State vs . Vijay Singh Bainsla Page No. 1/69 on 4 February, 2017

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Delhi District Court

State vs . Vijay Singh Bainsla Page No. 1/69 on 4 February, 2017

              IN THE COURT OF SHRI SANJIV JAIN, 
       ADDITIONAL SESSIONS JUDGE  SPECIAL. FAST TRACK 
        COURT : SOUTH EAST: SAKET COURTS: NEW DELHI.
                                             \




Unique Case ID No. 02406R0098012015
SC No.   :   60/15 (old); 2234/16 (new)
FIR No.  :  22/15
U/s.       :  376/506/313 IPC 
PS       :  Amar Colony, New Delhi. 

State (Govt. of NCT of Delhi)                            ................... Complainant

                    Versus
Vijay Singh Bainsla
S/o Shri Kirori Singh Bainsla 
R/o House no. 1731,
ATS Village, Sector93A
Noida, UP                                                   ....................... Accused

Date of Institution                               :  20.04.2015
Judgment reserved for orders on                   :  12.01.2017
Date of pronouncement                             :  04.02.2017

                                  J U D G M E N T
FACTS :

1. The quest in all criminal trials is to arrive at the truth and therefore, the role of the Judge is to cull out the true facts from the evidence led before him and ensure that guilty does not go scotfree and innocent's life and liberty is not jeopardised.

2. This case vide FIR no. 22/2015 u/s 376/506 IPC was registered at the police station Amar Colony, New Delhi on 06.01.2015 on the complaint of the prosecutrix ( name withheld to protect her identity). The brief facts as alleged in the complaint are as under: The prosecutrix had met the accused in the year 2009 at FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 1/69 Mohali. The accused had approached her to do a profile on him for a newspaper. Gradually, they became friends and starting meeting and visiting places. During that period, the accused told her that he is unhappy with his marriage; he did not have physical relations with his wife for many years; and he has also filed a case for mutual divorce. He professed his love for her convincing and promising her to marry as soon as he would get divorce. In 2011, he started meeting her every week in Delhi at different guest houses. He also came to Chandigarh and stayed for few times with her. During all this period, he established physical relations with her on the false promises of marriage. From July 2012 to October 2014, they met at different places where he established physical relations with her on the pretext that he would marry her soon. In March 2013, he put vermilion on her parting in the hotel and exchanged garlands saying that they are now married, she should not feel insecure and soon it would be a legal marriage after his divorce. He continuously kept on delaying the marriage with her and every time when she asked him about their marriage, he argued. In August, he left for Kabul to work with Afghan Wireless Communication Company promising her that he would live with her in New Delhi. He met her from September, 30 to October 3 rd 2014. When she enquired about his divorce, he threatened her with dire consequences. He again apologized, convinced her and promised to marry her as soon as possible. From 15 th October to 18th October 2014, he again met her and promised to shift her to Delhi after marriage. On 26 th October, he went to Afghanistan and remained in contact with her through social sites till 3rd December 2014 although during that period, they had heated arguments since he was not fulfilling his promise.

INVESTIGATION :

3. She was got medically examined at AIIMS. The doctor found her hymen not intact but there were no signs of physical injury on her body. No samples were taken as the last incident was of October 2014. Her statement u/s 164 CrPC was got recorded wherein she reiterated what she alleged in her complaint. She stated that last conversation was on 03.12.2014 where FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 2/69 they again had arguments on the same issue. He threatened her with dire consequences that he would kill her. He also blocked her number leaving no option to get in touch with him and know about his whereabouts. She found out that he had not filed any divorce anywhere. She stated that the accused used her to satisfy his lust on the false promise of marriage and abused her mentally and emotionally. The record from the hotels were collected and the bills were verified. During investigation, the prosecutrix submitted the whats app messages, mails and chats exchanged between her and the accused and emails sent by her brother. On 31.01.2015, she gave a written statement that on 11.07.2011, she discovered through home pregnancy test that she had conceived. She disclosed this fact to the accused telephonically on 15.07.2011. The accused came to Chandigarh on 22.07.2011. When he returned back on 24.07.2011, she felt some vomiting and pain. When she informed it to the accused, he asked her to take the second dose of the medicine. She took the same and the fetus was aborted. On this statement, Section 313 IPC was added. Statement of witnesses were recorded. The accused was arrested. He was got medically examined. He was found capable of performing sexual intercourse under normal circumstances. After the investigation, chargesheet u/s 376/506/313 IPC was submitted.

CHARGE :

4. After complying with the requirements contemplated u/s 207 Cr.P.C., the case committed to this Court. Vide detailed order dated 20.08.2015, prima facie case was made out against the accused for the offences punishable u/s 417/376, 313, 506I IPC. Charge was framed. He pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE :

FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 3/69

5. To substantiate its allegations against the accused, prosecution examined as many as seventeen witnesses.

PW1 Dr. Rajanikanta Swain did the medical examination of the accused vide MLC Ex.PW1/A and found him capable of performing sexual intercourse under normal circumstances.

PW2 Ms. Vasundhra Chhaunkar recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW2/B. PW3 is the prosecutrix. She testified on oath that she came in the contact with the accused Vijay Singh Bainsla in 2009. She was working as Journalist with Indian Express Newspaper. The accused was working with a company named 'Connect'. He approached her to do a profile on him for the newspaper, which she did. Thereafter, he started calling and texting her off and on. He used to ask her to meet for coffee. In 2010, he asked her to meet him on his visits to Chandigarh from Delhi. She met him on few times in Chandigarh. At that time, he told her that he is in unhappy marriage; he has no cordial relations with his wife; he did not have any physical relations with his wife for the last many years; they both sleep in different rooms and has filed divorce by mutual consent. She stated that the accused asked her to be in relationship with him but she refused, objecting to its sanctity since he was married. He convinced her that he has FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 4/69 already filed petition for divorce. He professed his feelings to her and told her that since the divorce is already underway, there is nothing wrong in the relationship. He proposed her for marriage. By the end of 2010 and the beginning of 2011, they got into relationship. The accused asked her to meet him in a guest house in Delhi where he established physical relation with her after promising to marry her. She stated that from 2011, the accused started meeting her every week in different guest houses in Delhi where he established physical relations after giving assurance of marriage. In 2011, he stayed few times in her house at Sector6, Panchkula and established physical relations with her after giving assurance of marriage. On 11.07.2011, she discovered through home pregnancy test that she has conceived from the physical relations made by him. She informed him about it on 15.07.2011. The accused then told her that he is coming to Chandigarh soon and would plan the future. On 22.07.2011, he reached Chandigarh. She told him about her pregnancy but he insisted to terminate her pregnancy saying that it is not the right time. Although she tried to convince him but he was adamant for abortion. On 24.07.2011, she called the accused and told him that she is not feeling well and vomiting to which accused told her that he had given her pills on the night of 22.07.2011 for FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 5/69 aborting the pregnancy without her knowledge by dropping the pills in the cold drink. When she asked him why he did so without her consent, he asked her to follow the termination procedure by consuming the remaining pills which he had left in her cupboard. He also asked her not to share it with anyone otherwise he would end the relationship. Because of that, she did not share it with anyone and took the remaining pills.

She stated that in the August 2011, the accused left for Nigeria for official work. He came back in September 2011. He joined Videocon Company as Marketing Head in Ahmedabad. He asked her to come there saying that he has a good job and salary and has been looking for a house for both. He also told her that he has talked to a pandit of nearby temple for performing their marriage. On 29.09.2011, she went to Ahmedabad where he made her stay in Hotel Park Plaza in Ahmedabad for four days and during that period, he established physical relations with her. He booked her return ticket. When she asked him about marriage, he told her that it is to be delayed for some days as he has some official work. She came back to Chandigarh. After 23 weeks, he again asked her to come at Ahmedabad on the assurance of marriage. She went there and he again made her stay for few days in the same hotel. He came there once and FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 6/69 established physical relation with her but he avoided the issue of marriage. He then switched off his mobile. He left her stranded in the unknown city. She of her own cleared the hotel bills and booked her return ticket for Chandigarh.

She stated that in December 2011, he again approached her by making call from his mobile saying that he cannot live without her and wants to marry her. He was in Nigeria at that time. He was working in some company. He remained in constant touch with her through phone calls, text messages and video calls. On 19.04.2012, he came back to India and flew straight to Panchkula to meet her. He stayed in a hotel Bella Vista in Panchkula for four days till 23.04.2012. He also made her stay with him and established physical relations with her. He told her that his divorce case is underway and discussions are going on regarding alimony and settlement.

She stated that they used to speak on phone regularly during the period from April 2012 to July 2012. From July 2012 till October 2014, they used to meet at Hotel Stallion, East of Kailash, Delhi where he made physical relations with her number of times. They used to discuss about their marriage and his divorce. Every time he used to say to have patience as he is sorting out his divorce.

She stated that in December 2012, he left for FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 7/69 Kabul, however, he remained in touch with her through phone, video chats and text messages. He used to come to India after about every two months and meet her in the aforesaid hotel.

She stated that on 20.03.2013, the accused put vermilion on her parting in the Hotel Stallion and told her that now they are married and she should not feel insecure. From 11.10.2013 to 19.10.2013, she stayed with him in the hotel Ramada at Dubai which he pretended that it was their honeymoon.

She stated that on 24.07.2014, the accused came to India. They met in Hotel Stallion and had discussion regarding their marriage. She also asked about his status regarding divorce. It turned into heated arguments. She stated that the accused physically and sexually assaulted her in the hotel. She did not complain to the police since the accused apologized thereafter. In August 2014, he told her that he would shift her to Delhi and marry her but he did not and flew back to Kabul. In September 2014, she again met him and had discussions but it turned into heated arguments.

She stated that the last meeting, she had with the accused, was from 15.10.2014 to 18.10.2014 in the same hotel. He reiterated what he used to say her earlier. He told her that he wants to marry and settle with her after taking divorce from his wife. He went FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 8/69 to Kabul on 26.10.2014 and remained in touch with her through phone and chats till 03.12.2014. She stated that the last conversation between her and the accused was on 03.12.2014. When she again asked about the status of his divorce and her marriage with him, he abused and threatened her for life. After this, he blocked her number on voice call and viber. She sent him lot of text messages and literally begged and pleaded him to speak to her at least once but he did not revert back. She waited for a month for him to be in touch with her but he did not call back. By that time, she was convinced that she has been cheated by him and he was with her only to satisfy his desires to have physical relations with her. She stated that she, finding his malafide, went to the police station Amar Colony and gave a complaint. The police then got her complaint Ex.PW3/A typed. She was taken to AIIMS for medical examination where she narrated the brief history to the doctor vide MLC Ex.PW3/B. On 07.01.2015, she gave her statement before the Magistrate Ex.PW2/B. She stated that on 17.01.2015 the accused was arrested from his house vide arrest memo Ex.PW3/C. During investigation, she handed over the printouts of emails exchanged between her and the accused and chats on whatsapp, viber and on internet. She had also given the copy of the hotel bills, printout of her photograph with the accused Mark FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 9/69 PW3/PA and a diary written by her. She proved the seizure memo Ex. PW3/E of nine hotel bills Ex.PW3/P5 (collectively), two hotel bills of Hotel Park Plaza Ex.PW3/P6 and three hotel bills of Hotel Stallions Ex.PW3/F. She proved the seizure memo of whatsapp conversation Ex. PW3/P1, hotel bill of Hotel Ramada, Dubai and the copy of the guest register of the hotel Ex. PW3/G. She also proved the seizure memo Ex. PW3/H of the mails Ex.PW3/P3, viber chats Ex. PW3/P2 and the seizure memo Ex.PW3/F of red diary Ex. PW3/P4 (159 pages). She stated that she had taken the print out of the whats app conversation, viber chats from her mobile phone make Samsung 9988358572 seized vide memo Ex. PW3/G & Ex. PW3/H. She had taken the prints out of the email and chats from her laptop, seized vide memo Ex. PW3/H. She brought her laptop in the Court and stated that she has been using the laptop since 2011 and both the devices are under her control and no tampering has been made in the print out in any manner. She proved the certificate u/s 65B of the Indian Evidence Act qua the prints out taken from the laptop and the mobile phone Ex. PW3/J. On being crossexamined, she stated that when she came in the contact with the accused, he was FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 10/69 staying at Mohali. He had called her on 12.11.2008. She was holding a public office and covering telecom beat. The profile of the accused she prepared did not relate to telecom beat. She admitted that the profile of the accused prepared by her is available on the net on the site of Indian Express. She admitted that in that profile he had told her about his son that his son is his favourite model, however, she stated that she did not talk to his son. She admitted that she had worked in Hindustan Times from 2010 to 2011.

She stated that her mobile number was 9988358572 but she does not remember its make. She stated that since the mobile phone, she brought in the Court, was giving trouble, she changed her mobile, however, she had taken the backup of the chats and viber on email. She stated that there is an option in the phone itself for taking the data on the email. She transferred the data i.e. whatsapp chat, viber chat from her Samsung mobile to her I phone by re installing the Apps. She denied that it is not possible to transfer the data from the Android phone to the I phone. She stated that she never deleted the whatsapp between her and the accused. She denied that the prints out filed alongwith the chargesheet are selective & cherry picking.

She stated that she did not try to find out from his wife about her relations with the accused. She FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 11/69 admitted that Indian Express and Hindustan Times had their legal cells. She admitted that she had covered Ruchika molestation case. She stated that she was well aware about the offences against the females. She stated that the accused had told her that he has filed divorce case against his wife in the Court at Delhi but he did not tell her the details of the case and where it was filed. She admitted that during their relations, she never came to know where the divorce case was filed and what was the status of the case. She stated that she had asked the accused to show her papers regarding his divorce case and get her talk with his lawyer but he did not. She admitted that even then, she continued physical relations with him. She then volunteered that she trusted him.

She stated that Renu Mathur was not her friend but she knew her. She was tarot card reader having her office at Panchkula. She used to go to her to know about her future and status of her relations with the accused. She never told her that she knew that accused has not filed divorce against his wife. She stated that she had told Renu Mathur about her relations with the accused but she never asked her to do something so that the accused divorces his wife. She, however, stated that she remained in touch with Renu Mathur for about two years.

She stated that she knew that if divorce by mutual FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 12/69 consent is filed, it is decided within six months. She had asked the accused after elapse of six months as to why his divorce has not been materialized even after the period of six months to which he said that there are issues regarding alimony and custody of child. He told her that he is trying to get the custody of the child. She had asked the accused to get her meet with his son but he did not. Whenever she insisted, he did dilly dally (kahta tha time is not right and I am waiting for right time). She stated that since she had blind faith on him, she believed overlooking what he said. She never asked him to introduce her to his family members. She stated that she had asked the accused the date when his case for divorce was fixed so that she could check on website but even then he did not tell her date and said "tu jaan kar kya karegi".

She stated that by the time, the accused called her at Ahmedabad to marry her, he had not taken divorce. However, she did not know that such marriage was invalid. When questioned why she did not insist the accused to marry her at first instance before entering into physical relation with him, she answered that the accused had told her that it is a matter of six months, he is madly in love with her and he asked her to trust his intention so she trusted him.

She admitted that while covering the news relating FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 13/69 to crime, she used to talk to police and lawyers. She stated that she had tried to check from the website whether any case of mutual divorce between the accused and his wife Pooja Bainsla is pending in the Court at Delhi but she did not get any information. When she tried to confront it with the accused, he beat and sexually assaulted her on 24.07.2014. Even before 24.07.2014, whenever she confronted him on this aspect, there used to heated arguments but she admitted that even then they had physical relations since she trusted him. She admitted that she knew the meaning of mutual divorce but she did not know that before filing the petition, all issues relating to alimony and child are decided. She also admitted that she did not verify it from the legal cell of her office. She admitted that she used to book the rooms in the guest house at S199, GKII, Hotel Pamposh, Haryana Government, HSIDC at Ansal Plaza where she used to stay with the accused. She admitted that every week she used to travel from Chandigarh to Delhi. She explained that the accused used to call her at Delhi. She admitted that in the whatsapp, emails, gmails and viber chats, accused never said that he would marry her but she stated that the accused had told her telephonically that he would marry her. She also admitted that in the whats app, emails, gmails and viber chats, she did not FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 14/69 ask about the status of his divorce nor the accused told her about the divorce. She stated that during the period of their relations, she never got the accused introduced to her parents that he has proposed to marry her. She then stated that she had told her parents about the accused that the accused is married having son and she wants to marry him. She stated that her mother had once talked to the accused from her mobile in 2011.

She stated that her parents used to live in Hissar, Haryana. She is the only daughter of her parents. Her younger brother is settled in abroad. She stated that since she had studied in boarding school and had been working, she was not staying with her parents. She denied that she was not living with her parents since she did not want their interference in the free living of her life.

She stated that when the accused did not marry her at Ahmedabad, she reprimanded him but she did not severe her relations from him. She stated that the accused never refused to marry her but he was delaying the marriage. She then explained that the accused had asked her not to insist for marriage since he has recently joined a company and has work pressure on him and he would marry her later. She stated that she did not tell her parents since the accused had asked her not to tell them and that they FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 15/69 would inform them after their marriage. She stated that she did not inform the police when after reaching at Ahmedabad, the accused did not respond to her call nor she informed her parents that she has been stranded alone in Ahmedabad nor she tried to find out his office of Videocon at Ahmedabad. She stated that thereafter, till December 2011/ January 2012, they did not talk to each other. She was confronted with the email dated 04.12.2011 Ex.PW3/DA which she admitted to have sent to the accused.

She produced the certificate u/s 65B of the Evidence Act Ex.CW/A but she stated that she has not brought the prints out of the whats app and viber chats since it is already on record.

She stated that before coming to Ahmedabad, the accused had told her that he has already spoken to a pandit and will marry her in a temple. When she reached there, she asked the accused the name of the temple to which he told that it is nearby and he will take her there. She stated that the accused had told her that he lives in a company guest house. She had asked the accused why he has been making her stay in a hotel and not in the guest house to which he told her that since his colleagues live there, she would have to stay in a hotel. She stated that whenever she asked the accused to introduce her to his friends and colleagues, he told her that since his divorce case is pending, it FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 16/69 would not reflect nicely on them. She had asked the accused the location of the guest house but he did not answer. She admitted that she did not seek details of temple and pandit when she came to Ahmedabad for the second time. Even, she did not go to the guest house of the accused at Ahmedabad. She denied that accused never proposed her nor promised to marry her rather it was she who was madly in love with him and for that reason, she wanted him to divorce his wife and marry her and he switched off his mobile since he wanted to severe his relations from her. She admitted that on 04.12.2011, when she sent the email Ex.PW3/DA, the accused never asked her to come to Ahmedabad.

She admitted that she used to write her personal diary Ex.PW3/P4. She stated that she did not write in the diary that accused had promised to marry her. She did not mention any specific incident with the accused at Ahmedabad or other places or about cheating or misrepresentation by the accused with regard to marrying her at Ahmedabad in the diary. She stated that since she had no source in Delhi she could not find out whether the accused had filed any divorce or in which court his divorce is pending, however, she used to visit Delhi frequently. She stated that she did not hire the services of an advocate since she did not know anyone in Delhi. Her purpose to FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 17/69 visit Delhi was to meet the accused. She did not seek any legal help from her office since it was her personal matter. Even she did not seek help from her friend Benul Tomar who lived at Kishan Garh, however, she had discussed her relations with the accused with Benul who is a Freelance Writer. She denied that on 19.04.2012, the accused was called by his inmates of HFCL at Chandigarh to attend fairwell and for that reason he had come there with his wife. She admitted that she did not place with her complaint the record of the viber chats, SMS and emails of the period from 19.03.2012 to 28.03.2013. She then explained that she did not have the smart phone at that time, however, she used to regularly meet the accused and communicate with him on phone and SMS. She stated that she can not say why she did not save the SMS of aforesaid period. She stated that the booking at Hotel Stallion used to be made in her name. She denied that the accused never came to her at Hotel Stallion between July 2012 to October 2014.

She stated that although on 20.03.2013, the accused had put vermilion on her parting in Hotel Stallion but she was not convinced that he formally married her. She, however, stated that the event was a big event in her life. She stated that she did not mention this event in her viber chat, SMS, emails and FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 18/69 diary nor she took photograph of that event. She admitted that although she was not fully convinced with that marriage yet she went with him to Dubai for Honeymoon. She denied that no such event took place on 20.03.2013 and for that reason, she does not have any document / photograph of the same.

She admitted that in the document Ex.PW3/G qua her stay in hotel Ramada, Dubai, she has not been shown as the wife of the accused. She stated that she had gone to Dubai from India alone. She had told her parents that she was going to Dubai but she did not tell that she was going for honeymoon.

