Ashish Kumar Alias Chirag vs State Of Himachal Pradesh on 17 October, 2023

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Himachal Pradesh High Court

Ashish Kumar Alias Chirag vs State Of Himachal Pradesh on 17 October, 2023

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 671/2019 Reserved on: 10.10.2023 Decided on : 17.10.2023 Ashish Kumar alias Chirag .....Appellant Versus State of Himachal Pradesh ....Respondent Coram:

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.

Whether approved for reporting?1 No For the Appellant: Mr. Ajay Kochhar, Sr. Advocate with Mr. Vivek Sharma, Advocate.

For the Respondent: Mr. Yashwardhan Chauhan, Sr. Additional Advocate General with Ms. Sharmila Patial, Addl. A.G. and Mr. J. S. Guleria, Dy.A.G. ____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellant/convict has filed the instant appeal against the judgment and order, dated 31.10.2019 and

2.11.2019 respectively passed by the learned Additional Sessions Judge-III, Kangra at Dharamshala, whereby he has been convicted and sentenced to undergo - rigorous imprisonment for a period of 10 years with fine of Rs.50,000/- and in default of payment of fine, simple imprisonment of 1 year under Section 376 of the Indian Penal Code (IPC); rigorous 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 imprisonment of 2 years with fine of Rs.10,000/- and in default of payment of fine, simple imprisonment of 6 months under Section 354-A IPC; rigorous imprisonment of 3 years with fine of Rs.10,000/- and in default of payment of fine, simple imprisonment of 6 months under Section 354B IPC; rigorous imprisonment of 1 year with fine of Rs.5,000/- and in default of payment of fine, simple imprisonment of 3 months under Section 385 IPC; rigorous imprisonment of 1 year with fine of Rs.10,000/- and in default of payment of fine, simple imprisonment of 6 months under Section 506 IPC; rigorous imprisonment of 5 years with fine of Rs.10,000/- and in default of payment of fine, simple imprisonment of 1 year under Section 328 IPC; rigorous imprisonment of 2 years with fine of Rs.10,000/- and in default of payment of fine, simple imprisonment of 6 months under Section 201 IPC; rigorous imprisonment of 2 years with fine of Rs.1,00,000/- and in default of payment of fine, simple imprisonment of 6 months under Section 67 of the Information Technology Act. All the sentences were ordered to run concurrently. 2 The case of the prosecution is that prosecutrix was studying in 1st year in the college. In the last week of October 2016, after closing of the college, when the prosecutrix along 3 with her friends was going to her house, then the appellant who, had come with Bobby, happened to see the prosecutrix and told his friend Bobby that he liked her. The appellant also asked his friend Bobby to put forward a proposal of friendship on his behalf to the prosecutrix. Bobby gave the mobile phone number of the prosecutrix to the appellant. When the appellant made a telephone call to the prosecutrix she then asked him, from where he had obtained her mobile phone number, who, in turn, disclosed that he had obtained her mobile phone number from someone. On this, the prosecutrix asked the appellant not to make telephone calls to her.

3 On the next day, when the prosecutrix had gone to her college, then she asked Bobby that to whom he had given her mobile phone number and Bobby disclosed that he had given her mobile phone number to the appellant as he was asking for the same. On this, the prosecutrix told Bobby that the appellant was harassing/troubling her by making repeated telephone calls. Then, Bobby telephoned the appellant from mobile phone of the prosecutrix and advised him not to trouble her.

4 On the next day, the appellant visited her college and was angry and asked the prosecutrix as to when had he 4 troubled her and he just wanted to talk to her. On this, she told him that she was not interested to talk to him. 5 Thereafter, the prosecutrix and the appellant did not talk for many days. But, after some days, the appellant made a telephone call to the prosecutrix informing her that his brother along with his girl friend was going on a trip and his brother was also asking him to accompany and when he asked the prosecutrix to accompany him to such trip, then she told him that she had to appear in test/examination and he should not make any telephone calls to her.

6 After some days, the appellant again went to the college of the prosecutrix and told her that he was going back and he wanted to talk to her once. After attending her college, when the prosecutrix was going to Palampur, then the appellant told her that he wanted to talk to her as he liked her very much and he was working as Sub Inspector in Delhi Police and further that in case, she was interested, then, he was even ready to marry her. The prosecutrix told the appellant that when she did not like him then why she should marry him. The appellant thereafter went to a shop and brought something added in cold drink and told her that if she did not want to talk to him, she should have the cold drink and the prosecutrix took 5 the cold drink so brought by the appellant and thereafter, became unconscious.

7 The appellant thereafter took the prosecutrix to Hotel Moon Light at Palampur and put off her wearing apparels except the underwear and made her video and clicked her photographs in a nude condition. However, he did not commit any wrong act with her. Later, the appellant started blackmailing her by saying that he would not leak and disseminate her video and photos if she would pay him Rs.20,000/- and after paying the amount, he would give nude photos and video to her. She expressed her inability to pay Rs.20,000/- to him as she was not doing any job. She promised to give him Rs.20,000/- as and when she would get a job and asked him to delete her pictures and video. The appellant in anger told her that she would see how he would defame her. The prosecutrix on account of fear of the appellant closed her mobile SIM.

8 On 9th and 10th November, the prosecutrix came to know that her photos and video had been leaked and disseminated. The prosecutrix told her friends about disseminating her photos and video. She however did not tell about it her family members on account of fear. The appellant 6 also started threatening her that if she failed to reach at the place where, he would call her, then he would leak and transmit her video and he would also affix her poster at bus stand and ultimately, the video of the prosecutrix was sent to her friends. 9 On 23.11.2016, ASI Prem Pal, Incharge of Police Post Thural along with other police personnel was present at place 'Balh Bhurian', then the prosecutrix along with her grandfather submitted a complaint Ext.PW1/A before him and the complaint was then sent to Police Station Palampur upon which FIR Ext.PW16/A came to be registered against the appellant. 10 Investigation was carried out by Inspector Gurbachan Singh, Station House officer, Police Station Palampur and on 8.12.2016, the spot of the incident was inspected and the site plan Ext.PW16/E was prepared on the demarcation given by the prosecutrix. Photographs of the room Ext.PW16/1 to Ext.PW16/D3 were taken. The prosecutrix produced the SD Card Ext.P4 before the police, which was sealed in the cloth parcel Ext.P2 with three seals of seal impression "U" and seal impression "U" was taken on a piece of cloth, Ext.PW4/A and DVD Ext.P6 was put into the cloth parcel Ext.P5 and the parcels were seized vide seizure memo Ext.PW1/C. Statement of the prosecutrix Ext.PW1/B under 7 section 164 Cr. P.C. was got recorded on 25.11.2016 before the court of learned Additional Chief Judicial Magistrate, Palampur and then, Section 376 of the Indian Penal Code was added in the present case.

11 The appellant produced his mobile phone Ext.P8 before the police on 6.12.2016 and the same was sealed in a cloth parcel Ext. P7 with five seals of seal impression "A" and seal impression "A" was taken on the piece of cloth Ext.PW3/A and the cloth parcel Ext. P7 was seized vide seizure memo Ext.PW3/B. The appellant was arrested on 6.12.2016 at about 12.45 P.M. Medical examination of the appellant was got conducted at Civil Hospital, Palampur and his Medico Legal Certificate Ext.PW17/B was obtained.

