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

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

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

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

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

The next para in judgment says:

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

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

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

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

Full judgment text below:

1

-:: ::-



IN THE COURT OF MS. NIVEDITA ANIL SHARMA,

ADDITIONAL SESSIONS JUDGE

(SPECIAL FAST TRACK COURT)-01,

WEST, TIS HAZARI COURTS, DELHI



Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0609662013.



State

Versus

Mr. Upender Dutt Sharma@ Goldi,

Son of Mr. Durga Dutt Sharma,

Resident of A-182, Gali No. 7, Ph.No.5, Peer Baba Road,

Om Vihar, Uttam Nagar, New Delhi.



First Information Report Number : 143/13.

Police Station Nihal Vihar.

Under section 376 of the Indian Penal Code.



Date of filing of the charge sheet before : 07.09.2013.

the Court of the Metropolitan Magistrate

Date of receipt of file after committal : 31.10.2013.

Arguments concluded on : 02.01.2016.

Date of judgment : 02.01.2016.



Appearances: Ms.Madhu Arora, Additional Public Prosecutor for the

State.

Accused on bail with counsel,Mr.Shri Parkash Sharma.

Ms.Vandana Chanchal, counsel for the Delhi Commission

for Women.

***********************************************************

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

1

State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-



2

-:: ::-

JUDGMENT

“To call woman the weaker sex is a libel; it is man’s injustice to

woman. If by strength is meant brute strength, then, indeed, is

woman less brute than man. If by strength is meant moral power,

then woman is immeasurably man’s superior. Has she not

greater intuition, is she not more self-sacrificing, has she not

greater powers of endurance, has she not greater courage?

Without her, man could not be. If nonviolence is the law of our

being, the future is with woman. Who can make a more effective

appeal to the heart than woman?”—-Mahatma Gandhi.

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

This abnormal conduct is rooted in physical force as well as

familiar and other power which the abuser uses to pressure his

victim. Nor is abuse by known and unknown persons confined to a

single political ideology or to one economic system. It transcends

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

family. The only commonality is power which triggers and feeds

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

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

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

and becomes inhuman and barbaric when the victim who is

allegedly subjected to unwanted physical contact by a perverted

male, known to her.



2. “ Courts are expected to show great responsibility while trying an

accused on charges of rape. They must deal with such cases with

utmost sensitivity. The Courts should examine the broader

probabilities of a case and not get swayed by minor contradictions

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

2

State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-



3

-:: ::-

or insignificant discrepancies in the statement of the witnesses,

which are not of a fatal nature to throw out allegations of rape.

This is all the more important because of lately crime against

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

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

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

reflection and we must emphasize that the courts must deal with

rape cases in particular with utmost sensitivity and appreciate the

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

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

the judgment reported as State of Andhra Pradesh v. Gangula

Satya Murthy, JT 1996 (10) SC 550 .

PROSECUTION CASE

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

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

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

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

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

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

biscuits mixed with intoxicated material and committed rape upon

her; and thereafter the accused had raped her on the false pretext of

marriage with her.

CHARGE SHEET AND COMMITTAL

4. After completion of the investigation, the charge sheet was filed

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

3

State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-



4

-:: ::-

before the Court of the learned Metropolitan Magistrate on

07.09.2013 and after its committal, the case was assigned to this

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

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



CHARGE

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

376 and 420 of the IPC have been framed against accused

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

which he pleaded not guilty and claimed trial.



PROSECUTION EVIDENCE

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

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

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

proesecutrix to SGM Hospital for her medical examination, as

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

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

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

Dr. Gurdeep, who had medically examined the prosecutrix in

casualty, as PW7; Ct M.R.Prasad, witness of investigation, as PW8;

Ms. Ekta Gauba, learned Metropolitan Magistrate, who had

recorded the statement of prosecutrix under section 164 of the

Cr.P.C., as PW9; and SI Koyal, the Investigation Officer, as PW10.



7. The accused and his counsel have preferred not to cross examine

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

4

State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-



5

-:: ::-

PWs 2, 3, 4, , 5, 6, 7 and 9 due to which their evidence remains

uncontroverted and unrebutted and can be presumed to have been

admitted as correct by all the accused persons.



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

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

Expert as well as FSL report.



9. The Additional Public Prosecutor made a statement on 07.08.2014

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

prosecution witnesses as his evidence is not relevant.

STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE

CR.P.C. AND DEFENCE EVIDENCE

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

controverted and rebutted the entire evidence against him and

submitted that he is innocent and he has not committed any

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

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

present false case against him.

11. Accused has preferred to lead evidence in their defence. He is

examined Mr. Phool Singh, as DW1; Ct. Dharamvir as DW2; and

Mr. Dev Karan Singh as DW3.



ARGUMENTS

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

5

State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-



6

-:: ::-

12. I have heard arguments at length. I have also given my conscious

thought and prolonged consideration to the material on record,

relevant provisions of law and the precedents on the point.



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

convicting the accused for having committed the offences under

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

prosecution has been able to bring home the charge against the

accused by examining its witnesses whose testimonies are

corroborative and reliable.



14. The counsel for the accused, on the other hand, has requested for

his acquittal submitting that there is nothing incriminating against

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

lodging of FIR. The complaint made by the prosecutrix is

concocted. The prosecutrix has given false evidence. The evidence

of the prosecutrix as well as other prosecution witnesses is

unreliable as it suffers from various contradictions and

inconsistencies. The investigation has not been properly conducted.

