Crl.A(MD).No.644 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved On : 19.06.2026

Pronounced On: 14.07.2026

CORAM

THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

and

THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

Crl.A(MD).No.644 of 2023

Suji @ Kasi ... Appellant/Accused No.1

Vs.

The State rep., by,

The Inspector of Police,

CBCID, Nagercoil,

Kanyakumari District.

(Cr.No.8 of 2020) ... Respondent / Complainant

PRAYER:- Criminal Appeal is filed under Section 374(2) of Criminal

Procedure Code, to call for the records from the lower court in SC.No.41/2021

on the file of the Learned Fastrack Mahila Court, Nagercoil, and set aside the

judgment dated 14.06.2023 by acquitting the accused and by allowing the

appeal.

For Appellant: Mr.V.Kathirvelu

Senior Counsel

For Respondent : Mr.G.Karuppasamy Pandian

Counsel for State of TN (Crl.Side)

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Crl.A(MD).No.644 of 2023

J U D G M E N T

K.K.RAMAKRISHNAN.J,

The appellant / accused has preferred the present appeal challenging the

judgment made in S.C. No.41 of 2021 dated 14.06.2023 by the Fastrack Mahila

Court, Nagercoil, whereby he was convicted and sentenced in the following

manner:

Sentence of Law

Sentence of

Imprisonment

Fine

Section 90 r/w

Section 376(2)(n)

IPC

Life Imprisonment

until Natural Death

Rs.1,00,000/-; in default, to

undergo 1 year Rigorous

Imprisonment

Section 354(C) IPC

3 years Rigorous

Imprisonment

Rs.10,000/-; in default, to

undergo 6 months Simple

Imprisonment

Section 506(II) IPC

3 years Rigorous

Imprisonment

.......

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Crl.A(MD).No.644 of 2023

2.For clarity and better appreciation of facts and law, in this case, this

Court inclines to discuss the case on the following heads:

Sl.

No

Headings Paragraph

Nos

1Facts of the case 3-3.6

2Submission of the learned Senior counsel appearing for

the appellant

4-4.15

3Submission of the learned Additional Public Prosecutor5-5.17

Points for determination 7-7.2

4Discussion on sentimental submission of the learned

Additional Public Prosecutor

8-8.2

5Discussion on the sterling quality of the victim's

evidence

9-9.40

6Discussion on the electronic evidence 10-10.2

7Discussion on the genuineness of Ex.P12 11-11.3

9Discussion on the delay in production of FSL Report12-12.10

10Discussion on the plea of admissibility and evidentiary

value of electronic evidence

13-13.14

11Discussion on the plea of morphing 14-14.11

12Discussion on the delay in lodging FIR 15-15.3

13Discussion on the contention regarding omission in the

FIR

16-16.11

14Discussion on the coercion on the part of the

Investigating Officer

17-17.7

15Discussion on the consensual Sex 18-18.20

16Discussion on the plea of the accused's genuine

intention to marry

19-19.7

17Discussion on the failure to explain the circumstances

and furnishing the false answer during the course of

questioning under Section 313 of Cr.P.C. of the accused

20-20.8

18Conclusive finding on conviction 21-21.2

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19Discussion on sentence 22-22.2

20Emotional appeal and earnest request 25-25.6

21Conclusion 26

3. Facts of the case :

3.1. The appellant/accused was also an accused in Crime No. 4 of 2020

on the file of the respondent police. Earlier, on 24.04.2020, a complaint was

lodged against the accused. On receipt of the complaint, PW27, the then

Inspector of Police, registered a case in Crime No.503 of 2020 for the offences

alleged therein. During the course of investigation, the accused was arrested.

Pursuant to his disclosure statement, an Apple iPhone 11, which had allegedly

been used for capturing the obscene photographs and videos of several women,

including the complainant in the present case, was recovered from his

possession. Thereafter, he was remanded to judicial custody. In the said case,

the father of the accused was also arrayed as Accused No. 2. Based on his

disclosure statement, the investigating officer recovered the accused's laptop

and twenty-one other incriminating articles. Subsequently, the investigation was

transferred to the CBCID, namely the respondent police, who registered Crime

No. 4 of 2020 and continued the investigation.

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3.2. During the pendency of the said investigation, the victim in the

present case lodged a complaint before the CBCID on 30.09.2020. PW28

received the complaint and forwarded it to the Head Office for obtaining

permission to register a separate case. After obtaining the requisite permission,

a First Information Report was registered on 13.10.2020 under Exhibit P29,

which forms the basis of the present prosecution. Pursuant to the registration of

the FIR, the accused, who was already in judicial custody in the earlier crime,

was formally arrested in the present case on 27.10.2020. Thereafter, he was

taken into police custody for four days from 07.11.2020 to 11.11.2020 for the

purpose of investigation. During the course of investigation, his involvement in

the present offence was ascertained. Consequently, the offences were altered

under alteration reports marked as Exhibits P31 and P32. The father of the

accused (Accused No. 2) was also formally arrested in the present case on

19.11.2020. The investigating officer thereafter continued the investigation by

forwarding the seized electronic devices and other incriminating materials to

the Forensic Science Laboratory for examination, examining the witnesses,

collecting relevant records, and ultimately filed the final report on 25.01.2021.

3.3. The learned trial Judge took cognizance of the final report in S.C.

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No. 41 of 2021. Copies of the prosecution records were furnished to the

accused under Section 207 of the Code of Criminal Procedure. Thereafter,

charges were framed and explained to the accused. The accused pleaded not

guilty and claimed to be tried.

3.4. In order to prove its case, the prosecution examined PW1 to PW29,

marked Exhibits P1 to P34, and produced Material Objects (M.O.s) 1 to 20.

3.5. After completion of the prosecution evidence, the accused was

questioned under Section 313 Cr.P.C. with regard to the incriminating

circumstances appearing against him. He denied the allegations in toto,

contending that a false case had been foisted against him and that he had no

connection whatsoever with the alleged offences. However, the accused neither

examined any witness nor produced any document in defence.

3.6. Upon an appreciation of the oral and documentary evidence

available on record, the learned trial Judge found the accused guilty, convicted

him for the offences charged under Sections 376(2)(n), 417, 354(A), 294(b),

354(c) of IPC and Section 66E of Information Technology Act and acquitted

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the accused for the charged offences under Sections 354 (B) and 354 (D) of IPC

and imposed the sentence as stated above. In view of the punishment imposed

under Section 376 (2)(n) of IPC, the learned trial Judge has not passed any

separate sentence for the charged offences under Sections 417, 354(A) and

294(b) of IPC and in view of the punishment imposed under Section 354 (c),

the learned trial Judge has not imposed any separate sentence for the charged

offences under Section 66 (E) of the Information Technology Act. Aggrieved by

the said conviction and sentence, the accused has preferred the present criminal

appeal before this Court.

4. Submission of the learned Senior Counsel appearing for the

appellant:

The learned Senior Counsel appearing for the appellant, after taking this

Court through the entire oral and documentary evidence on record, advanced

elaborate submissions, which may be summarized as follows:

4.1. The learned Senior Counsel submitted that there are material

improvements and embellishments in the version of PW1 (the victim) at every

stage of the proceedings, namely, from the complaint leading to the registration

of the FIR, the statement recorded under Section 164 of the Code of Criminal

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Procedure, and finally the deposition before the Trial Court. According to the

learned Senior Counsel, these inconsistencies strike at the very credibility of

the victim and demonstrate that her evidence is unreliable.

4.2. It was further contended that the evidence on record clearly

establishes that the victim was a consenting party to the physical and sexual

relationship with the accused. The complaint was admittedly lodged nearly one

year after the alleged occurrence, and the prosecution has failed to offer any

satisfactory explanation for such an inordinate delay. Though delay by itself

may not be fatal in cases involving sexual offences, in the present case the

victim was about 28 years of age, was a graduate, and had admittedly

maintained a relationship with the accused over a considerable period. Having

voluntarily continued such a relationship, the subsequent allegation of forcible

sexual intercourse is wholly unsustainable. Therefore, the essential ingredients

of the offence under Section 376 IPC, including the aggravated form alleged

against the appellant, is not attracted. The learned Trial Judge failed to properly

appreciate these circumstances.

4.3. The learned Senior Counsel further submitted that the Hon'ble

Supreme Court has consistently held that where the evidence discloses a

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consensual physical relationship between two adults, the offence of rape is not

made out and merely because the relationship subsequently turns sour it cannot

be termed as rape. The learned Trial Judge failed to apply the settled principles

governing cases of consensual relationships and, therefore, the conviction

under Section 376 IPC is liable to be set aside.

4.4. It was further argued that the testimony of PW1 cannot be accepted

as trustworthy not only because of the unexplained delay in lodging the

complaint but also on account of the material improvements and contradictions

at every stage of the proceedings. These inconsistencies render the prosecution

case highly doubtful.

4.5. The learned Senior Counsel further submitted that the victim was

subjected to pressure and harassment by the investigating agency and was

compelled to lodge the present complaint by them. Consequently, the very

genesis of the prosecution case is doubtful. It was also contended that there is

absolutely no independent corroborative evidence supporting the allegations.

