Punjab-Haryana High Court
Karan vs State Of Haryana on 30 September, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on 28th July, 2022
Pronounced on 30th September, 2022
CRA-D-653-DB-2017 (O&M)
Karan ....Appellant
Versus
State of Haryana ...Respondent
CRA-D-662-DB-2017 (O&M)
Hardik ....Appellant
Versus
State of Haryana ...Respondent
CRA-S-2396-SB-2017 (O&M)
Vikas Garg ....Appellant
Versus
State of Haryana ...Respondent
CRR-3142-SB-2017 (O&M)
X ....Petitioner
Versus
State of Haryana and others ...Respondents
CORAM: HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA
HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. A.P.S. Deol, Senior Advocate assisted by
Mr. Vishal Rattan Lamba, Advocate
Mr. Abhimanyu Tewari, Advocate,
Ms. Sanya Kaushal, Advocate and
Mr. Aditya Singla, Advocate
for the appellant (in CRA-D-653-DB-2017).
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CRA-D-653-DB-2017 (O&M) and 2
other connected cases
Mr. S.S. Narula, Advocate
for the appellant (in CRA-D-662-DB-2017).
Mr. R.S. Cheema, Senior Advocate assisted by
Mr. Arshdeep S. Cheema, Advocate and
Mr. Satish Sharma, Advocate
for the appellant (in CRA-S-2396-SB-2017).
Mr. Preetinder S. Ahluwalia, Advocate
for the complainant/petitioner (in CRR-3142-2017).
Mr. Randhir Singh, Addl. Advocate General, Haryana.
PANKAJ JAIN, J.
These three appeals and the revision are directed against the
judgment arising out of FIR No. 144 dated 11th April, 2015 registered under
Sections 376D, 376(2)(n), 376, 292, 120-B, 506 of the Indian Penal Code,
1860 and Section 67 of the I.T. Act, at Police Station Rai Sonepat.
2. Details of conviction and sentence awarded to the appellants
are tabulated hereunder :-
Name of the Offender u/s Period of Fine Period of
convict sentence (RI) Imposed sentence in
default of
payment of
fine (RI)
Hardik 376(D) IPC Twenty years Rs.20,000/- One year
376(2)(n) IPC Ten years Rs.10,000/- Ten months
120-B IPC Seven years Rs.10,000/- Ten months
292 r/w 34 IPC Two years Rs.2,000/- Two months
506 IPC Two years Rs.2,000/- Two months
67-A of Information Five years Rs.50,000/- Five months
Technology Act, 2000
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Name of the Offender u/s Period of Fine Period of
convict sentence (RI) Imposed sentence in
default of
payment of
fine (RI)
Karan 376(D) IPC Twenty years Rs.20,000/- One year
376(2)(n) r/w 120-B Ten years Rs.10,000/- Ten months
292 r/w 34 IPC Two years Rs.2,000/- Two months
67-A Information Five years Rs.50,000/- Five months
Technology Act, 2000
Vikas 376 IPC r/w 120-B Seven years Rs.10,000/- Ten months
IPC
292 r/w 34 IPC Two years Rs.2,000/- Two months
67-A of Information Five years Rs.50,000/- Five months
Technology Act, 2000
3. Revision is at the hands of the victim 'x' (name withheld) who
prays for award of compensation and further submits that the identity of the
victim be not disclosed in the records.
4. Victim moved an application before the Police Authorities
stating that :-
"I am pursuing my studies of BBA - MBA in Jindal
University for the last two years. I had taken admission on 12
August 2013 and I had met with Hardik Sikri on 14 November
2013. We both had remained fast friends for one month and
during this he had forced me and he had pressurised me to
have sex. Hardik had forcible sex with me. Thereafter, we had
broken up ties but he kept on forcing me and he forced me to
send my naked photograph which was sent by me on number
of Hardik, his number is 09253007007. Through these
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photographs. Hardik kept me threatening me and black
mailed me and threatened me that it I did not have sex with
him, he will mail my photographs to his friends and my
friends. During this I was compelled to have sex with friends
of Hardik namely Vikas and Karan. Karan Chhabra had
forcible sex with me two times and Vikas had done forcible sex
with me one time. These all works were done in the lawns of
University campus after 10 O'clock in the night. All these
three boys used to say to me that you keep on have sex with us
and if you told to anyone, we will show your pictures in the
university. Stern legal action be taken against these three
boys. Hardik and Karan had forcible sexual intercourse with
me after 10 O'clock in the same night."
5. On her statement, FIR was registered on 11th of April, 2015.
On same day, her statement was recorded under Section 164 Cr.P.C. While
the matter was under investigation, victim approached Apex Court by way
of Writ Petition (Criminal) No.85 of 2015 filed under Article 32 of the
Constitution of India wherein she prayed for transferring/handing-over the
investigation to CBI. SIT was constituted under the orders of the Supreme
Court. After investigation, report under Section 173 Cr.P.C. was filed.
Appellant-Hardik was charged for the offences punishable under Sections
376(D) IPC, 376(2)(n) IPC, 120-B IPC, 292 r/w 34 IPC, 506 IPC and
Section 67-A of Information Technology Act, 2000. Appellant- Karan was
charged for the offences punishable under Sections 376(D) IPC, 376(2)(n)
r/w 120-B IPC, 292 r/w 34 IPC and Section 67-A Information Technology
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Act, 2000. Appellant-Vikas was charged for the offences punishable under
Sections 376 IPC r/w 120-B IPC, 292 r/w 34 IPC and Section 67-A of
Information Technology Act, 2000.
6. As per record, prior to moving application before the police on
11th of April, 2015 the prosecutrix along with her parents visited office of
Registrar, O.P. Jindal Global University. She complained of sexual
harassment, intimidation, black-mailing, tricks to share her private pictures
at the hands of Hardik Sikri. Chief Warden and Manager Security were
called by the Registrar. On the asking of the Registrar, Security Incharge
brought Hardik Sikri to his office. On searching the mobile phone of
Hardik Sikri private pictures of prosecutrix were found. Thereafter, the
parents of the prosecutrix proceeded to the police station and lodged the
complaint. Prosecution examined the Registrar as PW-12, Surender Kaur
Assistant Director and Chief Warden appeared as PW-11. Assistant
Professor Severyna Magill was examined as PW-13. They all proved
incidents of 11th of April, 2015 prior to filing of complaint with police
authorities.
Arguments on behalf of Counsel for the appellants
7. Opening the charge on behalf of the appellants, Mr. APS Deol,
Senior Advocate appearing for the appellant-Karan in CRA-D-653-DB-
2017 submits that the judgment convicting the appellants is based upon
mere testimony of the victim. The prosecutrix having suppressed material
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facts from this Court, cannot be treated as trustworthy. The Victim was
selective in producing the WhatsApp chats and opted to withhold majority
of the same. This calls for drawing adverse inference against her under
Section 114 of the Evidence Act. He further submits that the material
discrepancies in her statements under Section 164 and that before the Court
during trial as PW1 are sufficient to demolish the case of the prosecution.
He refers to last two lines of Ex.P-1/A to contend that bare perusal of the
same would show that the lines have been squeezed into the complaint after
the complainant had signed the same. This shows that it was an
afterthought. In the original version there was no allegation of gang rape.
Mr. Deol also refers to WhatsApp chats on record especially that on 27th of
February, at 9.08 PM where the prosecutrix admits that she never had any
relation with anyone else except Hardik. Mr. Deol further refers to various
instances recorded in the WhatsApp chat to show that in fact the victim was
more than a willing partner in the intimate encounters which she now
claims to be without her consent. He relies upon Narender Kumar vs.
State (NCT of Delhi), 2012(7) SCC 171 to contend that victim at no point
of time conveyed her mental condition from where it could be gauged that
the accused was conscious of her being a non-consenting party. Mr. Deol
has invited attention of this Court to the chat of the victim with various
other boys to contend that the victim was an outgoing person and to say that
she was being forced into physical relation owing to blackmailing, is
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beyond comprehension. He, thus, contends that the Trial Court erred in
convicting the appellant solely on the basis of the statement of the
prosecutrix. He further relies upon Tameezuddin @ Tammu vs. State
(NCT Delhi), 2009(15) SCC 566, Uday vs. State of Karnataka, 2003(4)
SCC 46, Pramod Suryabhan Pawar vs. The State of Maharashtra &
Anr., 2019(9) SCC 608.
8. Mr. R.S. Cheema, Senior Advocate appearing for appellant-
Vikas Garg in CRA-S No.2396-SB of 2017 at the outset objects to Vikas
having been prosecuted along with the other two accused. Mr. Cheema
submits that so far as allegations levelled against Vikas are concerned the
same do not constitute offence of rape as defined under Section 375 of the
IPC. He further submits that the Trial Court erred in relying solely upon the
statement suffered by the prosecutrix. He claims that the WhatsApp chats
show that the statement suffered by prosecutrix before the Trial Court was
not true and, in these circumstances, statement of prosecutrix being not an
evidence of sterling quality ought not have been made sole basis to convict
the accused. It has been argued that first application made to the University
Authorities which eventually will be the first version has been deliberately
withheld which dents the whole case put-forward by the prosecution. He
further refers to the cross-examination of prosecutrix to contend that in fact
Vikas was being forced to become a witness in this case. After he refused
he was implicated falsely at the instance of police. It has been further
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submitted that Ex.D1 which is one of the first versions, shows that there is
no allegation against Vikas and the improvements made by PW1-the
prosecutrix, PW6-the mother, PW7-the father ought not have been relied
upon. He refers to the statement of Registrar (PW12) and submits that the
said statement of PW12 in fact demolishes the whole case of the
prosecution. He further submits that there is no allegation that the
appellant-Vikas was member of the alleged WhatsApp Group and there
being no chat with him, he deserves acquittal. Mr. Cheema has drawn
attention of this Court to the order dated 1st of August, 2015 whereby
accused were charge-sheeted and submits that Vikas Garg has been charge-
sheeted for offences punishable under Section 376/292/120-B IPC read
with Section 67-A of the I.T. Act. He claims that neither the Court nor the
prosecution was sure of the role assigned to appellant-Vikas Garg. There is
no evidence to prove meeting of minds of Hardik and Vikas Garg that could
drive-home offence punishable under Section 120-B IPC against Vikas. He
refers to Kehar Singh vs. State (Delhi Admn.), (1988)3 SCC 609 to
submit that there has to be an evidence as to transmission of thoughts
sharing unlawful design and there has to be some kind of physical
manifestation of agreement to hold the accused guilty which is absent in the
present case. He further relies upon State of Kerala vs. P. Sugathan and
another, (2000)8 SCC 203 to submit that a few bits here and a few bits
there cannot be held to be adequate for connecting the accused with the
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commission of crime and that there must be circumstances giving rise to a
conclusive or irresistible inference of an agreement between two or more
persons to commit an offence. Similarly, he relies upon Esher Singh vs.
State of Andhra Pradesh, (2004)11 SCC 585 and P.K. Narayanan vs.
State of Kerala, (1995)1 SCC 142. He further relies upon Vadivelu
Thevar and another vs. State of Madras, AIR 1957 SC 614 to contend
that the well established rule that the Court is concerned with the quality
and not with the quantity of the evidence is not without exception. Where
the oral testimony is, by its very nature suspect, it is duty of the Court to
weigh carefully as to whether such testimony is reliable and free from all
taints. Mr. Cheema asserts that there is nothing on record to establish
charge framed against the appellant-Vikas as required under the law. Fact
that the prosecutrix never raised her voice rather razes the whole case put-
forth by the prosecution. It has been asserted that the statement of
prosecutrix recorded by the police cannot be treated as a substantive piece
of evidence and, thus, in fact there is no allegation against the appellant-
Vikas Garg. Similarly, he relies upon the law laid down in Chanan Singh
vs. State of Haryana, 1971(3) SCC 466 and Joseph vs. State of Kerala
2003(1) SCC 465 to assert that while appreciating the evidence of an
injured witness, the Court is duty bound to ascertain that the evidence
tendered by such witness is cogent, reliable and in tune with probabilities
and inspires implicit confidence. When such evidence is in conflict with
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other evidence, it would be unsafe to convict the accused on the sole
testimony of the injured witness.
9. Mr. Sartej S. Narula, Advocate while appearing for appellant-
Hardik in CRA-D-662-DB of 2017 would submit that the question that will
arise before this Court is as to whether at all offence under Section 376 (1)
of the IPC is made out. He claims that consensual relations will not fall
within the definition of Section 375 IPC. It is not a case of repeated rape/
gang-rap as enumerated in Section 376(2)(n) IPC and/or Section 376-D
IPC. Even if the the version of prosecutrix is believed to be gospel truth
frequency was just twice in 1 year which won't fall within the definitions of
'repeated rape/gang rape'. He reiterates that a solitary statement of the
prosecutrix without any corroboration can not be believed. Reliance is
being placed upon Rajoo and others vs. State of M.P., 2009(1) R.C.R.
(Crl.) 310, Tameezuddin @ Tammu vs. State of (NCT) of Delhi, 2009
(4) RCR (Crl.) 345 and Santosh Prasad @ Santosh Kumar vs. State of
Bihar, 2020(2) RCR (Crl.) 58. He claims that the prosecutrix has been
proved to be an unreliable witness after it came on record that relevant
evidence has been withheld by her intentionally. It has been asserted that
the rule that 'generally a woman would not stake her chastity' is not
absolute. He relies upon Pandurang Sitaram Bhagwat vs. State of
Maharashtra, 2005(1) RCR (Crl.) 858 and Dinesh Jaiswal vs. State of
M.P., 2010(2) RCR(Crl.) 139 and submits that its not a universal rule. He
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further claims that there was no circulation of any objectionable photograph
which would attract offences punishable under Sections 292 IPC and
Section 67-A of the I.T. Act. He claims that, prosecution having failed to
prove that the three appellants ever were present together at the time of any
incident, its not the case of 376D. He further argues that on bare reading
of Section 90 with Section 375 IPC, it is clear that Section 375 IPC being a
specific provision dealing with the rape would have overriding effect on the
provision of Section 90 IPC. Thus, prosecutrix has to show that her consent
has been obtained by putting her or any person in whom she is interested in
fear of 'death' or of 'hurt' to hold the appellant guilty for offence punishable
under Section 376 IPC. He submits that the allegations levelled by the
prosecutrix do not satisfy the ingredients of Section 375 IPC. As per the
provision contained in Section 375 IPC, in a consensual encounter the
prosecutrix has to show that her consent has been obtained by putting her
under fear of death or of hurt to make out a case of rape. He contends that
mere blackmailing on the strength of objectionable/obscene material would
not fall within the definition of 'death' or 'hurt'. Heavy reliance is being
placed on Tukaram vs. State of Maharashtra, 1979 AIR (SC) 185,
Indore Dev. Authority vs. Shailendra, 2018(2) RCR (Civil) 455, J.K.
