S v. State (NCT of Delhi) & Anr

1. By way of the present appeal filed under Section 372 CrPC, the appellant/prosecutrix seeks to assail the judgment of acquittal dated 31.08.2023 passed by the learned Additional Sessions Judge (SFTC), Dwarka Courts, Delhi in SC No. 29/2022 arising out of FIR No. 922/2021 registered under Sections 376/377/506 IPC at P.S. Bindapur.

2. Briefly noted, the investigation in the present case commenced on 27.10.2021 on the basis of allegations made by the prosecutrix. She stated that she was married in the year 2006 and has a son from the said marriage. In 2013, she approached the respondent no. 2 herein/accused for the registration of one of her properties situated at Nawada, as respondent no. 2 was a document writer with an office at Mangal Bazar Road, Arya Samaj, Uttam Nagar, New Delhi. On 21.08.2013, she visited the office of respondent no. 2 at about 12:30 PM, where he quoted the price of Rs.4.[5] lakhs for carrying out the concerned work. She was carrying Rs.[3] lakhs at that time. Respondent no. 2 offered her juice, and upon consuming it, she became unconscious. On regaining consciousness, she found herself without clothes, and respondent no. 2 informed her that he had taken photographs and videos while performing sex with her. Using this threat, respondent NO. 2 continued to coerce her into physical relations without her consent. On 26.10.2021, respondent no. 2 asked her to meet him at Janak Puri West, and when she reached there at about 10.30 AM, he pulled her inside his car, touched and pressed her breasts, and also touched her private parts. When she resisted, he beat her up inside the car. She somehow managed to get out of the car and called the police at number 100, and the aforementioned FIR came to be registered under Sections 376/377/506 IPC at P.S. Bindapur.

3. Thereafter, the medical examination of the appellant was conducted and her statement was recorded under Section 164 Cr.P.C. The Trial Court framed charges under Sections 376(2)(n)/506/323 IPC, to which respondent no. 2 pleaded not guilty and claimed trial.

4. In the trial, the prosecution examined only two witnesses, the prosecutrix (PW-1) and the I.O./WSI Ekta Yadav (PW-2). The prosecutrix in her deposition reiterated that on 21.08.2013, after consuming juice she fell unconscious and when she regained consciousness, she found herself naked. Respondent no. 2 informed her of having clicked pictures and made videos while performing sex with her, and on this threat, continued to make sexual relations without her consent. She also stated about the incident dated 26.10.2021, when respondent no. 2, after pulling her inside his car, started touching and pressing her breasts as well as touching her private parts, and also gave her beatings when she tried to resist. In cross-examination, she admitted that besides her, her husband also met respondent no. 2 in relation to documentation pertaining to her Nawada property. She admitted that she had travelled with respondent no. 2 to Hong Kong and Bangkok. Though she had told her husband about her travel, she had not told him that she was going with respondent no. 2. She also admitted that she was frequently exchanging SMS and WhatsApp messages with respondent no. 2. She denied the suggestion that she had made false allegations with respect to the alleged incident dated 26.10.2021 in order to extort money from respondent no. 2. She stated that she had remained at Janak Puri West for about one hour, from 10:30 to 11:30, from where she made a call to the police. She admitted that there were public persons passing on the road. She told this incident to her husband, who did not come to the police station. She denied the suggestion that no such incident had taken place. I.O./WSI Ekta Yadav was examined as PW-2, and she testified about carrying out various aspects of the investigation.

5. Respondent no. 2, in his defence, denied the case of the prosecution and stated that he had been falsely implicated as the prosecutrix wanted to extort more money from him. He stated that it was the prosecutrix who repeatedly called him and sent him messages. Respondent no. 2 led defence evidence before the Trial Court, wherein he testified as DW-1. He exhibited screenshots of messages and phone calls showing that it was the prosecutrix who, on 25/26.10.2021, sent him several messages forcing him to meet her the next day. The messages were exhibited as Ex. DW-1/1. They were duly supported by a certificate under Section 65-B of Indian Evidence Act, which is exhibited as Ex. DW-1/2.

6. The Trial Court, while evaluating the testimony of the prosecutrix, noted that she was about 37 years of age and was already married, having one son. It was further observed that the prosecutrix had made considerable improvements in her statements. Taking into account the delay of 8 years in reporting the incident and finding her testimony to be unreliable, respondent no. 2 was acquitted of all charges. While doing so, the Trial Court also disbelieved her testimony with respect to the alleged incident dated 26.10.2021.

7. Ms. Worah, learned counsel for the prosecutrix, on instructions from the prosecutrix who is present in Court and duly identified by the I.O., submits that the prosecutrix is not pressing the present appeal qua the charge under Section 376(2)(n) IPC, against which respondent no. 2 was acquitted. However, she presses the appeal insofar as the charges under Sections 323 and 506 IPC are concerned.

8. On a query being put to her by the Court, learned counsel for the prosecutrix again, on instructions from the prosecutrix, reiterated her abovenoted statements. While pressing her limited challenge to the impugned judgment, she has invited the attention of the Court to the MLC that was conducted the day after the alleged incident, i.e., on 27.10.2021, wherein it was observed that the prosecutrix had “scratch marks over the left breast” as well as “swelling present above right knee”. It is the grievance of the prosecutrix that the Trial Court did not return any finding on the aforesaid aspect.

9. The said contentions are refuted by the learned counsel for respondent no. 2, who states that while rendering the impugned judgment, the Trial Court in paragraphs 16 and 17 duly noted the relevant parts of her testimony, observing that there were contradictions even on the aforesaid aspects. Disbelieving her testimony in its entirety, the Trial Court acquitted respondent no. 2 of all the charges.

10. Though the prosecutrix has not pressed the present appeal on the aspect of acquittal of respondent no. 2 under Section 376(2)(n), this Court has, nevertheless, looked into the testimony. In her statement recorded under Section 161 Cr.P.C., the prosecutrix stated that in 2013, when she went to the office of respondent no. 2, he offered her juice, and after drinking it, she fell unconscious; upon regaining consciousness, she found herself without clothes, and respondent no. 2 told her that he had engaged in sexual relations with her and also clicked pictures and made videos. She claimed that she was regularly blackmailed on the pretext of making the video public, and sexual relations continued between them. However, in her statement recorded under Section 164 Cr.P.C, the prosecutrix improved upon the allegations and stated that on account of the forceful relations, she became pregnant and had to get abortions 7-8 times. In her deposition before the Court, she further improved upon her earlier statements by stating that forceful relations were maintained at different places including various hotels. In her cross-examination, she admitted going to foreign locations with respondent no. 2, without informing her husband that she was going with respondent no. 2. The medical examination of the prosecutrix shows no injury on her private parts, though the hymen was opined to be old torn. In this regard, it is sufficient to note that the prosecutrix is a married lady, aged about 37 years at the time, and the mother of a son.

11. The mobile phone of the respondent no. 2 was seized during investigation and sent to FSL, however, no incriminating evidence came out. On a careful perusal of the entire testimony, as well as previous statements of the prosecutrix, this Court concurs with the conclusion arrived at by the Trial Court that the testimony of the prosecutrix is unreliable.

12. Coming to the incident dated 26.10.2021, during the investigation, the CDR of respondent no. 2’s phone was obtained. PW-2, who had obtained the CDR, exhibited it as Ex. PW-2/D[1]. During his testimony, respondent NO. 2 also placed on record screenshots of the various messages received by him from the prosecutrix. On going through the CDR, it is noted that the data collected covered the period from 01.11.2020 to 27.10.2021. A total of about 14,000 SMS messages and more than 20,000 calls were exchanged between them. The case of respondent no. 2 is that it was the prosecutrix who had forced him to meet on 26.10.2021. A perusal of the CDR shows that on 25.10.2021, about 150 messages and calls were exchanged between them, mostly from the prosecutrix to respondent no. 2. The screenshots of messages have also been placed on record by respondent no. 2. Interestingly, the CDR reveals that almost an equal number of messages, including those exchanged during the intervening night of 25/26.10.2021, were exchanged between them. On 26.10.2021 there were about 41 messages, again mostly from the prosecutrix to respondent no. 2. While the prosecutrix has claimed that the incident occurred at about 10:30 A.M. when she made a call to the police, the CDR shows that at about 10:35 A.M., respondent no. 2’s location was at Naraina Vihar. As noted above, there was a continuous exchange of messages not only on 26.10.2021 but even on 27.10.2021.

13. Indeed, the testimony of witness can be partly relied upon, however, when the testimony as a whole does not inspire confidence, the entire testimony is to be disbelieved. As already held, the witness has not been found to be truthful qua her allegations with respect to Section 376(2)(n) IPC. Even the other part of her testimony relating to the incident dated 26.10.2021 must be discarded in view of the aforesaid analysis.

14. At this stage, this Court deems it apposite to take note of the law relating to appeals against acquittal.

15. The law pertaining to double presumption of innocence operating in favour of an accused at the appellate stage, after his acquittal by the Trial Court, is settled. A gainful reference may be made to the Supreme Court’s decision in Ravi Sharma v. State (NCT of Delhi), reported as (2022) 8 SCC 536, wherein it was observed as under: