Gaurav vs State (Nct Of Delhi)
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 08.07.2026
Judgment pronounced on: 17.07.2026
+ CRL.A. 204/2021 and CRL.M.(BAIL) 659/2026
GAURAV .....Appellant
Through: Mr. Siddharth Satija, Mr. Akash
Sachan, Mr. Anuka Bachawat, Ms.
Charu Sinha and Ms. Akanksha Bisht,
Advocates.
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Utkarsh, APP for State with SI
Sheetal, P.S. Hauz Khas.
Mr. Anuj Kapoor, Advocate
(DHCLSC) with Mr. Nandeesh
Nanda and Mr. Shivom Sethi,
Advocates for victim.
+ CRL.A. 410/2021 and CRL.M.(BAIL) 131/2024
PRAVEEN KUMAR @ PANKAJ .....Appellant
Through: Mr. Nikhil Kumar Singh, Advocate
with Ms. Shasya Singh, Advocate.
versus
STATE (GNCT DELHI) .....Respondent
Through: Mr. Utkarsh, APP for State with SI
Sheetal, P.S. Hauz Khas.
Mr. Rohan J. Alva, Advocate
(Amicus Curiae) along with Mr.
Anant Sanghi, Advocate.
CRL.As. 204/2021 & 410/2021 Page 1 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In these appeals filed under Section 374(2) read with
Section 482 of Code of Criminal Procedure, 1973(the CrPC),
accused nos. 1 and 2 (A1 and A2) in Sessions Case No. 13/2018
on the file of the Additional Sessions Judge-Special Fast Track
Court, South District, South District, Saket Courts, New Delhi
assail the judgment dated 10.12.2020. By the said judgment, A1
and A2 have been convicted and sentenced for the offences
punishable under Sections365, 376D, 323, 506, 392 read with
Section 34of the Indian Penal Code, 1860 (the IPC).
2. The prosecution case is that on the intervening night
of14.11.2017 and 15.11.2017, A1 and A2 abducted PW2 when she
boarded A2’s taxi bearing no. DL-1ZA-3298 to travel home.
Acting in furtherance of their common intention, A1 and A2
diverted the vehicle to a secluded jungle like area in Greater
CRL.As. 204/2021 & 410/2021 Page 2 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
Noida, where they consumed alcohol, disrobed PW2 and subjected
her to gang rape, unnatural sex and also physically assaulted her
and also recorded their acts which took place inside the car during
the time from 01:30 A.M. to 05:00 A.M. Following the assault,
the accused persons robbed PW2’sjewellery,₹12,000/- in cash, and
her mobile phone before abandoning her at Pari Chowk, Noida
around 06:00 A.M. Hence, as per the chargesheet/ final report, A1
and A2 are alleged to have committed the offences punishable
under Section 365, 366,367, 376D, 392, 411, 506 read with
Section 34 of the IPC.
3. Based on Ext. PW2/A, stated to be the FIS/FIR of
PW2, crime no. 427/2017 Hauz Khas Police Station, that is, Ext.
PX FIR was registered by CW25 (Charge Witness) Sub Inspector.
PW22, Assistant Sub Inspector, conducted investigation into the
crime and on completion of the same, submitted the
chargesheet/final report before the Court, alleging the commission
of the offences punishable under the aforementioned Sections.
CRL.As. 204/2021 & 410/2021 Page 3 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
4. On appearance of A1 and A2 before the jurisdictional
magistrate pursuant to receipt of summons, copies of all the
prosecution reports were furnished to them as contemplated under
Section 207 Cr.P.C. Thereafter, in compliance of Section 209
Cr.P.C, the case was committed to the Court of Session concerned.
5. When A1 and A2 appeared before the trial court, as per
orders dated 16.02.2018, Charge under Sections 365, 376D, 323,
506, 392 read with 34 IPC was framed, read over and explained to
bothA1 and A2 to which they pleaded not guilty.
6. On behalf of the prosecution, PWs.1 to 22 were
examined and Ext. PW1/A-B, Ext. PW2/A-F, Ext. PW4/A-B, Ext.
PW4/P-1 to P-4, Ext. PW6/A-C, Ext. PW8/A, Ext. PW9/A, Ext.
PW10/A-B, Ext. PW11/A-D, Ext. PW12/A, Ext. PW13/A, Ext.
PW14/A, Ext. PW15/A, Ext. PW16/A-I, Ext. PW18/A-F, Ext.
Mark Ext. PW19/A, Ext. PW19/A-G, Ext. PX1-PX2, Ext.
PW20/A-F, Ext. PW21/A-F, Ext. PW22/A-G, Ext. PX. Ext. PX1 -
Ext. PX6 were marked in support of the case.
CRL.As. 204/2021 & 410/2021 Page 4 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
7. After the close of the prosecution evidence, A1 and A2
were questioned under Section 313(1)(b) Cr.P.C., with regard to
the incriminating circumstances appearing against them in the
evidence of the prosecution. A1 and A2 denied all those
circumstances and maintained their innocence. According to A1
and A2, PW3 had accompanied them voluntarily, and that they had
not committed sexual intercourse against her will or without her
consent. The sexual relationship was consensual and done with her
free will and consent. PW3 gave a false statement with the
intention of extorting money from them.
8. After questioning A1 and A2 under Section 313(1)(b)
Cr.PC., compliance of Section 232 Cr.P.C., was mandatory. In the
case on hand, no hearing as contemplated under Section 232
Cr.P.C., is seen done by the trial court. However, non-compliance
of the said provision does not ipso facto vitiate the proceedings
unless omission to comply with the same is shown to have resulted
in serious and substantial prejudice to the accused (See Moidu K.
CRL.As. 204/2021 & 410/2021 Page 5 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
Vs. State of Kerala, 2009 (3) KHC 89; 2009 SCC OnLine Ker
2888 ). In the case on hand, A1 and A2 have no case that non-
compliance of Section 232 Cr.P.C. has caused any prejudice to
them.
9. On behalf of A1 and A2, DW1 to DW3 were examined
and Ext. DW1/A, Ext. DW2/A, Ext. DW3/A-B were marked.
10. On consideration of the oral and documentary evidence
and after hearing both sides, the trial court, vide the impugned
judgment dated 10.12.2020 found A1 and A2 guilty of the offences
punishable under Sections 365, 376D, 323, 506, 392 read with
Section 34 IPC. Accordingly, vide order on sentence dated
06.02.2021, both A1 and A2have been sentenced to undergo
rigorous imprisonment for a period of twenty (20) years and to pay
a fine of ₹2,000/- for the offence punishable under Section 376D
IPC, and in default of payment of fine, to undergo simple
imprisonment for two months; to undergo rigorous imprisonment
for five (05) years and to pay a fine of ₹1,000/- for the offence
CRL.As. 204/2021 & 410/2021 Page 6 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
punishable under Section 392 read with 34 IPC, and in default of
payment of fine, to undergo simple imprisonment for one month;
to undergo rigorous imprisonment for five (05) years and to pay a
fine of ₹1,000/- for the offence punishable under Section 365 read
with 34 IPC, and in default of payment of fine, to undergo simple
imprisonment for one month; to undergo rigorous imprisonment
for one (01) year and to pay a fine of ₹1,000/- for the offence
punishable under Section 506 read with 34 IPC, and in default of
payment of fine, to undergo simple imprisonment for one month;
and to undergo rigorous imprisonment for six months and to pay a
fine of ₹1,000/- for the offence punishable under Section 323 read
with 34 IPC, and in default of payment of fine, to undergo Simple
Imprisonment for one month. The sentences have been directed to
run concurrently. Aggrieved, both A1 and A2 have preferred the
present appeals.
11. The learned counsel appearing for A2 submitted that
the although PW2 alleged that the videos of the repeated sexual
CRL.As. 204/2021 & 410/2021 Page 7 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
assault had been recorded by A1 and A2 and transmitted to her
sister through WhatsApp, no such videos were ever recovered or
produced during the course of investigation or trial, thereby
rendering the prosecution version doubtful. According to the
learned counsel for A2, there is a material contradiction in the
testimony of PW2 regarding her mobile phone which A1 and A2
are alleged to had taken away. However, she has a further case that
she had received video calls from the accused on the same mobile
number on 16.11.2017 and17.11.2017. PW2 is also alleged to
have taken screenshots of A1’s photograph on her mobile phone
and forwarded the same to PW19. These versions are stated to be
mutually inconsistent.
11.1. It was further contended that, apart from the mobile
phone allegedly recovered from the possession of A1, none of the
other articles alleged to have been robbed from PW1, including her
earrings, mangalsutra , paijeb and bangles, were ever recovered,
thereby casting a doubt on the prosecution case.
CRL.As. 204/2021 & 410/2021 Page 8 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
11.2. The learned counsel for A2 further relied on Ext.
PW11/B Call Detail Records (CDRs) which would show that PW2
and PW3, her husband were in continuous telephonic contact
during the relevant period, i.e., about 19 calls were made between
08:10 PM and 12:48 AM on the night of the alleged incident. It
was further pointed out that, according to the prosecution, the car
reached the place of occurrence at about 01:30 AM on 15.11.2017
and the journey took approximately one hour. Even during the said
period, Ext. PW11/B shows that seven calls were exchanged
between PW2 and her husband between 12:30:31 AM and
01:30:48 AM. Further, it was pointed out that PW3, the husband of
PW2, admitted that he had received a call from her at about 12:13
AM during time which she was supposed to be shouting.
Therefore, despite remaining in continuous contact with his wife
and being aware that she was in danger, PW3 neither informed the
police nor took any immediate steps to secure assistance.
According to the defence, the conduct of both PW2 and PW3 in
CRL.As. 204/2021 & 410/2021 Page 9 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
not alerting the police despite repeated telephonic communication
raises a serious doubt.
11.3. The learned counsel for A2 further pointed out the
inconsistent statements of PW2 regarding the alleged use of a
weapon during the incident. It was submitted that in the initial
PCR call, recorded as Ext. PW12/A, PW3, the husband of PW2
reported that the accused persons were armed with a pistol.
However, in Ext. PW14/A, the statement of PW2 recorded at K.N.
Katju Marg police station, the weapon alleged to have been used to
threaten and intimidate PW2 is a knife. Further, Ext. PW1/B MLC
of PW2 specifically records that “no weapons or objects” were
used during the alleged sexual assault. Such mutually inconsistent
versions regarding the use of a weapon creates doubt on the
credibility of the prosecution case.
