Delhi Sessions Court raises question about dignity of falsely accused men in rape cases

Following recent judgment of Delhi Sessions Court by Justice Nivedita Anil Sharma about dignity of falsely accused man in a rape case, has been much published in print media, and getting shared on social media too.

The judgment has referred to terming such falsely accused men as rape case survivor, a term used first in a judgment by Justice Virender Bhat, again about a rape case in Delhi; probably because Delhi has become the false rape capital of India.

At the end of the judgment are passages related to falsely accused in rape cases:

185. It cannot be ignored that the accused due to this case which has ultimately ended in his acquittal, as suffered humiliation, distress and misery besides the expenses of the litigation. His plight may also continue after his acquittal as his implication may have caused an uproar in society but his acquittal may not even be noticed. He would continue to suffer the stigma of being a rape case accused. He has remained in custody for a considerable period.

One way to avoid such humiliation, media trials, ignominy for the falsely accused is to modify the law so that identity of rape accused is also kept secret till trial and conviction. Such a law was there in UK law books for many years before it was taken away, presumably not to discourage women from coming forward in reporting rape cases. Such a logic can only be feminist logic, because for a raped woman to get justice, it should not be important whether the face of accused man is flashed all over MSM and social media, what’s important is only that the prosecution and trial are done fairly and speedily. But feminists are more concerned about creating rape hysteria, and if it destroys some men’s reputations and their lives, so be it, so for them such a law to keep accused’s identity secret will not serve that purpose.

The next para in judgment says:

186. It may not be possible to restore the dignity and honour of the accused nor compensate him for the humiliation, misery, distress and monetary loss. However, his acquittal may give him some solace. He may also file any case for damages against the prosecutrix, if advised. No one discusses about the dignity and honour of a man as all are only fighting for the rights, honour and dignity of women. Laws for protection of women are being made which may be misused by a woman but where is the law to protect a man from such a woman where he is being persecuted and implicated in false cases, as in the present case. Perhaps, now it is the time to take a stand for a man.

Above “dignity and honour of a man” passage was much quoted in the press, and it gave the impression that the court has proactively done something to help the falsely accused man in this case. However, it seems that the court has just made the observations about dignity/honour etc of men, and let the man himself file a case for damages on the falsely accusing woman, if advised. Given the general lack of precedents and lack of knowledge in this area, about how to get compensation either from state or from prosecutrix, I don’t know what advice can this man get to claim damages. More useful would be if the courts could evolve an automatic rule to order an enquiry under applicable sections like IPC 182, 211 etc against false rape accusers, since most of these provisions of law cannot be invoked by the accused himself, unless ordered by the police or judiciary. Most accused wouldn't have sufficient knowledge of the law to make use of these provisions. So in most likelihood these sections will remain the toothless provisions they have always been, for a long time to come. And as a society, we can continue to sleep believing that our laws are serving the purpose they were written for.

More information is given in this post on various precedents and useful sections for taking actions against false rape accusers.

Since the judgment is 84 pages long, the PDF file is also attached here. Delhi ASJ Nivedita Anil Sharma false rape acquittal 20160102.pdf

Full judgment text below:

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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0609662013.

State
Versus
Mr. Upender Dutt Sharma@ Goldi,
Son of Mr. Durga Dutt Sharma,
Resident of A-182, Gali No. 7, Ph.No.5, Peer Baba Road,
Om Vihar, Uttam Nagar, New Delhi.

First Information Report Number : 143/13.
Police Station Nihal Vihar.
Under section 376 of the Indian Penal Code.

Date of filing of the charge sheet before                      : 07.09.2013.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal                        : 31.10.2013.
Arguments concluded on                                         : 02.01.2016.
Date of judgment                                               : 02.01.2016.

Appearances: Ms.Madhu Arora, Additional Public Prosecutor for the
State.
Accused on bail with counsel,Mr.Shri Parkash Sharma.
Ms.Vandana Chanchal, counsel for the Delhi Commission
for Women.
***********************************************************

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
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State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-

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JUDGMENT
“To call woman the weaker sex is a libel; it is man's injustice to
woman. If by strength is meant brute strength, then, indeed, is
woman less brute than man. If by strength is meant moral power,
then woman is immeasurably man's superior. Has she not
greater intuition, is she not more self-sacrificing, has she not
greater powers of endurance, has she not greater courage?
Without her, man could not be. If nonviolence is the law of our
being, the future is with woman. Who can make a more effective
appeal to the heart than woman?”----Mahatma Gandhi.

1. Rape is a dark reality in Indian society like in any other nation.

This abnormal conduct is rooted in physical force as well as

familiar and other power which the abuser uses to pressure his

victim. Nor is abuse by known and unknown persons confined to a
single political ideology or to one economic system. It transcends

barriers of age, class, language, caste, community, sex and even

family. The only commonality is power which triggers and feeds

rape. Disbelief, denial and cover-up to “preserve the family

reputation” are often then placed above the interests of the victim

and her abuse. Rape is an abominable and ghastly and it worsens

and becomes inhuman and barbaric when the victim who is

allegedly subjected to unwanted physical contact by a perverted

male, known to her.

2. “ Courts are expected to show great responsibility while trying an
accused on charges of rape. They must deal with such cases with

utmost sensitivity. The Courts should examine the broader

probabilities of a case and not get swayed by minor contradictions
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
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State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-

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or insignificant discrepancies in the statement of the witnesses,
which are not of a fatal nature to throw out allegations of rape.

This is all the more important because of lately crime against

women in general and rape in particular is on the increase. It is

an irony that while we are celebrating women’s rights in all

spheres, we show little or no concern for her honour. It is a sad

reflection and we must emphasize that the courts must deal with

rape cases in particular with utmost sensitivity and appreciate the

evidence in totality of the background of the entire case and not in

isolation.” The Supreme Court has made the above observations in

the judgment reported as State of Andhra Pradesh v. Gangula

Satya Murthy, JT 1996 (10) SC 550 .

PROSECUTION CASE

3. Mr. Upender Dutt Sharma @ Goldi, the accused, has been charge

sheeted by Police Station Nihal Vihal, Delhi for the offence under

section 376 of the Indian Penal Code (hereinafter referred to as the

IPC) on the allegations that from 2008 to February 2009 during the

first incident on unknown date at WZ-779, Village Tihar, he offered

the prosecutrix (name withheld to protect her identity) tea and

biscuits mixed with intoxicated material and committed rape upon
her; and thereafter the accused had raped her on the false pretext of
marriage with her.

CHARGE SHEET AND COMMITTAL

4. After completion of the investigation, the charge sheet was filed
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
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State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-

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before the Court of the learned Metropolitan Magistrate on
07.09.2013 and after its committal, the case was assigned to this

Court i.e. Additional Sessions Judge (Special Fast Track Court)

-01, West, Tis Hazari Courts, Delhi for31.10.2013.

CHARGE

5. After hearing arguments, charge for offence under sections 328,

376 and 420 of the IPC have been framed against accused

Mr.Upender Dutt Sharma @ Goldi vide order dated 19.11.2013 to

which he pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE
6. In order to prove its case, the prosecution has examined as many as

10 witnesses i.e. the prosecutrix, as PW1; HC Ram Mahesh,

MHCM as PW2; Ct. Seema Chahar, who had took the

proesecutrix to SGM Hospital for her medical examination, as

PW3; HC Jai Bhagwan, Duty Officer, as PW4; Dr. Binay Kumar,

who had medically examined the accused, as PW5; Dr. Aditi

Aggarwal, who had medically examined the proecutrix, as PW6;

Dr. Gurdeep, who had medically examined the prosecutrix in

casualty, as PW7; Ct M.R.Prasad, witness of investigation, as PW8;
Ms. Ekta Gauba, learned Metropolitan Magistrate, who had
recorded the statement of prosecutrix under section 164 of the
Cr.P.C., as PW9; and SI Koyal, the Investigation Officer, as PW10.

7. The accused and his counsel have preferred not to cross examine
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
4
State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-

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PWs 2, 3, 4, , 5, 6, 7 and 9 due to which their evidence remains
uncontroverted and unrebutted and can be presumed to have been

admitted as correct by all the accused persons.

8. Vide order dated 03.06.2014, the counsel for accused, on behalf of

the accused, has admitted the evidence of Ms. Sunita Gupta, FSL

Expert as well as FSL report.

9. The Additional Public Prosecutor made a statement on 07.08.2014

and has dropped the witness Ct. Chandra Shekhar from the list of

prosecution witnesses as his evidence is not relevant.

STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE

CR.P.C. AND DEFENCE EVIDENCE

10. In his statement under section 313 of the Cr.P.C., the accused has

controverted and rebutted the entire evidence against him and

submitted that he is innocent and he has not committed any

offence. The prosecutrix was already married to some one else and

she wanted to extort money from him for which she had lodged the

present false case against him.

11. Accused has preferred to lead evidence in their defence. He is
examined Mr. Phool Singh, as DW1; Ct. Dharamvir as DW2; and
Mr. Dev Karan Singh as DW3.

ARGUMENTS
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
5
State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-

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12. I have heard arguments at length. I have also given my conscious
thought and prolonged consideration to the material on record,

relevant provisions of law and the precedents on the point.

13. The Additional Public Prosecutor for the State has requested for

convicting the accused for having committed the offences under

sections 328, 376 and 420 of the IPC, submitting that the

prosecution has been able to bring home the charge against the

accused by examining its witnesses whose testimonies are

corroborative and reliable.

14. The counsel for the accused, on the other hand, has requested for
his acquittal submitting that there is nothing incriminating against

the accused on the record. There is an unexplained delay in the

lodging of FIR. The complaint made by the prosecutrix is

concocted. The prosecutrix has given false evidence. The evidence

of the prosecutrix as well as other prosecution witnesses is

unreliable as it suffers from various contradictions and

inconsistencies. The investigation has not been properly conducted.

The prosecutrix was already married and could not have married

the accused. She wanted to extort money from the accused.

DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
15. The question is how to test the veracity of the prosecution story

especially when it has some variations in the evidence. Mere

variance of the prosecution story with the evidence, in all cases,
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
6
State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-

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should not lead to the conclusion inevitably to reject the
prosecution story. Efforts should be made to find the truth, this is

the very object for which the courts are created. To search it out,

the Courts have been removing chaff from the grain. It has to

disperse the suspicious cloud and dust out the smear as all these

things clog the very truth. So long chaff, cloud and dust remains,

the criminals are clothed with this protective layer to receive the

benefit of doubt. So it is a solemn duty of the Courts, not to merely

conclude and leave the case the moment suspicions are created. It

is the onerous duty of the Court within permissible limit to find out

the truth. It means, on the other hand no innocent man should be

punished but on the other hand to see no person committing an
offence should get scot-free. If in spite of such effort suspicion is

not dissolved, it remains writ at large, benefit of doubt has to be

created to the accused. For this, one has to comprehend the totality

of facts and the circumstances as spelled out through the evidence,

depending on the facts of each case by testing the credibility of the

witnesses, of course after excluding that part of the evidence which

are vague and uncertain. There is no mathematical formula through

which the truthfulness of the prosecution or a defence case could be

concretized. It would depend upon the evidence of each case
including the manner of deposition and his demeans, clarity,
corroboration of witnesses and overall, the conscience of a Judge
evoked by the evidence on record. So the Courts have to proceed

further and make genuine efforts within judicial sphere to search

out the truth and not stop at the threshold of creation of doubt to
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
7
State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-

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confer benefit of doubt.

16. Under this sphere, I now proceed to test the submissions of both the

sides.

CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED

DOCUMENTS
17. The prosecution story unveils with the prosecutrix ( PW1) going to

Police Station Nihal Vihar on 26.04.2013 where she made a written

complaint ( Ex.PW1/A ) against the accused. Since police did not

take any action on her complaint dated 26.04.2013, the prosecutrix

again visited PS Nihal Vihar on 30.04.2013 and enquired about the

action taken on her complaint. The prosecutrix ( PW1) was told

that no action had been taken on her complaint and the police

official on duty tried to avoid her. Thereafter, the prosecutrix

( PW1) telephoned the Media persons of Sahara News Channel and

narrated the entire incident to them stating that police was not

taking any action on her complaint and she was present at Police
Station Nihal Vihar. After some time, two media persons came to

Police Station Nihal Vihar and they enquired from the police

regarding the action taken on her complaint. Thereafter, the police

recorded a statement without conducting any enquiries from her

and asked her to sign on the same stating that the contents of her

application dated 26.04.2013 have been reproduced in this

statement and thereafter, she signed the said statement (Ex.PW1/B )

and the FIR was registered in this case. On 01.05.2013, HC Jai

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
8
State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-

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Bhagwan    (PW4   ) Duty Officer lodged the FIR (     Ex. PW4/A    ), made
his endorsement on the rukka (       Ex.PW4/B    ) and issued certificate

under section 65 B Evidence Act ( Ex. PW4/C ) and handed over

the same to IO/SI Koyal (PW10 ) for investigation. The prosecutrix

( PW1) was taken on the instructions of the IO/SI Koyal ( PW10 )

by Ct. Seema Chahar ( PW3 ) toSGM Hospital, Mangol Puri for her

medical examination where she was medically examined by

Dr.Gurdeep ( PW7) and was referred to the Gynecological

department where she was medically examined by Dr. Aditi

Aggarwal (PW6 ) vide MLC ( Ex.PW6/A ). Her internal

examination was also conducted by the doctor and her blood

sample as well as other samples and sealed exhibits were handed
over to Ct. Seema Chahar ( PW3 ) who handed the same to the

Investigation Officer (PW10) who seized them vide seizure memo

( Ex.PW1/C ). Before the doctor, the prosecutrix ( PW1 ) had stated

the name of the accused as Goldy but after her examination, when

copy of the MLC was provided to the prosecutrix, she came to

know that doctor had written the name of the accused as Murli and

she had informed W Ct. Seema ( PW3) who had taken her for her

medical examination that the name of Goldy has been wrongly

mentioned as Murli in the MLC and the prosecutrix told her that
she wanted to get the same corrected in the MLC. WCt. Seema
(PW3 ) did not do anything in this regard and took her back to
Police Station Nihal Vihar and she told this fact to the Investigation

Officer SI Koyal ( PW10) but she stated that now nothing can be

done in this regard. On 25.07.2013, the prosecutrix was produced
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
9
State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-

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before Ms. Ekta Gauba, learned Metropolitan Magistrate (PW9)
who recorded her statement under section 164 of the Cr.P.C.

( Ex.PW1/G) on the application of the IO for recording the

statement ( Ex.PW9/A) and copy of the statement was given to the

IO on her application for supply of copy of statement ( Ex.PW9/B ).

The prosecutrix ( PW1 ) was taken by the police to the place of

occurrence i.e. H.No.779, Village Tihar, New Delhi where the

offence of rape took place with her for the first time. IO/SI Koyal

( PW10) prepared site plan (Ex.PW1/D) at her instance. The

prosecutrix ( PW1 ) had taken the police to the house of the accused

in A-182, Gali no.7, Phase No-5, Pir Baba Road, Om Vihar, Uttam

Nagar, where he was present. On the identification of the
prosecutrix, the accused was arrested by the IO/SI Koyal ( PW10)

vide arrest memo (Ex.PW1/E) and the personal search memo

(Ex.PW1/F ). The accused confessed his crime vide his disclosure

statement (Ex.PW8/A). The accused took the police to the place

of occurrence and pointed out the same vide the pointing memo

(Ex.PW8/B) . On the directions of IO/SI Koyal (PW10 ), Ct.

M.R.Prasad ( PW8 ) took the accused to SGM Hospital for his

medical examination and was examined by Dr. Binay Kumar

(PW5)   vide MLC (     Ex.PW5/A     ) and the doctor had handed over
MLC of the accused, the sealed exhibits of the accused to Ct.
M.R.Prasad (   PW8)    who handed over the same to IO/SI Koyal
( PW10)   who seized the same vide seizure memo         (Ex.PW8/C)     . On

01.05.2013, IO/SI Koyal (PW10) had deposited with HC Ram

Mahesh, MHC (M) ( PW2 ),three sealed pullandas along with one
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 10 of 84 ::-

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sample seal of the hospital and HC Ram Mahesh ( PW2) had made
the entry of the same in register number 19 at serial no. 981

( Ex.PW2/A) . On 14.05.2013, three sealed pullandas along with

one sample seal were received by IO/SI Koyal (PW10 ) vide entry

no. 70/21/13 in register no. 21 (Ex.PW2/B ) by HC Ram Mahesh

and IO/SI Koyal (PW10) deposited the same in the office of FSL

vide acknowledgement (Ex. PW2/C ). The exhibits of the case were

examined by Ms. Sunita Gupta, Senior Scientific Officer (Biology)

FSL vide FSL report (Ex.PX1 ). During the investigation IO/SI

Koyal ( PW10) had recorded the statements of the witnesses under

section 161 Cr.P.C and after completion of the investigation, the

charge sheet was prepared and put to the Court for trial.

18. The allegations against the accused are that from 2008 to February

2009 during the first incident on unknown date at WZ-779, Village

Tihar, he offered the prosecutrix tea and biscuits mixed with

intoxicated material and committed rape upon her; and thereafter,

the accused had raped her on the false pretext of marriage with her.

IMPORTANT ISSUES

19. The important issues and the points in dispute are being discussed
hereinafter.

IDENTITY OF THE ACCUSED

20. There is no dispute regarding the identity of the accused

Mr.Upender Dutt Sharma @ Goldi who has been identified in the
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 11 of 84 ::-

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Court by PW1, the prosecutrix and the police witnesses of
investigation. It is also not in dispute that the accused and the

prosecutrix were known to each other prior to the lodging of the

FIR. Accused is also named in the complaint (Ex.PW1/B) and the

FIR (Ex.PW4/A) .

21. Therefore, the identity of the accused stands established.

AGE OF THE PROSECUTRIX

22. There is no dispute that the prosecutrix was above 18 years of age

at the time of the incident. In her complaint (Ex.PW1/A) , the

prosecutrix has mentioned her age as 27 years and in her statement
under section 164 of the Cr.P.C. (Ex.PW1/C) , her MLC

(Ex.PW5/A) and in her evidence before the Court, the prosecutrix

has mentioned her age as 28 years. As per the prosecution, she was

a major at the time of the alleged incident.

23. Therefore, it is clear that the prosecutrix was a major at the

time of incident.

VIRILITY OF THE ACCUSED
24. Dr.M. Das (PW5) had medically examined the accused vide MLC
(Ex.PW5/A) . He has not been cross examined on behalf of the
accused due to which his evidence remains uncontroverted and

unrebutted and can be presumed to be admitted by the accused.

Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 12 of 84 ::-

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25. It is mentioned in the MLC of the accused (Ex.PW5/A) that
“There is nothing to suggest that pt. is not capable of performing

sexual intercourse”.

26. Even on physical examination, the doctor has found that the private

parts of the accused to be well developed. There is nothing on the

record to show that the accused is impotent or medically incapable

of committing the offence of rape.

27. Therefore, it is clear that the accused is virile and is capable of

performing sexual act and is capable of committing the act of

rape.

MLC OF THE PROSECUTRIX AND FORENSIC EVIDENCE

28. It has been argued on behalf of the accused that as there is no

medical and forensic evidence against the accused, it indicates that

he has been falsely implicated in this case as the prosecutrix does

not have any injury and when her samples taken during her
gynecological examination were compared with those of the

accused, nothing incriminating was found in the FSL report

(Ex.PW8/F) .

29. The Additional Public Prosecutor has argued that the medical and

forensic evidence is only for corroboration.

30. It can be seen from the MLC of the prosecutrix (Ex.PW6/A) which

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is dated 30.04.2013 that she does not have any external injuries.
She had told the doctor that last sexual relations were 10 days back,

which would be 20.04.2013 (calculated).

31. The FSL report (Ex.PX-1) shows that blood was found on exhibits

‘1a’, ‘1a-2’ and ‘2’ i.e. one gauze cloth piece having brownish

stains, one dark brown foul smelling liquid and damp foul smelling
blood stained gauze. Blood could not be detected on ‘1b1’, ‘1b2’

and ‘3’ i.e. two cotton swabs on stick kept in test tubes described as

vaginal swabs and underwear of accused. Human semen was

detected on exhibit ‘3’ i.e. underwear of accused. Semen could not

be detected on ‘1b’ and ‘1b2’ i.e. two cotton swabs on stick kept in

test tubes described as vaginal swabs.

32. Although there is nothing incriminating against the accused in the

medical and forensic evidence produced by the prosecution, but per

se, the ocular and oral evidence as such cannot be ignored, and lack

of medical and forensic evidence does not indicate that the accused

is innocent.

33. There is nothing incriminating against the accused in the

medical and forensic evidence produced by the prosecution.

DELAY IN FIR
34. The contention of the counsel for the accused that there was a delay

in lodging of the FIR which is fatal is now being taken into

-:: 15 ::-

consideration.

35. The counsel for the accused has argued that there is an unexplained

delay in lodging the FIR which was lodged after due deliberation

and consultation.

36. The contention of the prosecution that there is no delay in lodging

the FIR as the prosecutrix lodged the complaint as early as

possible. She was exploited by the accused for five years and then

he refused to marry her saying that he cannot go against the wishes

of his parents. She went to the Police Station and gave her

complaint on which action was not taken and then when the media
persons intervened, the FIR was lodged.

37. The delay in lodging the report raises a considerable doubt

regarding the veracity of the evidence of the prosecution and points

towards the infirmity in the evidence and renders it unsafe to base

any conviction. Delay in lodging of the FIR quite often results in

embellishment which is a creature of after thought. It is therefore

that the delay in lodging the FIR be satisfactorily explained. The

purpose and object of insisting upon prompt lodging of the FIR to
the police in respect of commission of an offence is to obtain early
information regarding the circumstances in which the crime was
committed, the names of actual culprits and the part played by them

as well the names of eye witnesses present at the scene of

occurrence.
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 15 of 84 ::-

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38. It is not that every delay in registration of the FIR would be fatal to

the prosecution. Once the delay has been sufficiently explained, the

prosecution case would not suffer. However, it is necessary for the

Courts to exercise due caution particularly in the cases involving

sexual offences because the only evidence in such cases is the

version put forwarded by the prosecutrix.

39. In the case reported as State of Rajasthan v. Om Prakash, (2002)

5 SCC 745 , the Hon'ble Supreme Court has held that in case

where delay is explained by the prosecution in registering the

case, the same could be condoned moreover when the evidence of
the victim is reliable and trustworthy.

40. Similar view was taken in Tulshidas Kanolkar v. The State of

Goa, (2003) 8 SCC 590 , wherein it was held by the Supreme Court

as follows:

“ The unusual circumstances satisfactorily explained the
delay in lodging of the first information report. In any event,
delay per se is not a mitigating circumstance s for the
accused when accusation of rape are involved. Delay in
lodging    first information   report cannot be used as a
ritualistic   formula   for discarding prosecution   case and
doubting its authenticity. It only puts the court on guard to
search for and consider if any explanation has been offered
for the delay. Once it is offered , the Court is to only see
whether it is satisfactory or not. In a case if the prosecution
fails to satisfactory explain the delay and there s possibility
of embellishment or exaggeration in the prosecution version
on account of such delay , it is a relevant factor. On the other
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi                                                                                   -:: Page 16 of 84 ::-

-:: 17 ::-

hand satisfactory   explanation of the delay is weighty
enough    to reject the plea   of   false implication   or
vulnerability of prosecution case. As the factual scenario
shows, the victim was totally unaware of the catastrophe
which had befallen   to her. That being so the mere delay in
lodging of first information report does not in any way
render prosecution version brittle    .

41. In the judgment reported as Devanand v. State (NCT of Delhi),

2003 Crl.L.J. 242 , the Hon’ble High Court of Delhi has observed
as follows:

“The above said statement clearly show that at the earliest
opportunity the prosecutrix had not made any complaint to
her mother in this regard. Reading of the examination–
inchief reveals that first time she was raped as per her own
version after about 30-36 days of coming of the appellant but
in any case she admits that she has been raped many a times
and she only complained to her mother few days after he had
left. The appellant stayed in the house of the prosecutrix for
more than year.”

42. Further, the Hon’ble High Court of Rajasthan in the judgment

reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J.

2282, has held as under:

“No doubt delay in lodging the FIR in sexual assault cannot
normally damage the version of the prosecutrix as held the
Hon’ble Supreme Court in various judgements but husband
of the prosecutrix is there and report is lodged after one and
half months, such type of delay would certainly be regarded
as fatal to the prosecution case”
43. The Hon’ble High Court of Madhya Pradesh in the judgment

reported as Banti alias Balvinder Singh v. State of Madya

-:: 18 ::-

Pradesh , 1992 Cr.L.J. 715 , has held as under:
“in conclusion, having regard to the conduct of the
prosecutrix in not making any kind of complaint about the
alleged incident to anybody for five days coupled with late
recording of report by her after five days with false
explanation for the delay, in the context also of the Lax
Morals of the Prosecutrix, it is very unsafe to pin faith on her
mere word that sexual intercourse was committed with her by
five accused persons or any of them. It is also difficult to
believe her version regarding the alleged abduction in jeep. In
the circumstances it must be held that the prosecutrix story
was not satisfactorily established”

44. It is claimed by the accused that as the FIR (Ex.PW4/A) has been

lodged after a long delay on 01.05.2013 at 00:05 hours (12:05 a.m.)
while the allegations made by the prosecutrix in her complaint

(Ex.PW1/B) (which is dated 30.04.2013) are that the accused had

raped her for the first time in February, 2009 and thereafter w.e.f.

February, 2009 till 20.04.2013 (as per MLC- Ex.PW6/A ). The

delay in lodging of the FIR has been not explained by the

prosecution.

45. The Additional Public Prosecutor, on the other hand, has submitted

that there is no delay in the lodging of the FIR as the criminal

action was swung into motion as soon as possible.

46. As per the complaint / statement of the prosecutrix to the police,

(Ex.PW1/B) , which is dated 30.04.2013, the physical relations

were established (without her consent) in February, 2009 and

thereafter w.e.f. February, 2009 to 20.04.2013 on a false pretext of
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 18 of 84 ::-

-:: 19 ::-

marriage.