12 On 8.12.2016, the appellant in presence of witnesses made disclosure statement Ext.PW6/A under Section 27 of the Indian Evidence Act and pursuant thereto, got identified the room in Hotel Moon Light at Palampur, where he had taken the prosecutrix during the last week of September or first week of October and made her video/picture in his mobile phone. The spot map Ext.PW16/E was also prepared. The abstract of visitor register Ext.PW8/A was obtained vide which it was confirmed that on 22.10.2016, the appellant along with another person 8 had stayed in room No.717 of Hotel Moon Light, Palampur. The prosecutrix also produced SD/memory card Ext.P4 containing her obscene video/picture before the police, which was sealed in cloth parcel Ext.P1 and then, taken into police possession vide seizure memo Ext. PW1/C. The SD card Ext.P4, mobile phone Ext.P8 of the appellant and photographs of the appellant and prosecutrix were sent to RFSL Dharamshala and report Ext.PW16/F was obtained. The porn video clips were not found to be physically present in the extracted data of memory card marked as Q-1. The video clips were analyzed and the relevant photograph prints were prepared. The prints were then compared with the supplied standard photographs. The comparison of facial features facial indices and superimposition test was done and accordingly, the appellant was identified in the alleged photos and video.

13 Further case of the prosecution is that the appellant after committing the offence went to Delhi, where he destroyed the indecent film/video and picture containing in his mobile phone. He also destroyed the memory card of his mobile phone in order to cause disappearance of the evidence of commission of the offence.

14 On conclusion of the investigation, on the basis of material so collected during investigation, on 6.9.2018, the appellant was charge-sheeted as under:-

"That you on 22-10-2016 at place Moonlight Hotel, Palampur, you accused had forcefully penetrated your penis into the mouth of the prosecutrix against her wishes and consent and thereby you accused committed an offence punishable u/s 376 IPC and within cognizance of this court.

Secondly, that on the aforesaid date, time and place you accused sexually harassed the prosecutrix by making physical contact and advances involving unwelcome and explicit sexual overtures and also made demand or request for sexual favours, thereby you accused committed an offence punishable u/s 354A IPC and within cognizance of this court.

Thirdly, that on the aforesaid date, time and place you accused assaulted and used criminal force to prosecutrix with an intention to disrobe and compel her to be naked and thereby committed an offence, punishable u/s 354B IPC and within cognizance of this court. Fourthly, that on the aforesaid date, time and place you accused put the prosecutrix in a fear of injury in order to commit extortion and thereby committed an offence, punishable u/s 385 IPC and within cognizance of this court. Fifthly, that on the aforesaid date, time and place you accused criminally intimidated the prosecutrix with an intention to do an act which she legally bound to do and thereby committed an offence, punishable u/s 506 IPC and within cognizance of this court.

Sixthly, that on the aforesaid date, time and place you accused administered some sedative in the drink of prosecutrix and in the unconscious state of prosecutrix, you accused had made her obscene video and, thereafter, the said video was made viral & leaked and thereby committed an offence, punishable u/s 67 IPC and within cognizance of this court.

Seventh, that on the aforesaid date, time and place you accused administered stupefying drug in the drink of prosecutrix with intent to facilitate the sexual favour or knowing it to be likely that she will thereby involve in unwelcome and explicit sexual overtures and thereby committed an offence, punishable u/s 328 IPC and within cognizance of this court.

Lastly, that on the aforesaid date, time and place you accused disappeared the evidence of offence by deleting the obscene video from mobile and SIM card and thereby committed an offence, punishable u/s 201 IPC and within cognizance of this court."

15 The appellant pleaded not guilty and claimed to be tried.

16 The State also filed an application under Section 216 Cr.P.C. for amending/addition of the charge, which application was allowed vide order dated 5.9.2018 and the previous charge so framed was amended and Sections 328 and 201 of the Indian Penal Code were added in the charge, to which also, the appellant pleaded not guilty and claimed tried. 11 17 In order to prove its case, the prosecution examined as many as 17 witnesses, which can conveniently be divided into four categories, which are enumerated as under:-

i. Oral evidence comprising of testimony of PW1 prosecutrix and PW2, Pritam Singh grand- father of the prosecutrix.

ii. Documentary evidence comprising of statements of PW8 Ramesh, who proved records of Hotel Moon Light, Ext.PW8/A. iii. Electronic evidence in the mode of recovery of SD card, Ext.P4, accompanied by PW4 LHC Ranjana and PW5 Vishal Katoch.

iv. Forensic evidence comprising of the report of Deputy Director, RFSL, Ext. PX.

18 Thereafter, the statement of the appellant was recorded under Section 313 Cr.P.C., wherein he claimed himself to be an innocent, however he did not lead any evidence in defence.

19 The learned trial court, after evaluating the oral as well as documentary evidence convicted and sentenced the appellant, as aforesaid and hence, the instant appeal. 20 It is vehemently argued by Mr. Ajay Kochhar, learned Senior Advocate assisted by Mr. Vivek Sharma, Advocate, for the appellant, that there is inordinate delay in 12 lodging the FIR in the case at hand and in case, the evidence of the prosecution is analyzed and evaluated, it would be noticed that the findings as recorded by the learned trial court are totally perverse as no case of conviction whatsoever is made out and the prosecutrix cannot be held to be sterling witness so as to place any reliance on her testimony. That apart, her testimony is clearly belied by what can be seen and observed in SD card, Ext. P4.

21 On the other hand, Mr. Yashwardhan Chauhan, learned Senior Additional Advocate General assisted by Mr. J. S. Guleria, learned Deputy Advocate General, would argue that the learned trial court has painstakingly discussed each and every aspect of the case, more particularly, oral as well documentary evidence that has come on record and it is only thereafter that the appellant has been convicted and sentenced and in such circumstances, no interference is warranted. 22 We have heard the learned counsel for the parties and have also gone through the records of the case. 23 At the outset, it needs to be observed that rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the 13 victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness.

24 Rape is the most hated crime, which tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks. Gang rape is all the more a serious and heinous offence. 25 The committal of rape is a beastly act and takes out the life from the life of victim. The scars of rape always remain engraved in her mind and she cannot overcome throughout her life. Rape leaves physical as well as mental scars on the victim. Physical wounds may heal up, but the mental scars, though less visible are more difficult to treat.

26 Rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. "Rape" not only lowers the dignity of a woman but also mars her reputation. The plight of the woman and shock suffered by the victim can be well visualized. The victim of rape 14 grows with traumatic experience and an unforgettable shame haunted by the memory of the disaster forcing her to a state of terrifying melancholia. The torment on the victim has the potentiality to corrode the poise and equanimity of any civilized society. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female. The offence of "Rape" is grave by its nature, which warrants a strong deterrent by judicial hand.

27 In State of Punjab vs. Ramdev Singh, AIR 2004 SC 1290, the Hon'ble Supreme Court held as under:-

This Court dealt with the issue and held that rape is violative of victim's fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished 15 fundamental right guaranteed under Article 21 of the Constitution."

28 In Jugendra Singh Vs. State of UP, (2012) 6 SCC 297, the Hon'ble Supreme Court has held:-

"Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law."

29 In Shyam Narian Vs. The State of NCT Delhi , (2013) 7 SCC 77, the Hon'ble Supreme Court has elaborately dealt with the issue as discussed in Madan Gopal Kaakar Vs. Naval Dubey and Anr., (1992) 3 SCC 204, State of Andhra Pradesh Vs. Bodem Sundra Rao, AIR 1996 SC 530 and 16 State of Karnataka Vs. Krishnappa, (2000) 4 SCC 75 and has held that :

"It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed."

30 Equally settled is the proposition of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence. The statement of the victim is more reliable than any other witness. Where the testimony of victim of sexual assault instills the confidence in court, the same can be relied upon for conviction of the accused. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the victim is not a requirement of law but a guidance to prudence under the given circumstances. 31 In Vijay @ Chinee vs. State of Madhya Pradesh, (2010) 8 SCC 191, the Hon'ble Supreme Court has dealt with the issue and held that :

"Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy 17 of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix."

32 There are catena of judgments passed by the Hon'ble Supreme Court wherein it has been held that only the deposition of the prosecutrix by itself is also sufficient to record conviction for the offence of rape if that testimony inspires confidence and has complete link of truth.

33 In Md. Ali Vs. State of UP, 2015 (3) SCALE 274, the Hon'ble Supreme Court has held that "Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the victim, if it is unimpeachable and beyond reproach, a conviction can be based and in Mohd. Iqbal v. State of Jharkhand reported in (2013) 14 SCC 481, the Hon'ble Supreme Court has held that "there is no prohibition in law to convict the accused of rape on the basis of sole testimony of the victim and the law does not require that her statement be corroborated by the statements of other witnesses". 34 Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A victim complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her 18 testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the victim on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony.

35 After all, the Court cannot overlook where the victim or a girl is subjected to sexual assault, she is not accomplice to the crime, but is victim of another's lust.

36 The prosecutrix appeared as PW1 and stated that she was student of B.Sc 3rd Semester and had taken admission in college in the year 2016. Her friends Neha and Bobby had introduced her to the appellant when he had come with them to the college. Thereafter, the appellant started visiting her college frequently with Bobby and persuaded Bobby to impress upon her to make friend with the appellant. Bobby instead of talking to her had given her mobile number to the appellant. She came to know about this fact when the appellant called her. She then asked the appellant as to from whom he had procured her mobile number and then he told her that he got mobile number from Bobby.

37 On the next day, she complained to Bobby regarding calls made by the appellant and asked him why he had given her number to appellant as he was harassing her by making repeated calls. Then Bobby warned the appellant and asked him not to make calls to her. She however did not remember the mobile number of the appellant from which he used to call her, but stated that the appellant used to make calls on her mobile number 98183-32905. On the next day, the appellant again came to her college and angrily asked her as to when had he made calls and harassed her. Thereafter, for some days, the appellant did not make calls, but, after about one week, he again made a call to her and said that his brother along with his girl friend was going on a tour and asked her to accompany him, but she told him as to why she should accompany him and asked the accused not to make calls as she was busy with her house test examination.

38 The appellant after some days started following her in the college and told her that he was going back to Delhi. He also told her that he was employed as Sub Inspector in Delhi Police and that he would not do any wrong with her. The appellant asked her to talk to him for the last time. The appellant told her that he liked her and wanted to marry her, 20 therefore, he was intending to talk with her. She in turn told him that she was not interested in him and therefore, she did not want to marry him.

39 The prosecutrix further stated that on 20.10.2016, the appellant had followed her throughout the day and when she came after giving her examination, the appellant followed and asked her to talk with him and told that he was going back to Delhi. Thereafter, the appellant on the pretext of talking to her, took her to Moonlight Hotel, Palampur at about 1.00/1.30 p.m., where he alongwith snacks offered her cold drinks and told her not to afraid of him. On the assurance of the appellant, she had the cold drink and after having it, became semi unconscious. The appellant thereafter removed her clothes and when she was in underwear only, then he made her sit on the bed. Thereafter, the appellant started video graphing her and while he was doing so, in that condition she resisted 3-4 times and tried to hit his hand but he paid no attention to her. Thereafter, he forced her for oral sex and sexual intercourse. When she regained consciousness, she put her clothes and thereafter came out from the said hotel. The appellant left her at the Bus Stand and thereafter, she went to her house. When she boarded bus she was feeling giddiness. On reaching home, she 21 did not disclose about the incident to anyone in her family as she was under the impression as to what her family would think about her.

40 On the next day, the appellant again made a call on her mobile and told that he had made her nude video as he had a bet with his friends qua making the same. He further asked her to pay him Rs.20,000/- or else, he would disseminate her video to her friends. She requested the appellant to delete her photos and videos and requested him not to insist payment of Rs.20,000/- as she was without job and said that whenever she would get job she would pay him Rs.20,000/- and requested him to delete her pictures and videos. Thereafter, the appellant continued to make calls to her daily and started blackmailing her. He threatened her to pay Rs.20,000/- failing which, he would disseminate the alleged photos and videos. Due to daily blackmailing and threatening of the appellant, she stopped using said sim and also stopped going to the college. 41 On 9th November, 2016, when the prosecutrix had gone to the college, then her friends told about her photos and video having been leaked by the appellant to her friends. On her request, her friends deleted the alleged videos and pictures, yet photos and videos got viral.

42 It was then that on 23.11.2016, the prosecutrix disclosed about the incident to her grandfather, who accompanied her to Police Post Thural , where the police officials gave her pen and paper and asked her to give in writing her complaint. She accordingly wrote an application Ex. PW- 1/A. The police of Police Post, Thural did not conduct any inquiry or investigation on her application and informed her that since the case pertained to Police Station, Palampur, she should report the matter there. She was called by the police of Police Station Palampur on 25.11.2016, where she got recorded her statement. Thereafter, her statement under Section 164 Cr. P.C. was recorded before the Magistrate. She had narrated the entire incident before the Magistrate in her statement. After recording her statement Ext. PW-1/B, it was read over by the Magistrate to her and then she signed it in red circles. 43 Thereafter, the police took the prosecutrix to Moonlight Hotel, where she got identified the room, where the appellant had committed wrong acts with her and videographed her. The police officials had clicked photographs of said room, mark "A-1 to A-3" and had also prepared spot map. 44 The prosecutrix further deposed the police officials asked her to hand over said pictures and videos to them. She 23 handed over micro SD Card containing alleged pictures and videos to the police on 7.12.2016. The police had sealed Micro SD Card in a packet and took the same into possession vide memo, Ex. PW-1/C. She further stated that at that time, her brother Vishal Kotach and other police officials were also there. She identified Micro SD Card in the court, which had been handed over by her to the police. The contents of videos in the SD Card were thereafter played in the court and the prosecutrix acknowledged those photos to be the same which had been produced by her before the police. She also indentified her signatures on the parcel containing SD card. She also identified her three photographs PH-1, PH-2 & Ex. PH-3, yellow envelope Ex. P-1 and five photographs of the appellant Ex. PH-4 to Ex. PH-8. She identified the appellant in the court. 45 The prosecutrix further stated that on 8.12.2016, she was again taken by the police to concerned Magistrate, where her statement, Ext. PW1/D was again recorded. Later on, she came to know that the real name of appellant to be Ashish. The appellant had spoiled her life by doing this act. 46 She further deposed that the father and maternal grandfather of the appellant had tried to pressurize her and her family to withdraw the present case. In fact, maternal 24 grandfather of appellant had visited her house 3-4 days before and offered her money. He had further told them that before this incident, the appellant had been involved in similar offence and even at that time, they had screened the appellant by paying money and the case was closed. Thereafter, DVD Ex. P-6 was produced, but the same was found to be neither readable nor any containing DATA.

47 On being cross-examined, the prosecutrix admitted the application, Ext. PW1/A to be written by her and submitted at P.P. Thural. However, she denied that the police officials at Thural had first seen the videos and pictures and thereafter got application submitted. She stated that she had not taken her mobile phone to Police Post Thural. She did not remember number of the mobile, which was being used by her on 23.11.2016 and the place from where, she had purchased sim. She was not in a position to tell the name of company of sim card whether it was BSNL, Airtel etc. She voluntarily stated that sim was changed by her. She admitted that she did not have the same mobile, which she had been using on 20.10.2016 as mobile had broken after she lodged the present case. She admitted that her mobile was not taken into possession by the police. She stated that she had told the police that Neha had 25 also introduced her to appellant alongwith Bobby. Neha was also studying in her college. Bobby was resident of Sai, while Neha was resident of Thural. She denied the suggestion that Neha did not know the appellant and she had never introduced her to the appellant. She further denied that she had never told the police that Neha had also introduced her to the appellant, but was confronted with the previous statement recorded under Section 161 Cr. P.C., wherein, it was not so recorded. She voluntarily stated that Bobby was friend of Neha and both Bobby and Neha were present together, when they introduced her to the appellant. She stated that she had seen the video and photos on 9th November when her friends Shagun, Shiwani and Sahil etc told her that the same were there in their mobiles. She further stated that the videos and photos were sent to her mobile by her friend Rakesh. She admitted that she had not told the police that she had seen the photos and videos on 9.11.2016. She further admitted that she had not told the police regarding the name of Rakesh, but had told that one of her friends had sent the photos and videos to her. She stated that the police had not asked her about her friend who had sent the messages regarding videos and pictures. She further deposed that S.D. card Ex. P-4 was given to her by one of her 26 friends, Rajat, but did not know about company of SD Card. She further stated that SD Card Ex. P-4 earlier contained DATA of Rajat, which was deleted it was given to her. She denied that appellant had never told her that he was working in Delhi Police. She stated that the appellant had brought cold drink and Namkeen from outside the hotel. She stated that she had not told the police that the appellant had brought cold drink from a shop. She denied that she had made a concocted story that the appellant had offered her a drink and after having it, she had become unconscious. She specifically stated that she had gone to Hotel Moonlight thrice. She voluntarily stated that she visited the hotel twice with the appellant and once with the police, but did not remember the date when she had gone to Moonlight hotel before 20.10.2016. She admitted that her naked pictures were clicked when she had gone to Moonlight hotel for the first time. The trial court then asked the question "Who had taken your pictures at that time? and she answered that "accused had taken my naked pictures at that time and we both were there alone".

48 She admitted that she had neither reported the aforesaid fact to the police nor the Magistrate, but voluntarily stated that later on, when she reported the matter to the police, 27 she had mentioned about both videos as well as photos. She denied that she had stated in the court that she had met the appellant for the first time on 20.10.2016. She admitted that she had not stated in the court that before 20.10.2016, she had met the appellant in the Moonlight hotel. She denied that she did not have any objection about making of vulgar video and pictures, but had objected to the same being leaked. She denied that she had been talking whole of the time with the appellant at the time when the video was being made. She voluntarily stated that she was asking the appellant not to make her video and stop making it and switch off the mobile. She denied that she was asking the person making the video as to whether he would show this video to someone else. She voluntarily stated that the video was being made by the appellant and he was telling her that he was making it for himself and would show it to any one, therefore, she asked him whether he would not show it to anyone because he had told her to trust him. She further voluntarily stated that she had not made any video with anyone, but the appellant had made her video. She denied that the boy was saying her video was made earlier also. She voluntarily stated that it was that time only that the video was made twice. She denied the suggestion that she had oral sex 28 out of her own free will. She voluntarily stated that the appellant had told her that he was interested only in oral sex and he had got it done forcibly by holding her head and hair. The defence counsel then asked the question "That person said that he would count three and put his clothes". However, the question was disallowed being ambiguous on the ground that the prosecutrix had earlier stated that it was the appellant, who was making her video and no other person was there. She admitted that the words "after counting three, she would wear the clothes", were there in the video in the SD Card. She did not remember that after counting 1 & 2, she had signalled to stop and started laughing. She denied that she smiled and said that she did not want sex. She voluntarily stated that she had said that she did not want sex. She admitted that in the video she had asked the appellant to swear by his mother that he would not disclose it to anyone. She voluntarily stated that the person was the appellant. She denied that she was saying in the video that earlier also nude photos were made and that from today, nothing would happen. She feigned ignorance regarding duration of video to be of 2 minutes and 45 seconds. She further denied that she had made a false statement that her vulgar pictures and videos were made by the appellant. She 29 denied that she was habitual of making such pictures and videos herself. She denied that the aforesaid video in the SD card was actually made from her mobile. She denied that she alongwith her family members and in connivance with the police had destroyed her mobile. She also denied that Rajat had not transferred the alleged video to her mobile. She denied that the video was already in her mobile and she had not seen the video for the first time on 20.10.2016. She denied that the appellant had not blackmailed and threatened her to leak the alleged video and pictures and also that he had not demanded Rs.20,000/-. She denied that the appellant did not threaten her to do forcible oral sex and sex with her. She denied that the S.D. card had been tampered with and due to this reason, she did not produce her mobile. She denied that the father and maternal grandfather of the appellant had not visited her house and had forced her to withdraw the case against the appellant. She however admitted that she was having two mobile numbers at that time, out of which, one she had already told and other mobile number she did not remember. She denied that she in connivance with the police officials had filed false case against the appellant.

49 PW2 Pritam Singh is grandfather of the prosecutrix and his testimony is that of hearsay and therefore, not of much relevance as he has only deposed what was disclosed by the prosecutrix to him and has only proved handing over application, Ext.PW1/A to the police officials. 50 PW3 HC Sandeep Kumar stated that on 6.12.2016, he along with HHC Om Prakash was associated in the investigation by the Investigating Officer and in their presence, the appellant had produced one Samsung Duos Model phone along with sim before the police. The mobile was wrapped in a cardboard and then sealed in a cloth parcel by affixing five seals of seal impression "A". He also identified the mobile phone in the Court.

51 On being cross-examined, this witness admitted that the Investigating Officer had not checked contents of the mobile in his presence. He further admitted that the Investigating Officer had not recorded statement of the appellant under Section 27 of the Indian Evidence Act in his presence. 52 PW4 LHC Anjana stated that on 7.12.2016, the prosecutrix had produced one sim micro SD card 2 GB before the Investigating Officer stating that it was containing her obscene videos prepared by the appellant. The Micros S.D. card 31 was thereafter taken into possession and identified by her in the court.

53 On being cross-examined, this witness stated that S.D. card, Ext. P4 was produced by the prosecutrix by taking it out from her mobile phone.

54 PW5 Vishal Katoch is cousin brother of the prosecutrix and stated that he had received obscene video of prosecutrix through his whatsapp group. He then disclosed this fact to his parents and that of the prosecutrix. He stated that it was in his presence that the prosecutrix produced one S.D. card stating that it was containing her obscene videos prepared by the appellant. He identified the S.D. card in the court.

55 On being cross-examined, this witness admitted that he had disclosed to the police that he had also received obscene video of the prosecutrix through his Whatsapp group. He further admitted that when he joined the investigation, at that time the obscene video of the prosecutrix was already there in his mobile. The police had not taken into possession his mobile. He did not remember the date when he received the aforesaid obscene video in his mobile. He also did not remember the date on which he had disclosed about the aforesaid video to his 32 parents. He voluntarily stated that he had informed them telephonically. He admitted that whenever a message is received through Whatsapp, it reflects the name and the number of the sender, but did not remember the name of sender as there were more than 150 members in the group. He admitted that SD card, Ext. P4 was produced by the prosecutrix by taking it out from her mobile phone, but did not know whether the mobile phone of the prosecutrix was also taken into possession by the police.

56 PW6 HC Ashok Kumar deposed regarding the disclosure statement having been made by the appellant in police custody to the effect that he could get Hotel Moon Light demarcated where he had made obscene video of the prosecutrix in the last week of September or first week of October 2016, which was reduced into writing vide memo, ext. PW6/A. 57 In cross-examination, he denied having gone to Hotel Moonlight with the Investigating Officer prior to disclosure statement of the appellant.

58 PW7 Piar Chand was working as Cook in Hotel Moonlight at the relevant time. He deposed that he did not remember as to whether the police had come to the hotel with 33 one boy, who in custody had given identification of Room No. 717 to the police and disclosed that he had stayed there. He was declared hostile and was cross-examined by the learned Public Prosecutor. He admitted his signatures on Ext. PW7/Am however he denied presence of the appellant in the hotel. 59 On being cross-examined by the learned defence counsel, this witness stated that he had seen the appellant for the first time in the court on that day.

60 PW8 Ramesh Chand was working as a Manager in Hotel Moonlight at the relevant time and stated that he had brought original entry of the hotel register and proved the abstract thereof as Ex. PW-8/A, which showed that on 22.10.2016, the appellant had stayed in Room No. 717 of the hotel from 12.35 p.m. to 2.00 p.m. alongwith the girl, but he was not in a position to identify the appellant in the court. He voluntarily stated that since many persons used to stay in his hotel, therefore, it was difficult for him to identify every visitor. He further deposed that he used to enter mobile number of every visitor in the register, but did not mention the mobile number of the appellant as he told him that now-a-days he was residing in Delhi and he did not have any mobile number. He also stated that his statement was not recorded by the police as 34 he had gone to Shimla. He voluntarily stated that he had gone to Shimla in the month of August or September. 61 At this stage, this witness was declared hostile and permitted to be cross-examined by the learned Public Prosecutor. In his cross-examination, he admitted that during January, 2017, he was present in the Hotel. He denied that his statement was recorded on 5.1.2017. He also denied that he had disclosed to the police that the appellant used to visit his hotel individually or with his relatives. He denied that he knew the appellant before 22.10.2016. He denied that the appellant had disclosed on 22.10.2016 while booking room that he had come from Delhi for the test/examination of his relative girl, who was with him at that time. He voluntarily stated that the appellant had told that the girl with him was his sister and after having bath etc., they would vacate the room. 62 In cross-examination by the defence counsel, this witness admitted that there was cutting in abstract Ex. PW- 8/A of the room number and number of persons. He voluntarily stated that the cutting was done because the appellant was shifted to that room later on. He admitted that there were signatures of the girl in Ex. PW-8/A in red circle "A". He also admitted that the signatures in the statement of PW1 were 35 different from those in red circle "A". He admitted that the appellant had not been got identified from him. He voluntarily stated that he was at Shimla. He denied that Ex. PW-8/A was prepared later on.

63 PW9 HHG Neeraj Kumar proved on record taking of samples to RFSL Dharamshala on 12.12.2016 and after handing over the same vide Ext. PW9/A on the same day, returning the R.C. to MHC.

64 PW10 Vivek Sharma was the erstwhile Manager of Moonlight Hotel, who stated that in December, 2016, police had visited the Hotel alongwith boy, girl and 2-3 other persons. They had seen Room No. 717 of Hotel and qua which, document Ex. PW-10/A was prepared, which bore his signatures in red circle. The police had asked him to produce entry register. He had shown them the entry register, which was with him, but the police had asked him to produce earlier register, which was not with him at that time. He voluntarily stated that the same had been deposited in the office. He stated that besides him, Piar Chand Cook had also signed memo Ex. PW-10/A. He did not know the name of boy written in memo, Ex.PW-10/A, upon which he was declared hostile.

65 On being cross-examined by the learned Public Prosecutor, this witness admitted that on 8.12.2016, the police had brought the appellant, who had identified Room No. 717 to the police in his presence and witness Piar Chand to be the same room where he had stayed with the girl. He admitted that the police had clicked photographs of Room No. 717 mark A-1 to mark A-3. He also admitted that the police had prepared document Ex. PW-10/A qua demarcation of room and photographs etc. 66 On being cross-examined by the learned defence counsel, this witness admitted that when the police had come, then the grandfather of the girl had also come there with girl. The police had visited the hotel once on 8.12.2016. He feigned ignorance regarding photographs of the boy and girl being taken. He admitted that he was told by the police itself that they had brought the girl in the aforesaid room. 67 PW11 LC Reema Devi stated that on 24.11.2016, she entered FIR No. 22/2016 under Section 354-A(1) IPC and 67 of I.T. Act in computer, which was functioning properly and uninterrupted. In this regard, she had issued a certificate, Ext. PW11/A. 37 68 In her cross-examination, she denied that the computer was not working properly at the time when she had recorded the entry.

69 PW12 HC Shailender stated that on 6.12.2016, the Investigating Officer had deposited one parcel stated to be containing a mobile phone and on 7.12.2016 another parcel stated to be containing memory/SD card. He had made the entries in the Malkhana Register. He further stated that on 12.12.2016, he had sent the aforesaid parcels alongwith sample seals and one envelope, containing photographs of the appellant and the prosecutrix to RFSL Dharamshala vide RC No. 2294/16 dated 12.12.2016 through HHG Neeraj and handed over the receipt Ex. PW-12/C after depositing the same at RFSL Dharamshala.

70 On being cross-examined, this witness denied that neither any mobile was deposited nor he had sent the same to RFSL Dharamshala.

71 PW13 HHC Jaimal Singh stated that he had brought the case property alongwith result of RFSL and handed over the same to MHC. The case property was stated to be consisting of one Mobile Phone and one SD Card, which were packed in a 38 yellow carry bag and another sealed parcel containing one DVD in an envelope.

72 On being cross-examined, this witness admitted that whenever, a police official leaves the police Station for duty, the record is maintained at Police Station, wherein date and time of departure and arrival is also mentioned. However, he denied that he had not brought any case property related to this case as stated above. He also denied that he had never handed over the case property to MHC.

73 PW14 Surjeet Singh is the photographer, who stated that he had developed photographs of this case, which were clicked by the police officials on his mobile phone. After developing the photographs, he handed over the same to the police. He had also issued certificate Ex. PW-14/A and identified photographs mark A-1 to A-3 to be the same that were developed by him. Alongwith these photographs, he admitted that he also developed photographs of a boy and a girl in different poses.

74 On being cross-examined, this witness admitted that he was not aware of Section 65(b) of I.T. Act. He further admitted that whenever he would develop the photographs, he 39 would issue the cash memo, however he had not issued any bill pertaining to this case.

75 PW15 ASI Prem Pal, stated that on 23.11.2016, while he was on patrolling duty at Place Balh Bhuria, the prosecutrix had submitted an application, Ext. PW1/A to him, on which he had made an endorsement, Ext. PW15/A. 76 In cross-examination, this witness denied that he had not investigated the matter after getting the application. He voluntarily stated that he had sent the ruka to Police Station Palampur for investigation.

77 PW16 Inspector Gurbachan Singh, is the Investigating Officer, who proved on record receipt of application Ex.PW-1/A, on the basis of which FIR EX.PW16/A came to be registered at police station Palampur and claimed that both FIR and ruka were signed by him. He further deposed that on 25.11.2016, he had visited the spot and prepared spot map Ex.PW-16/C and taken photographs Ex.PW16/D1 to Ex.PW- 16/D3 of the spot. He got statement of the prosecutrix recorded under Section 164 Cr.P.C before the Judicial Magistrate and also recorded statements of some of the witnesses. The appellant had made a disclosure statement before the police Ex.PW-6/A in the presence of PWs HHC Anil Walia and HC 40 Ashok Kumar regarding identification of Hotel, where he had committed the offence. He further deposed that on 8.12.2016, the appellant was taken in custody, and he identified the Hotel Moonlight Palampur where in the month of September/October, he had committed the offence of recording the porn video in room No.717 of Hotel.

78 Earlier to that on 06.12.2016, he took into possession one Samsung mobile phone from the appellant as the alleged videography was done from that mobile. The mobile was kept in a cloth parcel and sealed with five seal impressions of seal 'A' and thereafter taken into possession vide memo Ex.PW-3/B, which bore his signatures and that of appellant and witnesses HHC Om Parkash and HC Sandeep Kumar. The specimen seal impression was Ex.PW-3/A. 79 The witness further deposed that on 7.12.2016, the prosecutrix had handed over a micro SD card 2 GB, which was taken into possession vide seizure memo Ex.PW-1/C, which was signed by prosecutrix, witnesses HC Anjana, ASI Pushp Raj and Vishal Katoch and sealed with seal impression, Ex.PW-4/A. He identified all these items in the court and thereafter stated that the medical examination of the appellant was got conducted on 06.12.2016 at C.H. Palampur.

80 The witness further deposed that during investigation, he had also taken into possession abstract of Moon Light Hotel visiting register Ex.PW-8/A and after obtaining copy of result of RFSL Dharamshala Ex.PW-16//F, the same was tagged in the case file. Alongwith report, one DVD Ex.P6 was also received from RFSL Dharamshala. The statements of witnesses Vivek Sharma, Piar Chand and Ramesh Chand Ext.PW16/G1 to Ex.PW-16/G3 respectively were recorded. He had also recorded statements of other witnesses and after completion of investigation, he had prepared the challan in the present case and submitted the same before the Court.

81 On being cross-examined, this witness stated that he had associated the prosecutrix in the investigation on 25.11.2016 and she had produced evidence in support of her case and had handed over the SD card. He had also taken out the call details of the appellant to prove that the appellant had been calling the prosecutrix on a particular phone number from his mobile. However, he admitted that he had not appended aforesaid call details with the case file. He could not recollect the phone numbers of prosecutrix and the appellant and the dates on which the calls had been made.

82 This witness admitted that he had not seen the porn video qua which the complaint was made by the prosecutrix. He was not in a position to tell whether it was through Whatsapp or any other medium by which the aforesaid video had become viral. He denied the suggestion that he had deliberately not taken into possession the mobile phone of the prosecutrix and voluntarily stated that since the prosecutrix had given the SD card, therefore, he did not find it necessary to take into possession her mobile phone. He admitted that seizure memo of the SD card was prepared on 07.12.2016. 83 He further stated that he had no knowledge that whenever a video is sent to other mobile then the mobile number of the phone, from which the video is sent, is also shown on the other mobile. He admitted that on 07.12.2016 when the SD card was given by the prosecutrix to him, her cousin Vishal Katoch was also present there. However, he did not remember that Vishal Katoch had also disclosed that the aforesaid porn video was also transmitted to his mobile. He admitted that he had not taken into possession mobile phone of Vishal Katoch. He stated that he had not asked the RFSL Dharamshala as to whether there were chances of aforesaid SD card Ex.P4 being tampered one. He voluntarily stated that he 43 did not find it necessary because the SD card was not tampered one. He denied that SD card Ex.P4 did not belong to prosecutrix or that the same was belonged to her friend, namely, Rajat. He admitted that at the time when the appellant had been arrested, the SD card had not been taken into possession. 84 The witness further admitted that it had come in his investigation that some of the friends of prosecutrix, namely, Neha and Bobby had told her about video becoming viral. He did not remember as to when he had associated the friends of prosecutrix in the investigation. He could not tell that whether he had investigated about the fact as to from which mobile and by which medium the friends of prosecutrix had received the video, which had gone viral.

85 He further admitted that it had come in his investigation that the video was not prepared in Ex.P4. He voluntarily stated that he had included section 201 IPC in the case as the original SD card in which the video was prepared had been destroyed. He stated that he was not in a position to tell as to from which mobile the video had come in the SD card Ex.P4. He denied that that the viral video was actually prepared by the prosecutrix herself on her mobile. He denied that if he would have taken the mobile of prosecutrix in possession then it 44 would have come out that the video had been prepared by the prosecutrix herself and that was why he had not taken into possession mobile of the prosecutrix.

86 The witness further stated that he did not remember, but as per his knowledge, the prosecutrix had gone only once to Moon Light Hotel during the commission of offence. He further stated that there was proof on record that the prosecutrix was forced to sexual intercourse by way of oral evidence of the prosecutrix and her photographs and the DVD. He denied that there was no evidence in the DVD and SD card that prosecutrix was unconscious and there was forcible sexual intercourse with the prosecutrix. He however admitted that he had not obtained any voice sample of the appellant. He further stated that it had not come in his investigation that before going to the Hotel, prosecutrix was unconscious. He denied that he had prepared the disclosure statement of the appellant, Ex.PW- 6/A falsely and no demarcation was given by the appellant. He denied that the site plan Ex.PW16/E had been falsely prepared. However, he admitted that he had visited the Moon Light Hotel on 25.11.2016. He denied that the site plan Ex.PW16/E had been falsely prepared. He denied that he had recorded the 45 statements of witnesses Ex.PW-16/G1 to Ex.PW-16/G3 of his own.

87 PW17 Dr. Umesh Kashyap deposed that he had examined the appellant and certified that he was capable of doing sexual intercourse in normal course.

88 This in entirety is prosecution case.

89 It is vehemently argued by Mr. Ajay Kochhar, learned Senior Advocate assisted by Mr. Vivek Sharma, Advocate, that the there is huge delay in lodging the FIR and, therefore, possibility of interpolation cannot be ruled out and the case of the prosecution, more particularly, statement of the prosecutrix has to be taken with pinch of salt. According to him, chronological events of the case are as follow:-

On 20.10.2016, when the prosecutrix was allegedly taken by the appellant to Moon Light Hotel these the alleged video was made and allegations of forcible oral sex were made.

On 9.11.2016 the video was allegedly gone viral and and this fact came to the notice of the prosecutrix. On 23.11.2016, the prosecutrix for the first time made a report, Ext. PW1/A to Police Post Thural.

90 In our considered view, the delay has to be considered in the back ground of the facts and circumstances of 46 each case and is a matter of appreciation of evidence. It is well settled that the delay in registering FIR cannot by itself be a ground to doubt the case of the prosecution.

91 In cases of delay, the Courts are required to examine the evidence with a close scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If Court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the case of the prosecution cannot be dismissed merely on that ground. The disinclination to inform the family or report the matter to the police might be due to apprehension and attitude of the society towards the victim. Therefore, the delay in lodging the complaint in such cases does not necessarily indicate that her version is false.

92 However, in the instant case, it needs to be noticed that the prosecutrix is alleged to have been sexually assaulted and the alleged video made on 20.10.2016 and she is alleged to have come know about the obscene video/photographs being uploaded and made viral on 9.11.2016, which allegations ultimately have been found to be false.

93 In such circumstances, an inordinate and unexplained delay in registering FIR does cast a cloud of suspicion regarding the credibility of the prosecution story when read with the testimony of the victim, medical evidence and all other evidence led by the prosecution. The inordinate delay in registration of FIR and the time and opportunities which the victim had, to report the matter to the police or any other person by raising an alarm when she was forced to undergo the trauma of rape is unexplainable.

94 It is here that the requirement of the testimony of the victim being credit worthy to be termed as sterling witness whose version can be accepted without corroboration steps in. It is here that the version of the victim on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.

95 In this background, it shall be fruitful to refer to the following observations of the Hon'ble Supreme Court in Rai Sandeep @ Deepu vs. State (NCT of Delhi) (2012) 8 SCC 21:- 48

15. Keeping the above basic features of the offence alleged against the appellants in mind, when we make reference to the evidence of the so called 'sterling witness' of the prosecution, namely, the prosecutrix, according to her version in the chief examination when the persons who knocked at the door, were enquired they claimed that they were from the crime branch which was not mentioned in the FIR. She further deposed that they made a statement that they had come there to commit theft and that they snatched the chain which she was wearing and also the watch from Jitender (PW-11). While in the complaint, the accused alleged to have stealthily taken the gold chain and wrist watch which were lying near the T.V. It was further alleged that the appellant in Criminal Appeal No.2486 of 2009 was having a knife in his hand which statement was not found in the complaint. After referring to the alleged forcible intercourse by both the appellants she stated that she cleaned herself with the red colour socks which was taken into possession under Exhibit PW-

4/B in the hospital, whereas, Exhibit PW- 4/B states that the recovery was at the place of occurrence. The police stated to have apprehended the appellants at the instance of Jitender (PW-11) who knew the appellant in Criminal Appeal No.2486 of 2009 even prior to the incident, that Jitender (PW-11) also revealed the name of the said accused to her and that, therefore, she was able to name him in her complaint. When the seized watch was shown to her in the Court, the brand name of which was OMEX, she stated that the said watch was not worn by her nephew Jitender (PW-11) as it was stated to be 'TITAN' and the chain was a gold chain having no pendant. She 49 made it clear that that was not the chain which she was wearing and that it did not belong to her and that the watch found in the same parcel which was a women's watch was not the one which was worn by Jitender (PW-

11).

15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of 50 circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.

96 As regards credit worthiness of the testimony of the prosecutrix, it would be noticed that the initial version given by her in her statement Ext. PW1/A, she had not alleged any act constituting offence under Section 376 IPC and only stated that the appellant had taken her to Moon Light Hotel and there, he had taken off her clothes and when she had only underwear on her body, then he clicked photographs and made a video, but specifically stated that he did not commit any wrong act with her as is evident from the following:-

"USNE MERE SATH KOI GALAT KAAM NAHI KIYA HAI"

97 Thereafter, the prosecutrix in her statement recorded under Section 164 Cr. P.C., Ext. PW1/B had again stated that the appellant had not committed any wrong or sexual intercourse with her as is evident from the following:-

"USNE AISI KOI GANDI HARKAT NA KI HAI.

MATLAB SEX NAHI KIYA HAI."

98 It was after the arrest of the appellant on 6.12.2016, that the prosecution got another statement of the prosecutrix recorded under Section 164 Cr.P.C. wherein allegations of oral sex were made.

99 We really fail to understand and appreciate as to where was the necessity of getting another statement recorded under Section 164 Cr.P.C. when especially it was not recorded for the purpose of elaborating the facts that had already been stated by the prosecutrix in the earlier statement recorded before the Magistrate and there is otherwise no explanation placed on record by the prosecution as to what necessitated the third statement inventing thereby entirely a different story, 52 which casts a serious doubt on the story now put-forth by the prosecution.

100 Apart from above, different versions have been given by the prosecutrix in her three statements and same therefore have to be taken with pinch of salt and are suggestive of the fact that she had suppressed the true facts and was otherwise capable of inventing stories.

101 Why we observe so is because the prosecutrix in her earlier version had stated that she was given some intoxicants in the drink by the appellant before she was taken to Hotel Moon Light, but in her statement recorded under Section 164 Cr. P.C. she changed her version by stating that the intoxicated drink was given to her after she was taken to Moon Light Hotel. Further there is no explanation on record that if the prosecutrix was not consenting party, then what prompted her to go inside the Hotel with the appellant, more particularly, in view of the fact that she was major and capable of deciding what was right or wrong for her.

102 Further, there is no explanation, as observed above, as to why matter was reported belatedly on 23.11.2016 particularly when the prosecutrix had already come to know 53 about the alleged leakage of video on 9.11.2016, which story has otherwise been proved to be totally false. 103 The present FIR was not spontaneous and appears to have been lodged after long deliberations and consultation as is evident from the fact that in the initial version given by the prosecutrix herself there were no allegations of any sex, oral or otherwise and this was not something which could have escaped the mind of the prosecutrix if it was not consensual. It goes a long way to establish that she was probably a consenting party and that is why she did not report the matter. This observation is further strengthened from the fact that the prosecutrix herself had refused to undergo medical examination.

104 Further, as per statement of the prosecutrix, she had seen the alleged video and photographs in the mobile of her friends, Shagun, Shivani and Sahil and photographs were also claimed to have been sent to her by her friend Rakesh, but surprising enough, none of these witnesses were ever associated during the police investigation or examined in the Court. 105 It also needs to be noticed that the prosecutrix neither gave her mobile to the police during investigation nor disclosed the mobile numbers in her deposition, rather the 54 prosecutrix destroyed the mobile phone after registration of the case as has been admitted by her in her statement. All these facts collectively do probablize the defence of the appellant that the video was made from the mobile of the prosecutrix herself because even S.D. card, Ext. P4 containing alleged obscene video was given by her after taking it out from her own mobile phone as admitted, PW4 LHC Anjana, PW5 Vishal Katoch as also PW16 Investigating Officer and above all by the prosecutrix herself.

106 This fact assumes greater importance for the reason that admittedly no obscene videos were found in the mobile of the appellant, Ext.1 that was taken into possession vide memo, Ext. PW3/A and in the report of RFSL, it has been specifically concluded that no porn video/photograph was found in the extracted data from the mobile phone, Ext.1. 107 We also find it rather strange as to why the prosecutrix would claim and state that S.D. card did not belong to her and had been given to her by her friend Rajat, which statement is in contradiction with statements of PW4, PW5 and PW16. That apart, even so called Rajat has neither been associated nor examined by the prosecution. 55 108 Further, the fact that the prosecutrix visited the Hotel in question with the appellant on 20.10.2016 has been totally falsified by the entries, Ext. PW8/A, wherein date of stay of the appellant is reflected as 22.10.2016. The version of the prosecutrix that she had visited Hotel Moon Light with the appellant only once is also belied by her in her statement before the court where she admitted that she had gone twice to the hotel with the appellant but could not tell the date as to when she had gone to Moon Light Hotel before 20.10.2016. 109 We have also seen the videos contained in the S.D. card, Ext. P4, which are suggestive of the prosecutrix being a consenting party and would not like to observe anything more. 110 Apart from above, it has specifically come in the statement of PW16 Investigating Officer that the calls details of the prosecutrix and the appellant had been obtained, but had not been placed on record, which constrains this Court to draw an adverse inference as by withholding call details and mobile of the prosecutrix, the prosecution has withheld material evidence, which could have revealed - (a) as to whether the appellant and the prosecutrix were in touch with each other (b) to rule out that the alleged video was not made from the mobile of the prosecutrix (c) to confirm whether she had received video 56 from any of her friends as alleged by her or the same was otherwise present in her mobile phone.

111 As a matter of fact, no reasons had been assigned by the prosecution for not taking into possession the mobile phones of the friends of the prosecutrix or for that matter, her cousin's phone (PW5), who specifically stated that alleged video was available in his mobile as it has been sent to him by his Whatsapp group, which alone could have shown source of the video that was alleged to have been made viral, but not proved. 112 Furthermore, even the conduct of the prosecutrix in not disclosing the fact regarding preparation of alleged video or having been forced to have oral sex immediately after 20.10.2016 to any person including her friends or family members also reflects on her adversely.

113 That apart, the prosecution case regarding video having become viral has otherwise not established from record and the entire prosecution case otherwise crumbles because S.D. card, Ext.P4 has been proved to have been produced by the prosecutrix herself and being custodian of such card, where the video has been found, it was she alone who could have transmitted the same; unless there was evidence to the contrary.

114 There is no evidence on record regarding sexual harassment, assault or use of criminal force against the prosecutrix so as to disrobe her and bring the case within the mischief of Section 354-A and 354-B IPC.

115 Furthermore, there is no evidence for sustaining the charge under Section 385 IPC as the prosecution has miserably failed to prove that there were threats to the prosecutrix to extort money for not making the video viral that was found in the S.D. card in the mobile belonging to the prosecutrix. 116 As regards offence under section 67A of the I.T. Act, Section 67 reads as under:-

"Section 67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form. Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees."

117 While considering the ingredients of aforesaid Section, it can be said that firstly there must be a publication or 58 transmission of any material in the electronic form. Secondly, such material must be lascivious or appeals to the prurient interest. Thirdly such transmission and publication must be such as to tend to deprave and corrupt persons, who are likely to read, see or hear the matter contained or embodied in it While considering the terms "publication' and "transmission', it is to be established that the person charged with the offence, must have published or transmitted such material. The material, will include written material as well as the pictures, including photographs, cartoons and or drawn material. The nature of material, lascivious, however, needs to be taken into consideration as opposed to the standards of the decency. 118 It would be noticed that in the instant case, there is no proof of either publication or transmission of any material in the electronic form so as to attract ingredients of Section 67 of I.T. Act.

119 As regards applicability of Section 328 IPC, there is no evidence whatsoever led by the prosecution, which may indicate that the prosecutrix was administered poison or any stupefying, intoxicating or unwholesome drug or other thing with an intent to cause hurt to her or with an intent to commit 59 or to facilitate the commission of offence or knowing it to be likely that he will thereby cause hurt to the prosecutrix. 120 The best evidence in the weaponry of the prosecution is so called video clip, which too does not indicate that the prosecutrix has been administered any of the aforesaid things and her conduct in the video is absolutely normal and a non- resisting one.

121 As regards applicability of Section 201 IPC, again there is no evidence led by the prosecution to show that there is any disappearance of evidence of offence by the appellant. The so called evidence, which has strongly relied upon the by the prosecution, is in fact contained in the S.D. card, that admittedly was handed over by the prosecutrix herself to the police, who, conveniently could have been an accused under Section 201 IPC for having destroyed the mobile phone that too after registration of the case against the appellant and had further tried to mislead the investigation by claiming that the S.D. card had been given to her by her friend, Rajat and had further managed to mislead the police by claiming that the video had become viral.

122 The credit worthiness of the testimony of the victim has already been discussed in the earlier part of the judgment. 60 The victim when put to test as laid down in Rai Sandeep Deepu case (supra), fails the test of being sterling witness of a high quality and calibre whose version should therefore be unassailable and such quality should be in a position to accept it on face value without any hesitation.

123 The statement of the prosecutrix otherwise has not been corroborated from and by the other evidence or other material on record and even the story regarding uploading of video and thereafter its becoming viral has not been proved and rather found to be false.

124 There is no doubt that rape causes great distress and humiliation to the victim of rape but at the same time false allegation of committing rape also causes humiliation and damage to the accused. An accused has also rights which are to be protected and the possibility of false implication has to be ruled out.

125 Here it shall be apt to refer to the judgment of the Hon'ble Supreme Court in Radhu vs. State of Madhya Pradesh (2007) 12 SCC 57, wherein it was observed as under:-

"The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a person has persuaded a gullible or obedient daughter to make a false charge of a 61 rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."

126 In Raju v. State of Madhya Pradesh (2008) 15 SCC 133, the Hon'ble Supreme Court has held that testimony of the victim of a rape cannot be presumed to be a gospel truth and observed that false allegations of rape can cause equal distress, humiliation and damage to the accused as well, such sentiments have been recorded in para 11 of the judgment, which reads as under:-

"11. It cannot be lost sight of that rape causes the greatest 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."

127 In Abbas Ahmed Choudhary Vs. State of Assam :

(2010) 12 SCC 115, the Hon'ble Supreme Court has held that:

"We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."

128 Bearing in mind the aforesaid exposition of law, the testimony of victim has to be consistent and natural in line with the case of the prosecution and free from infirmities which inspire confidence in the Court. It cannot be presumed that the statement of the victim is always true or without any embellishment.

129 Reverting back to the facts of the instant case, we find that the testimony of the victim is not natural and consistent with the case of the prosecution as her version has no correlation and does not find corroboration with other material being scientific and expert evidence and above all, it is the prosecutrix herself who had refused to get her medically examined, which otherwise calls for adverse inference. 130 Having considered the entire case of the prosecution thoroughly and in its right perspective, we are of the firm view 63 that if the evidence of the prosecutrix is read and considered in totality of the circumstances along with the other evidence on record, on the basis of which, the offence is alleged to have been committed, then her deposition does not inspire confidence and thus was required to be corroborated with other evidence on record, but has not been so corroborated.

118 Unfortunately, the learned court below has not at all appreciated what has been discussed by us and simply has been swayed by irrelevant considerations.

119 In view of the aforesaid discussions and in the given facts and circumstances, it can conveniently be held that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. Therefore, the impugned judgment and order of conviction and sentence passed by the learned trial court are set aside. Consequently, the appellant, in the instant case, is ordered to be released immediately, if not required in any other case.

120 The Registry is directed to prepare release warrant of the appellant. In view of the provisions of Section 437A Cr.P.C., the appellant is directed to furnish a personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court, 64 which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court. 121 The instant appeal is allowed in the aforesaid terms. Pending application(s), if any, also stands disposed of. KALYAN Digitally signed by KALYAN CHAND AWASTHI DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=068e8173504da3a6d6e56308707033e63c7 (Tarlok Singh Chauhan) CHAND 253b4e6eb0f2a8f0285cdb5737f49, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=7fe19e609f07c9899a24f7f61744 de9a7a35cc62f67431d8415b71bf186fbd4f, Judge CN=KALYAN CHAND AWASTHI AWASTHI Reason: I am approving this document Location:

Date: 2023-10-17 13:24:38 (Ranjan Sharma) 17.10.2023 Judge (pankaj)

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Himachal Pradesh High Court