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4.6. According to the victim herself, the objectionable photographs and

videos were captured using an Apple iPhone. However, the particular model

referred to by the victim was not even available in India on the alleged date of

occurrence. More importantly, the said mobile phone was never recovered by

the investigating agency. In the absence of recovery of the device allegedly

used for capturing the images, the prosecution has failed to establish the alleged

transmission of those images to the MacBook laptop recovered from the

possession of Accused No.2, namely, the father of the appellant. Therefore, the

prosecution has failed to establish any electronic chain linking between the

accused and the alleged offending material.

4.7. The learned Senior Counsel submitted that, despite the absence of

any such evidence, the learned Trial Judge erroneously recorded a finding

regarding the continuity of the electronic evidence (chain of custody), without

any supporting material or opinion from the investigating officer. Such a

finding, according to the learned Senior Counsel, is without any evidentiary

basis and reflects a predetermined approach on the part of the Trial Court.

4.8. It was further argued that the investigation conducted in Crime No.

503 of 2020 did not yield any material connecting the appellant with the present

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victim. No forensic report establishes that any data relating to the present

victim was retrieved from the MacBook seized during the earlier investigation.

Further, no certificate under Section 65B of the Indian Evidence Act was

produced with respect to the extraction or reproduction of the electronic data

allegedly recovered from the seized electronic devices. In the absence of

compliance of the mandatory requirements governing admissibility of

electronic evidence, all such materials relied upon by the prosecution are

legally inadmissible and cannot form the basis for conviction.

4.9. The learned Senior Counsel further submitted that even assuming

the prosecution version is accepted in its entirety, the evidence would only

indicate that the victim was a consenting participant in the relationship, and

also allowed recordings of the photographs. Consequently, the ingredients of

the offences punishable under Sections 376, 417, 354A, 354C, 506(ii) and

294(b) IPC, as well as Section 66E of the Information Technology Act, have not

been established beyond reasonable doubt.

4.10. Lastly, the learned Senior Counsel contended that there is

considerable doubt regarding the very registration of the FIR. While the victim

claimed that she had sent the complaint directly to the CBCID office, PW29,

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the Investigating Officer, deposed that he had personally received the complaint

and thereafter forwarded it to the Head Office for obtaining permission to

register the case. The earlier information allegedly received was suppressed by

the prosecution. According to the learned Senior Counsel, this discrepancy

creates a serious doubt regarding the genesis of the prosecution case. Coupled

with the non-recovery of the alleged electronic devices, the absence of legally

admissible electronic evidence, and the alleged fabrication of documents and

other materials, the prosecution has failed to establish its case beyond

reasonable doubt. Accordingly, it was prayed that the appellant be extended the

benefit of doubt and acquittal of all the charges.

4.11. The learned Senior Counsel further submitted that the material

object, namely the MacBook laptop recovered from the father of the accused,

had already been opened on 05.04.2020. Placing reliance upon the statement of

one Mr. Jeevanantham, a technical expert, whose statement forms part of the

investigation records but who was not examined before the Trial Court, it was

contended that the laptop had already been accessed prior to the subsequent

forensic examination. In such circumstances, the subsequent procedure adopted

by the investigating agency by installing the "SuperDuper" Mac OS software

and extracting the electronic data for forensic analysis creates serious doubt

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regarding the legitimacy and authenticity of the electronic evidence. According

to the learned Senior Counsel, the entire investigation has been conducted in a

perfunctory manner, thereby rendering the prosecution case unreliable. On this

ground also, it was prayed that the appellant is entitled to an order of acquittal.

4.12. The learned Senior Counsel further submitted that there are

several inconsistencies and apparent manipulations in respect of the electronic

records allegedly extracted from the MacBook laptop and sending the same for

forensic examination. It was contended that once the electronic data had been

extracted from the MacBook pursuant to the orders of the Court for the purpose

of forensic analysis, the investigating agency was required to comply with the

mandatory requirements under Section 65B of the Indian Evidence Act. In the

absence of the requisite certificate, the electronic records so extracted are

inadmissible in evidence. The learned Trial Judge, however, failed to appreciate

the mandatory nature of the statutory requirement and erroneously relied upon

such inadmissible electronic evidence.

4.13. The learned Senior Counsel vehemently contended that the

prosecution itself relied upon Material Object No.1 (pen drive), which allegedly

contained the video depicting the accused and the victim. The said pen drive

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was played before the Trial Court, and both the accused and the victim were

identified from the contents thereof. However, the said electronic record was

admittedly not accompanied by a certificate under Section 65B of the Indian

Evidence Act. Consequently, the contents of M.O.1 were legally inadmissible

and ought not to have been relied upon by the learned Trial Judge. The failure

of the Trial Court to exclude such inadmissible evidence vitiates the conviction.

4.14. The learned Senior Counsel further submitted that certain

documentary exhibits relied upon by the prosecution reveal discrepancies with

regard to the dates mentioned therein. According to him, the relevant entries

appear to have been made subsequent to the arrest of the accused, thereby

creating a strong suspicion that the investigation records were manipulated to

suit the prosecution case. This circumstance, coupled with the defence plea that

the accused had been subjected to coercion and that the victim was compelled

by the investigating agency to lodge the complaint, clearly demonstrates that

the investigation was neither fair nor impartial but was tainted with bias.

Therefore, the appellant is entitled to the benefit of doubt.

4.15. Finally, the learned Senior Counsel reiterated that even if the entire

prosecution evidence is accepted at its face value, the ingredients constituting

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the offences punishable under Section 376 IPC or Section 376(2)(n) IPC are not

made out. The evidence on record, at the highest, discloses a consensual

relationship between two adults and does not establish the essential ingredients

of rape. Accordingly, it was prayed that the conviction and sentence imposed by

the learned Trial Judge be set aside and the appellant be acquitted of all the

charges.

5. Submission of the learned Additional Public Prosecutor:

The learned Additional Public Prosecutor, after taking this Court through

the entire records, including the case diary files, documentary evidence,

material objects, and the findings recorded by the learned Trial Judge, assisted

by the Investigating Officer, made elaborate submissions, which may be

summarised as follows:

5.1. At the outset, the learned Additional Public Prosecutor submitted that

the present case is one of the gravest offences investigated in the State of Tamil

Nadu. According to him, the accused had adopted a systematic modus operandi

of clandestinely capturing obscene photographs and videos of several women,

including minors, and thereafter using the same to threaten, intimidate and

sexually exploit the victims. The accused was initially arrested in connection

with the complaint lodged by one brave victim, which culminated in the

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registration of the parent case referred to above. During the course of

investigation in the said case, several other victims came forward with

individual complaints, resulting in the registration of separate criminal cases.

The present case is one such case.

5.2. The learned Additional Public Prosecutor submitted that the

prosecution has clearly established that the accused initially contacted the

victim through social media under the guise of friendship. Thereafter, he

induced her to believe that he intended to marry her and also represented that he

would secure employment for her. Having thus gained her confidence, the

accused developed a relationship with the victim. Subsequently, after

clandestinely capturing her intimate photographs and videos, he threatened to

circulate the same through social media and thereby compelled her to submit to

repeated sexual intercourse against her will. Thus, the consent, if any, was

obtained subjecting her to criminal intimidation and under a misconception of

fact. The victim was continuously subjected to sexual exploitation by the

accused under the constant threat of publication of the objectionable material.

5.3. It was further submitted that the testimony of PW1 is cogent, natural

and wholly trustworthy. Before the Trial Court, the victim narrated the entire

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sequence of events in a consistent manner. Her statement recorded under

Section 164 Cr.P.C. also reflects the trauma and mental agony suffered by her.

The learned Additional Public Prosecutor therefore urged this Court to adopt a

pragmatic, realistic and common sensical approach while appreciating the

evidence of the victim, having regard to the nature of the offence and the

circumstances under which she was compelled to undergo repeated sexual

assault at the hands of the accused.

5.4. The learned Additional Public Prosecutor further submitted that the

conviction can safely be sustained on the sole testimony of the victim, which

inspires confidence and stands corroborated by the surrounding circumstances.

With regard to the delay in lodging the First Information Report, the learned

Additional Public Prosecutor contended that delay is not fatal in cases

involving sexual offences, particularly where the victim is subjected to

continuous threats and intimidation. In the present case, the accused was in

possession of the objectionable photographs and videos and repeatedly

threatened to publish them on social media. It was only after the registration of

the parent crime case and after learning that other victims had come forward

with similar complaints, the present victim gained courage to approach the

authorities. Even in her complaint, she had specifically requested the

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investigating agency to protect her identity and privacy while registering the

case. These circumstances sufficiently explain the delay in lodging the

complaint.

5.5. The learned Additional Public Prosecutor further submitted that the

victim consistently deposed that she remained under constant fear and

intimidation throughout the relevant period. Similar threats had been made by

the accused to several other victims as well. Despite such intimidation, the

victim undauntedly lodged the complaint and withstood an extensive and

searching cross-examination without her evidence being materially shaken.

