SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Ms. Gunjan Sehgal vs State (N.C.T. Of Delhi) & Ors. on 27 January, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.REV.P. 651/2018

Reserved on : 21.01.2020
Decision on : 27.01.2020

IN THE MATTER OF:
MS. GUNJAN SEHGAL ….. Petitioner
Through: Mr. Vikram Dua, Advocate with
petitioner in person.
versus
STATE (NCT OF DELHI) ORS. ….. Respondents

Through: Dr. M.P. Singh, APP for State with
W/SI Nisha, P.S. Vasant Vihar.

Mr. Tushar A. John and Mr. Nikhil
Sharma, Advs. for R-2 R-3.

CORAM:

HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

1. By way of present revision petition, the petitioner/complainant has
assailed the order of discharge dated 05.05.2018 passed by learned Addl.
Sessions Judge in SC No. 111/2017 arising out of FIR No. 225/2013
registered under Sections 376(2)(g)/506 IPC.

2. The wheel of law was set into motion by a complaint dated
17.05.2013 filed by the petitioner/complainant addressed to the
Commissioner of Police, Delhi resulting into registration of the present FIR
on 22.06.2013. Briefly, the allegations made in the aforesaid complaint, as
noted in the impugned order, are reproduced below :-

CRL. REV. P. 651/2018 Page 1 of 16

“3a. That she had been working as Manager at Affinity
Salon at 24, Community Centre, Basant Lok, Vasant
Vihar and that one Vishal Sharma was the proprietor
thereof and Karan Chadha was the General Manager
of the said establishment.

b. That on 28.01.2013, at about 11.30 p.m, in the
basement of the aforementioned premises, the two
aforementioned persons had committed gang rape
upon her. According to the complainant, on this date,
the complainant had participated in the Managers’
Meeting held at Wella Academy situated at Select City
Mall, Saket, New Delhi and that after the said meeting
was concluded, at about 11 p.m., both the accused
persons took her alongwith them in their car on the
pretext that they would drop her at the place of her
residence, but instead, they took her in their car to the
office of Affinity Salon and on the way, they served her
a Campa Cola laced with some intoxicants and that
she became semi unconscious after consuming the
same.

c. That the accused persons thereafter forcibly had
sexual intercourse with her and that while committing
the said act, they prepared a video photography of the
act and had shown it to her and had threatened her
that in case she discloses to anybody the act committed

CRL. REV. P. 651/2018 Page 2 of 16
by them, they will disclose the said video to her
relatives.

d. That the accused persons had repeated this act of
forcible sexual intercourse upon her again on
06.03.2013 at about 8.30 p.m, on 10.04.2013 at about
8.30 p.m and finally on 03.05.2013 at about 8.30 p.m.
On this day, according to the complainant, after both
the accused persons had forcibly committed rape upon
her, she had threatened them that she would report the
incidents to the Police which led to a heated
altercation between her and the accused persons and
then the accused persons threatened her that they
would implicate her in a false case of criminal breach
of trust and forgery of documents and that to put her
under fear, they even brought certain documents
already manufactured by them and also called a police
officer and then all of them in pursuance of their
common intention threatened her that if she wants to
get rid of the aforementioned criminal case of criminal
breach of trust, she should pay an amount of Rs.3 lacs
to them or else they will get her arrested on the spot
and will take her to the Police Station.

(e) That on account of extreme shock and fear of the
said threat of the accused persons, she begged them for
grant of some time for arrangement of said money and
that she was allowed to go to her home only after she

CRL. REV. P. 651/2018 Page 3 of 16
gave a written undertaking to them that she will return
on 04.05.2013 with the aforesaid amount demanded by
them.

(f) That on 04.05.2013, she was called by the accused
persons to report to the office of Affinity Salon and
may again informed her that in case she does not pay
them the amount of Rs.3 lacs, they will get her arrested
in a case of forgery and criminal breach of trust and
will also get the news of her arrest published in a local
newspaper and they further told her to come with an
amount of Rs.3 lacs at P.S. Vasant Vihar. Accordingly,
the complainant alongwith her parents reached at P.S.
Vasant Vihar where in presence of SI Nand Kishore,
she paid an amount of Rs.3 lacs and it is her grievance
that despite payment of said amount, the accused
persons still went ahead and got registered an FIR No.
152/13 at P.S. Vasant Vihar, New Delhi against her for
having committed the offences punishable u/s
406/420/471/467/34 IPC. It was prayed by the
complainant that her allegations should be looked into
and inquired by an officer not below the rank of ACP
of a District other than the District of PS Vasant Vihar
for according to her the ACP of P.S Vasant Vihar had
colluded with the accused persons.”