11.4. The defence further relied upon the data regarding the
GPS installed in the vehicle used for the commission of the
offence. According to PW6, Ext. PW6/C GPS logs conclusively
CRL.As. 204/2021 & 410/2021 Page 10 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
show that the vehicle remained parked at a single location in Noida
from 12:00 AM till 08:37 AM on 14.11.2017. The GPS data
establishes that the vehicle was never present near Ansal Plaza
between 10:30 PM and 11:30 PM, as alleged by PW2.The two
locations are separated by a distance of approximately 30
kilometres. It was therefore contended that the GPS records furnish
a clear alibi for the accused and contradict the prosecution’s
version regarding the time and place of the alleged abduction.
11.5. Reference was also made to the testimony of DW2,
Traffic Inspector, Rajasthan State Road Transport Corporation,
Delhi Depot, ISBT Sarai Kale Khan,who DW2 deposed that, as
per Ext. DW2/A, buses to Mehandipur Balaji departed at regular
intervals at 08:30 PM, 09:30 PM, 10:30 PM and that the last bus at
11:30 PM on 14.11.2017. This evidence disproves the testimony of
PW2 who claimed that she had reached ISBT Sarai Kale Khan at
about 08:30 PM, waited for nearly two and a half hours, but no bus
had come. Reliance was placed on the dicta in Manoj v. State,
CRL.As. 204/2021 & 410/2021 Page 11 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
2026 SCC OnLine Del 758, Sharad BirdhichandSarda v. State
of Maharashtra, (1984) 4 SCC 116 and Anwar v. State (NCT of
Delhi), 2026 SCC OnLine Del 914 in support of the arguments
advanced.
12. Per contra, it was submitted by the learned Additional
Public Prosecutor (APP) that the prosecution has proved its case
beyond reasonable doubt and that the impugned judgment warrants
no interference. It was submitted that by virtue of Section 114A of
the Indian Evidence Act, once PW2 deposes that the sexual
intercourse was without her consent, the Court is bound to
presume absence of consent. It was submitted that the burden
shifts to the accused to rebut the same by leading cogent evidence
to the contrary. Further, reliance was placed on the decision of the
Apex Court, State of Punjab v. Gurmit Singh, 1996 AIR SC
1393 to canvass the point that Courts must recognize the immense
social stigma of sexual assault and generally trust a victim's
testimony, as no woman would lightly subject herself to such
CRL.As. 204/2021 & 410/2021 Page 12 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
humiliation. Therefore, it was contended that the testimony of
PW2 alone is sufficient for a conviction, and that the courts should
neither demand corroborative evidence as a rule nor reject the case
over minor discrepancies.
13. The learned counsel appearing for PW2,while
countering the defence’s challenge to the conduct of PW2, invited
the attention of the Court to the conduct of A1 and A2. It was
submitted that the A2 had taken possession of PW2’s mobile
phone and, on 22.11.2017 at about 10:11 AM, used the same to
make a video call to PW3, her husband. According to the
prosecution, the said call was made with the object of threatening
PW2 and her husband and extorting money from them.
13.1. It was submitted that the trial court has rightly
appreciated the GPS data of the vehicle. The GPS coordinates
reveal that, from 00:00 hours on the intervening night of
14.11.2017 and 15.11.2017 till about 01:30 AM on 15.11.2017, the
vehicle was continuously moving around different parts of Delhi,
CRL.As. 204/2021 & 410/2021 Page 13 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
including Lajpat Nagar, Andrews Ganj, South Extension, East
Kidwai Nagar and Aurobindo Marg. These locations are all in the
vicinity of the place from where PW2 claimed to have been picked
up. It was therefore submitted that there existed a clear probability
and feasibility of the accused having picked up PW2 from the said
area. The prosecution is not required to establish the exact spot of
abduction with mathematical precision. Hence the materials on
record are more than sufficient to justify the conviction and
sentence of A1 and A2 by the trial court.
14. Heard both sides and perused the records.
15. The only point that arises for consideration in this
appeal is whether the conviction entered and sentence passed
against the appellants/A1 and A2 by the trial court are sustainable
or not.
16. As per the Court charge, on 15.11.2017 at about 12:30
a.m. PW2 boarded the taxi driven by A2 at Ansal Plaza for the
purpose of going to her residence at Rohini. After traveling for
CRL.As. 204/2021 & 410/2021 Page 14 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
some distance, A2 also joined them in the taxi. Thereafter, A1 and
A2 in furtherance of their common intention criminally intimidated
and threatened PW2 into silence and took her to a secluded place
at Greater Noida, raped her and robbed her of all her valuables.
They also took video and photos of the sexual assault. They are
alleged to have reached the place of occurrence at 01:30 a.m. and
that the rape and assault took place from 01:30 a.m. till 05:00 a.m.
inside the car. Thereafter, at about 06:00 a.m., PW2 was dropped
at Pari Chowk, Noida. This is the Charge that A1 and A2 have to
answer.
17. As per the prosecution case, Ext. PW2/A is the
statement/information given on 16.11.2017 by PW2 to PW22 on
the basis of which crime no. 427/2018 Haus Khas police station
(PS), that is, Ext. PX FIR was lodged. However, a perusal of the
records reveals that even before Ext. PW2/A statement was
recorded, a detailed statement of PW2 had been recorded on
15.11.2017, which aspect is clear from the testimony of PW14 and
CRL.As. 204/2021 & 410/2021 Page 15 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
PW15. PW14, then ASI, K.N. Katzu (KNK) Marg, PS deposed
that on 15.11.2017 at about 06:20 p.m., a call was received at the
PS regarding an incident of rape near Pari Chowk, Noida. The
caller was the husband of the victim. On receipt of the call, he
reduced the information received into writing, that is, DD No. 44A
which has been marked as Ext. PW14/A. Ext. PW14/A reads thus:
“DD No. 44A Dt. 15/11/17 PS KNK Marg, Delhi
DO PCR CALL
6.20 w/off DO Room
समय बजे शाम दज है िक ने आकर तहरीर कराया
Sec 16 HNo 137 P&T G-6 Caller
की का सराय काले खां गया था
Green Park
जहां से ओटो िकया था। िजसने अंसल ाजा पर उतार िदया।
unknown
िजसने कहा िक वहां से टै ी की थी। िजसने िकसी आदमी को
बैठा िलया जो टै ी वाले का जानने वाला था जो टै ी को परी चौक
Caller
नोए ा को ले गया। चाकु िदखाकर की पि के साथ रेप िकया व
9582810913
पि का मंगल सुत्र पाजेब आादी व मारपीट की है ह
PCR
आमद इतला दज रोजनामचा की गई नकल रपट अलग करके हवाले
ASI नवरतन no 589/RD की गई जो हम ct Dinesh no 1524/RD रवाना
मौके के ये जो मुनािसब काय वािह अ म लाय गे बकलम ASI DO...”
(Emphasis Supplied)
CRL.As. 204/2021 & 410/2021 Page 16 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
17.1. Ext. PW14/A roughly translated reads thus:- “.... It is
recorded at 6.20 PM that w/off came to the DO Room and
recorded that Sec 16 HNo 137 P&T G-6 caller had gone to Sarai
Kale Khan, from where an auto was taken and dropped at Green
Park Ansal Plaza. From there a taxi was taken. In the taxi along
with the driver there was another person, and the taxi was taken to
Pari Chowk, Noida. Showing a knife, raped the caller's wife and
took her mangalsutra, anklet, etc., and assaulted her. 9582810913
on receipt of the information, the PCR call was recorded in the
daily diary, a copy of the report was separated and handed over to
ASI Navratan no. 589/RD (PW15) , who along with Ct. Dinesh no.
1524/RD left for the spot to take appropriate action... ”
18. According to PW14, the aforesaid call was marked to
PW15 for necessary action. PW15, another ASI, KNK Marg PS
deposed that on 15.11.2017 he received a call from the duty officer
CRL.As. 204/2021 & 410/2021 Page 17 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
relating to DD No. 44A at about 06:20 p.m. On receipt of the said
call, he along with Constable Dinesh proceeded to House no. 137,
Pocket no. 6, Sector-16 Rohini, where he met PW2 and her
husband (PW3). After making enquiries from PW2 and in the
presence of PW3, he recorded her statement, which has been
marked as Ext. PW15/A. PW15 further deposed that by this time
the SHO, KNK Marg PS also reached the residence of PW2 and
made enquiries with the latter. The SHO then directed him to take
PW2 and her husband to Haus Khas PS as the incident had
occurred within the jurisdiction of the said police station. Before
proceeding to the said station, he first took PW2 to Ansal Plaza,
from where she had boarded the taxi. PW2 pointed out the place of
occurrence, but he did not prepare any site plan as no FIR had been
registered. He thereafter contacted the duty officer of Haus Khas
PS, pursuant to which PW22 WASI reached Ansal Plaza. He then
handed over PW2's statement (Ext. PW15/A) recorded by him,
appraised PW22 of the facts of the case, and then returned to KNK
CRL.As. 204/2021 & 410/2021 Page 18 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
Marg PS without conducting any further investigation. On being
shown Ext. PW14/A DD No. 44A, PW15 deposed that the said DD
was neither prepared nor signed by him and that it must probably
have been prepared by the duty officer of KNK Marg PS.
19. According to PW22, to whom PW15 had handed over
PW2 along with Ext. PW15/A statement, on 16.11.2017 PW2
along with her husband had come to Haus Khas PS. She then
recorded Ext. PW2/A statement of PW2 and then handed over the
same to the duty officer for registration of the FIR. Pursuant to the
same, Ext. PX FIR was registered.
20. Therefore, according to the prosecution, Ext. PW2/A is
the statement/information given by PW2 under Section 154 CrPC
on the basis of which crime bearing number 427/2017 was
registered, that is, Ext. PWX FIR. In this context it would be
apposite to refer to the dictum of the Apex Court in T.T. Antony
v. State of Kerala (2001) 6 SCC 181 in which it has been held
that apart from a vague telephonic message or a cryptic
CRL.As. 204/2021 & 410/2021 Page 19 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
communication, the earliest information relating to the commission
of a cognizable offence that is recorded by the officer in charge of
a police station in the station house diary constitutes the First
Information Report within the meaning of Section 154 CrPC. Any
subsequent information, whether oral or written, furnished after the
commencement of the investigation into the same occurrence
would merely amount to a statement under Section 161 CrPC and
cannot be treated as a fresh FIR. Registration or treatment of such
subsequent statement as another FIR would, in effect, amount to a
second FIR, which is impermissible under the scheme of the CrPC.