The prosecutrix was already married and could not have married

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



DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS

15. The question is how to test the veracity of the prosecution story

especially when it has some variations in the evidence. Mere

variance of the prosecution story with the evidence, in all cases,

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

6

State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-



7

-:: ::-

should not lead to the conclusion inevitably to reject the

prosecution story. Efforts should be made to find the truth, this is

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

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

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

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

the criminals are clothed with this protective layer to receive the

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

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

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

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

punished but on the other hand to see no person committing an

offence should get scot-free. If in spite of such effort suspicion is

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

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

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

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

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

are vague and uncertain. There is no mathematical formula through

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

concretized. It would depend upon the evidence of each case

including the manner of deposition and his demeans, clarity,

corroboration of witnesses and overall, the conscience of a Judge

evoked by the evidence on record. So the Courts have to proceed

further and make genuine efforts within judicial sphere to search

out the truth and not stop at the threshold of creation of doubt to

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

7

State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-



8

-:: ::-

confer benefit of doubt.

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

sides.

CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED

DOCUMENTS

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

Police Station Nihal Vihar on 26.04.2013 where she made a written

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

take any action on her complaint dated 26.04.2013, the prosecutrix

again visited PS Nihal Vihar on 30.04.2013 and enquired about the

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

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

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

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

narrated the entire incident to them stating that police was not

taking any action on her complaint and she was present at Police

Station Nihal Vihar. After some time, two media persons came to

Police Station Nihal Vihar and they enquired from the police

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

recorded a statement without conducting any enquiries from her

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

application dated 26.04.2013 have been reproduced in this

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

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

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

8

State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-



9

-:: ::-

Bhagwan (PW4 ) Duty Officer lodged the FIR ( Ex. PW4/A ), made

his endorsement on the rukka ( Ex.PW4/B ) and issued certificate

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

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

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

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

medical examination where she was medically examined by

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

department where she was medically examined by Dr. Aditi

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

examination was also conducted by the doctor and her blood

sample as well as other samples and sealed exhibits were handed

over to Ct. Seema Chahar ( PW3 ) who handed the same to the

Investigation Officer (PW10) who seized them vide seizure memo

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

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

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

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

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

medical examination that the name of Goldy has been wrongly

mentioned as Murli in the MLC and the prosecutrix told her that

she wanted to get the same corrected in the MLC. WCt. Seema

(PW3 ) did not do anything in this regard and took her back to

Police Station Nihal Vihar and she told this fact to the Investigation

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

done in this regard. On 25.07.2013, the prosecutrix was produced

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

9

State vs Upender Dutt Sharma @ Goldi -:: Page of 84 ::-



-:: 10 ::-

before Ms. Ekta Gauba, learned Metropolitan Magistrate (PW9)

who recorded her statement under section 164 of the Cr.P.C.

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

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

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

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

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

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

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

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

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

Nagar, where he was present. On the identification of the

prosecutrix, the accused was arrested by the IO/SI Koyal ( PW10)

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

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

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

of occurrence and pointed out the same vide the pointing memo

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

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

medical examination and was examined by Dr. Binay Kumar

(PW5) vide MLC ( Ex.PW5/A ) and the doctor had handed over

MLC of the accused, the sealed exhibits of the accused to Ct.

M.R.Prasad ( PW8) who handed over the same to IO/SI Koyal

( PW10) who seized the same vide seizure memo (Ex.PW8/C) . On

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

Mahesh, MHC (M) ( PW2 ),three sealed pullandas along with one

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 10 of 84 ::-



-:: 11 ::-

sample seal of the hospital and HC Ram Mahesh ( PW2) had made

the entry of the same in register number 19 at serial no. 981

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

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

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

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

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

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

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

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

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

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

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

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

Tihar, he offered the prosecutrix tea and biscuits mixed with

intoxicated material and committed rape upon her; and thereafter,

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



IMPORTANT ISSUES

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

hereinafter.



IDENTITY OF THE ACCUSED

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

Mr.Upender Dutt Sharma @ Goldi who has been identified in the

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 11 of 84 ::-



-:: 12 ::-

Court by PW1, the prosecutrix and the police witnesses of

investigation. It is also not in dispute that the accused and the

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

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

FIR (Ex.PW4/A) .



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



AGE OF THE PROSECUTRIX

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

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

prosecutrix has mentioned her age as 27 years and in her statement

under section 164 of the Cr.P.C. (Ex.PW1/C) , her MLC

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

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

a major at the time of the alleged incident.



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

time of incident.



VIRILITY OF THE ACCUSED

24. Dr.M. Das (PW5) had medically examined the accused vide MLC

(Ex.PW5/A) . He has not been cross examined on behalf of the

accused due to which his evidence remains uncontroverted and

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

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 12 of 84 ::-



-:: 13 ::-

25. It is mentioned in the MLC of the accused (Ex.PW5/A) that

“There is nothing to suggest that pt. is not capable of performing

sexual intercourse”.



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

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

record to show that the accused is impotent or medically incapable

of committing the offence of rape.



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

performing sexual act and is capable of committing the act of

rape.



MLC OF THE PROSECUTRIX AND FORENSIC EVIDENCE

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

medical and forensic evidence against the accused, it indicates that

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

not have any injury and when her samples taken during her

gynecological examination were compared with those of the

accused, nothing incriminating was found in the FSL report

(Ex.PW8/F) .



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

forensic evidence is only for corroboration.



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

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 13 of 84 ::-



-:: 14 ::-

is dated 30.04.2013 that she does not have any external injuries.

She had told the doctor that last sexual relations were 10 days back,

which would be 20.04.2013 (calculated).

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

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

stains, one dark brown foul smelling liquid and damp foul smelling

blood stained gauze. Blood could not be detected on ‘1b1’, ‘1b2’

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

vaginal swabs and underwear of accused. Human semen was

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

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

test tubes described as vaginal swabs.



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

medical and forensic evidence produced by the prosecution, but per

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

of medical and forensic evidence does not indicate that the accused

is innocent.



33. There is nothing incriminating against the accused in the

medical and forensic evidence produced by the prosecution.



DELAY IN FIR

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

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

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 14 of 84 ::-



-:: 15 ::-

consideration.

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

delay in lodging the FIR which was lodged after due deliberation

and consultation.



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

the FIR as the prosecutrix lodged the complaint as early as

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

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

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

complaint on which action was not taken and then when the media

persons intervened, the FIR was lodged.