Therefore, the prosecution has satisfactorily explained the delay and has proved

the charges beyond reasonable doubt.

5.6. Refuting the submissions made on behalf of the appellant regarding

the alleged non-recovery of the mobile phone used to capture the offending

material, the learned Additional Public Prosecutor submitted that the

prosecution has established, through the evidence on record and the forensic

reports, the recovery of the device used by the accused for recording the

objectionable photographs and videos. The forensic examination clearly

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establishes the electronic linkage between the seized devices and the offending

material. Hence, the contention that the particular model of Apple iPhone

referred to by the victim was either unavailable in India or was not recovered is

wholly misconceived. It was further submitted that it has never been the

defence of the accused that he had never used an Apple iPhone. The offending

material recovered from the Mac-Book forms part of the electronic evidence

collected during the investigation and sufficiently connects the accused with the

offences alleged. Therefore, the argument regarding the non-recovery of the

mobile phone deserves to be rejected.

5.7. The learned Additional Public Prosecutor also submitted that the

investigation was conducted in a fair, impartial and scientific manner, keeping

in view the grave societal impact of offences of this nature. The investigating

agency acted with utmost sensitivity while dealing with the victims, collected

all relevant scientific and electronic evidence, and ensured that the identity,

privacy and dignity of the victim were protected throughout the investigation

and trial. In such circumstances, the vociferous allegations levelled by the

learned Senior Counsel against the investigating agency are wholly unfounded

and deserve to be rejected. The investigation, according to the prosecution, was

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conducted strictly in accordance with law and free from any bias or prejudice.

5.8. The learned Additional Public Prosecutor further submitted that the

heavy reliance placed by the learned Senior Counsel on the statement of one

Mr. Jeevanandham, recorded under Section 161 Cr.P.C. is wholly misconceived

and legally unsustainable. It was contended that Mr.Jeevanandham was neither

examined as a prosecution witness nor produced as a defence witness. A

statement recorded under Section 161 Cr.P.C. is not substantive evidence and

can be used only for the limited purpose of contradicting the witnesses

contemplated under Sections 145 of the Indian Evidence Act and Section 162

of Cr.P.C. In the absence of the maker of the statement entering the witness box,

no evidentiary value can be attached to such statement in favour of the accused.

5.9. The learned Additional Public Prosecutor further contended that the

defence plea of consensual sexual relationship is completely belied by the

evidence on record. The victim has consistently deposed before the Trial Court

that she was repeatedly subjected to forcible sexual intercourse under threats,

intimidation and coercion. The learned Trial Judge, after carefully appreciating

the oral evidence of the victim and viewing the electronic evidence forming

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part of Material Object No.1, has categorically recorded a finding that the

sexual acts were committed against the will of the victim and without her free

and voluntary consent. The Trial Court has also noticed that the victim had

suffered physical injuries and harassment during the commission of the sexual

assaults. Such findings, being based upon appreciation of evidence, warrant no

interference.

5.10. It was further submitted that the contention regarding the

examination of the forensic expert after the filing of the final report is devoid of

merit. The requisition to the Forensic Science Laboratory had admittedly been

forwarded much earlier to the filing of the final report. The investigating

agency had already collected sufficient materials establishing that Material

Object No.1 contained the images and videos depicting the accused and the

victim, enabling the Investigating Officer to file the final report. The

subsequent examination of the expert was only to formally prove the scientific

analysis already made. Such subsequent examination does not vitiate either the

investigation or the prosecution case.

5.11. The learned Additional Public Prosecutor further explained, upon

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instructions from the Investigating Officer present before the Court, that the

Forensic Science Laboratory consists of different specialised divisions. The

opinion obtained from the concerned division formed part of the investigation

and was rightly relied upon by the Investigating Officer while filing the final

report. Thereafter, the expert was examined before the Trial Court only to

explain the scientific methodology and to prove the report in accordance with

law.

5.12. It was also submitted that the objection regarding the absence of a

certificate under Section 65-B of the Indian Evidence Act is untenable. The

prosecution case does not suffer from any allegation of fabrication,

manipulation or tampering of the electronic records. The electronic devices

themselves were seized during investigation and were subjected to scientific

examination. The defence has neither established any prejudice nor

demonstrated any infirmity in the collection or preservation of the electronic

evidence. Consequently, the contention regarding Section 65-B is liable to be

rejected.

5.13. The learned Additional Public Prosecutor further submitted that a

careful viewing of the videos contained in Material Object No.1 clearly

demonstrates that one cannot infer that the victim had voluntarily consented

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either to the sexual acts or to the recording of such explicit videos and

photographs. The very nature of the recordings, coupled with the surrounding

circumstances, unmistakably establishes that the victim was acting under

coercion, intimidation and fear propelled by the accused. The prosecution has

consistently established that the accused repeatedly threatened to circulate the

intimate images and videos on social media, thereby compelling the victim to

submit to his unlawful demands.

5.14. The learned Additional Public Prosecutor once again drew the

attention of the Court to the evidence of the victim, who consistently asserted

throughout her examination in chief and cross-examination that she never

voluntarily consented to the sexual acts or to the recording of the objectionable

materials. The victim withstood lengthy and searching cross-examination

without any material contradiction affecting the core of the prosecution case. It

was therefore submitted that the Trial Court rightly accepted her testimony as

truthful and wholly reliable.

5.15. The learned Additional Public Prosecutor further submitted that

Courts dealing with sexual offences are expected to adopt a sensitive pragmatic

and realistic approach while appreciating the evidence of the victim. Once the

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victim enters the witness box and gives a cogent, natural and trustworthy

account of repeated sexual assault and intimidation, her testimony, if found

credible, is sufficient to sustain a conviction without insisting for unnecessary

corroboration.

5.16. Finally, the learned Additional Public Prosecutor submitted that the

present case squarely attracts the statutory presumption under Section 114-A of

the Indian Evidence Act. Once the prosecutrix has deposed before the Court

that she did not consent to the sexual acts, the statutory presumption operates

against the accused, who has failed to rebut the same by any cogent evidence.

Consequently, the prosecution is not required to establish the absence of

consent by any additional or extraordinary standard of proof.

5.17. On the above submissions, the learned Additional Public Prosecutor

prayed that the appeal be dismissed and that the well-reasoned judgment of

conviction and sentence passed by the learned Trial Judge be affirmed in its

entirety.

6. This Court has bestowed its anxious consideration to the rival

submissions advanced by the learned Senior Counsel appearing for the

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appellant and the learned Additional Public Prosecutor appearing for the

respondent. Having regard to the gravity and sensitivity of the allegations, this

Court has independently scrutinized the entire evidence on record.

7.The following points arise for determination in this appeal:

7.1.Whether the conviction of the appellant for the offences punishable

under Sections 376(2)(n), 417, 294(b), 354(A) and 354 (c) of the Indian Penal

Code, and Section 66 E of the Information Technology Act, as recorded in the

impugned judgment, is sustainable in law?

7.2.Whether the sentence imposed upon the appellant under the

impugned judgment warrants any interference?

8.Discussion on sentimental submission of The learned Additional

Public Prosecutor:

8.1. The learned Additional Public Prosecutor made a strenuous

submission regarding the background of the case, contending that the accused

had allegedly been continuously involved in the sexual exploitation of

numerous victims, including minors. It was further submitted that more than six

criminal cases, including one under the provisions of the POCSO Act, have

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been registered against the accused. The learned Additional Public Prosecutor

also submitted that the present case forms part of a sexual scandal which has

had sent shock waves across the State of Tamil Nadu.

8.2. This Court is conscious of the settled principle of criminal

jurisprudence that every criminal case must be decided solely on the basis of

the evidence legally adduced before the Court. A Court of law cannot permit

itself to be influenced by public sentiment, glare, or the gravity of the

allegations. The guilt or innocence of an accused must be determined

exclusively on the basis of the evidence placed on record and in accordance

with law. Bearing the above principle in mind, this Court proceeds to examine

and appreciate the testimony of the victim independently, objectively, and on its

own merits, in the light of the oral and documentary evidence available on

record.

9.Discussion on sterling quality of victim's evidence:

9.1. While appreciating the testimony of the prosecutrix in the case of

376(2) (n) IPC, the Court must be conscious of the legislative intent underlying

Section 114A of the Indian Evidence Act, 1872. The statutory presumption

embodies the recognition that victims of sexual offences often continue in

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forced relationships because of fear, intimidation, emotional dependence, or

blackmail. Consequently, the Court must evaluate the evidence in its proper

social and psychological context rather than through stereotypical assumptions

regarding the conduct of victims.The offence, therefore, cannot be viewed as an

isolated act of consensual intimacy but must be appreciated in the backdrop of

the entire chain of events that gradually deprived the victim of her free will and

autonomy.

9.2. Therefore, cases involving romance fraud, sexual extortion, and rape

by deception require a contextual and victim-centric appreciation of evidence.

The Court must examine whether the apparent consent was, in reality, the

consequence of deception, coercion, intimidation, abuse of confidence, or

fraudulent inducement, and not merely be guided by the existence of an

intimate relationship between the parties.

