[Cites 19, Cited by 0]
Delhi High Court
Lokesh Kumar Choubey vs State (Govt. Of Nct Of Delhi) on 19 February, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 16.02.2026
Judgment pronounced on: 19.02.2026
+ CRL.A. 205/2017
LOKESH KUMAR CHOUBEY .....Appellant
Through: Mr. Manan Kumar Mishra Sr. Advocate
with Mr. Anjali Kumar Mishra, Ms.
Anjul Dwivedi and Ms. Hardeep Kaur
Mishra, Advocates
Versus
STATE (GOVT. OF NCT OF DELHI) .....Respondent
Through: Mr. Utkarsh. APP for State
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 374 of the Criminal
Procedure Code, 1973 (the Cr.P.C.), the sole accused in Sessions
Case No.95/2014 on the file of the Additional Sessions Judge
(Special, Fast Track Court-1), West, Tis Hazari Courts, Delhi,
challenges the judgement dated 23.01.2017 and order on sentence
dated 28.01.2017, as per which he has been convicted and
sentenced for the offence punishable under Section 376 of the
Indian Penal Code, 1860 (the IPC).
2. The prosecution case is that on 01.08.2012, the accused
served a soft drink laced with some intoxicant to PW1 and
committed rape upon herand thereafter continued to subject her to
sexual intercourse for a period of about one year under thefalse
promise of marriage. Hence, as per the chargesheet/final report
dated 27.05.2014, the accused is alleged to have committed the
offences punishable under Sections 376 and Section 328IPC.
3. Based on Exhibit PW1/A FIS of PW1 dated
18.06.2013, Crime no.312/2013, Uttam Nagar, Police Station, i.e.,
Exhibit PW9/A FIR, was registered by PW9, Head Constable.
PW14, Inspector, conducted investigation into the crime and on
completion of the same, submitted the chargesheet/final report
dated 27.05.2014 before the trial court, alleging the commission of
the offences punishable under the aforementioned Sections.
4. On appearance of the accused before the trial court,
copies of all the prosecution recordswere supplied to him in
compliance with Section 207 Cr.P.C. On 29.08.2014, a Charge for
the offences punishable under Sections 328 and 376 IPC read with
Section 417 IPC was framed, which was read over and explained
to the accused, to which he pleaded not guilty.
5. In order to prove its case, the prosecution examined
PWs. 1 to 14 and Exhibits PW1/A-B, PW2/A, PW4/A-D, PW6/A,
PW8/A, PW9/A-C, PW10/A, PW12/A-C, PW13/A-D and
PW14/A-B were marked.
6. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against him in the
prosecution evidence. The accused denied all those circumstances
and maintained his innocence. He stated that he had been falsely
implicated in this case.
7. After questioning the accused persons under Section
313(1)(b) Cr.P.C, compliance of Section 232 Cr.P.C was
mandatory. In the case on hand, no hearing as contemplated under
Section 232 Cr.P.C is seen made by the trial court. However, non-
compliance of the said provision does not, ipso facto vitiate the
proceedings, unless omission to comply with the same is shown to
have resulted in serious and substantial prejudice to the accused
(See Moidu K. vs. State of Kerala, 2009 (3)KHC 89:2009 SCC
OnLine Ker 2888). Here, the accused persons have no case that
non-compliance of Section 232 Cr.P.C has caused any prejudice to
him.
8. The trial court, after hearing both sides and on a
consideration of the oral and documentary evidence, vide
judgment dated 23.01.2017, convicted the accused under Section
235(2) Cr.P.C. for the offence punishable under Section 376 IPC
and acquitted him under Section 235(1) Cr.P.C. for the offences
punishable under Sections 328 and 417 IPC. Vide order on
sentence dated 28.01.2017, the accused has been sentenced to
undergo rigorous imprisonment for eight years along with fine of
₹15,000/-, and in default of payment of fine, to simple
imprisonment for a period of six months. Aggrieved, the accused
has preferred this appeal.
