* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 01.09.2017
Delivered on: 25.09.2017
+ CRL.A.944/2016
MAHMOOD FAROOQUI ….. Appellant
versus
STATE (GOVT OF NCT OF DELHI) ….. Respondent
Advocates who appeared in this case:
For the Appellant: Mr. Kapil Sibal, Sr. Adv. and
Mr. Prashanto Chandra Sen, Sr. Adv. with
Ms. Nitya Ramakrishnan, Mr. Ashwath
Sitaraman, Ms. Suhasini Sen Mr. Nizam
Pasha Mr. Shivanshu Singh.
For the Respondent: Ms. Richa Kapoor, ASC
Insp. Ram Niwas W/SI Seema, P.S. New
Friends Colony
For the Complainant: Ms. Vrinda Grover Ms. Ratna Appnender.
CORAM:-
HON’BLE MR JUSTICE ASHUTOSH KUMAR
JUDGMENT
ASHUTOSH KUMAR, J
1. Mahmood Farooqui, the appellant, has been convicted under
Section 376(1) of the IPC vide judgment dated 30.07.2016 passed by
the Additional Sessions Judge – Special Fast Track Court, Saket
Courts, New Delhi in Sessions Case No.118/15 (New SC
No.1590/2016), arising out of FIR No.273/2015 dated 19.06.2015
(P.S. New Friends Colony) registered under Section 376 of the IPC.
Crl.A.944/2016 Page 1 of 82
He has been sentenced by order dated 04.08.2016 to undergo RI for 7
years, and to pay a fine of Rs.50,000/-.
2. The prosecutrix, in her FIR has stated that she is a student of
Columbia University, New York and is a fulbright fellow affiliated
with Delhi University, History Department and had been pursuing her
PhD work in the field of Hindi literature and Nath Sampraday. She
had come to Delhi in June, 2014 and was in search of some contact at
Gorakhpur for the purposes of getting information regarding Nath
Sampraday. It was in this connection that she was introduced to the
appellant through a friend, Danish Hussaini, who has been examined
as PW10 in the trial. On the day of the occurrence i.e. on 28.03.2015,
she had called the appellant requesting him to arrange for tickets of his
performance which was to be staged a day after. The appellant invited
her over to his house for dinner. Later, at 4 o‟clock in the afternoon,
the appellant informed her that he would be going to a wedding. The
prosecutrix thought that perhaps the appellant and his wife would be
going to the wedding. She thereafter arrived around 9 p.m. at the
house of the appellant and saw two students leaving the house. After
exchanging brief courtesies with them, the prosecutrix went upstairs
Crl.A.944/2016 Page 2 of 82
and the door was opened by Ashish Singh, a friend of the appellant
who has been examined as PW12. The prosecutrix found the appellant
to be in an intoxicated and lachrymose state. The prosecutrix was
asked to go to the office room of the appellant. After waiting there for
about 20 minutes, the prosecutrix came out of the office room for a
smoke on the porch when she was asked by the appellant to sit down
near him. The prosecutrix hugged the appellant, enquired from him as
to whether there was a need for a group hug and also asked him about
the reason for his sadness. At that point of time, the appellant is said
to have told Ashish (PW12) to leave the room and also informed that
one Darrain (DW3) would be coming. After Ashish left the company
of the prosecutrix and the appellant, the appellant called Darrain and
also put him on speaker phone. The prosecutrix heard Darrain saying
that he would not come. The prosecutrix then called Darrain when the
appellant had left the room. Darrain was informed by the prosecutrix
that the appellant was drunk and that Darrain needed to come to his
house. Darrain expressed his inability and promised to talk to her the
next day. Thereafter, the appellant came back and he and the
prosecutrix had a talk for a while. It has been alleged by the
Crl.A.944/2016 Page 3 of 82
prosecutrix that thereafter the appellant kissed her, to which she
responded by saying that she did not think that it was what he needed.
The appellant kept on kissing the prosecutrix and telling her about her
being a great woman. He also disclosed his intention of sucking her to
which she promptly denied. The appellant and the prosecutrix were
seated on the couch. The prosecutrix has then alleged that the
appellant tried to pull down her underwear and she kept on pulling it
up. The prosecutrix was thereafter immobilized by the appellant who
forced oral sex upon her.
3. The prosecutrix has stated that in the first instance, she was
scared because of the strength of the appellant but because she did not
want to get hurt, she pretended an orgasm. The appellant tried to
repeat what he had done but in the meantime the door bell rang and
the two friends of the appellant returned. Thereafter, the prosecutrix
wanted to leave and so she booked a MERU cab and simultaneously
texted her friend Danish Hussaini (PW10). She also told Ashish
(PW12) that she wanted to go but was asked by Ashish to stay back
for a while as in case the wife of the appellant, Anusha (not examined)
did not return, she will have to feed the appellant. The prosecutrix, in
Crl.A.944/2016 Page 4 of 82
the event of the driver of the MERU cab not locating the house of the
appellant, wanted to get a rickshaw but she was dissuaded and was
told that it was dangerous for her in the night to take a rickshaw ride.
The wife of the appellant in the meantime returned and the appellant
asked her to go. Taxi was fetched by Ashish. When the prosecutrix
got into the car, she immediately called Danish Hussaini (PW10) and
told him about what had happened between her and the appellant. She
has stated in her complaint that she wanted to take legal action against
the appellant for his act and that she did not want to go through the
medical examination.
4. On the aforesaid complaint, FIR No.273/15 dated 19.06.2015
was registered for investigation under Section 376 of the IPC.
5. The police after investigation submitted charge sheet
whereupon cognizance was taken and the case was committed to the
court of sessions for trial.
6. Charge was framed against the appellant for the offence under
Section 376 of the IPC to which the appellant pleaded not guilty and
claimed to be tried.
Crl.A.944/2016 Page 5 of 82
7. The trial court after examining 20 witnesses on behalf of the
prosecution and 6 witnesses on behalf of the defence, convicted the
appellant under Section 376(1) of the IPC vide judgment dated
30.07.2016 and by order dated 04.08.2016 sentenced him to undergo
RI for 7 years and to pay a fine of Rs.50,000/-.
8. During the trial, the prosecutrix, who was examined as PW5,
supported the prosecution version and stated that in order to complete
her dissertation work on Nath Sampraday, she was in search of a
contact person and was introduced to the appellant through a common
friend, Danish (PW10). The prosecutrix met the appellant regarding
her research and he also agreed to meet her at Archive Library, Teen
Murti where she had been conducting her research. Later, in the year
2014, she met the appellant in the canteen outside the library and she
was put in touch with other scholars. The appellant and the
prosecutrix communicated with each other and exchanged SMS
messages. She has deposed that she met the appellant for the second
time in Nagaland Café with her friend, a student of PhD from
Columbia University who was working on Indian drama. Thereafter,
Crl.A.944/2016 Page 6 of 82
the prosecutrix was in constant communication with the appellant
through SMS messages.
9. For the third time, the prosecutrix has deposed, she met the
appellant in January 2015 when he had invited her to attend a dinner
party at his house at Sukhdev Vihar, New Delhi. On one occasion, the
prosecutrix was also invited by the appellant to come to Gorakhpur
along with him and his wife to which she had initially agreed but later,
after finding that it would be inconvenient for her because of her
commitment with her academic advisor at Jaipur, she declined the
offer. The prosecutrix thereafter went to Jaipur to meet her academic
advisor. After her return from Jaipur in early February 2015, she was
called by the appellant who inquired her whereabouts. On her
informing the appellant that she was in Hauz Khas Village, the
appellant told her that he would be coming to Hauz Khas Village
along with his friend Darrain Shahidi (Dw3). After about half an
hour, the appellant and his friend Darrain Shahidi came. The
prosecutrix found him drunk. They all went to a café in Hauz Khas
Village where they had liquor and food. From there, they all went to
one Radhika (not examined), a friend of the appellant at Hauz Khas.
Crl.A.944/2016 Page 7 of 82
There again, the appellant consumed liquor. From Radhika‟s house,
all the aforesaid persons went to Nagaland Kitchen in the car of the
appellant. During the journey, the appellant kissed her and the
prosecutrix returned his kiss. Immediately after reaching Nagaland
Kitchen, the appellant left on somebody‟s telephone call. The
prosecutrix was thereafter only in the company of Darrain and
Radhika, both of whom told her about the excessive drinking habit of
the appellant.
10. The prosecutrix thereafter did not have any contact with the
appellant till she was again invited for dinner by the appellant at his
house. On that occasion also, the appellant, his wife and the
prosecutrix consumed liquor and during the period of brief absence of
his wife who was moving from one room to another, the appellant and
the prosecutrix exchanged kisses. She was also asked by the appellant
to stay over and sleep on a couch which she refused. She has deposed
before the trial court that since she did not want the relationship to go
any further, she left the house of the appellant by calling an Uber Taxi.
11. On one occasion, on a dry day, on the asking of the appellant,
the prosecutrix had arranged for a bottle of liquor for him. The
Crl.A.944/2016 Page 8 of 82
prosecutrix has taken reference of another rendezvous with the
appellant when she had invited him on her birthday party at Hauz
Khas Village for which she had extended the invitation to Darrain and
the wife of the appellant also. However, because of over intoxication
of the appellant, as was informed to her by Darrain, nobody came to
the party.
12. Then came the day when the alleged occurrence took place.
The prosecutrix has averred that on 28.03.2015 she had gone to the
house of Sonal Shah, one of her friends, at Jungpura Extension at
about 10 a.m. when the aforesaid friend expressed her desire to learn
Urdu. It was then that the prosecutrix had telephonically requested the
appellant for arranging two tickets for his performance so that her
friend could learn Urdu. The appellant promptly promised for the
tickets and also invited her for dinner. At about 4:00 p.m, the
prosecutrix was informed that the plan of the appellant had changed
and he further enquired from her whether she would care for attending
a wedding to which she agreed. She was also asked by the appellant to
bring Rs.1,000/- as gift. The prosecutrix presumed that she would go
to the wedding venue with the appellant and his wife. The
Crl.A.944/2016 Page 9 of 82
prosecutrix, according to her deposition, prepared herself for the
wedding by properly attiring herself. For some reason or the other,
instead of 8 p.m., she reached the house of the appellant at 9:00 p.m.
in a MERU cab.
13. Thereafter, the prosecutrix has narrated the same story which
she has stated in the FIR. She had a brief exchange of courtesy with
two students who were leaving the house of the appellant, one of
whom was Ankit who was introduced to her by the appellant. The
main door of the house, as has been stated by the prosecutrix in the
FIR, was opened by Ashish (PW-12). The appellant introduced Ashish
(PW-12) to her, who led her to the living room. The appellant, as
stated earlier, was intoxicated and was crying. Ashish (PW-12) was
comforting him. The appellant thereafter asked her to wait in his
office room which was on the other side of the kitchen. After
remaining in the office room for 20 minutes, she came out on the
porch for a smoke when she was ushered in by the appellant. The
prosecutrix has clearly stated that the appellant at that time was crying
so bitterly that nasal mucus dripped down to his moustache. The
prosecutrix thereafter made a drink for herself and on the asking of the
Crl.A.944/2016 Page 10 of 82
appellant, offered him also a glass of lightly prepared Vodka. This
was the time when Ashish (PW-12) left the house. The appellant told
her that he was upset about the conduct of his wife and his mother.