9.3.This case presents a classic illustration of rape by deception, rape by

fraud, sexual extortion, and what is commonly described as "romance fraud." In

the present era of rapid technological advancement and widespread use of

social media platforms, courts are increasingly confronted with offences

involving online luring, emotional manipulation, sexual exploitation, and

cyber-enabled blackmail.

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9.4.A romance scam or romance fraud is a confidence trick in which the

perpetrator creates a online identity, cultivates the victim's trust and affection,

and establishes an emotional relationship with the ulterior motive of exploiting

the victim sexually, financially, or otherwise. The common modus operandi

involves initiating contact through social media, expressing intense affection

within a short period, transmitting the communication to private messaging

applications such as WhatsApp or similar platforms, and gradually isolating the

victim from taking independent sensible decision. Once the emotional

dependence of the victim is secured, the perpetrator engineers circumstances

that compel the victim to submit to sexual acts or to share intimate photographs

or videos, often under a false promise of marriage or other fraudulent

representations.

9.5.Thereafter, the perpetrator clandestinely records or preserves the

intimate material and begins to use it as an instrument of coercion. The victim

is threatened with publication of such material on social media or circulation

among family members, friends, or colleagues. Under such fear and

intimidation, the victim is repeatedly compelled to submit to further sexual acts

or other unlawful demands, including extortion of money or other benefits.

Thus, the consent ostensibly obtained is not the product of a free and voluntary

choice but is secured through deception, intimidation, abuse of trust, and fear of

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serious consequences.

9.6.The present case bears all the characteristics of such a pattern of

romance fraud, sexual extortion, and rape by deception. The evidence of victim

demonstrates a continuous course of deception, emotional manipulation,

criminal intimidation, and sexual exploitation.Further, the evidence of the

prosecutrix unmistakably demonstrates four distinct stages in the commission

of the offence, each constituting a continuation of the same fraudulent design.

9.7.The first stage commenced with the accused initiating contact with

the victim through “Facebook”and ended with deliberate shifting of the

communication to the “Whatsapp” etc. For better appreciation of first stage ,

this court extracts following portion of deposition of victim:

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

9.8.The evidence clearly shows that the victim repeatedly declined his

friend request and was initially unwilling to establish any acquaintance with

him. It was only because of the persistent inducement and representations made

by the accused she ultimately accepted his request.

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9.9.After securing access to the victim through Facebook, the accused

clandestinely gathered information regarding her family background and

personal circumstances. Exploiting her vulnerable position, he falsely

represented that he could secure employment for her. Simultaneously, he

projected himself as a genuine suitor by expressing love and proposing

marriage. Believing these representations to be true, the victim shared her

mobile phone number solely for the purpose of receiving information regarding

employment opportunities.

9.10.Having obtained her phone number, the accused deliberately shifted

the communication from the relatively public platform of Facebook to the

privacy of WhatsApp and other personal messaging applications, thereby

ensuring confidential and continuous communication away from public

scrutiny. This transition formed part of a carefully designed plan to isolate the

victim and strengthen his emotional control over her.

9.11.The sequence of events leaves no room for doubt that the deception

commenced from the very inception of the relationship. The accused never

intended either to get employment or get married to her. Both representations

were merely a lip service and fraudulent inducements employed to gain her

confidence and emotional dependence. Thus, the very foundation of the

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relationship was built upon deception and fraudulent misrepresentation.

9.12.The first stage, therefore, conclusively establishes that the

relationship did not originate from mutual affection or genuine intention but

from a calculated and premeditated design to deceive the victim. It laid the

foundation for the subsequent stages of physical exploitation, clandestine

recording of intimate acts, criminal intimidation, and repeated sexual assaults.

9.13.The second stage of the evidence further reinforces the prosecution

case and completely belies the defence plea that the relationship was

consensual. For better appreciation of second stage , this court extracts

following portion of deposition of victim:

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

9.14.Upon a careful appreciation of the testimony of the prosecutrix, this

Court finds that, from 09.09.2019 onwards, she consistently avoided meeting

the accused in person. The evidence reveals that the accused persistently

requested, persuaded and insisted that she meet him, ostensibly to discuss the

arrangements for their proposed marriage. It was only because of such repeated

inducement and persuasion that the victim ultimately agreed to meet him on

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19.09.2019.

9.15.The conduct of the victim during the meeting assumes considerable

significance. The evidence demonstrates that she was extremely hesitant even

to enter the accused's car. Despite the request of the accused to her to occupy

the front passenger seat, she declined to do so and, with evident reluctance,

entered the vehicle only to sit in the rear seat. Such conduct is wholly

inconsistent with the defence theory of a willing participance and, on the

contrary, reflects her apprehension and unwillingness.

9.16.The evidence further discloses that after reaching the factory

premises, the accused first locked the premises and thereafter got into the rear

seat of the vehicle where the victim was seated. He then activated the central

locking system of the car, thereby preventing the victim from leaving the

vehicle. These acts were deliberate and calculated steps to isolate the victim

and deprive her of any realistic opportunity to escape.

9.17.The prosecutrix has consistently deposed that even at that stage she

resisted every physical advance made by the accused. She objected to his

physical contact and repeatedly expressed her unwillingness. The manner in

which the accused ultimately subjected her to sexual intercourse, as narrated by

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the prosecutrix, clearly demonstrates that the act was accomplished despite her

resistance and against her will. Her testimony does not disclose passive

acquiescence but it shows that she had no other escape route.

9.18.This Court finds the testimony of the prosecutrix at this stage also to

be natural, cogent, consistent and wholly trustworthy. No material

contradiction, exaggeration or embellishment has been elicited during the

cross-examination so as to discredit her version. On the contrary, her conduct

before, during and after the occurrence inspires confidence and is consistent

with the conduct of a woman who was deceived, isolated and overpowered by

the accused.

9.19.The third stage of the prosecution case further establishes the

continuity of the deception practised by the accused and the absence of free and

voluntary consent on the part of the victim. For better appreciation of third

stage , this court extracts following portion of deposition of victim:

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

9.20.Thus, the evidence of the prosecutrix discloses that immediately

after the first incident of sexual assault on 19.09.2019 wanted to tender the

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accused an apology on 20.09.2019 and attempted to justify his conduct by

stating that he had had in sexual intercourse only because he genuinely

intended to marry her. He repeatedly assured the victim that he would marry her

and requested her to forgive him. He further represented that arrangements had

already been made to secure employment for her and persuaded her to meet him

once again on the pretext of personally handing over the appointment order and

discussing their future.

9.21.The evidence unmistakably shows that these representations were

false and were made solely with the object of luring the victim into another

meeting. Believing the assurances of marriage and employment, the victim

agreed to meet the accused. Thus, the third meeting on 20.09.2019 itself was

procured by a continuation of the very deception with which the accused had

initiated the relationship.

9.22.The prosecutrix has consistently stated that even during this meeting

she remained apprehensive and unwilling. As on the earlier occasion, she

refused to occupy the front passenger seat of the vehicle and, despite the

repeated requests of the accused, chose to sit in the rear seat. This conduct

assumes considerable significance, as it reflects her continuing reluctance and

lack of confidence in the accused notwithstanding his repeated assurances and

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apology.

9.23.The evidence further reveals that during this meeting the accused

took the offensive selfie photograph of himself with the victim. Thereafter,

taking advantage of the emotional influence he had already established over her

and repeatedly referring to the previous incident and his promise of marriage,

he compelled the victim to submit to another act of sexual intercourse. The

prosecutrix has further narrated the harrowing experience and the abysmal way,

she was sexually exploited. Her testimony, read as a whole, demonstrates that

the accused treated her merely as a chattel for the gratification of his lust,

completely disregarding her dignity, autonomy and repeated expressions of

unwillingness.

9.24.This Court finds the testimony of the prosecutrix at this also stage to

be natural, consistent and wholly trustworthy. No material contradiction or

circumstance has been brought on record to discredit her evidence.

9.25.The fourth stage of the evidence demonstrates that the accused

translated the deception into criminal intimidation and thereafter repeatedly

subjected the victim to sexual exploitation by threatening to publish her

intimate photographs and videos. For better appreciation of fourth stage , this

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court extracts following portion of deposition of victim:

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

9.26.The prosecutrix has categorically deposed that, after the earlier

incidents, she refused to meet the accused any further. Having already been

subjected to sexual exploitation under false assurances of marriage and

employment, she was no longer willing to continue any relationship with him.

Despite her refusal, the accused repeatedly contacted her and once again

attempted to persuade her by reiterating his promise to marry her. The victim,

however, remained unwilling to meet him.

9.27. It was at this stage that the accused revealed his true colour and

design. He threatened the victim that he had secretly captured their intimate

moments and that, if she refused to meet him or failed to meet his demands, he

would publish the photographs and videos on social media and thereby ruin her

reputation and dignity on 26.09.2019. Faced with such threats, the victim

agreed to meet the accused only with the object of requesting him to delete the

offending material. Her conduct, viewed in its proper perspective, would show

that the victim acted under fear and compulsion rather than out of free choice.