9. The learned senior counsel for the appellant/accused
contended that the impugned judgment suffers from patent
inconsistency, inasmuch as the trial court held that the prosecution
failed to establish administration of any intoxicant and also failed
to prove repeated sexual assault, yet proceeded to convict the
appellant for the alleged incident dated 01.08.2012 on the very
same evidentiary foundation. It was submitted that once substantial
parts of the prosecution case was disbelieved, conviction on a
truncated version of the same narrative, without independent
corroboration, is legally unsustainable.
9.1. It was further submitted that PW1 admittedly remained
in a consensual relationship with the appellant for over one year,
continued to remain in contact with him till June 2013, and lodged
the FIR after an unexplained delay of about ten months. It was
urged that her own statements before the doctor and under Section
164statement indicate that the complaint was made after the
marriage proposal, did not fructify and in the backdrop of alleged
disputes and threats. Such conduct, coupled with the delay, renders
the prosecution version doubtful and indicative of a case arising
out of a failed relationship rather than forcible sexual assault.
9.2. It was also contended that the medical evidence does
not support the allegation of rape on 01.08.2012, as no external or
internal injuries were found and no scientific material corroborates
the charge. It was further submitted that PW1 herself stated that
the alleged incident occurred in the house of the appellant when
his two sisters were present.This itself casts a serious doubt on the
veracity of the prosecution story.
9.3. It was lastly submitted that the evidence on record
reflects a voluntary and mature relationship between the parties,
including admitted financial dealings and close association, and
that the subsequent refusal or failure of marriage negotiations
cannot retrospectively convert consensual intimacy into rape. It
was further argued that other named persons were ultimately not
found involved, demonstrating exaggeration in the prosecution
case. On these grounds, it was submitted that the prosecution has
failed to establish the charge beyond reasonable doubt and that the
appellant is entitled to acquittal.
10. Per contra, the learned Additional Public Prosecutor
submitted that the impugned judgment is well-reasoned and based
on proper appreciation of evidence, inasmuch as the testimony of
PW1 is consistent, cogent and inspires confidence, and was not
effectively discredited in cross-examination, where no specific
suggestion was put denying the act of rape on 01.08.2012. It was
contended that minor discrepancies, including those relating to
medical examination or incidental facts, were rightly held to be
immaterial, and the trial court rightly applied the settled principle
that conviction can rest on the sole testimony of the prosecutrix.
11. Heard both sides and perused the records.
12. The only point that arises for consideration in this
appeal is whether there is any infirmity in the impugned
judgement, calling for an interference by this Court.
13. I shall briefly refer to the evidence mainly relied on by
the prosecution in support of the case. The gist of the case of PW1
in Ext. PW1/A FIS dated 18.06.2013, is as follows:- The accused
had been cheating her for the past one year in the name of
marriage and had been physically exploiting her during the
aforesaid period. She further alleged that throughout the said
period, his entire family and relatives were fully supporting him
and that for about one year, talks regarding their marriage were
ongoing between their respective families and that his parents had
been showing her dreams of a happy married life. However, after
the lapse of one year, they refused to solemnise the marriage. The
reasons stated by the accused's family was that she was a Punjabi
and the accused was a Bengali, and that they did not wish their son
to marry into another caste. Despite her repeated attempts to
explain and persuade them, his parents continued to refuse the
marriage. When she told the mother of the accused that she would
complain to the police, the accused's mother threatened her by
saying that if she wished to avoid defamation, she should leave her
son alone, failing which she would defame her to such an extent
that she would not be able to show her face to anyone. The mother
of the accused demanded a sum of ₹15 lakhs if she still wished to
marry the accused. When PW1 expressed her inability to arrange
such an amount, the accused's mother threatened that if she made
further calls or continued to trouble them, they would lodge a case
against her alleging that she was forcibly stalking their son. PW1
also stated that the son of the accused's paternal aunt (Bua) had
been calling and threatening her, stating that he would throw acid
on her or get her falsely implicated in a case and send her to jail, as
his father was a lawyer practising in Patna High Court. PW1
extremely distressed by these events approached the police, but no
effective assistance was provided. According to PW1, the Haryana
Police told her that the matter pertained to Delhi, while the Delhi
Police had not recorded her report for about one month,
compelling her to run between police stations in Delhi and
Haryana without any relief.
