after the commencement of the investigation into the same occurrence would merely amount to a statement under Section 161 CrPC and cannot be treated as a fresh FIR. Registration or treatment of such subsequent statement as another FIR would, in effect, amount to a second FIR, which is impermissible under the scheme of the CrPC.

21. Going by the materials on record, the first information/statement given by PW[2] was reduced into writing by PW15, who had been deputed to proceed to the house of PW[2] pursuant to the police receiving information of the crime. This information/statement was never produced before the court along with the final report/charge sheet. But when PW15 was examined, the prosecutor himself brought it out during the course of the examination-in-chief of the former that such a statement had been recorded and as directed by the trial court the same was brought on record and marked as Ext. PW15/A. It is true that PW[2] was never shown Ext. PW15/A during the course of her examination. But PW15 is a loyal prosecution witness and it is as per the request of the prosecutor, the first statement/information of PW[2] was introduced in evidence, marked and proved through PW15. It has also come out in evidence that PW15 had handed over Ext. PW15/A to PW22 as it was revealed that the crime was committed within the jurisdiction of Haus Khas PS. In such circumstances, the correct procedure to have been adopted by PW15 was to register a Zero FIR based on Ext. PW15/A and then transfer the same to Haus Khas PS to complete the further formalities. On the other hand, PW15 just handed over the first information/statement/report, that is, Ext. PW15/A to PW22. As Ex. PW15/A is the earliest information/statement/report given relating to the commission of a cognizable offence recorded by a competent police officer under Section 154 CrPC, PW22 ought to have registered the crime and proceeded with the investigation. On the other hand, PW22 is seen to have recorded another statement of PW[2], that is, Ext. PW2/A, on the basis of which the crime, that is, Ext.

PX FIR was registered. The statement recorded by PW22, that is, Ext. PW2/A has been treated by the prosecution and the trial court as the first information/report received under Section 154 CrPC on the basis of which the crime was registered. This is apparently wrong. Once the statement of PW[2] dated 15.11.2017 given to PW15, that is, Ext. PW15/A had set the law in motion, any subsequent statement relating to the same occurrence could only be treated as a statement under Section 161 CrPC and not as a fresh FIS/FIR as treated by PW22 in this case. Ex. PW2/A is a statement given later in point of time and hence can only be a statement under Section 161 CrPC attracting the bar contemplated under Section 162 CrPC and therefore ought not to have been marked in evidence.

22. Now coming to Ext. PW15/A, the earliest or the first information/statement/report given by PW[2] to PW15 on 15.11.2017 recorded in Hindi roughly translated reads thus – “Yesterday on 14.11.2017, I caught a TSR (three seater rickshaw) from Sarai Kale Khan bus stand to go home. The TSR driver dropped me near Ansal Plaza in Green Park. From there, I took a taxi. After I got into the taxi, the driver drove a short distance and then picked up another boy on the way. The taxi driver and the boy, by showing a pistol, directed me to keep quiet. They took me from there to a jungle near Pari Chowk in Noida, where they committed a wrong act with me. In the morning, I realized that I was at Pari Chowk in Noida. Both the boys took my gold earrings, gold mangalsutra, four gold bangles, and silver anklets, as well as my mobile phone (Oppo A-57) containing vodafone SIM number

9643461988. There was approximately ₹12,000/- in my purse. They took all the aforementioned articles from me. I am giving this statement in the presence of my husband Awadesh Kumar without any pressure. Legal action may be taken."

23. The aforesaid statement is seen signed by PW[2]. As noticed earlier, it is true that this document was never shown to PW[2] when she was in the box. However, PW15, a loyal prosecution witness, has proved that this is the statement given by PW[2] on 15.11.2017. On going through Ext. PW15/A, it is seen that after PW[2] had affixed her signature, PW15 has attested the same. Thereafter, it is recorded thus in Hindi: “मैने अपने फोन नं. 9643461988 से अपने पित अवधेश क ु मार को उनक े फोन नं. 9582810913 पर रात को समय करीब AM 12:30 रात म फोन िकया था व ऑटो वाले से बात करवाई थी िक म अंसल ाजा क े पास ँ तथा क ु छ देर बाद मुझे टै ी िमली िजसने मुझे रोिहणी ले जाने क े िलए िबठाया था जैसे ही म टै ी मे बैठी मैने ारा अपने पित को फोन करक े बतला िदया / िक मै टै ी मै बैठ कर आ रही ँ / सुबह समय करीब 6:00 बजे मुझे उन लोगो ने परी चौक क े पास छोड़ िदया / मैने वहाँ पर खड़ी ई टै ी वाले से रोिहणी छोड़ने क े िलए कहाँ / घर पर मैने अपने पित को सारी बात बतलाई / तथा म घर पर आक े नहा ली थी ल ी अवधेश क ु मार 9582810913”

24. The aforesaid content roughly translated reads thus:“I had called my husband from my mobile number 9643461988 to his mobile number 9582810913 at about 12:30 AM. The auto driver told my husband that I was near Ansal Plaza. After some time, I took a taxi to Rohini. As soon as I boarded the taxi, I again called my husband and told him that I am returning home in the taxi. By about 06:00 a.m., they left me near Pari Chowk. I took a taxi from there and told the driver to take me to Rohini. When I reached home I told everything to my husband. After reaching home, I took a bath.”

25. Ex. PW2/D, the 164 statement of PW[2], also seen recorded in Hindi, roughly translated reads thus:"I was going to Balaji Mehndi Pur. I had started from home at about 06:00 p.m. on 14.11.2017. I went by auto to Sarai Kale Khan. It was dark when I reached the bus stand. For a long time, I waited for the bus. I called my husband and told him that the bus had already left and that no bus had come. My husband asked me to return home. I then hired an auto. The auto driver said that he would not go to Sector 16 Rohini but would drop me at a place from where I could get a bus to the place. The auto driver dropped me near Ansal Plaza. As soon as I got down there, a taxi came and stopped in which there was one man. I told him that I wanted to go to Sector