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9.28.The evidence further establishes that when the victim met the

accused for the said purpose, he once again compelled her to submit to sexual

intercourse by exploiting the fear instilled in the mind of victim. After the

occurrence, he specifically warned her not to disclose the incident to anyone,

reiterating that any disclosure would result in the publication of the intimate

photographs and videos. Thus, the intimidation was not merely incidental but

formed an integral part of the continuing course of sexual exploitation. During

the said fourth stage, she sustained injuries forwhich, he had undergone

treatment and the same was clearly spoken by the Doctor/P.W.7. Accordingly,

this Court holds that the prosecution has proved beyond reasonable doubt that

the third act of sexual intercourse was also the result of deception and coercive

circumstances deliberately created by the accused. The apparent submission of

the victim cannot, in law, be construed as free and voluntary consent. The

evidence clearly establishes that the act happened against her will and without

her valid consent.

9.29.The defence itself, through the suggestions put to the prosecutrix

during cross-examination, has admitted the fact of multiple meetings and

repeated sexual encounters, though it sought to characterise them as

consensual.

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XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

9.30.Those suggestions, when read as a whole, lend further assurance to

the prosecution case that the sexual acts occurred more than one occasion. The

Hon'ble Supreme Court in the following cases has held that the suggestion

made to the witness by the defence counsel and reply to such suggestion would

definitely form part of the evidence. In the case of Balu Sudam Khalde v. State

of Maharashtra, reported in (2023) 13 SCC 365

44.During the course of cross-examination with a view to

discredit the witness or to establish the defence on

preponderance of probabilities suggestions are hurled on the

witness but if such suggestions, the answer to those incriminate

the accused in any manner then the same would definitely be

binding and could be taken into consideration along with other

evidence on record in support of the same.

9.31.The testimony of the prosecutrix that she was continuously

subjected to sexual exploitation by the accused inside the car (M.O.2)

belonging to him is cogent, consistent and inspires full confidence. Apart from

that, the said car was recovered during the course of the investigation and was

identified by the victim. Further, pursuant to the disclosure statement made by

the accused, the place where the vehicle had been stopped at the time of the

occurrence was also identified. It is a well-settled principle of law that the

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discovery of the place of occurrence, pursuant to the information furnished by

the accused, is admissible in evidence to the extent permitted under Section 27

of the Indian Evidence Act. Even though victim subjected to subtile cross

examination, nothing has been elicited in the cross-examination to discredit her

version. On the contrary, the sequence of events clearly establishes a

continuous chain of conduct beginning with fraudulent inducement, translating

it to emotional manipulation, followed by clandestine recording of intimate

moments, and culminating in repeated sexual exploitation under the threat of

public exposure.

9.32.The evidence, therefore, unmistakably establishes that the victim

was continuously subjected to sexual exploitation through deception, abuse of

trust and criminal intimidation. The successive acts of sexual intercourse were

not isolated incidents but formed part of one continuing transaction motivated

by a common design. The conduct of the accused squarely answers the

description of rape by deception, followed by rape through coercion and sexual

extortion.

9.33.Significantly, even according to the defence, the accused and the

victim became acquainted only through social media, and no previous enmity or

motive has been suggested as to why the victim should hunt him down to

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falsely implicate him in such grave offences. In the absence of any plausible

motive for false implication, the testimony of the prosecutrix deserves full

acceptance. The surrounding circumstances also corroborate her version

9.34.Unchallenged evidence of the victim is that more than two occasion

after the forcible physical relationship, the accused compelled the victim to

swallow his semen and from the said circumstances, it is clear that he acted

clever enough to avoid the complication of the pregnancy. Therefore, it is

rightly deposed by the victim that the said act was one amoung the humiliation

inflicted upon her. Her continued hesitation in meeting the accused, her

repeated refusal to occupy the front seat of the vehicle, the false assurances of

marriage and employment, and the accused's conduct in repeatedly exploiting

those assurances establish a continuous course of deception and coercion.

9.35.It is well settled that there can be a conviction on the basis of the

sole testimony of prosecutrix and further, in this aspect, it is relevant to

remember the following golden words of the Hon'ble Thiru.Justice Krishna Iyer

in case of Krishan Lal v. State of Haryana, reported in (1980) 3 SCC 159:

“4. We must bear in mind human psychology and behavioural

probability when assessing the testimonial potency of the victim's

version. What girl would foist a rape charge on a stranger unless a

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remarkable set of facts or clearest motives were made out? The

inherent bashfulness, the innocent naivete and the feminine

tendency to conceal the outrage of masculine sexual aggression are

factors which are relevant to improbabilise the hypothesis of false

implication..... And if rape has been committed, as counsel more or

less conceded, why, of all persons in the world, should the victim

hunt up the petitioner and point at him the accusing fingers? To

forsake these vital considerations and go by obsolescent demands

for substantial corroboration is to sacrifice common sense in

favour of an artificial concoction called "Judicial" probability.

Indeed, the court loses its credibility if it rebels against realism.

The law court is not an unnatural world.”

9.36. In the case of State of Punjab v. Gurmit Singh, reported in

(1996) 2 SCC 384 the Hon'ble Supreme Court also reiterated the above law

and the relevant portion is as follows:

“The courts must, while evaluating evidence, remain alive to the fact

that in a case of rape, no self-respecting woman would come forward

in a court just to make a humiliating statement against her honour

such as is involved in the commission of rape on her. In cases

involving sexual molestation, supposed considerations which have no

material effect on the veracity of the prosecution case or even

discrepancies in the statement of the prosecutrix should not, unless

the Discrepancies are such which are of fatal nature, be allowed to

throw out an otherwise reliable prosecution case. The inherent

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bashfulness of the females and the tendency to conceal outrage of

sexual aggression are factors which the courts should not overlook.

The testimony of the victim in such cases is vital and unless there are

compelling reasons which necessitate looking for corroboration of

her statement, the courts should find no difficulty to act on the

testimony of a victim of sexual assault alone to convict an accused

where her testimony inspires confidence and is found to be reliable.

Seeking corroboration of her statement before relying upon the same,

as a rule, in such cases amounts to adding insult to injury. Why

should the evidence of a girl or a woman who complains of rape or

sexual molestation, be viewed with doubt, disbelief or suspicion? The

court while appreciating the evidence of a prosecutrix may look for

some assurance of her statement to satisfy its judicial conscience,

since she is a witness who is interested in the outcome of the charge

levelled by her, but there is no requirement of law to insist upon

corroboration of her statement to base conviction of an accused. The

evidence of a victim of sexual assault stands almost on a par with the

evidence of an injured witness and to an extent is even more reliable.

Just as a witness who has sustained some injury in the occurrence,

which is not found to be self-inflicted, is considered to be a good

witness in the sense that he is least likely to shield the real culprit, the

evidence of a victim of a sexual offence is entitled to great weight,

absence of corroboration notwithstanding. Corroborative evidence is

not an imperative component of judicial credence in every case of

rape. Corroboration as a condition for judicial reliance on the

testimony of the prosecutrix is not a requirement of law but a

guidance of prudence under given circumstances. It must not be

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overlooked that a woman or a girl subjected to sexual assault is not

an accomplice to the crime but is a victim of another person's lust

and it is improper and undesirable to test her evidence with a certain

amount of suspicion, treating her as if she were an accomplice.

Inferences have to be drawn from a given set of facts and

circumstances with realistic diversity and not dead uniformity lest

that type of rigidity in the shape of rule of law is introduced through

a new form of testimonial tyranny making justice a casualty. Courts

cannot cling to a fossil formula and insist upon corroboration even if,

taken as a whole, the case spoken of by the victim of sex crime strikes

the judicial mind as probable.

9.37.The said view has been reiterated by the Hon'ble Supreme Court in

number of subsequent cases including in the case of State of U.P. v. Pappu,

reported in (2005) 3 SCC 594 and Ganesan v. State reported in (2020) 10 SCC

573

9.38.This Court, therefore, has no hesitation in holding that the repeated

acts of sexual intercourse committed by the accused constitute the offence

punishable under Section 376(2)(n) of the Indian Penal Code, as each act

formed part of a continuing course of repeated sexual intercourse upon the

same victim. Therefore, presumption under Section 114 A of Indian Evidence

Act comes into operation against the accused. The Section 114 A of the Indian

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Evidence Act is as follows:

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

PenalCode, 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.] [Substituted by Criminal Law (Amendment) Act, 2013]

9.39.In this case, the victim clearly deposed that she never consented for

physical relationship and the accused manipulated coersive circumstances to

have relationship. Therefore, presumption under section 114 A of evidence Act

operates against the accused. There was no evidence adduced or circumstances

available to dispel the same. In the absence of any evidence to dispel the

presumption, this Court finds that the evidence of victim is cogent, trustworthy

and without any infirmities to prove the offence against the accused under

section 376(2) (n) of IPC.

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9.40. Accordingly, this Court concurs with the findings recorded by the

learned Trial Judge that the prosecution has proved the charge under Section

376(2)(n) IPC beyond reasonable doubt. The conviction recorded by the Trial

Court, therefore, warrants no interference.