21. Going by the materials on record, the first
information/statement given by PW2 was reduced into writing by
PW15, who had been deputed to proceed to the house of PW2
pursuant to the police receiving information of the crime. This
information/statement was never produced before the court along
with the final report/charge sheet. But when PW15 was examined,
the prosecutor himself brought it out during the course of the
CRL.As. 204/2021 & 410/2021 Page 20 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
examination-in-chief of the former that such a statement had been
recorded and as directed by the trial court the same was brought on
record and marked as Ext. PW15/A. It is true that PW2 was never
shown Ext. PW15/A during the course of her examination. But
PW15 is a loyal prosecution witness and it is as per the request of
the prosecutor, the first statement/information of PW2 was
introduced in evidence, marked and proved through PW15. It has
also come out in evidence that PW15 had handed over Ext.
PW15/A to PW22 as it was revealed that the crime was committed
within the jurisdiction of Haus Khas PS. In such circumstances, the
correct procedure to have been adopted by PW15 was to register a
Zero FIR based on Ext. PW15/A and then transfer the same to
Haus Khas PS to complete the further formalities. On the other
hand, PW15 just handed over the first
information/statement/report, that is, Ext. PW15/A to PW22. As
Ex. PW15/A is the earliest information/statement/report given
relating to the commission of a cognizable offence recorded by a
CRL.As. 204/2021 & 410/2021 Page 21 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
competent police officer under Section 154 CrPC, PW22 ought to
have registered the crime and proceeded with the investigation. On
the other hand, PW22 is seen to have recorded another statement
of PW2, that is, Ext. PW2/A, on the basis of which the crime, that
is, Ext. PX FIR was registered. The statement recorded by PW22,
that is, Ext. PW2/A has been treated by the prosecution and the
trial court as the first information/report received under Section
154 CrPC on the basis of which the crime was registered. This is
apparently wrong. Once the statement of PW2 dated 15.11.2017
given to PW15, that is, Ext. PW15/A had set the law in motion,
any subsequent statement relating to the same occurrence could
only be treated as a statement under Section 161 CrPC and not as a
fresh FIS/FIR as treated by PW22 in this case. Ex. PW2/A is a
statement given later in point of time and hence can only be a
statement under Section 161 CrPC attracting the bar contemplated
under Section 162 CrPC and therefore ought not to have been
marked in evidence.
CRL.As. 204/2021 & 410/2021 Page 22 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
22. Now coming to Ext. PW15/A, the earliest or the first
information/statement/report given by PW2 to PW15 on
15.11.2017 recorded in Hindi roughly translated reads thus –
“ Yesterday on 14.11.2017, I caught a TSR (three seater rickshaw)
from Sarai Kale Khan bus stand to go home. The TSR driver
dropped me near Ansal Plaza in Green Park. From there, I took a
taxi. After I got into the taxi, the driver drove a short distance and
then picked up another boy on the way. The taxi driver and the
boy, by showing a pistol, directed me to keep quiet. They took me
from there to a jungle near Pari Chowk in Noida, where they
committed a wrong act with me. In the morning, I realized that I
was at Pari Chowk in Noida. Both the boys took my gold earrings,
gold mangalsutra, four gold bangles, and silver anklets, as well as
my mobile phone (Oppo A-57) containing vodafone SIM number
9643461988. There was approximately ₹12,000/- in my purse.
They took all the aforementioned articles from me. I am giving this
statement in the presence of my husband Awadesh Kumar without
CRL.As. 204/2021 & 410/2021 Page 23 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
any pressure. Legal action may be taken."
(Emphasis Supplied)
23. The aforesaid statement is seen signed by PW2. As
noticed earlier, it is true that this document was never shown to
PW2 when she was in the box. However, PW15, a loyal
prosecution witness, has proved that this is the statement given by
PW2 on 15.11.2017. On going through Ext. PW15/A, it is seen
that after PW2 had affixed her signature, PW15 has attested the
same. Thereafter, it is recorded thus in Hindi :
“ मैने अपने फोन नं . 9643461988 से अपने पित अवधेश कुमार को
उनके फोन नं . 9582810913 पर रात को समय करीब AM 12:30 रात
म फोन िकया था व ऑटो वाले से बात करवाई थी िक म अंसल ाजा के
पास ँ तथा कुछ देर बाद मुझे टै ी िमली िजसने मुझे रोिहणी ले जाने
के िलए िबठाया था जैसे ही म टै ी मे बैठी मैने ारा अपने पित को
फोन करके बतला िदया / िक मै टै ी मै बैठ कर आ रही ँ / सुबह
समय करीब 6:00 बजे मुझे उन लोगो ने परी चौक के पास छोड़ िदया /
मैने वहाँ पर खड़ी ई टै ी वाले से रोिहणी छोड़ने के िलए कहाँ / घर
पर मैने अपने पित को सारी बात बतलाई / तथा म घर पर आके नहा ली
थी
ल ी
CRL.As. 204/2021 & 410/2021 Page 24 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
अवधेश कुमार
9582810913”
(Emphasis Supplied)
24. The aforesaid content roughly translated reads thus: “I
had called my husband from my mobile number 9643461988 to his
mobile number 9582810913 at about 12:30 AM. The auto driver
told my husband that I was near Ansal Plaza. After some time, I
took a taxi to Rohini. As soon as I boarded the taxi, I again called
my husband and told him that I am returning home in the taxi. By
about 06:00 a.m., they left me near Pari Chowk. I took a taxi from
there and told the driver to take me to Rohini. When I reached
home I told everything to my husband. After reaching home, I took
a bath.”
(Emphasis Supplied)
25. Ex. PW2/D, the 164 statement of PW2, also seen
recorded in Hindi, roughly translated reads thus: "I was going to
CRL.As. 204/2021 & 410/2021 Page 25 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
Balaji Mehndi Pur. I had started from home at about 06:00 p.m.
on 14.11.2017. I went by auto to Sarai Kale Khan. It was dark
when I reached the bus stand. For a long time, I waited for the
bus. I called my husband and told him that the bus had already left
and that no bus had come. My husband asked me to return home. I
then hired an auto. The auto driver said that he would not go to
Sector 16 Rohini but would drop me at a place from where I could
get a bus to the place. The auto driver dropped me near Ansal
Plaza. As soon as I got down there, a taxi came and stopped in
which there was one man. I told him that I wanted to go to Sector
16 Rohini. He agreed to take me and told me that the fare would
be ₹550/-. I sat in the taxi. As soon as I got in, I called my
husband. After the taxi went a little further, the taxi driver took
another man inside. Both of them started threatening me ( डराने
धमकाने लगे ). Then, they took me very far in the dark. The car was
driven for about 45 minutes and then stopped by the side of the
road. I called my husband. They had locked all the windows of the
CRL.As. 204/2021 & 410/2021 Page 26 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
car. They snatched my phone and slapped me. They asked me not
to shout, otherwise, they would kill me right there. They made me
take off all my clothes. Then, they did dirty things (…… मेरे साथ गंदे
, , ….). Around
काम िकये मुँह से िकया लैिट न वाली जगह से भी िकया
05:00 a.m., they dropped me at Pari Chowk. From there, I took a
taxi and told the taxi driver to follow them. The taxi driver took me
to some distance, but they were not to be seen. Then I saw a police
jeep. I told them (policemen) everything. The policemen asked me
to sit in the taxi and that they would join me in following the
assaulters. But the police car went quite far ahead. Then I told the
taxi driver to drop me at my house. The taxi driver then put my
address at Rohini on his mobile and told me that the fare would be
₹850/-. The taxi driver dropped me in front of my house. My
husband asked the taxi driver from where he had picked me up.
The taxi driver replied that he had picked me up at Pari Chowk. I
did not have any idea of the route. I can only tell by seeking the
place. The boys took my money, anklets, mangalsutra, ₹12,000/-
CRL.As. 204/2021 & 410/2021 Page 27 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
and four bangles. They took all my belongings. After reaching
home, I did not tell my husband about the incident. My husband
realised that my belongings had been robbed, but he did not
realise that wrong things had also been done to me. The boys had
taken my Oppo phone. From my phone, the boys were making
video calls to my sisters. They had made my dirty videos. They
activated my SIM at 01:00 a.m. last night. The boys are torturing
my sisters by sending videos after undressing. In between, they
also activate my SIM. On the day after the incident at 11:00 a.m., I
told my husband about the incident. This is all I have to say. My
husband became frightened/scared. I filed a report before the
police. If I am shown the boys, I can identify/recognize them. Their
age is around 18 to 19 years. Both of them are lean.”
(Emphasis Supplied)
26. During the trial, A1 and A2 took up the defence that
PW2 had voluntarily joined them and that the sexual acts thereafter
were consensual. A1 and A2, while questioned under Section
CRL.As. 204/2021 & 410/2021 Page 28 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
313(1)(b) CrPC, submitted that PW2 had falsely implicated them;
that she had voluntarily joined them; that they did not sexual
assault her against her will or consent; that she has falsely
implicated them with the intention to extort money and that the
sexual relationship was consensual. In the light of the defence
taken up, the only question that needs to be considered is whether
the materials on record show that the relationship was consensual.
27. According to the learned prosecutor, as per Section
114A of the Evidence Act, in cases where sexual intercourse by
the accused is proved and the question is whether it was without
the consent of the woman alleged to have been raped and such
woman states in her evidence before the Court that she did not
consent, the Court shall presume that she did not consent. But,
Section 114A is attracted only in case of rape falling under any of
the clauses, that is, (a) to (n) of Sub Section (2) of Section 376
IPC. No such presumption is attracted to cases of rape falling
under Section 376(1) IPC. A Charge should therefore always be
CRL.As. 204/2021 & 410/2021 Page 29 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
framed in case of rape either under Sub Section (1) or Sub Section
(2) of Section 376 IPC. Conviction should also be so distinctly
recorded. (See Pankaj Singh vs. State of Haryana, 2024 KHC
8156: AIR 2024 SC 3091).
28. In the case on hand, there is no Charge under any of the
clauses of Section 376 (2) IPC. On the other hand, the Court
Charge inter alia is for the offence punishable under Section 376D
IPC. The conviction by the trial court is also for the said offence.
Hence, it is clear that the presumption under Section 114A
Evidence Act is not attracted to the facts of the present case.
Therefore the trial court went wrong in concluding and applying
Section 114A of the Evidence Act to the facts of the present case.