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

regarding the veracity of the evidence of the prosecution and points

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

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

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

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

purpose and object of insisting upon prompt lodging of the FIR to

the police in respect of commission of an offence is to obtain early

information regarding the circumstances in which the crime was

committed, the names of actual culprits and the part played by them

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

occurrence.

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 15 of 84 ::-



-:: 16 ::-

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

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

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

Courts to exercise due caution particularly in the cases involving

sexual offences because the only evidence in such cases is the

version put forwarded by the prosecutrix.



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

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

where delay is explained by the prosecution in registering the

case, the same could be condoned moreover when the evidence of

the victim is reliable and trustworthy.



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

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

as follows:

“ The unusual circumstances satisfactorily explained the

delay in lodging of the first information report. In any event,

delay per se is not a mitigating circumstance s for the

accused when accusation of rape are involved. Delay in

lodging first information report cannot be used as a

ritualistic formula for discarding prosecution case and

doubting its authenticity. It only puts the court on guard to

search for and consider if any explanation has been offered

for the delay. Once it is offered , the Court is to only see

whether it is satisfactory or not. In a case if the prosecution

fails to satisfactory explain the delay and there s possibility

of embellishment or exaggeration in the prosecution version

on account of such delay , it is a relevant factor. On the other

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 16 of 84 ::-



-:: 17 ::-

hand satisfactory explanation of the delay is weighty

enough to reject the plea of false implication or

vulnerability of prosecution case. As the factual scenario

shows, the victim was totally unaware of the catastrophe

which had befallen to her. That being so the mere delay in

lodging of first information report does not in any way

render prosecution version brittle .

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

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

as follows:

“The above said statement clearly show that at the earliest

opportunity the prosecutrix had not made any complaint to

her mother in this regard. Reading of the examination–

inchief reveals that first time she was raped as per her own

version after about 30-36 days of coming of the appellant but

in any case she admits that she has been raped many a times

and she only complained to her mother few days after he had

left. The appellant stayed in the house of the prosecutrix for

more than year.”

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

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

2282, has held as under:

“No doubt delay in lodging the FIR in sexual assault cannot

normally damage the version of the prosecutrix as held the

Hon’ble Supreme Court in various judgements but husband

of the prosecutrix is there and report is lodged after one and

half months, such type of delay would certainly be regarded

as fatal to the prosecution case”

43. The Hon’ble High Court of Madhya Pradesh in the judgment

reported as Banti alias Balvinder Singh v. State of Madya

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 17 of 84 ::-



-:: 18 ::-

Pradesh , 1992 Cr.L.J. 715 , has held as under:

“in conclusion, having regard to the conduct of the

prosecutrix in not making any kind of complaint about the

alleged incident to anybody for five days coupled with late

recording of report by her after five days with false

explanation for the delay, in the context also of the Lax

Morals of the Prosecutrix, it is very unsafe to pin faith on her

mere word that sexual intercourse was committed with her by

five accused persons or any of them. It is also difficult to

believe her version regarding the alleged abduction in jeep. In

the circumstances it must be held that the prosecutrix story

was not satisfactorily established”

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

lodged after a long delay on 01.05.2013 at 00:05 hours (12:05 a.m.)

while the allegations made by the prosecutrix in her complaint

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

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

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

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

prosecution.



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

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

action was swung into motion as soon as possible.



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

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

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

thereafter w.e.f. February, 2009 to 20.04.2013 on a false pretext of

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 18 of 84 ::-



-:: 19 ::-

marriage.



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

which was recorded on 25.07.2013, the prosecutrix has stated

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

when the physical relations were last established.



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

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

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

continued up till April 2013.”



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

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

raped. The prosecutrix neither shouted for help nor raised any

alarm nor tried to escape nor complained about the alleged offence

to anyone.



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

complain to anyone prior to the lodging of the complaint on

30.04.2013.



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

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

would be relevant wherein it has been observed that there is no

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 19 of 84 ::-



-:: 20 ::-

explanation given by the prosecutrix for her not making hue and

cry, when the alleged offence took place, nor is there any

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

police immediately or for that matter within a reasonable time of

incident.



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

delay. No reasonable or logical explanation is coming from the

prosecution regarding the delay in lodging of the FIR on

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

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

(calculated) as per the MLC of the prosecutrix (Ex.PW6/A) and no

explanation is coming forth from the prosecution regarding her

waiting till 30.04.2013 for making the complaint. No media person

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

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



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

the delay and why the prosecutrix did not report the matter

immediately or earlier. No logical explanation has been furnished

by the prosecution for the delay, as elaborated above.



54. These facts indicate that the possibility of the complaint being

motivated or manipulated and the version of the prosecutrix being

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

was lodged after due deliberation and consultation cannot be ruled

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 20 of 84 ::-



-:: 21 ::-

out. The discrepancies in the evidence and the documents regarding

the delay in lodging of the FIR indicate that the prosecutrix and the

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

which is fatal to the prosecution version.

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

which is fatal to the prosecution story. The delay has not been

satisfactorily explained by the prosecutrix and the prosecution.

EVIDENCE AND OTHER STATEMENTS OF THE

PROSECUTRIX

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

different statements of the prosecutrix.

