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Thursday, January 24, 2013

the first information report registered under Sections 328, 354 and 376 of the Indian Penal Code against the appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed. It was, therefore, that during the course of her medical examination at the AIIMS, a vaginal smear was not taken. Her clothes were also not sent for forensic examination by the AIIMS, because she had allegedly changed the clothes which she had worn at the time of occurrence. In the absence of any such scientific evidence, the proof of sexual intercourse between the complainant/prosecuterix and the appellant- accused would be based on an assertion made by the complainant/prosecuterix. And an unequivocal denial thereof, by the appellant-accused. - A consensual relationship without any assurance, obviously will not substantiate the offence under Section 376 of the Indian Penal Code, alleged against Prashant Bharti.


                                                                “REPORTABLE”

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 175 OF 2013
              (Arising out of SLP (Criminal) No. 1800 OF 2009)

Prashant Bharti                                           …. Appellant

                                   Versus

State of NCT of Delhi                              …. Respondent


                               J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1.      Leave granted.
2.        On   16.2.2007,   Priya   (hereinafter   referred   to   as,   the
complainant/prosecuterix),  aged  21  years,  a  resident   of   Tughlakabad
Extension, New  Delhi,  made  a  phone  call  to  the  Police  Control  Room
(hereinafter  referred  to  as,  the  PCR).  
Police  personnel  immediately
reached her residence.  She made a statement to the police, leading  to  the
registration of first information report no. 47 of 2007  at  Police  Station
Lodhi Colony, New Delhi, under Sections 328 and  354  of  the  Indian  Penal
Code.  
In  her  statement  to  the  police,  the   complainant/prosecuterix
alleged, that the appellant herein Prashant Bharti (hereinafter referred  to
as, the appellant-accused) was known to her  for  about  four  months.  
The
appellant-accused was a  resident  of  Lodhi  Colony,  New  Delhi.  
It  was
alleged that on the preceding day i.e., on 15.2.2007, the  appellant-accused
had made a phone call to the complainant/prosecuterix,  at  about  8.45  pm,
and asked her to meet him at Lodhi Colony, New Delhi.
When she -
reached Lodhi Colony, he drove her around in his car.  He also  offered  the
complainant/prosecuterix  a  cold  drink  (Pepsi)  allegedly  containing   a
poisonous/intoxicating       substance.        
According       to        the
complainant/prosecuterix she felt inebriated after taking  the  cold  drink.
In her aforesaid state, the appellant-accused started misbehaving with  her.
 He also touched  her  breasts.   Inspite  of  the  complainant/prosecuterix
stopping him, it  was  alleged,  that  the  appellant-accused  continued  to
misbehave with her.  
The complainant/prosecuterix then got the car  stopped,
and hired an auto-rickshaw to return to her residence.   
In  her  statement,
the complainant/prosecuterix requested  the  police  to  take  legal  action
against the appellant-accused.
3.       Immediately  after  recording   the   statement   of   Priya   (the
complainant/prosecuterix) on 16.2.2007, the  police  took  her  to  the  All
India Institute  of  Medical  Sciences  (hereinafter  referred  to  as,  the
AIIMS),  New  Delhi.  
She  was  medically  examined  at  1.44  pm.   It  is
sufficient to record herein, that as per the medical report prepared at  the
AIIMS, there was no evidence of poisoning.
4.      Based on the statement made  by  the  complainant/prosecuterix,  the
appellant-accused Prashant Bharti was arrested at 6 pm, on the same  day  on
which the complainant recorded her statement,  i.e.,  on  16.2.2007,  a  day
after the occurrence.
5.      After a lapse of five further days, on 21.2.2007, at  8.20  am,  the
complainant/prosecuterix made a supplementary statement to the  police.   
On
this occasion, she alleged, that  Prashant  Bharti,  the  appellant-accused,
had been having physical relations with her in his house, on  the  assurance
-
that he would marry her.  
It was alleged  by  the  complainant/prosecuterix,
that the appellant-accused had subsequently  refused  to  marry  her.   
With
reference to the incident of 15.2.2007,  she  alleged,  that  she  had  been
administered some intoxicant in a cold drink (Pepsi) by Prashant Bharti,  so
as to enable him to have a physical relationship  with  her.   
But,  it  was
alleged, that she did not succumb to his  said  desire  on  15.2.2007.   
The
complainant/prosecuterix further alleged, that after  she  returned  to  her
residence on 15.2.2007, she did not feel well and accordingly, had  gone  to
sleep.  
She therefore explained, why she had  made  her  earlier  complaint,
on the following day of the incident.  
In her supplementary  statement,  she
requested the police to take  legal  action  against  Prashant  Bharti,  the
appellant-accused, for having physical relations with  her  (on  23.12.2006,
25.12.2006 and 1.1.2007) at his residence, on the basis of a  false  promise
to marry her.
6.       Immediately  after  recording  her  supplementary  statement,   the
complainant/prosecuterix was taken to the AIIMS. She was medically  examined
at the AIIMS at 12 noon, on 21.2.2007.
In the medical  report  prepared  at
the AIIMS after her examination, it was recorded, that she had  no  external
injuries, and that her hymen was not intact.  
It was  pointed  out,  that  a
vaginal smear was not taken, because more than a month had elapsed from  the
date of the alleged intercourse(s).  
Likewise, it was pointed out, that  her
clothes were not sent for forensic examination, because she had changed  the
clothes worn by her at the time of  the  alleged  occurrence(s).   
In  other
words, the assertions made by the -
accused could not be tested  scientifically,  because  the  complainant  was
being medically examined, after a substantial delay.
7.        Based   on   the   supplementary   statement   of    Priya    (the
complainant/prosecuterix) recorded on 21.2.2007, the offence  under  Section
376 was added to the case.
8.      On 27.2.2007, the  statement  of  the  complainant/prosecuterix  was
recorded under Section  164  of  the  Code  of  Criminal  Procedure  by  the
Metropolitan Magistrate, New Delhi (in first information report  no.  47  of
2007).
A relevant extract of the aforesaid statement, is  being  reproduced
below:-
      “… then Prashant asked for my number and detail of address.  I gave my
      office telephone number to  him.   In  evening,  Mr.  Prashant  Bharti
      called me and talked about loan and after some days,  Prashant  Bharti
      came to meet in my office and thereafter we became  good  friends  and
      one day, Prashant Bharti told me that he loves me and wish to marry me
      and thereafter, we started meeting  frequently  and  I  consented  for
      marriage.