She stated that she never told her parents during the period from 2011 till December 20, 2014 that she and the accused had physical relations. She had only told that she has relations with the accused. She stated that she knew the name of wife of the accused and had talked to her, however, she did not ask from his wife whether any divorce case between her and the accused is pending in the Court. She stated that perhaps she had made call in 2014 but never expressed desire to meet her. She stated that she knew the residential address of the accused. She admitted that she never went to the residential house of the accused to know about his marital status or that whether any divorce has been filed by the accused. She denied that the accused never talked to her about FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 19/69 his taking / filing divorce against his wife and for that reason, she did not try to find out. She stated that she does not know if as on today, the accused and his wife have been living together happily as husband and wife.

She admitted that recently about a week ago, she has shifted in ATS society at Noida where accused has been living with his family. She denied that she shifted there with an intention to pollute the mind of the wife of the accused and to create a rift in their relationship. She explained that it was not deliberate rather accidental. She denied that she had tried to meet the child of the accused in the society compound or in his school.

She stated that on 24.07.2014, she did not raise hue and cry in the hotel when the accused assaulted her. She did not receive injury on her face, but she received injuries on her body, however, she did not go to the doctor since there were bruises only. She stated that she did not tell it to the hotel staff or to her family members about this incident nor mentioned in her documents / diary. She denied that since no such incident took place, she did not mention it in the documents / diary.

She admitted that she was using number 9646168438. She was confronted with her chats Ex.PW3/P2, of 06.11.2014, 07.11.2014 and pages 109, FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 20/69 112, 113, 142, 143, 131, 132 and stated that she used the language in a fit of anger and due to emotion. She admitted that there was a gap of 71 days from the chat from 01.06.2014 to 11.08.2014, 51 days from 13.10.2014 to 03.12.2014, 50 days from 11.09.2014 to 29.10.2014, 46 days from 23.07.2014 to 07.09.2014 on pages 131, 132, 148, 149, 206, 207, 203, 204 and the chats on page 195, 196 are not in continuation. She stated that she does not want to answer whether the documents filed by her including her viber chats, text messages and mails are cherry picking or she has only filed selective messages and chats which suit her and she concealed the documents and text messages which are against her. She denied that the documents mentioned above are manipulated, edited / deleted messages and fabricated documents.

She stated that she had not told the IO in her statement u/s 161 Cr.P.C. or in her complaint or in her statement u/s 164 Cr.P.C. that she became pregnant in the month of July 2011. She explained that she did not state so because it was a personal loss to her and she did not want to make it public. She admitted that she did not mention this fact in her diary nor told it to her mother. She stated that she came to know on 11.07.2011 that she was pregnant and she informed it to the accused on 15.07.2011 but she did not consult any doctor or clinic to confirm the pregnancy nor she FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 21/69 went to the doctor after coming to know on 24.07.2011 that accused had given her pills for terminating her pregnancy. She stated that she did not go there because of fear of social stigma of becoming a single unmarried mother. She stated that she does not remember the name of the tablet which she took at the time of termination of pregnancy nor she tried to confirm from any doctor whether her pregnancy has been terminated or not. She admitted that she used to take Fludac and Alprex but stated that she does not take it regularly. She denied that she concocted a false story of her pregnancy and subsequent termination just to pressurize the accused to marry her.

She denied that there were no physical relations between her and the accused at any point of time and the accused never told her that he has filed divorce against his wife and that he would marry her once the divorce is finalized. She denied that the documents filed by her including hotel bills are manipulated and fake documents. She denied that her text messages, viber chats are also manipulated and fabricated. She denied that she lodged a false report against accused to pressurize him to marry her by making false and frivolous allegations.

PW4 is the brother of prosecutrix. He stated that in 2010 / 2011, he came to know from the prosecutrix FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 22/69 about her relations with the accused. At that time, he was in Sydney, Australia. He stated that in 2014, the accused made him phone calls and sent text messages that the situation with the prosecutrix is getting out of control and he is bit apprehensive of the relationship because of his prospects of moving overseas for employment purpose. He insisted him to come to Delhi. He, however, asked him not to disclose of his arrival or his meeting to the prosecutrix. He stated that on 30.05.2014, he came to India and met the accused in Gurgaon. The accused told him that he is unable to take care of the prosecutrix due to his family and work commitments and is also unable to prioritize the relationship with the prosecutrix. He (accused) requested him to take the prosecutrix to Sydney for a change and said that he would discuss about the marriage at a later stage as his main priority is of her well being. He again asked him if he wants to ever marry her or has any expectation of settling down with her but despite his asking repeatedly, he never received a proper and precise answer from him. He stated that after six months in December 2014, he came to visit his family. He had conversation with the prosecutrix who told him the incident happened with her. She had also told him that from the relations with the accused, she became pregnant but he forced her to abort her pregnancy. He stated that when he FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 23/69 asked the prosecutrix as to what is going on as on now, she said that the accused has stopped taking her calls since 03.12.2014. He then told her that the intention of the accused is not bonafide and she should not pursue her relationship with him. She then told him that she had full trust on him that he would fulfill his promise. He proved his statement Mark PW4/A to the IO sent by email.

On being crossexamined, he stated that he came in India in December 2014 and stayed for a month. Since he was busy in preparing for the examination of GMAT, he did not talk to her much. She did not tell him that she has lodged an FIR against the accused. He came to know about it later. When he reached Sydney, in January, she asked him to send an email, which he sent on 05.02.2015 with its copy to the prosecutrix. He stated that he had visited India in 2011, 2012 and 2013 before his visit in May 2014 but he did not meet the accused. He was not aware if the prosecutrix was having physical relations with the accused as she never disclosed it to him. He stated that he had asked the prosecutrix why she has been disclosing all these facts after three years, to which she told him that she wanted to disclose it after finalizing the marriage. He admitted that he did not know about the pregnancy and termination of the pregnancy before December 2014. He stated that he FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 24/69 did not talk to his father about their relationship. His mother never told him about her pregnancy or termination during his visits in India. He stated that the prosecutrix had come to him at Sydney with his mother in 2012 - 2013 and they had stayed for about 2

- 3 weeks. He does not remember if the prosecutrix had discussed with him about her relationship with accused during her stay at Sydney.

PW5 is the mother of the prosecutrix. She stated that the prosecutrix had told her in the middle of 2011 that she was in relationship with the accused. She had also seen his photograph but she did not meet him personally. She stated that the prosecutrix had told her that the accused would marry her after his divorce would get through. She stated that in December 2014, her son had come from Australia and they had detailed discussions with the prosecutrix about her relationship with the accused. She proved her statement Ex.PW5/A. On being crossexamined, she stated that they discussed the matter in Hissar in December 2014 but her husband was not in the discussion. She stated that her husband did not know about the relationship of the prosecutrix with the accused. She stated that the prosecutrix had told her that he has filed divorce, he is a good person and she has a blind faith on him. She stated that she did not try to find out as to what was FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 25/69 the reason for the accused taking divorce from his wife. She stated that from the talks, she felt that the intention of the accused was not bonafide and he used her. She stated that 2 or 3 days prior to lodging report, she had told her that she was going to lodge report. She stated that when she came to know from the prosecutrix in 2011 about her relationship with the accused and his marital status, she had asked her as to why she wanted to marry with him when he was not even divorced but she responded that he has already filed a divorce and he is a good person. She stated that whenever she tried to talk on this topic, the prosecutrix said that the accused has been saying that everything would be settled soon and he will marry her. She stated that she did not try to meet his wife nor his son nor she inquired herself about his divorce. She admitted that she did not try to meet the accused and his family members in December 2014. She admitted that her daughter had lodged an FIR at PS Panchkula 226/2010 Ex.PW5/DA.

PW6 Sanjiv Lal, Manager, Hotel Stallions, B14, East of Kailash, New Delhi65 brought the register for the period from 08.12.2011 to 21.01.2014 and from 22.01.2014 till 25.05.2016 and verified the bills Ex.PW3/P7 containing the entries in the guest register Ex.PW6/A. He stated that as per the entry no. 2583 dated 20.12.2013, the accused had checked in FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 26/69 the hotel as double occupancy in room no. 302 and checked out on 21.01.2014. He admitted that he does not have personal knowledge of the entries made from March 2013 to 01.05.2016. He also admitted that in all the entries, the purpose of visit mentioned by the prosecutrix is official. He admitted that there are many entries besides Ex.PW6/A (collectively) regarding the prosecutrix taking the room on rent. He stated that he never sat on the front desk or the reception and can not say who used to come to meet the prosecutrix.

PW7 Renu Mathur is the tarot card reader. She stated that the prosecutrix approached her as she wanted to write an article on her. She used to do social work. The prosecutrix had inquired about her work, health of her mother and other routine matters. She had also asked about her marital and professional future. She stated that the prosecutrix had brought the accused to her in 2012. He was having major issues in his professional life. She guided him and thereafter the accused remained in touch with her on phone. Prosecutrix had also told her that she is friendly with the accused and she knows him well. She stated that the prosecutrix had brought lot of persons to her. She was declared hostile by the prosecution. She denied that she had told the police that she knew about the relationship between the prosecutrix and the FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 27/69 accused and the prosecutrix used to tell her everything about her relationship and the job profile of the accused. She denied that she had stated to the police that the prosecutrix used to love the accused very much, very caring for him and was willing to sacrifice for him. She denied that she had told the police that the prosecutrix and the accused used to come to her regarding their relationship problem. She denied that she had told the prosecutrix that her future is with the accused. She denied that the prosecutrix had told her that she did not know that the accused was already married. She volunteered that when the prosecutrix introduced the accused to her, she had told her that accused is married having son. She denied that the prosecutrix had told her that the accused has filed a divorce case in the Court. She stated that she does not have any idea if the accused had not filed any divorce against his wife. She volunteered that the prosecutrix did not say anything about the accused taking divorce from his wife or playing with her. She denied that she knew everything about the relationship between the prosecutrix and the accused. She stated that the prosecutrix never told her that she wanted to marry with the accused. She volunteered that the prosecutrix had told her that she wanted to have long relations with the accused in work profession. She stated that the accused never FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 28/69 told her that he loves the prosecutrix or is going to marry her.

PW8 Brijesh Kumar from Golden Tulip Hotel (earlier known as Grand Basant), Rishikesh Road, Haridwar brought the register of 2012. He stated that on 21.10.2012, the accused had checked in the hotel. He was allotted room no. 303. He was with a woman. He proved the entry Ex.PW8/A in the register at serial no. 1391. On being crossexamined, he admitted that he was not working in hotel when the entry Ex.PW8/A was made. He also admitted that the entry does not bear the signature of the person. He admitted that identity proof of the person is taken when the person checks in and a separate form is also got filled from that person.