14. In Ext. PW1/B, Section 164 statement, recorded on
29.07.2013, PW1 introduced several new facts which were not
stated in the FIS. According to her, on 01.08.2012, on the pretext
of celebrating her birthday, the accused called her to his house at
Rama Park where his two sisters were present, and after
consuming a cold drink served by him she lost consciousness.
When she regained consciousness by about 2.00 p.m. to 2.30 p.m.,
she realised that something wrong had been done to her. But she
did not lodge a complaint due to fear of defamation. She further
stated that the accused falsely claimed to be working in Bank of
America whereas he was in fact working in a call centre earning
about ₹17,000 per month.But she forgave him thinking that he was
an MBA. The accused used to ask her about the clothes and
jewellery she liked and took her to various property dealers, but he
never purchased any property, clothes or jewellery for her, but had
given her only one teddy bear and artificial jewellery.
15. PW1, when examined before the trial court, reiterated
the broad narrative set out in her statement under Section 164
Cr.P.C. She deposed that she met the accused on 02.04.2012 at
Nuga Best Therapy Centre, Janak Puri, where she had been taking
treatment for joint pain and the accused was working as a
physiotherapist. She deposed that after about 1 or 2 months, he
proposed marriage to her, which she initially refused on account of
caste difference, she being a Sikh and the accused from Bihar
although he had told her that he was a Bengali. PW1 further
deposed that her birthday was on 31.07.2012. On 01.08.2012 the
accused invited her to his house at Rama Park on the pretext of
celebrating her birthday, where his sisters Priyanka and Menka
were present. After consuming a cold drink served by the accused,
she became unconscious and upon regaining consciousness at
about 1.30 p.m., she found herself without clothes and felt that
physical relations had been established with her. When she
confronted the accused, he initially denied the incident by saying
"kuchnaihua", but when she threatened to lodge a police
complaint, he admitted having established physical relations with
her while she was unconscious and assured her that he would
marry her. She deposed that relying upon this assurance, she did
not lodge any complaint. PW1 further deposed that thereafter the
accused made his father speak to PW5, her mother, and that the
father of the accused informed them that as and when he comes
from Darjeeling, he would purchase a house in Delhi, meet PW1's
parents and discuss her marriage with the accused. The accused
thereafter repeatedly established physical relations with her on the
promise of marriage till April 2013, during which time,
discussions regarding marriage took place between the families.
PW1 further deposed that on one occasion, she and the accused
had travelled to Palwal. On the said day, she met his parents
briefly at New Delhi Railway Station.After a lapse of about 8 to 9
months, when she enquired about the status of their marriage, the
accused informed her that he had been making her mother speak to
persons falsely projected as his parents. According to PW1, she is
not certain whether the persons she met at New Delhi Railway
Station on 10.04.2013, while on their way to Palwal, were actually
the parents of the accused.
15.1. PW1 further deposed that under pressure from PW5,
her mother, she warned the accused that she would lodge an FIR if
he did not marry her, whereupon he conveyed that his parents were
not even aware of their relationship. In January 2013, the accused
again reassured her of his intention to marry and conveyed that his
parents would come to Delhi to discuss the marriage. No physical
relations occurred between November 2012 and January 2013.
PW1 further deposed that on one occasion when she spoke to the
mother of the accused, the latterrefused the marriage on the ground
that better proposals were coming and that offers of ₹15-20 lakhs
as dowry were being received, thereby indirectly demanding
dowry. She conveyed her inability to arrange such an amount and,
informed the mother of the accused that her family lived in a
rented accommodation and belonged to a modest background, and
also disclosed that the accused had established physical relations
with her on the assurance of marriage. The accused's mother
responded that she could do whatever she wished but the marriage
would not take place. When she spoke to the accused regarding his
mother's refusal, he assured her that he would persuade his
mother.