      One day, when all the family members  were  gone  somewhere,  Prashant
      Bharti called me to his home for party and he told  me  that  he  will
      marry me soon and will inform to his parents  about  our  relationship
      and he made relation with me.  And, whenever his home was  vacant,  he
      usually calls me up and when his parents came, I  asked  him  to  tell
      them about our relationship and he did not inform  this  and  on  this
      issue, we have fight with each other and I informed  to  his  parents.
      Then his parents called Prashant about this and Prashant Bharti denied
      our relationship to his father and neither he wish to marry me and  on
      that day, I was sent to my home by his parents.

      After two days, Prashant Bharti called me and asked me to meet him, as
      he wish to tender apology and when I was going to reach my  home  from
      office, then I, through auto  rickshaw,  reached  at  Central  School,
      Lodhi Colony, where Prashant Bharti was standing near  to  his  Santro
      Car, and he met me there and he asked me that he has committed mistake
      and he wish to tender apology and after some -

      time, he took me to his car and thereafter, he  told  me  that  he  is
      feeling thirsty and thereafter, he brought Pepsi in car  and  we  both
      took the Pepsi.  And, after drinking the same, I lost my conscious and
      thereafter, he started misbehaving with me and I asked him that why he
      was doing so, then he told me that, as I complained to his father,  he
      will take revenge from me, and he forcibly misbehaved with me,  and  I
      immediately got down from the car and by Auto, I came to my house  and
      as I was unwell, I could not lodge my complaint with police.   On  the
      next  day,  I  called  100  number  PCR  and  there  police  official,
      accompanies me and I informed everything to SHO Surinder Jeet  and  on
      that basis, he was arrested.”

9.      By an order dated 12.3.2007, the Additional  Sessions  Judge,  Delhi
granted bail to the appellant-accused.  In the  aforesaid  order  passed  on
12.3.2007, the following factual position was relied  upon,  to  extend  the
benefit of bail to the  appellant-accused.  
The  appellant-accused  was  in
Sector 37, Noida in the State of Uttar Pradesh  on  15.2.2007.   He  was  at
Noida before 7.55 pm.  He, thereafter, remained at different  places  within
Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc.  From  9.15
pm to 11.30 pm on 15.2.2007, he remained present at a  marriage  anniversary
function celebrated at  Rangoli  Lawns  at  Ghaziabad,  Uttar  Pradesh.  
An
affidavit to the aforesaid effect filed by the appellant-accused  was  found
to be correct by the investigating officer,  on  the  basis  of  his  mobile
phone call details.
 Verification of the mobile phone call  details  of  the
complainant/prosecuterix Priya revealed, that on 15.2.2007,  no  calls  were
made by the appellant-accused to the complainant/prosecuterix, and that,  it
was  the  complainant/prosecuterix  who  had  made  calls   to   him.    The
complainant/prosecuterix,  on  and  around  the  time  referred  to  in  the
complaint dated 16.2.2007, was at different places of  New  Delhi  i.e.,  in
Defence Colony, Greater Kailash, Andrews Ganj and finally at -

Tughlakabad Extension, as per the verification of the investigating  officer
on  the  basis  of  her  mobile  phone  call  details.
 Even   though   the
complainant/prosecuterix was married to one Manoj Kumar Soni, S/o Seeta  Ram
Soni (as indicated in an affidavit appended to the Delhi police  format  for
information of tenants and  duly  verified  by  the  investigating  officer,
wherein she had described herself as married), in the complaint made to  the
police (on 16.2.2007 and 21.2.2007), she had  suggested  that  she  was  not
married.
At the time when the complainant/prosecuterix  alleged,  that  the
appellant-accused had misbehaved with her and had outraged  her  modesty  on
15.2.2007  (per  her  complaint  dated  16.2.2007),  she  was  actually   in
conversation  with  her  friends  (as  per  the  verification  made  by  the
investigating officer on the basis of her mobile phone call details).  
Even
though the complainant/prosecuterix had  merely  alleged  in  her  complaint
dated 16.2.2007, that the accused had outraged her modesty by  touching  her
breasts,  she  had  subsequently  through  a  supplementary  statement   (on
21.2.2007), levelled further  allegations  against  the  accused  of  having
repeatedly raped her (on 23.12.2006,  25.12.2006  and  1.1.2007),  on  dates
preceding the first complaint.
10.     On 28.6.2007, the police filed a  chargesheet  under  Sections  328,
354 and 376 of the Indian Penal Code.  In the chargesheet,  it  was  clearly
mentioned, that the police investigation, from  different  angles,  had  not
yielded any positive result.  However, the  chargesheet  was  based  on  the
statement made  by  the  complainant/prosecuterix  before  the  Metropolitan
Magistrate, New Delhi under Section 164 of the Code of  Criminal  Procedure,
which was found to be sufficient for the charges alleged -
against the  appellant-accused.  
A  relevant  extract  of  the  chargesheet
depicting the aforesaid factual position, is being reproduced below:-
      “I the Inspector, tried  my  best  from  all  angles  to  recover  the
      intoxicating substance/Pepsi/Pepsi glass and undergarments worn at the
      time of the rape.  But nothing could be recovered and for this reason,
      the blood sample of accused could not be sent to  FSL.   As  from  the
      investigation so far conducted, no proof could be found in support  of
      the crime under Section 328/354 IPC and even the position  of  accused
      Prashant Bharti is not available at Lodhi Colony at the date and  time
      as his mobile phone ill.   However,  prosecuterix  Priya  Porwal  made
      statement on 21.2.2007 and on  27.2.2007  under  Section  164  Cr.P.C.
      which is sufficient in support of his challan for  the  offence  under
      Section 376 IPC.”
                                                          (emphasis is ours)

11.     Aggrieved by the first information report (bearing no. 47 -

of 2007) registered at the Police  Station  Lodhi  Colony,  New  Delhi,  the
appellant-accused filed Writ Petition (Crl.) no. 1112  of  2007  before  the
Delhi High Court for quashing the  said  first  information  report  on  the
ground, that the appellant-accused had been falsely  implicated.   The  High
Court, dismissed the said writ petition on  27.8.2007,  without  going  into
the merits of the controversy, by recording the following observations:-
      “This Court cannot quash the FIR on the ground that FIR was false FIR.
       In case of a false FIR, it must be brought to its logical  conclusion
      and Investigating Officer must give a report to that effect.  In  this
      case, if it is found that the petitioner has been  falsely  implicated
      and the complaint was false, it would be obligatory on the part of the
      Investigating Officer to register a case and book the prosecuterix for
      falsely implicating the person in an offence under  Section  376  IPC.
      It is a very serious matter that a prosecuterix just by making a false
      statement can book somebody in offence under Section 376 IPC, which is
      serious in nature and invites a minimum punishment  of  07  years.   I
      consider that Investigating Officer shall submit a detailed report and
      in case, it is that the petitioner was falsely  implicated,  he  would
      take steps for booking the complainant  for  falsely  implicating  the
      petitioner.”

-

12.      Interestingly,  even  the   complainant/prosecuterix   filed   Writ
Petition (Crl.) no.  257  of  2008  before  the  Delhi  High  Court  seeking
quashing   of   the    first    information    report    lodged    by    the
complainant/prosecuterix herself.
The High Court noticed  the  observations
recorded in the order dated 27.8.2007 (passed in Writ  Petition  (Crl.)  no.
1112  of  2007)   and   dismissed   the   writ   petition   filed   by   the
complainant/prosecutrix.
13.     On 1.12.2008, the  Additional  Sessions  Judge,  New  Delhi,  framed
charges against the appellant-accused, by observing as under:-
      “4.      Considering the facts and  circumstances  of  the  case  that
      prosecuterix has levelled specific  allegations  against  the  accused
      that she was given pepsi to drink and after consuming the same she was
      intoxicated and accused teased her, moved his hands on her breast  and
      earlier made physical relations with her on the assurance of marriage,
      I am of the considered opinion  that  prosecution  has  brought  prima
      facie sufficient material on record against  the  accused  for  charge
      under Sections 354/328/376 IPC.  Let charge be framed accordingly.”