Cotton Spinning and Weaving Mills vs. State of UP, 1961 AIR(SC)
1170. Mr. Narula further argues that the questions pertaining to offence of
gang rape/repeated rape were not even put to the accused while recording
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his statement under Section 313 Cr.P.C. Refering to the law laid down in
Raj Kumar Singh vs. State of Rajasthan, 2014(6) R.C.R.(Crl.) 107,
Inspector of Customs vs. Yashpal and another, 2009(2) R.C.R.(Crl.)
514, he contends that the the whole trial stands vitiated on account of said
lapse. Mr. Narula reiterates the argument raised by Mr. Deol and Mr.
Cheema and submits that there was no instance of rape mentioned in the
original complaint Exhibit PW1/A and the statement made under Section
164 Cr.P.C. First time the prosecutrix makes detailed allegation w.r.t. the
incidents of rape specifically is in her statement under Section 161 Cr.P.C.
before the police authorities. He claims that it has come on record that the
said statement was prepared in the chamber of lawyer representing the
prosecutrix before the Apex Court. Mr. Narula as well as Mr. Deol both
have argued that the allegations w.r.t. gang-rape for the first time were
unearthed in this statement of the prosecutrix. So much as so even before
Apex Court no such allegation was levelled. A bare perusal of the
statement reveals that it is a typed statement which cannot be treated as
statement under Section 161 Cr.P.C. He claims that in fact the evidence on
the basis of which Trial Court has convicted the appellants is a tampered
evidence. He asserts that from record it is clear that the victim was using
two mobile phones. The Apple iPhone has not been produced by the
prosecutrix. The other mobile phone which is a Sony Xperia phone was
initially withheld by her and she refused to hand-over her mobile phone to
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the Investigating Agency claiming that the screen had broken. The same
was handed-over only after material data has been deleted and possibility of
tampering with the WhatsApp chats also cannot be ruled out. He further
claims that the case projected vis-a-vis blackmailing and the prosecutrix
being under continuous threat also can't be believed. During the period the
incidents complained of occurred, the prosecutrix repeatedly visited her
family. Had it been a case of blackmailing there was no reason for the
prosecutrix not to confide in her parents or her teachers/fellow
students/friends. In support of his arguments, Mr. Narula relies upon the
law laid by Supreme Court in Kaini Rajan vs. State of Kerala, 2013(4)
R.C.R.(Crl.) 365, Vijayan vs. State of Kerala, 2008(14) SCC 763.
Lastly, he asserts that prosecution has to stand on its legs to prove its case
beyond doubt against the accused and the accused has a right to remain
silent. Accused is not yoked with the burden to prove facts qua his false
implication. He relies upon Narender Kumar vs. State (NCT of Delhi),
2012(3) R.C.R. (Crl.) 66. Mr. Narula relies upon the judgment of Delhi
High Court rendered in Mahmood Farooqui vs. State (Govt. of NCT of
Delhi), 2017(4) R.C.R.(Crimnal) 491 to submit that a feeble hesitation
cannot be understood as a possible negation of any advance. There has to
be a communication by the prosecutrix that conveys that she is not a
consenting party. If at all the prosecutrix was raped without her consent,
she would have immediately confided in her near ones. He further brought
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to the notice of the Court that said judgment in Mahmood Farooqui's case
ibid has attained finality and has been upheld by the Supreme Court as the
Special Leave Petition against the same stands dismissed vide order dated
19th January, 2018.
10. Mr. Narula places reliance upon Mr. Virendra Khanna vs.
State of Karnataka, 2021(3) AIR Kar R 455 and submits that accused has
a right to remain silent and the Investigating Agency could have well issued
direction to the accused to furnish password/passcode in order to open the
smart phone of the appellant or he could have approached the Magistrate
concerned for such directions. Since no effort was made by the
Investigating Agency to open the phone of the accused which is in custody
of the Investigating Agency, WhatsApp chats produced by the prosecution
cannot be held to be proved. The crux of the contentions raised by Mr.
Narula is that in fact it was a consensual act between the prosecutrix and
the appellant-Hardik. Conduct of the prosecutrix can be well inferred from
the evidence on record in form of Whatsapp chats. The intimate encounters
between the accused and the prosecutrix being act of her own volition can
not be termed as act of violating her. She was never under any coercion or
threat as is being posed and held by the Trial Court.
Arguments advanced by Prosecution:
11. Per contra, State Counsel along with Counsel for the
complainant/victim have submitted that it is a settled law that sole
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testimony of a prosecutrix is enough to prove the guilt of the accused. It
has been further submitted that not only the testimony of the prosecutrix is
of sterling quality but the same stands fully corroborated by overwhelming
evidence on record in the shape of WhatsApp chats and the oral testimonies
of the other witnesses. Mr. Randhir Singh, Ld. State Counsel submits that
helplessness of the prosecutrix is evident from the record and in fact the
treatment meted out to her by the accused is akin to declaration of "open
season" on the native women by the whites in the American history.
Mr. Ahluwalia, Advocate for the complainant submits that it is not a case
where the prosecutrix 'consented' but it is a case where she was left with no
other choice but to 'submit'. Mr. Ahluwalia has extensively read from the
Law Commission's Report on Offence of a Rape and 84th Law Commission
Report on Rape and Allied Offences dated 25th of April, 1980 to contend
that the intent of the legislature is to make the definition of rape as
comprehensive as possible and not to restrict the same. He further relies
upon Deelip Singh vs. State of Bihar (2005) 1 SCC 88 to submit that
while unveiling the dimensions of 'consent' in the context of Section 375
IPC, the Courts have not merely gone by language of Section 90 but have
travelled a wider field guided by etymology of the word 'consent'.
12. We have heard Ld. Counsel for the parties and have gone
through the records of the case.
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Primary Issue : 'Consent'
13. The parties to the lis are at issue w.r.t. 'consent' of the
prosecutrix. Prosecution claims that the alleged act was without consent
and, thus, will fall within Section 375, whereas it is a case of the appellants
that the consent of the prosecutrix is evident on record. In order to
constitute offence under Section 375 IPC, the prosecution is required to
bring the case within the circumstances as described under Section 375.
14. Thus, the primary question that will arise for adjudication is
'whether the act alleged in the present case can be said to be with consent
of the prosecutrix or was without consent ?' Before adverting to the facts
of the instant case, it will be apposite to peruse the relevant provisions of
law :-
"S. 375. Rape.--A man is said to commit "rape" if he --
(a) penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do
so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body,
not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or any
other person; or
(c) manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any
part of body of such woman or makes her to do so with
him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
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person, under the circumstances falling under any of
the following seven descriptions:--
First.-- Against her will.
Secondly.-- Without her consent.
Thirdly.-- With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly.-- With her consent, when the man knows that
he is not her husband and that her consent is given
because she believes that he is another man to whom
she is or believes herself to be lawfully married.
Fifthly.-- With her consent when, at the time of giving
such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or
through another of any stupefying or unwholesome
substance, she is unable to understand the nature and
consequences of that to which she gives consent.
Sixthly.-- With or without her consent, when she is
under eighteen years of age.
Seventhly.-- When she is unable to communicate
consent.
Explanation 1.--For the purposes of this section,
"vagina" shall also include labia majora.
Explanation 2.--Consent means an unequivocal
voluntary agreement when the woman by words, gestures or
any form of verbal or non-verbal communication,
communicates willingness to participate in the specific sexual
act:
Provided that a woman who does not physically resist
to the act of penetration shall not by the reason only of that
fact, be regarded as consenting to the sexual activity.
Exception 1.--A medical procedure or intervention
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shall not constitute rape.
Exception 2.--Sexual intercourse or sexual acts by a
man with his own wife, the wife not being under fifteen years
of age, is not rape."
"S. 90. Consent known to be given under fear or
misconception.--A consent is not such a consent as is
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; or
Consent of insane person.--if the consent is given by a
person who, from unsoundness of mind, or intoxication, is
unable to understand the nature and consequence of that to
which he gives his consent; or
Consent of child.--unless the contrary appears from the
context, if the consent is given by a person who is under
twelve years of age.
"S. 376. Punishment for rape.--(1) Whoever, except in the
cases provided for in sub-section (2), commits rape, shall be
punished with rigorous imprisonment of either description for
a term which 1 [shall not be less than ten years, but which
may extend to imprisonment for life, and shall also be liable
to fine].
(2) Whoever,--
(a) being a police officer, commits rape--
(i) within the limits of the police station to which such
police officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer's custody or in
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the custody of a police officer subordinate to such
police officer; or
(b) being a public servant, commits rape on a woman in
such public servant's custody or in the custody of a
public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in an
area by the Central or a State Government commits
rape in such area; or
(d) being on the management or on the staff of a jail,
remand home or other place of custody established by
or under any law for the time being in force or of a
women's or children's institution, commits rape on any
inmate of such jail, remand home, place or institution;
or
(e) being on the management or on the staff of a hospital,
commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in
a position of trust or authority towards the woman,
commits rape on such woman; or
(g) commits rape during communal or sectarian violence;
or
(h) commits rape on a woman knowing her to be
pregnant; or
(j) commits rape, on a woman incapable of giving
consent; or
(k) being in a position of control or dominance over a
woman, commits rape on such woman; or
(l) commits rape on a woman suffering from mental or
physical disability; or
(m) while committing rape causes grievous bodily harm or
maims or disfigures or endangers the life of a woman;
or
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(n) commits rape repeatedly on the same woman, shall be
punished with rigorous imprisonment for a term which
shall not be less than ten years, but which may extend
to imprisonment for life, which shall mean
imprisonment for the remainder of that person's
natural life, and shall also be liable to fine.
Explanation.--For the purposes of this sub-section,--
(a) "armed forces" means the naval, military and air
forces and includes any member of the Armed Forces
constituted under any law for the time being in force,
including the paramilitary forces and any auxiliary
forces that are under the control of the Central
Government or the State Government;
(b) "hospital" means the precincts of the hospital and
includes the precincts of any institution for the
reception and treatment of persons during
convalescence or of persons requiring medical
attention or rehabilitation;
(c) "police officer" shall have the same meaning as
assigned to the expression "police" under the Police
Act, 1861 (5 of 1861);
(d) "women's or children's institution" means an
institution, whether called an orphanage or a home for
neglected women or children or a widow's home or an
institution called by any other name, which is
established and maintained for the reception and care
of women or children."
[(3) Whoever, commits rape on a woman under sixteen
years of age shall be punished with rigorous imprisonment for
a term which shall not be less than twenty years, but which
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may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life,
and shall also be liable to fine:
Provided that such fine shall be just and reasonable to
meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-
section shall be paid to the victim.]
"S. 376D. Gang rape.--Where a woman is raped by one or
more persons constituting a group or acting in furtherance of
a common intention, each of those persons shall be deemed to
have committed the offence of rape and shall be punished
with rigorous imprisonment for a term which shall not be less
than twenty years, but which may extend to life which shall
mean imprisonment for the remainder of that person's natural
life, and with fine:
Provided that such fine shall be just and reasonable to
meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this
section shall be paid to the victim."
15. It needs to be noticed that Criminal Law (Amendment) Act,
2013 was enacted by the Parliament to amend the Indian Penal Code; the
Code of Criminal Procedure, 1973; the Indian Evidence Act, 1872 and the
Protection of Children from Sexual Offences. It was declared in the
Statement of objects and reasons of the 2013 Act that the Amending Act
sought to amend the Indian Evidence Act, 1872 to protect the dignity of
women.
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16. In the present case, we are concerned with the amended
provisions of Section 114A and 146 of the Indian Evidence Act, which read
as under :-
Section 114A. Presumption as to absence of consent in
certain prosecution for rape. -- In a prosecution for rape
under clause (a), clause (b), clause (c), clause (d), clause (e),
clause (f), clause (g), clause (h), clause (i), clause (j), clause
(k), clause (l), clause (m) or clause (n) of sub-section (2) of
section 376 of the Indian Penal Code (45 of 1860), where
sexual intercourse by the accused is proved and the question
is whether it was without the consent of the woman alleged to
have been raped and such woman states in her evidence
before the court that she did not consent, the Court shall
presume that she did not consent.
Explanation.-- In this section, "sexual intercourse"
shall mean any of the acts mentioned in clauses (a) to (d) of
section 375 of the Indian Penal Code (45 of 1860).
Section 146. Questions lawful in cross-examination. --
When a witness is cross-examined, he may, in addition to the
questions hereinbefore referred to, be asked any questions
which tend--
(1) to test his veracity,
(2) to discover who he is and what is his position in
life, or
(3) to shake his credit, by injuring his character,
although the answer to such questions might tend directly or
indirectly to criminate him or might expose or tend directly or
indirectly to expose him to a penalty or forfeiture:
[Provided that in a prosecution for an offence under
section 376, [section 376A, section 376AB, section 376B,
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section 376C, section 376D, section 376 DA, section 376 DB]
or section 376E of the Indian Penal Code (45 of 1860) or for
attempt to commit any such offence, where the question of
consent is an issue, it shall not be permissible to adduce
evidence or to put questions in the cross-examination of the
victim as to the general immoral character, or previous sexual
experience, of such victim with any person for proving such
consent or the quality of consent.]
17. Ld. Counsel for the appellants have heavily relied upon
judgment of Apex Court in Tukaram's case (supra). In Tukaram's case, a
young girl went to local police station along with her brother to record their
statements in respect of a complaint lodged by her brother. While at police
station she was raped by Head Constable Tukaram and Constable Ganpat.