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

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

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

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

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

was introduced to him. She has identified accused Upender Dutt

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

accused asked her for her mobile number and offered friendship to

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

went to her residence. Next day, she got a call on her mobile phone

from the accused and on her enquiry, he told her that he had taken

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

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 21 of 84 ::-



-:: 22 ::-

friendship to her and she again declined. Thereafter, he called her

repeatedly on her phone asking for friendship. She gradually

developed friendship with and started talking to him. Accused

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

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

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

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

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

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

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

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

the accused frequently. She told the accused that as they were

meeting frequently, they would be seen by her family and friends

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

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

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

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

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

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

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

liked her and wanted to marry her to which his father replied that

even he approved of her. However, he also said that as his wife,

mother of the accused, was not at home, they should wait for her to

return. His father enquired about her residence and then, the

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

her which comprise of two rooms, kitchen and wash room and a

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 22 of 84 ::-



-:: 23 ::-

courtyard. He told her to sit in the second room. The room where

initially she was taken had a sofa and a single bed and the second

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

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

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

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

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

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

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

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

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

Thereafter, as she became sleepy, she slept. She did not know for

how much she had slept. When she woke up, she found that she did

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

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

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

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

has consented for their marriage, they could have physical

relations. Accused forcibly had physical relations with her (mere

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

asked the accused why he had forcibly had physical relations with

her on which he told her that his father had approved their marriage

and as they were to get married, they could have physical

relationship as they would be having physical relationship after

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

only when she repeatedly requested him that he took out her

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 23 of 84 ::-



-:: 24 ::-

clothes from under the bed and gave them to her. She wore her

clothes. Accused came up to Tilak Nagar with her and returned

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

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

continued to have physical relations with her saying that he would

marry her. Accused repeatedly promised to marry her after which

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

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

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

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

approved of the marriage between her and the accused. On

21.04.2013, the mother of the accused telephoned her and told her

that she had got the accused engaged to some other girl. She also

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

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

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

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

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

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

mobile number (number mentioned in file and withheld to protect

the identity of the prosecutrix). The mobile number of the accused

is 8800557997. He telephoned her in the evening and told her that

he could not do anything but he would try to talk to his mother.

Thereafter, despite her repeated attempts at contacting him on

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

she went to Police Station Nihal Vihar on 26.04.2013 and made a

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 24 of 84 ::-



-:: 25 ::-

written complaint against the accused (Ex.PW1/A) which was in

her handwriting. The police officer on duty, who was a lady and not

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

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

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

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

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

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

complaint, she telephoned ASI Rekha who expressed her ignorance

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

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

visited Police Station Nihal Vihar on 30.04.2013 and enquired

about the action taken on her complaint. She was told that no action

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

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

News Channel and narrated the entire incident to them stating that

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

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

persons came to Police Station Nihal Vihar and they enquired from

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

the police recorded a statement without conducting any enquiries

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

of her application dated 26.04.2013 have been reproduced in this

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

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

SGM Hospital, Mangol Puri for her medical examination. Her

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 25 of 84 ::-



-:: 26 ::-

internal examination was also conducted by the doctor and her

blood sample as well as other samples were taken. The sealed

exhibits were taken into possession by the IO vide seizure memo

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

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

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

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

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

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

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

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

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

now nothing can be done in this regard. She was taken by the

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

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

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

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

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

where accused was present and on her identification, he was

arrested by the Investigation Officer vide arrested memo

(Ex.PW1/E) and the personal search memo (Ex.PW1/F) . Her

statement was recorded by the learned Metropolitan Magistrate

after about 4 months of registration of FIR. One day prior to her

statement before the learned Metropolitan Magistrate, IO SI Koyal

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

to be produced before the learned Metropolitan Magistrate for her

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 26 of 84 ::-



-:: 27 ::-

statement. Next day, she came to Tis Hazari Courts where her

statement (Ex.PW1/G) was recorded by Ms. Ekta Gauba, the

learned Metropolitan Magistrate. She has prayed that accused

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

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

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

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

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

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

intoxicated and raped by him. Thereafter, as he promised to marry

her, he had physical relations with her till about 15 days earlier (till

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

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

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

wishes of his parents.



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

prosecutrix has stated similarly with some variations.

60. Before coming to the factual matrix, briefly the law regarding

physical relations on a false pretext of marriage is required to be

elaborated briefly.



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

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

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 27 of 84 ::-



-:: 28 ::-

“It therefore, appears that the consensus of judicial opinion is

in favour of the view that the consent given by the prosecutrix

to sexual intercourse with a person with whom she is deeply

in love on a promise that he would marry her on a later date,

cannot be said to be given under a misconception of fact. A

false promise is not a fact within the meaning of the Code. We

are inclined to agree with this view, but we must add that

there is no strait jacket formula for determining whether

consent given by the prosecutrix to sexual intercourse is

voluntary, or whether it is given under a misconception of

fact. In the ultimate analysis, the tests laid done by the Courts

provide at best guidance to the judicial mind while

considering a question of consent, but the Court must, in

each case, consider the evidence before it and the

surrounding circumstances, before reaching a conclusion,

because each case has its own peculiar facts which may have

a bearing on the question whether the consent was voluntary,

or was given under a misconception of fact. It must also

weigh the evidence keeping in view the fact that the burden is

on the prosecution to prove each and every ingredient of the

offence, absence of consent being one of them.”

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

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

“Legal position which can be culled out from the judicial

pronouncements referred above is that the consent given by

the prosecutrix to have sexual intercourse with whom she is

in love, on a promise that he would marry her on a later date,

cannot be considered as given under “misconception of fact”.

Whether consent given by the prosecutrix to sexual

intercourse is voluntary or whether it is given under “

misconception of fact ” depends on the facts of each case.

While considering the question of consent, the Court must

consider the evidence before it and the surrounding

circumstances before reaching a conclusion. Evidence

adduced by the prosecution has to be weighed keeping in

mind that the burden is on the prosecution to prove each and

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 28 of 84 ::-



-:: 29 ::-

every ingredient of the offence Prosecution must lead positive

evidence to give rise to inference beyond reasonable doubt

that accused had no intention to marry prosecutrix at all from

inception and that promise made was false to his knowledge.

The failure to keep the promise on a future uncertain date

may be on account of variety of reasons and could not always

amount to “misconception of fact” right from the inception.”