PW9 Harjinder Pal Sharma, Asst. General Manager, Welcome Hotel, Bella Vista, Panchkula, Chandigarh brought the record as per which, Vijay Singh / Mrs. Singh arrived in the hotel on 19.04.2012 at 5:13 p.m. and stayed upto 23.04.2012. He proved the copy of the guest booking register Ex.PW9/B and also submitted certificate u/s 65B of the evidence Ex.PW9/C. He also brought the copy of I card of the accused which was given at the time of check in Ex.PW9/E. PW 10 HC Gopal Lal recorded the FIR Ex. PW10/A. PW11 HC Bijendra Singh joined the investigation FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 29/69 with the the IO on 17.01.2015. He witnessed the arrest of the accused vide memo Ex.PW3/C. He stated that the wife and the son of the accused were present in the house when he was arrested.

PW12 Benu Tomar stated that he knows the prosecutrix since 2005. She had been studying in Punjab University with his elder brother. He used to work in Dainik Jagran. He used to have conversation with the prosecutrix every about 2 - 3 months and his last conversation was in December 2014 when the prosecutrix called him at Amar Colony. She was in a very bad mood and crying. She told him the details about her relationship with Vijay. In his presence, the prosecutrix handed over the documents to the IO vide memo Ex.PW3/G. He stated that he never met the accused nor the prosecutrix made him meet with the accused nor he tried to contact him after coming to know of the facts in December 2014 till date. He stated that he had advised the prosecutrix to sort out the matter with the accused amicably at the first instance but she told him that she is not able to communicate with him. He stated that he was just a casual friend of the prosecutrix. He was confronted with an email Ex.PW12/DB dated 27.01.2012 but he showed ignorance about the said email.

PW13 HC Durga on 06.01.2015 took the prosecutrix to AIIMS and got her medically examined vide MLC FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 30/69 Ex.PW3/B. PW14 Ct. Sukhveer Singh on 17.01.2015 took the accused to AIIMS for his medical examination and collected his exhibits.

PW15 Dr. Varnit proved the MLC of the prosecutrix Ex.PW3/B prepared by Dr. Kusum Lata, as per which there were no visible injuries on her person. PW16 Inspector Rajni Chopra was the Investigating Officer of the case. She deposed on the lines of the investigation. She got the the prosecutrix examined at AIIMS. She seized the hotel bills and papers, given by the prosecutrix vide memo Ex. PW3/E. She got recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW2/B. She stated that the prosecutrix had also given her the copy of whats app conversation between her and the accused, copy of hotel bills of hotel Ramada Dubai which she seized vide memo Ex.PW3/G. She also collected the tickets regarding the visit of the accused Vijay to Chandigarh. She stated on 17.01.2015, she arrested the accused from his house at Noida and got conducted his medical examination. She also recorded his disclosure statement Ex.PW3/K She seized the diary of the prosecutrix Ex.PW3/P4. She also seized the copy of chats, viber chats and mails between the accused and the prosecutrix vide memo Ex.PW3/H. She also seized the documents from Stallion Hotel, Greater FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 31/69 Kailash vide memo Ex.PW3/E, recorded the statement of her mother and verified the bills. She also collected the CDRs and customer application form of the mobile phone of the prosecutrix and the accused. She stated that the prosecutrix had given her a signed statement wherein she had stated that the accused got her pregnancy terminated. She also handed over the photograph Mark PW16/X1 of accused with the prosecutrix. She also gave her air tickets from Delhi to Ahmedabad and Delhi to Chandigarh Ex.PW16/X3 and the bills of Ramada Hotel Ex.PW3/G1.

On being crossexamined, she stated that she had sought clarifications from the prosecutrix why she did not allege in her complaint, statement u/s 164 Cr.P.C. and diary about her pregnancy and abortion to which she stated that because of insult and shame, she did not state so. She stated that the statement dated 31.01.2015 Ex.PW16/DA is in the hand of prosecutrix wherein she has mentioned the facts of her pregnancy and abortion. She stated that she had asked the prosecutrix if she consulted any doctor, hospital or clinic which she denied. She stated that she did not get the prosecutrix medically examined to confirm whether she became pregnant or she got aborted. She stated that when they were arresting the accused, the prosecutrix had told her on 17.01.2015 FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 32/69 about her pregnancy and abortion but she did not record her statement on that day. She was asked to see the case diary but she refused. She stated that she did not notice while going through the viber chats, the mobile number mentioned on Mark X2 page 217 of the chargesheet as 9646168438 nor she inquired from the prosecutrix about the chat my new number just in case you and your friends require my services. She admitted that she did not get the viber chats, emails, whats apps and gmails authenticated from the service provider nor she seized the mobile phone, laptop of the prosecutrix to send to FSL to rule out its manipulation. She stated that she had asked the mobile phone and laptop from the prosecutrix but she refused.

She stated that she does not remember the date when the incident of throwing of stones at the house of the prosecutrix at Panchkula took place. She stated that she had made inquiry on the complaint dated 13.03.2015 from the landlord but he told her that no such incident took place. She admitted that the wife of the accused namely Pooja had also made complaint against the prosecutrix that she has been receiving threatening phone calls from the prosecutrix that she wants to marry her husband at any cost and she should agree to file mutual divorce. She admitted that some of the messages are not in continuation FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 33/69 of early messages and she did not seek any explanation from the prosecutrix. She admitted that the mobile number 9988358572 and 9646168438 belong to the prosecutrix. She admitted that the red diary given to her by the prosecutrix was taken back by her and she again gave it after few days. She stated that no one told her in Hotel Stallion that they had heard hue and cry in July 2014 when the prosecutrix was allegedly beaten by the accused. PW17 Mridul Rajput stated that he worked as a Manager in Hotel Stallion for the period from August 2010 to April 2014. He had seen the accused Vijay Singh Bainsla staying regularly in the hotel with the prosecutrix. They had introduced themselves as husband and wife. He proved the bills and ID proofs and stated that he had given in writing to the police in this regard vide Ex.PW17/A. He stated that the room in the hotel used to be booked by the prosecutrix. He was confronted with his statement Ex.PW17/A where it is not mentioned that they had introduced themselves as husband and wife. He admitted that he did not identify the accused before the police nor participated in TIP nor gave description of the accused to the police. He stated that in case of husband and wife, ID proof of either husband and wife is taken. The prosecutrix had always stated that the accused is her husband so they did not ask the ID FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 34/69 of the accused. He stated that they are required to mention about number of persons staying in the room but in the case of discounted booking, they show single occupancy. He, however, admitted that there is no such norm. He also admitted that they do not mention in the bill that it is a discounted booking. He stated that in the bills Ex.PW17/C1 to C6, normal room tariff and actual tariff charged is mentioned.

STATEMENT OF THE ACCUSED U/S 313 CR.P.C. :

6. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him. He admitted that he had been working in Mohali but he denied having approached the prosecutrix to do his profile. He stated that in fact the prosecutrix had approached him to do a profile. He stated that she used to call him for official work and help in getting a job for Vishal Singla with whom she had recently broken as told by her. The story of her abortion is false. She made a false complaint against him. All the bills are manipulated and fabricated. He stated that he had stayed in Hotel Bella Vista, Panchkula with his wife. The chats, emails and whats app are manufactured and manipulated documents. He stated that PW4 had called and requested to meet him. PW3 was threatening to commit suicide and to ruin his family life. She was taking sedative since 2009 to 2010. He stated that he had met PW7 once in relation to his profession. He never promised to marry her. He knew her because of the work. He stated that he has been living a happy married life with his wife and son. There is no dispute or discord between him and his wife. In fact, the prosecutrix was using all FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 35/69 kinds of pressure and blackmailing tactics on him to get him separated from his wife and to live with her. She made the false allegations of stone throwing at her Panchkula residence. He stated that at that time he was in custody. He stated that the prosecutrix also threatened his family during the Court proceedings.

DEFENCE EVIDENCE :

7. In defence, the accused did not examine any witness.

ARGUMENTS & CONTENTIONS :

8. I have heard the arguments advanced by Ld. Counsel Sh. Jitender Sethi for the accused and Ld. Addl. PP Sh. Mohd. Iqrar for the State.

9. Ld. Counsel for the accused vehemently argued that the prosecutrix is aged 31 years, well qualified, Post Graduate and Journalist by profession.

She knew since beginning that the accused is married having son and spouse living with him. She had worked with the leading newspapers Indian Express, Hindustan Times and Tehelka, which have legal cells. She had reported Ruchika Molestation case. She was well versed with the legal aspects being a journalist. She was also knowing the police officials and lawyers while reporting the matter to the Crime. She was a joint author of an article titled "Fresh FIR filed, new law coming on sex offences" dated 30.12.2009 reported in Indian Express Newspaper. She very well knew about the time taken for divorce by mutual consent. She had relationship with the accused since 2009. Ld. Counsel stated that it is a known fact that the status of any case could be known from the website and it is unbelievable that for 3½ years of her alleged relationship with the accused, she could not know about the status of filing of alleged mutual divorce in the Court at Delhi. Ld. Counsel stated that in the profile which she made in 2009, it is mentioned that accused is having his family and he is very FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 36/69 much attached to his son who is his role model. It is beyond anybody's prudence to imagine that the prosecutrix who conducted a newspaper profile would not have gone into the personal aspect of the accused particularly of his marital life. In her typed complaint dated 06.01.2015 forming registration of case and her statement u/s 164 Cr.P.C., she did not allege that she became pregnant from the relations made by the accused or the accused forced her to abort the pregnancy. She made the allegations regarding pregnancy and abortion in her subsequent complaint dated 31.01.2015. Ld. Counsel stated that even if it is assumed that what the prosecutrix has stated is true, a case for consensual relationship is made out and in no circumstances, it can be said that the physical relations between them were under misconception or misrepresentation to constitute an offence of rape. Ld. Counsel referred the diary Ex.PW3/P4 which the prosecutrix used to write and contended that in the diary, the prosecutrix did not mention about divorce or marriage although, she used to write all the major events day to day in the diary. From the documents filed by the prosecutrix i.e. viber chats, whats app, messages, gmails, nothing can be inferred that the accused at any time had promised to marry her. The messages do not carry the certificate u/s 65B of the Indian Evidence Act. She was using mobile phone make Samsung in the year 2012. She took the back up in the computer / laptop. She did not hand over her mobile phone from which she had taken the back up in her laptop though it was asked by the IO. The explanation given by the prosecutrix that she had contacts in her mobile phone does not inspire confidence. Ld. Counsel stated that the contacts could be transferred from the SIM. She should have handed over the mobile to the police to verify its authenticity being primary evidence. It shows deliberate act on her part. The investigating agency did not seize FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 37/69 her laptop nor the prosecutrix produced it in the witness box. Ld. Counsel referred the proceedings of this Court dated 22.01.2016 where the accused had stated that he had seen the whats app and viber chats on the mobile of the prosecutrix but the whats app for the period from 23.02.2014 to 15.05.2014 are missing in the mobile, forming part of the court record. Ld. Counsel stated that the prosecutrix has admitted that the above messages got deleted from her phone, however, she had taken the back up of the same which she placed on record. Ld. Counsel stated that as per the details, total whats app pages and viber chats should be 297 pages and 74 pages respectively (total 371 pages) but as per the certificate, there are 107 pages. The chats and emails submitted with the chargesheet comprise of 120 pages. So, how can it be known which are the extra 13 pages. Ld. Counsel referred the case of Anvar P.V. Vs. Bashir & Ors. Civil Appeal No. 4226/2012 and submitted that the print out was taken by the prosecutrix on 20.01.2015 i.e. after the FIR. In none of the chats, there is mention of promise of marriage or divorce to his wife. Ld. Counsel stated that the prosecutrix adopted the policy of cherry picking as there is no continuity in the chats. She did not offer any explanation in this regard. Ld. Counsel stated that the softwares are available by which the whats app and messages can be edited. Ld. Counsel stated that it is a case of clear cut tampering and manufacturing of documents. Ld. Counsel stated that when she was aware that divorce is a precondition for marriage, there was no question of her going to Ahmedabad for marriage. She knew that it was not a marriage.

Ld. Counsel contended that the prosecutrix herself booked the room in Hotel Stallion, East of Kailash whenever she came to Delhi. Ld. Counsel also referred the bills and guest register of the hotel to contend FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 38/69 that the booking was for a single person. Bills of Hotel Stallion placed on record show the entry of one person in the column of number of persons. PW17 in his crossexamination has stated that in the case of discounted booking, he used to show single occupancy. Ld. Counsel stated that the statement of PW17 is contrary to the record as one of the bills dated 20.12.2013 shows double occupency and the bill was also a discounted bill. Ld. Counsel stated that as per the case of prosecution, their relations prolonged for many years. No explanation came as to why she continued relationship with the accused when she knew that he is married and she did not know if his divorce case has been decided or not. Why she not severed relations after six months which time is usually taken for mutual divorce. Ld. Counsel stated that she continued the relations since she enjoyed it. She could have said 'no' for sexual intercourse when there was no divorce. She continued relations even after heated arguments. As regards pregnancy, Ld. Counsel contended that in the email dated 04.12.2014, she has admitted that she was madly in love with the accused. She did not mention in her personal diary about her pregnancy nor informed her mother about her pregnancy or abortion though she was very close to her. Ld. Counsel stated that PW4 and PW5 never tried to meet the accused who proposed PW3 to marry nor they tried to find out the reasons for the marital discord between the accused and his wife nor they tried to meet his parents. In support of his contentions, Ld. Counsel referred the cases of Harimohan Sharma Vs. State NCT Delhi (Delhi High Court) 2016 (2) Crimes; Rohit Tiwari Vs. State (Delhi High Court) 2016 (8) AD (Delhi) 111; Stephen Selvaraj Vs. State (Madras High Court) (DB) Criminal Appeal No. 273/2014; Gaurav Magoo Vs. State NCT Delhi (Delhi High Court) Criminal Appeal no. 369/2014; Uday Vs. State of Karnataka AIR 2003 Supreme Court 1639; State of MP Vs AntramUike (Madhya Pradesh FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 39/69 High Court) MANU/MP/0320/2009; Ramlal Yadav Vs. State (Delhi High Court) MANU/DE/3616/2015 Criminal Appeal no. 1090/2013; Mohd. Bilal Qureshi Vs. State (Delhi High Court) MANU/DE/1413/2016 Criminal Appeal no. 327/2015; Sujit Ranjan Vs. State (Delhi High Court) Criminal Appeal No. 248/2010; Rohit Chauhan Vs. State of NCT (Delhi High Court) Bail application 311/2013; Mahesh Balkrishna Dandane (Bombay High Court) Criminal Appeal no. 27/2014. Ld. Counsel stated that PW4 has stated that the prosecutrix had told him about her pregnancy in December 2014 though in her testimony, PW3 has stated that she became pregnant in July 2011. No explanation came as to why she disclosed it in December 2014 only. In the testimony of PW5 /mother of prosecutrix, there is no whisper of the pregnancy and termination. Ld. Counsel stated that PW4 is telling lie on this aspect though they had detailed discussions jointly. Ld. Counsel stated that there is no medical record of her pregnancy and termination of her pregnancy. She made the allegations regarding her pregnancy on 31.01.2015 for the first time and how it can be said that it was so because of social stigma. Ld. Counsel contended that the prosecutrix even forced the accused to marry her when he was in custody. Ld. Counsel also referred the emails Ex.PW12/DB and stated that when the accused forced abortion why she continued relations with him. She herself has stated that she did not want to become single mother because of social stigma but even then she continued physical relations with the accused. Ld. Counsel stated that the prosecutrix refused her internal examination because she was afraid that she would be exposed that she was never aborted. Ld. Counsel referred the testimony of PW7 to contend that prosecutrix had relations with Vishal Singla as evident from the FIR Ex.PW5/DA. PW7 has stated that the behaviour of the prosecutrix made an impact in her life. She started feeling depressed. Ld. Counsel stated that the FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 40/69 prosecutrix did not place on record any proof of her marriage or her honeymoon with the accused as alleged. Ld. Counsel stated that the accused never promised to marry her and their physical relations were consensual. The prosecutrix very well knew that the accused is married and has not taken divorce from his wife.

10. Ld. Counsel contended that the prosecutrix in her testimony has alleged that on 03.12.2014, the accused threatened her but the corresponding chats dated 03.12.2014 show no such threat. PW16 in her testimony has stated that during investigation, the prosecutrix had alleged that her house was stoned at Panchkula but it was not found correct as the landlord of the house had stated that no such incident ever happened. Ld. Counsel stated that there is no iota of evidence to prove the charge u/s 506 IPC against the accused.

11. Ld. Counsel stated that PW3 has stated that on 24.07.2014, she was physically assaulted by the accused in Hotel Stallion but there is no bill to show the stay of the prosecutrix in the hotel on 24.07.2014 in exhibits Ex.PW3/P7 nor there is any entry in the guest register Ex.PW6/A. Ld. Counsel stated that the entire story of the prosecutrix is uncorroborated and devoid of merit and truthfulness except the fact that if the prosecution case is taken as gospel truth, it would be a case of consensual relationship of the prosecutrix with the accused which continued for a long time. Ld. Counsel stated that as per settled proposition of law, it would be considered as consensual and not on misconception of fact.

12. Ld. Counsel stated that from the very inception, the investigation in this case is totally bias, tainted and lop sided. No corroborative evidence of any nature whatsoever has been collected by the IO to support the version of the prosecutrix. IO did not make any effort to file the CDRs of two FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 41/69 mobile phones being used by the prosecutrix and one mobile phone being used by the accused. She did not make any effort to get the viber chats, emails and gmails authenticated from the concerned service provider nor she obtained the certificate u/s 65B of the Indian Evidence Act from the Service Provider. The mobile phones and the laptops were not sent to FSL to rule out the tampering or fabricating the documents. Ld. Counsel submitted that the prosecution has miserably failed to prove the case and the accused deserves to be acquitted of the charges.

13. The prosecutrix filed her written submissions contending that in all the visits made at Hotel Stallion, Delhi, the accused promised her that he would marry her. She trusted him blindly and never doubted his intention. On many occasions, he booked her tickets from Delhi to Chandigarh and Chandigarh to Delhi. He manipulated her though his intentions were not clean. She stated that she never refused to give her phone for forensic examination. She stated that during evidence, she had shown her mobile phone and got checked. The defence never asked the Court to send her phone to FSL. She had also brought her laptop in the Court. The defence counsel never asked her laptop to be sent to the FSL. The contention of the defence counsel that she never produced the phone and laptop, is false. The prosecutrix further submitted that she is journalist and her number was in public domain. All the private companies maintain Public Relation Cell where they keep the record of journalists and their phone numbers. She never concocted the story of her termination of pregnancy. She did not mention it in the FIR or in the statement u/s 164 Cr.P.C. because it was a grave personal loss to her. She has still not been able to come to terms with it. She was 27 years of age at that time. The accused tricked her into aborting the baby much against her wishes. He convincingly administered FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 42/69 her pills and created a situation where she was not left with any other choice but to complete the course. The mail dated 12.02.2012 and the messages prove that she never wanted to abort the pregnancy but he forced her. She brought this fact after the FIR when she realized that she has nothing more to lose. She had already lost her honour and reputation, so she made it public. She referred her email dated 12.02.2012, whats app dated 03.12.2014 in this regard.

She contended that she never hide from the court about her educational and professional background but she can not be fleeced and cheated to the extent of her honour and modesty. She denied having tampered the emails, whats apps and viber messages and stated that if she had to do so, she would have made the evidence more incriminating and hard hitting. The testimony of PW6 shows that the accused used to stay with her in Hotel Stallion which fact is also corroborated by PW17. She stated that she was not using smart phone at that time. She never envisaged that things would come to such a pass. She stated that on 23.07.2014, the accused had brutally beaten her in Hotel Stallion and the fact of her stay on that day can be seen from the record of the hotel. He left her so traumatized and shaken emotionally and mentally, she can not forget the date. She stated that on a cumulative reading of chats, viber chats and email etc. it can well be inferred that there were discussions on future and marriage. She referred the email chats dated 13.01.2011, 19.07.2011, 06.09.2011, whats app chats dated 01.06.2014, 13.08.2014 and 15.08.2014 in this regard. She stated that the messages clearly show that there were talks of marriage and divorce. She also referred the viber chats dated 13.06.2014 and 14.06.2014. She stated that the messages clearly prove that the accused had talked in sexually explicit manner which can not be called FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 43/69 as part of friendly overtures. She referred the email chats dated 13.02.2011, 18.07.2011, 26.03.2011 and 28.03.2011 in this regard. She stated that on 03.12.2014, she had sent the message and also talked to the accused. As regards contention why she did not wait for six months and was so eager to form relation with him, she stated that at that time, she had passed her post graduation and started her career. She was not so worldly wise. The accused was 13 years elder to her. He was more experienced than she was. He was exposed to the world. He very well knew what he was doing with her. He made the false commitment and promise of marriage. He took the advantage of her young age and abused her physically and mentally. She stated that although she had covered legal beats and Ruchika molestation case but she was not aware that alimony and custody of child is to be finalized before mutual divorce. She believed on the accused as gospel truth. She never thought for a moment that he had ulterior motive. She had blind faith on him.

As regards the fake email ID [email protected], she stated that the accused had used fake email ID to chat with her. His intention was malafide. As regards contentions that the accused had left her stranded in Ahmedabad and even she continued her relations, she stated that accused manipulated her emotionally and professionally. He always promised a rosy future and a happy married life. He always bagged her to continue with the relationship on the pretext of getting married and being together always. Whenever he sought forgiveness from her, he did it so craftily that it sounded like someone who was genuinely apologetic. About the email regarding her pregnancy dated 13.08.2011, she stated that the accused administered her pills without her knowledge on 22.07.2011. She was not left with any other choice but to complete the FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 44/69 course otherwise it would have had some serious hazards. After consuming the remaining dose, she started bleeding on 25.07.2011. The email shows that the accused was keeping the track of the termination since the day he gave pills to her. She also referred the mail dated 12.02.2012 and whats app and viber chat wherein she had experienced pain, trauma, emotional and mental setback because of forced abortion. In her message dated 29.06.2014, she had expressed that she would never be able to experience now what motherhood is after all he made her to go through. She referred the email chats dated 19.03.2012 to contend that the accused had confessed about the abortion in his own words. She stated that there can not be a medical record of this. She denied that she was involved with Vishal Singla. She stated that Renu Mathur no where admitted that Vishal Singla and his wife visited her. She stated that the accused knowingly and consciously led her on the false promise of marriage. He manipulated her by promising her a future while his intention was malafide and malicious. He also tricked her into terminating the pregnancy with ulterior motive. He used her and her blind faith to satisfy his lust. He cheated her knowingly and ruined her life.

14. Ld. Addl. PP contended that the intention of the accused since inception was not to marry with the prosecutrix. He falsely claimed to the prosecutrix that his petition for mutual divorce is pending in the court and very soon he would divorce his wife and marry her. He physically and sexually exploited her number of times giving her false promise of marriage. At Hotel Stallion, he put vermilion on her parting and said that now they are married. He stayed with the prosecutrix in a hotel at Dubai for Honeymoon. From the relations made by the accused, she became pregnant but the accused got terminated the pregnancy forcibly. He FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 45/69 stopped talking to her which made the prosecutrix in mental shock and trauma. She told the incident to her mother and brother and thereafter, she made the complaint. The emails clearly show that she became pregnant from the relations made by the accused. It is true that in the complaint and the statement, she did not allege her pregnancy and in her subsequent statement dated 31.01.2015, she alleged about her pregnancy but the documentary evidence shows that she became pregnant in 2011 and the accused forced her to abort the pregnancy. Ld. Addl. PP stated that the accused never took divorce from his wife but he kept on fooling the prosecutrix that very shortly, his case for divorce would be settled. The prosecutrix had blind faith on him so she did not try to know from the Court or her legal circle about the status of his case. Ld. Addl. PP stated that the documents and the testimony of the prosecutrix clearly prove that the accused made physical relations with the prosecutrix giving her false promise of marriage and it is not a case of consensual relationship. FINDINGS :

15. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and have gone through the statements of the witnesses and the documents on record and also the case laws referred during the course of arguments.

The accused has been charged with the offences of rape, causing miscarriage to the prosecutrix and criminal intimidation. As such, before adverting to the merits of the rival contentions, a reproduction of the definition of the offences would be necessary and relevant.

16. Section 375 defines rape. It reads as:

"Rape A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 46/69 falling under any of the six following descriptions: First: Against her will.

Secondly: Without her consent.

Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.......

Fifthly..........

Sixthly: With or without her consent, when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception.......

17. Section 313 IPC provides: whoever commits the offence of causing miscarriage without the consent of the woman, whether the woman is quick with child or not, shall be punished.

18. Section 506 IPC provides: whoever commits the offence of criminal intimidation shall be punished.... Criminal intimidation is defined u/s 503 IPC and it means: whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

19. The basic question now is whether the prosecutrix ever consented for the sexual intercourse because of her love for the accused or her consent was obtained under misconception of fact.

20. Section 90 of the IPC defines consent. It reads: a consent is not such a 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 FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 47/69 the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.....

21. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance the good and evil on each side. Consent in rape covers states of mind ranging widely from actual desire to reluctant acquiescence. Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.

22. In the case of Rao Harnarain Singh Sheoji Singh vs The State, AIR 1958 P H 123, the High court while holding the accused liable for the offence of rape has distinguished between the word 'consent' and 'submissions' as shown below:

(1) A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law.

(2) 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 moral quality of the act, but after having freely exercised a choice between resistance and assent.

(3) Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent.

(4) Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 48/69 accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.

(5) A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wants. Consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.

23. The expression 'under a misconception of fact' is enough to include a case where the misrepresentation, made by the accused, leads to a misconception of fact in the mind of prosecutrix, who, believing the misrepresentation made to her and presuming, it to be true and correct, forms a misconception of fact that the accused was definitely going to marry her and acting thereupon, she consents to have sexual intercourse with him.

24. In Sujit Ranjan Vs. State 2011 Law Suit (Del) 601, it was held:

"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 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 FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 49/69 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."

25. A bare perusal of testimonies of the prosecution witnesses and the material placed on record would show that the prosecutrix at the time of incident was 27 years of age. She was a Journalist. She used to look after the beats including the matters related to crime, health and education. She had also covered Ruchika Molestation case. She was well versed with legal aspects being a journalist having worked with the leading newspapers which also had legal cell. At the time of incident, she had been working with Indian Express newspaper. The accused had been working with a company named 'Connect'. She had contacted the accused to do a profile on him for the newspaper. The accused had called her on 12.11.2008. The profile made by her is available on the site of Indian Express. In that profile, the accused has commented about his son that he is his favourite / role model. She worked in Hindustan Times from 2010 to 2011. She used to live alone at Panchkula. She knew that accused was married living with his spouse and son.

26. PW3 has stated that in 2010, she had met the accused few times in Chandigarh. He told her that he is in an unhappy marriage; he has no cordial relations with his wife; he did not have any physical relation with his wife for last many years; they both sleep in different rooms and have filed divorce by mutual consent. She has further stated that the accused asked her to get in relationship with him but she refused objecting to its sanctity since he was married. He convinced her that he has already filed petition for divorce and he then professed his feeling to her and told her that since his divorce is already underway, there is nothing wrong in the FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 50/69 relationship. He proposed her for marriage. By the end of 2010 and beginning of 2011, they got into relationship. He asked her to meet him in a guest house at Delhi where he established physical relation with her after promising to marry her. From 2011, he started meeting her every week at different places at Delhi and established physical relations with her giving her assurance of marriage. She, however, admitted that she did not try to find out from his wife about her relations with the accused. She has stated that she was well aware about the offences against females. She has stated that during their relations, she never came to know where the divorce case was filed and what was the status of the case. She has stated that she had asked the accused to show papers regarding his divorce and get her talked to his lawyer but he did not. It has come in her testimony that even then, she continued to have physical relations with him. It is strange that she without verifying the status of his divorce agreed for the physical relations, specially when the accused did not tell her the status of his case, nor made her talk to his lawyer about his divorce and she knew that it has no sanctity in the eyes of law. Her testimony shows that she was well versed with the legal aspects, she knew the lawyers and the police and her office had a legal cell. Even then, she did not try to find out from her own resources about the status of his divorce before going into the physical relationship. Her explanation that she did not consult the legal cell because it was her personal matter is unworthy of credence. It is not the case that the accused made physical relations with the prosecutrix once or twice rather their relations continued for about four years and even during the period of four years, she did not try to find out the status of his divorce. It is relevant to mention that normally the petition for divorce by mutual consent is decided within six months or a year. Her FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 51/69 explanation that she blindly trusted the accused or that she was madly in love with him, does not inspire confidence. How she trusted the accused who allegedly mixed medicines in her food without her consent, which made her abort her pregnancy. Her testimony goes to show that even thereafter the accused made physical relations with her.

27. PW3 has deposed that in September 2011 the accused joined a company at Ahmedabad. He asked her to come there as he has been looking for a house for both of them. He also told her that he has talked to a Pandit of a nearby temple to perform their marriage. On 29.09.2011,she went to Ahmedabad where she stayed in Hotel Park Plaza for four days and during those four days, he established physical relations with her. When she asked him about the program of marriage, he told her that it is to be delayed for some days as he has some official work. It is to be noted that by that time, the accused had not taken divorce from his wife. She fully knew that the said marriage has no sanctity in the eyes of law, but still she went to Ahmedabad to marry him in the temple and live with him. It is strange that she believed on the accused who had time to make physical relations with her but did not have time to marry her in the temple which was nearby her hotel.

Testimony of PW3 would further show that after 2 - 3 weeks, the accused again called her at Ahmedabad giving her the same assurance where he made her stay for few days in the hotel and established physical relations with her. It has also come in her testimony that he again avoided the issue of marriage and left her stranded in the unknown city, she herself cleared the bills and he switched off his mobile phone. It is strange that even then she believed on him and continued relations with him fully knowing that his divorce case has not been finalized. She was well FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 52/69 educated, matured enough and had adequate intelligence to understand the significance and morality associated with the acts she was consenting to. It was an act of promiscuity on her part and not an act induced by misconception of fact. It was held in the case of Gaurav Magoo Vs. State of NCT Crl. Appeal no. 369/2014 dated 29.05.2015 that if a fully grown up lady consents to an act of sexual intercourse on a promise to marry and continues to indulge in such activities for long, it is an act of promiscuity on her part and not an act induced by misconception of fact.

28. In the case of Kaini Rajan Vs. State of Kerala (2013) 9 SCC 113, it was held that consent is stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. A misrepresentation as regards the intention of the person seeking consent could give rise to the misconception of facts but a promise to marry without anything more will not give rise to misconception of facts within the meaning of Section 90 IPC.

29. In the case of Uday Vs. State of Karnataka, AIR 2003 SC 1639 it was held that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activities until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact. It was held:

"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 FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 53/69 under a misconception of fact. A false promise is not a fact within the meaning of the Code.

30. In Deepak Gulati Vs. State of Haryana 2013 VI AD (S.C.) 233 2013 Law Suit (SC) 442, it was held:

"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. 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 misrepresentation made to her by the accused.

31. In the case of Rohit Chauhan vs. State NCT of Delhi, 2013, Bail application no. 311/2013 dated 22.05.2013, it was observed:

"There may be cases where both persons out of their own will and choice develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship but when the relationship breaks due to one or the other reason, the woman uses the law as a weapon for vengeance and personal vendetta."

32. In the case of Mohd. Iqbal Vs. State, Bail application no. 2145 of 2009 it was held by Hon'ble High Court as under :

"There is an old Jewish saying "if you are close when you should be distant, you will be distant when you should be close". It is for both man and woman to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral and ethical, both, on the part of men not to exploit any woman FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 54/69 by extending false promise or through devious acts to force or induce the girl for sexual relationship. But ultimately, it is woman herself who is the protector of her own body. Promise to marry may or may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues."

Stay of the accused with the prosecutrix in hotel Bella Vista at Panchkula:

33. PW3 has deposed that on 19.04.2012, the accused came to India from Nigeria and flew straight to Panchkula to meet her. He stayed in a hotel Bella Vista, Panchkula for four days till 23.04.2012. He made her stay with him and established physical relations with her. He told her that his divorce case is under way and discussions are going on regarding alimony and settlement. Perusal of the bills of hotel Bella Vista would show that the room was booked in the name of accused. Two persons had stayed there as husband and wife. The accused has stated that he had come with his wife to stay there. Testimony of PW9 shows that Vijay Singh and Mrs. Singh had stayed in the hotel from 19.04.2012 to 23.04.2012. There is no document of the hotel to show that the accused had stayed with the prosecutrix. It is also to be mentioned that in a petition for mutual divorce, the alimony is decided prior to filing the petition and not thereafter.

Whatsapp, Emails, and Viber chats and their admissibility:

34. After going through the whatsapps, emails and viber chats exchanged between the prosecutrix and the accused, I am in agreement with the contentions of Ld. Counsel for the accused that the aforesaid chats etc. are not in continuity. Record shows that when the prosecutrix handed FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 55/69 over the copy of the whatsapp conversation Ex. PW3/P1, chats and emails Ex.PW3/P3 and viber chats Ex.PW3/P2, she did not hand over her mobile phone nor her laptop from which she had taken out the prints of the same. She did not give the certificate u/s 65B of the Indian Evidence Act with the chats and emails. She filed the certificate u/s 65B of the Indian Evidence Act Ex.PW3/J and Ex.CW1/A later and produced her laptop and mobile phone in the Court but when she produced the above certificate, she did not file the print out of the above chats / emails. Her testimony shows that she had transferred the viber chats and whats app conversation from her Samsung mobile phone which she was using earlier into her Iphone when she handed over the prints out to the IO. She has also stated that she transferred the data since the Samsung phone was giving trouble. In the instant case, Ex.PW3/P1, Ex.PW3/P2 and Ex.PW3/P3 do not contain the whats app conversations, SMS, viber chat or emails of the period from 19.03.2012 to 28.03.2013. Although, the prosecutrix has stated that she did not have the smart phone but question is that how without the smart phone, she made conversations in 2011.

35. On a careful scanning of the above conversations and emails, I find that there are gap of days between the said conversations i.e. 01.06.2014 to 11.08.2014 (71 days), 13.10.2014 to 03.12.2014 (51 days) and 11.09.2014 to 29.10.2014 (50 days). No plausible explanation came from the side of the prosecutrix as to why there were so much gaps. Further, the chats, whats app and emails placed on record are not in continuation. Although, the prosecutrix has stated that she had given the complete print out of the chats exchanged between them and she never deleted the whats app and she has also denied that the prints out filed alongwith the chargesheet are selective FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 56/69 and cherry picking but the record is contrary to this fact. Ld. Counsel has also demonstrated from the viber chats, whats app conversation and emails that the aforesaid communications are not in continuity. When the prosecutrix was asked to clarify, she stated that she does not want to answer this question. Even, there are variations in dates when the prints out were taken. It creates suspicion on the correctness and authenticity on the said certificate u/s 65B of the Indian Evidence Act.

36. It was held in the case of Anwar P.V. versus P.K. Basheer and Others (2014) 10 SCC 473 that electronic record produced for inspection of the Court is documentary evidence u/s 3 of the Evidence Act. If primary evidence of the electronic record is adduced i.e. the original record itself is produced in Court u/s 62, then the same is admissible in evidence without compliance u/s 65B. An electronic record by its way of secondary evidence shall not be admitted in evidence unless the requirements u/s 65B are satisfied. Thus, in the case of CD, VCD, chip, etc. the same shall be accompanied by the certificate in terms of section 65B of the Indian Evidence Act obtained at the time of taking the document without which, the secondary evidence pertaining to that electronic record is inadmissible. Any documentary evidence by way of electronic record under the Indian Evidence Act in view of Sections 59 and 65A can be proved only in accordance with the procedure prescribed u/s 65B of the Indian Evidence Act. It was clarified that the person needs only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 57/69 same is produced in evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

37. In the case of Kundan Singh v. The State, Crl. A No. 711/2014 decided by High Court of Delhi on 24.11.2015, it was held that CD is an electronic record and as per the ratio of the Supreme Court in Anvar P.V. v. P.K. Basheer and Ors. supra, certificate under Section 65B of the Indian Evidence Act, is required for admitting secondary evidence. It was held that the certificate u/s 65B can be produced when the electronic record is admitted and taken on record. It was observed that in Anwar P.V. supra, the Supreme Court noticed the difference between relevancy and admissibility, which is examined at the initial stage; and genuineness, veracity and reliability of the evidence, which is seen by the court subsequently. Thus, the ratio and dictum in Anwar P.V. supra is based and predicated on the difference between admissibility and veracity or evidentiary value. In terms of subsection (1) to Section 65B, original evidence need not be produced when conditions of Section 65B are satisfied. The computer output in relation to the information and computer in question are admissible as secondary evidence, when certificate under Section 65B is produced. However, Section 65B nowhere states that the contents of the computer output shall be treated as the truth of the statement. Section 65B deals with admissibility of secondary evidence in the case of "electronic records" and not with the truthfulness or veracity of the contents. However, when a certificate under Section 65B is produced, the Court may presume or form a prima facie opinion which is rebuttable and may not be accepted. Mere admission or admissibility of the electronic record would not mean FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 58/69 that the contents of the electronic record have been proved beyond doubt and are automatically proved when the document is marked exhibit. For electronic evidence to be seen or read or heard as primary evidence by the court, the law requires that the original device in which the electronic evidence is stored/transmitted is placed before the court. None of the above cited sections or Section 65B of the Indian Evidence Act precludes the Court from inspecting the original document, or acting upon its contents.

38. In the instant case, Ld. Counsel has produced a CD and demonstrated that even the contents of the chats, emails and viber chats can be altered or manipulated by using a software. Further, the prosecutrix is silent about the data for the period from 19.03.2012 to 28.03.2013. It is relevant to mention that, as per the proceeding dated 07.01.2016, the accused had requested to see the whats app and viber chats on the mobile of the prosecutrix. The prosecutrix after giving no objection showed it to the accused and she admitted that whats apps for the period from 23.02.2014 to 15.05.2014 do not exist in her mobile forming part of the court record. She has stated that the said messages got deleted from her phone, however, she had taken the back up of the same, which she had placed on record. Looking into the circumstances and in the absence of forensic examination of the mobile phone and the laptop of the prosecutrix, it can not be conclusively held that the data which prosecutrix has placed on record is authentic and there was no addition, deletion and edition.

39. For the sake of arguments even if it is assumed that the same is true, none of the above chats or emails finds mentioned about the prosecutrix asking the accused about the status of his divorce or the accused promising to marry her. In the instant case, PW3 has stated that she detected her pregnancy on 11.07.2011 but the first communication allegedly in the chats FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 59/69 about her pregnancy and termination was on 12.02.2012 only.

The incident qua the accused putting vermilion in the parting of the prosecutrix and their stay in Hotel Stallion at East of Kailash, New Delhi:

40. Testimony of PW3 shows that on 20.03.2013, the accused had put vermilion on her parting in Hotel Stallion and told her that now they are married and she should not feel insecure. In the instant case, no photographs as to the accused putting vermilion on her parting are placed on record. It is not the case that the prosecutrix was not using the mobile phone at that time. Question arises what had prevented the prosecutrix from capturing the pictures of that moment which according to her was an important event in her life. Further, no such conversation of her marriage on 20.03.2013 appears in her viber chats, whatsapp and emails etc.

41. PW3 has stated that she was in habit of writing personal diary. In the instant case, the diary Ex.PW3/P4 produced by the prosecutrix does not contain any writing qua the accused promising to marry her or the accused taking divorce from his wife or the accused putting vermilion on her parting or she becoming pregnant or she aborting the pregnancy. It is relevant to mention that after the alleged marriage, she stayed with the accused at hotel Ramada, Dubai to celebrate her honeymoon but in the hotel record, she did not mention that she is the wife of the accused. It has come in the testimony of PW16 that the prosecutrix during investigation had taken back the diary from her and returned it after few days so in these circumstances, the possibility of adding something in the diary after the registration of the case can not be ruled out.

42. As regards the stay of the prosecutrix with the accused in Hotel Stallion, East of Kailash, record and the testimonies of PW3, PW6 and FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 60/69 PW17 show that whenever the prosecutrix stayed with the accused at hotel Stallion, it was she who booked the room and in all the entries the prosecutrix has mentioned the purpose 'official'. PW17 has stated that the prosecutrix used to give her ID. They are required to mention about the number of persons staying in the room but in the case of discounted booking, they show single occupancy, however, there is no such norm. Question arises how this person / PW17 can be believed who instead showing two persons staying in the room showed single occupancy against the norms. Although PW17 has stated that he had seen the accused staying regularly in the hotel with the prosecutrix and they had introduced themselves as husband and wife but in his statement Ex.PW17/A given to the police, he did not mention this fact. In the bills, single occupancy has been shown. It is not understood on what basis, PW17 has stated that the prosecutrix and the accused used to stay in the hotel together.

43. PW3 has deposed that on 24.07.2014, she had met the accused at Hotel Stallion where they had discussions regarding their marriage. She also asked him about the status of his divorce. It turned into heated arguments. He then physically and sexually assaulted her. It is strange that this incident remained unnoticed from the hotel staff. Her testimony shows that she again met the accused in September 2014 and remained in touch with him. Further, the record of the hotel Stallion is contrary to this fact. It does not contain any entry qua the prosecutrix staying with the accused on 24.07.2014.

Conduct of PW4 (brother of the prosecutrix) and PW5 (mother of the prosecutrix):

FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 61/69

44. PW5 has stated that the prosecutrix had told her about her relations with the accused in 2010 / 2011. She had told her that the accused has filed a petition for mutual divorce and promised her that once his divorce gets through, he would marry her. Surprisingly, PW5 did not verify the status of his divorce during the period from 2010 to 2014 nor tried to contact the accused till May 2014 or his family members. PW4 has stated that the accused had called him from Australia in May 2014 and he met him in Gurgaon where he told him that he is unable to take care of the prosecutrix due to his family and work commitment nor he is able to prioritize his relationship with the prosecutrix. Surprisingly, PW4 did not meet the prosecutrix in May 2014 nor tried to know about her well being and left for Australia after meeting with the accused. He even did not inform it to his mother. This conduct can not be expected from a person of normal prudence who is her real brother.

Meetings with PW7 Renu Mathur, the Tarot Card Reader:

45. PW7 Renu Mathur who is tarot card reader has stated that the prosecutrix used to inquire from her about her work, health of her mother and other routine matters. In 2012, she had brought the accused as he had some major issues in his professional life. She guided the accused and thereafter, he remained in touch with her on phone. She categorically denied that she knew about the relations between the accused and the prosecutrix or she had stated to the police that the prosecutrix used to love the accused very much and she (PW7) had told the prosecutrix about her future with the accused. She has also denied that the prosecutrix had told her that she did not know that the accused was already married. She has rather stated that while introducing the accused, the prosecutrix had told FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 62/69 her that the accused is married having son. She has stated that the prosecutrix never told her that the accused has been taking divorce from his wife or playing with her or that she wanted to marry with the accused nor the accused told her that he loves the prosecutrix and is going to marry her. From the testimony of PW7, it is clear that when the prosecutrix introduced the accused to her, she had told her that the accused is married having son and they never told her that they would marry each other after his divorce from his wife.

Remarks / comments of the Prosecutrix in the chats dated 06.11.2014 and 07.11.2014 :

46. During arguments, Ld. Counsel drew the attention of this Court on the conversations in the chats Ex.PW3/P2 dated 06.11.2014, 07.11.2014, whats app conversation Ex.PW3/P1 where the prosecutrix mentioned my new number just in case you and your friends require my services, I am whore, they came and its wham bam thank you mam. They grope, they push and they shove and all I searched for peace and love. Yesterday has forced me to reflect on a lot of stuffs, it has been so badly damaged, around me I am more of zombie than normal. Testimony of the prosecutrix would show that she used these words in a fit of anger and due to emotions. I fully endorse the explanation given by the prosecutrix that since by that time their relations had become strained, she used these words. I am of the view that no importance can be given to these messages / chats.

47. Facts and circumstances of the present case show that the prosecutrix was very much interested in the accused. She knew that the accused had not taken divorce from his wife and she still went for the physical relations.

It can not be said to be an act of deception of misconception of fact to FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 63/69 constitute to an offence of rape punishable u/s 417/376 IPC. Pregnancy and Miscarriage of the prosecutrix:

48. In the instant case, when the prosecutrix made the complaint Ex.PW3/A on 06.01.2015, she did not allege that she became pregnant from the relations made by the accused and the accused caused her miscarriage. Even during her medical examination on 06.01.2015 vide MLC Ex.PW3/B and her statement u/s 164 Cr.P.C. Ex.PW2/B on 07.01.2015, she did not allege that the accused made her pregnant. She alleged this fact in her subsequent statement dated 31.01.2015 Ex.PW16/DA. Although, she explained that she did not allege it in the complaint Ex.PW3/A because it was a personal loss to her and she did not want to make it public but even in her personal diary, she did not mention about her pregnancy and abortion. Her explanation that after the FIR, she realized that she has nothing to lose as she has already lost her honour and reputation and then she made it public does not inspire confidence. PW5 / mother of the prosecutrix is silent when the prosecutrix told her about her pregnancy. Testimony of PW4 shows that the prosecutrix had told him in December 2014 that from the relations made by the accused, she became pregnant and she aborted the pregnancy. Question arises when she (PW3) had courage to tell her pregnancy to her brother / PW4, what made her not tell it to her mother in December 2014 and not alleging in her complaint Ex.PW3/A, MLC Ex.PW3/B and her statement Ex.PW2/B. It has come in the testimony of PW16 / IO that the prosecutrix had told her in mid January about her pregnancy. Surprisingly, she did not mention this fact in the case diary nor recorded the statement of the prosecutrix u/s 161 Cr.P.C.

in this regard.

PW3 allegedly became pregnant in July 2011. She was aborted on FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 64/69 22.07.2011 but she mentioned this fact for the first time in the chats of February 2012 and May 2014. It is not understood why this fact did not come in the chats allegedly exchanged in July / August 2011. It is not the case that their relations at that time were not cordial. They used to meet and chat. It is not understood why this fact came in the chats of 2012 only and not before. Further, in her personal diary, there is no whisper of her pregnancy and miscarriage. It is not understood why the prosecutrix did not mention it in her personal diary though it was an important incident of her life. In the instant case, I find no cogent material on record to conclude that the prosecutrix was ever forced or compelled to abort pregnancy as alleged. As observed, the parties maintained physical relations even subsequent to that. I am of the view that necessary ingredients of the offence punishable u/s 313 IPC are not proved against the accused. Charge u/s 506 IPC:

49. In the complaint Ex.PW3/A, the prosecutrix has alleged that on 03.12.2014, the accused criminally intimidated her but perusal of the corresponding chats dated 03.12.2014 show that there was no such threat given by the accused to the prosecutrix. Testimony of PW3 shows that the last conversation between her and the accused took place on 03.12.2014 where she questioned about the status of his divorce and her marriage with him. The accused then abused her and threatened her for life. He thereafter blocked her number on voice call and viber. She sent him lot of text messages and literally begged and pleaded him to speak to her at least once but he never reverted back. She waited for him for a month but he never called back. She then made the complaint Ex.PW3/A. Nothing can be inferred from her testimony that the said heated arguments alarmed her.

Had there been threat to her life, she would not have tried to contact the FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 65/69 accused thereafter. Further, she has admitted in her testimony that she has shifted in the society at Noida where the accused has been living with his family.

PW16 has stated that during investigation the prosecutrix had alleged that her house was stoned at Panchkula but on investigation, this fact was not found correct as the landlord of the house categorically stated that no such incident ever happened. Even, the incident at Hotel Stallion on 24.07.2014 as alleged by the prosecutrix is contradictory from the bills produced on record as there is no such bill / entry to show the stay of the prosecutrix in the hotel on 24.07.2014. It has rather come in the testimony of PW16 that the wife of the accused had made complaint against the prosecutrix that she has been receiving threatening calls from her that she wants to marry with the accused at any cost.

I am of the view that necessary ingredients of the offence punishable u/s 506 IPC are not proved against the accused. CONCLUSION:

50. Facts and circumstances of the present case show that both prosecutrix and the accused were well educated. They were very well placed in their profession. The accused was already married with his spouse and son living with him. His son was his favourite / role model.

The prosecutrix had met the accused to do a profile on him for the newspaper. They started meeting each other. Their relations continued for about four years. During their relations they made physical relations. The prosecutrix since beginning / inception knew that the accused was married. Although the prosecutrix has stated that the accused had told her that he is unhappy with his marriage and has filed a case of mutual divorce but she never tried to find out from the Court about the status of his divorce before FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 66/69 entering into physical relations with him which she could find easily since she had been working in a leading newspaper which had legal cell. She had contacts with the lawyers and the police. She fully knowing that accused has not taken divorce, went to Ahmedabad to marry with him in a temple. She knew that it has no sanctity in the eyes of law. It was not once but twice she believed and trusted on him who allegedly left her stranded in the hotel at Ahmedabad and switched off his mobile phone. Even thereafter, she met him number of times at different places and had physical relations. I am of the view that it was an act of promiscuity on her part. It can not said that the consent given by the prosecutrtix for the physical relations was under misconception of fact. She was quite matured enough to fully understand what was happening between the two. There is nothing in her evidence to demonstrate that she was incapable of understanding the nature and implications of the acts which she consented to. Her consent for physical relations was an act of conscious decision. It was held in the case of Rohit Tiwari Vs. State Crl 928/2015 dated 24.05.2016 that if a fully grown up lady consents to the act of sexual intercourse on a promise to marry and continues to indulge in such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of facts. In the case of Uday v. State of Karnataka Supra, it was held where the prosecutrix had sufficient intelligence to understand the significance and moral quality of the act she was consenting to, it is difficult to impute that the prosecutrix had consented in consequence of a misconception of fact arising from his promise.

51. On a careful analysis of the testimony of the prosecutrix with the material placed on record, I also find material contradictions and exaggerations. Her testimony can not be said to be of sterling quality . The FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 67/69 allegations of pregnancy and the accused causing miscarriage without the prosecutrix's consent and criminal intimidation are not proved as discussed in the preceding paras.

52. In the case of Narender Kumar Vs. State of NCT Of Delhi AIR, 2012 SC 2281, it was observed: "The Courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts.

53. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence".

54. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest FIR No. : 22/15 PS : Amar Colony State Vs. Vijay Singh Bainsla Page No. 68/69 distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration"

55. In the light of above discussions and findings, I am of the view that prosecution has failed to prove its case against the accused. I, therefore, acquit the accused Vijay Singh Bainsla of the offences punishable under section 417/376, 313, 506I IPC IPC. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs.50,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.

56. File be consigned to the Record Room.

Announced in the open  
court today i.e. 04.02.2017                                ( Sanjiv Jain)
                                                ASJSpl. FTC / Saket Courts
                                                                New Delhi 




FIR No. : 22/15
PS : Amar Colony
State Vs. Vijay Singh Bainsla                                                 Page No. 69/69

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State vs . Vijay Singh Bainsla Page No. 1/69 on 4 February, 2017