47. In her statement under section 164 of the Cr.P.C. (Ex.PW1/G)

which was recorded on 25.07.2013, the prosecutrix has stated

similarly with some variations. She has not given any specific date

when the physical relations were last established.

48. In her examination in chief, the prosecutrix as PW1, has deposed

that “For about 4-5 years accused continued to have physical

relations with me saying that he would marry me….. This

continued up till April 2013.”

49. The first alleged incident of rape was in February, 2009 when the

prosecutrix was taken to the house of the accused, intoxicated and

raped. The prosecutrix neither shouted for help nor raised any

alarm nor tried to escape nor complained about the alleged offence

to anyone.

50. It is clear that the prosecutrix preferred to remain silent and not

complain to anyone prior to the lodging of the complaint on

30.04.2013.

51. Here, the judgment of the hon’ble High Court of Delhi reported as

Shashi Chaudhary v. Ram Kumar and anr, 2011 (1) JCC 520

would be relevant wherein it has been observed that there is no
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 19 of 84 ::-

-:: 20 ::-

explanation given by the prosecutrix for her not making hue and
cry, when the alleged offence took place, nor is there any

explanation for failure on her part to lodge the complaint with the

police immediately or for that matter within a reasonable time of

incident.

52. No explanation is coming forth from the prosecution regarding the

delay. No reasonable or logical explanation is coming from the

prosecution regarding the delay in lodging of the FIR on

30.04.2013 at 00:05 hours (Ex.PW4/A) when the alleged incident

of rape occurred much earlier. The last incident was on 20.04.2013

(calculated) as per the MLC of the prosecutrix (Ex.PW6/A) and no
explanation is coming forth from the prosecution regarding her

waiting till 30.04.2013 for making the complaint. No media person

has been examined by the prosecution to justify that the police was

not taking the complaint (Ex.PW1/A) nor any action on the same.

53. The prosecutrix and the prosecution have not been able to justify

the delay and why the prosecutrix did not report the matter

immediately or earlier. No logical explanation has been furnished

by the prosecution for the delay, as elaborated above.

54. These facts indicate that the possibility of the complaint being
motivated or manipulated and the version of the prosecutrix being

untrue cannot be completely ruled out. The possibility that the FIR

was lodged after due deliberation and consultation cannot be ruled
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 20 of 84 ::-

-:: 21 ::-

out. The discrepancies in the evidence and the documents regarding
the delay in lodging of the FIR indicate that the prosecutrix and the

prosecution are unable to justify the delay in lodging of the FIR

which is fatal to the prosecution version.

55. Therefore, it can be said that the FIR was lodged after a delay

which is fatal to the prosecution story. The delay has not been
satisfactorily explained by the prosecutrix and the prosecution.

EVIDENCE AND OTHER STATEMENTS OF THE

PROSECUTRIX

56. It is very essential and important to discuss and analyse the

different statements of the prosecutrix.

57. PW1 , the prosecutrix has deposed that in the year 2008, she had

gone with her friend Ms.Simran to PVR Cinema at Vikas Puri for a

movie. After the movie had finished, they met one Mr.Ajay who

was friend of Ms.Simran outside the movie hall. Accused Upender

Dutt Sharma @ Goldi was accompanying Mr.Ajay at that time. She

was introduced to him. She has identified accused Upender Dutt

Sharma @ Goldi through the screen. While they were leaving, the

accused asked her for her mobile number and offered friendship to

her. She refused to give her mobile number to him and thereafter

went to her residence. Next day, she got a call on her mobile phone
from the accused and on her enquiry, he told her that he had taken

her mobile number from Ms.Simran. He had again offered

-:: 22 ::-

friendship to her and she again declined. Thereafter, he called her
repeatedly on her phone asking for friendship. She gradually

developed friendship with and started talking to him. Accused

started asking her to meet him at PVR Cinema which she used to

refused. However, she did meet him once or twice at PVR Cinema

along with Ms.Simran and Mr. Ajay but she never met him alone.

After 5-6 months of her initial meeting, the accused asked her to

marry him on which she told him that she would take permission

from her parents before she gets married. Accused told her that he

would meet her parents to take their permission but prior to that, he

would make her meet his parents. Thereafter, she started meeting

the accused frequently. She told the accused that as they were
meeting frequently, they would be seen by her family and friends

and he should talk to his parents about their marriage. She did not

remember the exact date, but it was in February 2009 that accused

phoned her and asked her to come to his house at WZ-779, Tihar

Village, Near Tilak Nagar for meeting his parents. She went to meet

him. From Tilak Nagar, the accused had picked her to take her to

his residence. She met his father in his house. When she touched

his feet, he had given her his blessings. Accused told him that he

liked her and wanted to marry her to which his father replied that
even he approved of her. However, he also said that as his wife,
mother of the accused, was not at home, they should wait for her to
return. His father enquired about her residence and then, the

accused offered to show his house to her. He showed his house to

her which comprise of two rooms, kitchen and wash room and a
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 22 of 84 ::-

-:: 23 ::-

courtyard. He told her to sit in the second room. The room where
initially she was taken had a sofa and a single bed and the second

room had a double bed. Accused told her to sit in the second room

which had a double bed saying that she may be uncomfortable in

the presence of his father. Then he left the room and returned with

tea and biscuit. She saw that he had given one cup of tea to his

father also in the other room. Accused had brought two cups of tea.

They had tea and biscuit. After consuming tea, she started feeling

heaviness in her head (sir bhaari ho gaya) on which the accused

had told her that she was coming from outside, she must be tired

and asked her to lie down on the bed till his mother returned.

Thereafter, as she became sleepy, she slept. She did not know for
how much she had slept. When she woke up, she found that she did

not have any clothes on her body. Accused Upender also did not

have any clothes on his body. He was lying besides her and was

touching her private parts (private parts ke saath ched-chaad kar

raha tha). When she asked him to stop, he told her that as his father

has consented for their marriage, they could have physical

relations. Accused forcibly had physical relations with her (mere

saath jabardasti sharirik sambandh banai). She was crying and she

asked the accused why he had forcibly had physical relations with
her on which he told her that his father had approved their marriage
and as they were to get married, they could have physical
relationship as they would be having physical relationship after

marriage also. Accused was not returning her clothes and it was

only when she repeatedly requested him that he took out her
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 23 of 84 ::-

-:: 24 ::-

clothes from under the bed and gave them to her. She wore her
clothes. Accused came up to Tilak Nagar with her and returned

saying that his father was alone at home. From Tilak Nagar, she

came to her residence herself. For about 4-5 years, the accused

continued to have physical relations with her saying that he would

marry her. Accused repeatedly promised to marry her after which

he had physical relationship with her. If the accused had not

promised to marry her, she would not have had physical relations

with him. This continued up till April 2013. In between, she had

met Ms.Uma, mother of the accused, several times and she had also

approved of the marriage between her and the accused. On

21.04.2013, the mother of the accused telephoned her and told her
that she had got the accused engaged to some other girl. She also

told her that she should not telephone or contact the accused. She

enquired from her whether anything was wrong. She told her that

as her father had expired, they would not be able to give her

anything in marriage and also that she was of a lower caste. She

telephoned the accused several times but he did not take her calls.

Accused sent her one SMS that he was busy. She has deposed her

mobile number (number mentioned in file and withheld to protect

the identity of the prosecutrix). The mobile number of the accused
is 8800557997. He telephoned her in the evening and told her that
he could not do anything but he would try to talk to his mother.
Thereafter, despite her repeated attempts at contacting him on

telephone, he did not take her calls and did not meet her. Thereafter,

she went to Police Station Nihal Vihar on 26.04.2013 and made a
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 24 of 84 ::-

-:: 25 ::-

written complaint against the accused (Ex.PW1/A) which was in
her handwriting. The police officer on duty, who was a lady and not

in police uniform, had initially refused to accept her complaint but

had later on taken it on record and had put receiving endorsement

on her copy. The police officer on duty had given her one mobile

number which is mentioned at point C telling her that the said

number is of ASI Rekha and she could enquire from her regarding

the status of her complaint. After two days of her filing the

complaint, she telephoned ASI Rekha who expressed her ignorance

regarding any such complaint in the Police Station. Since police did

not take any action on her complaint dated 26.04.2013, she again

visited Police Station Nihal Vihar on 30.04.2013 and enquired
about the action taken on her complaint. She was told that no action

had been taken on her complaint and the police official on duty try

to avoid her. Thereafter, she telephoned the Media person of Sahara

News Channel and narrated the entire incident to them stating that

police was not taking any action on her complaint and she was

present at Police Station Nihal Vihar. After some time, two media

persons came to Police Station Nihal Vihar and they enquired from

the police regarding the action taken on her complaint. Thereafter,

the police recorded a statement without conducting any enquiries
from her and asked her to sign on the same stating that the contents
of her application dated 26.04.2013 have been reproduced in this
statement and thereafter she signed the said statement (Ex.PW1/B) .

Thereafter, the FIR was registered in this case. She was taken to

SGM Hospital, Mangol Puri for her medical examination. Her
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 25 of 84 ::-

-:: 26 ::-

internal examination was also conducted by the doctor and her
blood sample as well as other samples were taken. The sealed

exhibits were taken into possession by the IO vide seizure memo

(Ex.PW1/C) . Before the doctor, she had stated the name of the

accused as Goldy but after her examination when copy of the MLC

was provided to her, she came to know that doctor had written the

name of the accused as Murli. She had informed W.Ct. Seema who

had taken her for her medical examination that name of Goldy has

been wrongly mentioned as Murli in the MLC and she told her that

she wanted to get the same corrected in the MLC. W.Ct. Seema did

not do anything in this regard and took her back to Police Station

Nihal Vihar. She told this fact to the IO SI Koyal but she stated that
now nothing can be done in this regard. She was taken by the

police to the place of occurrence i.e H.No. 779, Village Tihar, New

Delhi where the offence of rape took place with her for the first

time. Investigation Officer prepared site plan (Ex.PW1/D) at her

instance. She had taken the police to the house of accused in A-182,

gali no.7, Phase No-5, Pir Baba Road, Om Vihar, Uttam Nagar,

where accused was present and on her identification, he was

arrested by the Investigation Officer vide arrested memo

(Ex.PW1/E) and the personal search memo (Ex.PW1/F) . Her
statement was recorded by the learned Metropolitan Magistrate
after about 4 months of registration of FIR. One day prior to her
statement before the learned Metropolitan Magistrate, IO SI Koyal

along with one Inspector came to her residence stating that she was

to be produced before the learned Metropolitan Magistrate for her
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 26 of 84 ::-

-:: 27 ::-

statement. Next day, she came to Tis Hazari Courts where her
statement (Ex.PW1/G) was recorded by Ms. Ekta Gauba, the

learned Metropolitan Magistrate. She has prayed that accused

should be punished for the offence he has committed against her.

58. In her complaint (Ex.PW1/B) made on 30.04.2013, the prosecutrix

has stated that how she was introduced to the accused through her

friend Ms.Simran @ Tashu and her friend Mr.Ajay who was friend

of the accused. She has stated in February, 2009, when the

prosecutrix was taken to the house of the accused, she was

intoxicated and raped by him. Thereafter, as he promised to marry
her, he had physical relations with her till about 15 days earlier (till

15.04.2013-calculated). His mother told her that they are marrying

the accused to someone else and she should not interfere. She

contacted the accused and he told her that he cannot go against the

wishes of his parents.

59. In her statement under section 164 of the Cr.P.C. (Ex.PW1/G) , the

prosecutrix has stated similarly with some variations.

60. Before coming to the factual matrix, briefly the law regarding
physical relations on a false pretext of marriage is required to be
elaborated briefly.

61. In the case reported as Uday v. State of Karnataka, AIR 2003 SC

1639 , the Hon’ble Supreme Court has held as under :-

-:: 28 ::-

“It therefore, appears that the consensus of judicial opinion is
in favour of the view that the consent given by the prosecutrix
to sexual intercourse with a person with whom she is deeply
in love on a promise that he would marry her on a later date,
cannot be said to be given under a misconception of fact. A
false promise is not a fact within the meaning of the Code. We
are inclined to agree with this view, but we must add that
there is no strait jacket formula for determining whether
consent given by the prosecutrix to sexual intercourse is
voluntary, or whether it is given under a misconception of
fact. In the ultimate analysis, the tests laid done by the Courts
provide at best guidance to the judicial mind while
considering a question of consent, but the Court must, in
each case, consider the evidence before it and the
surrounding circumstances, before reaching a conclusion,
because each case has its own peculiar facts which may have
a bearing on the question whether the consent was voluntary,
or was given under a misconception of fact. It must also
weigh the evidence keeping in view the fact that the burden is
on the prosecution to prove each and every ingredient of the
offence, absence of consent being one of them.”