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

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

Court has held that:

“Consent may be express or implied, coerced or misguided,

obtained willingly or through deceit. Consent is an act of

reason, accompanied by deliberation, the mind weighing, as

in a balance, the good and evil on each side. There is a clear

distinction between rape and consensual sex and in a case

like this, the court must very carefully examine whether the

accused had actually wanted to marry the victim, or had

malafide motives, and had made a false promise to this effect

only to satisfy his lust, as the latter falls within the ambit of

cheating or deception. There is a distinction between the mere

breach of a promise, and not fulfilling a false promise. Thus,

the court must examine whether there was made, at any early

stage a false promise of marriage by the accused ; and

whether the consent involved was given after wholly,

understanding the nature and consequences of sexual

indulgence. There may be a case where the prosecutrix agrees

to have sexual intercourse on account of her love and passion

for the accused, and not solely on account of mis-

representation made to her by the accused, or where an

accused on account of circumstances which he could not

have foreseen, or which were beyond his control, was unable

to marry her, despite having every intention to do so, such

cases must be treated differently. An accused can be convicted

for rape only if the court reaches a conclusion that the

intention of the accused was malafide, and that he had

clandestine motives. Hence, it is evident that there must be

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 29 of 84 ::-



-:: 30 ::-

adequate evidence to show that at the relevant time, i.e. at

initial stage itself, the accused had no intention whatsoever,

of keeping his promise to marry the victim. There may, of

course, be circumstances, when a person having the best of

intentions is unable to marry the victim owing to various

unavoidable circumstances. The “ failure to keep a promise

made with respect to a future uncertain date, due to reasons

that are not very clear from the evidence available, does not

always amount to misconception of fact. In order to come

within the meaning of the term misconception of fact, the fact

must have an immediate relevance.” Section 90 IPC cannot

be called into aid in such a situation, to pardon the act of a

girl in entirely, and fasten criminal liability on the other,

unless the court is assured of the fact that from the very

beginning, the accused had never really intended to marry

her.”

64. Thus, in Uday’s case (supra) and Deepak Gulati’s case (supra), the

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

matured to understand the significance and morality associated

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

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

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

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

prosecutrix had consented as a consequence of a misconception of

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

if there is any evidence to prove conclusively, that the appellant

never intended to marry with the prosecutrix, the accused be given

benefit of doubt.



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

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 30 of 84 ::-



-:: 31 ::-

2013(2) JCC 840 , it was observed that it was never the case of the

prosecutrix that she ever insisted the accused to marry her. Thus, it

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

relevant.



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

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

“If I take the view that sexual intercourse with a girl, in the

facts and circumstances such as in the present case, does not

amount to rape, it will result in unscrupulous and

mischievous persons, taking undue advantage of innocent

girls by promising marriage with them, without having any

intention to do so, re-assuring the girl and her family by

making the two families meet each other and formalize the

matter by ceremonies, such as an engagement, persuading the

girl to have sexual intercourse with him by making her

believe that he was definitely going to marry her and then

abandoning her, after robbing her of what is most dear to her.

A case where the girl agrees to have sexual intercourse on

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

account of the misrepresentation made to her by the boy or a

case where a boy, on account of circumstances, which he

could not have foreseen or which are beyond his control, does

not marry her, despite having all good intentions to do so, has

to be treated differently from a case, such as the present one,

where the petitioner since the very inception had no intention

of marrying the prosecutrix to whom he was a complete

stranger before he met her to consider the proposal for

marriage with her.”

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

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

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

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 31 of 84 ::-



-:: 32 ::-

prosecutrix and one day finding her alone in her house committed

sexual intercourse forcibly and then promised to marry her and

requested that she should not disclose this fact to anybody.

Thereafter they both were engaged in consensual sex at different

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

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

the prosecutrix and accused gone in a temple where she requested

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

divulged the entire facts to her family members. Panchayat was

held in village and the accused was summoned there and persuade

to marry with prosecutrix but he refused to marry the prosecutrix

and then the prosecutrix lodged a report.

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

down, held that the first sexual intercourse was forceful and

thereafter the subsequent acts of sexual intercourse, were actions of

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

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

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

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

accused with the prosecutrix was not consensual as obtaining

consent by exercising deceit, cannot be legitimate defence to

exculpate an accused.



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

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

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 32 of 84 ::-



-:: 33 ::-

entering into a relationship is to be seen by the Court as to if he

really intended to marry the prosecutrix or he merely made the

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

suggest that the accused genuinely wished to marry prosecutrix but

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

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

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

beginning then his case would be squarely covered within the

ambit of offence under section 376 IPC. Prosecution must lead

positive evidence to give rise to inference beyond reasonable doubt

that accused had no intention to marry prosecutrix at all from

inception and that promise made was false to his knowledge. The

failure to keep the promise on a future uncertain date may be on

account of variety of reasons and could not always amount to

“misconception of fact” right from the inception.”

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

statements, it transpires that the prosecutrix has made several

improvements, contradictions and inconsistencies in her evidence

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

examination shall be discussed later. Some of the improvements,

contradictions and inconsistencies in the different statements of the

prosecutix are tabulated below:

Complaint- MLC of Statement Examination

Ex.PW1/B prosecutrix- under in chief

Ex.PW6/A section 164

Cr.P.C.-

Ex.PW1/G

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 33 of 84 ::-



-:: 34 ::-

Name of Name of Name of Name of

accused is accused is accused is accused is

Goldi Murli Goldi Upender Dutt

Sharma @

Goldi

In February …….. Accused In February

2009, accused called her to 2009, accused

phoned her meet his phoned her

and asked her family and asked her

to come to his to come to his

house at WZ- house at WZ-

779, Tihar 779, Tihar

Village, Near Village, Near

Tilak Nagar Tilak Nagar

for meeting for meeting his

his parents. parents.

His father …….. She reached From Tilak

liked her. his house. Nagar, the

Accused She met his accused had

asked to wait father who picked her to

till his mother had paralysis. take her to his

returns. His mother residence. She

was not at met his father

home. in his house.

Accused told When she

him that he touched his

liked her and feet, he had

wanted to given her his

marry her. blessings.

