TMI Blog2013 (1) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/prosecutrix, 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/prosecutrix a cold drink (Pepsi) allegedly containing a poisonous/intoxicating substance. According to the complainant/prosecutrix 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/prosecutrix stopping him, it was alleged, that the Appellant-accused continued to misbehave with her. The complainant/prosecutrix then got the car stopped, and hired an auto-rickshaw to return to her residence. In her statement, the complainant/prosecutrix requested the police to take legal action against the Appellant-accused. 3. Immediately after recording the statement of Priya (the complainant/prosecutrix) on 16.2.2007, the polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/prosecutrix) 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/prosecutrix 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 marr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of his mobile phone call details. Verification of the mobile phone call details of the complainant/prosecutrix Priya revealed, that on 15.2.2007, no calls were made by the Appellant-accused to the complainant/prosecutrix, and that, it was the complainant/prosecutrix who had made calls to him. The complainant/prosecutrix, 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/prosecutrix 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/prosecutrix alleged, that the Appellant-accused had misbehaved with her and had outraged her modesty on 15.2.2007 (per her complaint date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 prosecutrix for falsely implicating the person in an offence under Section 376 Indian Penal Code. It is a very serious matter that a prosecutrix just by making a false statement can book somebody in offence under Section 376 Indian Penal Code, 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/prosecutrix filed Writ Petition (Crl.) No. 257 of 2008 before the Delhi High Court seeking quashing of the first information report lodged by the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning 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/prosecutrix, and her counsel, were taken on record. A perusal of the same reveals, that the complainant/prosecutrix 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/prosecutrix 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/prosecut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hant 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/prosecutrix 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/prosecutrix and the Appellant-accused would be based on an assertion made by the complainant/prosecutrix. 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/prosecutrix noticed above (and other such like falsities, to be narrated hereafter), it is unlikely, that a-factual assertion made by the complainant/prosecutrix, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by product 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 contest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 Code of Criminal Procedure to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/prosecutrix Priya revealed, that on 15.2.2007, no calls were made by the Appellant-accused to the complainant/prosecutrix, and that, it was the complainant/prosecutrix who had made calls to him. Thirdly, the complainant/prosecutrix, 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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 986. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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