62. In the case reported as Sujit Ranjan v State, 2011 LawSuit (Del)

601 , the Hon’ble Delhi High Court has held that:

“Legal position which can be culled out from the judicial
pronouncements referred above is that the consent given by
the prosecutrix to have sexual intercourse with whom she is
in love, on a promise that he would marry her on a later date,
cannot be considered as given under “misconception of fact”.
Whether   consent   given   by   the   prosecutrix   to   sexual
intercourse is voluntary or whether it is given under “
misconception of fact ” depends on the facts of each case.
While considering the question of consent, the Court must
consider   the   evidence   before   it   and   the   surrounding
circumstances   before   reaching   a   conclusion.   Evidence
adduced by the prosecution has to be weighed keeping in
mind that the burden is on the prosecution to prove each and
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi                                                                                   -:: Page 28 of 84 ::-

-:: 29 ::-

every ingredient of the offence Prosecution must lead positive
evidence to give rise to inference beyond reasonable doubt
that accused had no intention to marry prosecutrix at all from
inception and that promise made was false to his knowledge.
The failure to keep the promise on a future uncertain date
may be on account of variety of reasons and could not always
amount to “misconception of fact” right from the inception.”

63. In the case reported as Deepak Gulati v State of Haryana, (2013)

7 SCC 675 : 2013 Law Suit (SC) 442 , the Hon’ble Supreme

Court has held that:

“Consent may be express or implied, coerced or misguided,
obtained willingly or through deceit. Consent is an act of
reason, accompanied by deliberation, the mind weighing, as
in a balance, the good and evil on each side. There is a clear
distinction between rape and consensual sex and in a case
like this, the court must very carefully examine whether the
accused had actually wanted to marry the victim, or had
malafide motives, and had made a false promise to this effect
only to satisfy his lust, as the latter falls within the ambit of
cheating or deception. There is a distinction between the mere
breach of a promise, and not fulfilling a false promise. Thus,
the court must examine whether there was made, at any early
stage a false promise of marriage by the accused ; and
whether the consent involved was given after wholly,
understanding the nature and consequences of sexual
indulgence. There may be a case where the prosecutrix agrees
to have sexual intercourse on account of her love and passion
for the accused, and not solely on account of mis-
representation made to her by the accused, or where an
accused on account of circumstances which he could not
have foreseen, or which were beyond his control, was unable
to marry her, despite having every intention to do so, such
cases must be treated differently. An accused can be convicted
for rape only if the court reaches a conclusion that the
intention of the accused was malafide, and that he had
clandestine motives. Hence, it is evident that there must be

-:: 30 ::-

adequate evidence to show that at the relevant time, i.e. at
initial stage itself, the accused had no intention whatsoever,
of keeping his promise to marry the victim. There may, of
course, be circumstances, when a person having the best of
intentions is unable to marry the victim owing to various
unavoidable circumstances. The “ failure to keep a promise
made with respect to a future uncertain date, due to reasons
that are not very clear from the evidence available, does not
always amount to misconception of fact. In order to come
within the meaning of the term misconception of fact, the fact
must have an immediate relevance.” Section 90 IPC cannot
be called into aid in such a situation, to pardon the act of a
girl in entirely, and fasten criminal liability on the other,
unless the court is assured of the fact that from the very
beginning, the accused had never really intended to marry
her.”
64. Thus, in Uday’s case (supra) and Deepak Gulati’s case (supra), the

Hon’ble Supreme Court laid down the law that if the prosecutrix is

matured to understand the significance and morality associated

with the act, she was consenting to and that she was conscious of

the fact that her marriage may not take place owing to various

considerations, including the caste factor and also that if it is

difficult to impute to the accused, knowledge of the fact that the

prosecutrix had consented as a consequence of a misconception of

fact, that had arisen from his promise to marry her and further that

if there is any evidence to prove conclusively, that the appellant
never intended to marry with the prosecutrix, the accused be given

benefit of doubt.

65. In the case reported as Kuldeep Tyagi v The State NCT of Delhi,

-:: 31 ::-

2013(2) JCC 840 , it was observed that it was never the case of the
prosecutrix that she ever insisted the accused to marry her. Thus, it

was not a case of refusal to marry, despite promise, hence, not

relevant.

66. In the judgment reported as Nikhil Parashar v. State of Delhi,

2010 (1) JCC 615 , it was observed as follows:

“If I take the view that sexual intercourse with a girl, in the
facts and circumstances such as in the present case, does not
amount to rape, it will result in unscrupulous and
mischievous persons, taking undue advantage of innocent
girls by promising marriage with them, without having any
intention to do so, re-assuring the girl and her family by
making the two families meet each other and formalize the
matter by ceremonies, such as an engagement, persuading the
girl to have sexual intercourse with him by making her
believe that he was definitely going to marry her and then
abandoning her, after robbing her of what is most dear to her.
A case where the girl agrees to have sexual intercourse on
account of her love and passion for the boy and not solely on
account of the misrepresentation made to her by the boy or a
case where a boy, on account of circumstances, which he
could not have foreseen or which are beyond his control, does
not marry her, despite having all good intentions to do so, has
to be treated differently from a case, such as the present one,
where the petitioner since the very inception had no intention
of marrying the prosecutrix to whom he was a complete
stranger before he met her to consider the proposal for
marriage with her.”

67. In the case reported as Karthi @ Karthick v State of Tamil

Nadu, Crl. Appeal No. 601 of 2008 decided on 01/07/2013, AIR

2013 SC 2645 , the facts were that the accused used to tease the

-:: 32 ::-

prosecutrix and one day finding her alone in her house committed
sexual intercourse forcibly and then promised to marry her and

requested that she should not disclose this fact to anybody.

Thereafter they both were engaged in consensual sex at different

places and in all these meeting the accused swore that he would

marry with the prosecutrix. However one day on 05.10.2003, both

the prosecutrix and accused gone in a temple where she requested

the accused to marry her but he refused and on his refusal, she

divulged the entire facts to her family members. Panchayat was

held in village and the accused was summoned there and persuade

to marry with prosecutrix but he refused to marry the prosecutrix

and then the prosecutrix lodged a report.

68. The Hon’ble Supreme Court after considering the case law laid

down, held that the first sexual intercourse was forceful and

thereafter the subsequent acts of sexual intercourse, were actions of

actively cheating her, by giving her the impression that he would

marry her. The occurrence at the Murugan temple, is of significant

importance, where he left the prosecutrix when he was asked to

marry her. Hence the court held that the sexual intercourse by the

accused with the prosecutrix was not consensual as obtaining
consent by exercising deceit, cannot be legitimate defence to
exculpate an accused.

69. Thus, on analyzing the law laid down by the Hon’ble Superior

Courts, it appears that the intention of the accused at the time of

-:: 33 ::-

entering into a relationship is to be seen by the Court as to if he
really intended to marry the prosecutrix or he merely made the

promise to get sexual favours from the prosecutrix. If the facts

suggest that the accused genuinely wished to marry prosecutrix but

it could not materialize due to reasons beyond his control, then in

such an event no offence could be made out. However, on the

contrary, if he had no intention to marry the prosecutrix since

beginning then his case would be squarely covered within the

ambit of offence under section 376 IPC. Prosecution must lead

positive evidence to give rise to inference beyond reasonable doubt

that accused had no intention to marry prosecutrix at all from

inception and that promise made was false to his knowledge. The
failure to keep the promise on a future uncertain date may be on

account of variety of reasons and could not always amount to

“misconception of fact” right from the inception.”

70. Turning to the present case, on carefully scrutiny of her different

statements, it transpires that the prosecutrix has made several
improvements, contradictions and inconsistencies in her evidence

and her deposition is contrary to her earlier statements. Her cross

examination shall be discussed later. Some of the improvements,

contradictions and inconsistencies in the different statements of the

prosecutix are tabulated below:

Complaint-          MLC        of      Statement          Examination
Ex.PW1/B            prosecutrix-       under              in chief
Ex.PW6/A           section   164
Cr.P.C.-
Ex.PW1/G
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi                                                                                   -:: Page 33 of 84 ::-

-:: 34 ::-

Name        of      Name       of      Name       of      Name         of
accused   is        accused   is       accused   is       accused      is
Goldi               Murli              Goldi              Upender   Dutt
Sharma   @
Goldi
In   February       ……..               Accused            In   February
2009, accused                          called her to      2009, accused
phoned   her                           meet       his     phoned   her
and asked her                          family             and asked her
to come to his                                            to come to his
house at WZ-                                              house at WZ-
779,   Tihar                                              779,      Tihar
Village, Near                                             Village,   Near
Tilak   Nagar                                             Tilak   Nagar
for   meeting                                             for meeting his
his parents.                                              parents.
His   father        ……..               She   reached      From   Tilak
liked     her.                         his   house.       Nagar,      the
Accused                                She met his        accused   had
asked to wait                          father   who       picked her to
till his mother                        had paralysis.     take her to his
returns.                               His   mother       residence. She
was   not   at     met his father
home.              in his house.
Accused told       When        she
him that he        touched   his
liked her and      feet,   he   had
wanted   to        given her his
marry   her.       blessings.
His   father       Accused   told
gave her his       him   that   he
blessings.         liked her and
wanted       to
marry   her to
which       his
father   replied
that   even   he
approved   of
her.

-:: 35 ::-

……..                ……..               ……..               However,   he
also said that
as   his   wife,
mother of the
accused,   was
not at home,
they   should
wait for her to
return.
……..                ……..               Accused            His      father
offered   to       enquired about
show      his      her   residence
house to her       and then, the
and took her       accused
to the other       offered      to
room   where       show his house
they had tea       to her.
and biscuits.

……..                ……..               ……..               He told her to
sit   in   the
second room.
Accused             ……..               Accused            Then   he   left
brought   tea                          went to make       the room and
and   biscuits                         tea   for   her    returned   with
which   they                           while she sat      tea and biscuit.
had.                                   with      his      They had tea
father.            and biscuit.
……..                ……..               Accused            She saw that
brought   tea      he had given
and gave one       one cup of tea
cup of tea to      to   his   father
his father.        also   in   the
other room.

-:: 36 ::-

After               ……..               Accused            After
consuming                              brought            consuming tea,
tea,       she                         another   cup      she   started
started feeling                        for   himself.     feeling
heaviness   in                         They had tea       heaviness   in
her head (sir                          and biscuits.      her head (sir
bhaari      ho                         After              bhaari      ho
gaya)       on                         consuming          gaya)       on
which   the                            tea       and      which       the
accused   had                          biscuits,   she    accused   had
told her that                          felt heaviness     told   her   that
she       was                          in her head        she        was
coming   from                          and       felt     coming   from
outside,   she                         sleepy.            outside,   she
must be tired                          accused   had      must be tired
and asked her                          told her that      and asked her
to lie down on                         she       was      to lie down on
the bed till his                       coming from        the bed till his
mother                                 outside,   she     mother
returned. She                          must rest till     returned.
slept there.                           his   mother       Thereafter,   as
returned.          she   became
sleepy,   she
slept.
When   she          ……..               When   she         When        she
woke up, she                           woke up, she       woke up, she
found that she                         found              found that she
did not have                           accused            did   not have
any clothes on                         wearing only       any clothes on
her body.                              underwear          her       body.
and she was        Accused
not   wearing      Upender   also
any clothes.       did   not have
any clothes on
his body.
He        was       ……..               Accused was         He was lying
touching   her                         touching her         besides her
private parts.                         breast   and           and was
Accused                                private parts.      touching her
forcibly   had                         She   covered       private parts
physical                               herself with a      (private parts
relations with                         pillow.   He        ke saath ched-
her   assuring                         removed   it       chaad kar raha
her         of                         and   raped        tha). When she
marriage.                              her.      She       asked him to

-:: 37 ::-

could   not          stop, he told
shout as his        her that as his
father was in         father has
the     other       consented for
room.              their marriage,
they could
have physical
relations.
Accused
forcibly had
physical
relations with
her (mere
saath
jabardasti
sharirik
sambandh
banai).
……..                ……..               Accused took       Accused   was
out       her      not   returning
clothes from       her clothes and
under the bed      it   was   only
and   gave         when        she
them to her.       repeatedly
requested him
that   he   took
out her clothes
from under the
bed and gave
them   to   her.
She wore her
clothes.
Accused came
up   to   Tilak
Nagar with her
and   returned
saying that his
father     was
alone at home.