His father Accused told

gave her his him that he

blessings. liked her and

wanted to

marry her to

which his

father replied

that even he

approved of

her.

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 34 of 84 ::-



-:: 35 ::-

…….. …….. …….. However, he

also said that

as his wife,

mother of the

accused, was

not at home,

they should

wait for her to

return.

…….. …….. Accused His father

offered to enquired about

show his her residence

house to her and then, the

and took her accused

to the other offered to

room where show his house

they had tea to her.

and biscuits.

…….. …….. …….. He told her to

sit in the

second room.

Accused …….. Accused Then he left

brought tea went to make the room and

and biscuits tea for her returned with

which they while she sat tea and biscuit.

had. with his They had tea

father. and biscuit.

…….. …….. Accused She saw that

brought tea he had given

and gave one one cup of tea

cup of tea to to his father

his father. also in the

other room.



Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 35 of 84 ::-



-:: 36 ::-

After …….. Accused After

consuming brought consuming tea,

tea, she another cup she started

started feeling for himself. feeling

heaviness in They had tea heaviness in

her head (sir and biscuits. her head (sir

bhaari ho After bhaari ho

gaya) on consuming gaya) on

which the tea and which the

accused had biscuits, she accused had

told her that felt heaviness told her that

she was in her head she was

coming from and felt coming from

outside, she sleepy. outside, she

must be tired accused had must be tired

and asked her told her that and asked her

to lie down on she was to lie down on

the bed till his coming from the bed till his

mother outside, she mother

returned. She must rest till returned.

slept there. his mother Thereafter, as

returned. she became

sleepy, she

slept.

When she …….. When she When she

woke up, she woke up, she woke up, she

found that she found found that she

did not have accused did not have

any clothes on wearing only any clothes on

her body. underwear her body.

and she was Accused

not wearing Upender also

any clothes. did not have

any clothes on

his body.

He was …….. Accused was He was lying

touching her touching her besides her

private parts. breast and and was

Accused private parts. touching her

forcibly had She covered private parts

physical herself with a (private parts

relations with pillow. He ke saath ched-

her assuring removed it chaad kar raha

her of and raped tha). When she

marriage. her. She asked him to

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 36 of 84 ::-



-:: 37 ::-

could not stop, he told

shout as his her that as his

father was in father has

the other consented for

room. their marriage,

they could

have physical

relations.

Accused

forcibly had

physical

relations with

her (mere

saath

jabardasti

sharirik

sambandh

banai).

…….. …….. Accused took Accused was

out her not returning

clothes from her clothes and

under the bed it was only

and gave when she

them to her. repeatedly

requested him

that he took

out her clothes

from under the

bed and gave

them to her.

She wore her

clothes.

Accused came

up to Tilak

Nagar with her

and returned

saying that his

father was

alone at home.

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 37 of 84 ::-



-:: 38 ::-

Accused

assured her

of marriage

saying that

his father had

given his

assent.

…….. …….. Then she ……..

returned

home. She

was sad and

did not go to

her office for

two days. On

the third day,

when she

went to

office,

accused came

there and met

her. He again

assured her

of marriage.

After few

days, his

mother met

her and

accused told

his mother

that he

wanted to

marry her.

They started

visiting each

other’s

houses.

They had Alleged They had For about 4-5

physical history of physical years, the

relations till sexual relations till accused

15 days prior intercourse first week of continued to

to the with the April, 2013 have physical

complaint i.e. consent of the on the relations with

till victim since assurance of her saying that

15.04.2013 five years. marriage he would

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 38 of 84 ::-



-:: 39 ::-

(calculated). given by marry her.

accused. Accused

repeatedly

promised to

marry her after

which he had

physical

relationship

with her.

…….. Last episode …….. This continued

of sexual up till April

intercourse 2013.

10 days back.

…….. …….. …….. In between,

she had met

Ms.Uma,

mother of the

accused,

several times

and she had

also approved

of the marriage

between her

and the

accused.

…….. …….. In February, ……..

2012 accused

took her to a

temple in

Vikas Puri

and filled the

parting of her

hair.

On …….. On On

21.04.2014, 21.04.2014, 21.04.2013,

mother of accused the mother of

accused phoned her the accused

phoned her saying that telephoned her

saying that his mother and told her

they were wanted to that she had

getting the talk to her. In got the

accused evening, his accused

married else mother engaged to

where and she phoned her some other

should not and told her girl. She also

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 39 of 84 ::-



-:: 40 ::-

interfere. that they told her that

were getting she should not

the accused telephone or

married else contact the

where and accused. She

she should enquired from

stop phoning her whether

him. The anything was

other girl’s wrong. She

family is told her that as

giving dowry her father had

which her expired, they

family cannot would not be

give. The able to give

accused had her anything in

given his marriage and

acceptance also that she

for that was of a lower

marriage and caste.

he did not

want to

marry the

prosecutrix.

She was also

threatened to

be defamed

or killed.

She talked to …….. …….. She telephoned

accused and the accused

he told her several times

that he cannot but he did not

go against the take her calls.

wishes of his Accused sent

parents. her one SMS

that he was

busy. She has

deposed her

mobile number

(number

mentioned in

file and

withheld to

protect the

identity of the

prosecutrix).

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 40 of 84 ::-



-:: 41 ::-

The mobile

number of the

accused is

8800557997.

He telephoned

her in the

evening and

told her that he

could not do

anything but

he would try to

talk to his

mother.

Thereafter,

despite her

repeated

attempts at

contacting him

on telephone,

he did not take

her calls and

did not meet

her.

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

table that the prosecutrix has given different and contradictory

versions about practically every aspect of the case.



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

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

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

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

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

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

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

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

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 41 of 84 ::-



-:: 42 ::-

Seema who had taken me for my medical examination that name

of Goldy has been wrongly mentioned as Murli in the MLC and I

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

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

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

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

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

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

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

on 30.04.2013 and the prosecutrix gave her statement under section

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

anything or make a complaint before the learned Metropolitan

Magistrate regarding the name of the accused being wrong in the

MLC. No explanation is coming forth from the prosecution

regarding this contradiction due to which the prosecution version

appears doubtful.



