The conviction for rape under Section 376 IPC was overturned due to insufficient evidence of lack of consent and significant doubts raised by the circumstantial evidence.

JUDGMENT :

CHANDRASEKHARAN SUDHA, J.

1. In this appeal filed under Section 374 of the Criminal Procedure Code, 1973 (the Cr.P.C.), the sole accused in Sessions Case No.95/2014 on the file of the Additional Sessions Judge (Special, Fast Track Court-1), West, Tis Hazari Courts, Delhi, challenges the judgement dated 23.01.2017 and order on sentence dated 28.01.2017, as per which he has been convicted and sentenced for the offence punishable under Section 376 of the Indian Penal Code, 1860 (the IPC ).

2. The prosecution case is that on 01.08.2012, the accused served a soft drink laced with some intoxicant to PW1 and committed rape upon her and thereafter continued to subject her to sexual intercourse for a period of about one year under the false promise of marriage. Hence, as per the chargesheet/final report dated 27.05.2014, the accused is alleged to have committed the offences punishable under Sections 376 and Section 328IPC.

3. Based on Exhibit PW1/A FIS of PW1 dated 18.06.2013, Crime no.312/2013, Uttam Nagar, Police Station, i.e., Exhibit PW9/A FIR, was registered by PW9, Head Constable. PW14, Inspector, conducted investigation into the crime and on completion of the same, submitted the chargesheet/final report dated 27.05.2014 before the trial court, alleging the commission of the offences punishable under the aforementioned Sections.

4. On appearance of the accused before the trial court, copies of all the prosecution records were supplied to him in compliance with Section 207 Cr.P.C. On 29.08.2014, a Charge for the offences punishable under Sections 328 and 376 IPC read with Section 417 was framed, which was read over and explained to the accused, to which he pleaded not guilty.

5. In order to prove its case, the prosecution examined PWs. 1 to 14 and Exhibits PW1/A-B, PW2/A, PW4/A-D, PW6/A, PW8/A, PW9/A-C, PW10/A, PW12/A-C, PW13/A-D and PW14/A-B were marked.

6. After the close of the prosecution evidence, the accused was questioned under Section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the prosecution evidence. The accused denied all those circumstances and maintained his innocence. He stated that he had been falsely implicated in this case.

7. After questioning the accused persons under Section 313 (1)(b) Cr.P.C, compliance of Section 232 Cr.P.C was mandatory. In the case on hand, no hearing as contemplated under Cr.P.C is seen made by the trial court. However, non- compliance of the said provision does not, ipso facto vitiate the proceedings, unless omission to comply with the same is shown to have resulted in serious and substantial prejudice to the accused (SeeMoidu K. vs. State of Kerala, 2009 (3)KHC 89 :2009 SCC OnLine Ker 2888). Here, the accused persons have no case that non-compliance of Cr.P.C has caused any prejudice to him.

8. The trial court, after hearing both sides and on a consideration of the oral and documentary evidence, vide judgment dated 23.01.2017, convicted the accused under Section 235 (2) Cr.P.C. for the offence punishable under Section 376 IPC and acquitted him under (1) Cr.P.C. for the offences punishable under Sections 328 and 417 . Vide order on sentence dated 28.01.2017, the accused has been sentenced to undergo rigorous imprisonment for eight years along with fine of Rs. 15,000/-, and in default of payment of fine, to simple imprisonment for a period of six months. Aggrieved, the accused has preferred this appeal.

9. The learned senior counsel for the appellant/accused contended that the impugned judgment suffers from patent inconsistency, inasmuch as the trial court held