14.     Dissatisfied with the action of the trial Court in  framing  charges
against him, the appellant-accused filed Criminal Revision Petition  no.  08
of 2009, whereby he  assailed  the  order  dated  1.12.2008  passed  by  the
Additional Sessions Judge, New Delhi.
The Delhi High  Court  dismissed  the
revision petition on 16.1.2009, by interalia observing as under:-
      “12.     Truthfulness  or  falsity  of  the  allegations,  essentially
      pertains to the realm of evidence and the same cannot be pre-judged at
      this initial stage.  I do not find any illegality or infirmity in  the
      impugned order.  Consequently, this Revision Petition is dismissed  in
      limine while making  it  clear  that  anything  herein  shall  not  be
      construed as an opinion on merits at trial.”

15.     Despite notice having been issued  to  the  complainant/prosecuterix
by this Court in the present case, she failed to enter  personal  appearance
(or be represented through counsel).
To procure her presence, bailable -

warrants were issued in furtherance of this Court’s  order  dated  12.5.2010
and  again  on  16.10.2012.  
Priya,  the  complainant/prosecuterix  entered
personal appearance on 8.11.2012.
During the course of  hearing,  consequent
upon clarifications sought from her in respect of  her  marital  status  (at
the time  of  the  alleged  occurrences  with  the  appellant-accused),  she
informed this Court, that even though  she  was  married  earlier,  she  had
divorced her previous husband before the dates  of  occurrence.   
To  verify
the factual position pertaining to her marital status as  on  the  dates  of
occurrence(s), she was asked to produce the judgment and decree of  divorce,
from her previous husband.  She accordingly produced  a  certified  copy  of
the judgment and decree of the Court of the Civil Judge  (Senior  Division),
Kanpur (Rural) dated  23.9.2008.   
A  photocopy  thereof  duly  attested  by
Priya, the complainant/prosecuterix, and her counsel, were taken on  record.
 A perusal of  the  same  reveals,  that  the  complainant/prosecuterix  was
married to Lalji Porwal on  14.6.2003.   She  was  divorced  from  her  said
husband by mutual consent under Section  13B  of  the  Hindu  Marriage  Act,
1955, on 23.9.2008.   
Priya,  the  complainant/prosecuterix  also  affirmed,
that  she  had  remarried  thereafter.   
She  also  produced  before  us   a
“certificate  of  marriage”  dated  30.9.2008.   A  photocopy  thereof  duly
attested by Priya and her counsel, was also taken on record.  A  perusal  of
the same reveals, that Priya (date of birth, 17.6.1986),  daughter  of  Anup
Kumar was married to Manoj (date of birth, 8.12.1983), son of Ram Kumar,  on
30.9.2008.
16.     The factual position narrated above would enable  us  to  draw  some
positive inferences on the assertion made by the complainant/prosecuterix -
against  the  appellant-accused  (in  the  supplementary   statement   dated
21.2.2007). 
It is relevant to notice, that she had  alleged,  that  she  was
induced into a physical relationship by Prashant Bharti,  on  the  assurance
that  he  would  marry  her.   
Obviously,  an  inducement  for  marriage  is
understandable if the same is made to an  unmarried  person.   The  judgment
and decree dated 23.9.2008 reveals, that  the  complainant/prosecuterix  was
married to Lalji Porwal on 14.6.2003.  
It also reveals, that  the  aforesaid
marriage subsisted till 23.9.2008, when the  two  divorced  one  another  by
mutual consent under  Section  13B  of  the  Hindu  Marriage  Act.   
In  her
supplementary  statement  dated  21.2.2007,   the   complainant/prosecuterix
accused Prashant  Bhati  of  having  had  physical  relations  with  her  on
23.12.2006, 25.12.2006 and 1.1.2007 at his residence,  on  the  basis  of  a
false promise to marry her.  
It is apparent from irrefutable evidence,  that
during the dates under reference and for a period of more than one year  and
eight months thereafter, she had remained married to Lalji Porwal.  
In  such
a fact situation, the assertion made by the  complainant/prosecuterix,  that
the appellant-accused had physical relations  with  her,  on  the  assurance
that he would marry her, is per se false and as  such,  unacceptable.   
She,
more than anybody else, was clearly  aware  of  the  fact  that  she  had  a
subsisting valid marriage with Lalji  Porwal.   Accordingly,  there  was  no
question of anyone being in  a  position  to  induce  her  into  a  physical
relationship under an assurance of marriage.
If  the  judgment  and  decree
dated 23.9.2008 produced before us by the  complainant/prosecuterix  herself
is taken into consideration alongwith the factual position depicted  in  the
supplementary statement dated 21.2.2007, -
it  would  clearly  emerge,  that  the  complainant/prosecuterix  was  in  a
relationship of adultery on 23.12.2006, 25.12.2006  and  1.1.2007  with  the
appellant-accused, while she was validly married  to  her  previous  husband
Lalji Porwal.
In the aforesaid view of the matter, we  are  satisfied  that