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

26.04.2013 and made a written complaint against the accused

which was in my handwriting. Copy of the same is

Ex.PW1/A………..I telephoned the Media person of Sahara

News Channel and narrated the entire incident to them stating

that police was not taking any action on my complaint and I was

present at PS Nihal Vihar. After some time two media persons

came to PS Nihal Vihar and they enquired from the police

regarding the action taken on my complaint. Thereafter, police

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 42 of 84 ::-



-:: 43 ::-

recorded a statement without conducting any enquiries from me

and asked me to sign on the same stating that the contents of my

application dt. 26.04.2013 have been reproduced in this statement

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

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

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

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

deposed regarding the same. The media persons on whose

intervention the FIR was registered have also not been cited as

witnesses nor produced and examined by the prosecution. The

same shatters the veracity of the testimony of the prosecutrix.

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

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

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

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

regarding the same is coming forth from the prosecution which

makes her version doubtful.



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

not make any complaint to anyone on way back from the house

of the accused to my residence in February, 2009 after the

incident nor I had raised any alarm nor sought help from any

one. I had myself returned to my house.” No explanation is

coming forth from the prosecution regarding this deposition as why

the porsecutrix did not complain to the father of the accused, her

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 43 of 84 ::-



-:: 44 ::-

own family, anyone she may have met on way back to her house or

the police, if she was aggrieved due to the conduct of the accused.

The same makes the prosecution version appears doubtful.



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

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

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

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

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

prosecutrix. Then how only she was intoxicated has not been

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

slept but neither the accused nor his father who had consumed the

same tea and biscuits were not affected has not been explained by

the prosecution.



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

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

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

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

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

office between January and March 2009.” The fact that the

prosecutrix after the alleged incident of February, 2009 continued

to work normally indicates that she was comfortable with the

arrangement between the accused and herself. She has also not

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

the house of the accused.

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 44 of 84 ::-



-:: 45 ::-

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

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

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

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

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

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

had taken me forcibly to Shimla where he had forcibly

established physical relations with me. Again said there were no

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

concealed this fact from the police, learned Metropolitan

Magistrate and this Court and only revealed about the same when

she was cross examined. It appears that she had willingly gone with

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

Shimla with the accused in her complaint, statement under section

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

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

that the prosecutrix has made a conscious attempt to conceal this

fact which makes her version doubtful.



79. According to the prosecutrix, she had talked frequently to the

accused on phone and also to his mother who had told her on phone

about the accused marrying another girl. However, neither the

phone was seized nor the CDRs of the mobile phones of the

accused and the prosecutrix were obtained during investigation.

The prosecutrix has deposed that “My phone was not seized by the

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 45 of 84 ::-



-:: 46 ::-

police Vol. The IO had told me that she would keep my phone

under surveillance.” This fact also makes the prosecution version

doubtful.



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

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

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

occasion that the accused had physical relations with me in

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

prosecution regarding not disclosing this fact in her earlier

statements and it appears that the prosecutrix has made a conscious

attempt to conceal this fact which makes her version doubtful.

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

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

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

the mobile phone of the prosecutrix have been produced nor the

mother of the prosecutrix has been associated in this case.



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

not make any complaint to anyone on way back from the house

of the accused to my residence in February, 2009 after the

incident nor I had raised any alarm nor sought help from any

one. I had myself returned to my house.” When such a shocking

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

make any complaint to any authority, the same makes her version

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 46 of 84 ::-



-:: 47 ::-

doubtful.

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

not make any complaint to any authority against the accused

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

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

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

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

to any authority. No explanation is coming forth from the

prosecution regarding the same which makes her version doubtful.



84. In her cross examination, the prosecutrix has deposed that “I do

not remember the exact date and time but it was summer season

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

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

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

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

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

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

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

accused on phone which is not proved. For more than four years

i.e. w.e.f. February, 2009 to April, 2013, if there was a promise to

marry by the accused to the prosecutrix, then apparently no action

was taken on the same nor the families had met nor any date of the

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

prosecution version.

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 47 of 84 ::-



-:: 48 ::-

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

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

receiving the calls from the friends of the accused including one

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

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

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

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

marry the accused and her desperation is evident when she has

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

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

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

having physical relations with the accused without his marring her.

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

and mature.

87. The above mentioned overwhelming contradictions and glaring

inconsistencies in the evidence of the prosecutrix and the other

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

testimony of the prosecutrix stands shattered.



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

accused on her own. If a full grown girl consents to act of sexual

intercourse on promise to marry and continues to indulge in such

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

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 48 of 84 ::-



-:: 49 ::-

by misconception of fact.

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

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

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

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

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

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

prosecutrix was a consenting party. It also transpires from the

evidence of the prosecutrix that she was phoning him, having

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

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

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

being a major surely knew about the morality and complications

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



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

several contradictions in her different statements and the

prosecution has not been able to explain or justify them.



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

consent implies and what is consent on misconception of facts or

misrepresentation.



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

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

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 49 of 84 ::-



-:: 50 ::-

established a physical relationship with the prosecutrix which

amounts to rape as this is obtaining the consent of the prosecutrix

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

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

already married, she would not established physical relations with

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

prosecutrix was taken by misrepresentation amounting to breach of

trust.



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

the accused and the prosecutrix did not have any physical relations

and assuming that the prosecutrix had physical relationship with

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

that he will not marry her.



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

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

despite resistance and opposition of the woman. IPC does not

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

consent is explained in Section 90 which reads as follows:

“Consent given firstly under fear of injury and secondly

under a misconception of fact is not consent at all.”