The appellant also called up Darrain (PW-13) and put him on speaker
phone. Darrain, by that time, had refused to come. For a while, when
the appellant had left the room, the prosecutrix called up Darrain and
asked him to come over to which he refused and promised to talk to
her on the next day.
14. During the trial, the prosecutrix has stated that Darrain also
asked her to stay back and take care of the appellant as he had to give
a performance on the next day. She was advised by Darrain to give
water to the appellant and to put him to sleep. The appellant thereafter
came back to the room crying. The prosecutrix tied to comfort him
and in the process joked with him. She has stated that she felt „very
maternal‟ towards the appellant. Kisses were exchanged and the
appellant asked her for a sexual favour which she denied. Thereafter,
as narrated in the FIR, she was put down and was subjected to forced
oral sex.
Crl.A.944/2016 Page 11 of 82
15. What is new and different in the deposition of the prosecutrix as
compared to the averments made in the FIR is that she claims to have
remembered the case of Nirbhaya, whose offender had declared that if
she (Nirbhaya) had not protested, she would have lived her life. The
prosecutrix claims that she kept quiet and faked an orgasm in order to
avoid any physical harm to her. It was at that time that the door bell
rang; when she got up and found that Ashish and another person,
namely the brother of the appellant (Mashood @ Roomi) had come
back. The aforesaid two persons again started comforting the
appellant. The prosecutrix went back to the living room and called a
MERU cab. She told Ashish that she was wanting to leave but Ashish
insisted her to stay on for five more minutes, as in case, the wife of the
appellant did not return, somebody would be needed to feed the
appellant. The prosecutrix suggested to Ashish to order a pizza for the
appellant. The prosecutrix waited for the MERU cab. The cab driver
could not find out the house of the appellant and finally refused to
come. The prosecutrix wanted to leave by rickshaw but it was told by
Ashish that it was dangerous in the night. Ashish thereafter offered to
fetch a cab for her. It was at this point of time that the prosecutrix
Crl.A.944/2016 Page 12 of 82
started texting Danish Hussaini (PW10) through WhatsApp from her
mobile. The wife of the appellant, in the meantime had arrived. The
appellant came back to the living room and asked the prosecutrix to
leave the house. The prosecutrix wanted to talk to someone who knew
her and the appellant, both. So she texted Danish Hussaini through
WhatsApp and told him that the appellant was in a mess, that she was
invited by him for a wedding but the appellant was drunk and his wife
had left the house and had come back only at that time when the
prosecutrix wanted to get out of the house but she was having a
problem in getting a cab. She texted and asked Danish Hussaini to
talk to her. Danish is said to have replied to her by suggesting that she
should leave the house and get an auto and once she is into the car,
Danish would talk to her. Ashish by that time had called a cab. After
getting into the cab, the prosecutrix called Danish and told him that
accused has committed forced oral sex on her and she is very upset.
Then Danish asked her as to whether she had protested, she replied in
the affirmative. She talked to Danish for about half an hour. Since
she was not in a good shape of mind and did not want to be left alone,
she went to Hauz Khas Village where she reached at 11.30 p.m. and
Crl.A.944/2016 Page 13 of 82
sat there till around 1.30 a.m, when she finally left that place for her
house at Jung Pura Extension.
16. On 30.03.2015, the prosecutrix is said to have sent an e-mail
(Ex.PW 3/C-9) to the appellant. For the sake of completeness, the e-
mail referred to above is being extracted below:
“I tried calling you, but was unable to get through, I want
to talk with you about what happened the other night. I
like you a lot. You know that I consider you a good friend
and I respect you, but what happened the other night
wasn’t right. I know you were in a very difficult space and
you are having some issues right now, but Saturday you
really went too far. You kept asking me if you could suck
me and I knew you were drunk and sad and things were
going awful. I knew that this wasn’t going to help things
and I told you many times I didn’t want to. But you did
become forceful. I went along, because I did not want
things to escalate, but it was not what I wanted. I was just
afraid that something bad would happen if I didn’t. This is
new for me. I completely own my sexually and I consider
you a good friend. I like you. I am attracted to you, but it
really made me feel bad when this happened. I haven’t
known what to say to you since then, I wasn’t sure if I
would say anything. In the end I consented, but it was
because of pressure and your own force physically on me.
I did not want things to go bad. I have only decided to tell
you how I feel for your own well being. I am afraid that if
you don’t realize that this is unacceptable, you may try
this on another woman when you are drunk and she will
not be so understanding.
I do love you and wish you well. I want the best for you,
whatever that is, but I also need you to know doing what
you did the other night is unacceptable. I hope thisCrl.A.944/2016 Page 14 of 82
doesn’t affect our friendship, but am willing to deal with
the repercussions if it does.”
17. The prosecutrix has deposed that on the receipt of the e-mail
referred to above, the appellant expressed his sincerest apologies [“My
deepest apologies”]. The prosecutrix has deposed that she wanted to
ignore this fact but she could not. On 01.04.2015, she wrote to her
Academic Advisor, Allison Busch, at Columbia University through e-
mail (Ex.PW5/D) that she was sexually assaulted and wanted to come
home. There was no response of the Academic Advisor till
08.04.2015. During this period she was in contact with her mother and
sisters who wanted her to come home but she waited for the response
of her Academic Advisor. On 08.04.2015, she received an e-mail
(Ex.PW3/C-15) from the Academic Advisor. By this time the
prosecutrix had made up her mind to go back home. On 12.04.2015,
the prosecutrix again sent an e-mail (Ex.PW3/C-10) to the appellant
telling him as to how he had afflicted her life and the life of her family
members.
“Xxxx for doing this. xxxx for taking away my
confidence, xxxx for making me leave India the country I
love. Xxxx for taking advantage of my kindness. xxxx.
You were supposed to be my friend. Instead you
manipulated me. You hurt me. I said no. I said no many
Crl.A.944/2016 Page 15 of 82
times. You didn’t listen. You pinned my arms. You pulled
my underwear down.
In the past two weeks I have blamed myself. I have spent
the last two weeks crying, processing. I have thought
about death. My mother tried to fly here to get me. My
sister has put my nieces on the phone to talk with me so I
don’t hurt myself, so I remember them and not this, not
you.
I have been trying to figure out what I could have done
differently, but I couldn’t do anything differently. You
invited me to a wedding. I was supposed to be going to a
wedding with you and anusha or darain or who the xxxx
ever. I was supposed to be going to a wedding.
I have spent the past two weeks protecting you, like I did
that night. The only thing I know is I didn’t do anything
wrong but that doesn’t matter. I am xxxx scared now. I
am xxxx screwed up now. I used to own my sexuality.
You took that from me, you forced me to do something I
did not want to do. I stopped struggling because I was
scared. I wanted to get out. I did get out.
So remember this, what you did that night wasn’t one
night, what you did that night continues to affect me and
my suffering, my pain. It’s on your hands, when I carry
this forward in life. It is your sin that I carry forward. It
is you sin that I have to overcome.
You disgust me……”
18. On the same day i.e. on 12.04.2015 she received an e-mail
(Ex.PW3/C-11) from the wife of the appellant namely Anusha which
is as hereunder:
“Hi ……Prosecutrix,
I chanced upon your email you sent Mahmood today. I am
forced into the situation of checking his mail because heCrl.A.944/2016 Page 16 of 82
isn’t available at the moment and we still need to figure
out our show schedules.
I am deeply disturbed by your email. What you have
described is an ordeal. I cannot imagine how you have
dealt with it so far. Needless to say that I stand with you.
If you require any help of any nature including legal, I
will assist. This is completely unacceptable behaviour,
especially for me since it happened under my roof.
You’d obviously wonder why I have not confronted
Mahmood with this but instead I am writing to you
directly. The reason for that is that Mahmood is in a
rehab. I don’t know how and when it would be
appropriate to speak with him. The issue is also
complicated by the fact that he is a Bi-polar depressive.
I really don’t know how to express how responsible I feel.
I have already spoken with his psychiatrist, and we both
feel that this matter should be reported to the authorities if
you so wish.
Please find me and his family with you in the process of
healing, as I hope the process will be of healing.
Deeply troubled.
Anusha.”
19. The wife of the appellant had apologized for what had happened
to the prosecutrix. The prosecutrix also replied to the e-mail
(Ex.PW3/C-12), telling the wife of the appellant not to blame the
bipolar disorder of her husband for the sexual assault on her and that
rape and sexual assault is executed with power.
“Anusha, I am sorry you found out in this way. I know
that this is very painful for you too. You are notCrl.A.944/2016 Page 17 of 82
responsible for anything that happened to me. You must
not take responsibility for his actions. They are not your
actions. They are his. Mahmood is the only one
responsible. As you can see I am angry and hurt and
processing this is very difficult right now. I cannot do it on
my own at the moment and I do not have the resources in
India to figure out how to begin the healing process, so I
am leaving tonight to go back to New York. I need to be
around my family and my colleagues. I need to get help
and support for this.
Just please do me a favour and do not blame this on his
bi-polar condition, at least in my presence. I know about
the condition, but sexual assault has nothing to do with bi-
polar and everything to do with power. The assertion of
power over another human being.”
20. The prosecutrix thereafter left India on 14.04.2015. On
15.04.2015 she again received an e-mail from the wife of the appellant
which is as hereunder:
“Hi ….Prosecutrix
I am glad to know that you will be among your friends
and family for the moment. I hope that you will be able to
overcome this horrible incident. As I said before, his
brothers and I will completely support you in whatever
you wish to do about it.
I understand how angry you must be and therefore
misread my categorical position on such matters. The
reason I mentioned Bi-polar is because that is the reason
why I don’t have access to Mahmood and therefore I am
unable to confront him at present.
Best
Anusha”
Crl.A.944/2016 Page 18 of 82
21. The prosecutrix thereafter went to New York and saw a
counsellor at Columbia University because she was very traumatized.
By late April, she had decided to file a report about it in the
Department of Gender Based Misconduct at Columbia University. It
was at that point of time that she decided to return to India to file a
complaint against the appellant and also to continue with her research.
She wrote to the Head of Fulbright Fellowship intimating him about
the sexual assault on her and her desire to go back to India to pursue
the case against the appellant but she was advised to stay in America
because her research visa was to expire on 11.05.2015. The research
visa could not be extended and the prosecutrix had to come to India on
a 30 days‟ tourist visa only for the purposes of filing a complaint
against the appellant.