-:: 38 ::-

Accused
assured   her
of   marriage
saying   that
his father had
given   his
assent.
……..                ……..               Then   she         ……..
returned
home.   She
was sad and
did not go to
her office for
two days. On
the third day,
when   she
went       to
office,
accused came
there and met
her. He again
assured   her
of   marriage.
After   few
days,     his
mother   met
her       and
accused told
his   mother
that       he
wanted   to
marry   her.
They started
visiting each
other’s
houses.
They      had       Alleged            They   had         For about 4-5
physical            history   of       physical           years,      the
relations   till    sexual             relations   till   accused
15 days prior       intercourse        first week of      continued   to
to         the      with      the      April,   2013      have   physical
complaint i.e.      consent of the     on        the      relations   with
till                victim   since     assurance of       her saying that
15.04.2013          five years.        marriage           he       would

-:: 39 ::-

(calculated).                          given      by      marry      her.
accused.           Accused
repeatedly
promised   to
marry her after
which he had
physical
relationship
with her.
……..                Last   episode     ……..               This continued
of   sexual                           up   till   April
intercourse                           2013.
10 days back.
……..                ……..               ……..               In   between,
she   had   met
Ms.Uma,
mother of the
accused,
several   times
and   she   had
also approved
of the marriage
between   her
and         the
accused.
……..                ……..               In   February,     ……..
2012 accused
took her to a
temple   in
Vikas   Puri
and filled the
parting of her
hair.
On                  ……..               On                 On
21.04.2014,                            21.04.2014,        21.04.2013,
mother   of                            accused            the mother of
accused                                phoned   her       the   accused
phoned   her                           saying   that      telephoned her
saying   that                          his   mother       and   told   her
they   were                            wanted   to        that   she   had
getting   the                          talk to her. In    got         the
accused                                evening,   his     accused
married   else                         mother             engaged   to
where and she                          phoned   her       some   other
should   not                           and told her       girl. She also
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi                                                                                   -:: Page 39 of 84 ::-

-:: 40 ::-

interfere.                             that     they      told   her   that
were getting       she should not
the   accused      telephone   or
married   else     contact   the
where   and        accused.   She
she   should       enquired from
stop phoning       her   whether
him.   The         anything   was
other   girl’s     wrong.   She
family      is     told her that as
giving dowry       her father had
which   her        expired,   they
family cannot      would not be
give.   The        able   to   give
accused   had      her anything in
given   his        marriage   and
acceptance         also that   she
for       that     was of a lower
marriage and       caste.
he   did   not
want       to
marry   the
prosecutrix.
She was also
threatened to
be   defamed
or killed.
She talked to       ……..               ……..               She telephoned
accused   and                                             the   accused
he   told   her                                           several   times
that he cannot                                            but he did not
go against the                                            take her calls.
wishes of his                                             Accused   sent
parents.                                                  her one SMS
that   he   was
busy. She has
deposed   her
mobile number
(number
mentioned   in
file       and
withheld   to
protect   the
identity of the
prosecutrix).
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi                                                                                   -:: Page 40 of 84 ::-

-:: 41 ::-

The   mobile
number of the
accused      is
8800557997.
He telephoned
her   in   the
evening   and
told her that he
could not do
anything   but
he would try to
talk   to   his
mother.
Thereafter,
despite   her
repeated
attempts   at
contacting him
on   telephone,
he did not take
her calls and
did not meet
her.

71. It can be seen from the above discussion and the above detailed

table that the prosecutrix has given different and contradictory
versions about practically every aspect of the case.

72. One of the catastrophic contradictions is regarding the name of the

accused. In the MLC (Ex.PW6/A) , the prosecutrix has given the

name of the culprit as Murli while everywhere else she has said

Goldi. She has tried to justify the same by deposing in her

examination in chief that “Before the doctor I had stated the name

of the accused as Goldy but after my examination when copy of

the MLC was provided to me I came to know that doctor had

written the name of the accused as Murli. I had informed WCT

-:: 42 ::-

Seema who had taken me for my medical examination that name
of Goldy has been wrongly mentioned as Murli in the MLC and I

told her I wanted to get the same corrected in the MLC. WCT

Seema did not do anything in this regard and took back to PS

Nihal Vihar. I told this fact to the IO SI Koyal but she stated that

now nothing can be done in this regard.” However, no such

deposition has been made by IO SI Koyal (PW10). The prosecutrix

has not made any complaint to any authority that the doctor has

written the name of the accused wrongly. The MLC was prepared

on 30.04.2013 and the prosecutrix gave her statement under section

164 of the Cr.P.C. (Ex.PW1/G) on 25.07.2013 but she did not say

anything or make a complaint before the learned Metropolitan
Magistrate regarding the name of the accused being wrong in the

MLC. No explanation is coming forth from the prosecution

regarding this contradiction due to which the prosecution version

appears doubtful.

73. The prosecutrix has deposed that “I went to PS Nihal Vihar on

26.04.2013 and made a written complaint against the accused

which was in my handwriting. Copy of the same is

Ex.PW1/A………..I telephoned the Media person of Sahara
News Channel and narrated the entire incident to them stating
that police was not taking any action on my complaint and I was
present at PS Nihal Vihar. After some time two media persons

came to PS Nihal Vihar and they enquired from the police

regarding the action taken on my complaint. Thereafter, police
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 42 of 84 ::-

-:: 43 ::-

recorded a statement without conducting any enquiries from me
and asked me to sign on the same stating that the contents of my

application dt. 26.04.2013 have been reproduced in this statement

and thereafter I signed the said statement which is Ex.PW1/B,

which bears my signature at point A. Thereafter, the FIR was

registered in this case.” However, the original of Ex.PW1/A was

not produced by the prosecution nor the IO SI Koyal (PW10) has

deposed regarding the same. The media persons on whose

intervention the FIR was registered have also not been cited as

witnesses nor produced and examined by the prosecution. The

same shatters the veracity of the testimony of the prosecutrix.

74. The prosecutrix has stated in her statement under section 164 of the

Cr.P.C. (Ex.PW1/G) that “In February, 2012 accused took her to

a temple in Vikas Puri and filled the parting of her hair.” But this

fact is not mentioned in her any other statement. No explanation

regarding the same is coming forth from the prosecution which

makes her version doubtful.

75. The prosecutrix has deposed in her cross examination that “I did

not make any complaint to anyone on way back from the house
of the accused to my residence in February, 2009 after the
incident nor I had raised any alarm nor sought help from any
one. I had myself returned to my house.” No explanation is

coming forth from the prosecution regarding this deposition as why

the porsecutrix did not complain to the father of the accused, her
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 43 of 84 ::-

-:: 44 ::-

own family, anyone she may have met on way back to her house or
the police, if she was aggrieved due to the conduct of the accused.

The same makes the prosecution version appears doubtful.

76. The prosecutrix has deposed in her examination in chief that “I

saw that he had given one cup of tea to his father also in the

other room. Accused had brought two cups of tea. We had tea and

biscuit.” Apparently, the tea was also given by the accused to his

father and tea and biscuits were consumed by them-accused and

prosecutrix. Then how only she was intoxicated has not been

explained by the prosecution. He had heaviness in her head and

slept but neither the accused nor his father who had consumed the
same tea and biscuits were not affected has not been explained by

the prosecution.

77. The prosecutrix has deposed in her cross examination that “I was

working in February, 2009 in a company in the name of Vipes

which was in Meera Bagh. It was neither a Sunday nor any

festive occasion on the day when I had gone to the house of

accused in February, 2009. I have not taken any leave from my

office between January and March 2009.” The fact that the
prosecutrix after the alleged incident of February, 2009 continued
to work normally indicates that she was comfortable with the
arrangement between the accused and herself. She has also not

taken leave from her office shows that she herself was keen to go to

the house of the accused.
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 44 of 84 ::-

-:: 45 ::-

78. A startling fact is revealed in the cross examination of the

porsecutrix. She has deposed that “In December, 2009 I had gone

with the accused to Shimla and had stayed in a hotel for a day. I

had not told this fact to the police in my statement. Ms. Simran

had also accompanied me to Shimla with her friend Mr. Ajay. I

had not told to the police or to any family member that accused

had taken me forcibly to Shimla where he had forcibly

established physical relations with me. Again said there were no

physical relations between me and accused at Shimla.” She has

concealed this fact from the police, learned Metropolitan

Magistrate and this Court and only revealed about the same when
she was cross examined. It appears that she had willingly gone with

the accused to Shimla. She has also not mentioned about her trip to

Shimla with the accused in her complaint, statement under section

164 of the Cr.P.C. and examination in chief and no explanation

regarding the same is coming forth from the prosecution. It appears

that the prosecutrix has made a conscious attempt to conceal this

fact which makes her version doubtful.

79. According to the prosecutrix, she had talked frequently to the
accused on phone and also to his mother who had told her on phone
about the accused marrying another girl. However, neither the
phone was seized nor the CDRs of the mobile phones of the

accused and the prosecutrix were obtained during investigation.

The prosecutrix has deposed that “My phone was not seized by the
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 45 of 84 ::-

-:: 46 ::-

police Vol. The IO had told me that she would keep my phone
under surveillance.” This fact also makes the prosecution version

doubtful.

80. In her cross examination, the prosecutrix has deposed that “In the

month of March, 2009 when I had talked to the mother of the

accused and had later met her, I had told her on both the

occasion that the accused had physical relations with me in

February, 2009.” No explanation is coming forth from the

prosecution regarding not disclosing this fact in her earlier

statements and it appears that the prosecutrix has made a conscious

attempt to conceal this fact which makes her version doubtful.

81. In her cross examination, the prosecutrix has deposed that “The

number of the mother of the accused was fed in my mobile and

my mother also used to talk to her.” However, neither the CDRs of

the mobile phone of the prosecutrix have been produced nor the

mother of the prosecutrix has been associated in this case.

82. In her cross examination, the prosecutrix has deposed that “I did

incident of rape has occurred with the prosecutrix and she does not

make any complaint to any authority, the same makes her version
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 46 of 84 ::-

-:: 47 ::-

doubtful.

83. In her cross examination, the prosecutrix has deposed that “I did

not make any complaint to any authority against the accused

between the year 2009 and 2013 prior to the lodging of the

present case.” The prosecutrix has been continuously raped on a

false promise of marriage since February, 2009 till April, 2013 but

she preferred to remain silent about it and not make any complaint

to any authority. No explanation is coming forth from the

prosecution regarding the same which makes her version doubtful.

84. In her cross examination, the prosecutrix has deposed that “I do
not remember the exact date and time but it was summer season

of the year 2009 when I had told my mother and my friends that

the accused and I were going to get married and it was after the

accused had proposed marriage to me. In February, 2009 I had

told the father of the accused that accused and I were going to

get married.” It is an admitted fact that the families of the

prosecutrix and the accused had not met to discuss their marriage.

She has stated that her mother had talked to the mother of the

accused on phone which is not proved. For more than four years
i.e. w.e.f. February, 2009 to April, 2013, if there was a promise to
marry by the accused to the prosecutrix, then apparently no action
was taken on the same nor the families had met nor any date of the

marriage was fixed. All these facts throw a shadow of doubt on the

prosecution version.
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 47 of 84 ::-

-:: 48 ::-

85. The prosecutrix has deposed that “On the day of Holi in 2014 I

had telephoned the accused.” Giving explanation that “I was

receiving the calls from the friends of the accused including one

Mr. Ajay number of times for finishing this case so I had called

the accused .” The prosecutrix calling the accused during the trial

of this case shows her inclination towards him even then. It can be

seen that due to her love for the accused, the prosecutrix wants to

marry the accused and her desperation is evident when she has

contacted him during trial of this case. Apparently, it is a case of

one sided love of the prosecutrix which has not been reciprocated.

86. The prosecutrix was fully aware that she had taken of risk of

having physical relations with the accused without his marring her.

She was fully aware of the pros and cons of the act being educated

and mature.

87. The above mentioned overwhelming contradictions and glaring

inconsistencies in the evidence of the prosecutrix and the other

statements of the porsecutrix cannot be ignored. The veracity of the

testimony of the prosecutrix stands shattered.

88. Prosecutrix a consenting party and enjoyed the company of the

accused on her own. If a full grown girl consents to act of sexual
intercourse on promise to marry and continues to indulge in such

activity, it is act of promiscuity on her part and not an act induced

-:: 49 ::-

by misconception of fact.

89. It appears that the prosecutrix despite knowing about all the pros

and cons that the accused has not married her after the acquittal in

the first case, she still had physical relations with him. She

apparently took this step at her own risk and peril. It may be as she

was in love with him and was desperate to marry him that such a

major step was taken by her. This fact clearly indicates that the

prosecutrix was a consenting party. It also transpires from the

evidence of the prosecutrix that she was phoning him, having

physical relations with him, and this indicates that she herself was

interested in the physical relations with the accused. It appears that
the prosecutrix was aware of the acts she was indulging in and she

being a major surely knew about the morality and complications

attached to the act and hence the accused cannot be held liable.

90. It can be seen from the above table that the prosecutrix has made

several contradictions in her different statements and the

prosecution has not been able to explain or justify them.

91. Here, it may be mentioned that it is important to understand what

consent implies and what is consent on misconception of facts or

misrepresentation.

92. An argument has been raised by the Additional Public Prosecutor

that the accused on the pretext of love and promise to marry

-:: 50 ::-

established a physical relationship with the prosecutrix which
amounts to rape as this is obtaining the consent of the prosecutrix

by fraud and incitement which neither voluntary nor free. Had the

prosecutrix known that the accused would not marry her and he is

already married, she would not established physical relations with

him. There has to be unequivocal consent but the consent of the

prosecutrix was taken by misrepresentation amounting to breach of

trust.

93. On the other hand, it had argued by the counsel for the accused that

the accused and the prosecutrix did not have any physical relations

and assuming that the prosecutrix had physical relationship with

the accused, it was with her free consent and will despite knowing

that he will not marry her.

94. The crucial expression in section 375 of the IPC which defines rape

as against her will. It seems to connote that the offending act was

despite resistance and opposition of the woman. IPC does not

define consent in positive terms. But what cannot be regarded as

consent is explained in Section 90 which reads as follows:

“Consent given firstly under fear of injury and secondly
under a misconception of fact is not consent at all.”