the assertion made by the complainant/prosecuterix, that she was induced  to
a physical relationship by Prashant Bharti, the  appellant-accused,  on  the
basis of a promise to marry her, stands irrefutably falsified.
17.     Would it be possible for  the  prosecution  to  establish  a  sexual
relationship  between  Priya,  the  complainant/prosecuterix  and   Prashant
Bharti, the appellant-accused, is the next question which we  shall  attempt
to answer. 
 Insofar as the  instant  aspect  of  the  matter  is  concerned,
medical evidence discussed above reveals, that the  complaint  made  by  the
complainant/prosecuterix  alleging  a  sexual  relationship  with   her   by
Prashant Bharti, the appellant-accused, was made more than one  month  after
the alleged occurrences.
It was, therefore, that during the course  of  her
medical examination at the AIIMS,  a  vaginal  smear  was  not  taken.   Her clothes were also not sent for forensic examination by  the  AIIMS,  because she had allegedly changed the clothes which she had  worn  at  the  time  of occurrence. 
 In the absence of any such scientific evidence,  the  proof  of
sexual intercourse between the complainant/prosecuterix and  the  appellant-
accused   would    be    based    on    an    assertion    made    by    the
complainant/prosecuterix.  And  an  unequivocal  denial  thereof,   by   the
appellant-accused.
One’s word against the other.  Based on the  falsity  of
the statement made by the complainant/prosecuterix noticed above (and  other
such like falsities, to be narrated hereafter), it is unlikely, that a -
factual assertion made by the complainant/prosecuterix, would be  acceptable
over that of the appellant-accused.  For the sake of argument,  even  if  it
is assumed, that Prashant  Bharti,  the  appellant-accused  and  Priya,  the
complainant/prosecuterix, actually had a physical relationship, as  alleged,
the same would necessarily have to be consensual, since it is  the  case  of
the complainant/prosecuterix herself, that the  said  physical  relationship
was with her consent consequent upon the assurance of marriage.   But  then,
the discussion above, clearly  negates  such  an  assurance.   
A  consensual
relationship without any assurance,  obviously  will  not  substantiate  the
offence under  Section  376  of  the  Indian  Penal  Code,  alleged  against
Prashant Bharti.
18.     Insofar as the assertion made by  the  complainant/prosecuterix,  in
her first complaint dated 16.2.2007 is concerned, it is  apparent,  that  on
the basis thereof, first information report no. 47 of  2007  was  registered
at Police Station Lodhi Colony, New  Delhi.   In  her  aforesaid  complaint,
Priya, the complainant/prosecuterix had alleged, that the  appellant-accused
had called her on her phone at 8.45 pm and asked her to meet  him  at  Lodhi
Colony, New Delhi.  When she reached there, he drove her around in his  car.
   He   also   offered   her   a   cold   drink   (Pepsi)    containing    a
poisonous/intoxicating substance.  Having consumed the cold  drink,  she  is
stated to have felt inebriated, whereupon,  he   took   advantage   of   her
and  started misbehaving with her, and also touched  her  breasts.   Insofar
as the instant aspect of the  matter  is  concerned,  the  presence  of  the
complainant/prosecuterix, as well as the appellant-accused, at  the  alleged
place of  occurrence  (Lodhi Colony, New Delhi),  on the  night of -
15.2.2007 after 8.45 pm, has been established to be false on  the  basis  of
mobile phone call  details  of  the  parties  concerned.   Details  in  this
respect have been summarized in paragraph 8 above.  The same are  not  being
repeated for reasons of brevity.  The proof of the aforesaid factual  matter
must  be  considered  to  be  conclusive  for  all  intents  and   purposes,
specially, in view of the observations made by  this  Court  in  Gajraj  Vs.
State (NCT) of Delhi [(2011) 10 SCC 675], wherein it was held as under:-
      “19.     In the aforesaid sense of the matter, the discrepancy in  the
      statement of Minakshi PW23, pointed out by the learned counsel for the
      accused-appellant, as also, the reasoning rendered by the  High  Court
      in the impugned judgment becomes  insignificant.   We  are  satisfied,
      that the process by which the accused-appellant came to be  identified
      during the course of investigation, was legitimate  and  unassailable.
      The IEMI number of the handset, on  which  the  accused-appellant  was
      making calls by using a mobile phone (sim)  registered  in  his  name,
      being evidence of a conclusive nature, cannot  be  overlooked  on  the
      basis of such like minor  discrepancies  .  In  fact  even  a  serious
      discrepancy in oral evidence, would have had to yield to the aforesaid
      authentic digital evidence which is a byproduct  of  machine  operated
      electronic record having no  manual  interference.   For  the  reasons
      recorded hereinabove,  we  find  no  merit  in  the  first  contention
      advanced at  the  hands  of  the  learned  counsel  for  the  accused-
      appellant.”