22. The prosecutrix came to India on 06.06.2015. Because of her
being unaware of the procedure in India and for fear, she visited the
police station of New Friends Colony only on 19.06.2015 and gave
her complaint (Ex.PW5/A) to a lady police officer. Since the
prosecutrix was not in a proper shape of mind, she could not actually
state in the complaint as to what had happened to her and therefore she
Crl.A.944/2016 Page 19 of 82
added that the appellant had forced oral sex on her, in her complaint
and appended her initials. She was given a copy of the FIR
(Ex.PW1/A) and was taken to AIIMS for her medical examination.
However she refused to undergo any gynecological examination. Her
statement was recorded under Section 164 Cr.P.C. (Ex.PW5/B) at
Saket Courts. She claims to have handed over her laptop, I phone and
the dress worn at the time of incident and the photos which she had
clicked along with the cat of the appellant on the day of the incident,
to the police on 07.07.2015. She also gave the details of e-mail
exchanged between her, appellant and his wife. She had taken out the
printouts of the screen shots on her mobile phone and had handed over
to the police. She also handed over a transcript of the conversation
between her and one Ms. Mathangi Krishnamurthy during the period
31.03.2015 to 01.04.2015 (Ex.PW3/C-17 to Ex.PW3/C-20).
23. During cross-examination the prosecutrix has stated that her
mobile (MO2) was only the mobile she had used in March 2015. She
has stated that seeing the appellant in an intoxicated condition, she
was not alarmed as she had seen him in such condition even prior to
the date of the occurrence and was also not aware as to whether his
Crl.A.944/2016 Page 20 of 82
wife Anusha was at home. During cross-examination she admitted of
several communications via e-mails and WhatsApp between her and
Danish Hussaini after 28.03.2015 but she was not sure if there was any
telephonic conversation with him after 28.03.2015. Before going to
US in April 2015, the prosecutrix claims to have visited Rajasthan.
She has tried to explain that she was making an attempt to forget what
was meted out to her by the appellant and wanted to concentrate on
her work. She knew that the appellant was alcoholic but had never
found him misbehaving under the influence of liquor before the
incident. She denied that her version is an exaggerated account of
what happened on the day of the occurrence and that she had tried to
put up a different case altogether than what was suggested by her in
the FIR. She has categorically denied that on 30.03.2015, the
appellant had called her and had told her that he did not appreciate her
moves to insinuate a closeness with him and that he did not share the
same feeling and wished the association to end. She expressed her
complete ignorance about the fact as to whether US Embassy rendered
counsellor services to American citizens who are subjected to crime
and assault in India including emergency services. When the
Crl.A.944/2016 Page 21 of 82
prosecutrix spoke to the American Embassy, she was specifically told
that no help would be available to her as it is a private matter. She
claims her ignorance about the advisories rendered by the American
Embassy.
24. Since the major thrust of the argument in defence of the
appellant is on the fact that at no point of time the appellant was alone
with the prosecutrix in his house and specially at the time when the
occurrence is said to have taken place which is after 10.09 p.m. and
that if at all such an occurrence had taken place, it was consensual, it
would be necessary to examine the deposition of Murtaza Danish
Hussaini (PW10), Ashish Singh (PW12) and Anuj Pawra (PW20).
25. Murtaza Danish Hussaini (PW10) has deposed that he knew the
appellant for the last 10 years as he was his collaborator in the
traditional art form of story telling, „Dastangoi‟ since 2005. He had
met the prosecutrix in June 2014, who was undertaking research at
Gorakhpur on Nath Samraday. Since the prosecutrix wanted to know
somebody who was proficient in History and had idea about
Gorakhpur, he introduced her to the appellant in June 2014.
Crl.A.944/2016 Page 22 of 82
26. On 28.03.2015, he was at Dehradun. At about 10:30 p.m, he
started receiving WhatsApp messages on his mobile phone from the
prosecutrix which clearly indicated that she was sexually assaulted by
the appellant. He asked her to leave the house of the appellant
immediately. A little later, the prosecutrix is said to have called him
while sitting in the cab that she had experienced something which she
had never encountered before i.e. the appellant had forced himself
upon her. On further query, the prosecutrix told him that the appellant
forced oral sex on her. On PW10 asking her as to why she did not
leave the house immediately, she responded by saying that the friends
of the appellant came at that time and that she was trying to arrange a
cab but one of the friends of the appellant told her that it was not safe
and that the cab would be arranged by one of them.
27. On hearing about the aforesaid incident, PW10 claims to have
gone under shock. While the prosecutrix talked to him, she also cried.
PW10 met the police for the first time when he was called in the
police station. During the cross-examination, he admitted of knowing
the parents, brothers and the in-laws of the appellant. He had talked to
the prosecutrix on phone after 28.03.2015 but could not tell the dates
Crl.A.944/2016 Page 23 of 82
on which such conversation took place. He came to know about the
complaint only after the same was lodged with the New Friends
Colony police station.
28. With respect to the WhatsApp messages exchanged between
him and the prosecutrix, he has stated before the court that neither did
he hand over those to the police nor the police asked for it and that he
had deleted such messages in April 2015. The prosecutrix had asked
him about a criminal lawyer but because of his not knowing anyone in
that field, he could not help. He was also forwarded/sent the e. mails
exchanged between the prosecutrix and the appellant and his wife
sometime after 28.03.2015 but he never responded to those e. mails.
PW10 admits of calling the prosecutrix on her mobile on 12.04.2015
after the occurrence on 28.03.2015. During the cross-examination, the
aforesaid witness has denied of having received any call from the
prosecutrix on 11.06.2015 but admitted that he talked to her on
14.06.2015 and 20.06.2015.
29. Prior to PW10 having talked to the prosecutrix, the wife of the
appellant had called him for intervening on behalf of the appellant and
for speaking to the prosecutrix. When PW10 talked to the prosecutrix
Crl.A.944/2016 Page 24 of 82
about settling the issue, she became very angry and told him that after
the trauma she had undergone, she would not withdraw her complaint
and disconnected the telephone. The aforesaid fact was
communicated to the appellant and his wife. PW10 has admitted of
receiving number of telephone calls from many friends regarding the
issue of settling the dispute. When confronted with the WhatsApp
message (Mark PX) exchanged between him and the prosecutrix on
28.03.2015, he stated that such messages did not mention of sexual
assault.
30. Ashish Singh (PW12) who is a journalist working with Aaj Tak
channel, stated before the trial court that he is a childhood friend of the
appellant and hails from Gorakhpur. On 28.03.2015, at about 8:30/
9:00 p.m. he had gone to the house of the appellant when Ankit and
Poonam (students) were having discussion with the appellant. The
aforesaid two students left after 5-10 minutes. While he and the
appellant were talking, the prosecutrix arrived, who was introduced to
him by the appellant. The prosecutrix was asked by the appellant go
to the study room since the appellant wanted to talk to PW12. After
some time, the prosecutrix joined him and the appellant. PW12
Crl.A.944/2016 Page 25 of 82
thereafter went downstairs to bring something and came back along
with the brother of the appellant after 20-25 minutes. He found the
appellant and the prosecutrix sitting in the living room and the
appellant was writing something. PW12 sat there for some time and
also talked to the prosecutrix and the appellant. The prosecutrix
thereafter, wanted to go and PW12 called a taxi on which the
prosecutrix left.
31. During cross-examination, PW12 has categorically stated that
he left the house of the appellant at about 9:30 p.m. and returned about
10-15 minutes or 20-25 minutes but definitely before 10:00 p.m. He
had telephoned his common friend Radhika at about 10:15 p.m.
PW12 knew that Darrain was expected there between 9:00 p.m. to
9:30 p.m. He claims to have sent a text message to his wife after
arriving at the house of the appellant. [It may be noted here that while
PW12 was being cross-examined, he had taken out his mobile phone
from his pocket and showed the SMS sent to his wife at 10:02 p.m. on
28.03.2015. This evidence was produced before the court for the first
time during trial. An objection was raised by the prosecution that such
SMS was not admissible in evidence as it did not comply with the
Crl.A.944/2016 Page 26 of 82
mandatory requirements of law as laid down in Anvar P.V. vs. P.K.
Basheer and Others (2014) 10 SCC 473, in the light of the Indian
Evidence Act and Income Tax Act, 2000.] He had talked to
prosecutrix about Gorakhpur after his return. The prosecutrix had
taken his telephone number. The aforesaid witness has affirmed the
fact that Anusha, wife of the appellant, had gone to her parents‟ house
and was expected to bring food. He has also confirmed the fact that
the prosecutrix was talking from her phone to somebody. The wife of
the appellant (Anusha) returned before the prosecutrix had left the
house of the appellant. While going, the prosecutrix had hugged the
appellant and had waived a good bye. Ashish Singh had gone
downstairs to see her off. The prosecutrix is said to have called him
after reaching her destination at 23:25:46 hours from mobile telephone
No.7042132004. He thereafter left the house of the appellant at about
11:30/12:00 in the night.
32. The aforesaid witness was re-examined on 22.02.2016. During
the re-examination, he stated that when he returned to the house of the
appellant on 28.03.2015, the prosecutrix was sitting quietly in the
room and he also denied other suggestions to him regarding his
Crl.A.944/2016 Page 27 of 82
tampering or doctoring the SMS message to his wife at 10:02 p.m. in
order to help the appellant. However, he has admitted that he did not
inform the IO about the SMS message to his wife. On being crossed
by the defence counsel, PW12 gave the mobile number of his wife and
also stated that the wife of the appellant had come within few seconds
of his sending the message to his wife.
33. Anuj Pawra (PW20), owner of Moonshine Café and Bar at
Hauz Khas has deposed that the prosecutrix used to stay at Hauz Khas
Village and was a regular customer of his café and bar. He had met
her in September/October 2014. On 28,.03.2015, the restaurant of
PW20 had completed one year and to celebrate that event, he had
called his customers. He had spoken to the prosecutrix also for 3-4
times from his telephone number. In his cross-examination with
respect to call details, he has stated that he wanted to invite the
prosecutrix in the event on that day but she refused by saying that she
had to go for a dinner at her friend‟s house. With respect to a call on
28.03.2015 at 22:11:22 hours from the mobile number of the
prosecutrix, he has stated that he could not converse with the
prosecutrix as the line got disconnected. However, he has stated that
Crl.A.944/2016 Page 28 of 82
the prosecutrix came to his restaurant at 11:30 p.m. on 28.03.2015.
When PW20 asked the prosecutrix about the call which he had
received from her, she expressed her ignorance.
34. On behalf of the appellant, it has been argued that from the
deposition of the witnesses, certain undisputed facts emerge. The
prosecutrix arrived at the house of the appellant between 8:54 p.m.
and 10:56 p.m. on 28.03.2015. Ashish Singh (PW12) was present in
the house when the prosecutrix had entered the same. Ashish Singh
went out of the house around 9:30 p.m. and returned after 20-25
minutes along with the brother of the appellant. The prosecutrix
remained in the house for another 45 minutes or so in the house of the
appellant. Ashish Singh escorted the prosecutrix downstairs and saw
her off. The prosecutrix called Ashish Singh after reaching Hauz
Khas at 11:25 p.m.
35. From the CDRs, it has been sought to be established that from
8:48 p.m. to 9:30 p.m., Ashish (PW12) was in the house of the
appellant; between 9:34 p.m. and 9:48 p.m. he had moved out to a
different cell tower but was back to the cell tower of the appellant at
10:02 p.m. Thereafter, he remained in the house of the appellant till
Crl.A.944/2016 Page 29 of 82
about 12:00 p.m. The wife of the appellant had arrived before the
prosecutrix left the house of the appellant. It was therefore suggested
that the sexual assault on the prosecutrix by the appellant after 10:09
p.m. was not possible. The admitted case of the prosecution is that
after ending the call on mobile phone with Danish Shaheedi (DW3) at
10:09 p.m. and before she used her mobile for starting the MERU app,
the prosecutrix had conversation with the appellant for some time.
Then the assault is said to have taken place. The assault, admittedly,
had been perpetrated immediately prior to the arrival of Ashish and
Roomi in the house of the appellant.
36. From the deposition of Ashish Singh (PW12), it has been
argued, it becomes very clear that he texted his wife telling her that he
has reached the house of the appellant at 10:02 p.m. Thus, Ashish
Singh had left the house of the appellant at 9:30 p.m. and had come
back at 10:02 p.m. and thereafter remained in the house of the
appellant till mid night. This timing is confirmed by the testimony of
the prosecutrix wherein she says that PW12 opened the door for her at
9 p.m. She was asked to wait in another room and she joined the
appellant and PW12 about 20 minutes later in the living room.
Crl.A.944/2016 Page 30 of 82
Thereafter, according to the prosecutrix, Ashish Singh went out of the
house and returned later with the brother of the appellant. Ashish
Singh thereafter saw her off. The prosecutrix had taken his telephone
number and had called PW12 after reaching her destination, which
fact is born out from the CDR of the prosecutrix. Thus, the story of
the prosecution that the assault took place after 10:09 p.m. in the
absence of Ashish Singh is rendered completely false.
37. Mr. Kapil Sibal, learned senior advocate appearing for the
appellant has submitted that the veracity of this sequence of events
could be tested from other evidence on record.
38. Vikram Kumar, who has been examined as DW5 is a business
Analyst, IT Corporate, MERU Cab Company Pvt. Ltd, Hyderabad.
He has stated before the trial court that the servers of the MERU cab
are located at Bombay. But the technical team which has access on
the server is at Hyderabad. He had accessed the booking data and trip
data of a customer having mobile No.70421320004 which stood in the
name of the prosecutrix. On 28.03.2015, three booking were made
from the aforesaid mobile phone through the mobile app at 20:07,
22:12 and 22:35. The aforesaid witness has proved the Excel sheet
Crl.A.944/2016 Page 31 of 82
print (Ex.DW5/B) and the certificate under Section 65 of the Evidence
Act (Ex.DW5/C) as well as (Ex.DW5/B) which contains the name and
mobile number of the driver, subscriber‟s first name and the mobile
number. He has stated that there were three different timings of
pressing of the booking button by the customer. The receipt of the
request for booking on the server and the difference of the time
between the pressing of the button for request and its receipt at the
server can vary from 10-16 seconds, depending on the speed of the
network. He also testified to the fact that the normal time taken by a
customer or the time of opening the phone till the booking of the cab
varies from 30-60 seconds, depending upon the make of the telephone
and the network which is being used as well as the personal speed of
the customer on the apparatus.
39. Rajesh Pal (DW2), an Assistant Manager, MERU Cab
Company Pvt. Ltd. brought the record of MERU cab booking from the
mobile number of prosecutrix (Ex.DW2/A). He has also confirmed
that three bookings were made on 28.03.2017 through mobile app.
The time of the first booking was 20:07 hours, the second booking
was at 22:12 hours. The driver‟s name was Vinod Kumar Sharma.
Crl.A.944/2016 Page 32 of 82
He further testified that the second booking was cancelled by the
customer. The time of the third booking was 22:35 hours when the
name of the driver was Manish Kumar. This time also, the booking
was cancelled by the customer.
40. Thus, what can be inferred from the aforesaid deposition is, as
has been argued, that the MERU server registered booking of the
prosecutrix at 10:12:07 p.m. This means that the prosecutrix would
have begun operating her app sometime before. The timing therefore
of the prosecutrix starting her phone can be fixed at 10:10 p.m. or
10:11 p.m. The call was made, admittedly, after the occurrence which
is alleged to have taken place after 10:09 p.m. Thus, it has been
suggested, that the time window for the whole sequence of events is
completely untrustworthy as only a minute or two would have been
left for the act complained of to be performed.
41. This could be tested from another documentary evidence.
There was supposedly a blank call to Anuj Pawra (PW20) at 10:11:21
p.m. for 20 seconds. This call was apparently made when the
prosecutrix was in the house of the appellant and perhaps during the
time that occurrence had taken place. The call to the MERU app was
Crl.A.944/2016 Page 33 of 82
after the occurrence. Thus the attempt at calling the taxi was only
before 10:11 p.m.
42. The second argument on behalf of the appellant is in the nature
of an alternative argument that, if at all, such an occurrence had taken
place, it was with the consent of the prosecutrix. It has been suggested
that the e-mail of the prosecutrix on 30.03.2015 clearly depicts that
there was some kind of an affectionate/intimate relationship between
the appellant and the prosecutrix. A day after the alleged occurrence,
the prosecutrix was communicating with the appellant that she liked
him and that she considered him to be a good friend and respected him
but, what happened on the night of 28.03.2015 was not right. The
prosecutrix had herself offered an explanation for the same and had
stated that she knew that the appellant was in a difficult space and was
having some issues. However, simultaneously, she stated that on
28.03.2015, the appellant went really too far. She had also stated that
the appellant was drunk and was continuously asking for sexual
favours but she had declined and had expressed that she did not want
to go for it. However, the appellant became forceful and the
prosecutrix alleges to have gone along because she did not want the
Crl.A.944/2016 Page 34 of 82
matter to escalate. She thereafter said that it was not what she wanted
and it was only because of the fear of something bad happening to her
if she went along. In the same breath, the prosecutrix has stated that
the experience was new for her but she still remained attracted to the
appellant. She felt bad with what had happened and she did not know
how to say this to the appellant. She was not even sure that she would
confront the appellant with this happening. Thereafter, the prosecutrix
has clearly stated that “in the end she consented, but it was because of
pressure and the physical force of the appellant on her”. Since she did
not want the things to go bad, she decided to tell the appellant that she
felt strongly for the well being of the appellant. However, to what she
was subjected to, was unacceptable and in case the appellant tried this
with another woman while under intoxication, she would not be as
understanding. Later, the prosecutrix had also written to the appellant
that she hoped that this incident would not affect their friendship but
she was willing to deal with the repercussions if at all it took place.
43. Mr. Sibal, learned senior advocate argued that even if the act
was not with her consent, she actually communicated something
which was taken as a consent by the appellant.
Crl.A.944/2016 Page 35 of 82
44. Explanation (2) to Section 375 of the IPC defines consent in the
context of the offence of rape. It sates as follows:
“Explanation 2:- Consent means an unequivocal
voluntary agreement when a woman by words, gestures
or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific
sexual act:
Provided that a woman who does not physically
resist to the act of penetration shall not by the reason
only of that fact, be regarded as consenting to the sexual
activity.
Exception 1.- A medical procedure or intervention shall
not constitute rape.
Exception 2- Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under fifteen years
of age, is not rape.”
45. Consent means an unequivocal voluntary agreement when the
woman by words, gestures or any form of verbal or non-verbal
communication, communicates willingness to participate in the
specific sexual act; provided that a woman who does not physically
resist to the act of penetration shall not by the reason only of that fact
be regarded as consent to sexual activity. Thus, consent as defined
under Section 375 of the IPC includes non-verbal and verbal
communication. It has been argued that what has been communicated
to the appellant at the relevant time is important. It was suggested that
Crl.A.944/2016 Page 36 of 82
it was communicated to the appellant that there was consent because
of the following circumstances:
(a) The prosecutrix had been in the company of the appellant
and continued to be so even when she knew about his
drinking habits and also when he was heavily drunk and
befuddled on that day. The prosecutrix had exchanged
kisses and hugs with the appellant in the past. The
prosecutrix had accepted a kiss from the appellant even
while the appellant was in the company of his wife and
the wife had, for a brief period, gone out of the room, on
an earlier occasion.
(b) The prosecutrix had been cracking jokes and indulged in
playful banter immediately prior to the occurrence.
(c) During the act, the prosecutrix feigned orgasm.
(d) Prior to the act, the appellant had asked her for sexual
favours to which she did not stoutly resent or deny.
(e) The prosecutrix continued to remain in the company of
the appellant.
Crl.A.944/2016 Page 37 of 82
(f) That the prosecutrix was under fear, was absolutely
unknown to the appellant, (refer to Section 90 of the IPC
which provides that a consent is not such a consent if it is
given by a person under fear and injury or under a
misconception of fact and if the person doing the act
knows, or has reason to believe that the consent was
given in consequence of such fear or such
misconception.)
(g) The conduct of the prosecutrix, post occurrence, namely
her remaining in the house when Ashish Singh (PW12)
and Roomi, brother of the appellant, came back to the
house of the appellant.
(h) The prosecutrix did not communicate about this
occurrence to either PW12 or the brother of the appellant
or Anusha, the wife of the appellant who later arrived in
the house and lastly the e-mail dated 30.03.2015.
46. With reference to the e-mail dated 30.03.2015, it has been
argued that the e-mail was affectionately remonstrative that the
appellant went a bit too far on the other night and that the prosecutrix
Crl.A.944/2016 Page 38 of 82
went along and feigned orgasm. The history of intimacy and the
unabashed liking/attraction of the prosecutrix towards the appellant
may have given an impression to the appellant of consent. The
orgasm which was feigned by the prosecutrix, avowedly for the
purposes of preventing further damage to her, may have been taken
by the appellant as willingness on the part of the prosecutrix because it
understood/misunderstood as a non-verbal communication of consent.
Absence of any real resistance of any kind re-affirms the willingness.
An expression of disinclination alone, that also a feeble one, may not
be sufficient to constitute rape.
47. In the present case, the unwillingness of the prosecutrix was
only in her own mind and heart but she communicated something
different to the appellant. If that were not so, the prosecutrix would
not have told the appellant that he had gone too far on that night. At
what point of time, during the act, did she not give the consent for the
same, thus, remains unknown and it can safely be said that the
appellant had no idea at all that the prosecutrix was unwilling. It is
not unknown that during sexual acts, one of the partners may be a little
less willing or, it can be said unwilling but when there is an assumed
Crl.A.944/2016 Page 39 of 82
consent, it matters not if one of the partners to the act is a bit hesitant.
Such feeble hesitation can never be understood as a positive negation
of any advances by the other partner.
48. The conduct of the prosecutrix, it has been argued, suggests
volumes about the falsity of the prosecution version. The
communication of the prosecutrix via e-mail dated 30.04.2015 is one
such incidence of the prosecution version to be absolutely incorrect.
A person who has been violated against her wishes would not be so
understanding as to confront the appellant with such simple reproach.
No communication on the next day between the prosecutrix and the
appellant further buttresses the aforesaid argument. A day after the
occurrence, the prosecutrix cannot be said to be under any fear of
reprisal or reaction and her not approaching the issue with the
appellant is rather surprising.
49. Mr. Sibal has argued that within few hours of the e-mail
exchange of 30.03.2015 referred to above, the appellant had called the
prosecutrix on her phone which lasted for 76 seconds. This fact has
not been stated by the prosecutrix and when she was confronted, she
has denied the same. The CDR records reveal the same and it was not
Crl.A.944/2016 Page 40 of 82
in the mouth of the prosecutrix to have completely denied this fact or
to keep it hidden from the prosecution or to feign ignorance about the
same. She cannot be expected to have forgotten about the aforesaid
call as it was made after the e-mail message to the appellant by her. It
is thereafter, as has been submitted, that there was another exchange
of e-mail on 12.04.2015, wherein the prosecutrix was abusive and
spoke about her having been raped despite her resistance. It has also
been suggested that after the aforesaid call of the appellant to the
prosecutrix, that for the first time, she set up a case of sexual assault
which becomes evident from the communication on 31.03.2015 to
Mathangi, a friend of the prosecutrix and thereafter to her supervisor
on 01.04.2015. The intensity/seriousness of the allegation kept on
increasing successively.
50. In his statement recorded under Section 313 of the Cr.P.C., the
appellant has admitted that the prosecutrix had sent him an e-mail
(Ex.PW3/C-9) to which he had replied as “my sincerest apologies”.
He has stated that it was written only after reading the first two lines
of the e-mail as the appellant was busy that morning and was
constantly in communication with other artists and writers regarding
Crl.A.944/2016 Page 41 of 82
his performance of „Dastangoi‟. The first impression of the appellant
after going through 2-3 lines of the e-mail dated 30.03.2015 was that
the prosecutrix was upset because full attention was not given to her
on the last night. Only after the entire e-mail was read by him later
that he realized the necessity of calling the prosecutrix and telling her
that there never was any intimacy between him and her and that it
shall never be and he did not want to continue any alliance with her.
51. The denial of the prosecutrix about this telephone call of the
appellant is very consequential and appears to be deliberate. The
reaction of the prosecutrix became different only after this call by the
appellant to her.
52. Apart from the above, Mr. Sibal, learned senior advocate for the
appellant also drew the attention of this Court to the response of the
wife of the appellant which made it very obvious that the appellant
was a bipolar patient and was under a rehabilitation regimen.
53. So far as the conduct of the prosecutrix is concerned, it has been
argued, that she has deliberately avoided to come with clean hands
before the police and before the Trial Court. It was suggested that she
deleted the WhatsApp messages to destroy inconvenient evidence and
Crl.A.944/2016 Page 42 of 82
has made best efforts to conceal the deletion of the first
communication after the alleged incident. The telephone was handed
over to the police on 07.07.2015 only. She also concealed a pretty
long conversation between the appellant and herself on 30.03.2015
soon after the exchange of the email. With respect to the call to Anuj
Pawra (PW.20) and about her fixing a MERU cab also, certain vital
information have been withheld by her. Coupled with all this, the
delay in lodging the FIR has also not been properly explained.
54. The prosecutrix, it has been argued, cannot be believed as she is
the sole witness/victim of the occurrence but her evidence is not of a
stellar quality. In Rai Sandeep @ Deepu vs. State: (2012) 8 SCC 21,
the Supreme Court has defined as to who is a “sterling witness”. A
“sterling witness” is one who is of a very high quality and caliber,
whose version is unassailable and the court considering the version of
such a witness should be in a position to accept it on, its face value
without any hesitation. The Supreme Court in Rai Sandeep (supra) has
gone on to state that to test the quality of such a witness, the status of
the witness would be immaterial and the relevant consideration would
only be the truthfulness of the statement made by such a witness. If the
Crl.A.944/2016 Page 43 of 82
statement is consistent right from the starting point till the end and is
found to be natural and consistent with the case of the prosecution, his
deposition is safe to be relied upon. There should not be any
prevarication in the version of such a witness to be called a “sterling
witness”. The version of such witness should have a correlation with
each and every supporting material of the case and should match with
the version of every other witness. It was summed up by the Supreme
Court by stating that if the version of a witness, on the core spectrum
of the crime, remains intact and the other materials match such version
in essential particulars, then only, it would enable a Court to rely upon
the core version. The test to be applied for considering such witness
to be truthful is similar to the test applied in case of circumstantial
evidence where there are no missing links in the chain of the
circumstances to hold an accused guilty of the offence alleged against
him.
55. Thus, it was argued that there are serious doubts as to the
possibility of the commission of the act complained of, in the light of
the independent record namely the CDRs of Ashish Singh (PW.12)
and MERU booking records. The testimony of the prosecutrix is at
Crl.A.944/2016 Page 44 of 82
complete variance with other prosecution witnesses. Even she
(prosecutrix) has been inconsistent on very many material particulars.
A reference has been made to the case of Tameezuddin @ Tammu vs
State Of (Nct) Of Delhi : (2009) 15 SCC 566, where the Supreme
Court has held as here under:
“It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration,
but to hold that this evidence has to be accepted even if
the story is improbable and belies logic, would be doing
violence to the very principles which govern the
appreciation of evidence in a criminal matter.”
56. As opposed to the aforesaid submissions, Ms.Vrinda Grover,
learned counsel appearing for the complainant/prosecutrix has argued
that the averments made by her in the FIR, the statement given by her
under section 164 of the Cr.P.C. and her deposition before the Trial
Court are absolutely consistent with respect to the guilt of the
appellant. The appellant had committed forced oral sex upon the
prosecutrix within the meaning of section 375(d) of the IPC. On
30.03.2015, the appellant, in his email reply to the prosecutrix,
Crl.A.944/2016 Page 45 of 82
admitted of the same and apologized to her for having committed the
act without her consent and against her will.
57. It was further submitted on behalf of the prosecutrix that she
was unable to cope with the emotional and mental trauma and
therefore she returned to USA. Only when she became confident of
the support from her family and her friends in the USA that she
gathered courage to return to India to lodge the FIR on 19.06.2015 at
New Friends Colony police station.
58. The evidence of the prosecutrix, it has been urged, is of sterling
quality and is consistent with other evidence collected during the
course of trial and matches with the independent records comprising
emails, sms, WhatsApp communication and Call Data Records
(CDRs). It has been vehemently argued that the prosecutrix
categorically said „no‟ to the advances of the appellant when he began
to kiss her and also pushed him away. The statement of the
prosecutrix clearly reveals that while the appellant attempted to
disrobe her, she kept on pulling her underwear up. It was only because
of the physical strength of the appellant that he pinned the prosecutrix
down and forced oral sex on her.
Crl.A.944/2016 Page 46 of 82
59. Learned counsel for the prosecutrix has drawn special attention
to the statement of the prosecutrix where she has said that she became
scared and a thought passed in her mind that she would also meet the
same fate as Nirbhaya and therefore, she faked an orgasm because she
wanted to end the traumatic encounter. In the first communication to
the appellant after the incident, the prosecutrix made him known that
the act was against her will and without her consent and therefore was
a grave violation of her sexuality, which was totally unacceptable to
her. In fact, in her deposition, the prosecutrix has vividly stated about
the act of the appellant upon her.
60. In so far as the other material particulars of the case matching
with the version of the prosecutrix is concerned, it has been submitted
that on 28.03.2015, the appellant had spoken to the prosecutrix over
phone and had invited her to his house for dinner in the evening.
Later, the programme was changed and the appellant informed the
prosecutrix that they would be going to a wedding and also asked her
to bring Rs.1,000/- as gift for the wedding. In the night of 28.03.2015,
while for a brief period, when the appellant was alone in the company
of the prosecutrix, he subjected her to rape. Immediately after the
Crl.A.944/2016 Page 47 of 82
rape, the prosecutrix communicated with the Danish Hussaini (PW10),
a common friend of the appellant and her and informed him that
something untowards had happened which had made her upset and
that she urgently needed to speak to him. After leaving the house of
the appellant, the prosecutrix gave PW.10, on telephone, the detailed
version of how the appellant had violated her bodily integrity. This
conversation lasted for over half an hour. All these sequence of events
have been cogently narrated by the prosecutrix in her deposition
before the Trial Court.
61. The fact that the appellant wrote back to the prosecutrix
expressing his apology is an indication of an acceptance of the guilt of
the appellant and it has to be read as an admission and subsequent
conduct of the appellant, under section 8 of the Evidence Act.
62. In the WhatsApp conversation between the prosecutrix and her
friend Mathangi Krishnamurthy (Ex.PW.3-C/16) and her email to her
academic advisor Allison Busch (Ex.PW.3-C/14 15), the
prosecutrix has laid bare her heart and mind regarding the trauma
faced by her. Thereafter, the email of the prosecutrix to the appellant
further establishes that the occurrence had taken place as alleged and
Crl.A.944/2016 Page 48 of 82
she made it clearly known to the appellant that she is going to
prosecute him. The wife of the appellant replied to her email which
also indicates that she accepted the accusation and believed her
statement. The email exchanged between the wife of the appellant and
the return of the email have been exhibited as Ex.PW.3-C/11 and
Ex.PW.3-C/13. In April, 2015, the prosecutrix reported about the rape
to Columbia University, Department of Gender based misconduct and
also informed one Adam Grotski (Head of Fulbright Administration)
that she has been sexually assaulted and had returned to US to cope
with the post-incident trauma. Since the visa was not extended, the
prosecutrix obtained a tourist visa, only for the purposes of lodging the
complaint against the appellant.
63. It has been argued that if upon consideration of the prosecution
case in its entirety, the testimony of prosecutrix inspires confidence,
there should be no necessity of corroboration of her evidence and such
hunt for corroboration has to be avoided. The sole testimony of the
prosecutrix in cases of rape is sufficient for conviction. It has been
argued that the Supreme Court in State of Punjab vs. Gurmeet Singh:
Crl.A.944/2016 Page 49 of 82
(1996) 2 SCC 384 has made the following observations with respect to
the evidence of a victim of sexual assault.
“The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are
factors which the Courts should not over-look. 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. Why should the evidence of a girl of a woman who
complains of rape or sexual molestation, be viewed with
doubt, disbelief or suspicion? The Court while
appreciating the evidence of a prosecutrix may look for
some assurance of her statement to satisfy its judicial
conscience, since she is a witness who is interested in the
outcome of the charge levelled by her, but there is no
requirement of law to insist upon corroboration of her
statement to base conviction of an accused. The evidence
of a victim of sexual assault stands almost on a par with
the evidence of an injured witness and to an extent is even
more reliable. Just as a witness who has sustained some
injury in the occurrence, which is not found to be self
inflicted, is considered to be a good witness in the sense
that he is least likely to shield the real culprit, the
evidence of a victim of a sexual offence is entitled to great
weight, absence of corroboration notwithstanding.