95. Jowitts Dictionary on English Law, Words and Phrases,

Permanent Edn. explains “consent” as follows:

“Consent supposes three things a physical power, a mental
power and a free and serious use of them. Hence it is that if
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 50 of 84 ::-

-:: 51 ::-

consent is obtained by intimidation, force, meditated
imposition, circumvention, surprise or undue influence, it is
to be treated as a delusion, and not as a deliberate and free
act of mind.”

96. In Words and Phrases, Permanent Edn., Vol.8-A , the following

passages culled out from certain old decisions of the American

Courts are found:

“…..adult females understanding of nature and consequences
of sexual act must be intelligent understanding to constitute
consent.”

97. Here, it would be necessary to mention that in the case reported as
Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC

(Cri) 1448 , it has been observed that:

“The failure to keep the promise at a future uncertain date
due to reasons not very clear on the evidence does not always
amount to a misconception of fact at the inception of the act
itself. In order to come within the meaning of misconception
of fact, the fact must have an immediate relevance. The
matter would have been different if the consent was obtained
by creating a belief that they were already married. In such a
case the consent could be said to result from a misconception
of fact. But here the fact alleged is a promise to marry we do
not know when. If a full grown girl consents to an act of
sexual intercourse on a promise of marriage and continues to
indulge in such activity until she becomes pregnant it is an
act of promiscuity on her part and not an act induced by
misconception of fact. Section 90 IPC cannot be called in aid
in such a case unless the Court can be assured that from the
very inception the accused never really intended to marry
her.”
98. Similar observations have also been made in the judgments

-:: 52 ::-

reported as Pradeep Kumar Verma v. State of Bihar & anr., AIR
2007 SC 3059; Jyotsana Kora v. The State of West Bengal and

anr., Manu/WB/0364/2010; Deelip Singh alias Dilip Kuamr v.

State of Bihar, (2005) 1 SCC 88; Uday v. State of Karnataka,

(2003) 4 SCC 46 and Naresh Kumar v. State (Govt. of NCT)

Delhi, 2012 (7) LRC 156 (Del) .

99. When a girl, a major, willfully has physical relations with the

accused on the promise to marry on an uncertain date, it cannot be

said that it is a misconception of fact or that her consent has been

obtained by fraud. It is clear that the prosecutrix accepted whatever

physical relationship was there with her free consent.

100. In the present case, it is clear that that the consent of the

prosecutrix on the promise to marry cannot be said to be under a

misconception of fact as she was a major at the time of the alleged

incident and intelligent enough to understand the consequences of

establishing physical relationship with the accused. Mere promise

to marry on an uncertain date does not indicate that the accused has

obtained her consent for the physical relationship by fraud or

misrepresentation. Consent given by the prosecutrix to have

physical relationship with whom she is in love, on a promise that

he would marry her on a later date, cannot be considered as given

under misconception of fact.

101. Thus, sexual intercourse by a man with a woman without her
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 52 of 84 ::-

-:: 53 ::-

consent will constitute the offence of rape. We have to examine as
to whether in the present case, the accused is guilty of the act of

sexual intercourse with the prosecutrix 'against her consent'. How is

'consent' defined? Section 90 of the IPC defines consent known to

be given under 'fear or misconception' which reads as under:-

"Consent known to be given under fear or misconception -
A consent is not such consent as it intended by any section of
this Code, if the consent is given by a person under fear of
injury, or under a misconception of fact, and if the person
doing the act knows, or has reason to believe, that the consent
was given in consequence of such fear or misconception.”

102. Thus, if consent is given by the prosecutrix under a

misconception of fact, it is vitiated. It cannot be said that the

alleged consent said to have obtained by the accused was not

voluntary consent and the accused indulged in sexual intercourse

with the prosecutrix by misconstruing to her his true intentions. It

is not borne out from the evidence that the accused only wanted to

indulge in sexual intercourse with her and was under no intention

of actually marrying the prosecutrix.

103. This kind of consent taken by the accused with clear intention

not to fulfill the promise and persuaded the girl to believe that he is

going to marry her and obtained her consent for the sexual

intercourse under total misconception, cannot be treated to be a

consent.

104. Section 114-A of the Indian Evidence Act, 1872 provides, that

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if the prosecutrix deposes that she did not give her consent, then the
Court shall presume that she did not in fact, give such consent. The

facts of the instant case do not warrant that the provisions of

Section 114-A of the Act 1872 be pressed into service. Hence, the

sole question involved herein is whether her consent had been

obtained on the false promise of marriage. Thus, the provisions of

Sections 417, 375 and 376 IPC have to be taken into consideration,

alongwith the provisions of Section 90 of the Act 1872. Section 90

of the Act 1872 provides, that any consent given under a

misconception of fact, would not be considered as valid consent, so

far as the provisions of Section 375 IPC are concerned, and thus,

such a physical relationship would tantamount to committing rape.

105. The judgments reported as Uday v. State of Karnataka, AIR

2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar,

AIR 2005 SC 203;       Yedla Srinivasa Rao v. State of A.P.,      (2006)
11 SCC 615; and       Pradeep Kumar Verma v. State of Bihar &
Anr., AIR     2007 SC 3059      , observe that in the event that the

accused’s promise is not false and has not been made with the sole

intention to seduce the prosecutrix to indulge in sexual acts, such

an act (s) would not amount to rape. Thus, the same would only

hold that where the prosecutrix, under a misconception of fact to

the extent that the accused is likely to marry her, submits to the lust

of the accused, such a fraudulent act cannot be said to be

consensual, so far as the offence of the accused is concerned.

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106. Consent may be express or implied, coerced or misguided,
obtained willingly or through deceit. Consent is an act of reason,

accompanied by deliberation, the mind weighing, as in a balance,

the good and evil on each side. There is a clear distinction between

rape and consensual sex and in a case like this, the court must very

carefully examine whether the accused had actually wanted to

marry the victim, or had mala fide motives, and had made a false

promise to this effect only to satisfy his lust, as the latter falls

within the ambit of cheating or deception. There is a distinction

between the mere breach of a promise, and not fulfilling a false

promise. Thus, the court must examine whether there was made, at

an early stage a false promise of marriage by the accused; and
whether the consent involved was given after wholly,

understanding the nature and consequences of sexual indulgence.

There may be a case where the prosecutrix agrees to have sexual

intercourse on account of her love and passion for the accused, and

not solely on account of mis-representation made to her by the

accused, or where an accused on account of circumstances which

he could not have foreseen, or which were beyond his control, was

unable to marry her, despite having every intention to do so. Such

cases must be treated differently. An accused can be convicted for
rape only if the Court reaches a conclusion that the intention of the
accused was mala fide, and that he had clandestine motives.

107. Turning back to the case in hand, it may be mentioned here

that the prosecution has not produced any proof of the prosecutrix
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 55 of 84 ::-

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being administered any intoxicant at the time of the alleged first
incident. Except for a bare assertion, there is nothing to substantiate

this allegation.

108. It is also clear that the prosecutrix was not confined by the

accused and was willingly with him in February, 2009 in his house

where his father was in another room, as she had neither not

shouted for help nor raised any alarm nor tried to escape nor

complained to his father immediately after the alleged incident or

even later. She had not called the police nor made any complaint to

the neighbours.

109. Where the evidence of the prosecutrix is found suffering from

serious infirmities, contradictions and inconsistencies with other

material and there being no forensic or medical evidence, then no

reliance can be placed upon her evidence. Onus is always on the

prosecution to prove and accused is entitled to the benefit of

reasonable doubt. Case of the prosecution is to be proved beyond

reasonable doubt and cannot take support from weakness of case of

defence. In case the evidence is read in totality and story projected

by the prosecutrix is found to be improbable, prosecution case
becomes liable to be rejected. If evidence of prosecutrix is read and
considered in totality of circumstances along with other evidence
on record, in which offence is alleged to have been committed, her

deposition does not inspire confidence. Prosecution has not

disclosed true genesis of crime. (Reliance can be placed upon the
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 56 of 84 ::-

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judgment of the hon’ble Supreme Court reported as Narender
Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC) .

110. If one integral part of the story put forth by a witness-

prosecutrix was not believable, then entire case fails. Where a

witness makes two inconsistent statements in evidence either at one

stage or both stages, testimony of such witness becomes unreliable
and unworthy of credence and in the absence of special

circumstances, no conviction can be based on such evidence.

(Reliance can be placed upon the judgment of the hon’ble Delhi

High Court reported as Ashok Narang v. State, 2012 (2) LRC 287

(Del) .

111. The fact that the prosecutix did not make any complaint

immediately after the alleged incident of February, 2009 and

thereafter. The same also points towards the prosecution case not

being true.

112. The Hon’ble Supreme Court had observed in the case of
Deelip Singh Alias Dilip Kumar vs. State of Bihar , AIR 2005 SC

203 that where sexual intercourse took place between parties on

promise of marriage by accused and the statement of the

prosecutrix revealing that she was fully aware of moral quality of

act and inherent risk involved, she had considered pros and cons of

act and the prospect of marriage proposal not materializing had

also entered her mind. The participation of prosecutrix in sexual act
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 57 of 84 ::-

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could be said to be voluntary and deliberate.
These statements do indicate that she was fully aware of the
moral quality of the act and the inherent risk involved and
that she considered the pros and cons of the act. The
prospect of the marriage proposal not materializing had also
entered her mind. Thus her own evidence reveals that she
took a conscious decision after active application of mind to
the things that were happening. Incidentally, we may point
out that the awareness of the prosecutrix that the marriage
may not take place at all in view of the caste barrier was an
important factor that weighed with the learned Judges in
Uday’s case in holding that her participation in the sexual act
was voluntary and deliberate.”

113. It is clear from the record that the prosecutrix is now 29 years

old and working as a beautician (as mentioned in her particulars

during evidence). She is a mature woman. The prosecutrix was

fully aware that she had taken of risk of having physical relations

with the accused without his marring her. She was fully aware of

the pros and cons of the act being working and mature.

114. The above mentioned overwhelming contradictions and
glaring inconsistencies in the evidence of the prosecutrix and the

other statements of the porsecutrix cannot be ignored. The veracity

of the testimony of the prosecutrix stands shattered. Consequently,

no inference can be drawn that the accused is guilty of the charged

offences as the prosecutrix has made different inconsistent

statements due to which her testimony becomes unreliable and

unworthy of credence.

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115. Prosecutrix a consenting party and enjoyed the company of the
accused on her own for four years w.e.f. February, 2009 to April,

2013. If a full grown girl consents to act of sexual intercourse on

promise to marry and continues to indulge in such activity, it is act

of promiscuity on her part and not an act induced by misconception

of fact.

116. It appears that the prosecutrix despite knowing about all the

pros and cons that the accused has not married her, she still had

physical relations with him. She apparently took this step at her

own risk and peril. It may be as she was in love with him and was

desperate to marry him that such a major step was taken by her.

117. Despite knowing everything, the prosecutrix still preferred to

be with the accused and did not raise any objection or resistance.

This fact clearly indicates that the prosecutrix was a consenting

party. It also transpires from the evidence of the prosecutrix that

she went to Shimla with him and this indicates that she herself was

interested in the physical relations with the accused. It appears that

the prosecutrix was aware of the acts she was indulging in and she

being a major surely knew about the morality and complications

attached to the act and hence the accused cannot be held liable.

118. The prosecution has failed to furnish any explanation in

respect of the contradictions in the statements of the prosecutrix.

The inherent contradictions strike at the very root of the
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 59 of 84 ::-

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prosecution story making it unbelievable and improbable. In the
instant case, the evidence and different statements of the

victim/prosecutrix suffers from such infirmities and the

probabilities due to which the prosecution has come out with a

story, which is highly improbable. The overwhelming

contradictions are too major to be ignored and they strike a fatal

blow to the prosecution version.

119. Where the evidence of the prosecutrix is found suffering from

serious infirmities and inconsistencies with other material,

prosecutrix making deliberate improvements on material points

with a view to rule out consent on her part and there being no

injury on her person even though her version may be otherwise,

then no reliance can be placed upon her evidence. Onus is always

on the prosecution to prove and accused is entitled to the benefit of

reasonable doubt. Case of the prosecution is to be proved beyond

reasonable doubt and cannot take support from weakness of case of

defence. In case the evidence is read in totality and story projected
by the prosecutrix is found to be improbable, prosecution case

becomes liable to be rejected. Prosecutrix knew the accused prior

to the incident. If evidence of prosecutrix is read and considered in

totality of circumstances along with other evidence on record, in

which offence is alleged to have been committed, her deposition

does not inspire confidence. Prosecution has not disclosed true

genesis of crime.

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120. It is a case of heinous crime of rape, which carries grave
implication for the accused, if convicted. Therefore, for convicting

any person for the said offence, the degree of proof has to be that of

a high standard and not mere possibility of committing the said

offence. In a criminal case, the prosecution has to prove its case

beyond reasonable doubt against the accused and not merely dwell

upon the shortcoming of defence.

121. Consequently, no inference can be drawn that the accused is

guilty of the charged offence under section 328, 376 read with

section 417 of the IPC as the prosecutrix has made inconsistent

statements due to which her testimony becomes unreliable and

unworthy of credence. There is no material on record that the

prosecutrix was forced into having physical relations by the

accused by intoxicating her and later on a false promise of

marriage.