16 Rohini. He agreed to take me and told me that the fare would be ₹550/-. I sat in the taxi. As soon as I got in, I called my husband. After the taxi went a little further, the taxi driver took another man inside. Both of them started threatening me (डराने धमकाने लगे). Then, they took me very far in the dark. The car was driven for about 45 minutes and then stopped by the side of the road. I called my husband. They had locked all the windows of the car. They snatched my phone and slapped me. They asked me not to shout, otherwise, they would kill me right there. They made me take off all my clothes. Then, they did dirty things (……मेरे साथ गंदे काम िकये, मुँह से िकया, लैिटन वाली जगह से भी िकया….). Around 05:00 a.m., they dropped me at Pari Chowk. From there, I took a taxi and told the taxi driver to follow them. The taxi driver took me to some distance, but they were not to be seen. Then I saw a police jeep. I told them (policemen) everything. The policemen asked me to sit in the taxi and that they would join me in following the assaulters. But the police car went quite far ahead. Then I told the taxi driver to drop me at my house. The taxi driver then put my address at Rohini on his mobile and told me that the fare would be ₹850/-. The taxi driver dropped me in front of my house. My husband asked the taxi driver from where he had picked me up. The taxi driver replied that he had picked me up at Pari Chowk. I did not have any idea of the route. I can only tell by seeking the place. The boys took my money, anklets, mangalsutra, ₹12,000/and four bangles. They took all my belongings. After reaching home, I did not tell my husband about the incident. My husband realised that my belongings had been robbed, but he did not realise that wrong things had also been done to me. The boys had taken my Oppo phone. From my phone, the boys were making video calls to my sisters. They had made my dirty videos. They activated my SIM at 01:00 a.m. last night. The boys are torturing my sisters by sending videos after undressing. In between, they also activate my SIM. On the day after the incident at 11:00 a.m., I told my husband about the incident. This is all I have to say. My husband became frightened/scared. I filed a report before the police. If I am shown the boys, I can identify/recognize them. Their age is around 18 to 19 years. Both of them are lean.”

26. During the trial, A[1] and A[2] took up the defence that PW[2] had voluntarily joined them and that the sexual acts thereafter were consensual. A[1] and A[2], while questioned under Section 313(1)(b) CrPC, submitted that PW[2] had falsely implicated them; that she had voluntarily joined them; that they did not sexual assault her against her will or consent; that she has falsely implicated them with the intention to extort money and that the sexual relationship was consensual. In the light of the defence taken up, the only question that needs to be considered is whether the materials on record show that the relationship was consensual.

27. According to the learned prosecutor, as per Section 114A of the Evidence Act, in cases where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. But, Section 114A is attracted only in case of rape falling under any of the clauses, that is, (a) to (n) of Sub Section (2) of Section 376 IPC. No such presumption is attracted to cases of rape falling under Section 376(1) IPC. A Charge should therefore always be framed in case of rape either under Sub Section (1) or Sub Section (2) of Section 376 IPC. Conviction should also be so distinctly recorded. (See Pankaj Singh vs. State of Haryana, 2024 KHC 8156: AIR 2024 SC 3091).

28. In the case on hand, there is no Charge under any of the clauses of Section 376 (2) IPC. On the other hand, the Court Charge inter alia is for the offence punishable under Section 376D IPC. The conviction by the trial court is also for the said offence. Hence, it is clear that the presumption under Section 114A Evidence Act is not attracted to the facts of the present case. Therefore the trial court went wrong in concluding and applying Section 114A of the Evidence Act to the facts of the present case.

29. Even assuming for argument's sake that Section 114 A Evidence Act is attracted, the following position emerges. No doubt conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity (Ramdas v. State of Maharashtra, 2007 KHC 3044: 2007 (2) SCC 170). It is also true as held in State of Punjab v. Gurmit Singh, AIR 1996 SC 1393, that it cannot be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. In Wahid Khan v. State of Madhya Pradesh, 2010 KHC 6059: (2010) 2 SCC 9, it has been held that it is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are. Thus, in a case of rape, testimony of a prosecutrix stands at par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible.

30. Be that as it may, does that mean that the evidence of the prosecutrix is the gospel truth? The answer can only be in the negative. In Rajoo v. State of M. P., 2009 KHC 4344: AIR 2009 SC 858 it has been held that the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. Reference was then made to Gurmit Singh's (supra) case and to the amendments in 1983 to S.375 and 376 IPC making the penal provisions relating to rape more stringent, and also to S.114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape and it has been held that it is however significant that S.113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under S.114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. It is under these principles; the case needs to be examined.

31. The term 'consent' has not been defined in IPC. Section 90 IPC, though does not define "consent", describes what is not "consent". Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the prosecutrix under misconception of fact, it is vitiated. Consent for the purpose of S.375 IPC requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances. As held by a learned single Judge of the High Court of Kerala in Sunil Kumar v. State of Kerala, 2013 KHC 468, a reading of the literature on the subject and also the various decisions relating to the matter, it becomes clear that there is no straight-jacket formula in ascertaining whether there is consent in a particular case. A decision has to be arrived at on the basis of the facts and circumstances of each case and in the light of the evidence adduced in the case. In each case the evidence will have to be appreciated independently. But for the consent given by the victim, the act would be illegal and would amount to rape. It is axiomatic that consent is the linchpin of the offence. Consent being a state of mind of an individual, the difficulty arises when one is called upon to ascertain the state of mind of a person at a particular point of time. In order to ascertain whether there is consent on the part of the victim, her conduct before, during and after the incident has to be ascertained. The potential of consent lies in its authority to metamorphose an act that is wrong into one which the law will permit.

31.1. In Pramod Suryabhan Pawar v. State of Maharashtra, 2019 KHC 6829, the Apex Court has held that an inference as to consent can be drawn only based on evidence or probabilities of the case. "Consent" is an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. This understanding was also emphasised in the decision in Kaini Rajan v. State of Kerala (2013 KHC 4753: (2013) 9 SCC 113. "Consent", for the purpose of S.375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all the relevant circumstances.

31.2. I also refer to the dictum in Deelip Singh @ Dilip Kumar vs State of Bihar, AIR 2005 Supreme Court 203, wherein the Apex Court after referring to Section 90 IPC held that consent given firstly under fear of injury and secondly under a misconception of fact is not 'consent' at all. That is what is enjoined by the first part of Section 90 IPC. These two grounds specified in the Section are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the Court should also be satisfied that the person doing the act i.e. the alleged offender, was conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology. Section 90 cannot, however be construed as an exhaustive definition of consent for the purposes of the IPC. The normal connotation and concept of 'consent' is not intended to be excluded. There is a difference between consent and submission, every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Reference was also made to the three Judge Bench decision in State of Himachal Pradesh v. Mango Ram, (2000) 7 SCC 224, wherein it has been held that submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. The burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114A of the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides. Whether on the basis of the evidence adduced by the prosecution, it is reasonably possible to infer lack of consent on the part of the prosecutrix is the ultimate point to be decided.

32. Keeping the aforsesaid principles in mind, I proceed to consider whether the prosecution has been successful in establishing that PW[2] was raped under threat/ coercion or whether the materials on record indicate that it was a consensual one.