The aforesaid factual conclusion, that the two concerned  parties  were  not
present at Lodhi Colony, New Delhi after 8.45 pm on 15.2.2007, as  has  been
established on the basis of the investigation carried  out  by  the  police,
cannot be altered at the culmination of the trial, since the  basis  of  the
aforesaid determination  is  scientific  evidence.   Neither  has  the  said
material  been  contested  by  the  complainant/prosecutrix.   Once  it   is
concluded, that the complainant/prosecuterix and the appellant-accused  were
at different places, far away from one another, and certainly not in -

Lodhi Colony, New Delhi on the night of 15.2.2007, it is  obvious  that  the
allegation made by  Priya,  the  complainant/prosecuterix  against  Prashant
Bharti, the appellant-accused of having outraged  her  modesty,  was  false.
What stands established now, as has been discussed above, will  have  to  be
reaffirmed on the basis of the same  evidence  at  the  culmination  of  the
trial.  Such being the fact situation, we have no other alternative  but  to
conclude, that the allegations  levelled  by  the  complainant/prosecuterix,
which culminated in the  registration  of  a  first  information  report  at
Police Station Lodhi  Colony,  New  Delhi  on  16.2.2007,  as  well  as  her
supplementary statement, would never lead to his conviction.

19.      The  proposition  of  law,  pertaining  to  quashing  of   criminal
proceedings, initiated against an accused by a High Court under Section  482
of  the  Code  of  Criminal  Procedure  (hereinafter  referred  to  as  “the
Cr.P.C.”) has been dealt with by this Court  in  Rajiv  Thapar  &  Ors.  vs.
Madan Lal Kapoor (Criminal Appeal No…… of 2013, arising out  of  SLP  (Crl.)
no.4883 of 2008, decided on 23.1.2013) wherein this Court  inter  alia  held
as under:

      22.       The  issue  being  examined  in  the  instant  case  is  the
      jurisdiction of the High Court under Section 482 of the Cr.P.C., if it
      chooses to quash the initiation of the prosecution against an accused,
      at the stage of issuing process, or at the stage of committal, or even
      at the stage of framing of charges.  These are all stages  before  the
      commencement of the actual trial.  The same parameters would naturally
      be available for later stages as well.  The power vested in  the  High
      Court under Section 482 of the Cr.P.C.,  at  the  stages  referred  to
      hereinabove, would have far reaching  consequences,  inasmuch  as,  it
      would negate the prosecution’s/complainant’s case without allowing the
      prosecution/complainant to lead evidence.  Such a  determination  must
      always be rendered with caution, care and circumspection.   To  invoke
      its inherent jurisdiction under Section -

      482 of the Cr.P.C. the High Court has to be fully satisfied, that  the
      material produced by the accused is  such,  that  would  lead  to  the
      conclusion, that his/their defence is based on sound, reasonable,  and
      indubitable facts; the material produced is such, as  would  rule  out
      and displace the assertions contained in the charges levelled  against
      the accused; and the material  produced  is  such,  as  would  clearly
      reject and overrule the veracity of the allegations contained  in  the
      accusations levelled by the prosecution/complainant.    It  should  be
      sufficient to rule out, reject and discard the accusations levelled by
      the prosecution/complainant, without the necessity  of  recording  any
      evidence. For this the material relied upon by the defence should  not
      have been refuted, or alternatively, cannot  be  justifiably  refuted,
      being material of  sterling  and  impeccable  quality.   The  material
      relied upon by the  accused  should  be  such,  as  would  persuade  a
      reasonable person to dismiss and  condemn  the  actual  basis  of  the
      accusations as false.    In such a situation, the judicial  conscience
      of the High Court would  persuade  it  to  exercise  its  power  under
      Section 482 of the Cr.P.C. to quash  such  criminal  proceedings,  for
      that would prevent abuse of process of the court, and secure the  ends
      of justice.
23.     Based on the factors canvassed in the foregoing paragraphs, we
would delineate the following steps to determine the veracity of a prayer
for quashing, raised by an accused by invoking the power vested in the High
Court under Section 482 of the Cr.P.C.:-

(i)     Step one, whether the material relied upon by the accused is sound,
reasonable, and indubitable, i.e., the material is of sterling and
impeccable quality?

(ii)    Step two, whether the material relied upon by the accused, would
rule out the assertions contained in the charges levelled against the
accused, i.e., the material is sufficient to reject and overrule the
factual assertions contained in the complaint, i.e., the material is such,
as would persuade a reasonable person to dismiss and condemn the factual
basis of the accusations as false.

(iii)   Step three, whether the material relied upon by the accused, has
not been refuted by the prosecution/complainant; and/or the material is
such, that it cannot be justifiably refuted by the prosecution/complainant?

(iv)    Step four, whether proceeding with the trial would result in an
abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience
of the High Court should persuade it to quash such criminal -

proceedings, in exercise of power vested in it under Section 482 of the
Cr.P.C.  Such exercise of power, besides doing justice to the accused,
would save precious court time, which would otherwise be wasted in holding
such a trial (as well as, proceedings arising therefrom) specially when, it
is clear that the same would not conclude in the conviction of the
accused.”


20.     The details in respect of each aspect of the matter, arising out  of
the complaints made by Priya on 16.2.2007 and 21.2.2007 have  been  examined
in extensive detail in the foregoing paragraphs.   We  shall  now  determine
whether  the  steps  noticed  by  this  Court  in  the  judgment   extracted
hereinabove can be stated to have been satisfied.
In so far as the  instant
aspect of the matter is concerned, the factual details referred  to  in  the
foregoing  paragraphs  are  being  summarized   hereafter.   
 Firstly,   the
appellant-accused was in Sector 37, Noida in the State of Uttar  Pradesh  on
15.2.2007.  He was at Noida before 7.55 pm.   He,  thereafter,  remained  at
different places within Noida and then at Shakarpur, Ghaziabad,  Patparganj,
Jorbagh etc.  From 9.15 pm to 11.30 pm on 15.2.2007, he remained present  at
a marriage anniversary function celebrated at Rangoli  Lawns  at  Ghaziabad,
Uttar Pradesh.  An affidavit to the aforesaid effect filed by the appellant-
accused was found to be correct by the investigating officer  on  the  basis
of his mobile phone call details. The  accused  was  therefore  not  at  the
place  of  occurrence,  as  alleged  in  the  complaint   dated   16.2.2007.
Secondly,  
verification  of  the  mobile   phone   call   details   of   the
complainant/prosecuterix Priya revealed, that on 15.2.2007,  no  calls  were
made by the appellant-accused to the complainant/prosecuterix, and that,  it
was the complainant/prosecuterix who had made calls to  him.  
Thirdly,  the
complainant/prosecuterix, on and around the time referred to in the -

complaint dated 16.2.2007, was at different places of  New  Delhi  i.e.,  in
Defence Colony, Greater Kailash, Andrews Ganj  and  finally  at  Tughlakabad
Extension, as per the verification  of  the  investigating  officer  on  the
basis of her mobile phone call details.  The complainant  was  also  not  at
the place of occurrence, as she  herself  alleged  in  the  complaint  dated
16.2.2007.  
Fourthly,  
at  the  time  when   the   complainant/prosecuterix
alleged,  that  the  appellant-accused  had  misbehaved  with  her  and  had
outraged her modesty on 15.2.2007 (as per her  complaint  dated  16.2.2007),
she was actually in conversation with her friends (as per  the  verification
made by the investigating officer on the basis  of  her  mobile  phone  call
details).
Fifthly,
 even  though  the  complainant/prosecuterix  had  merely
alleged in her complaint dated 16.2.2007, that the accused had outraged  her
modesty  by  touching  her  breasts,  she   had   subsequently   through   a
supplementary statement (on 21.2.2007),  levelled  allegations  against  the
accused   for   offence    of    rape.    
Sixthly,   
 even    though    the
complainant/prosecuterix was married to one Manoj Kumar Soni, s/o Seeta  Ram
Soni (as indicated in an affidavit appended to the Delhi police  format  for
information of tenants and  duly  verified  by  the  investigating  officer,
wherein she had described herself as married), in the complaint made to  the
police (on  16.2.2007  and  21.2.2007),  she  had  suggested  that  she  was
unmarried.  
Seventhly,
as per the judgment and decree of the  Civil  Judge
(Senior Division), Kanpur  (Rural)  dated  23.9.2008,  the  complainant  was
married to Lalji Porva on 14.6.2003.  The aforesaid marriage subsisted  till
23.9.2008.  The allegations made by  the  complainant  dated  16.2.2007  and
21.2.2007 pertain to occurrences of 23.12.2006, 25.12.2006, 1.1.2007 and -