10.Discussion on electronic evidence:

10.1.Before advertising to the electronic evidence, it is necessary to

observe that the evidence of the victim is cogent, trustworthy, and inspires the

confidence of this Court. The victim has consistently and clearly narrated the

occurrence, and there is no iota of material to suggest any false implication of

the accused. the conviction can be based solely the testimony of the

prosecutrix, if the Court finds the victim's evidence is cogent, consistent,

credible , reliable, trustworthy and of sterling quality and which inspires

confidence and has remained unshaken on material particulars, without the

necessity of independent corroboration and no rule of law requires

corroboration in every case. “There is no rule of law that her testimony cannot

be acted upon without corroboration in material particulars”.

1

(1) “..Seeking

corroboration of her statement before relying upon the same, as a rule, in such

cases amounts to adding insult to injury”....(2)

12005 (3) scc 594, State of U.P. v. Pappu @ Yunus And Anr

2. 1996 (2) scc 384, State of Punjab v. Gurmit Singh

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10.2. In State of Punjab v. Gurmit Singh, reported in (1996) 2 SCC 384

which held as follows;

....Corroborative evidence is not an imperative component of

judicial credence in every case of rape. Corroboration as a

condition for judicial reliance on the testimony of the prosecutrix is

not a requirement of law but a guidance of prudence under given

circumstances...”

10.3.In State of U.P. v. Pappu, Reported in (2005) 3 SCC 594 which

held as follows:

‘12. It is well settled that a prosecutrix complaining of having been

a victim of the offence of rape is not an accomplice after the crime.

There is no rule of law that her testimony cannot be acted upon

without corroboration in material particulars. She stands at a

higher pedestal than an injured witness. In the latter case, there is

injury on the physical form, while in the former it is both physical

as well as psychological and emotional. However, if the court of

facts finds it difficult to accept the version of the prosecutrix on its

face value, it may search for evidence, direct or circumstantial,

which would lend assurance to her testimony. Assurance, short of

corroboration as understood in the context of an accomplice, would

do.’

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10.4.The same was reiterated by the Hon'ble Supreme court in case of

Ganesan v. State reported in (2020) 10 SCC 573 which held as follows:-

“12. It is well settled that a prosecutrix complaining of having

been a victim of the offence of rape is not an accomplice after

the crime. There is no rule of law that her testimony cannot be

acted upon without corroboration in material particulars, She

stands at a higher pedestal than an injured witness. In the latter

case, there is injury on the physical form, while in the former it

is both physical as well as psychological and emotional.

However, if the court of facts finds it difficult to accept the

version of the prosecutrix on its face value, it may search for

evidence, direct or circumstantial, which would lend assurance

to her testimony. Assurance, short of corroboration as

understood in the context of an accomplice, would do.”

10.5.The conviction recorded by the learned trial Judge is, therefore, fully

supported by the oral testimony of the victim. This Court concurs with the

findings recorded by the learned trial Judge on the appreciation of the victim's

evidence. However, as the prosecution case substantially emanates from the

electronic evidence recovered in the base case in Crime No.503 of 2020, this

Court proposes to examine the corroborative electronic evidence in detail.

10.6.The records disclose that the accused was first arrested in the base

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case, namely Crime No.503 of 2020, on 24.04.2020 at 16.15 hours by P.W.27.

Following the arrest, P.W.27 recorded the voluntary confession of the accused,

and pursuant to the admissible portion of the confession (Ex.P-25), recovered

Apple mobile phone (M.O.4) bearing the relevant mobile number 9629359759

and IMEI number 353839101001992 under the recovery mahazar (Ex.P-23).

The evidence of P.W.27 regarding the arrest, confession and recovery is cogent,

consistent and free from any indication of false implication.

10.7.It is a settled principle of criminal jurisprudence that the testimony

of a police officer cannot be discarded merely because he belongs to the police

force. Unless there exists material creating a reasonable doubt regarding the

fairness of the recovery or suggesting false implication, the evidence of a police

officer is to be treated on par with that of any other competent witness. This

principle has been authoritatively laid down by the Constitution Bench of the

Hon'ble Supreme Court in case of Mukesh Singh v. State (NCT of Delhi),

reported in (2020) 10 SCC 120 that the testimony of police personnel will be

treated in the same manner as testimony of any other witness and there is no

principle of law that without corroboration by independent witnesses his

testimony cannot be relied upon and the presumption that a person acts honestly

applies as much in favour of a police officer as of other persons, and it is not

judicial approach to distrust and suspect him without good grounds therefor by

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affirming earlier decisions Hon'ble Two members Bench:

Karamjit Singh v. State (Delhi Admn.), (2003)

5 SCC 291

Devender Pal Singh v. State (NCT

of Delhi), (2002) 5 SCC 234

8....... The testimony of police personnel

should be treated in the same manner as

testimony of any other witness and there is no

principle of law that without corroboration by

independent witnesses their testimony cannot

be relied upon. The presumption that a person

acts honestly applies as much in favour of a

police personnel as of other persons and it is

not a proper judicial approach to distrust and

suspect them without good grounds. ..

37. .... The presumption that a

person acts honestly applies as much

in favour of a police officer as of

other persons, and it is not a judicial

approach to distrust and suspect him

without good grounds therefor. Such

an attitude can do neither credit to

the magistracy nor good to the

public. It can only run down the

prestige of police administration..

10.8.The prosecution has further established that A-2, the father of A-1,

was arrested on 26.04.2020, during which an Apple MacBook, admittedly used

by A-1 and containing the incriminating digital materials, was recovered under

the recovery mahazar (Ex.P-21). The recovery has been clearly spoken to by

P.W.27, the Investigating Officer, and independently corroborated by P.W.24,

the Village Administrative Officer, Kalaiselvi, who witnessed the recovery

proceedings. Both witnesses were subjected to extensive cross-examination;

however, nothing was elicited to discredit their testimony or to cast any doubt

on the genuineness of the recovery. Consequently, this Court holds that the

recovery of both 'the Apple mobile phone (M.o.4) 'and 'the Apple MacBook

(M.o.3)' stands duly proved in accordance with law.

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10.9. The recovery of the laptop assumed considerable significance, as it

constituted the primary repository of the incriminating electronic evidence.

During interrogation, the appellant voluntarily identified the victims whose

photographs and videos were stored therein. On the basis of the information

furnished by him, the investigating agency identified more than sixty victims.

Having established the legality of the recovery, the prosecution has further

demonstrated the manner in which the electronic evidence was preserved and

examined. The laptop, along with the other electronic devices, were thereafter

sealed in accordance with law and forwarded to the Forensic Science

Laboratory, Chennai, for scientific examination and extraction of the electronic

data.The Apple MacBook was forwarded to the Forensic Science Laboratory

pursuant to orders of the competent Court namely learned Judicial Magistrate,

Additional- Mahila Court, Nagercoil. The forensic experts, after obtaining the

requisite judicial permission from the court, adopted the standard forensic

procedure namely “super duber for mac os method” and successfully cloned

files from 'the Apple MacBook (M.O.3) and copied onto a hard disk in

accordance with established forensic protocols by ensuring the intactness of the

original electronic device. The hard disk together with the preliminary forensic

report was forwarded to the jurisdictional Court under Ex.P-17, dated

28.08.2020, vide proceeding division No.CF/100/2020. The material contents

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of the report as follows :

“In the contents of the report, present victim vedio was annexed in

Annexure -II, (351 vedio file, dated 21.09.2019)

(i) A complete copy of the data available in the laptop was as such

copied on to the hard disk in a viewable condition. The folders under

the main user/folder named kasi_k9, is as follows: .......

(ii) Among the stored files, in the following folder path

kasi_k9\downloads\demo file\demi\v d, video files (355 nos)

pertaining to the female individuals in obscene poses (nude/half

nude) including selfie type videos of female involved in vedio calls

with a male individual, were found stored. File attributes for the

video files are given in Annexure I.

(iii) Also in another subfolder (same main folder path)

kasi_k9\Downloads\demofile\demo\p d, image files pertaining to the

female individuals in obscene poses (nude/half nude) were found

stored. File attributes for selected image files n the folder are givn in

Annexure II.

(iv) Several files under different subfolders which could have been

copied from the mobile phones were found stored under the path:

kasi_k9\Downloads\demo file\phone file. The subfolders under the

main folder phone file, are as follows: ...

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(v) File attributes for the folders/files under the user /main folder

named “kasi_k9” generated in a worksheet file and the same is

copied onto a Digital Versatile Disc marked as “CF100/2020

generated reports in pdf formats”.

10.10. Subsequently, on the basis of the complaint lodged by the victim

on 30.10.2020, the present case was registered by P.W.28, the CBCID

Investigating Officer, after obtaining the requisite permission from the superior

authority in accordance with the CBCID Manual. Thereafter, A-1 was arrested

on 07.11.2020, and pursuant to the orders of the jurisdictional Court, P.W.28

obtained four days of police custody for the purpose of investigation.

10.11. During the period of police custody, the Investigating Officer

obtained the forensic hard disk from the Forensic Science Laboratory on

10.11.2020. Thereafter, an identification procedure was conducted in the

presence of P.W.18, the Scientific Officer, and independent witnesses P.W.19

and P.W.21. The relevant evidence of the witnesses in this aspects as follows:

PW 18 ,ij bjhlh;e;J tHf;fpd; ghjpf;fg;gl;l bgz;iz tPonahtpy; 1tJ vjphp R$p

vd; Kd;dpiyapy; milahsk; fhl;odhh;/ P.W.19 bray;Kiw Mizapy; 87tJ fhyj;jpy;

ghjpf;fg;gl;l bgz;zpd; g[ifg;glj;ij 1tJ vjphp milahsk; fhl;odhh;/ PW 21, PW

28 have also deposed in the similar line of PW 18 and PW 19. Therefore, P.W.

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18, P.W.19, P.W.21 and P.W.28 have consistently deposed that the accused

himself identified the victim and the relevant photographs and videos stored in

the hard disk. Their evidence is consistent, inspires confidence, and remains

unshaken in cross-examination. The entire identification process was

contemporaneously recorded by the Investigating Officer under the “bray;Kiw

tpsf;f Miz (Ex.P-12)”, which bears the signatures of the accused, the

Scientific Officer, the independent witnesses and the Investigating Officer,

thereby lending further assurance to the authenticity of the identification

process. During this procedure, the accused identified the photographs and

video recordings relating to the number of victims which were stored in the

hard disk. After the completion of the identification proceedings, on

11.11.2020, PW 28, handed over the photos and videos to place the same in

safe custody of the Court vide communication dated Ex.P.33 and thereafter, the

relevant portion of the videos and photos of the victim was sent to the FSL

office. The said reports under Ex.P.19, 20, MO.20, were marked by examining

the concerned expert PW 22 (computer division and Anthropology division)

and the report dated 30.09.2022, marked under Ex.P. 34 by examining the

concerned expert PW 29(Physics division). Upon furnishing the copies, they

are cross examined and the specific case of morphing is completely ruled out by

the said witnesses without accepting the suggestion of the defence.

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10.12. Having thus established the chain of custody, the legality of the

recoveries, and the manner in which the electronic evidence was secured,

preserved and subjected to forensic examination, this Court now proceeds to

examine the admissibility, reliability and evidentiary value of the electronic

evidence in accordance with the provisions of the Indian Evidence Act and the

settled principles laid down by the Hon'ble Supreme Court.

11. Discussion the plea of genuiness of EX.P12 :

11.1. On 10-11-2020, the accused identified the victim along with him in

all the offending materials namely the hard disk delivered by the FSL office.

And the said identification has been spoken to P.W.s 18, 19 and 21. And the

said process was recorded in the Exhibit P12. The process of making Exhibit

P12 was critically objected by the learned senior counsel on the basis of the

date that it was wrongly mentioned. It was argued that it can be taken that the

report is not only false but also fabricated one. The said submission also is not

accepted by this court. There was an inadvertent omission, inadvertent mistake.

Instead of putting the date “10-11-2020”, she signed and mentioned the date as

“11-10-2020”. This is a human error. The human error is found in the said

document itself. This is prepared in the presence of PWs 18, 19, 21. All these

witnesses signed on 10-11-2020. Even in the last page of the proceedings, the

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same investigation officer has put the signature as 10-11-2020. The said

document also reached the court on 11-11-2020. Therefore, this inadvertent

mistake has not affected the case of the prosecution and it cannot be taken

advantage by defence. The learned Senior Counsel placed considerable reliance

upon the discrepancy about the dates found in Exhibit P-12, contending that

the Investigating Agency had fabricated the document with a view to securing

the conviction of the accused in collusion with other departments. This Court is

unable to accept the said contention.

11.2. A careful reading of the document reveals that the forensic process

was in fact conducted on “10.11.2020”. However, in the signature column, the

Investigating Officer inadvertently mentioned the date as “11.10.2020”. Having

regard to the document as a whole and the surrounding circumstances, this

Court is satisfied that the discrepancy is nothing but an inadvertent human error

in recording the date. Significantly, the records also disclose that the material

object was received from the jurisdictional Court on the relevant date ie.,

11.11.2020 itself, thereby lending assurance to the genuineness of the document

and the continuity of the chain of custody.

11.3. It is well settled that every clerical or inadvertent error committed

by a public servant cannot be elevated to the level of fabrication or

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manipulation unless there is cogent and convincing evidence establishing a

deliberate attempt to create false evidence. In the present case, there is

absolutely no material to infer that the discrepancy about the date was

intentional or that the Investigating Agency acted in collusion with any other

department to fabricate evidence. On the contrary, the records unmistakably

indicate that it is a mere clerical or human error, which does not affect the

authenticity or evidentiary value of Exhibit P-12.

12. Discussion in delay in production of FSL Report:-

12.1. The learned Senior Counsel appearing for the appellant vehemently

contended that the investigating agency filed the final report on 23.01.2021,

without awaiting the forensic examination report relating to the electronic

devices and, therefore, the prosecution was launched without sufficient

material. According to the learned Senior Counsel, the subsequent production

and marking of the forensic reports cannot cure the defect in the

investigation.The learned Senior Counsel further contended that the

examination of certain expert witnesses after the filing of the final report

vitiates the prosecution case.

12.2. This Court finds no merit in the said submission and also unable to

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accept the same. Already the report dated 28-8-2020, in the base case was

marked under Exhibit P17 including the portion of this crime, which was

already available with the court. The same was obtained and the identification

was clearly spoken by the accused as well as the victim. The Investigating

Officer, who was present before this Court, categorically explained that already

report had been received by the learned Judicial Magistrate and the same was

marked under Ex.P17 and after the arrest and the accused identification of the

victim in the offending material, the corresponding portion of the video was

separated as per the Court order (M.O.1) and the same was sent to the FSL lab

immediately.

12.3. Further according to IO ,the Forensic Science Laboratory has

separate specialised divisions dealing with electronic evidence, including

computer division, the Anthropology Division, and Physics Division. The

Cyber Forensic Division of the laboratory follows a multi-stage appraisal

process. The examination is undertaken by different specialised divisions, each

of which carries out independent analysis. Thereafter, the individual reports

were assimilated and a comprehensive final report was prepared and forwarded

to the jurisdictional Court. Naturally, such a scientific process consumes

considerable time. Therefore, the final report came to be filed without obtaining

the requisite report as contemplated under the Criminal Rules of Practice, 2019.

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Further, the relevant Rules and Circulars provide that such report may

subsequently be obtained directly by the Court, either under Section 293 Cr.P.C.

or Section 294 Cr.P.C. Apart from the above, for marking an expert report under

Section 294 Cr.P.C., there is no necessity to examine the expert witness, as per

the Memorandum of Procedure issued by this Court.

12.4. In the present case, the Investigating Officer had forwarded the

electronic devices for examination much earlier without any delay. However, as

the investigation had already yielded substantial and cogent evidence

establishing the commission of the offences, including the victim's statement,

the recoveries effected pursuant to the voluntary confessions of the accused,

and the electronic materials already secured, the Investigating Officer filed the

final report on 23.01.2021 without awaiting the consolidated forensic report

pertaining to this case material namely M.O.1.

12.5. Apart from that, during the course of trial, the prosecution filed the

petition in Crl.M.P(MD).No.77 of 2023 to examine P.W.29 and the accused

said “no objection” and therefore the petition had been allowed and P.W.29, the

FSL officer was called and the corresponding report and M.O.1 pertaining to

the portion of this crime were marked .Such a course is not only legally

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permissible but is also consistent with the duty of the Court to discover the

truth and ensure a fair trial. The course of calling report through the legal

process of filing petition has not been questioned by the accused. In those

circumstances, the learned trial Judge rightly exercised the power to summon

the expert witness and mark the relevant documents so as to place the complete

scientific evidence before the Court. It is well settled principle that the Court

possesses unbriddled power to examine expert evidence if it is necessary for

arriving at the truth and that procedural lapses should not defeat the cause of

justice and the Court has a duty to ensure that all relevant evidence is brought

on record in the interests of justice. There is no legal infirmity in this case, and

hence the belated production of the report does not dent the case of the

prosecution and the expert witnesses, namely P.W.22 and P.W.29, entered the

witness box, produced the forensic reports and explained the scientific

examination conducted by them. They are experts, independent persons without

any motive to depose falsely about the contents of the electronic document

produced by the police officers and the same was done as per legal

procedures.They were subjected to lengthy, searching and incisive cross-

examination on every material aspect relating to the forensic process.The

experts PW22 and PW29 cannot be held to be false witnesses.

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12.6. Hence, the learned trial Judge adopted the above course only to

ensure a fair trial, both for the prosecution and for the accused, by placing

before the Court the complete scientific evidence relating to the electronic

material. This Court finds no procedural irregularity or legal infirmity in the

said course adopted by the trial Court. Therefore, this court finds there is no

infirmity in all aspects about the electronic evidence and also this court is

unable to accept the argument of senior counsel relating to the admissibility of

electronic evidence.

