The court upheld the trial court's reasoning that the survivor's testimony did not establish the elements for a conviction under Section 376 IPC.

1. This hearing has been done through hybrid mode.

2. The present leave petition has been filed on behalf of the Petitioner- State of NCT of Delhi assailing the impugned judgment of conviction and order on sentence dated 11th December, 2019 and 13th December, 2019 respectively, passed by Sh, Umesh Grewal, ld. ASJ, Special FTC (North), Rohini Courts, Delhi, whereby the Accused/Respondent has been convicted inSCNo.58548/16,inFIRNo.543/15registeredinPS.ShahbadDairyunder Sections 376D/451/506/34 IPC .

3. Vide the impugned order on sentence, the Accused/Respondent herein has been convicted under Sections 452/354 IPC . The relevant portion of the Signature Not Verified Digitally Signed CRL.L.P.197/2022 Page1of5 order on sentence dated 13th December, 2019 is extracted hereinunder:

“3. Taking into account mitigating and militating circumstances, convict Subhan Ali @ Gangi is directed to undergo rigorous imprisonment of three years and pay fine of Rs. 3,000/- for offence punishableu/s.452IPC.Indefaultofpaymentoffine, he shall undergo simple imprisonment for two months.

The convict is further directed to undergo rigorous imprisonment of three years and to pay fine of Rs. 2,000/-foroffencepunishableu/s.354IPC.Indefault of payment of fine, he shall further undergo simple imprisonment for two months.

4. Fine of Rs. 5,000/- paid by the convict.

5. Both sentences shall shall concurrently. However, benefit section 428 Cr.P.C. be given to him.”

4. The background of the present case as stated in the petition is that an incidentwasreportedbythecomplainant/survivor,statingthat,on26thApril, 2015atabout3:00PMshewassexuallyassaultedbytheAccused/Respondent herein.Thereafter, aPCR call was made atabout 3.45 PM andin the said call itwasrecordedthatthecomplainanthadallegedthattheAccused/Respondent had done ‘chedhchad’ with her. It was further alleged that two children were present at the time when the Accused had misbehaved with her.

5. The statement of the survivor under Section 164 Cr.P.C. was recorded before the ld. Magistrate being Ex.PW1/A. The survivor had stated as under:

Signature Not Verified Digitally Signed CRL.L.P.197/2022 Page2of5

6. On perusal of the above, it is seen that the survivor has stated that the Accused/Respondent had entered her room forcibly and after she had gone to the washroom, the Accused/Respondent had pushed her on the bed and had tried to molest/rape her. In the said statement there is no allegation of sexual intercourse.

7. In terms of these facts, the trial was conducted and the survivor had testified before the Court. In the testimony she stated that the Accused/Respondent had inserted his finger in her private parts. The Trial Court,however,disbelievedthesameandconvictedtheAccused/Respondent only under Section 354/452 of IPC . Under Section 376 of IPC the Accused/Respondent was acquitted. The reasoning given by the Trial Court is as under:

“22.PCRformsshowsthatattheveryoutset,thevictimtold PCR van official at 3.47 pm that her neighbour, who was Signature Not Verified Digitally Signed CRL.L.P.197/2022 Page3of5 drunk, had done ‘chedchad’ with her. She was medically examined on the same day at 7.35 pm and she told the treatingdoctorthatherneighbourGangihadtriedtoharass andassaulther sexually. Statementof the victim to thePCR official that theaccused wasdrunk,iscorroboratedbyMLC Ex.PW8/A of Subhan Ali, prepared just aftger nine hours of the incident, in which it is mentioned that BAC was 18 mg. So,asperMLCalso,acusedSubhanAli@Gangiwasdrunk. 23. Hence, there is no dispute about the complicity of accused Subhan Ali @ Gangi in the offence. The moot question is about exact offence doneby him.”

8. The submission of Mr. Bahri, ld. APP for State is that the testimony of PW-1 is clear to the effect that there was sexual assault committed by the Accused/Respondent and that he had inserted his finger into her private parts. Hence, it is a clear case of rape under Section 376 of IPC . Mr. Bahri, ld. APP further submits that the previous state