False rape case decided based on mobile phone call records

So if a man is accused of false rape, and if you have been talking before to accuser on mobile phone etc, make sure to get the call records produced as evidence, and go to high court in appeal if trial court convicts you.

This is what the high court had to say about trial court’s work:

16.  How has the learned Trial Judge dealt with the
aforesaid evidence?
17.  To our mind,  in a most clumsy and  injudicious
manner.  .

…

…

18.  The learned Trial Judge has treated the issue as if it
was child play.  

Full judgment with important points in bold goes below:

———————————————————————————————-

Crl.A.No.5/2008                  Page 1 of 9
R-12
*   IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI
%                   Date of Decision:15th March, 2010
+       CRL. APPEAL NO.5/2008
  VIRENDER SINGH                ….. Advocate 
Through:  Ms.Shraddha Bhargava, Advocate  
          Versus
STATE             ….. Respondent
      Through:  Ms.Richa Kapoor, Advocate 
  CORAM:
  HON’BLE MR. JUSTICE PRADEEP NANDRAJOG
HON’BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be           
allowed to see the judgment?
2.  To be referred to the Reporter or not?     Yes   
3. Whether the judgment should be reported in the       
Digest?               Yes 
PRADEEP NANDRAJOG, J.  (Oral)
1.  Noting that none appears for the appellant at the
hearing of the appeal we appoint Ms.Shraddha Bhargava
Advocate on the panel of the Delhi High Court Legal Services
Committee as the Amicus Curiae to argue the appeal.
2.  Fee of learned counsel is fixed in sum of Rs.7,500/-,
to be paid by the Delhi High Court Legal Services Committee. Crl.A.No.5/2008                  Page 2 of 9
3.  With reference to the testimony of the prosecutrix
Ms.‟SB‟, believing  her version to be true, the learned Trial
Judge has convicted the appellant for the offence of having
raped the prosecutrix.  
4.  Vide order on sentence dated 6.11.2007, holding
that the appellant being a member of the police force justified
imposition of sentence to undergo imprisonment for life, thus,
sentence imposed upon the appellant is to undergo
imprisonment for life for the offence of rape.  For the offence
of intimidating the prosecutrix i.e. the offence  punishable
under Section 506 IPC, the appellant has been sentenced to
undergo RI for one year.  
5.  The appellant examined himself as DW-1 and
before that when examined under Section 313 Cr.P.C, stated
as under:-
“I was posted as constable at PS Kalkaji for about 1-
1½ year prior to the date of my apprehension. 
During the course of my duty I met the prosecutrix
while MCD official wanted to demolish a shutter
placed by her at her shop cum residence.  After that
she also met me and complaint about a lady
residing at B 133 behind her house.  She gave me
her mobile number as well as I also gave my mobile
number to her.  I alongwith ASI Anita conducted the
inquire to that complaint and on 23/12/04 I went to
her house alongwith ASI Anita where her father and
retired ACP Hukum Chand Rana were present and
subsequently a false case was registered by
prosecutrix on the dictation of Hukum Chand Rana
and I was arrested.  Crl.A.No.5/2008                  Page 3 of 9
  She used to call me on my cell phone
occasionally and I also used to respond.  I had a 
mobile phone number 9818165880 and Sangeeta
had a mobile phone no. 9818105276.  There are
many calls exchange between before to the date of
incident and also on the night of the alleged
incident i.e. 23/12/04 details of these calls have
been put by me in my cross examination of
prosecutrix.  
  On 22/12/04 at about 10:15 p.m that
Sangeeta accompanied me from her house to Jain
Restaurant at Connaught Plact and we took dinner
there and remained there till 12 mid night.  She told
me that I should do something of her in laws and
also the neighbourer with whom she had quarreled. 
She insisted that I should lodge false complaint
against her in laws on which I told her that I will
inform them of her intention.  I came back to her
house and she wanted me to drop her on the back
side of her house and when she left the gypsy  she
left the purse in the gypsy and I then went to her
house to deliver the purse, she asked me to take
tea and she started seducing me which I resisted
because of which she got annoyed.  She also called
me in the morning but disconnected it and on
seeing missed call I called her and tried to pacify
her.  Her father is a close friend of Hukum Chand
Rana Retired ACP and in consultation with them a
false complaint was lodged and I was arrested
because she apprehended that I might inform her in
laws about her  intentions of making false
complaint.  I would like to produce evidence in
defence.”
6.   A perusal of the testimony of the prosecutrix shows
that she was having a matrimonial problem with her husband
and the appellant who was a beat constable in the  area  and
had probably been helping her in the said matter.  
7.  The  prosecutrix  claimed that on 23.12.2004 at Crl.A.No.5/2008                  Page 4 of 9
around 9:30 PM the appellant came to her house and asked
her for a glass of water.  As she went to the kitchen to bring
water, appellant followed her  and threatened her using his
service pistol and compelled her to succumb to his demand for
sexual favour.  As per the prosecutrix after satisfying his lust
the appellant remained in her house till 5:30 AM.  She was
confused and did not know what to do till she consulted her
parents and only thereafter reported the matter to the police
the next date i.e. on 23.12.2-004 at around 1:45 PM.  
8.  On being cross-examined the prosecutrix admitted
that telephone No.26210874, a landline number, was installed
in a boutique being run by her and that she was the subscriber
of a mobile telephone having No.9818105276.  She neither