Corroborative evidence is not an imperative component
of judicial credence in every case of rape. Corroboration
as a condition for judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a guidance of
prudence under given circumstances. It must not be over-
looked that a woman or a girl subjected to sexual assaultCrl.A.944/2016 Page 50 of 82
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. Inferences
have to be drawn from a given set of facts and
circumstances with realistic diversity and not dead
uniformity lest that type of rigidity in the shape of rule of
law is introduced through a new form of testimonial
tyranny making justice a casualty. Courts cannot cling to
a fossil formula and insist upon corroboration even if,
taken as a whole, the case spoken of by the victim of sex
crime strikes the judicial mind as probable. In State of
Maharashtra Vs. Chandraprakash Kewalchand Jain
Ahmadi, J. (as the Lord Chief Justice then was) speaking
for the Bench summarised the position in the following
words:
“A prosecutrix of a sex offence cannot be put on a
par with an accomplice. She is in fact a victim of
the crime. The Evidence Act nowhere says that
her evidence cannot be accepted unless it is
corroborated in material particulars. She is
undoubtedly a competent witness under Section
118 and her evidence must receive the same
weight as is attached to an injured in cases of
physical violence. The same degree of care and
caution must attach in the evaluation of her
evidence as in the case of an injured complainant
or witness and no more. What is necessary is that
the court must be alive to and conscious of the
fact that it is dealing with the evidence of a person
who is interested in the outcome of the charge
levelled by her. If the court keeps this in mind and
feels satisfied that it can act on the evidence of the
prosecutrix, there is no rule of law or practice
incorporated in the Evidence Act similar to
illustration (b) to Section 114 which requires it to
look for corroboration. If for some reason the
court is hesitant to place implicit reliance on theCrl.A.944/2016 Page 51 of 82
testimony of the prosecurtix it may look for
evidence which may lend assurance to her
testimony short of corroboration required in the
case of an accomplice. The nature of evidence
required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts
and circumstances of each case. But if a
prosecutrix is an adult and of full understanding
the court is entitled to base a conviction on her
evidence unless the same is shown to be infirm
and not trustworthy. If the totality of the
circumstances appearing on the record of the case
disclose that the prosecutrix does not have a
strong motive to falsely involve the person
charged, the court should ordinarily have no
hesitation in accepting her evidence.”
64. Reference has also been made to the judgments delivered in
Aslam vs. State of Uttar Pradesh: (2014) 13 SCC 350; Ravinder vs.
State of Madhya Pradesh: (2015) 4 SCC 491; and Om Prakash vs.
State of Uttar Pradesh: (2006) 9 SCC 787 to canvas the proposition
that victim of sexual assault cannot be treated as an accomplice and
therefore the evidence of the victim does not require any corroboration
and that it must be relied upon by the Court if such statement is cogent
and trustworthy.
65. It has next been argued that even if there are some minor
discrepancies in the version of the prosecutrix and that also on non-
material aspects, that does not entitle the prosecution case to be
Crl.A.944/2016 Page 52 of 82
thrown out. The pre and post incident conduct of the prosecutrix, it has
been argued, cannot be faulted with to prop up a false and improbable
theory. The absence of corresponding CDRs when the prosecutrix
spoke about having talked to the appellant at 4:30 p.m. in the evening
of 28.03.2015 or when the prosecutrix stated that she was asked by the
appellant to go to a wedding and the prosecutrix was not found to be
attired in a wedding dress are ancillary matters and cannot be given
any undue importance or relevance.
66. The testimony of the prosecutrix has been fully corroborated by
the evidence of Danish Hussaini (PW10) The WhatsApp chat
conversation completely matches with the prosecution version that the
prosecutrix was trying to book a taxi after the incident and she also
contemplated of taking an auto and was suggested that she should not
hire an auto in the night as it is dangerous. It has been submitted on
behalf of the prosecutrix that in the WhatsApp chat, the prosecutrix
deliberately did not write that she had been raped because it was not
the incident which could have been summarized in a WhatsApp
conversation. This cannot be read as an evidence against the appellant
as not displaying the conduct of a victim of sexual assault.
Crl.A.944/2016 Page 53 of 82
67. The prosecutrix was in a hostile environment and therefore she
had to be careful in forwarding messages. The other inmates of the
house were all closely associated to the appellant and the prosecutrix
could not have taken any risk. However, the urgency which she
depicted in the WhatsApp conversation speaks for itself.
68. The subsequent conduct of the prosecutrix, it has been argued,
is very normal, natural and reasonable as she had been raped by a
friend and not a stranger. That the prosecutrix went to Hauz Khas
village because she did not want to be alone. She had also been
advised by Danish Husaini (PW10) not to remain alone and to take
care of herself. There is no evidence, it has been argued, that at Hauz
Khas, she indulged in any conviviality. If the prosecutrix chose a busy
place to be in, to overcome her trauma, the same should not be read as
an unnatural conduct of a victim of rape.
69. The Supreme Court in Mukesh vs. State of Chhattisgarh:
(2014) 10 SCC 327, which was a case of rape, has held that the state
of mind of the prosecutrix cannot be precisely analyzed on the basis of
speculation because each person reacts differently to a particular
stressful situation.
Crl.A.944/2016 Page 54 of 82
70. The delay in the lodging of the FIR has been satisfactorily
explained and once the explanation is found to be satisfactory, no
adverse inference can be drawn against the prosecutrix.
71. The Supreme Court in State of Uttar Pradesh vs. Manoj Kumar
Pandey: (2009) 1 SCC 72; Satpal Singh vs. State of Haryana: (2010)
8 SCC 714; and Santhosh Moolya and Ors. Vs. State of Karnataka:
(2010) 5 SCC 445 has held that the normal rule regarding the duty of
the prosecution to explain the delay in lodging the FIR and the lack of
prejudice and/or prejudice caused because of such delayed lodging of
the FIR does not per se apply to cases of rape. It was held by the
Supreme Court that such was the consistent view for a very long time.
72. More or less similar arguments have been advanced on behalf
of state by Ms.Richa Kapoor, learned Additional Standing Counsel.
73. From a conspectus of the entire of facts and circumstances and
the arguments advanced on behalf of the parties, what is clearly
indicated is that the prosecutrix had become very familiar with the
appellant in recent past and had opportunity to interact with him on
several occasions. The alcoholism of the appellant was not a secret
for the prosecutrix.
Crl.A.944/2016 Page 55 of 82
74. The relationship extended beyond a normal friendship or a
relationship between a guide and a researcher. According to her own
version, physical contact with the appellant in the nature of a kiss or a
hug was being accepted by the prosecutrix without any protest. In
fact, on one occasion, while the prosecutrix was in the company of the
appellant and his wife and the wife of the appellant had been moving
from one room to another, the prosecutrix and the appellant both had
taken a bold step of kissing each other. True it is that such past
conduct will definitely not amount to consent for what happened in the
night of 28.03.2015, if at all it had happened, as for every sexual act,
everytime, consent is a must. The consent does not merely mean
hesitation or reluctance or a „No‟ to any sexual advances but has to be
an affirmative one in clear terms.
75. Section 375 of the IPC reads as hereunder:
“375 Rape–A man is said to commit “rape” if he—
a) penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do so
with him or any other person; or
b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or any
other person; orCrl.A.944/2016 Page 56 of 82
c) manipulates any part of the body of a woman so as
to cause penetration into the vagina, urethra, anus or any
part of body of such woman or makes her to do so with
him or any other person; or
d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person,under the circumstances falling under any of the
following seven descriptions:–
First.–Against her will.
Secondly.–Without her consent.
Thirdly.–With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly.–With her consent, when the man knows that he
is not her husband and that her consent is given because
she believes that he is another man to whom she is or
believes herself to be lawfully married.
Fifthly.–With her consent when, at the time of giving
such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or
through another of any stupefying or unwholesome
substance, she is unable to understand the nature and
consequences of that to which she gives consent.
Sixthly.–With or without her consent, when she is under
eighteen years of age.
Seventhly.–When she is unable to communicate consent.
Explanation I.–For the purposes of this section,
“vagina” shall also include labia majora.
Crl.A.944/2016 Page 57 of 82
Explanation 2.–Consent means an unequivocal
voluntary agreement when the woman by words, gestures
or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific
sexual act:
Provided that a woman who does not physically resist to
the act of penetration shall not by the reason only of that
fact, be regarded as consenting to the sexual activity.
Exception I.–A medical procedure or intervention shall
not constitute rape.
Exception 2.–Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under fifteen years
of age, is not rape.”
76. The explanation (2) and the proviso make it very clear that
consent has to be categorical, unequivocal, voluntary and could be
given by words, gestures or any form of verbal or non-verbal
communication signifying willingness to participate in a specific
sexual act. By way of precaution, a proviso has been added to the
aforesaid explanation namely that a woman who does not physically
resist an act of rape shall not by that reason only be regarded as having
consented to such sexual activity.
77. The WhatsApp communication between the prosecutrix and the
appellant on 30.03.2015 signifies that what happened in the night of
28.03.2015 was not acceptable to her because it was something which
Crl.A.944/2016 Page 58 of 82
she never wanted. The communication further reads that the
appellant, on that night went too far. This obviously means that there
were some earlier encounters which may not have been of such
intensity or passion but physical contact in some measure was
accepted. Under such circumstances, this Court is required to see as to
what was communicated to the appellant. It is a matter of common
knowledge that different persons have different inclinations for sexual
activity and immediately preceding the act, there are different ways of
people of responding to the advances, entreaties or request.
78. Instances of woman behavior are not unknown that a feeble „no‟
may mean a „yes‟. If the parties are strangers, the same theory may
not be applied. If the parties are in some kind of prohibited
relationship, then also it would be difficult to lay down a general
principle that an emphatic „no‟ would only communicate the intention
of the other party. If one of the parties to the act is a conservative
person and is not exposed to the various ways and systems of the
world, mere reluctance would also amount to negation of any consent.
But same would not be the situation when parties are known to each
other, are persons of letters and are intellectually/academically
Crl.A.944/2016 Page 59 of 82
proficient, and if, in the past, there have been physical contacts. In
such cases, it would be really difficult to decipher whether little or no
resistance and a feeble „no‟, was actually a denial of consent.
79. Section 90 of the IPC reads as hereunder:
“90. Consent known to be given under fear or
misconception.–A consent is not such a consent as it
intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception; or
Consent of insane person.–if the consent is given by a
person who, from unsoundness of mind, or intoxication,
is unable to understand the nature and consequence of
that to which he gives his consent; or Consent of child.–
unless the contrary appears from the context, if the
consent is given by a person who is under twelve years of
age.”
80. What the aforesaid section of the IPC mandates is that the
accused must know that the consent which was given was under a fear
of injury or misconception of fact.
Crl.A.944/2016 Page 60 of 82
81. The fact situation with which this Court is faced is like this: The
prosecutrix has come to the house of the appellant on his invitation.