She reported it to a crowd gathered outside the police station. After being
examined by the doctor she filed police complaint. The complaint was
registered by the police. After the Trial Court acquitted the accused, the
findings were reversed by the High Court. Ganpat was convicted and
sentenced to 5 years rigorous imprisonment whereas Tukaram was
convicted and sentenced to 1 year rigorous imprisonment. Apex Court
reversed the judgment of the High Court holding that there were no injuries
shown by the medical report and, thus, the story of 'stiff resistance having
been put by the girl is all false'. The Court held that under Section 375 only
the 'fear of death or hurt' could vitiate consent for sexual intercourse. It was
held that -
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"The section itself states in clauses Thirdly and Fourthly as to
when a consent would not be a consent within the meaning of
clause Secondly. For the proposition that the requisite consent
was lacking in the present case, reliance on behalf of the State
can be placed only on clause Thirdly so that it would have to
be shown that the girl had been put in fear of death or hurt
and that that was the reason for her consent. To this aspect of
the matter the High Court was perhaps alive when it talked of
"passive submission" but then in holding that the
circumstances available in the present case make out a case
of fear on the part of the girl, it did not give a finding that
such fear was shown to be that of death or hurt, and in the
absence of such a finding, the alleged fear would not vitiate
the consent. Further, for circumstantial evidence to be used in
order to prove an ingredient of an offence, it has to be such
that it leads to no reasonable inference other than that of
guilt. We have already pointed out that the fear which clause
Thirdly of section 375 speaks of is negatived by the
circumstance that the girl is said to have been taken away by
Ganpat right from amongst her near and dear ones at a point
of time when they were all leaving the police station together
and were crossing the entrance gate to emerge out of it. The
circumstantial evidence available, therefore, is not only
capable of being construed in a way different from that
adopted by the High Court but actually derogates in no
uncertain measure from the inference drawn by it."
18. To reiterate the age-old adage "The essence of the rape is
absence of consent" - the expression 'consent' has repeatedly cropped up
before the Courts in matters involving allegations of rape.
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19. In State of U.P. vs. Chottey Lal, (2011)2 SCC 550, Apex
Court held that -
".....In the facts of the case what is crucial to be considered is
whether clause First or clause Secondly of Section 375 IPC is
attracted. The expressions 'against her will' and 'without her
consent' may overlap sometimes but surely the two
expressions in clause First and clause Secondly have different
connotation and dimension. The expression 'against her will'
would ordinarily mean that the intercourse was done by a
man with a woman despite her resistance and opposition. On
the other hand, the expression 'without her consent' would
comprehend an act of reason accompanied by deliberation.
The concept of 'consent' in the context of Section 375 IPC has
come up for consideration before this Court on more than one
occasion. Before we deal with some of these decisions,
reference to Section 90 of the IPC may be relevant which
reads as under :
"S. 90. Consent known to be given under fear or
misconception.--A consent is not such a consent as it
intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception; or
Consent of insane person.--if the consent is given by a
person who, from unsoundness of mind, or intoxication,
is unable to understand the nature and consequence of
that to which he gives his consent; or Consent of
child.--unless the contrary appears from the context, if
the consent is given by a person who is under twelve
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years of age."
14. This Court in a long line of cases has given wider
meaning to the word 'consent' in the context of sexual offences
as explained in various judicial dictionaries. In Jowitt's
Dictionary of English Law (Second Edition), Volume 1 (1977)
at page 422 the word 'consent' has been explained as an act of
reason accompanied with deliberation, the mind weighing, as
in a balance, the good or evil on either side. It is further
stated that consent supposes three things--a physical power, a
mental power, and a free and serious use of them and if
consent be 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 the mind.
15. Stroud's Judicial Dictionary (Fourth Edition), Volume 1
(1971) at page 555 explains the expression 'consent', inter
alia, as under :-
"''Every 'consent' to an act, involves a submission; but
it by no means follows that a mere submission involves
consent," e.g. the mere submission of a girl to a carnal
assault, she being in the power of a strong man, is not
consent (per Coleridge J., R.v. Day, 9 C. & P. 724)."
Stroud's Judicial Dictionary also refers to decision in the case
of Holman v. The Queen 1970 W.A.R. 2) wherein it was
stated: 'But there does not necessarily have to be complete
willingness to constitute consent. A woman's consent to
intercourse may be hesitant, reluctant or grudging, but if she
consciously permits it there is "consent".'
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16. In Words and Phrases, Permanent Edition, (Volume 8A)
at pages 205-206, few American decisions wherein the word
'consent' has been considered and explained with regard to
the law of rape have been referred. These are as follows :
"In order to constitute "rape", there need not be
resistance to the utmost, and a woman who is assaulted
need not resist to the point of risking being beaten into
insensibility, and, if she resists to the point where
further resistance would be useless or until her
resistance is overcome by force or violence, submission
thereafter is not "consent". People v. McIlvain (55 Cal.
App. 2d 322)."
.................... .............
" "Consent," within Penal Law, ' 2010, defining rape,
requires exercise of intelligence based on knowledge of
its significance and moral quality and there must be a
choice between resistance and assent. People v.
Pelvino, 214 N.Y.S. 577"
...................... ..........
" "Consenting" as used in the law of rape means
consent of the will and submission under the influence
of fear or terror cannot amount to real consent.
Hallmark v. State, 22 Okl. Cr. 422"
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
"Will is defined as wish, desire, pleasure, inclination,
choice, the faculty of conscious, and especially of
deliberate, action. It is purely and solely a mental
process to be ascertained, in a prosecution for rape, by
what the prosecuting witness may have said or done. It
being a mental process there is no other manner by
which her will can be ascertained, and it must be left to
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the jury to determine that will by her acts and
statements, as disclosed by the evidence. It is but
natural, therefore, that in charging the jury upon the
subject of rape, or assault with intent to commit rape,
the courts should have almost universally, and, in many
cases, exclusively, discussed "consent" and resistance.
There can be no better evidence of willingness is a
condition or state of mind no better evidence of
unwillingness than resistance. No lexicographer
recognizes "consent" as a synonym of willingness, and
it is apparent that they are not synonymous. It is
equally apparent, on the other hand, that the true
relation between the words is that willingness is a
condition or state of mind and "consent" one of the
evidences of that condition. Likewise resistance is not a
synonym of unwillingness, though it is an evidence
thereof. In all cases, therefore, where the prosecuting
witness has an intelligent will, the court should charge
upon the elements of "consent" and resistance as being
proper elements from which the jury may infer either a
favourable or an opposing will. It must, however, be
recognized in all cases that the real test is whether the
assault was committed against the will of the
prosecuting witness. State v. Schwab, 143 N.E. 29"
17. Broadly, this Court has accepted and followed the
judgments referred to in the above judicial dictionaries as
regards the meaning of the word 'consent' as occurring in
Section 375 IPC. It is not necessary to refer to all the
decisions and the reference to two decisions of this Court
shall suffice. In State of H.P. v. Mango Ram 2000(3) RCR
(Criminal) 752 : (2000)7 SCC 224, a 3-Judge Bench of this
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Court while dealing with the aspect of 'consent' for the
purposes of Section 375 IPC held at page 230 of the Report as
under:
"Submission of the body under the fear of terror cannot
be construed as a consented sexual act. Consent for the
purpose of Section 375 requires voluntary participation
not only after the exercise of intelligence based on the
knowledge of the significance and moral quality of the
act but after having fully exercised the choice between
resistance assent. Whether there was consent or not, is
to be ascertained only on a careful study of all relevant
circumstances."
(emphasis supplied)
20. In Deelip Singh's case (supra), Apex Court held that -
"15. The concept and dimensions of 'consent' in the context of
Section 375 Indian Penal Code has been viewed from different
angles. The decided cases on the issue reveal different
approaches which may not necessarily be dichotomous. Of
course, the ultimate conclusion depends on the facts of each
case.
16. Indian Penal Code does not define 'consent' in positive
terms, but what cannot be regarded as 'consent' under the
Code is explained by Section 90. Section 90 reads as follows:
" "90. Consent known to be given under fear or
misconception - A consent is not such a consent as is
intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a
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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; "
Consent given firstly under fear of injury and secondly under
a misconception of fact is no 'consent' at all. That is what is
enjoined by the first part of Section 90. These two grounds
specified in Section 90 are analogous to coercion and mistake
of fact which are the familiar grounds that can vitiate a
transaction under the jurisprudence of our country as well as
other countries.
17. The factors set out in the first part of Section 90 are from
the point of view of the victim. The second part of Section 90
enacts the corresponding provision from the point of view of
the accused. It envisages that the accused too has knowledge
or has reason to believe that the consent was given by the
victim in consequence of fear of injury or misconception of
fact. Thus, the second part lays emphasis on the knowledge or
reasonable belief of the person who obtains the tainted
consent. The requirements of both the parts should be
cumulatively satisfied. In other words, the Court has to see
whether the person giving the consent had given it under fear
of injury or misconception of fact and the Court should also
be satisfied that the person doing the act i.e. the alleged
offender, is conscious of the fact or should have reason to
think that but for the fear or misconception, the consent would
not have been given. This is the scheme of Section 90 which is
couched in negative terminology.
18. Section 90 cannot, however, be construed as an exhaustive
definition of consent for the purposes of the Indian Penal
Code. The normal connotation and concept of 'consent' is not
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intended to be excluded. Various decisions of the High Court
and of this Court have not merely gone by the language of
Section 90, but travelled a wider field, guided by the
etymology of the word 'consent'.
19. In most of the decisions in which the meaning of the
expression 'consent' under the Indian Penal Code was
discussed, reference was made to the passages occurring in
Stroud's Judicial Dictionary, Jowitt's Dictionary on English
Law, Words & Phrases - Permanent Edition and other legal
Dictionaries. Stroud defines consent as "an act of reason,
accompanied with deliberation, the mind weighing, as in a
balance, the good and evil on each side". Jowitt, while
employing the same language added the following:
"...Consent supposes three things - a physical power, a
mental power and a free and serious use of them.
Hence it is that if consent be obtained by intimidation,
force, mediated imposition, circumvention, surprise or
undue influence, it is to be treated as a delusion, and
not as a deliberate and free act of the mind."
20. In Words & Phrases - Permanent Edition, Volume 8A, the
following passages culled out from certain old decisions of
the American Courts are found:
"...adult female's understanding of nature and
consequences of sexual act must be intelligent
understanding to constitute 'consent'.
Consent within penal law, defining rape, requires
exercise of intelligence based on knowledge of its
significance and moral quality and there must be a
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choice between resistance and assent.... "
21. It was observed by B.P. Singh, J. speaking for the Court in
Uday Vs. State of Karnataka, 2003(2) RCR (Criminal) 99
(SC) : [2003(2) Scale 329], "the Courts in India have, by and
large, adopted these tests to discover whether the consent was
voluntary or whether it was vitiated so as not to be legal
consent".
22. There is a good analysis of the expression 'consent' in the
context of Section 375 Indian Penal Code by Tekchand, J. in
Rao Harnarain Singh Vs. State [AIR 1958 Punjab 123]. The
learned Judge had evidently drawn inspiration from the above
passages in the law dictionaries. The observation of the
learned Judge that " there is a difference between consent and
submission and every consent involves a submission but the
converse does not follow and a mere act of submission does
not involve consent", is quite apposite. The said proposition is
virtually a repetition of what was said by Coleridge, J. in
Regina vs Day in 1841 as quoted in Words and Phrases
(Permanent Edition) at page 205. The following remarks in
Harnarain's case are also pertinent:
" "Consent is an act of reason accompanied by
deliberation, a mere act of helpless resignation in the
face of inevitable compulsion, non resistance and
passive giving in cannot be deemed to be Consent."
\
23. The passages occurring in the above decision were either
verbatim quoted with approval or in condensed form in the
subsequent decisions: vide In Re : Anthony [AIR 1960
Madras 308], Gopi Shankar Vs. State [AIR 1967 Raj. 159],
Bhimrao Vs. State of Maharashtra [1975 Mah. L.J. 660],
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Vijayan Pillai Vs. State of Kerala [1989 (2) K.L.J. 234]. All
these decisions have been considered in a recent
pronouncement of this Court in Uday Vs. State of Karnataka.
The enunciation of law on the meaning and content of the
expression 'consent' in the context of penal law as elucidated
by Tekchand, J. in Harnarain's case (which in turn was based
on the above extracts from law Dictionaries) has found its
echo in the three Judge Bench decision of this Court in State
of H.P. Vs. Mango Ram 2000(3) RCR (Criminal) 752 (SC) :
[(2000) 7 SCC 224]. K.G. Balakrishnan, J. speaking for the
Court stated thus:
"Submission of the body under the fear or terror
cannot be construed as a consented sexual act. Consent
for the purpose of Section 375 requires voluntary
participation not only after the exercise of intelligence
based on the knowledge of the significance and moral
quality of the act but after having fully exercised the
choice between resistance and assent. Whether there
was consent or not, is to be ascertained only on a
careful study of all relevant circumstances."
(Emphasis supplied)
21. The argument raised by Mr. Narula w.r.t. their being a conflict
between Section 90 and Section 375 and his insistence upon reading upon
third circumstance as described under Section 375 over and above Section
90 is misconceived and misplaced. In fact there is no conflict between the
two. Section 90 IPC does not define 'consent' but decrees that the 'consent'
given under fear or misconception is in fact 'no consent'. As per Section 90,
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where a person who is accused of doing the act knows, or has reason to
believe, that the consent was given by the other person in consequence of
fear of injury or misconception, it will not amount to consent. Thus, it will
relate to the second parameter as enumerated in Section 375. The
circumstances described under Section 375 IPC have been enumerated with
an objective to make the definition as comprehensive as possible. As per
settled law while dealing with 'consent' the Courts have travelled beyond
provisions of IPC and it has also been held by Supreme Court that the
circumstances so enumerated can and do overlap. Thus to say that Section
90 can't be read into while dealing with case falling under Section 375 can't
be accepted.
22. From the careful analysis of the bare provisions of law and the
judicial precedents referred hereinabove, the position that emerges is :
(a) As per Section 114A of the Evidence Act in a prosecution for
rape where the question is whether sexual intercourse was with
or without the 'consent' of the prosecutrix and such prosecutrix
states in her evidence before the Court that she did not consent,
the Court shall presume that she did not consent.
(b) As per Section 146 of the Evidence Act in a prosecution for an
offence under of Section 376, [section 376-A, section 376-B,
section 376-C, section 376-D, section 376-DA, section 376-
DB] or section 376-E of the Indian Penal Code (45 of 1860) or
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for attempt to commit any such offence, where the question of
consent is an issue, it shall not be permissible to adduce
evidence or to put questions in the cross-examination of the
victim as to the general immoral character, or previous sexual
experience, of such victim with any person for proving such
consent or the quality of consent.
(c) The Courts have not merely gone by language of Section 90 to
conceptualize the dimensions of consent but have travelled a
wider field.
(d) The question of consent will arise only where the prosecutrix
has an option to say 'no'. In a situation where she has no option
but to submit, mere submission on her part will not constitute
'consent' and the case will fall within Section 375.
(e) Mere absence of physical resistance to the act cannot be
regarded as 'consent'.
(f) 'Submission' does not amount to 'consent' and the same is
further made clear from the reading of Explanation 2 appended
to Section 375 along with the proviso appended thereto.
FINDINGS:
23. When the facts of the present case are tested on the touchstone
of the aforesaid proposition of law, it is evident that it is a case of
'submission' on the part of the prosecutrix. Her silence or her caving in to
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the demands of the accused cannot be termed as consent. After going
through the WhatsApp chat, which is the most material evidence on record
related to the relationship between the parties, it is evident that the
prosecutrix was facing abusive relationship with Hardik. It throws light on
the incidents complained of.
24. As per Section 114A of the Indian Evidence Act, where the
prosecutrix denies her consent, the Court shall presume that she did not
consent. Counsels for the appellants submit that the statement of the
prosecutrix stands rebutted by the WhatsApp Chat available on the record.
Counsels for the appellants have read over selective portions of the
WhatsApp Chat to show and demonstrate the consent part of the
prosecutrix. Whole of the WhatsApp Chat on record needs to be read.
However, entire WhatsApp Chat (Exhibit PW-1/D) cannot be reproduced in
the judgment owing to the profane language used by accused Hardik. In
order to comprehend the fracturable state the victim was in on account of
barbarism she was facing at the hands of appellant-Hardik, some of the
chats are being reproduced here below :
25. Victim is being referred to as 'A'.
"25 Jan 3:43 pm - Hardik : Kha p hai
25 Jan 3:44 pm - 'A' : M not at home
25 Jan 3:44 pm - Hardik : kuu
25 Jan 3:45 pm - Hardik : ab mujhe pics chyaa
25 Jan 3:45 pm - Hardik : abhii
25 Jan 3:45 pm -'A' : Bahar hun
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25 Jan 3:45 pm - 'A' : Abhi possible nahi hai Hardik
25 Jan 3:45 pm : do din san h kuch nh kia
25 Jan 3:45 pm - Hardik : or abhi k abhi chya
25 Jan 3:45 pm - Hardik : possible jese marji kar
25 Jan 3:45 pm - 'A' : Abhi purine pics dekh ke kar lo
25 Jan 3:45 pm - Hardik : sb delete
25 Jan 3:45 pm - 'A' : I'll be bak home around 7
25 Jan 3:46 pm - Hardik : ab dubara nh boluga
25 Jan 3:46 pm - 'A' : Oho
25 Jan 3:46 pm - Hardik : mujhe abhii pics chya
25 Jan 3:46 pm - Hardik : jese marji kar
25 Jan 3:46 pm - 'A' : I'll try
25 Jan 3:46 pm - 'A' : But u will have to wait for a bit
25 Jan 3:46 pm - Hardik : naa naa
25 Jan 3:46 pm - 'A' : I'm in the car
25 Jan 3:46 pm - Hardik : do min wait kar sakta hu bas
25 Jan 3:47 pm - Hardik : only 2 mins bx
25 Jan 3:47 pm- 'A' : Half an hour pehle text kar dete
25 Jan 3:47 pm - 'A' : Abhi Thodi der pehle hi bahar nikali han
25 Jan 3:47 pm - Hardik : mene jb kia mrko ussi time kaam pura
chya
25 Jan 3:48 pm - Hardik : jada bxxxxx na maar
25 Jan 3:48 pm - 'A' : Gaadi mei hun
25 Jan 3:48 pm - 'A' : Kaise bheju
25 Jan 3:48 pm - Hardik : toh ma kyaa karu ab
25 Jan 3:48 pm - Hardik : tu dekh vo
25 Jan 3:49 pm - 'A' : Meri galti Thodi na hai
25 Jan 3:49 pm - 'A' : Pehle bolte na. Ache se karwa deti
25 Jan 3:49 pm - Hardik : o bxxxxx jo bol dia vo jaldi kar
25 Jan 3:49 pm - 'A' : Abhi possible nahi hai
25 Jan 3:49 pm - 'A' : I'll try
25 Jan 3:49 pm - Hardik : apni mxxxxx le tu
25 Jan 3:49 pm - Hardik : rxxxx
25 Jan 3:49 pm - Hardik : 2 min hone vale hai
25 Jan 3:49 pm - Hardik : uske baad trko ptaa hain kyaa ho sakta
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hai
25 Jan 3:49 pm - 'A' : Abhi porn dekh ke kar lo
25 Jan 3:50 pm - Hardik : hungamaa
25 Jan 3:50 pm - Hardik : gxxxxx tujhe bol diaa na
25 Jan 3:51 pm - 'A' : Yaar ab Hadh kar rahe ho
25 Jan 3:51 pm - Hardik : teri cxxx duga agle 2 min mein phle info
kar rhaa hu
25 Jan 3:51 pm - 'A' : Bahar hu
25 Jan 3:52 pm - Hardik : koi nh do min khatam hote dikhaa duga
25 Jan 3:53 pm - 'A' : Yaar aise mat karo pls
25 Jan 3:53 pm - 'A' : Out wid friends. Abhi drive pe nikle hai
25 Jan 3:53 pm - Hardik : 1 min rhee gyaa bua ab
25 Jan 3:53 pm - 'A' : Don't know if vr stopping or not
25 Jan 3:54 pm - Hardik : or bola hai hungama hoga matlb hoga
25 Jan 3:54 pm - 'A' : Aise mat karo pls
25 Jan 3:54 pm - Hardik : bas last 40 sec
25 Jan 3:54 pm - Hardik : i don't care rxxxxx
25 Jan 3:54 pm - 'A' : Hadh hoti hai. Kabhi to samjha karo
25 Jan 3:54 pm - Hardik : 30 sec
25 Jan 3:54 pm - 'A' : Hamesha apni manmani karte ho
25 Jan 3:54 pm - 'A' : Age wale ka kabhi nahi Dekhte ho
25 Jan 3:55 pm - Hardik : 25 sec
25 Jan 3:55 pm - 'A' : Kya Hungama karoge
25 Jan 3:55 pm - Hardik : Oooo rxxxxx tujhe bol dia ab nh sunuga
25 Jan 3:55 pm - Hardik : jo mera man kar gyaa ab vhii karuga
25 Jan 3:55 pm - 'A' : Tum pagal ho gaye ho
25 Jan 3:55 pm - 'A' : Pls control urself
25 Jan 3:55 pm - Hardik : 15 sec left
25 Jan 3:56 pm - Hardik : apni ma xxxx tu ab ..hungama strart
karne de□□
25 Jan 3:56 pm - Hardik : 9 sec left
25 Jan 3:56 pm - 'A' : Kya karoge
25 Jan 3:56 pm - Hardik : 8
25 Jan 3:56 pm - Hardik : 7
25 Jan 3:56 pm - 'A' : Don't u dare
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25 Jan 3:56 pm - Hardik : 6
25 Jan 3:56 pm - 'A' : Aunty ki kasam
25 Jan 3:56 pm - Hardik : 5
25 Jan 3:57 pm - 'A' : Uncle ki kasam
25 Jan 3:57 pm - Hardik : 4
25 Jan 3:57 pm - Hardik : 3
25 Jan 3:57 pm - 'A' : Beheno ki kasam
25 Jan 3:57 pm - Hardik : 2
25 Jan 3:57 pm - Hardik : 1
25 Jan 3:57 pm - Hardik : time over □□ nw
25 Jan 3:58 pm - Hardik : time note kar le aj ka or date ki mere sath
yeah hua tha yaad kario
25 Jan 3:58 pm - Hardik : ab offline jaa ke karne start
25 Jan 3:58 pm - 'A' : Yaar pls Kuch mat kama
25 Jan 3:59 pm - 'A' : Apne aap ko kabhi maaf nahi kar paoge
25 Jan 3:59 pm - Hardik : koi nh ab mujhe disturb mat kario phlee
bol rhaa hu
25 Jan 3:59 pm - 'A' : K
25 Jan 4:00 pm - Hardik : sajal n ambika
25 Jan 4:00 pm - Hardik : give her no ??
25 Jan 4:00 pm - Hardik : jaldii
25 Jan 4:01 pm - 'A' : Hardik no pls
25 Jan 4:01 pm - 'A' : I beg u
25 Jan 4:01 pm - 'A' : Ghar ke bahar hun. Kyun wait nahi kar skte
ho
25 Jan 4:02 pm - Hardik : number kisi or sa ku kya □
25 Jan 4:02 pm - Hardik : lu *
25 Jan 4:02 pm - 'A' : Hardik pls don't do this □
25 Jan 4:02 pm - Hardik : yaa apne ap de rhii hai
25 Jan 4:03 pm - 'A' : Ambika.vef ( file attached )
25 Jan 4:03 pm - 'A' : Don't do this I beg u
25 Jan 4:03 pm - Hardik : hmm good
25 Jan 4:03 pm - Hardik : fxxx u
25 Jan 4:03 pm - Hardik : bhot sun lia tera
25 Jan 4:03 pm - 'A' : Muh dikhane layak nahi chodoge"
39 of 73
other connected cases
XXXXXXX
"26 Jan 1:04 am - Hardik : Ooo
26 Jan 1:05 am - 'A' : Haanji
26 Jan 1:06 am - 'A' : Bolo
26 Jan 1:06 am - Hardik : tu layi hai. ??
26 Jan 1:06 am - 'A' : Nahi mil paya
26 Jan 1:06 am - Hardik : ab nh choduga □
26 Jan 1:06 am - Hardik : subha toh majak kar dia
26 Jan 1:06 am - 'A' : I don't want it yaar
26 Jan 1:07 am - Hardik : ab asli mei karuga
26 Jan 1:07 am - Hardik : xx had ho gyii
26 Jan 1:07 am - 'A' : Asli chees mei jab maza ata hai. duplicate
leke kya fayda
26 Jan 1:07 am - Hardik : bt i want that xx
26 Jan 1:07 am - Hardik : tu vo use kare
26 Jan 1:07 am - 'A' : Waise bhi I have that toothbrush which is
accurate for doing the job
26 Jan 1:08 am - 'A' : Tumhe chahiye tum le ao. Cus I don't want it pls
26 Jan 1:08 am - 'A' : I'm happy wid the real thing.
26 Jan 1:08 am Hardik : bxxx xx xxx sun
26 Jan 1:08 am - 'A' : Mujhe dildo ki zaroorat nahi hai
26 Jan 1:08 am - Hardik : aj oreder kar de or abhi
26 Jan 1:08 am - Hardik : phle bol rhaa hu
26 Jan 1:09 am - 'A' : I'll try
26 Jan 1:09 am - Hardik : try nh abhi order kar □ □
26 Jan 1:09 am - 'A' : College mei Kaise mangwaungi
26 Jan 1:10 am - Hardik : ab apni xxxx xxxx mujhe nh ptaa
26 Jan 1:10 am - Hardik : jese marji kar
26 Jan 1:10 am - Hardik : tune apne mu sa bola tha ghr jane do
pkaa laugi ab nh sunuga
26 Jan 1:10 am - 'A' : K
26 Jan 1:10 am - Hardik : abhi order kar
26 Jan 1:11 am - Hardik : trko bola hai kuch
26 Jan 1:11 am - Hardik : o rxxxx
40 of 73
other connected cases
26 Jan 1:12 am - 'A' : Kar hi rahi hun
26 Jan 1:12 am - Hardik : acha yeah btaa recharge ho sakta hai
26 Jan 1:12 am - 'A' : Abhi to nahi
26 Jan 1:12 am - Hardik : xx abhi msg aa gyan net ki mb 20 rhe gyi
26 Jan 1:12 am - 'A' : Then save that
26 Jan 1:13 am - 'A' : Kal karwa lena
26 Jan 1:13 am - Hardik : kar koi jugad
26 Jan 1:13 am - 'A' : Mai nahi karwa paungi
26 Jan 1:13 am - Hardik : abhi baat karni hai
26 Jan 1:13 am - 'A' : U try na
26 Jan 1:13 am - Hardik : kafi time ex sa baat ho rhi hai yrr
26 Jan 1:13 am - Hardik : time baad *
26 Jan 1:13 am - 'A' : Kis se ?
26 Jan 1:13 am - Hardik : plss kuch kar
26 Jan 1:13 am - 'A' : Oh
26 Jan 1:14 am - Hardik : aree my srs vali x gf
26 Jan 1:14 am - 'A' : Is time mushkil lag raha hai.
26 Jan 1:14 am - Hardik : yrr kar bhot jaruri hai
26 Jan 1:14 am - 'A' : Wifi nahi hai kya ?
26 Jan 1:14 am - Hardik : extra pese la kio
26 Jan 1:14 am - Hardik : xx wifi ki gxxx lagi padi hai
26 Jan 1:14 am - 'A' : Paiso ki baat nahi hai
26 Jan 1:15 am - 'A' : I can't access my account at this time
26 Jan 1:15 am - 'A' : Friend ko dobara Kaise bolun ?
26 Jan 1:15 am - Hardik : ab jo marji kar
26 Jan 1:15 am - Hardik : very imp
26 Jan 1:15 am - 'A' : Tum karo na koi jugad
26 Jan 1:16 am - 'A' : How much balance do u have on ur phone ?
26 Jan 1:16 am - Hardik : us time frnd ke usse thodi kraya tha
26 Jan 1:16 am - 'A' : Normal bal Kitna hai
26 Jan 1:16 am - Hardik : balance more imp
26 Jan 1:16 am - Hardik : 620
26 Jan 1:16 am - 'A' : Net ka chahiye na tumhe
26 Jan 1:16 am - Hardik : haaa
41 of 73
other connected cases
26 Jan 1:16 am - 'A' : Ye number type karo dialpad pe
26 Jan 1:17 am - Hardik : aree jo tu bol rhi hai vo nh kar sakta
26 Jan 1:17 am - Hardik : samja kar
26 Jan 1:17 am - 'A' : *112*6#
26 Jan 1:17 am - Hardik : yeah cheej mujhe ptaa hai
26 Jan 1:17 am - 'A' : 45 rs ka 150mb wala pack mil jaega
26 Jan 1:17 am - 'A' : Which stays for 7 days
26 Jan 1:18 am - 'A' : Ye kar wa lo
26 Jan 1:18 am - 'A' : Kal tumhara normal recharge karwa dungi
26 Jan 1:18 am - 'A' : Cus even I need to get a topup
26 Jan 1:18 am - 'A' : Abhi ke liye ye kar lo
26 Jan 1:19 am - Hardik : kal yaad sa kraio subha uthte hi
26 Jan 1:19 am - Hardik : plss
26 Jan 1:20 am - Hardik : net ka 253 vala
26 Jan 1:20 am - 'A': Ok. Subah jitni jaldi ho sake karwa dungi
26 Jan 1:20 am - 'A' : But abhi ke liye us number ko dial kar lo
26 Jan 1:20 am - 'A' : And balance le lo
26 Jan 1:21 am - Hardik : tu kya kar rhi hai
26 Jan 1:22 am - 'A' : Looking for a place to go and buy a cheap
dildo
26 Jan 1:31 am - Hardik : mujhe dikhaa jaldi
26 Jan 1:31 am - 'A' : Nahi mil raha
26 Jan 1:32 am - 'A' : Hai bhi to in palika bazar
26 Jan 1:32 am - Hardik : order kar abhii □□
26 Jan 1:32 am - 'A' : It's shameful to order such a thing
26 Jan 1:32 am - Hardik : mujhe nh ptaa yr
26 Jan 1:32 am - 'A' : Can't I just make one
26 Jan 1:32 am - Hardik : jo marji kar
26 Jan 1:32 am - 'A' : YouTube se dekh ke
26 Jan 1:32 am - Hardik : abhi order
26 Jan 1:32 am - Hardik : kar
26 Jan 1:33 am - 'A' : Kyun beizzati karwa na chahte ho meri
26 Jan 1:33 am - Hardik : bxxxxxx samj nh aata kyaa
26 Jan 1:33 am - 'A' : Nahi ata
26 Jan 1:33 am - 'A' : Cus I'm scared of ordering it to campus
42 of 73
other connected cases
26 Jan 1:33 am - Hardik : mxxxxxx aage mat bola kar aise □□
rxxxx
26 Jan 1:34 am - Hardik : abhi oreder kar mene bol dia na □□
26 Jan 1:34 am - 'A' : Cus gate pe sare packets check hote hai
26 Jan 1:34 am - 'A' : U order it na
26 Jan 1:34 am - 'A' : Itna insist kar rahe ho jab
26 Jan 1:34 am - Hardik : nh hote check uski apne xxxxx mein daal
lio do cheeje mangva le
26 Jan 1:34 am - Hardik : o bxxxxxxx faltu na bol mere aage btaa
rha ahu
26 Jan 1:34 am - Hardik : chup chap mangvaa le
26 Jan 1:35 am - 'A' : Subah kar lun ?
26 Jan 1:35 am - 'A' : Aram se check karne ke baad ?
26 Jan 1:35 am - Hardik : abhi kar bol diaa na tujhe
26 Jan 1:35 am - 'A' : Kar dungi na
26 Jan 1:36 am - Hardik : trko smaj nh aata kya be
26 Jan 1:36 am - Hardik : abhi bol dia na
26 Jan 1:36 am - 'A' : Doing it
26 Jan 1:36 am - 'A' : □
26 Jan 1:36 am - 'A' : Kaha phasa diya mujhe
26 Jan 1:37 am - Hardik : jaldi kar drame mat cxxx mere aage □□
26 Jan 1:41 am - Hardik : ??
26 Jan 1:42 am - 'A' : Yu making me do this
26 Jan 1:42 am - 'A' : They all r very expensive
26 Jan 1:42 am - Hardik : 'A' xx ab dubara nh boluga matlb nh
26 Jan 1 :42 am - Hardik : jaldi order kar le
26 Jan 1:42 am - 'A' : Problem kya hai tumhari
26 Jan 1:43 am - Hardik : teri mx xx xxxxx xx aage bol rhii hai phr
26 Jan 1:43 am - 'A' : I'm looking for a cheap one
26 Jan 1:43 am - Hardik : phr jaldi kar le na rxxx
26 Jan 1:47 am - Hardik : hui nh kyaa abhi tak □□
26 Jan 1:48 am - 'A' : Hold on
26 Jan 1:49 am - Hardik : haa
26 Jan 1:52 am - Hardik : ??
26 Jan 1:56 am - Hardik : xx khaa gyii ab tu
43 of 73
other connected cases
26 Jan 1:56 am - 'A' : Trying to order it only
26 Jan 1:58 am - Hardik : itna time thodi lagta hai □
26 Jan 1:58 am - 'A' : Cod wale mil hi nahi rahe hai
26 Jan 1:58 am - 'A' : Sare bank transfer wale hai
26 Jan 1:59 am - 'A' : And I can't use my card
26 Jan 1:59 am - Hardik : yrr jaldi kar jo kar rhi hai
26 Jan 1:59 am - Hardik : or jaldi dikhaa
26 Jan 1:59 am - Hardik : kon sa kia
26 Jan 1:59 am - 'A' : Nahi ho raha hai na
26 Jan 1:59 am - 'A' : Isliye bol rahi thi subah aram se kar dungi
26 Jan 1:59 am - Hardik : bxxxxx sun tera bhot drame ho gye
26 Jan 1:59 am - 'A' : Hadbadi mei nahi hota mujhse
26 Jan 1:59 am - 'A' : Kya drane
26 Jan 2:00 am - 'A' : Drame
26 Jan 2:00 am - 'A' : Harkate tum karo, aur kehte ho drama mai
kar rahi hun waah
26 Jan 2:00 am - Hardik : bxxxxxx subha tera baap aa ke karega
abhi b tune khud karna hai . baad mein b tune bxxxxxx jaldi kar le
26 Jan 2:00 am - Hardik : bxxxxxxx harkate aise bol rhi hai jese
tere ghr pa aa ke teri ma ko xxxx gyaa hu □□
26 Jan 2:00 am - 'A' : Mujhe maaf karo Jo Aap se behes karne baith
gayi
26 Jan 2:01 am - 'A' : Nahi. Shukar hai Ghar nahi aye
26 Jan 2:01 am - 'A' : But harkat wise I meant u getting after me to
buy a xxx toy
26 Jan 2:01 am - 'A' : When I'm telling u I dont need it
26 Jan 2:01 am - 'A' : Cus that toothbrush is a battery one. It
vibrates as well
26 Jan 2:02 am - Hardik : yrr sun mujhse itna baar baar nh bol
sakta jb ek baar bol dia na toh usse kar jb bol toh bil dia
26 Jan 2:02 am - 'A' : Does the same job
26 Jan 2:02 am - Hardik : kutte ki bachi
26 Jan 2:02 am - Hardik : sxxx kamini
26 Jan 2:02 am - 'A' : And it's free of cost. And is not shameful also
26 Jan 2:02 am - 'A' : Haan hun mai kamini
26 Jan 2:02 am - Hardik : rxxxx ki pilli
26 Jan 2:02 am - 'A' : Mujhe apne izzat ki padi hai
44 of 73
other connected cases
26 Jan 2:03 am - Hardik : ku mera mu kharab kraa rhi hai
26 Jan 2:03 am - Hardik : baar baar gaila bulva ke
26 Jan 2:03 am - 'A' : Mat karo.na kharan
26 Jan 2:03 am - 'A' : Kharab
26 Jan 2:03 am - Hardik : teri xx xxxx duga ab
26 Jan 2:03 am - 'A' : Don't talk only
26 Jan 2:03 am - Hardik : last baat puchuga kasam sa aj xx bhot ho
gyaaa
26 Jan 2:03 am - 'A' : Hardik pls meri baat dhyaan se suno aur
samajhne ki koshish karo
26 Jan 2:04 am - Hardik : order abhi kar rhi hai yaa nh? or sahi btaa
rhaa hu aj soch samj ke naa kario ma kuch nh sunuga sahi bol rhaa
hu
26 Jan 2:04 am - 'A' : U said use that brush instead of xxxxxx. I
did. That brush works on battery, it also vibrates
26 Jan 2:04 am - Hardik : bes aj subha tune bhot badi gxxxxx
harkat kar chuki hai
26 Jan 2:05 am - 'A' : Subah kya kiya maine aisa
26 Jan 2:05 am - Hardik : jo pucha hai uska jwab de jaldii □□
26 Jan 2:05 am - 'A' : Jo abhi tak wahi baat leke baithe hue ho
26 Jan 2:05 am - 'A' : No I have not managed to order it till now
Cus now where r they giving the option of cash on delivery
26 Jan 2:06 am - Hardik : trko sabak sikhana hoga jb manegi tu
mxxx xxxx teri ab apni ka xxxxx tu
26 Jan 2:06 am - 'A' : Sirf bank transfer ka option aa raha hai. And
card mai use nahi kar sakti for ordering this
26 Jan 2:06 am - 'A' : Cus message sidhe mom ke phone pe jata hai
26 Jan 2:06 am - Hardik : kal order hua hona chyaa ma itnaa bol
rhaa hu
26 Jan 2:07 am - 'A' : Aur Kitna sabak sikhana chahte ho de
26 Jan 2:07 am - Hardik : mrko uski info ki pic screen ahot chya
26 Jan 2:07 am - Hardik : ki bua rxxxx na order kar dia hai
26 Jan 2:07 am - Hardik : bas isse jada time nh de sakta
26 Jan 2:07 am - 'A' : Can I normally ask u something
26 Jan 2:08 am - Hardik : ab bol dia na
26 Jan 2:08 am - 'A' : Haan I know bol diya
26 Jan 2:08 am - 'A' : But I just wanna know one thing.
45 of 73
other connected cases
26 Jan 2:09 am - Hardik : tune oreder kamna hai bas jo bol dia bol
dia
26 Jan 2:09 am - 'A' : Dildo hi kyun
26 Jan 2:09 am - 'A' : Jab asli chees se Khush hu
26 Jan 2:09 am - 'A' : Then y buy an artificial one
26 Jan 2:09 am - Hardik : kutte ki bachi abhi tune kyaa bola tha
subha pkaa
26 Jan 2:10 am - Hardik : ab phr apni mx xxxxxx rhi hai
26 Jan 2:10 am - 'A' : Haan subah dekh lungi
26 Jan 2:10 am - Hardik : dekh subha tak ka time da dia hai
26 Jan 2:10 am - 'A' : But kyun kar rahe ho aise
26 Jan 2:10 am - 'A' : Kyun chahiye
26 Jan 2:10 am - Hardik : agar kar dia toh good for u only nh kia
bad ka b ptaa lag jayga
26 Jan 2:10 am - Hardik : ab na bolio kuch
26 Jan 2:10 am - 'A' : I mean Wat is the need
26 Jan 2:11 am - 'A' : I'll do it. Cus I dont want u to do anything
wrong
XXXXX
27 Jan 4:08 pm 'A' : They r saying ki teen din mei hi mil sakta hai
aapko, cod option hai na
27 Jan 4:09 pm - 'A' : Not online payment
27 Jan 4:09 pm - 'A' : Friday ko kar lena wo kaam
27 Jan 4:11 pm - Hardik : mx xx xxxxx teri
27 Jan 4:11 pm - Hardik : mujhe nh ptaa
27 Jan 4:11 pm - 'A' : Kya hai ab
27 Jan 4:12 pm - 'A' : Ek to pehle hadbadi mei mangwaya
27 Jan 4:12 pm - 'A' : Courier service hai, helicopter nahi hai Jo aaj
bolun to aaj hi deliver ho jaye
27 Jan 4:12 pm - 'A' : *courier service nahi hai
27 Jan 4:13 pm - Hardik : mujhe nh ptaa
27 Jan 4:13 pm - Hardik : thursday matlb thursday
27 Jan 4:13 pm - 'A' : U know I can't pay online
27 Jan 4:13 pm - 'A' : They said sorry
27 Jan 4:13 pm - Hardik : friday sa late aaya phr dekh lio tu
46 of 73
other connected cases
27 Jan 4:13 pm - Hardik : rxxxx
27 Jan 4:13 pm - 'A' : It will take three days
27 Jan 4:13 pm - Hardik : ab jo kaam bola hai vo kar tu
27 Jan 4:13 pm - Hardik : rxxxx
27 Jan 4:13 pm- 'A' : Friday ko aa jaega
27 Jan 4:13 pm - Hardik : rxxxxx
27 Jan 4:14 pm - 'A' : Haan isliye to washroom mei hun
27 Jan 4:14 pm - 'A' : Doing ur work only
27 Jan 4:17 pm - Hardik : bhj naa
27 Jan 4:17 pm - Hardik : rxxxxx
27 Jan 4:17 pm - 'A' : Sending
27 Jan 4:17 pm - Hardik : itnii der lagti hai kyaa kutte ki bachi
27 Jan 4:17 pm - 'A' : Washroom bhi na use karun ab
27 Jan 4:17 pm - 'A' : Ruk jao
27 Jan 4:19 pm - Hardik : bhj yrr
27 Jan 4:19 pm - Hardik : clear bhj le bxxxxxxx
27 Jan 4:25 pm - 'A' : Kaha gaye
27 Jan 4:25 pm - Hardik : thanku □
27 Jan 4:25 pm - 'A' : Who is it ?
27 Jan 4:25 pm - 'A' : Hardik thank u for Wat ?
27 Jan 4:26 pm - 'A' : Wat r u doing ???
27 Jan 4:26 pm - 'A' : I hate u for doing this
27 Jan 4:27 pm - 'A' : Hardik ??
27 Jan 4:27 pm - 'A' : Pls stop this joke
27 Jan 4:28 pm - 'A' : Hello ?
27 Jan 4:31 pm - 'A' : Kaha gaye ?
27 Jan 4:32 pm - 'A' : Dude pls stop this
27 Jan 4:32 pm - 'A' : It's freaking me out now
27 Jan 4:32 pm- 'A' : I'm going offline. Bye. Since ut not interested
27 Jan 4:32 pm- 'A' : Ur
27 Jan 4:39 pm - 'A' : □
27 Jan 4:58 pm - Hardik : fxxx u
27 Jan 4:58 pm - 'A' : Yaar pls
27 Jan 4:58 pm- 'A' . Normally tumhara itna jaldi. Kabhi nahi hota
hai.
47 of 73
other connected cases
27 Jan 4:59 pm - 'A' : Then to receive that thank u, made me feel as
if someone else texted me from ur phone
27 Jan 4:59 pm - Hardik : hahahah majja aaya
27 Jan 4:59 pm - 'A' : Ya pata nahi tum kya kar rahe ho
27 Jan 4:59 pm - Hardik : chal ab next time dhyan rakhio
27 Jan 5:00 pm - 'A' : Did someone actually c them ?
27 Jan 5:00 pm - 'A' : Cus dildo ki baat bhi kar raha tha wo
27 Jan 5:00 pm - Hardik : i don't no □□
27 Jan 5:00 pm - 'A' : Hardik stop ot
27 Jan 5:00 pm - 'A' : It
27 Jan 5:00 pm - 'A' : I know ur trying to test me again and again
27 Jan 5:00 pm - 'A' : But to be frank I can't take it anymore
27 Jan 5:01 pm - Hardik : lol u will
27 Jan 5:01 pm - Hardik : □□
27 Jan 5:01 pm - 'A' : Hardik pls stop it
27 Jan 5:01 pm - 'A' : Itni gaaliyan dena achi baat nahi hai
27 Jan 5:02 pm- 'A' : Nahi chahiye
27 Jan 5:02 pm - 'A' : □
27 Jan 5:02 pm- 'A' : But Aap pls shaant ho jao
28 Jan 5:57 pm - 'A' : R u done ?
28 Jan 5:58 pm - 'A' : Now can tell me tum hi baat kar rahe the na
mere se ?
28 Jan 6:00 pm - 'A' : And hardik if ur done can I pls go?
XXXXX
28 Jan 8:12 pm - 'A' : U saying stuff like video bana liya kisi aur
ne. Jab ki I never gave a bxxx xxx to anyone else before
chandigarh, and after v had sex in the washroom
28 Jan 8:12 pm - 'A' : And then someone else texts me from ur
phone
28 Jan 8:13 pm - 'A' : Ab to ye jaan na bhi mushkil hai if I'm
actually talking to u or not
28 Jan 8:13 pm - Hardik : bhadak na kar ab
28 Jan 8:13 pm - Hardik : i m only talking
28 Jan 8:13 pm - 'A' : Haan I know that it's u abhi
28 Jan 8:13 pm - 'A' : But pehle ka bol rahi hun
48 of 73
other connected cases
28 Jan 8:14 pm - Hardik : baa phle b i was
28 Jan 8:14 pm - 'A' : Were u testing me ?
28 Jan 8:14 pm - Hardik : ab vo sb chod
28 Jan 8:14 pm - Hardik : ek xxxx si pose bnaa
28 Jan 8:15 pm - 'A' : Bana dungi. Bas Ek baar bata do if u were
testing me or not
28 Jan 8:16 pm - 'A' : Mai Ek baar to kya hazar baar bolne ko aur
karke dikhane ko taiyar hun that I won't have xxx wid anyone else
other than u
28 Jan 8:16 pm - Hardik : jaldi bhj
28 Jan 8:16 pm - Hardik : phr bxxxxxxx khatam kar apni"
XXXXX
"28 Jan 8:32 pm- 'A' : Aur Mai pehle bol rahi hun, koi video nahi
banega
28 Jan 8:33 pm Hardik : or ma phle bol rhaa hu sxxxxx karte hue
bnavani padegi
28 Jan 8:33 pm - 'A' : Kyun
28 Jan 8:33 pm - 'A' : Kya zaroorat hai
28 Jan 8:33 pm - Hardik : mera man hai
28 Jan 8:33 pm - 'A' : Kyun phasana chahte ho mujhe"
XXXXXXX
"28 Jan 8:46 pm - 'A' : Can I go for dinner now ?
28 Jan 8:46 pm - Hardik : nops
28 Jan 8:46 pm - Hardik : 9.30 jaio
28 Jan 8:46 pm - 'A' : Ohk
28 Jan 8:47 pm - Hardik : chal ab bhj
28 Jan 8:48 pm - 'A' : Abhi ?
28 Jan 8:48 pm - Hardik : haa
28 Jan 8:48 pm - Hardik : puri nude ho jaa
28 Jan 8:48 pm - 'A' : Ambika room mei aa rahi hai, garima ko leke
dinner karne jacgi.
28 Jan 8:48 pm - Hardik : heater le jaa andar
28 Jan 8:48 pm - 'A' : Can u wait for 5 mins ?
28 Jan 8:48 pm - Hardik : noo
49 of 73
other connected cases
28 Jan 8:48 pm - Hardik : go fast
28 Jan 8:48 pm - 'A' : Ohk
28 Jan 8:48 pm - Hardik : heater le jaa"
XXXXX
"28 Jan 9:30 pm - 'A' : Can I go now?
28 Jan 9:40 pm - 'A' : ?
28 Jan 9:57 pm - Hardik : kha p hai
28 Jan 9:57 pm - 'A' : Room
28 Jan 9:58 pm - 'A' : Will go out now. If u allow
28 Jan 10:00 pm - 'A' : So can I goC
28 Jan 10:00 pm - 'A' : Go ?
28 Jan 10:01 pm - 'A' : Ambika Bula rahi hai.
28 Jan 10:02 pm - Hardik : jaldi ayio
28 Jan 10:03 pm - 'A' : Kab tak?
28 Jan 10:03 pm - 'A' : 12 pls ?
28 Jan 10:03 pm 'A' : Thoda friends ke saath time spend karna
chahti hu
28 Jan 10:03 pm - Hardik : haa
28 Jan 10:03 pm - 'A' : Ohk
28 Jan 11:17 pm - 'A' : Can I come bak a Lil later ?
28 Jan 11:17 pm - 'A' : Around 12:30
28 Jan 11:17 pm - 'A' : ?
28 Jan 11:17 pm - Hardik : khaa jaa rhi hai ab
28 Jan 11:18 pm - 'A' : Bahar hi hun
28 Jan 11:19 pm - 'A' : So asking if I can come bak around 12
28 Jan 11:19 pm - 'A' : 1 baje tak I shall be in my room waiting
28 Jan 11:20 pm - Hardik : bxxx xx xxxx chup chaap room hole
28 Jan 11:20 pm - 'A' : Abhi ?
28 Jan 11:20 pm - Hardik : haa abhii
28 Jan 11:20 pm - 'A' : 12 baje aa jaungi
28 Jan 11:20 pm - 'A' : Aapne pehke kaha tha ok for 12
28 Jan 11:20 pm - Hardik : jaldii room phoch jaaa
28 Jan 11:20 pm - 'A' : Thodi der aur pls
50 of 73
other connected cases
28 Jan 11:20 pm - Hardik : ab ho gyaa mood change
28 Jan 11:20 pm - Hardik : jaldii room
28 Jan 11:20 pm - 'A' : Acha ok
28 Jan 11:20 pm - Hardik : ab dubara nh boluga
28 Jan 11:20 pm - 'A' : Ok
28 Jan 11:21 pm - Hardik : rxxxx sali phle 12 bolti hai phr 12:30
phr 12:45 be pagal hu kya ab xxxx mraa or room phoch jaa
28 Jan 11:22 pm - 'A' : Maine 12:30 ka bola tha
28 Jan 11:22 pm- 'A' : That by that time I'll be bak
28 Jan 11:23 pm- Hardik : msg dekh upar apna 1 tak phoch gyii tu
rxxxx
28 Jan 11:23 pm - 'A' : Uske baad u will find me free only
28 Jan 11:23 pm - 'A' : I said I tak I'll be free waiting in room
28 Jan 11:23 pm - Hardik : naa naa vo toh abhi b free hona padega
28 Jan 11:23 pm - 'A' : Ohk. going baj
28 Jan 11:23 pm - 'A' : Bak
28 Jan 11:23 pm - Hardik : jaldii room phoch jaa rxxxxx
28 Jan 11:23 pm - 'A' : Haan bye to bolne do
28 Jan 11:24 pm - 'A' : Ja hi rahi hun
28 Jan 11:24 pm - Hardik : o xx abhi tak room nh phochi tu
28 Jan 11:24 pm - 'A' : Wo niche hi the
28 Jan 11:24 pm - 'A' : Almost reached
28 Jan 11:24 pm - Hardik : jaldii bhag
28 Jan 11:25 pm - 'A' : Running only
28 Jan 11:25 pm - Hardik : bhag le ooo rxxxxx
28 Jan 11:25 pm - 'A' : Reached
28 Jan 11:26 pm - 'A' : Saans lene do do min pls
28 Jan 11:26 pm - 'A' : Pani pi lun ?
28 Jan 11:26 pm - Hardik : hupp
28 Jan 11:26 pm - Hardik : rxxxxx
28 Jan 11:26 pm - Hardik : jhothi
28 Jan 11:27 pm - 'A' : Seriously having water
28 Jan 11:27 pm - 'A' : Was thirsty
28 Jan 11:27 pm - Hardik : abhi dikhaaa pani pite hue pic
28 Jan 11:27 pm - Hardik : jaldii dikhaaa
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28 Jan 11:27 pm - Hardik : bxxx xx xxxx
28 Jan 11:28 pm - 'A' : Camera kholne me time lagta hai
28 Jan 11:28 pm - 'A' : I'm not lying.
28 Jan 11:28 pm - Hardik : aree oo gxxxxxx
28 Jan 11:28 pm - 'A' : Pehle bhi pani pi rahi thi aur ab bhi
28 Jan 11:28 pm - Hardik : kam jhoth bola kar
28 Jan 11:29 pm - 'A' : I'm not lying m serious
28 Jan 11:29 pm - Hardik : haa bas thk hai room bath
28 Jan 11:29 pm - 'A' : ?
28 Jan 11:29 pm - 'A' : Kya
28 Jan 11:29 pm- Hardik : yahi punishment th
28 Jan 11:29 pm - Hardik : ab kahi nh jana tune
28 Jan 11:29 pm - 'A' : Na. Bas water dispenser tak jaungi, in a
while to get hot water
28 Jan 11:30 pm - 'A' : And have coffee
28 Jan 11:30 pm - Hardik : coffee ?
28 Jan 11:30 pm - 'A' : Hmm
28 Jan 11:30 pm - Hardik : khaa p
28 Jan 11:31 pm - 'A' : Room mei
28 Jan 11:31 pm - Hardik : haa good
28 Jan 11:31 pm - 'A' : Coffee sachet pada ha
28 Jan 11:31 pm - Hardik : chal byee ab"
XXXXXXX
"29 Jan 12:45 am - Hardik : khap hai
29 Jan 12:45 am - 'A' : Room. Aur kaha hongi
29 Jan 12:48 am - 'A' : Razai ke andar hun, laptop use kar rahi hu
29 Jan 12:48 am - Hardik : pic
29 Jan 12:48 am - Hardik : fast
29 Jan 3:29 am - Hardik : aoo
29 Jan 3:29 am - 'A' : Haanji
29 Jan 3:44 am - 'A' : Hardik pls mat likhwao
29 Jan 3:44 am - 'A' : I beg u
29 Jan 3:44 am - 'A' : I'm serious I was not talking to anyone after
ur last text at 12:51
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29 Jan 3:45 am - 'A' : Khud dekh lo