affirmed nor denied that the mobile number of the appellant
was 9818165880.  
9.  During cross-examination she admitted having
given her mobile number to the  appellant.  Confronted with
various calls made from the landline No.26210874 and the
mobile No.9818105276 to the mobile No.9818165880 she
feigned ignorance of having rung up the appellant.   But, she
admitted: „the accused used to telephone to me and I also
used to telephone him in case of any difficulty‟.    
10.  Pertaining to the events between 9:30 PM to 5:30 Crl.A.No.5/2008                  Page 5 of 9
AM on the intervening night of 22nd and 23rd December 2004
the prosecutrix stated that no person had visited her house
during said time period  and that she did not remember
whether the appellant received any call on his mobile number. 
She denied having made a call at mobile number of  the
appellant at 21:35 hrs on 22.12.2004 or that the appellant
rang her on her mobile number at 12:45 AM i.e. in the middle
of the night.  She volunteered: „the accused might have
telephoned on my mobile and left it open for 8 minutes‟.  
11.  As noted hereinabove, the defence of the appellant
was that he did nothing of the sort as claimed by the
prosecutrix and that the  prosecutrix has been in constant
touch with him through their respective mobile telephone
numbers and that the two had taken dinner at Jain Restaurant
at Connaught Place where they remained till 12:00 midnight. 
Thereafter, he left the prosecutrix to her house.  
12.  We note that the mobile call details of the
telephone No.9818165880 i.e. of the appellant have been
marked „B‟ during trial by the learned Trial Judge and the same
shows 7  calls made by the appellant to the prosecutrix  on
22.12.2004 between 8:05 PM to 5:57 AM the next day i.e.
23.12.2004.  The same also shows that at 11:35 PM on
22.12.2004 the prosecutrix has made a call to the appellant.   Crl.A.No.5/2008                  Page 6 of 9
13.  Interestingly, the 8 calls exchanged between the
prosecutrix and the appellant show that the appellant was
within the vicinity of cell tower No.1603 on three occasions, at
the vicinity of cell tower No.1601 on one occasion, in the
vicinity of tower 20581 on one occasion, in the vicinity of tower
No.3271 on two occasions and in the vicinity of tower No.23 on
one occasion. The date and the time of the said 8 calls are as
under:-
S.No.  Date   Time 
1.  12/22/2004  20:05:30
2.  12/22/2004  20:40:09
3.  12/22/2004  20:48:52
4.  12/22/2004  21:24:46
5.  12/22/2004  21:31:31
6.  12/22/2004  21:35:28
7.  12/23/2004  00:40:45
8.  12/23/2004  05:57:07
14.  It is apparent that between 9:30 PM of 22.12.2004
and till 5:57 AM on 23.12.2004 the appellant was within the
vicinity of different mobile towers.  
15.  The aforesaid prima facie belies the claim of the
prosecutrix.   Crl.A.No.5/2008                  Page 7 of 9
16.  How has the learned Trial Judge dealt with the
aforesaid evidence?
17.  To our mind,  in a most clumsy and  injudicious
manner.  The learned Trial Judge has trivialized the same, in
para 8, as under:-
“So far as the relations and making calls are
concerned that in my opinion is of no help to the
accused.   Simply because the accused was having
her number and accused was known to the
prosecutrix or that the prosecutrix discussed her
problems with the accused herein and asked him to
solve the same does not mean that he got the right
to have sexual intercourse with her.”
18.  The learned Trial Judge has treated the issue as if it
was child play.  
19.  It is apparent that material evidence has been
deliberately misread by the learned Trial Judge after trivializing
the same.  The stand of the prosecutrix during cross-
examination that on 21:35 hours the two telephone numbers
show a talk of considerable duration  is  the result of the
appellant telephoning on her mobile and leaving her mobile
open for 8 minutes, to say the least, is ridiculous.  
20. It is apparent that the appellant and the prosecutrix
were known to each other.  It is apparent that the prosecutrix
was using the services of the appellant to further her interest
in the criminal prosecution which she had launched against her Crl.A.No.5/2008                  Page 8 of 9
husband and in  return, the appellant was using the youth of
the prosecutrix.  It is apparent that the two were on more than
on friendly occasion.  If at all they had sex in the night as
claimed by the prosecutrix it has to be sex by consent.  
21.  In any case the claim of the prosecutrix that the
accused i.e. the appellant remained in her house from 9:30 PM
to 5:30 AM is false.  
22.  The appellant is accordingly entitled to an acquittal.
23.  We may clarify that if the department is interested
in any action against the appellant they may proceed against
him for having intimate relations with a lady in distress and to
that extent misusing his position as a police officer to help her
in prosecuting the husband of the prosecutrix.  
24.  But, as regards the charge against the appellant of
having raped and criminally intimidated the prosecutrix,  we
hold that the appellant is entitled to be acquitted of the said
charges framed against him.  
25.  The appeal is allowed.  Impugned judgment and
order dated 30.10.2007 convicting the appellant for offences
punishable under Section 376 (2)(a) and Section 506 IPC is set
aside.  The order on sentence dated 6.11.2007 is quashed.  
26.  The appellant is directed to be set free unless he is
required in custody in some other case.   Crl.A.No.5/2008                  Page 9 of 9
27.  Since the appellant is in jail we direct that a copy of
this decision be sent to the Superintendent Central Jail Tihar
for necessary action.  
(PRADEEP NANDRAJOG)
                      JUDGE    
                           (SURESH KAIT)                
                        JUDGE  
March 15, 2010      
mm

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