33. PW[2] when examined before the trial court deposed that as she was not keeping good health, about 4 to 5 months prior to the incident, she and her husband (PW[3]) had visited Mehndipur Balaji Temple. On 14.11.2017 at about 06:30 p.m, she left her house alone for Mehndi Pur Balaji as her husband was unwell. She reached Sarai Kale Khan bus stand within 1 ½ to 2 hours. She waited for a bus to the said place but she did not get any. On informing her husband over the phone about the same, he advised her to return home in an auto. She hired an auto. The driver expressed his inability to take her to Sector 16 Rohini but said that he would drop her at a place from where she could get a taxi. The auto driver dropped her at some place saying that she would be able to get a taxi to Sector-16 Rohini. The time was around 11:00 PM. A car with yellow plate arrived. The car was being driven by A[2] who agreed to take her to Sector-16 Rohini for ₹550/- saying that he had to pick up another person from the said place. After boarding the taxi, she informed her husband that she would reach home in 40 to 45 minutes. After driving for a while, the driver took a u-turn and picked up another man, that is, A[2] from beneath a bridge. The windows of the car were closed as the driver had switched on the air conditioner. She asked the driver the time within which she would reach her destination as he had taken another passenger. The car was being driven at high speed. She noticed that the driver and the other passenger were conversing in some native dialect. The driver and the passenger appeared to be homely persons and so she did not initially apprehend any danger. They told her that they would reach her destination within 30 to 40 minutes. All the windows were locked from inside. Then, the driver started threatening her and asking her to remain quiet or else she would be killed. She was also slapped. The car was then driven towards a jungle, which she realized in the morning to be Pari Chowk, Greater Noida. The driver stopped the car in the jungle. Then, the driver and the other passenger got down to urinate during which time she again called her husband. When the driver and the co-passenger noticed her on the phone, they snatched away her mobile phone. The car had three rows of seats. She was pushed to the last row of seats, threatened and forced to remove all her clothes. Both the persons forced themselves on her. They forcibly committed sexual intercourse with her by penetrating her vagina with male organs and also subjected her to oral sex. They pulled her by her hair, took away her purse containing ₹12,000/- and her gold earrings, mangal sutra, anklets, bangles and mobile phone. They gave her ₹50/- and pushed her out of the car near Pari Chowk before speeding away. She walked some distance and boarded another taxi. She disclosed to the driver of the said taxi that a wrong act had been committed against her. The taxi driver took her to a police gypsy parked nearby. She got down from the taxi and informed the policemen about the incident. The policemen appeared to be drunk and so she refused to get into the vehicle of the police despite being told to do so. She requested the taxi driver to drop her home. It was still dark at that time. The taxi driver booked another cab for her and she returned home in that cab. The police gypsy had followed the cab for some distance before turning away. The cab driver on reaching home told her husband about the place from where he had picked her up. After about 1 ½ to 2 hours of reaching home, she informed her husband about the incident. Her husband informed his friend. Thereafter, she and her husband attempted to locate the place of occurrence since she was unable to recollect as to where she had been taken to. Thereafter, a call was made to telephone no. 100. The police came to the showroom where her husband worked and recorded her statement. According to PW[2], it was a lady police official of Hauz Khas police station who had recorded her statement. PW[2], on being shown her statement, identified her signature therein, but stated that she was unaware of the contents as she is illiterate. The said statement has been marked as Ext. PW2/A. (I have already held that this statement is inadmissible and that it ought not to have been marked)

33.1. During the course of the examination-in-chief, the prosecutor is seen to have sought the permission of the court to put leading questions to the witness. This request was allowed by the trial court. On further examination by the prosecutor, PW[2] deposed that both A[1] and A[2] had consumed liquor before as well as after raping her. She had stated to the police that A[1] and A[2] had repeatedly subjected her to sexual intercourse by taking turns, committed oral and unnatural sexual acts upon her and had also with her mobile phone recorded a video of the incident using the torchlight of their mobile phone. She had also stated to the police that the semen ejaculated by the accused had fallen on the seat of the car and that the accused had wiped it off using her top. She had stated before the Magistrate that after committing rape, A[1] and A[2] had threatened to kill her and circulate the obscene video recorded by them to her sisters and other relatives. According to PW[2], the contact number of her relatives were available on the WhatsApp in her mobile phone and that the accused had, in fact, called her sisters from her mobile phone. She had not stated before the Magistrate that A[1] and A[2] were torturing her family members by sending them the video they had recorded of the assault, though she had stated that they were harassing her family members. PW[2] further deposed that she had not seen her mobile phone after it had been taken away by A[1] and A[2]. She was unable to say whether the video recording made by A[1] and A[2] during the course of the assault, still remained in her device. At this stage of her examination, PW[2] the Investigating Officer (IO) was asked to clarify by the trial court, as to whether PW2's mobile phone had been examined. The IO answered that though she had checked the mobile phone, no objectionable material was found.

33.2. PW[2] in her cross-examination deposed that she is illiterate, had never attended school, and is a homemaker. Her husband worked in a showroom. She reiterated that on 14.11.2017, she had left her house at about 06:30 p.m. for Mehndi Pur Balaji, reached Sarai Kale Khan after about 1 ½ hours and waited there for about 2 to 2 ½ hours for a bus. She did not take a bus in the morning or afternoon, as she was unwell then. According to PW[2], if one takes a bus from Sarai Kale Khan in the evening, they can reach Balaji in the early hours of the next day. Since no bus arrived, she contacted her husband who said that he would come and pick her up. But it was quite late and so she was scared/frightened. Hence she took an auto to return home and told her husband not to come. She had spoken to her husband five to six times during the night, that is, between the time she had reached Sarai Kale Khan and the time she reached home. PW[2] was unable to specify the time taken to travel from Sarai Kale Khan to Ansal Plaza. PW[2] further deposed that she informed her husband about the incident at about 03:00 to 04:00 p.m. Thereafter, she, her husband (PW[3]) and his employer (PW[7]), first went to Sarai Kale Khan, and then to the place where the auto driver had dropped her, and subsequently to Greater Noida in PW7's car. PW[2] further deposed that they reached Sarai Khan at about 5:00 p.m. Thereafter, they proceeded to Ansal Plaza, where they reached within half an hour, and then proceeded to the showroom of PW[7], from where a call was made to the police. PW[2] denied having stated to the doctor that she had boarded the taxi pursuant to a ride offered by the accused. PW[2] further deposed that for two to three days, they had searched for A[1] and A[2] in the Greater Noida area. A[1] and A[2] were ultimately traced through the video calls they had been making. PW[2] admitted that she had identified A[1] and A[2] before the police after they had been arrested. According to PW[2], the police had come to the showroom where her husband worked on 15.11.2017 or 16.11.2017 in the evening, and that her statement had been recorded at the showroom by a male police official. She met a lady police officer later at the police station. PW[2] denied the suggestion that it was completely dark when A[1] and A[2] left her near Pari Chowk. According to her, as it was dawn, there was some light at the time, which according to her was about 04:30 to 05:00 a.m. Although there were houses nearby, she could only see their boundaries and hear the noise of passing vehicles as A[2] had parked the taxi in a jungle. She did not raise any alarm while being taken to the place of occurrence as she never thought that the accused would do any wrong to her. The road was empty. She did not raise an alarm at the spot also as the windows were locked from outside and the accused were beating her. When she boarded the taxi from Ansal Plaza, she had informed her husband that she would reach home within 30 to 45 minutes. The time then was past 11:00 p.m. PW[2] denied the suggestion that her husband took no action when she failed to reach home within 30 to 45 minutes. According to PW[2], her husband called his colleagues and did make efforts to search for her. PW[2] further deposed that by the time she reached Sarai Kale Khan, the bus to Mehandipur Balaji had already left. According to her, she had made enquiries with the other passengers waiting at the bus stop and she had also waited for about two and half hours for a bus. PW[2] denied the suggestion that she had falsely implicated A[1] and A[2] in order to extort money from them. She also denied the suggestion that she had voluntarily accompanied A[1] and A[2] and had consented to the sexual acts.

34. PW[3], husband of PW[2] deposed that on 14.11.2017 his wife left home alone at about 05:00 PM to visit Mehandipur Balaji Temple as he could not accompany her due to some official work. PW[2] was to board a bus from Sarai Kale Khan. At about 09:00- 09:30 PM, his wife informed him over phone that she could not board a bus to Mehandipur Balaji. He asked his wife to return home. Around 10:45 PM - 11:00 PM, she again called and informed him that she had boarded a car to return home. At about 12:30 AM, she again called him on phone and told him that she apprehended danger as the driver had taken her to an unknown place. Shortly thereafter, she made another call stating that she was being beaten, following which her mobile phone was switched off. He immediately informed his employer, PW[7], who came to his room. As PW2’s phone remained switched off, he and PW[7] waited for PW[2] to return. After about half an hour, PW[7] left his room and so she continued to wait for his wife at home under the impression that she had lost her way. PW[3] further deposed that his wife returned home at about 05:00 AM - 06:00 AM. Since she appeared extremely nervous, he did not ask her anything. She took a bath and went to sleep. She woke up at around 11:00 AM - 12:00 Noon. He then called PW[7] to his room. After his wife woke up, he asked her about her whereabouts. His wife did not tell him anything for about half an hour but thereafter told him about the entire incident. She told him that she had been raped by two unknown persons. Initially, he did not want to report the matter to the police. But his wife wanted to file a complaint. He told his employer about the incident, who advised him to call the police. He made a call to 100 number pursuant to which PCR officials came and took them to K.N. Katju Marg, PS from where they were referred to Hauz Khas PS. His wife narrated the incident to a lady police officer. Thereafter, they accompanied the police to various places, including Pari Chowk, in connection with the investigation for about 4-5 days. Within 7-8 days, one of the accused persons was apprehended near the place Loni. His wife identified the said person as one of the rapists. On the following day, the other accused was apprehended who was identified by his wife at the police station. He further deposed that his wife told him that A[1] and A[2] had taken away her purse containing ₹11,000/- - ₹12,000/-. mangalsutra, anklets, four bangles, earrings (jhumki), and her gold coloured OPPO A57 mobile phone.

34.1. PW[3] in his cross-examination deposed that on the date of the incident, his wife had left home at about 05:00 – 06:00 p.m. According to PW[3], his wife did not specify the time by which she would reach home, but she only told him that she had boarded a taxi. It would take around 01 – 1 ½ hours to reach his home from Ansal Plaza. PW[3] admitted that normally, if a family member goes missing, the other family members would file a police complaint. But he could not do so as he was extremely nervous. He made efforts to search for his wife in the nearby area, in which attempt he was joined by PW[7]. He had called his employer during the night itself, but the latter advised him to wait till morning. His employer remained with him for about half an hour. He again called his employer at 12:00 noon. PW[3] further deposed that he did not talk to his employer during the time between 11:00 a.m.– 12:00 noon. His wife did not disclose the incident immediately upon returning home, but narrated it only around noon after his employer arrived. Both he and his wife were initially reluctant to lodge a complaint, but on being counseled and advised by his employer, they gave the complaint. It was around 12:00-12:30 p.m. on 15.11.2017, his employer had advised them to approach the police. Thereafter, he and his wife accompanied by his employer (PW[7]), by around 12:30-01:00 p.m., left in his employer’s for Pari Chowk. From Pari Chowk, they returned to the showroom of his employer by 05:00-07:00 PM. It was his employer who informed the police by calling number 100. His wife had on 14.11.2017 had only called him twice, both of which were received by him at his residence.

35. PW[7] deposed that he has been running an electronic showroom under the name and style, S.S. Electronics at Sector-16, Rohini and that PW[3] had been working as a salesman in his showroom since February 2016. On 15.11.2017, at about 01:00 a.m., he received a call from PW[3] informing him that PW[2] had been kidnapped. He immediately rushed to the house of PW[3]. He advised PW[3] to wait till morning and, if PW[2] did not return, to lodge a complaint with the police. Thereafter, he returned to his house. At about 12:30 p.m. on the same day, he again received a call from PW[3] informing him that PW[2] had returned home in a nervous condition. He again went to their house and found PW[2] in a disturbed and nervous state. PW[2] started weeping and upon being asked, told him that she had been beaten, raped and that her jewellery, money, and mobile phone had been taken away. Thereafter, he persuaded both PW[2] and PW[3] to lodge a complaint with the police regarding the incident. He then took PW[2] and PW[3] to Pari Chowk and also made a search of two to three nearby places. Thereafter, they returned to his showroom and called the police. The SHO, K.N. Katju Marg, PS came to his showroom, but as the matter fell within the jurisdiction of Hauz Khas police station, the police took them there, where PW[2] lodged her complaint.

35.1. PW[7] in his cross-examination deposed that it was PW[3] who had called the police, though he was unable to recall whether the call was made from his own mobile phone or from the former’s phone.

36. As noticed earlier, the genesis of the present case lies in Ext. PW15/A, the first statement/information/report given by PW[2] to PW15, which, in the facts of the present case, constitutes the FIS/FIR and not Ext. PW2/A, as has been erroneously treated by both the prosecution and the trial court. It is no doubt true that a witness cannot be expected to narrate every event with mathematical precision. Nevertheless, there must be a consistent and coherent account of the material particulars of the occurrence so as to inspire confidence in the prosecution case.

37. A careful perusal of the information conveyed through the PCR call and recorded as DD entry no. 44A, namely, Ext. PW14/A; Ext. PW15/A FIS/FIR no. 232, and Ext. PW3/A Section 164 statement of PW[2], reveal material inconsistencies on fundamental aspects of the prosecution story. Though it was submitted on behalf of the defense that there are severe contradictions, none have been proved by resort to the procedure contemplated under Section 145 Evidence Act and hence, the defense cannot take advantage of the same. But, the prosecution relies on Ext. PW15/A FIS/FIR and Ext. PW2/D 164 statement for the purpose of corroborating the testimony of PW[2]. It is true, as noticed earlier, that PW[2] was never confronted with Ext. PW15/A. But, the prosecution has no case that Ext. PW15/A is not the first information/report given by PW[2] as testified by PW15, a loyal prosecution witness. Even after Ext. PW15/A was proved through PW15, PW[2] was never recalled to clarify or explain the same. Therefore, it is clear and obvious that the prosecution has no quarrel/dispute regarding Ext. PW15/A. In fact, it is the prosecutor himself who made a conscious effort to bring the said information/statement on record and prove it.

38. Ext. PW15/A FIS/FIR does not corroborate the testimony of PW[2] on certain material aspects. To begin with, there are glaring inconsistencies regarding the weapon allegedly used by A[1] and A[2]. Ext. PW14/A, DD entry no. 44A, which records the first call to the police relating to the crime made by none other than PW[3], the husband of PW[2], says that his wife was raped at knife-point. However, in Ext. PW15/A, PW[2] has stated that the taxi driver and the other boy in the taxi threatened her by showing a pistol (…टै ी डाइवर व दू सरे लड़क े ने मुझे िप ल िदखाकर चुप रहने क े िलए बोला था…) Ext. PW2/D 164 statement, records that one of the accused said [..िनकाल िप ल और इसको ठोक.. (take out the pistol and shoot her)]. In the box, PW[2] has neither a case of rape at knife or gunpoint. On the other hand, there is absolutely no reference to the use of any weapon, be it a knife or a gun by A[1] and A[2] before, during, or after the incident.

39. Further, there is also no consistency regarding who, when, and where the FIS/FIR of PW[2] had been recorded. PW15 claimed that he had recorded Ext. PW15/A at the residence of PW[2] in Rohini. But PW[2] has a different version. Initially, she deposed that it was recorded by a female police official of Hauz Khas police station. PW22 the IO, has a case that PW[2] and PW[3] had come to Hauz Khas police station on 16.11.2017, and then she had recorded the statement/information/report of PW[2], which led to the registration of the FIR. Though initially PW[2] has a case that her statement/information/report was recorded by a female police official, she thereafter deposed that on 15.11.2017-16.11.2017, it was recorded by a male police official at the workplace of her husband. PW[3], on the other hand, deposed that PW[7], his employer, informed the police about the incident, pursuant to which the police came to his workplace. The police took them first to KNK Marg police station from where the case was sent to Hauz Khas police station, at which station PW2's statement/report/information was recorded by a lady police official. PW[7] has yet another case. According to him, the SHO KNK Marg police station came to his showroom, but however, since the crime was committed within the jurisdiction of Hauz Khas police station, the police took them to the said police station where the statement of PW[2] had been recorded.

40. It is also pertinent to note that PW[2] never disclosed anything regarding the video alleged to have been recorded by A[1] and A[2] while she was being subjected to the alleged sexual assault, in Ext. PW15/A, which constitutes the earliest detailed version of the occurrence. It is true that the FIS/FIR is not an encyclopedia and need not necessarily contain all the minute details related to the crime. But the broad details must certainly be there. This is especially so because PW[2] has a specific case that A[1] was threatening her that he would send the said objectionable video to her relatives and friends. In fact, the specific case of the prosecution is that it was pursuant to one such video call, A[1] had been apprehended. But there is no reference to the video in Ext. PW15/A. However, in Ext. PW2/D 164 statement, PW[2] introduced the allegation that A[1] and A[2] had recorded a video of the incident. The said version was reiterated by her in the box also. PW[2] has also a case that A[1] and A[2] tried to circulate the video to her sister and other relatives. But no such objectionable material was found by the police in the mobile phone of PW[2], which has been marked as Ext. P[2], in which the recording is alleged to have been made. On the other hand, to a query by the Court during the course of the trial, PW22, the IO categorically stated that on examination of Ext. P[2] phone, no objectionable material was found. The prosecution has no case that A[1] and A[2] had deleted the video and hence, the data was not retrievable. On the other hand, the definite answer given by PW22 is that nothing objectionable was found in Ext. P[2] phone.

41. According to PW[2], apart from the money in her purse and her gold ornaments, A[1] and A[2] had robbed her Ext. P[2] mobile phone also. Hence, I will refer to the evidence regarding the mobile phone. PW[2] in her cross-examination has a case that after the incident, the accused had in fact made a call to her sisters. She admitted that she had not in her 164 statement stated that A[1] and A[2] had threatened to kill her or threaten to send the objectionable video recorded by them to her sisters and relatives. But she added that since the contact numbers were available on her phone, the accused had in fact made a call to her sisters from her mobile. PW[2] has not specified as to which of the accused persons had made the video call to her sisters. The prosecutor seems to have never thought it necessary to clarify the same also. Ext. PW19/A are three photographs alleged to have been clicked by PW[2], when A[2] made a video call to her. PW19, ASI Haus Khas PS deposed that on 16.11.2017, he joined the investigation with PW22. On 22.11.2017, he along with Sub Inspector Varun Gulliya and other policemen went to village Maicha, Greater Noida from where PW[2] was receiving calls on her mobile phone from A[1] and A[2]. PW[2] took a screenshot, when she received the calls. The photos were sent to his mobile phone by PW[2], and he in turn forwarded the same to PW22. PW19 identified the photos and the same have been marked as Ext. PW19/A (03 in number).

42. PW22, the IO deposed that on 17.11.2017-18.11.2017, PW[2] informed her that she and her relatives were receiving obscene video calls from her mobile phone which had been robbed by A[1] and A[2]. She directed PW[2] to remain in touch with A[1] and A[2] so as to enable the police to trace their location. As instructed by the police, PW[2] informed A[2] that she would be coming to meet him. A[2] showed his face on the mobile phone and then PW[2] took a screenshot of the same and sent it to PW19. PW22 also identified Ext. PW19/A photographs. PW22 further deposed that Sub- Inspector (SI) Varun Gulia on 23.11.2017 produced A[2] before her along with two mobile phones, one a Samsung and the other an Oppo phone, golden color, which she seized as per Ext. PW19/B and Ext. PW19/C seizure memos respectively. Ext. PW19/C prepared by PW22 on 23.11.2017 says that the Oppo gold color phone with IMEI number 865166031826798 and 865166031826780 with Vodafone SIM number 9643461988 had been produced before her by SI Varun Gulia, who informed her that the said phone had been seized from the custody of A[2]. However, the SI who is alleged to have seized the mobile phone from A[2], is not seen examined before the trial court. In the charge sheet, SI Varun Gulia is shown as CW[6]. On 20.08.2018, the trial court is seen to have ordered summons to be issued to CW[6] to appear on 17.09.2018. CW[6] was in fact present on 17.09.2018, but was discharged due to paucity of time and his examination was adjourned to 29.09.2018. On the said day, the prosecutor submitted that his examination was unnecessary in the light of the testimony of PW19 and PW22. In the light of the submission made, CW[6] was given up and never examined before the trial court.

43. PW19 deposed that on 22.11.2017, he along with CW[6] and team went to village Maicha, Greater Noida from where PW[2] was receiving calls from A[1] and A[2] on her mobile. After they received Ext. PW19/A photographs, they showed the same to an informer with whose help they apprehended A[2]. A Samsung phone and an Oppo phone were recovered from A[2] which were seized as per Exts. PW19/C and PW19/B seizure memos, in which he is an attesting witness. PW19 in his cross-examination deposed that after A[2] was apprehended by CW[6] and team, it was he who had handed over the custody of A[2] to PW22, who in turn arrested A[2] at about 08:00 a.m. in the police station. But according to PW22 it was CW[6] who had produced A[2] before her on 23.11.2017 at 07:00 a.m. PW[2] further deposed that she is unaware as to when CW[6] apprehended A[2].

44. Further, the arrest memo and search memo of A[2] alleged to have been prepared by PW22 at the time of arrest are Exts. PX[4] and PX[5] respectively. In the column relating to the articles seized from A[2] it is recorded thus- “-NIL-”. Neither PW19 nor PW22 has a case that the seizure of the phones from A[2] were made in the presence of PW22. On the other hand, both agree that A[2] was apprehended and the seizure effected by CW[6]. But Ext. PW19/C the seizure memo of Ext. P[2] phone alleged to have been robbed from PW[2] and seized/recovered from A[2] has not been prepared by CW[6]. On the other hand, it appears to have been prepared by PW22 whose signature is seen at the bottom of the same in which document, PW19 is an attester. CW[6] is seen to have also signed Ext. PW19/C as “पेश कता”. There are no independent witnesses to prove the seizure of Ext. P[2] phone. It is true that in all cases it is not necessary to examine independent witnesses to prove the recovery/seizure of stolen articles from the accused. But in such cases, the materials on record must be quite cogent and satisfactory to establish the same beyond reasonable doubt, which does not seem to be the case in the matter on hand.

45. Further, PW[2] has a case that in addition to the mobile phone, A[1] and A[2] had robbed an amount of ₹ 12,000/- as well as her gold ornaments, four gold bangles, her gold ear earrings, mangal sutra, as well as her silver anklets. PW22 is seen to have conducted no investigation whatsoever relating to the same. The prosecution has no case that A[1] and A[2] had disposed of the same and hence they were unable to recover the same. On the other hand, there is complete silence of PW22 and team regarding the gold ornaments and cash alleged to have been robbed from PW[2].

46. Further, PW[2] has a case that A[2] had called her as well as her sisters/relatives over phone. However, according to PW22, her investigation revealed that on 21.11.2017-22.11.2017, A[1] and A[2] had made several calls to PW[3], the husband of PW[2], the call details of which are at pages 561, 563, 565, 567 of Ext. PW11/B (colly). But, PW[3] has no such case. PW[3] was never asked regarding these calls alleged to have been made by A[2] to him. If PW2’s version is right, why did A[2] make several calls to PW3? No explanation whatsoever is forthcoming from the prosecution on this aspect. In addition, there is no evidence to substantiate the claim of PW[2] that A[1] and A[2] had made several obscene video calls to her sisters/relatives.

47. Now coming to the conduct of PW[2] and PW[3]. As per the testimony of PW[2], she remained in telephonic contact with her husband (PW[3]) at several stages, beginning from the time she intended to board a bus to Mehandipur Balaji from ISBT Sarai Kale Khan, the non-availability of the bus, her journey by auto rickshaw to Ansal Plaza, her boarding of the cab driven by A[2], and even during the alleged assault by the accused persons. According to PW[2], on the date of the incident, she had made about 5 to 6 calls to her husband. According to PW[3], the first call was received at about 09:00 – 09:30 pm when her wife informed him that she did not get any bus to Mehandipur Balaji. He received the second call at about 10:45 – 11:00 pm when she informed him that she had boarded a taxi to return home. The third call was received at about 12:30 a.m. when his wife informed him that she apprehended danger and that the driver has taken her to an unknown place. Shortly thereafter, he received one more call when his wife informed him that she was being beaten, following which her phone was switched off. According to PW[3], he waited for his wife to return home as he was under the impression that his wife had lost her way. PW[3] has also a case that he along with PW[7] had searched for his wife in the nearby places. The conduct of PW[3] appears to be quite unusual and inconsistent with the natural course of human conduct. PW[3] in his cross examination admitted that he did not immediately inform the police as he was nervous and instead confined his efforts to searching the nearby areas.

48. It is no doubt true that the Court cannot expect a person faced with the sudden disappearance or abduction of a close family member to react in any particular manner or to mechanically follow legal procedures. Human behaviour varies from person to person. Nevertheless, in the facts of the present case, when PW[3] claims to have been specifically informed by PW[2] that she apprehended danger and was thereafter beaten by the accused persons, his failure to immediately alert the police or any other authority, coupled with his decision to merely wait for PW[2] to return home on her own till the following morning, despite the alleged occurrence having taken place in another part of the city, appears unnatural and quite improbable. Such conduct, when viewed in the backdrop of the other inconsistencies appearing in the prosecution case, creates further doubts in the mind of this Court regarding the truthfulness of the prosecution version.

49. Further, I also refer to the Ext. PW11/B Call Detail Record from 14.11.2017 08:00 PM to 15.11.2017, which was proved by the prosecution thereafter, PW11, Nodal Officer, Vodafone mobile Services. The relevant portion is reproduced hereinbelow.:- S.No. Call made from Called received Date Time DURATION (SECONDS)

1. 09643461988 09582810913 14-NOV- 20:10:16 523

2. 09582810913 09643461988 14-NOV- 20:28:30 189

3. 09643461988 09582810913 14-NOV- 22:45:06 123

4. 09582810913 09643461988 14-NOV- 23:56:17 44

5. 09582810913 09643461988 15-NOV- 00:04:40 10

6. 09643461988 09582810913 15-NOV- 00:07:55 32

7. 09582810913 09643461988 15-NOV- 00:10:31 37

8. 09643461988 09582810913 15-NOV- 00:15:03 39

9. 09643461988 09582810913 15-NOV- 00:20:23 33

10. 09643461988 09582810913 15-NOV- 00:27:23 119

11. 09643461988 09582810913 15-NOV- 00:30:31 73

12. 09643461988 09582810913 15-NOV- 00:34:59 237

13. 09582810913 09643461988 15-NOV- 00:39:17 70

14. 09643461988 09582810913 15-NOV- 00:42:03 58

15. 09643461988 09582810913 15-NOV- 00:47:17 38

16. 09582810913 09643461988 15-NOV- 00:48:55 41

50. Admittedly, mobile number 9643461988 is of PW[2] and 9582810913 is that of PW[3]. A bare perusal of Ext. PW11/B Call Detail Records (CDRs), read with the testimony of PW[2] and PW[3], reveal several inconsistencies in the prosecution version regarding the sequence of events on the intervening night of 14.11.2017- 15.11.2017.According to PW[2], she reached ISBT Sarai Kale Khan at about 08:00-08:30 PM after travelling for about 1 ½ to 2 hours. Finding that no bus was available for Mehandipur Balaji, she immediately informed PW[3] over the phone. This version is substantially reflected in the CDR, which shows a call from PW[2] to PW[3] at 08:10:16 PM lasting 523 seconds, followed by a return call from PW[3] at 08:28:30 PM lasting 189 seconds.PW[2] further deposed that after proceeding to Ansal Plaza, she boarded the taxi driven by the accused at about 10:45 PM - 11:00 PM and immediately informed her husband. PW[3] also deposed that he received a call from PW[2] informing him that she had boarded a car to return home. The CDRs corroborate this aspect by recording a call from PW[2] to PW[3] at 10:45:06 PM lasting 123 seconds. According to PW[2], after travelling for about 45 minutes, the taxi reached a secluded place where the accused persons began assaulting her. PW[3] deposed that, at about 12:30 AM, he received a distress call from PW[2] informing him that she apprehended danger as the vehicle had taken a wrong route, followed by another call stating that she was being beaten, after which her mobile phone was switched off. However, the Call Detail Records gives a different version. The records show a call from PW[3] to PW[2] at 11:56:17 PM lasting 44 seconds, followed by a series of thirteen short-duration calls exchanged between 12:04:40 AM and 12:48:55 AM. These calls were initiated alternately from both numbers. Thus, Ext. PW11/B Call Detail Records does not support PW3’s version that the mobile phone was switched off immediately after the alleged distress call. On the contrary, the CDRs demonstrate continued telephonic activity between the two numbers for nearly forty-five minutes thereafter. This materially contradicts PW3’s version that communication had completely ceased and that he merely waited at home after receiving the initial calls. The prosecution has offered no explanation for these repeated calls, thereby creating a serious doubt regarding the sequence of events narrated by PW[2] and PW[3].

51. It is also pertinent to note that the prosecution witnesses have given materially inconsistent versions regarding the manner and timing in which PW[2] disclosed the alleged incident to PW[3], her husband. In Ext. PW15/A she has stated that she revealed the incident on reaching home. In Ext. PW2/D 164 statement, she in fact states that after reaching home she did not tell her husband about the incident. On the other hand, her case is that on the day after the incident at about 11:00 a.m. she disclosed the incident to her husband. So was it on 16.11.2017 she had disclosed it to her husband? But in her examination-in-chief, PW[2] deposed that she narrated the incident to PW[3] after about 1 ½ to 2 hours of reaching home. However, in her cross examination, she stated that she informed her husband about the incident only at about 03:00 PM to 04:00 PM.

52. PW[3], on the other hand, gave an altogether different version. According to him, PW[2] returned home at about 05:00 AM-06:00 AM in a nervous condition. He did not question her immediately, instead, PW[2] took a bath and went to sleep. When she woke up at about 11:00 AM - 12:00 noon, he enquired about her whereabouts. Initially PW[2] remained silent for nearly half an hour before narrating the entire incident to him.

53. Now coming to the version of PW[2] regarding nonavailability of any bus to Mehandipur Balaji. Going by the version of PW[2], she was unable to get any bus to Balaji Mehndipur and hence the reason why she was constrained to take an auto to Ansal Plaza and thereafter, the taxi driven by A[1]. According to her, she had waited for a bus for a considerable period of time, however, no bus had come. Here I refer to the testimony of DW[2], Traffic Inspector, Rajasthan State Road Transport Corporation, Delhi Depot, ISBT, Sarai Kale Khan, New Delhi, examined on behalf of A[1] and A[2], who produced the details of the buses which had left ISBT, Sarai Kale Khan on 14.11.2017 for Balaji Mehandipur. The same has been marked as Ext. DW2/A (running into six sheets). DW[2] deposed that the last bus of Rajasthan State Road Transport Corporation left ISBT, Sarai Kale Khan on 14.11.2017 for Balaji, Mehandipur at 23:30 hours. The first page of Ext. DW2/A reads thus:- The aforesaid document translated reads – Date - 14-11-2017: List of vehicles operating from Delhi (Sarai Kale Khan) on the Delhi – Balaji route. Booking Clerk: Mr. Mahesh Jaiman Time Vehicl e No. Depot Name Route Via Driver's Name Conductor's Name 20:00 2319 Lohagarh Delhi - Balaji Nagar, Kherli, Sohna Mr. Harveer Singh Mr. Karan Singh 20:15 955 Dausa Delhi - Balaji Tijara, Alwar Mr. Dheer Singh Mr. Bhanu Kumar Sharma 21:00 2352 Lohagarh Delhi - Balaji Nagar, Kherli, Sohna Mr. Rameshwar Dayal Mr. Manish Kant 21:15 1254 Dausa Delhi -Balaji Tijara, Alwar Mr. Bahadur Singh Mr. Hitesh Kumar Joshi 22:00 4551 Bharatpur Delhi-Nadbai Sohna, Nagar, Kherli, Kathum ar Mr. Raghuveer Singh Mr. Atar Singh 22:15 1344 Dausa Delhi - Balaji Tijara, Alwar Mr. Satyanarayan Meena Mr. Harkesh Meena Booking Clerk's Name: Mr. Jogendra Singh Time Vehicle No. Depot Name Route Via Driver's Name Conductor 's Name 20:30 2381 Lohagarh Delhi to Balaji Bharatpur, Mathura Mr. Siyaram Mr. Bhanu Pratap Singh 21:30 2380 Lohagarh Delhi to Balaji Mathura, Bharatpur Mr. Chatar Singh Mr. Rampal Singh 22:30 4536 Lohagarh Delhi to Balaji Mathura, Bharatpur Mr. Pratap Singh Mr. Prahlad Gautam 23:30 2353 Lohagarh Delhi to Balaji Mathura, Bharatpur Mr. Jayveer Mr. Yogesh Kumar

54. According to PW[2], on 14.11.2017 at about 06:30 p.m. she left home and reached Sarai Kale Khan within 1 ½ to 2 hours. If that be so, she must have reached the bus stand between 08:00 – 08:30 p.m. As per Ext. DW2/A there was a bus at 20:30 hours; 21:00 hours; 21:15 hours; 21:30 hours; 22:00 hours; 22:15 hours; 22:30 hours and 23:30 hours. The testimony of DW[2] and Ext. DW2/A (colly) has not been discredited or disproved in any way. This will again discredit the testimony of PW[2] that she was unable to get any bus to the place of destination. This is yet another factor to doubt the prosecution case.