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

Permanent Edn. explains “consent” as follows:

“Consent supposes three things a physical power, a mental

power and a free and serious use of them. Hence it is that if

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 50 of 84 ::-



-:: 51 ::-

consent is obtained by intimidation, force, meditated

imposition, circumvention, surprise or undue influence, it is

to be treated as a delusion, and not as a deliberate and free

act of mind.”

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

passages culled out from certain old decisions of the American

Courts are found:

“…..adult females understanding of nature and consequences

of sexual act must be intelligent understanding to constitute

consent.”

97. Here, it would be necessary to mention that in the case reported as

Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC

(Cri) 1448 , it has been observed that:

“The failure to keep the promise at a future uncertain date

due to reasons not very clear on the evidence does not always

amount to a misconception of fact at the inception of the act

itself. In order to come within the meaning of misconception

of fact, the fact must have an immediate relevance. The

matter would have been different if the consent was obtained

by creating a belief that they were already married. In such a

case the consent could be said to result from a misconception

of fact. But here the fact alleged is a promise to marry we do

not know when. If a full grown girl consents to an act of

sexual intercourse on a promise of marriage and continues to

indulge in such activity until she becomes pregnant it is an

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

misconception of fact. Section 90 IPC cannot be called in aid

in such a case unless the Court can be assured that from the

very inception the accused never really intended to marry

her.”

98. Similar observations have also been made in the judgments

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 51 of 84 ::-



-:: 52 ::-

reported as Pradeep Kumar Verma v. State of Bihar & anr., AIR

2007 SC 3059; Jyotsana Kora v. The State of West Bengal and

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

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

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

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



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

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

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

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

physical relationship was there with her free consent.



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

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

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

incident and intelligent enough to understand the consequences of

establishing physical relationship with the accused. Mere promise

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

obtained her consent for the physical relationship by fraud or

misrepresentation. Consent given by the prosecutrix to have

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

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

under misconception of fact.



101. Thus, sexual intercourse by a man with a woman without her

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 52 of 84 ::-



-:: 53 ::-

consent will constitute the offence of rape. We have to examine as

to whether in the present case, the accused is guilty of the act of

sexual intercourse with the prosecutrix ‘against her consent’. How is

‘consent’ defined? Section 90 of the IPC defines consent known to

be given under ‘fear or misconception’ which reads as under:-

“Consent known to be given under fear or misconception –

A consent is not such consent as it intended by any section of

this Code, if the consent is given by a person under fear of

injury, or under a misconception of fact, and if the person

doing the act knows, or has reason to believe, that the consent

was given in consequence of such fear or misconception.”

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

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

alleged consent said to have obtained by the accused was not

voluntary consent and the accused indulged in sexual intercourse

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

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

indulge in sexual intercourse with her and was under no intention

of actually marrying the prosecutrix.

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

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

going to marry her and obtained her consent for the sexual

intercourse under total misconception, cannot be treated to be a

consent.



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

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 53 of 84 ::-



-:: 54 ::-

if the prosecutrix deposes that she did not give her consent, then the

Court shall presume that she did not in fact, give such consent. The

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

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

sole question involved herein is whether her consent had been

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

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

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

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

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

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

such a physical relationship would tantamount to committing rape.



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

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

AIR 2005 SC 203; Yedla Srinivasa Rao v. State of A.P., (2006)

11 SCC 615; and Pradeep Kumar Verma v. State of Bihar &

Anr., AIR 2007 SC 3059 , observe that in the event that the

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

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

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

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

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

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

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



Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 54 of 84 ::-



-:: 55 ::-

106. Consent may be express or implied, coerced or misguided,

obtained willingly or through deceit. Consent is an act of reason,

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

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

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

carefully examine whether the accused had actually wanted to

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

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

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

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

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

an early stage a false promise of marriage by the accused; and

whether the consent involved was given after wholly,

understanding the nature and consequences of sexual indulgence.

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

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

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

accused, or where an accused on account of circumstances which

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

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

cases must be treated differently. An accused can be convicted for

rape only if the Court reaches a conclusion that the intention of the

accused was mala fide, and that he had clandestine motives.

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

that the prosecution has not produced any proof of the prosecutrix

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 55 of 84 ::-



-:: 56 ::-

being administered any intoxicant at the time of the alleged first

incident. Except for a bare assertion, there is nothing to substantiate

this allegation.



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

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

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

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

complained to his father immediately after the alleged incident or

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

the neighbours.

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

serious infirmities, contradictions and inconsistencies with other

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

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

prosecution to prove and accused is entitled to the benefit of

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

reasonable doubt and cannot take support from weakness of case of

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

by the prosecutrix is found to be improbable, prosecution case

becomes liable to be rejected. If evidence of prosecutrix is read and

considered in totality of circumstances along with other evidence

on record, in which offence is alleged to have been committed, her

deposition does not inspire confidence. Prosecution has not

disclosed true genesis of crime. (Reliance can be placed upon the

Sessions Case Number : 148 of 2013.

Unique Case ID Number : 02401R0452772013.

FIR No. 143/2013, Police Station Nihal Vihar,

Under sections 376 of the Indian Penal Code.

State vs Upender Dutt Sharma @ Goldi -:: Page 56 of 84 ::-



-:: 57 ::-

judgment of the hon’ble Supreme Court reported as Narender

Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC) .

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

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

witness makes two inconsistent statements in evidence either at one

stage or both stages, testimony of such witness becomes unreliable

and unworthy of credence and in the absence of special

circumstances, no conviction can be based on such evidence.

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

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

(Del) .



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

immediately after the alleged incident of February, 2009 and

thereafter. The same also points towards the prosecution case not

being true.

112. The Hon’ble Supreme Court had observed in the case of

Deelip Singh Alias Dilip Kumar vs. State of Bihar , AIR 2005 SC

203 that where sexual intercourse took place between parties on

promise of marriage by accused and the statement of the

prosecutrix revealing that she was fully aware of moral quality of

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

act and the prospect of marriage proposal not materializing had

also entered her mind. The