29. Even assuming for argument's sake that Section 114 A
Evidence Act is attracted, the following position emerges. No
doubt conviction in a case of rape can be based solely on the
testimony of the prosecutrix, but that can be done in a case where
the court is convinced about the truthfulness of the prosecutrix and
CRL.As. 204/2021 & 410/2021 Page 30 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
there exist no circumstances which cast a shadow of doubt over
her veracity ( Ramdas v. State of Maharashtra, 2007 KHC
3044: 2007 (2) SCC 170 ). It is also true as held in State of
Punjab v. Gurmit Singh, AIR 1996 SC 1393 , that it cannot be
overlooked that a woman or a girl subjected to sexual assault is not
an accomplice to the crime but is a victim of another person's lust
and it is improper and undesirable to test her evidence with a
certain amount of suspicion, treating her as if she were an
accomplice. The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are factors which
the courts should not overlook. The testimony of the victim in such
cases is vital and unless there are compelling reasons which
necessitate looking for corroboration of her statement, the courts
should find no difficulty to act on the testimony of a victim of
sexual assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the same, as a
CRL.As. 204/2021 & 410/2021 Page 31 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
rule, in such cases amounts to adding insult to injury. In Wahid
Khan v. State of Madhya Pradesh, 2010 KHC 6059: (2010) 2
SCC 9 , it has been held that it is a matter of common law that in
Indian society any girl or woman would not make such allegations
against a person as she is fully aware of the repercussions flowing
therefrom. If she is found to be false, she would be looked by the
society with contempt throughout her life. For an unmarried girl, it
will be difficult to find a suitable groom. Therefore, unless an
offence has really been committed, a girl or a woman would be
extremely reluctant even to admit that any such incident had taken
place which is likely to reflect on her chastity. She would also be
conscious of the danger of being ostracized by the society. It
would indeed be difficult for her to survive in Indian society which
is, of course, not as forward looking as the western countries are.
Thus, in a case of rape, testimony of a prosecutrix stands at par
with that of an injured witness. It is really not necessary to insist
for corroboration if the evidence of the prosecutrix inspires
CRL.As. 204/2021 & 410/2021 Page 32 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
confidence and appears to be credible.
30. Be that as it may, does that mean that the evidence of
the prosecutrix is the gospel truth? The answer can only be in the
negative. In Rajoo v. State of M. P., 2009 KHC 4344: AIR 2009
SC 858 it has been held that the basic principle that ordinarily the
evidence of a prosecutrix should not be suspect and should be
believed, the more so as her statement has to be evaluated at par
with that of an injured witness and if the evidence is reliable, no
corroboration is necessary. Undoubtedly, the aforesaid
observations must carry the greatest weight, but at the same time
they cannot be universally and mechanically applied to the facts of
every case of sexual assault which comes before the Court. 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. It must, further, be borne in mind
CRL.As. 204/2021 & 410/2021 Page 33 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
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. Reference was then made to Gurmit Singh's
(supra) case and to the amendments in 1983 to S.375 and 376 IPC
making the penal provisions relating to rape more stringent, and
also to S.114A of the Evidence Act with respect to a presumption
to be raised with regard to allegations of consensual sex in a case
of alleged rape and it has been held that it is however significant
that S.113A and 113B too were inserted in the Evidence Act by the
same amendment by which certain presumptions in cases of
abetment of suicide and dowry death have been raised against the
accused. These two Sections, thus, raise a clear presumption in
favour of the prosecution but no similar presumption with respect
to rape is visualized as the presumption under S.114A is extremely
CRL.As. 204/2021 & 410/2021 Page 34 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
restricted in its applicability. This clearly shows that in so far as
allegations of rape are concerned, the evidence of a prosecutrix
must be examined as that of an injured witness whose presence at
the spot is probable but it can never be presumed that her statement
should, without exception, be taken as the gospel truth.
Additionally, her statement can, at best, be adjudged on the
principle that ordinarily no injured witness would tell a lie or
implicate a person falsely. It is under these principles; the case
needs to be examined.
31. The term 'consent' has not been defined in IPC. Section
90 IPC, though does not define "consent", describes what is not
"consent". Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit. If the consent is
given by the prosecutrix under misconception of fact, it is vitiated.
Consent for the purpose of S.375 IPC requires voluntary
participation not only after the exercise of intelligence based on the
knowledge of the significance and moral quality of the act, but also
CRL.As. 204/2021 & 410/2021 Page 35 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
after having fully exercised the choice between resistance and
assent. Whether there was any consent or not is to be ascertained
only on a careful study of all relevant circumstances. As held by a
learned single Judge of the High Court of Kerala in Sunil Kumar
v. State of Kerala, 2013 KHC 468, a reading of the literature on
the subject and also the various decisions relating to the matter, it
becomes clear that there is no straight-jacket formula in
ascertaining whether there is consent in a particular case. A
decision has to be arrived at on the basis of the facts and
circumstances of each case and in the light of the evidence
adduced in the case. In each case the evidence will have to be
appreciated independently. But for the consent given by the victim,
the act would be illegal and would amount to rape. It is axiomatic
that consent is the linchpin of the offence. Consent being a state of
mind of an individual, the difficulty arises when one is called upon
to ascertain the state of mind of a person at a particular point of
time. In order to ascertain whether there is consent on the part of
CRL.As. 204/2021 & 410/2021 Page 36 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
the victim, her conduct before, during and after the incident has to
be ascertained. The potential of consent lies in its authority to
metamorphose an act that is wrong into one which the law will
permit.
31.1. In Pramod Suryabhan Pawar v. State of
Maharashtra, 2019 KHC 6829 , the Apex Court has held that an
inference as to consent can be drawn only based on evidence or
probabilities of the case. "Consent" is an act of reason coupled
with deliberation. It denotes an active will in mind of a person to
permit the doing of the act complained of. This understanding was
also emphasised in the decision in Kaini Rajan v. State of Kerala
(2013 KHC 4753: (2013) 9 SCC 113 . "Consent", for the purpose
of S.375, requires voluntary participation not only after the
exercise of intelligence based on the knowledge of the significance
of the moral quality of the act but after having fully exercised the
choice between resistance and assent. Whether there was consent
or not, is to be ascertained only on a careful study of all the
CRL.As. 204/2021 & 410/2021 Page 37 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
relevant circumstances.
31.2. I also refer to the dictum in Deelip Singh @ Dilip
Kumar vs State of Bihar, AIR 2005 Supreme Court
203, wherein the Apex Court after referring to Section 90 IPC held
that consent given firstly under fear of injury and secondly under a
misconception of fact is not 'consent' at all. That is what is
enjoined by the first part of Section 90 IPC. These two grounds
specified in the Section are analogous to coercion and mistake of
fact which are the familiar grounds that can vitiate a transaction
under the jurisprudence of our country as well as other countries.
The factors set out in the first part of Section 90 are from the point
of view of the victim. The second part of Section 90 enacts the
corresponding provision from the point of view of the accused. It
envisages that the accused too has knowledge or has reason to
believe that the consent was given by the victim in consequence of
fear of injury or misconception of fact. Thus, the second part lays
emphasis on the knowledge or reasonable belief of the person who
CRL.As. 204/2021 & 410/2021 Page 38 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
obtains the tainted consent. The requirements of both the parts
should be cumulatively satisfied. In other words, the Court has to
see whether the person giving the consent had given it under fear
of injury or misconception of fact and the Court should also be
satisfied that the person doing the act i.e. the alleged offender, was
conscious of the fact or should have reason to think that but for the
fear or misconception, the consent would not have been given.
This is the scheme of Section 90 which is couched in negative
terminology. Section 90 cannot, however be construed as an
exhaustive definition of consent for the purposes of the IPC. The
normal connotation and concept of 'consent' is not intended to be
excluded. 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. Reference was also made to the three Judge Bench
decision in State of Himachal Pradesh v. Mango Ram, (2000) 7
SCC 224 , wherein it has been held that submission of the body
CRL.As. 204/2021 & 410/2021 Page 39 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
under the fear or terror cannot be construed as a consented sexual
act. 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.
Whether there was consent or not, is to be ascertained only on a
careful study of all relevant circumstances. The burden is on the
prosecution to prove that there was absence of consent. Of course,
the position is different if the case is covered by Section 114A of
the Evidence Act. Consent or absence of it could be gathered from
the attendant circumstances. The previous or contemporaneous
acts or the subsequent conduct can be legitimate guides. Whether
on the basis of the evidence adduced by the prosecution, it is
reasonably possible to infer lack of consent on the part of the
prosecutrix is the ultimate point to be decided.
32. Keeping the aforsesaid principles in mind, I proceed to
consider whether the prosecution has been successful in
CRL.As. 204/2021 & 410/2021 Page 40 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
establishing that PW2 was raped under threat/ coercion or whether
the materials on record indicate that it was a consensual one.
33. PW2 when examined before the trial court deposed that
as she was not keeping good health, about 4 to 5 months prior to
the incident, she and her husband (PW3) had visited Mehndipur
Balaji Temple. On 14.11.2017 at about 06:30 p.m, she left her
house alone for Mehndi Pur Balaji as her husband was unwell. She
reached Sarai Kale Khan bus stand within 1 ½ to 2 hours. She
waited for a bus to the said place but she did not get any. On
informing her husband over the phone about the same, he advised
her to return home in an auto. She hired an auto. The driver
expressed his inability to take her to Sector 16 Rohini but said that
he would drop her at a place from where she could get a taxi. The
auto driver dropped her at some place saying that she would be
able to get a taxi to Sector-16 Rohini. The time was around 11:00
PM. A car with yellow plate arrived. The car was being driven by
A2 who agreed to take her to Sector-16 Rohini for ₹550/- saying
CRL.As. 204/2021 & 410/2021 Page 41 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
that he had to pick up another person from the said place. After
boarding the taxi, she informed her husband that she would reach
home in 40 to 45 minutes. After driving for a while, the driver took
a u-turn and picked up another man, that is, A2 from beneath a
bridge. The windows of the car were closed as the driver had
switched on the air conditioner. She asked the driver the time
within which she would reach her destination as he had taken
another passenger. The car was being driven at high speed. She
noticed that the driver and the other passenger were conversing in
some native dialect. The driver and the passenger appeared to be
homely persons and so she did not initially apprehend any danger.
They told her that they would reach her destination within 30 to 40
minutes. All the windows were locked from inside. Then, the
driver started threatening her and asking her to remain quiet or else
she would be killed. She was also slapped. The car was then driven
towards a jungle, which she realized in the morning to be Pari
Chowk, Greater Noida. The driver stopped the car in the jungle.
CRL.As. 204/2021 & 410/2021 Page 42 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
Then, the driver and the other passenger got down to urinate
during which time she again called her husband. When the driver
and the co-passenger noticed her on the phone, they snatched away
her mobile phone. The car had three rows of seats. She was pushed
to the last row of seats, threatened and forced to remove all her
clothes. Both the persons forced themselves on her. They forcibly
committed sexual intercourse with her by penetrating her vagina
with male organs and also subjected her to oral sex. They pulled
her by her hair, took away her purse containing ₹12,000/- and her
gold earrings, mangal sutra, anklets, bangles and mobile phone.
They gave her ₹50/- and pushed her out of the car near Pari Chowk
before speeding away. She walked some distance and boarded
another taxi. She disclosed to the driver of the said taxi that a
wrong act had been committed against her. The taxi driver took her
to a police gypsy parked nearby. She got down from the taxi and
informed the policemen about the incident. The policemen
appeared to be drunk and so she refused to get into the vehicle of
CRL.As. 204/2021 & 410/2021 Page 43 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
the police despite being told to do so. She requested the taxi driver
to drop her home. It was still dark at that time. The taxi driver
booked another cab for her and she returned home in that cab. The
police gypsy had followed the cab for some distance before turning
away. The cab driver on reaching home told her husband about the
place from where he had picked her up. After about 1 ½ to 2 hours
of reaching home, she informed her husband about the incident.
Her husband informed his friend. Thereafter, she and her husband
attempted to locate the place of occurrence since she was unable to
recollect as to where she had been taken to. Thereafter, a call was
made to telephone no. 100. The police came to the showroom
where her husband worked and recorded her statement. According
to PW2, it was a lady police official of Hauz Khas police station
who had recorded her statement. PW2, on being shown her
statement, identified her signature therein, but stated that she was
unaware of the contents as she is illiterate. The said statement has
been marked as Ext. PW2/A. (I have already held that this
CRL.As. 204/2021 & 410/2021 Page 44 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
statement is inadmissible and that it ought not to have been
marked)
33.1. During the course of the examination-in-chief, the
prosecutor is seen to have sought the permission of the court to put
leading questions to the witness. This request was allowed by the
trial court. On further examination by the prosecutor, PW2
deposed that both A1 and A2 had consumed liquor before as well
as after raping her. She had stated to the police that A1 and A2 had
repeatedly subjected her to sexual intercourse by taking turns,
committed oral and unnatural sexual acts upon her and had also
with her mobile phone recorded a video of the incident using the
torchlight of their mobile phone. She had also stated to the police
that the semen ejaculated by the accused had fallen on the seat of
the car and that the accused had wiped it off using her top. She had
stated before the Magistrate that after committing rape, A1 and A2
had threatened to kill her and circulate the obscene video recorded
by them to her sisters and other relatives. According to PW2, the
CRL.As. 204/2021 & 410/2021 Page 45 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
contact number of her relatives were available on the WhatsApp in
her mobile phone and that the accused had, in fact, called her
sisters from her mobile phone. She had not stated before the
Magistrate that A1 and A2 were torturing her family members by
sending them the video they had recorded of the assault, though
she had stated that they were harassing her family members. PW2
further deposed that she had not seen her mobile phone after it had
been taken away by A1 and A2. She was unable to say whether the
video recording made by A1 and A2 during the course of the
assault, still remained in her device. At this stage of her
examination, PW2 the Investigating Officer (IO) was asked to
clarify by the trial court, as to whether PW2's mobile phone had
been examined. The IO answered that though she had checked the
mobile phone, no objectionable material was found.
33.2. PW2 in her cross-examination deposed that she is
illiterate, had never attended school, and is a homemaker. Her
husband worked in a showroom. She reiterated that on 14.11.2017,
CRL.As. 204/2021 & 410/2021 Page 46 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
she had left her house at about 06:30 p.m. for Mehndi Pur Balaji,
reached Sarai Kale Khan after about 1 ½ hours and waited there
for about 2 to 2 ½ hours for a bus. She did not take a bus in the
morning or afternoon, as she was unwell then. According to PW2,
if one takes a bus from Sarai Kale Khan in the evening, they can
reach Balaji in the early hours of the next day. Since no bus
arrived, she contacted her husband who said that he would come
and pick her up. But it was quite late and so she was
scared/frightened. Hence she took an auto to return home and told
her husband not to come. She had spoken to her husband five to
six times during the night, that is, between the time she had
reached Sarai Kale Khan and the time she reached home. PW2 was
unable to specify the time taken to travel from Sarai Kale Khan to
Ansal Plaza. PW2 further deposed that she informed her husband
about the incident at about 03:00 to 04:00 p.m. Thereafter, she, her
husband (PW3) and his employer (PW7), first went to Sarai Kale
Khan, and then to the place where the auto driver had dropped her,
CRL.As. 204/2021 & 410/2021 Page 47 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
and subsequently to Greater Noida in PW7's car. PW2 further
deposed that they reached Sarai Khan at about 5:00 p.m.
Thereafter, they proceeded to Ansal Plaza, where they reached
within half an hour, and then proceeded to the showroom of PW7,
from where a call was made to the police. PW2 denied having
stated to the doctor that she had boarded the taxi pursuant to a ride
offered by the accused. PW2 further deposed that for two to three
days, they had searched for A1 and A2 in the Greater Noida area.
A1 and A2 were ultimately traced through the video calls they had
been making. PW2 admitted that she had identified A1 and A2
before the police after they had been arrested. According to PW2,
the police had come to the showroom where her husband worked
on 15.11.2017 or 16.11.2017 in the evening, and that her statement
had been recorded at the showroom by a male police official. She
met a lady police officer later at the police station. PW2 denied the
suggestion that it was completely dark when A1 and A2 left her
near Pari Chowk. According to her, as it was dawn, there was
CRL.As. 204/2021 & 410/2021 Page 48 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
some light at the time, which according to her was about 04:30 to
05:00 a.m. Although there were houses nearby, she could only see
their boundaries and hear the noise of passing vehicles as A2 had
parked the taxi in a jungle. She did not raise any alarm while being
taken to the place of occurrence as she never thought that the
accused would do any wrong to her. The road was empty. She did
not raise an alarm at the spot also as the windows were locked
from outside and the accused were beating her. When she boarded
the taxi from Ansal Plaza, she had informed her husband that she
would reach home within 30 to 45 minutes. The time then was past
11:00 p.m. PW2 denied the suggestion that her husband took no
action when she failed to reach home within 30 to 45 minutes.
According to PW2, her husband called his colleagues and did
make efforts to search for her. PW2 further deposed that by the
time she reached Sarai Kale Khan, the bus to Mehandipur Balaji
had already left. According to her, she had made enquiries with the
other passengers waiting at the bus stop and she had also waited
CRL.As. 204/2021 & 410/2021 Page 49 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
for about two and half hours for a bus. PW2 denied the suggestion
that she had falsely implicated A1 and A2 in order to extort money
from them. She also denied the suggestion that she had voluntarily
accompanied A1 and A2 and had consented to the sexual acts.
34. PW3, husband of PW2 deposed that on 14.11.2017 his
wife left home alone at about 05:00 PM to visit Mehandipur Balaji
Temple as he could not accompany her due to some official work.
PW2 was to board a bus from Sarai Kale Khan. At about 09:00-
09:30 PM, his wife informed him over phone that she could not
board a bus to Mehandipur Balaji. He asked his wife to return
home. Around 10:45 PM - 11:00 PM, she again called and
informed him that she had boarded a car to return home. At about
12:30 AM, she again called him on phone and told him that she
apprehended danger as the driver had taken her to an unknown
place. Shortly thereafter, she made another call stating that she was
being beaten, following which her mobile phone was switched off.
He immediately informed his employer, PW7, who came to his
CRL.As. 204/2021 & 410/2021 Page 50 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
room. As PW2’s phone remained switched off, he and PW7 waited
for PW2 to return. After about half an hour, PW7 left his room and
so she continued to wait for his wife at home under the impression
that she had lost her way. PW3 further deposed that his wife
returned home at about 05:00 AM - 06:00 AM. Since she appeared
extremely nervous, he did not ask her anything. She took a bath
and went to sleep. She woke up at around 11:00 AM - 12:00 Noon.
He then called PW7 to his room. After his wife woke up, he asked
her about her whereabouts. His wife did not tell him anything for
about half an hour but thereafter told him about the entire incident.
She told him that she had been raped by two unknown persons.
Initially, he did not want to report the matter to the police. But his
wife wanted to file a complaint. He told his employer about the
incident, who advised him to call the police. He made a call to 100
number pursuant to which PCR officials came and took them to
K.N. Katju Marg, PS from where they were referred to Hauz Khas
PS. His wife narrated the incident to a lady police officer.
CRL.As. 204/2021 & 410/2021 Page 51 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
Thereafter, they accompanied the police to various places,
including Pari Chowk, in connection with the investigation for
about 4-5 days. Within 7-8 days, one of the accused persons was
apprehended near the place Loni. His wife identified the said
person as one of the rapists. On the following day, the other
accused was apprehended who was identified by his wife at the
police station. He further deposed that his wife told him that A1
and A2 had taken away her purse containing ₹11,000/- - ₹12,000/-.
mangalsutra, anklets, four bangles, earrings (jhumki), and her gold
coloured OPPO A57 mobile phone.
34.1. PW3 in his cross-examination deposed that on the date
of the incident, his wife had left home at about 05:00 – 06:00 p.m.
According to PW3, his wife did not specify the time by which she
would reach home, but she only told him that she had boarded a
taxi. It would take around 01 – 1 ½ hours to reach his home from
Ansal Plaza. PW3 admitted that normally, if a family member
goes missing, the other family members would file a police
CRL.As. 204/2021 & 410/2021 Page 52 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
complaint. But he could not do so as he was extremely nervous. He
made efforts to search for his wife in the nearby area, in which
attempt he was joined by PW7. He had called his employer during
the night itself, but the latter advised him to wait till morning. His
employer remained with him for about half an hour. He again
called his employer at 12:00 noon. PW3 further deposed that he
did not talk to his employer during the time between 11:00 a.m.–
12:00 noon. His wife did not disclose the incident immediately
upon returning home, but narrated it only around noon after his
employer arrived. Both he and his wife were initially reluctant to
lodge a complaint, but on being counseled and advised by his
employer, they gave the complaint. It was around 12:00-12:30
p.m. on 15.11.2017, his employer had advised them to approach
the police. Thereafter, he and his wife accompanied by his
employer (PW7), by around 12:30-01:00 p.m., left in his
employer’s for Pari Chowk. From Pari Chowk, they returned to the
showroom of his employer by 05:00-07:00 PM. It was his
CRL.As. 204/2021 & 410/2021 Page 53 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
employer who informed the police by calling number 100. His
wife had on 14.11.2017 had only called him twice, both of which
were received by him at his residence.
35. PW7 deposed that he has been running an electronic
showroom under the name and style, S.S. Electronics at Sector-16,
Rohini and that PW3 had been working as a salesman in his
showroom since February 2016. On 15.11.2017, at about 01:00
a.m., he received a call from PW3 informing him that PW2 had
been kidnapped. He immediately rushed to the house of PW3. He
advised PW3 to wait till morning and, if PW2 did not return, to
lodge a complaint with the police. Thereafter, he returned to his
house. At about 12:30 p.m. on the same day, he again received a
call from PW3 informing him that PW2 had returned home in a
nervous condition. He again went to their house and found PW2 in
a disturbed and nervous state. PW2 started weeping and upon
being asked, told him that she had been beaten, raped and that her
jewellery, money, and mobile phone had been taken away.
CRL.As. 204/2021 & 410/2021 Page 54 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
Thereafter, he persuaded both PW2 and PW3 to lodge a complaint
with the police regarding the incident. He then took PW2 and PW3
to Pari Chowk and also made a search of two to three nearby
places. Thereafter, they returned to his showroom and called the
police. The SHO, K.N. Katju Marg, PS came to his showroom, but
as the matter fell within the jurisdiction of Hauz Khas police
station, the police took them there, where PW2 lodged her
complaint.
35.1. PW7 in his cross-examination deposed that it was PW3
who had called the police, though he was unable to recall whether
the call was made from his own mobile phone or from the former’s
phone.
36. As noticed earlier, the genesis of the present case lies in
Ext. PW15/A, the first statement/information/report given by PW2
to PW15, which, in the facts of the present case, constitutes the
FIS/FIR and not Ext. PW2/A, as has been erroneously treated by
both the prosecution and the trial court. It is no doubt true that a
CRL.As. 204/2021 & 410/2021 Page 55 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
witness cannot be expected to narrate every event with
mathematical precision. Nevertheless, there must be a consistent
and coherent account of the material particulars of the occurrence
so as to inspire confidence in the prosecution case.
37. A careful perusal of the information conveyed through
the PCR call and recorded as DD entry no. 44A, namely, Ext.
PW14/A; Ext. PW15/A FIS/FIR no. 232, and Ext. PW3/A Section
164 statement of PW2, reveal material inconsistencies on
fundamental aspects of the prosecution story. Though it was
submitted on behalf of the defense that there are severe
contradictions, none have been proved by resort to the procedure
contemplated under Section 145 Evidence Act and hence, the
defense cannot take advantage of the same. But, the prosecution
relies on Ext. PW15/A FIS/FIR and Ext. PW2/D 164 statement for
the purpose of corroborating the testimony of PW2. It is true, as
noticed earlier, that PW2 was never confronted with Ext. PW15/A.
But, the prosecution has no case that Ext. PW15/A is not the first
CRL.As. 204/2021 & 410/2021 Page 56 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
information/report given by PW2 as testified by PW15, a loyal
prosecution witness. Even after Ext. PW15/A was proved through
PW15, PW2 was never recalled to clarify or explain the same.
Therefore, it is clear and obvious that the prosecution has no
quarrel/dispute regarding Ext. PW15/A. In fact, it is the prosecutor
himself who made a conscious effort to bring the said
information/statement on record and prove it.
38. Ext. PW15/A FIS/FIR does not corroborate the
testimony of PW2 on certain material aspects. To begin with, there
are glaring inconsistencies regarding the weapon allegedly used by
A1 and A2. Ext. PW14/A, DD entry no. 44A, which records the
first call to the police relating to the crime made by none other
than PW3, the husband of PW2, says that his wife was raped at
knife-point. However, in Ext. PW15/A, PW2 has stated that the
taxi driver and the other boy in the taxi threatened her by showing
a pistol (…
टै ी ड ाइवर व दूसरे लड़के ने मुझे िप ल िदखाकर चुप
रहने के िलए बोला था …) Ext. PW2/D 164 statement, records that
CRL.As. 204/2021 & 410/2021 Page 57 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
one of the accused said [.. .. (take out
िनकाल िप ल और इसको ठोक
the pistol and shoot her)]. In the box, PW2 has neither a case of
rape at knife or gunpoint. On the other hand, there is absolutely no
reference to the use of any weapon, be it a knife or a gun by A1
and A2 before, during, or after the incident.
39. Further, there is also no consistency regarding who,
when, and where the FIS/FIR of PW2 had been recorded. PW15
claimed that he had recorded Ext. PW15/A at the residence of
PW2 in Rohini. But PW2 has a different version. Initially, she
deposed that it was recorded by a female police official of Hauz
Khas police station. PW22 the IO, has a case that PW2 and PW3
had come to Hauz Khas police station on 16.11.2017, and then she
had recorded the statement/information/report of PW2, which led
to the registration of the FIR. Though initially PW2 has a case that
her statement/information/report was recorded by a female police
official, she thereafter deposed that on 15.11.2017-16.11.2017, it
was recorded by a male police official at the workplace of her
CRL.As. 204/2021 & 410/2021 Page 58 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
husband. PW3, on the other hand, deposed that PW7, his
employer, informed the police about the incident, pursuant to
which the police came to his workplace. The police took them first
to KNK Marg police station from where the case was sent to Hauz
Khas police station, at which station PW2's
statement/report/information was recorded by a lady police
official. PW7 has yet another case. According to him, the SHO
KNK Marg police station came to his showroom, but however,
since the crime was committed within the jurisdiction of Hauz
Khas police station, the police took them to the said police station
where the statement of PW2 had been recorded.
40. It is also pertinent to note that PW2 never disclosed
anything regarding the video alleged to have been recorded by A1
and A2 while she was being subjected to the alleged sexual assault,
in Ext. PW15/A, which constitutes the earliest detailed version of
the occurrence. It is true that the FIS/FIR is not an encyclopedia
and need not necessarily contain all the minute details related to
CRL.As. 204/2021 & 410/2021 Page 59 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
the crime. But the broad details must certainly be there. This is
especially so because PW2 has a specific case that A1 was
threatening her that he would send the said objectionable video to
her relatives and friends. In fact, the specific case of the
prosecution is that it was pursuant to one such video call, A1 had
been apprehended. But there is no reference to the video in Ext.
PW15/A. However, in Ext. PW2/D 164 statement, PW2 introduced
the allegation that A1 and A2 had recorded a video of the incident.
The said version was reiterated by her in the box also. PW2 has
also a case that A1 and A2 tried to circulate the video to her sister
and other relatives. But no such objectionable material was found
by the police in the mobile phone of PW2, which has been marked
as Ext. P2, in which the recording is alleged to have been made.
On the other hand, to a query by the Court during the course of the
trial, PW22, the IO categorically stated that on examination of Ext.
P2 phone, no objectionable material was found. The prosecution
has no case that A1 and A2 had deleted the video and hence, the
CRL.As. 204/2021 & 410/2021 Page 60 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
data was not retrievable. On the other hand, the definite answer
given by PW22 is that nothing objectionable was found in Ext. P2
phone.
41. According to PW2, apart from the money in her purse
and her gold ornaments, A1 and A2 had robbed her Ext. P2 mobile
phone also. Hence, I will refer to the evidence regarding the
mobile phone. PW2 in her cross-examination has a case that after
the incident, the accused had in fact made a call to her sisters. She
admitted that she had not in her 164 statement stated that A1 and
A2 had threatened to kill her or threaten to send the objectionable
video recorded by them to her sisters and relatives. But she added
that since the contact numbers were available on her phone, the
accused had in fact made a call to her sisters from her mobile.
PW2 has not specified as to which of the accused persons had
made the video call to her sisters. The prosecutor seems to have
never thought it necessary to clarify the same also. Ext. PW19/A
are three photographs alleged to have been clicked by PW2, when
CRL.As. 204/2021 & 410/2021 Page 61 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
A2 made a video call to her. PW19, ASI Haus Khas PS deposed
that on 16.11.2017, he joined the investigation with PW22. On
22.11.2017, he along with Sub Inspector Varun Gulliya and other
policemen went to village Maicha, Greater Noida from where PW2
was receiving calls on her mobile phone from A1 and A2. PW2
took a screenshot, when she received the calls. The photos were
sent to his mobile phone by PW2, and he in turn forwarded the
same to PW22. PW19 identified the photos and the same have
been marked as Ext. PW19/A (03 in number).
42. PW22, the IO deposed that on 17.11.2017-18.11.2017,
PW2 informed her that she and her relatives were receiving
obscene video calls from her mobile phone which had been robbed
by A1 and A2. She directed PW2 to remain in touch with A1 and
A2 so as to enable the police to trace their location. As instructed
by the police, PW2 informed A2 that she would be coming to meet
him. A2 showed his face on the mobile phone and then PW2 took
a screenshot of the same and sent it to PW19. PW22 also identified
CRL.As. 204/2021 & 410/2021 Page 62 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
Ext. PW19/A photographs. PW22 further deposed that Sub-
Inspector (SI) Varun Gulia on 23.11.2017 produced A2 before her
along with two mobile phones, one a Samsung and the other an
Oppo phone, golden color, which she seized as per Ext. PW19/B
and Ext. PW19/C seizure memos respectively. Ext. PW19/C
prepared by PW22 on 23.11.2017 says that the Oppo gold color
phone with IMEI number 865166031826798 and
865166031826780 with Vodafone SIM number 9643461988 had
been produced before her by SI Varun Gulia, who informed her
that the said phone had been seized from the custody of A2.
However, the SI who is alleged to have seized the mobile phone
from A2, is not seen examined before the trial court. In the charge
sheet, SI Varun Gulia is shown as CW6. On 20.08.2018, the trial
court is seen to have ordered summons to be issued to CW6 to
appear on 17.09.2018. CW6 was in fact present on 17.09.2018, but
was discharged due to paucity of time and his examination was
adjourned to 29.09.2018. On the said day, the prosecutor submitted
CRL.As. 204/2021 & 410/2021 Page 63 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
that his examination was unnecessary in the light of the testimony
of PW19 and PW22. In the light of the submission made, CW6
was given up and never examined before the trial court.
43. PW19 deposed that on 22.11.2017, he along with CW6
and team went to village Maicha, Greater Noida from where PW2
was receiving calls from A1 and A2 on her mobile. After they
received Ext. PW19/A photographs, they showed the same to an
informer with whose help they apprehended A2. A Samsung phone
and an Oppo phone were recovered from A2 which were seized as
per Exts. PW19/C and PW19/B seizure memos, in which he is an
attesting witness. PW19 in his cross-examination deposed that
after A2 was apprehended by CW6 and team, it was he who had
handed over the custody of A2 to PW22, who in turn arrested A2
at about 08:00 a.m. in the police station. But according to PW22 it
was CW6 who had produced A2 before her on 23.11.2017 at 07:00
a.m. PW2 further deposed that she is unaware as to when CW6
apprehended A2.
CRL.As. 204/2021 & 410/2021 Page 64 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
44. Further, the arrest memo and search memo of A2
alleged to have been prepared by PW22 at the time of arrest are
Exts. PX4 and PX5 respectively. In the column relating to the
articles seized from A2 it is recorded thus- “ -NIL-”. Neither PW19
nor PW22 has a case that the seizure of the phones from A2 were
made in the presence of PW22. On the other hand, both agree that
A2 was apprehended and the seizure effected by CW6. But Ext.
PW19/C the seizure memo of Ext. P2 phone alleged to have been
robbed from PW2 and seized/recovered from A2 has not been
prepared by CW6. On the other hand, it appears to have been
prepared by PW22 whose signature is seen at the bottom of the
same in which document, PW19 is an attester. CW6 is seen to have
also signed Ext. PW19/C as “ पेश कता ”. There are no independent
witnesses to prove the seizure of Ext. P2 phone. It is true that in all
cases it is not necessary to examine independent witnesses to prove
the recovery/seizure of stolen articles from the accused. But in
such cases, the materials on record must be quite cogent and
CRL.As. 204/2021 & 410/2021 Page 65 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
satisfactory to establish the same beyond reasonable doubt, which
does not seem to be the case in the matter on hand.
45. Further, PW2 has a case that in addition to the mobile
phone, A1 and A2 had robbed an amount of ₹ 12,000/- as well as
her gold ornaments, four gold bangles, her gold ear earrings,
mangal sutra, as well as her silver anklets. PW22 is seen to have
conducted no investigation whatsoever relating to the same. The
prosecution has no case that A1 and A2 had disposed of the same
and hence they were unable to recover the same. On the other
hand, there is complete silence of PW22 and team regarding the
gold ornaments and cash alleged to have been robbed from PW2.
46. Further, PW2 has a case that A2 had called her as well
as her sisters/relatives over phone. However, according to PW22,
her investigation revealed that on 21.11.2017-22.11.2017, A1 and
A2 had made several calls to PW3, the husband of PW2, the call
details of which are at pages 561, 563, 565, 567 of Ext. PW11/B
(colly). But, PW3 has no such case. PW3 was never asked
CRL.As. 204/2021 & 410/2021 Page 66 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
regarding these calls alleged to have been made by A2 to him. If
PW2’s version is right, why did A2 make several calls to PW3?
No explanation whatsoever is forthcoming from the prosecution on
this aspect. In addition, there is no evidence to substantiate the
claim of PW2 that A1 and A2 had made several obscene video
calls to her sisters/relatives.
47. Now coming to the conduct of PW2 and PW3. As per
the testimony of PW2, she remained in telephonic contact with her
husband (PW3) at several stages, beginning from the time she
intended to board a bus to Mehandipur Balaji from ISBT Sarai
Kale Khan, the non-availability of the bus, her journey by auto
rickshaw to Ansal Plaza, her boarding of the cab driven by A2, and
even during the alleged assault by the accused persons. According
to PW2, on the date of the incident, she had made about 5 to 6
calls to her husband. According to PW3, the first call was received
at about 09:00 – 09:30 pm when her wife informed him that she
did not get any bus to Mehandipur Balaji. He received the second
CRL.As. 204/2021 & 410/2021 Page 67 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
call at about 10:45 – 11:00 pm when she informed him that she
had boarded a taxi to return home. The third call was received at
about 12:30 a.m. when his wife informed him that she
apprehended danger and that the driver has taken her to an
unknown place. Shortly thereafter, he received one more call when
his wife informed him that she was being beaten, following which
her phone was switched off. According to PW3, he waited for his
wife to return home as he was under the impression that his wife
had lost her way. PW3 has also a case that he along with PW7 had
searched for his wife in the nearby places. The conduct of PW3
appears to be quite unusual and inconsistent with the natural
course of human conduct. PW3 in his cross examination admitted
that he did not immediately inform the police as he was nervous
and instead confined his efforts to searching the nearby areas.
48. It is no doubt true that the Court cannot expect a person
faced with the sudden disappearance or abduction of a close family
member to react in any particular manner or to mechanically
CRL.As. 204/2021 & 410/2021 Page 68 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
follow legal procedures. Human behaviour varies from person to
person. Nevertheless, in the facts of the present case, when PW3
claims to have been specifically informed by PW2 that she
apprehended danger and was thereafter beaten by the accused
persons, his failure to immediately alert the police or any other
authority, coupled with his decision to merely wait for PW2 to
return home on her own till the following morning, despite the
alleged occurrence having taken place in another part of the city,
appears unnatural and quite improbable. Such conduct, when
viewed in the backdrop of the other inconsistencies appearing in
the prosecution case, creates further doubts in the mind of this
Court regarding the truthfulness of the prosecution version.
49. Further, I also refer to the Ext. PW11/B Call Detail
Record from 14.11.2017 08:00 PM to 15.11.2017, which was
proved by the prosecution thereafter, PW11, Nodal Officer,
Vodafone mobile Services. The relevant portion is reproduced
hereinbelow.:-
CRL.As. 204/2021 & 410/2021 Page 69 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
S.No. Call made from Called received Date Time DURATION
(SECONDS)
1. 09643461988 09582810913 14-NOV-
2017
20:10:16 523
2. 09582810913 09643461988 14-NOV-
2017
20:28:30 189
3. 09643461988 09582810913 14-NOV-
2017
22:45:06 123
4. 09582810913 09643461988 14-NOV-
2017
23:56:17 44
5. 09582810913 09643461988 15-NOV-
2017
00:04:40 10
6. 09643461988 09582810913 15-NOV-
2017
00:07:55 32
7. 09582810913 09643461988 15-NOV-
2017
00:10:31 37
8. 09643461988 09582810913 15-NOV-
2017
00:15:03 39
9. 09643461988 09582810913 15-NOV-
2017
00:20:23 33
10. 09643461988 09582810913 15-NOV-
2017
00:27:23 119
11. 09643461988 09582810913 15-NOV-
2017
00:30:31 73
12. 09643461988 09582810913 15-NOV-
2017
00:34:59 237
13. 09582810913 09643461988 15-NOV-
2017
00:39:17 70
14. 09643461988 09582810913 15-NOV-
2017
00:42:03 58
15. 09643461988 09582810913 15-NOV-
2017
00:47:17 38
16. 09582810913 09643461988 15-NOV-
2017
00:48:55 41
50. Admittedly, mobile number 9643461988 is of PW2 and
CRL.As. 204/2021 & 410/2021 Page 70 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
9582810913 is that of PW3. A bare perusal of Ext. PW11/B Call
Detail Records (CDRs), read with the testimony of PW2 and PW3,
reveal several inconsistencies in the prosecution version regarding
the sequence of events on the intervening night of 14.11.2017-
15.11.2017.According to PW2, she reached ISBT Sarai Kale Khan
at about 08:00-08:30 PM after travelling for about 1 ½ to 2 hours.
Finding that no bus was available for Mehandipur Balaji, she
immediately informed PW3 over the phone. This version is
substantially reflected in the CDR, which shows a call from PW2
to PW3 at 08:10:16 PM lasting 523 seconds, followed by a return
call from PW3 at 08:28:30 PM lasting 189 seconds.PW2 further
deposed that after proceeding to Ansal Plaza, she boarded the taxi
driven by the accused at about 10:45 PM - 11:00 PM and
immediately informed her husband. PW3 also deposed that he
received a call from PW2 informing him that she had boarded a car
to return home. The CDRs corroborate this aspect by recording a
call from PW2 to PW3 at 10:45:06 PM lasting 123 seconds.
CRL.As. 204/2021 & 410/2021 Page 71 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
According to PW2, after travelling for about 45 minutes, the taxi
reached a secluded place where the accused persons began
assaulting her. PW3 deposed that, at about 12:30 AM, he received
a distress call from PW2 informing him that she apprehended
danger as the vehicle had taken a wrong route, followed by another
call stating that she was being beaten, after which her mobile
phone was switched off. However, the Call Detail Records gives a
different version. The records show a call from PW3 to PW2 at
11:56:17 PM lasting 44 seconds, followed by a series of thirteen
short-duration calls exchanged between 12:04:40 AM and
12:48:55 AM. These calls were initiated alternately from both
numbers. Thus, Ext. PW11/B Call Detail Records does not support
PW3’s version that the mobile phone was switched off
immediately after the alleged distress call. On the contrary, the
CDRs demonstrate continued telephonic activity between the two
numbers for nearly forty-five minutes thereafter. This materially
contradicts PW3’s version that communication had completely
CRL.As. 204/2021 & 410/2021 Page 72 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
ceased and that he merely waited at home after receiving the initial
calls. The prosecution has offered no explanation for these
repeated calls, thereby creating a serious doubt regarding the
sequence of events narrated by PW2 and PW3.
51. It is also pertinent to note that the prosecution witnesses
have given materially inconsistent versions regarding the manner
and timing in which PW2 disclosed the alleged incident to PW3,
her husband. In Ext. PW15/A she has stated that she revealed the
incident on reaching home. In Ext. PW2/D 164 statement, she in
fact states that after reaching home she did not tell her husband
about the incident. On the other hand, her case is that on the day
after the incident at about 11:00 a.m. she disclosed the incident to
her husband. So was it on 16.11.2017 she had disclosed it to her
husband? But in her examination-in-chief, PW2 deposed that she
narrated the incident to PW3 after about 1 ½ to 2 hours of reaching
home. However, in her cross examination, she stated that she
informed her husband about the incident only at about 03:00 PM to
CRL.As. 204/2021 & 410/2021 Page 73 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
04:00 PM.
52. PW3, on the other hand, gave an altogether different
version. According to him, PW2 returned home at about 05:00
AM-06:00 AM in a nervous condition. He did not question her
immediately, instead, PW2 took a bath and went to sleep. When
she woke up at about 11:00 AM - 12:00 noon, he enquired about
her whereabouts. Initially PW2 remained silent for nearly half an
hour before narrating the entire incident to him.
53. Now coming to the version of PW2 regarding non-
availability of any bus to Mehandipur Balaji. Going by the version
of PW2, she was unable to get any bus to Balaji Mehndipur and
hence the reason why she was constrained to take an auto to Ansal
Plaza and thereafter, the taxi driven by A1. According to her, she
had waited for a bus for a considerable period of time, however, no
bus had come. Here I refer to the testimony of DW2, Traffic
Inspector, Rajasthan State Road Transport Corporation, Delhi
Depot, ISBT, Sarai Kale Khan, New Delhi, examined on behalf of
CRL.As. 204/2021 & 410/2021 Page 74 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
A1 and A2, who produced the details of the buses which had left
ISBT, Sarai Kale Khan on 14.11.2017 for Balaji Mehandipur. The
same has been marked as Ext. DW2/A (running into six sheets).
DW2 deposed that the last bus of Rajasthan State Road Transport
Corporation left ISBT, Sarai Kale Khan on 14.11.2017 for Balaji,
Mehandipur at 23:30 hours. The first page of Ext. DW2/A reads
thus :-
CRL.As. 204/2021 & 410/2021 Page 75 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
The aforesaid document translated reads –
Date - 14-11-2017: List of vehicles operating from Delhi (Sarai
Kale Khan) on the Delhi – Balaji route.
Booking Clerk: Mr. Mahesh Jaiman
Time Vehicl
e No.
Depot
Name
Route Via Driver's
Name
Conductor's
Name
20:00 2319 Lohagarh Delhi - Balaji Nagar,
Kherli,
Sohna
Mr. Harveer
Singh
Mr. Karan
Singh
20:15 955 Dausa Delhi - Balaji Tijara,
Alwar
Mr. Dheer
Singh
Mr. Bhanu
Kumar
Sharma
21:00 2352 Lohagarh Delhi - Balaji Nagar,
Kherli,
Sohna
Mr.
Rameshwar
Dayal
Mr. Manish
Kant
21:15 1254 Dausa Delhi -Balaji Tijara,
Alwar
Mr. Bahadur
Singh
Mr. Hitesh
Kumar Joshi
22:00 4551 Bharatpur Delhi-Nadbai Sohna,
Nagar,
Kherli,
Kathum
ar
Mr.
Raghuveer
Singh
Mr. Atar
Singh
22:15 1344 Dausa Delhi - Balaji Tijara,
Alwar
Mr.
Satyanarayan
Meena
Mr. Harkesh
Meena
Booking Clerk's Name: Mr. Jogendra Singh
Time Vehicle
No.
Depot
Name
Route Via Driver's
Name
Conductor
's Name
20:30 2381 Lohagarh Delhi to
Balaji
Bharatpur,
Mathura
Mr. Siyaram Mr. Bhanu
Pratap
CRL.As. 204/2021 & 410/2021 Page 76 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
Singh
21:30 2380 Lohagarh Delhi to
Balaji
Mathura,
Bharatpur
Mr. Chatar
Singh
Mr.
Rampal
Singh
22:30 4536 Lohagarh Delhi to
Balaji
Mathura,
Bharatpur
Mr. Pratap
Singh
Mr. Prahlad
Gautam
23:30 2353 Lohagarh Delhi to
Balaji
Mathura,
Bharatpur
Mr. Jayveer Mr. Yogesh
Kumar
54. According to PW2, on 14.11.2017 at about 06:30 p.m.
she left home and reached Sarai Kale Khan within 1 ½ to 2 hours.
If that be so, she must have reached the bus stand between 08:00 –
08:30 p.m. As per Ext. DW2/A there was a bus at 20:30 hours;
21:00 hours; 21:15 hours; 21:30 hours; 22:00 hours; 22:15 hours;
22:30 hours and 23:30 hours. The testimony of DW2 and Ext.
DW2/A (colly) has not been discredited or disproved in any way.
This will again discredit the testimony of PW2 that she was unable
to get any bus to the place of destination. This is yet another factor
to doubt the prosecution case.
55. Further, the case of PW2 is that she had decided to go
alone to the temple as her husband was unwell. But PW3, has no
CRL.As. 204/2021 & 410/2021 Page 77 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
such case. According to PW3, he could not accompany his wife as
he had some official work.
56. Now coming to the location of the taxi driven by A1 in
which A2 was also present, which vehicle PW2 is alleged to have
boarded from Ansal Plaza.
57. PW6 Regional Manager, Moveinsync Technology Pvt.
Ltd. was examined to prove the location of the taxi based on the
GPS installed in the taxi. PW6 deposed that as requested by the IO,
he had handed over the location log of the taxi which document
was seized as per Ext. PW6/C seizure memo. PW6 explained how
the location could be determined by the Geo code mentioned in the
location log. This aspect of the testimony has not been disputed by
either side. PW6 in his cross-examination deposed that the GPS of
the car in question remained at the same place from 0.00 to 8.37
a.m. on 14.11.2017. To a Court question as to whether it was
possible for the driver of the vehicle to switch off the GPS, PW6
answered in the affirmative, but also stated that in such an event, it
CRL.As. 204/2021 & 410/2021 Page 78 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
would not have been possible to get the location log. PW6 was
further asked whether from Ext. PW6/C, the location of the taxi
bearing no. DL1ZA3298 could be stated to be at Ansal Plaza
between 10:30 to 11:30 p.m. on 14.11.2017. PW6 answered that he
would be able to answer after logging the locations for the said
period. This was permitted by the trial court. PW6 thereafter
logged in the entries for duration between 10:30 to 11:30 p.m. on
14.11.2017 in his mobile phone and referred to the location of the
taxi thus :–
Entry
Point
Time
(PM)
Logged Location
A-1 10:30 Greater Noida
A-2 10:35 Pari Chowk, Greater Noida
A-3 10:40 Near LG Chowk, Greater Noida
A-4 10:45 Dadri Main Road, Greater Noida
A-5 10:50 Dadri Main Road, near Panchmukhi
Hanuman Mandir, Greater Noida
A-6 10:55 Dadri Main Road, near Jagram Bhati Market,
Noida
A-7 11:00 Dadri Main Road, near Vishkarma Chowk,
Noida
A-8 11:05 Dadri Main Road, Near Noida Golf Course,
Noida
A-9 11:10 Metro Pillar No.93, Noida
CRL.As. 204/2021 & 410/2021 Page 79 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
A-10 11:15 Sector-18, near Atta Peer, Noida
A-11 11:20 Near Radha Krishan Temple, Noida
A-12 11:25 Near Gazipur Road, New Ashok Nagar Marg
A-13 11:30 Gazipur Road, near Sadbhawana Marg
57.1. PW6 further deposed that as per the location reflected
from the location log, the said taxi was on constant move during
the aforesaid period. He also deposed that as per the location log,
the vehicle was not at Ansal Plaza during the period between 10:30
p.m. to 11:30 p.m. on 14.11.2017. According to PW2, it was
around 11:00 p.m. she had boarded the taxi from Ansal Plaza. No
re-examination of PW6 was conducted by the prosecutor.
Therefore, the testimony of PW6, again a loyal prosecution
witness, that the car was not at Ansal Plaza at the relevant time as
claimed by PW2 has not been discredited in any way.
58. The learned counsel appearing for PW2 sought to
justify the findings of the trial court by referring to Para 69 of the
impugned judgment. Para 69 of the impugned judgment reads –
CRL.As. 204/2021 & 410/2021 Page 80 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
“ 69. On enlarging the kaleidoscope of GPS log detail
(co-ordinates of the vehicle) commencing from midnight
(00:00 hrs) of the night intervening the date 14.11.2017
and 15.11.2017 to next one and half hour i.e up to 01:30
AM of 15.11.2017, it leaves no doubt that at the relevant
time the vehicle was taking rounds of the city of Delhi.
The co-ordinate log of this one and half hour (00:00 to
01:15 ) were when posted in the Google Map as suggested
by the witness PW-6, shows that the car was roaming in
Lajpat Nagar, Andrews Ganj, South Ex., East Kidwai
Nagar and Arbindo Maarg. These areas are in the vicinity
of the area which the prosecutrix has stated that she was
picked up from. There is a probability, possibility and
feasibility of the accused Gaurav picking her up;
therefore mentioning of exact place is not necessary.”
59. The conclusion in paragraph 69 seems to have been
arrived at by the trial court on the basis of its own analysis of the
GPS log details. The conclusion arrived at by the trial court is
against the testimony of PW6, a loyal prosecution witness, that at
the time spoken to by PW2, that is, around 11:00 PM on
14.11.2017, the vehicle was not at Ansal Plaza. The locations of
the vehicle, as spoken to by PW6 between the time from 10:30 PM
to 11:30 PM, appears to be at Noida, Greater Noida, etc., which
admittedly are places far away from Ansal Plaza in New Delhi. As
CRL.As. 204/2021 & 410/2021 Page 81 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
noticed earlier, the testimony of PW-6 has not been discredited in
any way. Therefore, this Court finds no reason to disbelieve or
discard his testimony. If the learned trial judge was of the opinion
that PW6 was not speaking the truth, or only half-truths, the Court
could have very well put it to the witness that the GPS log details
show that the vehicle was in fact roaming around areas quite near
the area from which PW2 is alleged to have been picked up by A2.
Instead of adopting such a course, or giving an opportunity to the
defense to explain the possibility of the vehicle being in the near
vicinity, the trial court arrived at a conclusion which goes against
the testimony of PW6, whose testimony, the prosecution has no
case, is untrustworthy or unbelievable or unreliable.
60. Further, another reason given by the trial court for
arriving at the conclusion in paragraph 69 of the impugned
judgment appears to be that PW2 was not sure of the exact location
or place where she was picked up in the taxi by A2. This
conclusion is also erroneous because in Ext. PW14/A DD entry;
CRL.As. 204/2021 & 410/2021 Page 82 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
Ext. PW15/A FIS/FIR, and Ext. PW2/B 164 statement, the case is
that PW2 had been picked up from Ansal Plaza or near Ansal
Plaza. It is true that PW2, while examining before the Court, stated
that she was dropped at some place by the auto-rickshaw driver
saying that she would be able to get a taxi to Rohini from the said
place. The prosecution has no case that PW2 was unaware or not
sure about the place from where she was picked up by A2 in his
taxi. The Court charge also specifically refers to the place of
abduction as Ansal Plaza. All the statements of PW2, right from
the first call made by her husband to the police till her 164
statement, the definite case is that she was picked up from Ansal
Plaza. In such circumstances, the conclusion of the trial court that
PW2 probably must have been picked from the vicinity of Ansal
Plaza and not from Ansal Plaza proper, appears to be unjustified
and erroneous.
61. In the light of the aforesaid unsatisfactory materials on
record, the conclusions arrived at by the trial court are obviously
CRL.As. 204/2021 & 410/2021 Page 83 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40
erroneous, into which interference is called for. Hence, I find that
A1 and A2 are entitled to the benefit of doubt.
62. In the result, both the appeals are allowed and A1 and
A2 are acquitted under Section 235(1) for the offences punishable
under Sections 365, 376D, 323, 506, 392 read with Section 34 IPC.
They are set at liberty and their bail bonds shall stand canceled.
63. Application(s), if any, pending shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
JULY 17, 2026
rs
CRL.As. 204/2021 & 410/2021 Page 84 of 84
Signature Not Verified
Signed By:RAMAN
SHARMA
Signing Date:18.07.2026
10:56:40