“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.