3. Learned counsel for the petitioner has contended that the trial court
failed to appreciate that the complainant made categorical statement of rape

CRL. REV. P. 651/2018 Page 4 of 16
committed by the respondents on four specific dates. He further submitted
that despite complainant’s mentioning in the complaint that the respondents
prepared a video of the entire act of rape, the Investigating Officer has not
seized the mobile and sent the same for FSL analysis. He also submitted
that the Investigating Officer did not seize the CCTV footage. He thus
urged that for default in investigation, the petitioner/complainant should not
suffer. He has relied upon the decision rendered in State of UP vs Chhotey
lal reported as (2011) 2 SCC 550.

4. Per contra, learned counsel for the respondents has supported the
impugned order by submitting that there was enormous delay in filing of the
complaint dated 17.05.2013 filed by the petitioner. It was submitted that
during investigation, the statements of about 8-9 employees of the company
were recorded who did not support the petitioner’s complaint. Further, the
CDR location details of the petitioner/complainant on the relevant date did
not show her presence at the spot. It was also urged that the petitioner filed
the aforesaid complaint only as a counter blast to the respondents’ complaint
against her in respect of which FIR No. 152/2013 was registered on
05.05.2013 under Sections 406/420/468/471/34 IPC at P.S. Vasant Vihar. In
support of his submission, he has placed reliance on the decision of a
Coordinate Bench of this Court in Ramesh Thakur vs. State (NCT of Delhi)
and Ors reported as (2013) 200 DLT 676.

5. I have heard the learned counsel for the parties and have gone through
the case records as well as the written submissions filed on behalf of the
parties .

6. It is trite law that statement of a prosecutrix is akin to the statement of
an injured complainant or witness. Her testimony, if found to be reliable,

CRL. REV. P. 651/2018 Page 5 of 16
alone is sufficient to convict the accused and no corroboration is required.
The court may look for some corroboration only to satisfy its conscience and
to rule out any false accusation. [Refer: Chhotey lal (supra)].

7. As per the petitioner/complainant’s case, she was working as a
Manager in the establishment where respondent no.2 was the proprietor and
respondent no. 3 was the General Manager. The petitioner/complainant, in
her complaint, stated that both the respondents committed act of rape on her
in the office premises on the following four dates and circumstances :

(i) 28.01.2013 at about 11:30 pm
A Manager meeting was held at Select City Mall, Saket, New Delhi.
The meeting concluded at about 11 pm whereafter on the pretext of
dropping her at her residence, the respondents took her in their car to the
office premises. A Campa Cola laced with some intoxicating substance was
served to her after which the petitioner became semi unconscious. The
respondents committed forcible sexual intercourse with her in the basement
and also prepared a video of the same. She was shown the video and
threatened not to disclose about the sexual intercourse failing which the
video would be shown to her relatives.

(ii) 06.03.2013 at about 08:30 pm
The respondents committed forcible sexual intercourse.

(iii) 10.04.2013 at about 08:30 pm.
The respondents committed forcible sexual intercourse.

(iv) 03.05.2013 at about 08:30 pm
The respondents committed forcible sexual intercourse in the
basement of the office premises. At about 10 pm, the petitioner raised
serious objections against respondents’ forcible conduct and threatened them

CRL. REV. P. 651/2018 Page 6 of 16
that she would report the incident to the police which resulted into heated
altercation between them. The respondents threatened to implicate her in a
false case of criminal breach of trust and forged documents. The respondents
called a police officer and all of them threatened her to pay Rs.3 lacs else
she would be arrested and taken to police station. The petitioner was
shocked and under fear agreed to bring Rs.3 lacs on the next day. The
respondents called her on 04.05.2013 and reminded her about the payment
of Rs.3 lacs. The petitioner/complainant along with her parents reached P.S.
Vasant Vihar and paid Rs.3 lacs to the respondents. The respondents
however went ahead and got the aforementioned FIR No. 152/2013
registered against her.

8. From the above sequence of events as narrated in the complaint, the
first incident of rape occurred on 28.01.2013. The incident was repeated on
06.03.2013, 10.04.2013 and 03.05.2013. The petitioner/complainant for the
reasons stated in her complaint, did not report the incident to anyone
including the co-workers, parents and the police till 17.05.2013.

9. As per the charge-sheet, on the relevant date, the
petitioner/complainant was about 25 years of age and already married. Her
husband was also an employee of the establishment and was working in the
same office premises.

10. According to the complaint filed by the petitioner/complainant, she
has gone to the police station Vasant Vihar on 04.05.2013 along with her
parents and paid Rs.3 lacs to the respondents on account of alleged threat
given by them to implicate her in a false case. The petitioner/complainant
chose not to lodge a complaint/FIR on 04.05.2013.

11. On 04.05.2013 at respondents’ complaint, FIR No. 152/2013 was

CRL. REV. P. 651/2018 Page 7 of 16
registered against the petitioner/complainant in which she was arrested on
07.05.2013 and produced before the Metropolitan Magistrate. She was also
produced before the concerned doctor for the medical examination where
her MLC was prepared. The petitioner/complainant moved a bail
application and was released by the concerned Court vide order dated
10.05.2013. It is relevant that at none of the aforesaid occasions, the
petitioner/complainant made any allegation of forcible sexual intercourse
against the respondents before any of the authorities. It is also relevant to
note that the aforesaid FIR was registered against the petitioner/complainant
and her husband on the ground that they had got printed forged coupons of
the respondents’ establishment resulting in financial loss.

12. The aforesaid position continued till about 17.05.2013 when for the
first time, the petitioner/complainant levelled allegation of forcible sexual
intercourse against the respondents in her compliant addressed to the
Commissioner of Police.

13. During investigation, the factum of marriage of the
petitioner/complainant was verified to be correct. The Investigating Officer
tried to obtain the CCTV footage, however, the same on account of delay
was not available having been wiped out. The statements of the other
employees of the establishment were recorded. It has come in the
statements that on 28.01.2013 i.e., the date of the first incident, the
petitioner/complainant had left the venue of the meeting with her husband
whereas some of the employees had accompanied the respondents. The
statement of Uma Shanker, the guard at the office premises, was recorded
under Section 164 Cr.P.C., however, he did not support the
petitioner/complainant’s allegations. Although learned counsel for the

CRL. REV. P. 651/2018 Page 8 of 16
petitioner submitted that at the time of recording his statement, it was put to
him whether he was under any kind of influence to which he responded in
affirmative. However, no question was put to him about the person under
whose influence he was. Rather, learned Magistrate after recording his
satisfaction proceeded to record the statement of the guard. The CDR details
of the petitioner/complainant was collected for the aforesaid period. As per
the location chart mentioned in the CDR details, the
petitioner/complainant’s location was not found at the alleged place of the
incident i.e., office premises which are located in the Community Complex,
Vasant Vihar. Instead, the petitioner/complainant’s location at the relevant
time on the aforesaid dates was shown at her residence.

14. The relevant observations of the Sessions Court with respect to the
statement of the petitioner/complainant and the CDR details are reproduced
herein :

“A. It is the own statement of the prosecutrix that on
03.05.2013 she had told the accused persons that she
would be filing a complaint against them with the
Police since she was fed up with their exploitation of
her. According to the assertion made in the complaint,
when she told the accused persons of her intentions,
they threatened her that if she dares to file a complaint
against them, they would falsely implicate her in a case
of forgery/embezzlement. She further goes on to
narrate that thereafter the accused persons called a
police official to their office and made her sign on
some fabricated documents and thereafter even
demanded Rs.3 lacs from her for not pressing the
charges against her. It absolutely belies logic and
common sense that if the accused persons, according
to the complainant, were threatening her to falsely
implicate her and then infact went ahead and got one

CRL. REV. P. 651/2018 Page 9 of 16
FIR registered against her, what stopped the
complainant then from making a complaint against the
accused persons for having gang raped her. As
narrated hereinabove, the prosecutrix herself in her
complaint has stated that on 03.05.2013 she had made
up her mind to make a complaint against the accused
persons irrespective of the fact that they had an
obscene video clip featuring her – in view of such
assertions, it is beyond comprehension as to why the
complainant did not then go ahead and inform the
Police officials of PS Vasant Vihar that she was being
falsely implicated by the accused persons in a case of
forgery and embezzlement and in fact, it was the
accused persons who had been gang raping her. Her
statement that all the police officials of PS Vasant
Vihar were acting in collusion with the accused
persons, does not explain as to why did she not then
bring these facts to the Ld. MM before whom she was
produced and sent to judicial custody. Admittedly, even
while seeking bail it was not at all averred before the
concerned court that it is the prosecutrix who was the
victim of gang rape and a false case has been
registered against her by the accused persons and on
the contrary, admittedly the prosecutrix paid an
amount of Rs.3 lacs to the accused persons and took a
plea before the Ld. Court that the mastermind of the
fraud committed was infact Rakesh Thakur and that
she had nothing to do with the fraud. Though it has
been rightly contended by the Defence that even this
plea of the prosecutrix was false because it stands
verified that she had been married to this Rakesh
Thakur, what is more relevant for the purposes of the
present case is that it is only after the prosecutrix was
release on bail in the said case that a week thereafter
she chose to give a complaint to the Commissioner of
Police alleging that the accused persons had
committed gang rape upon her. The contention of the
Ld. Counsel for the prosecutrix that all these questions

CRL. REV. P. 651/2018 Page 10 of 16
being raised by the court are matter of trial and that
the prosecutrix will furnish an explanation in this
respect only during trial and not now is absolutely
misplaced. There is no proposition of law which
enjoins a court to accept the statement of the
complainant bereft of common sense. In the considered
opinion of this court, the statement of the complainant
about what transpired on 03.05.2013 belies logic and
it does not appeal to common sense at all as to why she
did not lodge a complaint against the accused persons
on 03.05.2013 itself (more so when it is her own
assertion that the obscene video no longer remained a
relevant consideration for her) and the court is within
its right to ask the prosecutrix to explain the same, at
this stage itself, in a case where the investigating
agency after a complete and detailed investigation has
found nothing incriminating against the accused
persons and on the contrary has found sufficient
evidence to negate the allegations of the complainant.
As narrated hereinabove as many as 8-9 employees of
Affinity Salon have informed the 10 that on 28.01.2013
all of them had witnessed the prosecutrix leaving the
mall alongwith Rakesh Thakur in his vehicle. The
guard of Affinity Salon who has also been examined by
Ld. MM u/s 164 Cr.P.C. has given a categorical
statement that on none of the nights alleged by the
prosecutrix, had me accused persons come to Affinity
Salon. His categorical statement is that he was on duty
an all nights and that the keys of the branch office of
Vasant Vihar, where the prosecutrix alleges that the
rape had been committed upon her, used to remain
only with the prosecutrix and Rakesh Thakur and
himself i.e. the guard. Therefore, present is not a case
where the statement of the prosecutrix could not be
corroborated due to the nature of the offence
committed upon her. Present is a case where there are
at least 7-8 witnesses who have informed the 10 that
the incidents alleged by the prosecutrix could not have

CRL. REV. P. 651/2018 Page 11 of 16
taken place on the dates alleged by her and in the
premises alleged by her.

B. Apart from these witnesses, the CDR of the mobile
belonging to the prosecutrix also shows that she has
made false allegations. As narrated hereinabove,
according to the prosecutrix, on 03.05.2013 after the
accused persons had committed rape upon her, at
about 10 p.m in the basement of Affinity Salon,
Community Centre, Vasant Lok, Vasant Vihar, she told
them that she will be reporting about the incident to the
Police and that thereafter both the accused persons
threatened her that they would implicate her in a false
case of criminal breach of trust and forgery of
documents and further that to put her under fear they
even brought certain documents for her to sign and
thereafter called a police official at the said basement
and that the accused persons and the police official
then threatened her that they will get her arrested and
will take her to the Police Station and that she was
allowed to leave the basement only after she gave them
written undertaking that she will return an amount of
Rs.3 lacs to them on 04.05.2013. Now if these
allegations of the prosecutrix were infact true then she
should have been in the aforementioned basement right
from 8:30 p.m (the time she alleges when the accused
persons started to rape her) till 11-12 midnight.
However, the CDRs of the mobile of the prosecutrix
collected during investigation reveal that on this day
w.e.f. 9:32 pm to 11:42 p.m, her location was at
Keshav Puram, the place where she admittedly resides.
As regards the contention of Ld. Counsel for the
prosecutrix, on the basis of some literature
downloaded from the internet, that since a cell phone
has enough power to reach a cell tower upto 45 miles
away depending upon the technology of the cell phone
network, it is possible that while the prosecutrix was in
Vasant Vihar on 03.05,2013 between 8:30 p.m. to 12
midnight, it is the cell power of Keshav Puram which

CRL. REV. P. 651/2018 Page 12 of 16
connected to her mobile, suffice it to state that the
same literature also mentions that in urban areas, cell
power is reduced to eliminate interference with
neighbouring towers owing to which a cell phone
would have to be within a few hundred yards of a cell
tower to pick up its signal. It is absolutely
unacceptable that in a city like Delhi which has
approximately 60,000 cell towers, though the
prosecutrix was present in Affinity Salon, Vasant
Vihar, her mobile phone will instead of connecting to a
tower nearby Vasant Vihar, will connect to a tower in
Keshav Puram, which is approx. 25 km away from
Vasant Vihar. It cannot at all be ignored that on
various other dates when the prosecutrix was, as per
her contentions, present in Affinity Salon, Vasant Vihar
or nearby areas, her location in the CDR is revealed at
Vasant Lok, Vasant Vihar only – to cite an example on
the night of 28.01.2013,’ at about 8:51 p.m., when the
prosecutrix, as per her own assertion was in Vasant
Vihar, her location in the CDR is shown to be at
Vasant Vihar only. This court, therefore, does not find
at all any ground to doubt the location of the mobile
phone of the! Prosecutrix being reflected in the CDRs
collected. The said CDRs also negate her allegations
that on 06.03.2013, she was also raped by the accused
persons at about 8:30 p.m at the same office of Affinity
Salon, for the CDRs reflects that on 06.03.2013 at
about 8:30 p.m., she was at Malviya Nagar, at about
8:40 p.m, she was at Aurobindo Marg, at about 9:16
she was at Brar Square and at about 9:45 p.m, she
reached Keshav Puram, admittedly where her
residence is. The said CDR thus reveals that from
about 8:20 p.m to 9:45 p.m, the prosecutrix was
travelling from Malviya Nagar to her house and
therefore negates her allegation that she was being
gang raped by the accused persons during this period.
It is relevant to mention herein that though the Ld.
Counsel for the accused persons had also sought to

CRL. REV. P. 651/2018 Page 13 of 16
rely upon the CDRs of the mobiles of the accused
persons to contend that their locations were nowhere
near to the complainant on the dates and times she
alleged that she had been gang raped by them, this
court has not relied upon the same in view of the
contention of Ld. Counsel for the prosecutrix that there
may be a possibility that the accused persons may have
been using some other mobile numbers. However,
since the prosecutrix herself has not denied and has
infact categorical accepted that she was only using one
mobile number and that she had remained in
possession of the same on various dates, on which the
rape had allegedly taken, this court has, therefore,
examined only her CDRs to verify her allegations and
on the basis of the same, is of the considered opinion
that the prosecutrix cannot at all be believed.”

15. After investigation, a closure report was filed. The Matrimonial
Magistrate ignored the closure report and took cognizance of the offence.
The respondents were summoned. Although, petition bearing Crl. M.C.
571/2017 was filed by the respondents before this Court challenging the
summoning order, however, on the next date, the same was withdrawn
without any adjudication.

16. The scope of a revision under Section 227 Cr.P.C. and the guiding
principles to exercise the powers are outlined in catena of decisions and it
has been held that the material placed before the Court should give rise to a
case of strong suspicion against the accused. The court has undoubted
power to sift and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case is made out against the accused. [Refer:
Sajjan Kumar vs Central Bureau of Investigation1 and Union of India

1
(2010) 9 SCC 368

CRL. REV. P. 651/2018 Page 14 of 16
vs. Prafulla Kumar Samal and Anr2.].

17. The conduct of the petitioner/complainant in not informing about the
alleged offence from 28.01.2013 (first incident) and even from 03.05.2013
(fourth incident) till 17.05.2013, when the FIR came to be registered raises a
considerable and strong doubt about the truthfulness of the allegations. The
petitioner/complainant had ample opportunity during this time, having
appeared before police, the concerned doctor at the time of her MLC in the
cross FIR, the concerned Magistrate or during her own bail proceedings, to
complain against the respondents. The petitioner/complainant was working
as a Manager and her husband was working in the same office where the
alleged incidents stated to have happened. The statements of about 7-8
employees of the office of the petitioner/complainant were recorded with
respect to the incident dated 28.01.2013 and none of them supported her
allegations. In the MLC, she had refused taking of sample exhibits which
otherwise would have helped the Investigating Agency in reaching
conclusion. Even though the CDRs of the mobiles of the accused persons
was also placed on record to show that their location was nowhere near to
the petitioner/complainant, the ld. Session Court did not rely on the same as
the petitioner/complainant contended that the accused persons may have
been using some other mobile numbers at the time of the incidents. Despite,
the said contention of the petitioner/complainant, the CDR charts of the
petitioner/complainant also completely defy her allegations of her own
presence at the spot on the alleged date and time. The Investigating Agency
has verified the CDR location charts and filed the same along with the
closure report. The Sessions Court in the impugned order has discussed the

2
(1979) 3 SCC 4

CRL. REV. P. 651/2018 Page 15 of 16
locations of the complainant at the relevant time and has been shown to be
moving from one point to the other, away from the alleged spot i.e., the
office premises of the complainant.

18. In view of the above discussion, I do not find any illegality, perversity
or infirmity in the impugned order. Accordingly, the same is upheld and the
revision petition is dismissed.

(MANOJ KUMAR OHRI)
JUDGE
JANUARY 27, 2020
ga

CRL. REV. P. 651/2018 Page 16 of 16

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation