The main legal point established is that the court relied on the evidence of the video clip and photographs, inconsistencies in the prosecutrix's statements, and lack of motive to falsely implicate the appellant to conclude that the appellant had committed the offences under Sections 376(2)(n)/354-C/506 of the IPC.

JUDGMENT

Vibhu Bakhru, J. - The appellant has filed the present appeal against a judgment dated 28.03.2019 passed by the ASJ, Special Fast Track Courts-02, Karkardooma Courts, whereby the appellant was convicted for committing offences punishable under Sections 376(2)(n)/354-C/506 of the Indian Penal Code, 1860 (IPC).

2. The appellant also impugns the order on sentence dated 30.03.2019, whereby the learned ASJ had sentenced the appellant to undergo -

(i) Rigorous imprisonment for a period of ten years and fine of Rs. 50,000/- for committing the offence under Section 376 (2)(n) of the IPC. In default of payment of the aforesaid fine, he would have to undergo simple imprisonment for a period of one year;

(ii) Simple imprisonment for a period of one year and a fine of Rs. 50,000/- for the offence punishable under Section 506 (Part 1) of the IPC. In default of the fine, he would have to undergo simple imprisonment for a period of three months; and

(iii) Simple imprisonment for a period of two years and a fine of Rs. 5,000/- for committing the offence under Section 354- C of the IPC. In default of the fine, he would have to undergo simple imprisonment for a period of three months.

3. The case of the prosecution is that on 15.04.2013, the appellant had taken the prosecutrix - a girl aged about twenty years - to a hotel room and raped her. He had also videographed the act without her consent and clicked nude photographs of her. He had used the same to blackmail her and had demanded a sum of five lakh rupees to delete the same. FIR No. 299/2013, under Sections 376/384/506/354C/354D of the IPC was registered with PS Shakarpur, on the basis of the statement of the prosecutrix made before the police. Her statement was also recorded under Section 164 of the CrPC.

4. Charges under Sections 376/354D/354C/506 of the IPC were framed against the appellant. The appellant pleaded not guilty and the appellant was tried for the charges framed against him. The prosecution examined twenty-six witnesses to establish its case.

Trial Court Judgment

5. The Trial Court evaluated the evidence on record and noted that it was argued by the defence and also stated by the accused in his statement under Section 313 of the CrPC that the appellant had not made the first contact with the prosecutrix and it was the prosecutrix who had called him first. However, the Trial Court noted that the CDR of the accused (Ex. DW-1/1) proved that the first call had been made by the accused to the prosecutrix.

6. The defence had argued that the prosecutrix had willingly accompanied the accused, as she had herself admitted that she knew that she was going to a guest house with the accused. However, the Trial Court held that even if it was assumed she had willingly gone to the guest house, it could not be presumed that she had consented to sexual intercourse with him as well. The Trial Court held that the digital evidence on record i.e. Ex. PW-24/C, which was a DVD that contained the video clip made by the accused of the sexual act performed by the prosecutrix, supported the case of the prosecution. FSL had retrieved the video clip after retrieving it from the memory card, which was recovered from the house of the accused at his instance. The Trial Court noted that it was the admitted case of the defence that the memory card belonged to the accused and the authenticity of the DVD had not been challenged by the accused.

7. The Trial Court viewed the aforesaid DVD and observed that there was passive submission of her body by the prosecutrix, which indicated her helplessness. The Trial Court observed that her facial expressions and body language clearly showed that the act on her part was totally involuntary. The Trial Court held that the prosecutrix appeared to be under some fear or pressure and under such circumstances, her submission could not be considered as consent. The Trial Court also took account of the fact that the prosecutrix had also deposed that she was under the threa