122. It appears that the prosecutrix had willfully remained with the

accused and had physical relationship, if any, with him being a

consenting party and that the accused does not appear to have

committed any offence.

123. The prosecutrix is an adult. She is sufficiently intelligent to

understand the significance and moral quality of the act she was

consenting to, having friendship with the accused and having no

grievance about her conduct and behaviour at any time and having
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 61 of 84 ::-

-:: 62 ::-

established physical relationship number of times with her consent
and without any resistance. She never informed her family about

her relationship with the accused or his offer to marry her. Her

versions are inconsistent and contradictory. All the surrounding

circumstances reveal that the prosecutrix established physical

relationship with the accused with her free consent and in such a

situation, there is nothing on the judicial record to show that the

accused has ever committed any offence, as alleged.

124. Therefore, there is no force is the contention of the Additional

Public Prosecutor that the prosecutrix was raped by the accused

after intoxicating her and raped on a false promise of marriage as

her consent is not free.

125. The hon’ble Supreme Court had an opportunity to discuss as

to why discrepancies arise in the statements of witnesses. In the

judgment reported as Bharwada Boginbhai Hijri Bhai v. State of

Gujarat, 1983 (CRI) GJX 0252 SC , the Supreme Court pointed

out the following reasons as to why the discrepancies,

contradictions and improvements occur in the testimonies of the

witnesses.

a. By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an
incident. It is not as if a video tape is replayed on the
mental screen.
b. Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the
occurrence which so often has an element of surprise. The

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mental faculties therefore cannot be expected to be attuned
to absorb the details.
c. The powers of observation differ from person to person.
What one may notice, another may not. An object or
movement might emboss its image on one person's mind,
whereas it might go unnoticed on the part of another.
d. By   and   large   people   cannot   accurately   recall   a
conversation and reproduce the very words used by them or
heard by them. They can only recall the main purport of
the conversation. It is unrealistic to expect a witness to be a
human tape recorder.
e. In regard to exact time of an incident, or the time duration
of an occurrence, usually people make their estimates by
guess work on the spur of the moment at the time of
interrogation. And one cannot expect people to make very
precise or reliable estimates in such matters. Again, it
depends on the time sense of individuals which varies from
person to person.
f. Ordinarily   a   witness   cannot   be   expected   to   recall
accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to get
confused, or mixed up when interrogated lateron.
g. A witness, though wholly truthful, is liable to be overawed
by   the   court   atmosphere   and   the   piercing   cross-
examination made by counsel and out of nervousness mix
up facts, get confused regarding sequence of events, of fill
up details from imagination on the spur of the moment.
The subconscious mind of the witness sometimes so
operates on account of the fear of looking foolish or being
disbelieved through the witness is giving a truthful and
honest account of the occurrence witnessed by him
perhaps it is a sort of psychological defence mechanism
activated on the moment.

126. The prosecution has failed to furnish any explanation in

respect of the contradictions in the statements of the prosecutrix.

The inherent contradictions strike at the very root of the

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prosecution story making it unbelievable and improbable. In the
instant case, the evidence and different statements of the

victim/prosecutrix suffers from such infirmities and the

probabilities due to which the prosecution has come out with a

story, which is highly improbable. The overwhelming

contradictions are too major to be ignored and they strike a fatal

blow to the prosecution version. In fact what emerges from the

evidence of the prosecutrix is she has leveled false allegations of

rape against the accused.

127. In the light of the aforesaid nature of deposition of the

prosecutrix, PW1, who happens to be the material witnesses, I am
of the considered view that her deposition cannot be treated as

trustworthy and reliable. Reliance can also be placed upon the

judgment reported as Suraj Mal versus The State (Delhi Admn.),

AIR 1979 S.C. 1408 , wherein it has been observed by the Supreme

Court as:

“Where witness make two inconsistent statements in their
evidence either at one stage or at two stages, the testimony of
such witnesses becomes unreliable and unworthy of credence
and in the absence of special circumstances no conviction can
be based on the evidence of such witness.”

128. Similar view was also taken in the judgment reported as

Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C.

Cases 487 .

-:: 65 ::-

129. Consequently, no inference can be drawn that the accused is
guilty of the charged offences as the prosecutrix has made different

inconsistent statements due to which her testimony becomes

unreliable and unworthy of credence.

130. Consequently, no inference can be drawn that the accused is

guilty of the charged offences as the prosecutrix has made
inconsistent statements due to which her testimony becomes

unreliable and unworthy of credence. There is no material on

record that the prosecutrix was forced by the accused.

131. This brings me to the final question as to whether it was she

was raped by the accused, raped on a false promise of marriage and
made to undergo a semblance of ceremony of marriage. In this

regard it is no doubt true that in her statement before this Court she

has stated that she had physical relations with the accused on a

false pretext of marriage but there are several contradictions in her

statements which remain unexplained and indicate that no such

offence was ever committed by the accused.

132. In the judgment reported as Namdeo Daulata Dhayagude

and others v. State of Maharashtra, AIR 1977 SC 381, it was

held that where the story narrated by the witness in his evidence

before the Court differs substantially from that set out in his

statement before the police and there are large number of

contradictions in his evidence not on mere matters of detail, but on
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 65 of 84 ::-

-:: 66 ::-

vital points, it would not be safe to rely on his evidence and it may
be excluded from consideration in determining the guilt of accused.

133. In the judgment reported as Suraj Mal v. The State (Delhi

Administration) AIR 1979, SC 1408, it was held that where

witnesses make two inconsistent statements in their evidence either

at one stage or at two stages, the testimony of such witnesses
becomes unreliable and unworthy of credence and in the absence of

special circumstances no conviction can be based on the evidence

of such witnesses.

134. In such a situation, the assertions made by the prosecutrix that

the accused had physical relations with the prosecutrix forcibly, the
prosecutrix had physical relations with the accused, on the

assurance that he shall marry her, or undergoing a semblance of

ceremony of marriage are per se false and as such, unacceptable

and unbelievable. It is apparently clear that the prosecutrix had

herself got involved physically with the accused. It can be seen

from the evidence of the prosecutrix that the allegations leveled by

her of rape by the accused are false and unbelievable. It seems that

she has not been raped at any point of time but she was a

consenting party to the physical relationship with the accused.

135. It is also saddening to note that when the prosecutrix, an

unmarried illiterate woman, gets involved with a man, in order to

save her respect in society or in her desperation to marry the
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 66 of 84 ::-

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accused as she may have one sided love for him, she is projecting
herself to be a victim and the accused to be a culprit and guilty of

raping her on a false promise of marriage when she herself is fully

aware that the accused has not committed any offence. A case

where the girl agrees to have sexual intercourse on account of her

love and passion for the boy and not solely on account of the

misrepresentation made to her by the boy or a case where a boy, on

account of circumstances, which he could not have foreseen or

which are beyond his control, does not marry her, despite having

all good intentions to do so, has to be treated as innocent.

136. In the light of the aforesaid nature of deposition of the

prosecutrix, PW1, who happen to be the material witnesses, I am of

the considered view that her deposition cannot be treated as

trustworthy and reliable.

137. All the above facts and the ratio of the above referred

judgments indicate that there is no veracity in the prosecution

case in respect of the offences of intoxication and rape, rape on

promise to marry the prosecutrix by accused Mr.Upender Dutt

Sharma @ Goldi and the accused merits to be acquitted for the

offence under section 328, 376 read with section 420 of the IPC.

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MENS REA / MOTIVE

138. Regarding the motive of crime, it may be observed that in a

case based on evidence, the existence of motive assumed

significance though the absence of motive does not necessarily

discredit the prosecution case, if the case stands otherwise

established by other conclusive circumstances and the chain of

evidence is so complete and is consistent only with the hypothesis

of the guilt of the accused and inconsistent with the hypothesis of

his innocence.

139. The motive has to be gathered from the surrounding
circumstances and such evidence should from one of the links to

the chain of evidence. The proof of motive would only strengthen

the prosecution case and fortify the Court in its ultimate conclusion

but in the absence of any connecting evidence or link which would

be sufficient in itself from the face of it, the accused cannot be

convicted. Motives of men are often subjective, submerged and

unnameable to easy proof that courts have to go without clear

evidence thereon if other clinching evidence exists. A motive is

indicated to heighten the probability that the offence was
committed by the person who was impelled by the motive but if the
crime is alleged to have been committed for a particular motive, it
is relevant to inquire whether the pattern of the crime fits in which

the alleged motive.

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140. In the present case, a story has been projected that the
accused has raped the prosecutrix after intoxicating her and then

continued to rape her since February, 2009 till April, 2013 on a

false promise of marriage. This version appears to be untrue as

there is no reason why he would do so. No reason is shown as to

why the accused would jeopardize his future. He has claimed that

the prosecutrix was already married to someone else and she

wanted to extort money from him. In such a situation, when

according to the accused, the prosecutrix is already married, there

can be no reason why an unmarried man would want to marry a

married woman.

141. There is nothing on the record to show that the accused has

committed the offence, as alleged by the prosecution. He is a

mature man aged about 27 years (as per his MLC-Ex.Pw5/A) and

capable of understanding the implications of his acts. He has

completely denied having physical relations with the prosecutrix at

any point of time.

142. In the present case there is sufficient evidence on record to

show that the accused did not have a motive to commit the offence.
A witness is normally to be considered independent unless he or
she springs from sources which are likely to be tainted and that
usually means unless the witness has cause, such as enmity against

the accused, to wish to implicate him falsely. However, there can be

no sweeping generalization. Each case must be judged on its own
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 69 of 84 ::-

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facts. These observations are only made to combat what is so often
put forward in cases as a general rule of prudence. There is no such

general rule. Each case must be limited to and be governed by its

own facts.

143. There does not appear to be any criminal intention and

mens rea on the part of the accused.

DEFENCE OF THE ACCUSED

144. In his statement under section 313 of the Cr.P.C., the accused

has stated that he is innocent and has been falsely implicated in this

case. He has denied all the evidence of the prosecution. This case

has been falsely lodged against him by the prosecutrix. The

prosecutrix was already to someone else and she wanted to extort

money from me for which she has lodged the present false case

against me.

145. Accused has preferred to examine three witnesses in his
defence.

146. DW-1- Mr. Phool Singh, Assistant in Diwan Kedar Nath

Charitable Trust, 2, Barat Ghar Marg, Feroze Gandhi Road, Lajpat

Nagar-III, New Delhi-24 has brought the receipt no. 9360 dated

26.04.2005. As per the, list the marriage hall was booked by Mr.

Amit Kumar R/o 185/4 Lukur Ganj, Allahabad and advance

amount of Rs. 7300/- were given by the Mr. Amit Kumar for

-:: 71 ::-

booking of marriage hall.A marriage invitation card (Mark A)
shows that the address of the marriage hall in the invitation card is

mentioned as 2, Barat Ghar Marg, Feroze Gandhi Road, Lajpat

Nagar-III, New Delhi-24. He has brought the office record

regarding the bookings vide receipts. The photocopy of booking

receipt no. 9360 dated 26.04.2005 of the amount paid by Mr.Amit

Kumar i.e Rs.7300/- is Ex.DW1/A. He did not know the names of

the bride and the groom whose marriage was solemnized in the

marriage hall on 11.05.2005 against which receipt Ex.DW1/A was

issued to Mr. Amit Kumar. In his cross examination, he has

deposed that he has been authorized to attend the Court by

Secretary for Diwan Kedarnath Charitable Trust. He has been
working as an Assistant in Diwan Kedarnath Charitable Trust, 2

Barat Ghar Marg, Firoze Gandhi Road, Lajpat Nagar-III New

Delhi, for the last one year. The document Ex.DW1/A is not in his

handwriting. He has admitted to be correct that he does not know

who had prepared the receipt Ex.DW1/A as he was not working

there in the year 2005. He can not tell that the hall booked for

11.05.2005 was for the purpose of solemnization of marriage or for

any other small function. He has admitted to be correct that the said

hall is being booked for all the purposes like some get together or
some religious function or any birthday, occasion, etc.

147. DW-2-Ct. Dharamvir had brought the summoned record i.e

DD entry no. 34 registered in the Roznamcha register at serial no.

34 dated 16.03.2008 (Ex.DW2/A). In his cross examination, he has
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 71 of 84 ::-

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deposed that he can tell the name of the writer of DD No. 34 only
by referring to the record brought by him. He does not have any

personal knowledge about the content and writer of DD No. 34.

148. DW-3- Mr.Dev Karan Singh, FSO in Food & Supply

Department, Mundka, Delhi has deposed that he is posted as Food

and Supply Officer at Mundka. Record relating to the ration of Mr.

Sehdev Barvi, the ration card no. 151605 issued for the address of

74, Nilothi Viaster, New Hari Kishen Nagar, Delhi-41 is not

available in his office. However, same is available with the FSO of

Nangloi and directions may be issued to the concerned office to

produce the relevant records. He has not been cross examined.

149. The accused has claimed that the prosecutrix is an already

married woman who married Mr.Sehdev on 11.05.2005. Her father

had made a complaint against Mr.Sehdev, his son in law vide DD

entry, Ex.DW2/A.