15.2.2007, i.e., positively during the  subsistence  of  her  marriage  with
Lalji Porwal.  Thereafter, the complainant Priya married another  man  Manoj
on 30.9.2008.  This is  evidenced  by  a  “certificate  of  marriage”  dated
30.9.2008.  In view of the aforesaid, it is apparent  that  the  complainant
could not have been induced  into  a  physical  relationship,  based  on  an
assurance of marriage.
Eighthly,  
the  physical  relationship  between  the
complainant and the accused was admittedly consensual.   In  her  complaints
Priya had however asserted, that her consent was based on a false  assurance
of  marriage  by  the  accused.   Since  the  aspect  of  assurance   stands
falsified, the acknowledged consensual  physical  relationship  between  the
parties would not constitute an offence under Section 376  IPC.   Especially
because the complainant was a major on the date of occurrences,  which  fact
emerges from the “certificate of marriage” dated 30.9.2008,  indicating  her
date of birth as 17.7.1986.
Ninthly, 
as per the medical report recorded  by
the AIIMS dated 16.2.2007,  the  examination  of  the  complainant  did  not
evidence her having been poisoned.   The  instant  allegation  made  by  the
complainant cannot now be established because even  in  the  medical  report
dated 16.2.2007 it was observed that blood samples could  not  be  sent  for
examination because of the intervening delay.  For the same reason even  the
allegations levelled  by  the  accused  of  having  been  administered  some
intoxicant in a cold drink (Pepsi)  cannot  now  be  established  by  cogent
evidence.
Tenthly, 
The  factual  position  indicated  in  the  charge-sheet
dated 28.6.2007,  that  despite  best  efforts  made  by  the  investigating
officer, the police could not  recover  the  container  of  the  cold  drink
(Pepsi) or the glass from which the -

complainant had consumed the same. The allegations made by  the  complainant
could not be verified even by the  police  from  any  direct  or  scientific
evidence, is apparent from a perusal of the  charge-sheet  dated  28.6.2007.
Eleventhly, 
as per the medical report recorded by the AIIMS dated  21.2.2007
the assertions made  by  the  complainant  that  the  accused  had  physical
relations with her on 23.12.2006, 25.12.2006 and 1.1.2007,  cannot  likewise
be verified as opined in the medical report, on  account  of  delay  between
the dates of occurrences and her eventual medical examination on  21.2.2007.
It was for this reason, that neither the vaginal smear was  taken,  nor  her
clothes were sent for forensic examination.
21.      Most  importantly,  as  against  the  aforesaid   allegations,   no
pleadings whatsoever have been filed by the complainant.   Even  during  the
course of hearing, the material relied upon by the accused was not  refuted.
As a matter of fact, the complainant/prosecutrix had herself approached  the
High Court, with the prayer that the first information  lodged  by  her,  be
quashed.  It would therefore be legitimate to conclude,  in  the  facts  and
circumstances of this case, that the material relied  upon  by  the  accused
has not been refuted by the complainant/prosecutrix.  Even   in  the  charge
sheet dated 28.6.2007,  (extracted  above)  the  investigating  officer  has
acknowledged, that he could not find any proof to substantiate the  charges.
 The charge-sheet had been filed only on the basis of the statement  of  the
complainant/prosecutrix under Section 164 of the Cr.P.C.
22.     Based on the holistic consideration of the facts  and  circumstances
summarized in the foregoing two paragraphs; we are satisfied, that  all  the
steps delineated by this Court in Rajiv Thapar’s case (supra) stand -
satisfied.  All the steps can only  be  answered  in  the  affirmative.   We
therefore  have  no  hesitation  whatsoever  in  concluding,  that  judicial
conscience of the High Court ought to have persuaded it,  on  the  basis  of
the material available before it,  while  passing  the  impugned  order,  to
quash the criminal proceedings initiated against the  accused-appellant,  in
exercise of the inherent powers vested with it  under  Section  482  of  the
Cr.P.C.  Accordingly, based on the conclusions  drawn  hereinabove,  we  are
satisfied, that the first information report registered under Sections  328,
354 and 376 of the Indian Penal Code against the appellant-accused, and  the
consequential chargesheet dated 28.6.2007, as also the  framing  of  charges
by the Additional Sessions Judge, New Delhi on  1.12.2008,  deserves  to  be
quashed.  The same are accordingly quashed.
        Disposed of in the  aforesaid terms.


                                       …………………………….J.
                                            (D.K. Jain)


                                            …………………………….J.
                                     (Jagdish Singh Khehar)
New Delhi;
January  23, 2013.



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