55. Further, the case of PW[2] is that she had decided to go alone to the temple as her husband was unwell. But PW[3], has no such case. According to PW[3], he could not accompany his wife as he had some official work.

56. Now coming to the location of the taxi driven by A[1] in which A[2] was also present, which vehicle PW[2] is alleged to have boarded from Ansal Plaza.

57. PW[6] Regional Manager, Moveinsync Technology Pvt. Ltd. was examined to prove the location of the taxi based on the GPS installed in the taxi. PW[6] deposed that as requested by the IO, he had handed over the location log of the taxi which document was seized as per Ext. PW6/C seizure memo. PW[6] explained how the location could be determined by the Geo code mentioned in the location log. This aspect of the testimony has not been disputed by either side. PW[6] in his cross-examination deposed that the GPS of the car in question remained at the same place from 0.00 to 8.37 a.m. on 14.11.2017. To a Court question as to whether it was possible for the driver of the vehicle to switch off the GPS, PW[6] answered in the affirmative, but also stated that in such an event, it would not have been possible to get the location log. PW[6] was further asked whether from Ext. PW6/C, the location of the taxi bearing no. DL1ZA3298 could be stated to be at Ansal Plaza between 10:30 to 11:30 p.m. on 14.11.2017. PW[6] answered that he would be able to answer after logging the locations for the said period. This was permitted by the trial court. PW[6] thereafter logged in the entries for duration between 10:30 to 11:30 p.m. on 14.11.2017 in his mobile phone and referred to the location of the taxi thus:– Entry Point Time (PM) Logged Location A-1 10:30 Greater Noida A-2 10:35 Pari Chowk, Greater Noida A-3 10:40 Near LG Chowk, Greater Noida A-4 10:45 Dadri Main Road, Greater Noida A-5 10:50 Dadri Main Road, near Panchmukhi Hanuman Mandir, Greater Noida A-6 10:55 Dadri Main Road, near Jagram Bhati Market, Noida A-7 11:00 Dadri Main Road, near Vishkarma Chowk, Noida A-8 11:05 Dadri Main Road, Near Noida Golf Course, Noida A-9 11:10 Metro Pillar No.93, Noida A-10 11:15 Sector-18, near Atta Peer, Noida A-11 11:20 Near Radha Krishan Temple, Noida A-12 11:25 Near Gazipur Road, New Ashok Nagar Marg A-13 11:30 Gazipur Road, near Sadbhawana Marg

57.1. PW[6] further deposed that as per the location reflected from the location log, the said taxi was on constant move during the aforesaid period. He also deposed that as per the location log, the vehicle was not at Ansal Plaza during the period between 10:30 p.m. to 11:30 p.m. on 14.11.2017. According to PW[2], it was around 11:00 p.m. she had boarded the taxi from Ansal Plaza. No re-examination of PW[6] was conducted by the prosecutor. Therefore, the testimony of PW[6], again a loyal prosecution witness, that the car was not at Ansal Plaza at the relevant time as claimed by PW[2] has not been discredited in any way.

58. The learned counsel appearing for PW[2] sought to justify the findings of the trial court by referring to Para 69 of the impugned judgment. Para 69 of the impugned judgment reads –

59. The conclusion in paragraph 69 seems to have been arrived at by the trial court on the basis of its own analysis of the GPS log details. The conclusion arrived at by the trial court is against the testimony of PW[6], a loyal prosecution witness, that at the time spoken to by PW[2], that is, around 11:00 PM on 14.11.2017, the vehicle was not at Ansal Plaza. The locations of the vehicle, as spoken to by PW[6] between the time from 10:30 PM to 11:30 PM, appears to be at Noida, Greater Noida, etc., which admittedly are places far away from Ansal Plaza in New Delhi. As noticed earlier, the testimony of PW-6 has not been discredited in any way. Therefore, this Court finds no reason to disbelieve or discard his testimony. If the learned trial judge was of the opinion that PW[6] was not speaking the truth, or only half-truths, the Court could have very well put it to the witness that the GPS log details show that the vehicle was in fact roaming around areas quite near the area from which PW[2] is alleged to have been picked up by A[2]. Instead of adopting such a course, or giving an opportunity to the defense to explain the possibility of the vehicle being in the near vicinity, the trial court arrived at a conclusion which goes against the testimony of PW[6], whose testimony, the prosecution has no case, is untrustworthy or unbelievable or unreliable.

60. Further, another reason given by the trial court for arriving at the conclusion in paragraph 69 of the impugned judgment appears to be that PW[2] was not sure of the exact location or place where she was picked up in the taxi by A[2]. This conclusion is also erroneous because in Ext. PW14/A DD entry; Ext. PW15/A FIS/FIR, and Ext. PW2/B 164 statement, the case is that PW[2] had been picked up from Ansal Plaza or near Ansal Plaza. It is true that PW[2], while examining before the Court, stated that she was dropped at some place by the auto-rickshaw driver saying that she would be able to get a taxi to Rohini from the said place. The prosecution has no case that PW[2] was unaware or not sure about the place from where she was picked up by A[2] in his taxi. The Court charge also specifically refers to the place of abduction as Ansal Plaza. All the statements of PW[2], right from the first call made by her husband to the police till her 164 statement, the definite case is that she was picked up from Ansal Plaza. In such circumstances, the conclusion of the trial court that PW[2] probably must have been picked from the vicinity of Ansal Plaza and not from Ansal Plaza proper, appears to be unjustified and erroneous.

61. In the light of the aforesaid unsatisfactory materials on record, the conclusions arrived at by the trial court are obviously erroneous, into which interference is called for. Hence, I find that A[1] and A[2] are entitled to the benefit of doubt.

62. In the result, both the appeals are allowed and A[1] and A[2] are acquitted under Section 235(1) for the offences punishable under Sections 365, 376D, 323, 506, 392 read with Section 34 IPC. They are set at liberty and their bail bonds shall stand canceled.

63. Application(s), if any, pending shall stand closed.

CHANDRASEKHARAN SUDHA (JUDGE) JULY 17, 2026 rs