16. PW3, the owner of M-107, Rama Park, deposed that
the accused was living with his sisters in the said premises as
tenant from December 2010 till March 2012. However, PW3
further deposed that police had come to her place with PW1, but
she does not know PW1.
17. PW5, the mother of PW1, deposed that PW1, her
daughter had a problem in her knees, for which she used to visit
the physiotherapy centre, during time which she met the accused.
The accused came to her house and told her regarding his wish to
marry her daughter. She had a talk with his parents. The father of
the accused told her that he had no objection to the marriage and
that when he would come to Delhi he would take a house in Delhi
and solemnize the marriage. PW5 further deposed that the accused
met her even after she had a talk with his parents. PW5 deposed
that the accused stopped talking to her daughter about 2½ years
before her examination before the Courtand that there was no
demand from the accused. She does not know whether there were
physical relations between the accused and her daughter.
18. The offence punishable under Section 376 IPC is
attracted only if the act alleged satisfies the ingredients of "rape"
as defined under Section 375 IPC. In the present case, the
prosecution case, is twofold: firstly, that on 01.08.2012 the
accused rendered PW1 unconscious by administering an intoxicant
and committed sexual intercourse without her consent; and
secondly, that thereafter the accused continued to have sexual
relations with PW1 for about one year under a false promise of
marriage. The accused stands acquitted by the trial court of the
offence under Section 328 IPC as the allegation of administration
of any intoxicant has been disbelieved. Therefore, the conviction
under Section 376 IPC must necessarily stand or fall on whether
the prosecution has established beyond reasonable doubt that the
sexual intercourse alleged to have occurred on 01.08.2012 was
without the consent of PW1 within the meaning of Section 375
IPC, or that any such consent, if given, stood vitiated by
misconception of fact within the ambit of Section 90 IPC.
19. It is well settled that "consent" for the purposes of
Section 375 IPC denotes an unequivocal voluntary agreement to
participate in the specific sexual act, and the absence of consent
must be affirmatively established by the prosecution. It is equally
well settled that conviction can be based on the sole testimony of
the prosecutrix, provided that such testimony is of sterling quality,
inspires confidence and is free from material contradictions or
infirmities. At the same time, where the case rests solely upon the
oral testimony of the prosecutrix, the court must subject such
evidence to careful scrutiny, and if reasonable doubt arises as to its
reliability on material particulars, the benefit thereof must go to the
accused. [See Rai Sandeep v. State (NCT of Delhi), (2012) 8
SCC 21 and Nirmal Premkumar v. State, 2024 SCC OnLine SC
260]
20. Insofar as the alleged incident dated 01.08.2012 is
concerned, the earliest version of PW1 is found in Exhibit PW1/A,
the FIS dated 18.06.2013. On perusal of Exhibit PW1/A, it is
apparent that the grievance articulated therein is primarily that the
accused had been cheating her in the name of marriage for about
one year, that talks regarding marriage were ongoing between the
families, that ultimately the accused's family refused to solemnise
the marriage on grounds of caste difference and alleged dowry
demand, and that threats were extended to her. Significantly, the
FIS does not contain any specific reference to the incident dated
01.08.2012, nor does it say that she had been rendered unconscious
by administration of any intoxicant and subjected to sexual
intercourse on that date. The focus of the FIS appears to be on the
alleged deception in the name of marriage and the subsequent
refusal and threats.
21. The detailed narrative regarding the incident of
01.08.2012, including the allegation that PW1 was invited to the
house of the accused at Rama Park, that his sisters were present,
that she consumed a cold drink served by him, became
unconscious, and upon regaining consciousness realised that
sexual intercourse had been committed upon her, finds specific
mention for the first time in her Section 164 statement, given on
29.07.2013, that is more than a month of the recording of the FIS
This aspect assumes significance, as the incident of 01.08.2012
ultimately forms the sole basis for conviction under Section 376
IPC. Though no formal contradiction appears to have been proved
in the manner contemplated under Section 145 of the Evidence
Act, 1872 during trial, the omission of a material fact in the earliest
version, which subsequently becomes the foundation of
conviction, is a circumstance that cannot be ignored while
assessing the credibility of the witness.