150. DW1 has only produced the record regarding the booking of

hall by Mr.Amit but the same does not prove in any manner that it

was for the marriage of the prosecutrix with Mr.Sehdev. DW2 has
produced the DD entry-Ex.DW2/A but the same also does not
prove in any manner that the prosecutrix is married with Mr.Sehdev
as the complainant and the victim are not examined by the

prosecution. The evidence of DW3 is of no help to the accused as

he has not deposed anything in his favour.
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 72 of 84 ::-

-:: 73 ::-

151. The defence of the accused has also not been put to the

prosecutrix that she was already married with someone else. No

such suggestion has been given to her by the accused in her cross

examination.

152. It is clear from the MLC of the prosecutrix (Ex.PW6/A) and

the FSL report (Ex.PX-1) that the prosecutix does not have any

injury and there is nothing found in the exhibits of the prosecutrix

and the accused to connect the accused with the offence. There is

no medical and forensic evidence against the accused.

153. It is also clear while discussing the different statements of the

prosecutrix, that her version is neither reliable nor believable.

154. Therefore, the defence of the accused although is not proved

but considering the unreliable evidence of the prosecutrix which

suffers from overwhelming contradictions and glaring

inconsistencies, the prosecution version is not believable and

reliable.

155. The case of the prosecution has to stand of its own legs and
is required to prove all its allegations against the accused and all
the ingredients of the offence alleged to have been committed by

the accused.

-:: 74 ::-

156. Therefore, as the prosecution version is unreliable and
unbelievable that the accused had raped the prosecutrix after

intoxicating her and continued to rape her on a false pretext of

marriage, the defence of the accused appears to be plausible

that he has not committed any offence.

PUBLIC WITNESSES NEITHER CITED NOR EXAMINED

157. The prosecution has failed to examine some very material
witnesses and this lapse gives a severe blow to the prosecution

case.

158. The Investigation Officer has failed to associate in the

investigation Ms.Simran, Mr.Ajay, the media persons, mother of

the prosecutrix who were very material for this case. The

prosecutrix had met the accused through Ms.Simran and Mr.Ajay,

gone with the accused as well as Ms.Simran and Mr.Ajay to

Shimla, phoned the accused on the day of Holi in year 2014 as

Mr.Ajay and other friends of the accused were phoning her to
finish this case, the media persons with whose intervention the

police acted on her complaint, her mother who was talking to the

mother of the accused on phone. These very material witnesses

have neither been cited as witnesses nor produced nor examined by

the prosecution. Their evidence could have facilitated the Court in

adjudicating the matter.

159. By not citing, producing and examining the above named

-:: 75 ::-

persons, the prosecution has left out some very material
evidence which may have been of some help to the prosecution

in this case against the accused.

INVESTIGATION

160. The investigation conducted in the present case has been

deposed by police witnesses (PWs 3, 8 and 10) . The FIR and FSL

report have been admitted by the accused. The FIR has been proved

by PW4. The MLCs of the prosecutrix and the accused have been

proved by the doctors (PWs 5, 6 and 7) . The registers of the

malkhana have been proved by MHC (M) (PW2) . The statement

under section 164 of the Cr.P.C. of the prosecutrix has been proved
by the prosecutrix (PW1) as well as PW9. There is nothing on the

record which could show that the investigation has not been

conducted properly, fairly and impartially.

161. The investigation conducted including the documents

prepared in the present case has been substantially proved by the

police witnesses including the IO. There is nothing on the record to

show that their testimonies are false or not reliable.

162. However, it must be mentioned here again that the
Investigation Officer has failed to associate Ms.Simran, Mr.Ajay,
the media persons, mother of the prosecutrix who were very

material for this case.

-:: 76 ::-

163. It is the actual crime which is important than the
investigation. Where the actual crime is being elaborated and

proved in the evidence of the prosecutrix and other material

witnesses, then the investigation becomes less important as

prosecutrix has not only deposed regarding the manner of

commission of the crime but has also elaborated all the details and

has assigned a clear and specific role to the accused.

164. There are two stages in the criminal prosecution. The first

obviously is the commission of the crime and the second is the

investigation conducted regarding the same. In case the

investigation is faulty or it has not been proved in evidence at trial,
does it absolve the liability of the culprit who has committed the

offence? The answer is logically in the negative as any lapse on the

part of the investigation does not negate the offence.

165. Therefore, the investigation is not being taken into

consideration although it is material but not very relevant as

the evidence of the prosecutrix itself is not reliable and

believable.

FINAL CONCLUSION

166. The prosecution has failed to furnish any explanation in

respect of the numerous contradictions and inconsistencies in the

statements of the prosecutrix. The inherent contradictions strike at

the very root of the prosecution story making it unbelievable and

-:: 77 ::-

improbable. In the instant case, the evidence and different
statements of the victim/prosecutrix suffers from such infirmities

and the probabilities due to which the prosecution has come out

with a story, which is highly improbable. The overwhelming

contradictions are too major to be ignored and they strike a fatal

blow to the prosecution version. In fact what emerges from the

evidence of the prosecutrix is that there appears to be an element of

consent of the prosecutrix in having physical relations with the

accused as she has subsequently deposed that she had physical

relations with the accused with her consent and she was in love

with him. It is also clear from the evidence of the prosecutrix that

she had accepted the proposal of the accused. It appears that the
present rape case was lodged by the prosecutrix as she was in love

with the accused and wanted to pressurize him to marry her. She

was also aware that he is getting married elsewhere to another girl

of his parents’ choice.

167. It may be observed here that consent is an act of reason

coupled with deliberation, after the mind has weighed the good and

evil on each side in a balanced manner. Consent denotes an active

will in the mind of a person to permit the doing of an act
complained off. Consent on the part of a woman, as a defence to an
allegation of rape, requires voluntary participation, not only after
the exercise of intelligence, based on the knowledge of the

significance and the moral quality of the act, but after having freely

exercised a choice between resistance and assent.
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 77 of 84 ::-

-:: 78 ::-

168. Prosecution must lead positive evidence to give rise to

inference beyond reasonable doubt that accused had no intention to

marry prosecutrix at all from inception and that promise made was

false to his knowledge. The failure to keep the promise on a future

uncertain date may be on account of variety of reasons and could

not always amount to “misconception of fact” right from the
inception.”

169. The prosecutrix is an adult who is responsible for her actions.

She is sufficiently intelligent to understand the significance and

moral quality of the act she was consenting to, having physical

relations with the accused knowing that he will not marry her. Her
versions are inconsistent and contradictory. All the surrounding

circumstances reveal that the prosecutrix established physical

relationship with the accused with her free consent and in such a

situation, there is nothing on the judicial record to show that the

accused has ever committed any offence, as alleged.

170. Since the evidence of the prosecutrix, PW1, is neither

reliable nor believable as there are overwhelming contradictions in

her different statements as well as in totality with the other

evidence on record, the conscience of this Court is completely

satisfied that the prosecution has not been able to bring home the

charge against the accused. The prosecution story does not inspire

confidence and is not worthy of credence.
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 78 of 84 ::-

-:: 79 ::-

171. In the case of Sharad Birdhichand Sarda v. State of

Maharastra, AIR 1984 SC 1622 , the Apex Court has laid down

the tests which are prerequisites before conviction should be

recorded, which are as under:

i.   The circumstances from which the conclusion of guilt
is to be drawn should be fully established. The
circumstances concerned ‘must or should’ and not
‘may be’ established;
ii.   The facts so established should be consistent onlywith
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty;
iii.   The circumstances should be of conclusive nature and
tendency;
iv.   They should exclude every possible hypothesis except
the one to be proved; and
v.   There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.

172. Applying the above principles of law to the facts of present

case, it stands established that the accused had not raped the

prosecutrix nor raped her on a false promise of marriage. There is

no incriminating evidence against the accused. The gaps in the

prosecution evidence, the several discrepancies in the evidence and

other circumstances make it highly improbable that such incidents
ever took place.

-:: 80 ::-

173. Consequently, no inference can be drawn that the accused is
guilty of the charged offences as the testimony of the prosecution

witnesses is unreliable and unworthy of credence.

174. Onus is always on the prosecution to prove and accused is

entitled to the benefit of reasonable doubt. Case of the prosecution

is to be proved beyond reasonable doubt and cannot take support
from weakness of case of defence. In case the evidence is read in

totality and story projected by the prosecution is found to be

improbable, prosecution case becomes liable to be rejected.

175. If the prosecution evidence is read and considered in totality

of circumstances along with other material on record, in which

offence is alleged to have been committed, the deposition does not

inspire confidence and is unreliable and unworthy of credence and

in the absence of special circumstances, no conviction can be based

on such evidence. Prosecution has not disclosed true genesis of

crime.

176. It is a case of heinous crime of rape which carries grave

implication for the accused, if convicted. Therefore, for convicting

any person for the said offence, the degree of proof has to be that of

a high standard and not mere possibility of committing the said

offence. In a criminal case, the prosecution has to prove its case

beyond reasonable doubt against the accused. The prosecution
story does not inspire confidence and is not worthy of credence.

The gaps in the prosecution evidence, the several discrepancies in

-:: 81 ::-

the evidence and other circumstances make it highly improbable
that such incidents ever took place. Here in the present case, is a

prosecutrix who is not truthful. She has given different statements

and made numerous contradictions and inconsistencies which

remain unexplained.

177. The prosecution has miserably failed to prove that from 2008
to February 2009 during the first incident on unknown date at WZ-

779, Village Tihar, he offered the prosecutrix tea and biscuits

mixed with intoxicated material and committed rape upon her; and

thereafter the accused had raped her on the false pretext of marriage

with her.

178. All the above facts indicate that there is no veracity in the

prosecution case in respect of the offences of rape and rape on

promise to marry the prosecutrix by accused Mr.Upender Dutt

Sharma @ Goldi and the accused merits to be acquitted for the

offence under section 376 of the IPC, section 376 read with

section 420 of the IPC.

179. Therefore, in view of above discussion, the conscience of

this Court is completely satisfied that the prosecution has failed to

bring home the charge against the accused Mr.Upender Dutt

Sharma @ Goldi .

-:: 82 ::-

180. Accordingly, Mr.Upender Dutt Sharma @ Goldi , the
accused, is hereby acquitted of the charges for the offences of

intoxication and rape, rape on promise to marry the

prosecutrix under sections 328, 376 read with section 420 of the

IPC.

COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER
FORMALITIES

181. Compliance of section 437-A Cr.P.C. is made in the order

sheet of even date.

182. Case property be confiscated and be destroyed after expiry of

period of limitation of appeal.

183. It would not be out of place to mention here that today there

is a public outrage and a hue and cry is being raised everywhere

that Courts are not convicting the rape accused. However, no man,

accused of rape, can be convicted if the witnesses do not support

the prosecution case or give quality evidence, as in the present case

where the evidence of the prosecutrix is neither reliable nor

believable, as already discussed above. It should not be ignored

that the Court has to confine itself to the ambit of law and the

contents of the file as well as the testimonies of the witnesses and is

not to be swayed by emotions or reporting in the media.

184. Here, I would also like to mention, once again as already
Sessions Case Number : 148 of 2013.
Unique Case ID Number : 02401R0452772013.
FIR No. 143/2013, Police Station Nihal Vihar,
Under sections 376 of the Indian Penal Code.
State vs Upender Dutt Sharma @ Goldi -:: Page 82 of 84 ::-

-:: 83 ::-

observed in several other similar cases, that in recent times a new
expression is being used for a rape victim i.e. a rape survivor . The

prosecutrix, a woman or a girl who is alive, who has levelled

allegations of rape by a man is now called a rape survivor. In the

present case, the accused has been acquitted of the charge of rape,

after trial, as evidence of the prosecutrix is not reliable. In the

circumstances, such a person, an acquitted accused, who has

remained in custody for a considerable period during inquiry,

investigation and trial and who has been acquitted honourably,

should he now be addressed as a rape case survivor ? This leaves

us with much to ponder about the present day situation of the

veracity of the rape cases.

185. It cannot be ignored that the accused due to this case

which has ultimately ended in his acquittal, has suffered

humiliation, distress and misery besides the expenses of the

litigation. His plight may also continue after his acquittal as his

implication may have caused an uproar in society but his
acquittal may not even be noticed. He would continue to suffer

the stigma of being a rape case accused. He has remained in

custody for a considerable period.

186. It may not be possible to restore the dignity and honour

of the accused nor compensate him for the humiliation, misery,
distress and monetary loss. However, his acquittal may give

him some solace. He may also file any case for damages against

-:: 84 ::-

the prosecutrix, if advised. No one discusses about the dignity
and honour of a man as all are only fighting for the rights,

honour and dignity of women. Laws for protection of women

are being made which may be misused by a woman but where

is the law to protect a man from such a woman where he is

being persecuted and implicated in false cases, as in the present

case. Perhaps, now it is the time to take a stand for a man.

187. One copy of the judgment be given to the Additional Public

Prosecutor, as requested.

188. After the expiry of the period of limitation for appeal and

completion of all the formalities, the file be consigned to record
room.

Announced in the open Court on ( NIVEDITA ANIL SHARMA )

nd
this 02 day of January, 2016. Additional Sessions Judge,
(Special Fast Track Court)-01,
West,Tis Hazari Courts, Delhi.
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