Both the prosecutrix and the appellant have consumed liquor in
varying measures. The appellant has been displaying drunken-cum-
lachrymose behavior from before the arrival of the prosecutrix. The
prosecutrix, out of concern for the appellant, mixes a light drink of
vodka for the appellant. In the immediate past, two of the associates of
the appellant had left the house of the appellant for a brief period, only
to return later. Another person namely Darain Shahidi (DW.3) was
expected to arrive but he disclosed his unwillingness/incapability of
coming to the house of the appellant, which was heard by the
prosecutrix as well. The prosecutrix continues to chat with the
appellant and at times has been asking personal questions regarding
the cause of trouble of the appellant to which the appellant responded
that it was his wife and mother. There are some exchanges between
the parties regarding their being good persons in their individuals
rights. The prosecutrix starts feeling motherly towards the appellant.
Then the appellant communicates his desire to suck her. The
prosecutrix says „No‟ and gives a push but ultimately goes along. In
Crl.A.944/2016 Page 61 of 82
her mind, the prosecutrix remembers a clip from the case of Nirbhaya,
a hapless girl who was brutally raped and killed, when the maelfactor
had declared that if she (Nirbhaya) did not resist, she might have lived.
82. There is no communication regarding this fear in the mind of
the prosecutrix to the appellant. The prosecutrix makes a mental move
of feigning orgasm so as to end the ordeal. What the appellant has
been communicated is, even though wrongly and mistakenly, that the
prosecutrix is okay with it and has participated in the act. The
appellant had no opportunity to know that there was an element of fear
in the mind of the prosecutrix forcing her to go along. After
completing the act, the appellant asks the prosecutrix that he wishes to
do it again. In the mean time, the privacy is disturbed with the ringing
of the door bell and the arrival of the two associates of the appellant.
In such a scenario, when there are two competing claims juxtaposed
each other, the call is difficult.
83. The questions which arise are whether or not there was consent;
whether the appellant mistakenly accepted the moves of the
prosecutrix as consent; whether the feelings of the prosecutrix could
be effectively communicated to the appellant and whether mistaking
Crl.A.944/2016 Page 62 of 82
all this for consent by the appellant is genuine or only a ruse for his
defence. At what point of time and for which particular move, the
appellant did not have the consent of the prosecutrix is not known.
What is the truth of the matter is known to only two persons namely
the appellant and the prosecutrix who have advanced their own
theories/versions.
84. In order to answer the aforesaid questions, it would be
necessary to see what the word “consent”, especially in relation to
sexual activity, connotes. In normal parlance, consent would mean
voluntary agreement of a complainant to engage in sexual activity
without being abused or exploited by coercion or threats. An obvious
ingredients of consent is that, as consent could be given, it could be
revoked at any time; rather any moment. Thus, sexual consent would
be the key factor in defining sexual assault as any sexual activity
without consent would be rape. There is a recent trend of suggesting
various models of sexual consent. The traditional and the most
accepted model would be an “affirmative model” meaning thereby
that “yes” is “yes” and “no” is “no”. There would be some difficulty in
an universal acceptance of the aforesaid model of consent, as in
Crl.A.944/2016 Page 63 of 82
certain cases, there can be an affirmative consent, or a positive denial,
but it may remain underlying/dormant which could lead to confusion
in the mind of the other.
85. In an act of passion, actuated by libido, there could be myriad
circumstances which can surround a consent and it may not
necessarily always mean yes in case of yes or no in case of no.
Everyone is aware that individuals vary in relation to expositing their
feelings. But what has to be understood is that the basis of any sexual
relationship is equality and consent. The normal rule is that the
consent has to be given and it cannot be assumed. However, recent
studies reveal that in reality, most of the sexual interactions are based
on non-verbal communication to initiate and reciprocate consent.
Consent cannot also be analyzed without taking into account the
gender binary. There are differences between how men and women
initiate and reciprocate sexual consent. The normal construct is that
man is the initiator of sexual interaction. He performs the active part
whereas a woman is, by and large, non-verbal. Thus gender relations
also influence sexual consent because man and woman are socialized
into gender roles which influence their perception of sexual
Crl.A.944/2016 Page 64 of 82
relationship and expectation of their specific gender roles with respect
to the relationship. However, in today‟s modern world with equality
being the buzzword, such may not be the situation.
86. Today, it is expected that consent be viewed as a clear and
unambiguous agreement, expressed outwardly through mutually
understandable words or actions. Inheres in it is the capacity to
withdraw the consent by either party at any point of time. Normally,
body language or a non-verbal communication or any previous
activity or passivity and in some cases incapacitation because of
alcohol consumption, may not be taken as consent. However, in the
present case, as has been stated, the appellant has not been
communicated or at least it is not known whether he has been
communicated that there was no consent of the prosecutrix.
87. Another important aspect which is required to be gone into,
especially for the purposes of this case, is whether it would be
necessary for a just decision in this case, to look into the
evidence/circumstances of the display of Rape Trauma Syndrome
(hereinafter called RTS) by the prosecutrix.
Crl.A.944/2016 Page 65 of 82
88. The RTS is the psychological trauma experienced by a rape
victim which includes disruption of normal, physical, emotional,
cognitive and interpersonal behavior. The theory of RTS was first
propounded by a psychiatrist Ann Wolbert Burgess and sociologist
Lynda Lytle Holmstrom in 1974. It was described as a cluster of
psychological and physical science, symptoms and reactions which are
common to most rape victims immediately following and for months
or years after the incident of rape. Three stages have been identified
in RTS: (a) the acute stage, (b) the outer adjustment stage and (c) the
renormalization stage. The acute stage occurs immediately after the
occurrence and it may include disorganized behavioral pattern like
diminished alertness, hysteria, confusion, bewilderment and may be,
extreme sensitivity to the reaction of other people. The second stage
comes when the victim has assumed his/her normal lifestyle but is still
suffering from profound internal turmoil. This stage could last for
several months and could extend to several years also after rape. This
stage is identified with refusal to discuss rape or analyzing why it
happened, a general sense of helplessness, panic attacks and
disassociation meaning, a kind of feeling that one is not attached to
Crl.A.944/2016 Page 66 of 82
one‟s body. The rape victims in this stage can see the world as a more
threatening place to live in. In the renormalization stage, adjustment
begins and the incident no longer remains the central focus in the life
of the victim. The negative feelings of guilt and shame are resolved
and the survivor does not blame herself for the attack.
89. The reaction of the individual to similar fact situations can vary
and, therefore, it cannot be said that a particular conduct of a person,
which is not in conformity with the general conduct of another who,
would be faced with similar circumstance, that such conduct belies
the allegations. It would thus be unfair to the complainant/victim to
judge the veracity of her accusation on the basis of RTS displayed by
her. If a rape victim resorts to an individual/specific coping
mechanism, that ought not to delegitimize her reaction to rape.
90. For the aforesaid reason, this Court does not propose to analyze
the post rape conduct of the prosecutrix as suggested on behalf of the
appellant. Having said so, it can safely be held that the circumstances
which have been suggested by the defence namely: (i) the prosecutrix
not running away from the place of occurrence; (ii) her remaining
present in the house of the appellant for about good 45 minutes post
Crl.A.944/2016 Page 67 of 82
rape; (iii) not divulging about the act to either PW.12 or brother of the
appellant who came along with PW.12 or to the wife of the appellant;
(iv) no communication with the appellant till 30.03.2015; (v) first
communication to the appellant being in the nature of a minor
abjuration; (vi) the prosecutrix booking a MERU cab and cancelling
the same; (vii) going to the restaurant at Hauz Khas; (viii) calling
PW.12 after reaching Hauz Khas hotel; (ix) taking inordinately long
time to register the FIR etc, could be and perhaps are manifestations of
post-rape trauma and disorientation of the prosecutrix.
91. There could be explanation for each of such conduct of the
prosecutrix. The explanation regarding the delay in lodging the FIR
may be bleak but not totally unacceptable. A lady who is a foreign
national and has been violated by a close acquaintance, would require
support of the family and others for fighting litigation in India. The
explanation that only after the prosecutrix could garner the support of
her family and the people of the department, back in the US, gave her
support for her to muster courage to come back to India to lodge the
FIR, is not wholly unacceptable. There cannot be any gainsaying that
if at all the prosecutrix was raped without her consent and will, she
Crl.A.944/2016 Page 68 of 82
would suffer trauma and in that event, her not immediately disclosing
such facts to close acquaintances of the appellant and perhaps the wife
of the appellant is also understandable. That the prosecutrix was
advised by PW.10 not to remain alone, made her go to a restaurant at
Hauz Khas as her roommate was not available in her flat that night, is
also quite explicable. The prosecutrix booking a MERU cab and then
cancelling it, can also not be read as if nothing had happened to her.
Perhaps, for being violated/hurt by a close acquaintance and that also
in his house, prosecutrix may have become disoriented. With the
arrival of PW.12 and the brother of the appellant, the prosecutrix
might have felt safe to stay in the house for some more time but not
safe enough to tell them about the occurrence. She had been
introduced to the aforesaid two persons only in the evening of
28.03.2015 and the prosecutrix cannot be expected to know how they
would react to such fact situation.
92. This Court does not also deem it necessary to go into the details
of the timings suggested by the parties regarding various happenings
as those are only in the nature of guesstimates, though sought to be
corroborated by admissible secondary evidence. Issues regarding
Crl.A.944/2016 Page 69 of 82
timing of the arrival of the prosecutrix in the house of the appellant;
PW-12 leaving house for a brief period and then coming back;
booking of MERU cab by the prosecutrix; timing of texting and
calling PW-10 etc pale into insignificance when it is doubtful as to
whether the appellant had the requisite mental intent of violating the
prosecutrix and whether he had genuinely mistaken some verbal/non
verbal communication as consent and whether the element of fear in
the mind of the prosecutrix was made known or communicated to the
appellant.
93. While saying so, this Court has taken into account that human
memory cannot always be taken to be sacrosanct. Theories
propounded about the concept of a memory indicate that memory does
not work like a video recorder. If a person sees an event, he
sees/receives only fragments of such information from the
circumstance which is sighted. Those fragments are then mixed with
other information from other sources viz any prior information, which
is stored in memory, and some kind of an expectation as to what
would happen, as also, inferences which could be derived from the set
of circumstances or conclusions arrived at after the event has
Crl.A.944/2016 Page 70 of 82
occurred. All these conglomerate into an information which is then
stored in a person‟s memory with respect to that event. It has been
scientifically proved that sometimes, such memory could be accurate
but it may not be necessary that under all circumstances it would be
the same what was perceived by that person. There is no guarantee of
any exactitude about the memory of an incident. Studies in the field
has also revealed that when certain fact gets into the memory of a
person, it does not remain unchangeable. It is highly fluid, which
could change with the passage of time. Whenever a person would
think about an event about which he has some memory or would
revisit mentally the aforesaid circumstance, the stored memory in the
mind changes in some measure. Such changes could take many forms.