22. PW1 was medically examined on 19.06.2013, nearly
ten months after the alleged incident. Therefore, there cannot
possibly be any indication to substantiate the allegation of rape.
But when the allegation is that the victim was rendered
unconscious and subjected to sexual intercourse without consent,
and where such allegation is not reflected in the earliest version
and stands unsupported by any medical or scientific material, the
cumulative effect of these circumstances becomes relevant in
determining whether the prosecution has discharged its burden
beyond reasonable doubt.
23. The prosecution case also rests upon the assertion that
after the incident of 01.08.2012, the accused repeatedly established
sexual relations with PW1 on the promise of marriage. In order to
bring such conduct within the ambit of rape on the ground of
misconception of fact, it must be shown that the promise of
marriage was false from the inception and that the accused never
intended to marry PW1 but induced her to consent solely for the
purpose of sexual exploitation. The evidence on record, however,
reveals that there were discussions between the families; that
PW1's mother (PW5) had spoken to the father of the accused; that
meetings took place; and that the relationship continued for several
months thereafter. Even PW1 admits in her cross-examination that
she initially refused the marriage proposal, that she continued to
exchange messages and calls with the accused, and that
discussions regarding marriage were ongoing. Such evidence does
not unerringly establish that the promise of marriage was false
from inception. At best, it reflects a relationship which ultimately
did not culminate in marriage.
24. The conduct of PW1 subsequent to the alleged incident
dated 01.08.2012 is also a circumstance that needs to be taken into
account. It has come on record that PW1continued to remain in
contact with the accused till June 2013. She admitted that no
physical relations occurred during the period from November 2012
to January 2013, and that she and the accused travelled together on
several occasions. The FIR was lodged on 18.06.2013, nearly ten
months after the alleged incident. While delay in lodging an FIR in
cases of sexual offences is not uncommon and may be explained
by social stigma or fear, in the present case the continued
voluntary association between the parties during the interregnum
and the subsistence of marriage negotiations assume significance
in assessing whether the initial act was indeed without consent.
25. Another aspect which cannot be overlooked is that
PW1 deposed that at the time of the alleged incident on
01.08.2012, the sisters of the accused were present in the house.
True, the prosecution did not examine the sisters. Being the sister
of the accused, it cannot be expected that they would depose
against the accused. Therefore, non-examination of the sisters is
not fatal to the prosecution case. But, in the presence of the sisters,
it appears improbable in the circumstances of the case to believe
that the accused laced the soft drink with some intoxicant and
raped her.
26. The trial court, while acquitting the accused of the
offences under Sections 328 and 417 IPC, found that the
prosecution had not established administration of any intoxicant
nor the offence of cheating. Once the foundation of intoxication
was disbelieved, the prosecution was required to independently
establish that the sexual intercourse on 01.08.2012 was without the
consent of PW1. The trial court acquitted the accused for the
offences punishable under Sections 328 and 417 IPC finding the
evidence on record unsatisfactory. But on the same unsatifactory
evidence, proceeded to convict the accused for the offence of
rape.This Court is conscious of the fact that conviction can be
based on the sole testimony of the prosecutrix; however, where
material omissions and surrounding circumstances generate
reasonable doubt, it would be unsafe to sustain conviction without
further assurance.
27. Upon an overall appreciation of the evidence on
record, this Court finds that the prosecution has failed to establish
the case beyond reasonable doubt. The materials on record raise a
reasonable doubt as to whether the sexual intercourse alleged on
01.08.2012 was without consent or whether the case arises out of a
relationship that turned sour.
28. In the light of the aforesaidcircumstances, the
conviction and sentencing of the appellant for the offence
punishable under Section 376 IPC is found unsustainable and
hence liable to be set aside.
29. In the result, the appeal is allowed. The appellant is
acquitted under Section 235(1) Cr.P.C. for the offence punishable
under Section 376 IPC. The appellant is set at liberty and his bail
bond shall stand cancelled.
30. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
FEBRUARY 19, 2026
RN