29 Jan 3:45 am - 'A' : Mai kasam se jhooth nahi bol rahi thi
29 Jan 3:45 am - 'A' : Aur nahi lena hai mujhe kisi ka bhi xxxx
29 Jan 3:48 am - Hardik : xxxx gyii ab toh
29 Jan 3:48 am - 'A' : Yaar pls don't do this
29 Jan 3:48 am - Hardik : hahahahah
29 Jan 3:48 am - Hardik : xxxx u
29 Jan 3:48 am - Hardik : rxxxx
29 Jan 3:48 am - 'A' : Haath jod rahi hun aisa mat karo
29 Jan 3:49 am - 'A' : Cus I'm not lying. I was asleep. Laptop gir
gaya tha, usko uthake table pe rakh rahi thi, aapka text aya and I
replied
29 Jan 3:49 am - 'A' : Cus I was up
29 Jan 3:49 am - Hardik : chup ho jaa
29 Jan 3:49 am - 'A' : Before that I was sleeping, if I was not then
the laptop wud not have fallen down from the bed
29 Jan 3:49 am - Hardik : ab toh ho gyaa
29 Jan 3:50 am - 'A' : Yaar aise mat karo pls
29 Jan 3:50 am - 'A' : □□
29 Jan 3:50 am - 'A' : I beg u
29 Jan 3:51 am - 'A' : But maine koi galti nahi kari hai. I was
sleeping. Sach me
29 Jan 3:51 am - Hardik : rxxxx mein rxxxx 'A' rxxxx
29 Jan 3:51 am - 'A' : Ab mai Kaise samjhaun aapko
29 Jan 3:52 am - 'A' : Aise mat karo pls
29 Jan 3:53 am - 'A' : Tum Jo kehte ho sab karti hun. Kyun aise kar
rahe ho
29 Jan 3:54 am - 'A' : Pls mat karo aise
29 Jan 3:54 am - 'A' : I beg u
29 Jan 3:54 am - Hardik : so jaa tu
29 Jan 3:54 am - 'A' : Ohk.
29 Jan 3:55 am - 'A' : But pls Kuch mat karna
29 Jan 3:55 am - Hardik : ho gyaaa
29 Jan 3:55 am - Hardik : ab
29 Jan 3:55 am - 'A' : Yaar pls mat karo aise
29 Jan 3:55 am - 'A' : Tell him to delete it
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29 Jan 3:55 am - 'A' : Kaunse page pe likha hai tell me
29 Jan 3:56 am - Hardik : hahahah
29 Jan 3:56 am - Hardik : xxxx u
29 Jan 3:56 am - 'A' : Yaar pls
29 Jan 3:56 am - 'A' : Batao
29 Jan 3:56 am - 'A' : Ek Haanji ki itni badi saza kyun de rahe ho
29 Jan 3:57 am - 'A' : I seriously was asleep
29 Jan 4:06 am - Hardik : cxxx gyii teri xxx ab
29 Jan 4:06 am - 'A' : Yaar pls mat karo aise
29 Jan 4:06 am - 'A' : Kaha kara hai post. Aur kyun
29 Jan 4:06 am - 'A' : Kya bigada hai maine aapka
29 Jan 12:07 pm - Hardik : Kitni galia khayi ratko
29 Jan 1:23 pm - 'A' : Bohot zyada
29 Jan 1:24 pm - Hardik : good
29 Jan 1:31 pm - Hardik : teri videos dekh rhaa tha
29 Jan 1:42 pm - 'A' : But Kuch post to nahi kara tha na
confessions page pe
29 Jan 1:42 pm - 'A' : Aur Daaru pi Rakhi thi kya aapne ?
29 Jan 3:18 pm - Hardik : ptaa nh
29 Jan 3:24 pm - 'A' : Kya pata nahi ?
29 Jan 3:29 pm - Hardik : hua ta nh.
29 Jan 3:29 pm - Hardik : yaa *
29 Jan 3:32 pm - 'A' : Yaar pls find out if u have done it or not
29 Jan 3:33 pm - 'A' : If yes pls get it deleted
29 Jan 3:33 pm - 'A' : Pls I beg u □
29 Jan 3:33 pm - Hardik : ruk dekhta hu
29 Jan 3:33 pm - 'A' : Hmm
29 Jan 3:36 pm - Hardik : call kar
29 Jan 4:17 pm - Hardik : Ooo gxxxxxx
29 Jan 4:20 pm - 'A' : Net issues.
29 Jan 4:20 pm - Hardik : poses bnaaa
29 Jan 4:20 pm - 'A' : With clothes ?
29 Jan 4:20 pm - 'A' : Without
29 Jan 4:20 pm - Hardik : jaldii utar
29 Jan 4:20 pm - 'A' : Kk
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29 Jan 4:20 pm - Hardik : kapde
29 Jan 4:21 pm - Hardik : mat bhjio ab
29 Jan 4:21 pm - 'A' : Ab kya hua
29 Jan 4:22 pm - Hardik : call kar
29 Jan 4:27 pm - 'A' : Mai is state mei Hun abhi
29 Jan 4:28 pm - 'A' : I told u I took my top and sweater off
29 Jan 4:28 pm - 'A' : M sweating away. Saans phool rahi hai meri
29 Jan 4:29 pm - 'A' : Khada nahi hua ja raha hai dhang se
29 Jan 4:29 pm - 'A' : Bohot thak gayi hu
29 Jan 4:29 pm - Hardik : dekh le screen shot
29 Jan 4:29 pm - 'A' : Yaar pls mat karo aise
29 Jan 4:29 pm - Hardik : tu soch rhi th cxxxxxxx bnaa rhaa tha
29 Jan 4:30 pm - Hardik : vo saari pics ko ikatha kar rhaa tha
29 Jan 4:30 pm - 'A' : Yaar pls mat karo aise
29 Jan 4:30 pm - 'A' : Pls meri aur mxx xxx xxxxx
29 Jan 4:30 pm - Hardik : ku nh manni baat
29 Jan 4:30 pm - 'A' : xxxxx xxxx rahi hai meri ab aur bhi zyada
29 Jan 4:30 pm - Hardik : bola tha 10 ginuga
29 Jan 4:30 pm - Hardik : so nw enjoy ur confesion
29 Jan 4:31 pm - 'A' : Yaar Aap samajh ne ki koshish to karo. Mere
mei itna bhagne ki himmat nahi hai
29 Jan 4:31 pm - 'A' : Yaar pls don't do this."
XXXXXX
26. A composite reading of the whole chat reveals that the
prosecutrix was at command of Hardik. He used to blackmail her. At
times, she had to seek his permission even for having dinner or even to
drink water. The incidents pertaining to their visit to Ethnic Resort and the
occurrence at Chandigarh stand proved by their WhatsApp chat. The fact
that she was videographed while performing oral sex at Chandigarh also
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stands corroborated. She was forced to buy a sex toy. Time and again she
was being threatened with publishing her intimate/obscene pictures,
hungama, "mooh dikhane ke layak nahi chhodunga". Reference can be
made to following chats :-
Sr. Date Time Inference
No.
1 25 January 3:45 pm to 4:09 pm Hardik used to ask victim to do
28 January 8:45 pm to 9:03 pm crazy things like:
28 January 9:30 pm to 11:48 pm
a) Run around the campus
29 January 12:07 pm to 4:31 pm
a) To eat, drink, move only
31 January 11:14 pm to 11:49 pm
when permitted
16 February 11:40 pm upto 17 Feb
12:15 am
2 26 January 1:22 am upto 10:34 am Forced to buy a sex toy
01 February 12:46 am to 1:00 am
3 28 January 8:23 pm to 8:28 pm Ethnic Resort
7 February 7:16 pm to 10:26 pm
4 16 February 11:24 pm to 11:25 pm Threats to ruin the life of victim
27 February 9:09 pm to 11:18 pm
5 March 11:21 am to 11:29 am
27. Reading of the whole chat demonstrates the bawdiness with
which the prosecutrix was treated by Hardik. She was not only abused and
bruised but was denied even basic dignity to which a living creature is
entitled to, leave aside the courtesy and compassion that a human being
offers to a fellow. It is evident from the chat that the prosecutrix was in a
quagmire. She was noosed and the dilemma that she was facing was not
only to keep the noose loose but also to conceal it. Whole of the time she
was carrying the burden of the diabolical designs of the accused. Even her
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mother was not spared and the victim had to hear abuses qua her mother as
well. Any resistance on part of the prosecutrix was chewed-out by the
accused Hardik even more severely. In such a situation it can't be said that
she was a consenting party. Counsels for the appellants have unanimously
attacked the statement of the prosecutrix submitting that :-
(a) She kept on improving her version from the very first
complaint i.e. Ex.D1 submitted by the father of the prosecutrix
then to her complaint Ex.PW1/A, then to the statement under
Section 164 Cr.P.C. and then to statement before police under
Section 161 Cr.P.C. and to the ultimate version put-forth by her
before the Court.
(b) It has been claimed that the WhatsApp chats brought on record
were selective and, thus, could not have been read into.
(c) There are major discrepancies in the version of the prosecutrix
and the versions of the other witnesses.
(d) The delay in rebutting the incident is fatal to the stand of
prosecutrix.
28. So far as improvement in version of the prosecutrix is
concerned, Counsels for the appellants are wrong. Trite it is that FIR is not
the encyclopedia which must contain all facts and details. Question is
whether alleged improvement amounts to change in version or it is detail of
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what was said initially. Does it contradict the earlier version? Whether the
version put-forth by the prosecutrix before the Trial Court got corroborated
or stands contradicted by other evidence on record ?
29. Counsels for the appellants have time and again referred to the
chats of the prosecutrix with other boys to put the victim in dock. As per
settled law, merely because victim is alleged to be a woman of easy virtue,
her testimony cannot be discarded. She has a right to protect her dignity.
30. From the conjoint reading of the testimony of the prosecutrix
before the Trial Court and the WhatsApp chat, the version of the
prosecutrix gets fully corroborated. She comes out to be a person who may
be termed as an open and extrovert but definitely can't be said to be a
fibster. Apex Court in Bharvada Gohinbhai Hirjibhai vs. State of
Gujarat, (1983) 3 SCC 217 held that -
"9. In the Indian setting, refusal to act on the testimony of
a victim of sexual assault in the absence of corroboration as a
rule, is adding insult to injury. Why should the evidence of the
girl or the woman who complains of rape or sexual
molestation be viewed with the aid of spectacles fitted with
lenses tinged with doubt, disbelief or suspicion ? To do so is to
justify the charge of male chauvinism in a male dominated
society. We must analyze the argument in support of the need
for corroboration and subject it to relentless and remorseless
cross-examination. And we must do so with a logical, and not
an opiniated, eye in the light of probabilities with our feet
firmly planted on the soil of India and with our eyes focussed
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on the Indian horizon. We must not be swept off the feet by the
approach made in the Western World which has its own social
mileu, its own social mores, its own permissive values, and its
own code of life. Corroboration may be considered essential
to establish a sexual offence in the backdrop of the social
ecology of the Western World. It is wholly unnecessary to
import the said concept on a turn-key basis and to transplate
it on the Indian soil regardless of the altogether different
atmosphere, attitudes, mores, responses of the Indian Society,
and its profile. The identities of the two worlds are different.
The solution of problems cannot therefore be identical. It is
conceivable in the Western Society that a female may level
false accusation as regards sexual molestation against a male
for several reasons such as:
(1) The female may be a 'gold digger' and may well have
an economic motive to extract money by holding out the gun
of prosecution or public exposure.
(2) She may be suffering from psychological neurosis and
may seek an escape from the neurotic prison by phantasizing
or imagining a situation where she is desired, wanted, and
chased by males.
(3) She may want to wreak vengence on the male for real
or imaginary wrongs. She may have a grudge against a
particular male, or males in general, and may have the design
to square the account.
(4) She may have been induced to do so in consideration of
economic rewards, by a person interested in placing the
accused in a compromising or embarassing position, on
account of personal or political vendatta.
(5) She may do so to gain notoriety or publicity or to
appease her own ego or to satisfy her feeling of self-
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importance in the context of her inferiority complex.
(6) She may do so on account of jealousy.
(7) She may do so to win sympathy of others.
(8) She may do so upon being repulsed.
10. By and large these factors are not relevant to India,
and the Indian conditions. Without the fear of making too wide
a statements or of overstating the case, it can be said that
rarely will a girl or a woman in India make false allegations
of sexual assault on account of any such factor as has been
just enlisted. The statement is generally true in the context of
the urban as also rural Society. It is also by and large true in
the context of the sophisticated, not so sophisticated, and
unsophisticated society. Only very rarely can one conceivably
come across an exception or two and that too possibly from
amongst the urban elites. Because: (1) A girl or a woman in
the tradition bound non- permissive Society of India would be
extremely reluctant even to admit that any incident which is
likely to reflect on her chastity had ever occurred. (2) She
would be conscious of the danger of being ostracised by the
Society or being looked down by the Society including by her
own family members, relatives, friends and neighbours. (3)
She would have to brave the whole world. (4) She would face
the risk of losing the love and respect of her own husband and
near relatives, and of her matrimonial home and happiness
being shattered. (5) If she is unmarried, she would apprehend
that it would be difficult to secure an alliance with a suitable
match from a respectable or an acceptable family. (6) It would
almost inevitably and almost invariably result in mental
torture and suffering to herself. (7) The fear of being taunted
by others will always haunt her. (8) She would feel extremely
embarrassed in relating the incident to others being over
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powered by a feeling of shame on account of the upbringing in
a tradition bound society where by and large sex is taboo. (9)
The natural inclination would be to avoid giving publicity to
the incident lest the family name and family honour is brought
into controversy. (10) The parents of an unmarried girl as also
the husband and members of the husband's family of a
married woman would also more often than not, want to avoid
publicity on account of the fear of social stigma on the family
name and family honour. (11) The fear of the victim herself
being considered to be promiscuous or in some way
responsible for the incident regardless of her innocence. (12)
The reluctance to face interrogation by the investigating
agency, to face the court, to face the cross examination by
Counsel for the culprit, and the risk of being disbelieved, acts
as a deterrent".
31. While examining case under Section 375 IPC after
incorporation of Section 114-A in the Evidence Act by Act No.43 of 1983,
Supreme Court in the case titled as State of Maharashtra vs.
Chandraprakash Kewalchand Jain, (1990)1 SCC 550 observed as
under :-
"15. It is necessary at the outset to state what the approach of
the court should be while evaluating the prosecution
evidence, particularly the evidence of the prosecutrix, in sex
offences. It is essential that the evidence of the prosecutrix
should be corroborated in material particulars before the
court bases a conviction on her testimony? Does the rule of
prudence demand that in all cases save the rarest of rare the
court should look for corroboration before acting on the
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evidence of the prosecutrix ? Let us see if the Evidence Act
provides the clue. Under the said statute 'Evidence' means
and includes all statements which the court permits or
requires to be made before it by witnesses, in relation to the
matters of fact under inquiry. Under Section 59 all facts,
except the contents of documents, may be proved by oral
evidence. Section 118 then tells us who may give oral
evidence. According to that section all persons are competent
to testify unless the court considers that they are prevented
from understanding the questions put to them, or from giving
rational answers to those questions, by tender years, extreme
old age, disease, whether of body or mind, or any other cause
of the same kind. Even in the case of an accomplice Section
133 provides that he shall be a competent witness against an
accused person; and a conviction is not illegal merely
because it proceeds upon the uncorroborated testimony of an
accomplice. However, illustration (b) to Section 114, which
lays down a rule of practice, says that the court 'may'
presume that an accomplice is unworthy of credit, unless he is
corroborated in material particulars. Thus under Section 133,
which lays down a rule of law, an accomplice is a competent
witness and a conviction based solely on his uncorroborated
evidence is not illegal although in view of Section 114,
illustration (b), courts do not as a matter of practice do so
and look for corroboration in material particulars. This is the
conjoint effect of Sections 133 and 114, illustration (b).
16. A prosecutrix of a sex offence cannot be put on par with
an accomplice. She is in fact a victim of the crime. The
Evidence Act nowhere says that her evidence cannot be
accepted unless it is corroborated in material particulars. She
is undoubtedly a competent witness under Section 118 and
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her evidence must receive the same weight as is attached to
an injured in cases of physical violence. The same degree of
care and caution must attach in the evaluation of her
evidence as in the case of an injured complainant or witness
and no more. What is necessary is that the court must be alive
to and conscious of the fact that it is dealing with the evidence
of a person who is interested in the outcome of the charge
levelled by her. If the court keeps this in mind and feels
satisfied that it can act on the evidence of the prosecutrix,
there is no rule of law or practice incorporated in the
Evidence Act similar to illustration (b) to Section 114 which
requires it to look for corroboration. If for some reason the
court is hesitant to place implicit reliance on the testimony of
the prosecutrix it may look for evidence which may lend
assurance to her testimony short of corroboration required in
the case of an accomplice. The nature of evidence required to
lend assurance to the testimony of the prosecutrix must
necessarily depend on the facts and circumstances of each
case. But if a prosecutrix is an adult and of full understanding
the court is entitled to base a conviction on her evidence
unless the same is shown to be infirm and not trustworthy. If
the totality of the circumstances appearing on the record of
the case disclose that the prosecutrix does not have a strong
motive to falsely involve the person charged, the court should
ordinarily have no hesitation in accepting her evidence. We
have, therefore, no doubt in our minds that ordinarily the
evidence of a prosecutrix who does not lack understanding
must be accepted. The degree of proof required must not be
higher than is expected of an injured witness. For the above
reasons we think that exception has rightly been taken to the
approach of the High Court as is reflected in the following
passage :
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" It is only in the rarest of rare cases if the court finds
that the testimony of the prosecutrix is so trustworthy,
truthful and reliable that other corroboration may not
be necessary."
With respect, the law is not correctly stated. If we may
say so, it is just the reverse. Ordinarily the evidence of
a prosecutrix must carry the same weight as is
attached to an injured person who is a victim of
violence, unless there are special circumstances which
call for greater caution, in which case it would be safe
to act on her testimony if there is independent evidence
lending assurance to her accusation .
17. We think it proper, having regard to the increase in the
number of sex violation cases in the recent past, particularly
cases of molestation and rape in custody, to remove the
notion, if it persists, that the testimony of a woman who is a
victim of sexual violence must ordinarily be corroborated in
material particulars except in the rarest of rare cases. To
insist on corroboration except in the rarest of rare cases is to
equate a woman who is a victim of the lust of another with an
accomplice to a crime and thereby insult womanhood. It
would be adding insult to injury to tell a woman that her story
of woe will not be believed unless it is corroborated in
material particulars as in the case of an accomplice to a
crime. Ours is a conservative society where it concerns
sexual behaviour. Ours is not a permissive society as in some
of the western and European countries. Our standard of
decency and morality in public life is not the same as in those
countries. It is, however, unfortunate that respect for
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womanhood in our country is on the decline and cases of
molestation and rape are steadily growing An Indian woman
is now required to suffer indignities in different forms, from
lewd remarks to eve-teasing, from molestation to rape.
Decency and morality in public life can be promoted and
protected only if we deal strictly with those who violate the
societal norms. The standard of proof to be expected by the
court in such cases must take into account the fact that such
crimes are generally committed on the sly and very rarely
direct evidence of a person other than the prosecutrix is
available. Courts must also realise that ordinarily a woman,
more so a young girl, will not stake her reputation by
levelling a false charge concerning her chastity.
18. But when such a crime is committed by a person in
authority, e.g. a police officer, should the court's approach be
the same as in any other case involving a private citizen ? By
our criminal laws wide powers are conferred on police
officers investigating cognizable offences. The infrastructure
of our criminal investigation system recognises and indeed
protects the right of a woman to decent and dignified
treatment at the hands of the investigating agency. This is
evident from the proviso to sub-section (2) of Section 47 of the
Code which obliges the police officer desiring to effect entry
to give an opportunity to the woman in occupation to
withdraw from the building. So also sub-section (2) of Section
53 requires that whenever a female accused is to be medically
examined such examination must be under the supervision of
a female medical practitioner. The proviso to Section 160
stipulates that whenever the presence of a woman is required
as a witness the investigating officer will record her statement
at her own residence. These are just a few provisions which
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reflect the concern of the legislature to prevent harassment
and exploitation of women and preserve their dignity.
Notwithstanding this concern, if a police officer misuses his
authority and power while dealing with a young helpless girl
aged about 19 or 20 years, her conduct and behaviour must
be judged in the backdrop of the situation in which she was
placed. The purpose and setting, the person and his position,
the misuse or abuse of office and the despair of the victim
which led to her surrender are all relevant factors which must
be present in the mind of the court while evaluating the
conduct evidence of the prosecutrix. A person in authority,
such as a police officer, carries with him the awe of office
which is bound to condition the behaviour of his victim. The
court must not be oblivious of the emotional turmoil and the
psychological injury that a prosecutrix suffers on being
molested or raped. She suffers a tremendous sense of shame
and the fear of being shunned by society and her near
relatives, including her husband. Instead of treating her with
compassion and understanding as one who is an injured
victim of a crime, she is, more often then not, treated as a
sinner and shunned. It must, therefore, be realised that a
woman who is subjected to sex violence would always be slow
and hesitant about disclosing her plight. The court must,
therefore, evaluate her evidence in the above background."
(emphasis is ours)
32. In light of the aforesaid law, we find that it is a case where
prosecutrix at the initial stage i.e. at the time of Exhibit PW1/A did not
elaborate about the ordeal she was going through. From contents of the
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writ petition filed before the Apex Court by the prosecutrix, it is evident
that the allegations against the accused were levelled and all three of them
were impleaded as party. Testimony of her mother, who appeared as PW-6
explains the conduct of the prosecutrix when she stated that "Slowly as my
daughter beginning to recollect the torture she was going through two other
names i.e. Karan Chhabra and Vikas Garg were revealed as being equal
accused". Definitely after she found that the worst has gone she opened up
and spelled out the truth she was earlier ashamed of. In view of the fact
that the statement of the prosecutrix before the Court stands fully
corroborated from the WhatsApp chats, the attack by the appellants alleging
improvement in her version sans merit.
33. The other arrow set loose by the appellants alleging the victim
of being selective in producing the WhatsApp Chats also lacks prick. The
WhatsApp chat stands fully proved before the Trial Court. Mobile-phone
Exhibit MO/A along with the printouts of the WhatsApp Chats remained in
possession of police. All the data retrieved has been provided in the hard
disks and the hard disks stand proved as Exhibit MO/2 and Exhibit MO/3
along with Certificate under Section 65-B of the Indian Evidence Act.
WhatsApp chats are unique in their form. Both the recipient and the sender
remain in possession of the WhatsApp messages which being an electronic
record as defined under Section 2(1)(T) of the 2000 Act, are admissible by
themselves. Once, the prosecution brought on record the WhatsApp Chats
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and the accused wanted to rebut the same, they could have well led
evidence in defence. Having opted not to do so and, thus, having kept best
evidence in their possession, adverse inference has to be drawn against the
appellants. Contention of Mr. Narula that the appellants are not under
obligation to prove the case of the prosecution is not acceptable. Without
doubt, every person accused of an offence is protected under Article 20 of
the Constitution of India and can't be compelled to be a witness against
himself. But if accused is in possession of the best piece of evidence to
rebut the incriminating evidence that has come on record but withholds it,
the presumption is that the evidence if produced will be unfavourable to
him. A lot has been said w.r.t. delay in lodging the FIR. However, the
snare the prosecutrix was in, the delay does not emaciate the case of the
prosecution.
34. In Nar Singh vs. State of Haryana, 2015(1) SCC 496 Apex
Court has laid down that in determining compliance of Section 313 Cr.P.C.
the test would be whether the accused got an opportunity to say what he
wanted to, in respect of case of prosecution against him. It is not the
evidence that needs to be put to the accused but the circumstances being put
against him so that he can give a proper explanation to meet the case
projected against him. From the examination of the accused(s) under
Section 313 Cr.P.C. it is evident that all the circumstances against the
accused were put to them. Thus, the plea w.r.t. their being any violation of
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provisions enumerated under Section 313 Cr.P.C. cannot be sustained.
CONCLUSION:
35. Thus, not only the Court finds that the statement of prosecutrix as
PW-1 is trustworthy but the same stands fully corroborated by the evidence on
record in the form of WhatsApp Chats and oral testimony of other witnesses.
Consequently, no fault can be found with the Trial Court in believing the
same. The Prosecution has successfully proved that the prosecutrix was being
blackmailed and forced into an abusive relationship. Hardik and Karan acting
in furtherance of common intention committed rape upon the prosecutrix
thereby committing offence punishable under Section 376-D IPC. Owing to
the repeated rape committed by Hardik, Trial Court has rightly found him to
be guilty of offence punishable under Section 376(2)(n) IPC. Likewise, no
fault can be found with conviction and sentence awarded to Karan Chhabra.
Similarly, the allegation w.r.t. there being WhatsApp group and the circulation
of the obscene/intimate pictures of the prosecutrix being circulated by accused
also finds corroboration by the statements made by other witnesses. Thus, no
fault can be found with the conviction of Hardik and Karan for offences
punishable under Section 67 of the Information Technology Act, 2000 and
Section 292 r/w Section 34 of the IPC.
36. So far as appellant-Vikas Garg is concerned, prosecutrix in her
testimony before the Court stated that :-
"In January 2014, Hardik Sikri sent his friend Vikas
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Garg to meet me. Vikas who seemed to know what I was
going through appeared considerate as I was in a vulnerable
situation and was looking for solace. Vikas later took
advantage and physically forced himself upon me in April,
2014. Vikas with whom I was acquainted earlier as he would
message me/call me to avail information about one of my
female classmates."
37. Apart from this in the WhatsApp chat, the name of Vikas Garg
finds mention in the Chat dated 16th of February, at 11.26 p.m. Relevant
Chat is being reproduced here under :-
"16 Feb 11:26 pm - 'A': Y is Vikas calling me again?
16 Feb 11:26 pm - Hardik: Vikas??
16 Feb 11:27 pm - 'A': Uska number to true caller pe block kar
rkha hai meine. But wo aaj aman ke number se bhi call kar
rha tha just after calling from his own number
16 Feb 11:27 pm - 'A': I did not pick up any of the calls
16 Feb 11:27 pm - 'A': Haanji Vikas Garg
16 Feb 11:27 pm - Hardik: mujhe nh ptaa
16 Feb 11:27 pm - 'A': Chalo chodo
16 Feb 11:27 pm - Hardik: usko chya hoga
16 Feb 11:27 pm - Hardik: Kuch
16 Feb 11:27 pm - 'A': I've to blocked him
16 Feb 11:27 pm - Hardik: teri xx chya hogi
16 Feb 11:27 pm - 'A': Nahi milegi
16 Feb 11:28 pm - 'A': Ab ye baat chodo"
38. Neither the testimony of the prosecutrix shows that there was
any allegation w.r.t. conspiracy between Vikas and the other two accused
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nor does it can be inferred from the WhatsApp Chat. Qua Vikas Chat
between victim and Hardik doesn't help case of prosecution. Inference is
that Hardik and Vikas had no meeting of minds and that Hardik did not
force Vikas upon victim. The victim was in position to say 'no' to Vikas.
Not only this, she conveyed her 'no' for Vikas to Hardik. Thus, the
allegation of the prosecution that Vikas was also in cahoots with other two
accused could not be proved beyond reasonable doubt. Consequently, the
appeal preferred by appellant-Vikas Garg is accepted extending benefit of
doubt to the accused.
39. As a sequel of discussion held hereinabove, the appeals
preferred by the appellants namely Karan and Hardik, are dismissed.
40. Judgment dated 24th of May, 2017 rendered by the Additional
Sessions Judge/Special Judge, Sonepat, is maintained except for Vikas
Garg, whose appeal stands allowed.
41. In the result, we make the following order :-
ORDER
(i) CRA-S-2396-SB-2017 preferred by the appellant-Vikas Garg
is allowed.
(ii) CRA-D-653-DB-2017 preferred by Karan and CRA-D-662-
DB-2017 by Hardik stand dismissed.
(iii) The impugned judgment/order dated 24th of May, 2017 passed
by Additional Sessions Judge/Special Judge, Sonepat in FIR
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No. 144 dated 11th April, 2015 registered under Sections 376D,
376(2)(n), 376, 292, 120-B, 506 of the Indian Penal Code,
1860 and Section 67 of the I.T. Act, at Police Station Rai
Sonepat, whereby the appellant-Hardik was convicted and
sentenced to undergo R.I. of 20 years under Section 376(D)
IPC, R.I. of Ten years under Section 376(2)(n) IPC, R.I. of
Seven years under Section 120-B IPC, R.I. of Two years under
Section 292 r/w Section 34 IPC, R.I. of Two years under
Section 506 IPC and R.I. of Five years under Section 67-A of
the Information Technology Act, 2000; appellant-Karan was
convicted and sentenced to undergo R.I. of Twenty years under
Section 376(D) IPC, R.I. of Ten years under Section 376(2)(n)
IPC r/w 120-B IPC, R.I. of Two years under Section 292 IPC
r/w 34 IPC and R.I. of Five years under Section 67 of the
Information Technology Act, 2000, and appellant-Vikas was
convicted and sentence to undergo R.I. of Seven years under
Section 376 IPC r/w 120-B IPC, R.I. of Two years under
Section 292 r/w 34 IPC and R.I. of Five years under Section
67-A of the Information Technology Act, 2000, is set aside
qua appellant-Vikas Garg only and, is maintained qua
appellants namely Karan and Hardik.
(iii) Appellant-Vikas Garg is acquitted of the charges that was
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framed against him, giving him benefit of doubt.
(iv) Fine, if paid, by the appellant Vikas Garg be refunded to him.
(v) Revision is disposed off as not pressed.
(vi) Identity of victim shall not be disclosed.
(TEJINDER SINGH DHINDSA) (PANKAJ JAIN)
JUDGE JUDGE
September 30, 2022
Dpr
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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