Many a times, the memory changes with the belief of the person
having it in his mind and his inferences about the cause of the
occurrence. So far as timings of particular happenings are concerned,
it may not catch the attention of a witness and the memory which is
stored in his mind is only a rough estimate of the time i.e. whether the
occurrence had taken place in the morning, in the early afternoon,
evening or night. There is also a possibility of remembering the
Crl.A.944/2016 Page 71 of 82
happening of a particular event if it is associated with another
happening. As for example, a person having lunch in a restaurant sees
somebody hitting at the waiter leading to his death. The witness may
or may not remember the face of the person or the victim but would
remember that the occurrence had taken place sometimes in the
afternoon when he had visited the restaurant for lunch. However, it
may not be possible for him to remember exactly that the timing of the
occurrence was 1.30 pm or 1.45 pm. There can only be a rough
assessment about the spacing of events which are associated with a
particular happening.
94. The study of memory also tells us that the memory works under
a variety of ways. If a circumstance is identified with a particular
timing say lunch time or dinner time, the memory regarding an
occurrence taking place at the lunch time, after the lunch time or
before the dinner time can be accurate. However, the hunt for
accuracy to the seconds and minutes is nothing but chasing illusion.
95. The Supreme Court in Pragan Singh vs. State of Punjab
Ors.: (2014) 14 SCC 619 had the occasion to examine as to how
memory works and whether there should be complete reliance on such
Crl.A.944/2016 Page 72 of 82
human memory even after a lapse of time. In the aforesaid case, a plea
was raised by the accused persons that the manner in which the
narration was made gave an impression that guess work or conjectures
were being resorted to. It was suggested that the witnesses could not
have remembered the faces of the accused after 7½ years of the
occurrence as memory fades by that time. Though, in that case, the
Supreme Court was of the view that the memory of an eye witness
who had seen the accused persons killing the deceased would not be
easily erased or forgotten more so when the deceased was a friend and
the witness himself had narrowly escaped from being killed. Under
such circumstances, the Supreme Court was of the view that the
memory regarding the face of the accused would be etched in the mind
of the witness for a long time. However, while deciding the aforesaid
case, the Supreme Court dealt with the manner in which the memory
of a person works. In Pragan Singh (Supra), the Supreme Court has
held as hereunder:-
18. Before entering upon the discussion on this aspect
specific to this case, we would like to make some general
observations on the theory of “memory”. Scientific
understanding of how memory works is described byCrl.A.944/2016 Page 73 of 82
Geoffrey R. Loftus while commenting upon the judgment
dated 16-1-2002 rendered in Javier Suarez
Medina v.Janie Cockrell [ Case No. 01-10763, decided
on 16-1-2002 (5th Cir 2002)] by the United States Court
of Appeals. He has explained that a generally accepted
theory of this process was first explicated in detail by
Neisser (1967) and has been continually refined over the
intervening quarter-century. The basic tenets of the
theory are as follows:
18.1. First, memory does not work like a video recorder.
Instead, when a person witnesses some complex event,
such as a crime, or an accident, or a wedding, or a
basketball game, he or she acquires fragments of
information from the environment. These fragments are
then integrated with other information from other
sources. Examples of such sources are: information
previously stored in memory that leads to prior
expectations about what will happen, and information–
both information from external sources, and information
generated internally in the form of inferences–that is
acquired after the event has occurred. The result of this
amalgamation of information is the person’s memory for
the event. Sometimes this memory is accurate, and other
times it is inaccurate. An initial memory of some event,
once formed, is not “cast in concrete”. Rather, a memory
is a highly fluid entity that changes, sometimesCrl.A.944/2016 Page 74 of 82
dramatically, with the passage of time. Every time a
witness thinks about some event–revisits his or her
memory of it–the memory changes in some fashion. Such
changes take many forms. For instance, a witness can
make inferences about how things probably happened,
and these inferences become part of the memory. New
information that is consistent with the witness’s beliefs
about what must have happened can be integrated into
the memory. Details that do not seem to fit a coherent
story of what happened can be stripped away. In short,
the memory possessed by the witness at some later point
(e.g. when the witness testifies in court) can be quite
different from the memory that the witness originally
formed at the time of the event.
18.2. Memory researchers study how memory works
using a variety of techniques. A common technique is to
try to identify circumstances under which memory is
inaccurate versus circumstances under which memory is
accurate. These efforts have revealed four major sets of
circumstances under which memory tends to be
inaccurate. The first two sets of circumstances involve
what is happening at the time the to-be-remembered
event is originally experienced, while the second two sets
of circumstances involve things that happen after the
event has ended.
Crl.A.944/2016 Page 75 of 82
18.3. The first set of circumstances involves the state of
the environment at the time the event is experienced.
Examples of poor environmental conditions include poor
lighting, obscured or interrupted vision, and long
viewing distance. To the degree that environmental
conditions are poor, there is relatively poor information
on which to base an initial perception and the memory
that it engenders to begin with. This will ultimately result
in a memory that is at best incomplete and, as will be
described in more detail below, is at worst systematically
distorted.
18.4. The second set of circumstances involves the state
of the observer at the time the event is experienced.
Examples of sub-optimal observer states include high
stress, perceived or directly inflicted violence, viewing
members of different races, and diverted attention. As
with poor environmental factors, this will ultimately
result in a memory that is at best incomplete and, as will
be described in more detail below, is at worst
systematically distorted.
18.5. The third set of circumstances involves what occurs
during the retention interval that intervenes between the
to-be-remembered event and the time the person tries to
remember aspects of the event. Examples of memory-
distorting problems include a lengthy retention interval,Crl.A.944/2016 Page 76 of 82
which leads to forgetting, and inaccurate information
learned by the person during the retention interval that
can get incorporated into the person’s memory for the
original event.
18.6. The fourth set of circumstances involves errors
introduced at the time of retrieval i.e. at the time the
person is trying to remember what he or she experienced.
Such problems include biased tests and leading
questions. They can lead to a biased report of the
person’s memory and can also potentially change and
bias the memory itself.”
96. The prosecutrix (PW5) can of course be called a sterling
witness as, by and large, the sequence of events narrated/deposed by
her, matches with the evidence of the PW.10 and PW.12. But whether
the allegation of the prosecutrix that the appellant, without her consent
and will, sexually abused her by use of force, is to be believed, is the
question which this Court is beset with.
97. Ms.Vrinda Grover, learned advocate for the prosecutrix has
submitted that the argument of the act being consensual was never
raised by the appellant before the Trial Court and therefore, the
Crl.A.944/2016 Page 77 of 82
appellant would be precluded from advancing such argument at the
stage of the appeal. In support of the aforesaid proposition, attention
has been drawn to the case of Pragan Singh (Supra), which was a
case of murder and the appellants had taken the plea that they had
refused to participate in the TIP because one of the prosecution
witnesses was shown the faces of the appellants in police station after
their arrest. No reason had been assigned by them about their refusal
to participate in the TIP before the Trial Court, either at the time of
refusal or while the statement of the accused was being recorded under
section 313 Cr.P.C., or before the High Court. The Supreme Court
therefore did not permit the aforesaid ground to be taken.
98. The facts of the present case are absolutely different from the
case cited by Ms.Grover.
99. It is well-settled proposition that from the attending
circumstances and the evidence already collected, if it appears that
some circumstance could be gleaned from such already collected
evidence, which enures to the benefit of the accused, the same cannot
be brushed aside on the slender ground that such plea was not taken
before the Trial Court.
Crl.A.944/2016 Page 78 of 82
100. Similarly, the other case law cited by the prosecution viz. Afsal
Ullah vs. State of Uttar Pradesh: AIR 1964 SC 264 also does not
apply to the facts of this case. In the aforesaid case, the Supreme Court
was looking at the validity of bye-laws framed by the
respondent/Municipal Board of Tanda. One of the arguments before
the Supreme Court was that the relevant bye-laws had been passed
malafidely, out of spite and enmity for the appellant. The contention
was that the shop of the appellant was the only shop in the locality and
the concerned bye-law had been passed maliciously in order to hit the
appellant. Since that ground was not taken before the court below, the
Supreme Court did not permit such a plea to be taken in the First
Appeal. Thus, what was held, in the aforesaid case was that plea of
malafides cannot be permitted to be raised afresh at the stage of
appeal. No parallel can be drawn with the facts of the present case.
101. There is yet another aspect of the matter which has caught the
attention of this Court. The wife of the appellant had a chance to read
the communication between the prosecutrix and the appellant and after
coming to know about the alleged incident, she had corresponded with
the prosecutrix wherein she had informed her that the appellant had
Crl.A.944/2016 Page 79 of 82
been under a rehabilitation regimen for his bipolar mental condition.
The prosecutrix had, but rubbished such an explanation by stating that
the occurrence had to do more with the physical power of the
appellant than the mental condition. However, it would be necessary
to know as to what a bipolar disorder in a human being entails. Bipolar
disorder is one of the most severe of the mental illness. It is a brain
disorder which impairs a person‟s mood, energy and basic ability to
function. Symptoms of the mania include increased energy or
restlessness; extreme irritability; inability to concentrate; poor
judgment and at times aggressive behavior. In some cases, impatience
and volatility have also been noticed. There are symptoms of
depression in a person suffering from bipolar disorder. Though no
specific plea has been taken about the bipolar disorder of the appellant
but from the evidence available on record, there appears to be some
hint that the appellant suffered from the same. The appellant has been
stated to be, on the day of the incident, crying and crying so loud and
bitterly that nasal mucus was dripping down till his moustache. This is
how the prosecutrix has described the state of the appellant sometimes
prior to the alleged incident. On the asking of the prosecutrix about the
Crl.A.944/2016 Page 80 of 82
reason for his sadness, the appellant is said to have told her that it
concerns his wife and mother. Though the mental makeup/condition of
the appellant may not be a ground to justify any act which is
prohibited under law, but the same can be taken into consideration
while deciding as to whether the appellant had the correct cognitive
perception to understand the exact import of any communication by
the other person. Since no evidence has been led on this aspect, any
foray into this field would only be fraught with speculative
imagination, which this Court does not intend to undertake.
102. But, it remains in doubt as to whether such an incident, as has
been narrated by the prosecutrix, took place and if at all it had taken
place, it was without the consent/will of the prosecutrix and if it was
without the consent of the prosecutrix, whether the appellant could
discern/understand the same.
103. Under such circumstances, benefit of doubt is necessarily to be
given to the appellant.
104. For the reasons afore-recorded, the judgment and order of
conviction and sentence of the appellant is set aside and the appellant
Crl.A.944/2016 Page 81 of 82
is acquitted of all the charges. The appellant is ordered to be released
forthwith, if not wanted in any other case.
105. The appeal stands allowed.
106. The Trial Court record be returned.
107. A copy of the judgment be transmitted to the Superintendent of
the concerned jail for compliance and record.
Crl.M.B.528/2017 (Suspension of sentence)
1. In view of the appeal having been allowed, the application has
become infructuous.
2. The application is disposed of accordingly.
ASHUTOSH KUMAR, J
SEPTEMBER 25, 2017
ns/ab
Crl.A.944/2016 Page 82 of 82