12.7. The experts consistently deposed that the electronic devices

examined by them showed no signs of tampering, manipulation or morphing

and that the actual contents of the electronic data had remained intact

throughout the forensic examination. Nothing worthwhile could be elicited

during their cross-examination to discredit either their reports or the scientific

methodology adopted by them.

12.8. It is also pertinent to note that the forensic reports had been

furnished to the accused well before they were formally exhibited during trial.

Therefore, the appellant had full enough time and opportunity to study the

reports, effectively cross-examine the expert witnesses and contest the scientific

evidence. Consequently, no prejudice whatsoever has been demonstrated to

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have been caused to the defence merely because the reports were formally

marked at the later stage of the trial.

12.9. It is well settled that every irregularity or omission in the course of

investigation does not vitiate the trial unless it has occasioned a failure of

justice or caused prejudice to the accused. In the present case, the evidence of

the victim has been found to be cogent, natural and wholly trustworthy. The

forensic reports only lend further scientific corroboration to the prosecution

case and are not the sole foundation of the conviction.

12.10. Accordingly, the contention of the learned Senior Counsel that the

filing of the final report prior to the receipt of the consolidated forensic report

renders the prosecution unsustainable is misconceived and liable to be rejected.

13. Discussion on the plea of the admissibility and evidentiary value

of the electronic evidence:

13.1.According to the learned Senior Counsel, the incriminating

materials found in the MacBook (M.O.3) cannot be treated as the original

electronic records, in view of the specific reference made to the “Apple iPhone

XS” in the report Ex.P17. It is contended that the incriminating materials were

originally recorded using the “Apple iPhone XS” and were thereafter

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transmitted to the MacBook (M.O.3). Therefore, in the absence of a certificate

under Section 65-B of the Indian Evidence Act, the contents of the MacBook

cannot be treated as primary evidence. Consequently, reliance placed upon the

contents of the MacBook, without such certificate, is illegal and lacks

evidentiary value.

13.2. This Court is unable to accept the submissions advanced by the

learned Senior Counsel regarding the admissibility and evidentiary value of the

electronic evidence. With due respect, the said submissions are founded upon

an incorrect appreciation of both the factual circumstances and the settled legal

principles governing electronic evidence.

13.3. It is the specific case of the victim that the accused clandestinely

recorded the incriminating videos on 20.09.2019 without her knowledge or

consent. In this regard, it is relevant to extract the unchallenged testimony of

the victim:

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

13.4.The above evidence was not subjected to any challenge during

cross-examination. It is a settled principle that when a material statement made

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during examination-in-chief remains unchallenged in cross-examination, the

same can be accepted as true. Therefore, it is established that the recording was

made by the accused without the knowledge of the victim.

13.5.The nature of the electronic device used for recording and the

process by which such recording was made were matters particularly within the

knowledge of the accused. It is not the case of the accused that M.O.3 was

neither used by him nor recovered from his possession. The expert report

Ex.P17 clearly records the presence of the incriminating materials relating to

the incident dated 20.09.2019. The disclosure statement of the accused also

indicates that the incriminating materials were recorded using M.O.3.

13.6.In the considered view of this Court, the accused not only recorded

the incriminating materials in a clandestine manner but also attempted to

mislead the investigation by stating that the recording device was an iPhone 11

(M.O.4).

13.7.It is also relevant to note the evidence of P.W.28, wherein it was

stated that the incriminating materials were transferred through the process of

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synchronization using the continuity feature available between Apple devices.

13.8.Once the original MacBook containing the incriminating materials

was recovered, scientifically examined, and the relevant videos were extracted

through forensic analysis, the evidentiary value of such electronic records

cannot be rejected merely because the original recording device was not

recovered. If the accused seeks to contend that the videos were recorded

through another device, it is incumbent upon him to provide a satisfactory

explanation regarding the manner in which such recordings came to be

synchronized and stored in the seized MacBook.

13.9. The learned Trial Judge has also elaborately considered the

technological linkage between the seized MacBook and the iPhone. It is

relevant to note that the accused was using Apple devices, namely an Apple

iPhone, Apple Watch, and MacBook. Upon appreciation of the forensic

evidence, the Trial Court rightly observed that the images and videos stored in

the MacBook were synchronized through the continuity features available

between Apple devices.

13.10.This Court finds no infirmity in the said reasoning. In view of the

foregoing discussion, the incriminating materials found in the MacBook (M.O.

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3) shall be treated as originating from the primary source, and consequently, no

certificate under Section 65-B of the Indian Evidence Act is required for

proving the contents of the MacBook (M.O.3).

13.11. As per the decision of the Hon'ble three judges Bench decision of

the Apex Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao

Gorantyal reported in (2020) 7 SCC 1, when the original was produced, there is

no necessity to obtain certificate under Section 65-B. The incriminating

electronic material marked as Material Object No.1 relating to this case was

extracted from the seized “Apple MacBook laptop M.O.3”, which had already

been produced before the competent Court . The device was made available to

the investigating agency in the present case only after obtaining appropriate

orders from the jurisdictional Court. The prosecution has thus established an

unbroken chain of custody regarding the electronic device.

13.12. The learned Trial Judge has examined this issue from two distinct

perspectives.

13.12.1. Firstly, the Court rightly observed that a certificate under Section

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65-B is ordinarily required from the person who has lawful control over the

computer or electronic device from which the electronic record is produced.

The three judges bench of Hon'ble Supreme Court Arjun Panditrao Khotkar v.

Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, has also recognised that a

certificate cannot be insisted upon where obtaining the same is impossible

despite best efforts. The Hon'ble Supreme Court has recognised such situations

of impossibility and impracticability. In Shafhi Mohammad v. State of

Himachal Pradesh, (2018) 2 SCC 801, and the three judges Bench decision of

the Hon'ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao

Gorantyal, (2020) 7 SCC 1, it has been clarified that where the party relying

upon the electronic record is not in possession or control of the original device

and it is impossible to secure the requisite certificate, the Court may adopt an

appropriate course consistent with the interests of justice. In the present case,

that person is none other than the accused himself. It would be wholly

unrealistic and legally untenable to insist that the prosecution should obtain a

certificate from the accused, who was in judicial custody and was the author

and custodian of the incriminating electronic records.

13.12.2.Secondly, the electronic data contained in Material Object No.1

was subjected to scientific examination by the Forensic Science Laboratory.

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The expert evidence only explains the contents retrieved from the original

electronic device that was already in the lawful custody of the investigating

agency relating to the portion of the present case. The expert merely analysed

and processed the electronic contents already stored in the original device

seized during investigation. Such forensic examination does not amount to

creation of a fresh electronic record requiring a separate certificate under

Section 65-B of the Evidence Act.

13.13. This Court, therefore, finds that the prosecution has established

the authenticity, genuineness and continuity of the electronic evidence through

the seizure mahazars, the disclosure statement of the accused, the scientific

examination, the forensic reports and the oral evidence of the expert witnesses.

No material has been produced by the defence to suggest any tampering,

fabrication or manipulation of the electronic records.

13.14. Accordingly, the submission of the learned Senior Counsel that a

certificate under Section 65B was mandatory for the offending materials stored

in the seized Mac Book is misconceived and legally un-sustainable. The

contention is, therefore, rejected. The findings recorded by the learned Trial

Judge on this aspect are based on a correct appreciation of the evidence and

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settled principles of law and, therefore, warrant no interference.

14. Discussion on the plea of morphing:

14.1. The learned Senior Counsel placed considerable reliance on the

testimony of the forensic expert during cross-examination, contending that

there existed a possibility of morphing or manipulation of the messages, videos,

and other offending electronic materials. This Court is unable to accept the said

submission.

14.2. The learned trial Judge, after playing the impugned video in open

Court and observing the demeanour of the victim, recorded a categorical

finding that the contents of the offending material unmistakably corresponded

to the victim and the accused. In order to independently test the correctness of

the said finding, this Court also viewed the video, which runs for more than 18

minutes. Upon careful examination, this Court does not find even a slightest

circumstance suggesting that the video has been morphed, fabricated, or

digitally manipulated. On the contrary, the video appears to be a natural and

continuous recording clandestinely made by the accused with the object of

threatening, intimidating, and coercing the victim into continued submission to

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his unlawful demands. Mere suggestions elicited in cross-examination

regarding a theoretical possibility of morphing, without any scientific evidence

demonstrating actual tampering, cannot displace the evidentiary value of the

electronic record. Further affirmative and assertive evidence of expert is that

there was no morphing which reads as follows:

PW 22, FTK Imager, Super duper method y; ve;j ,nk$;fSk; tPonahf;fSk;

fpilf;fhjjhy; khh;gp'; K:yk; nghyprhh; nfl;ljpd; nghpy; ,e;j mwpf;iffs; jahh;

bra;ag;gl;ls;sJ vd;why; rhpay;y/;

PW 29, ehd; Ma;t[ bra;j ,nk$; igy;fSk; tPonah igYk; tHf;fpw;fhf

gpd;dpl;L jahhpf;fg;gl;lit vd;why; rhpay;y/

14.3.The learned Senior Counsel assailed the admissibility and

genuineness of Exhibit P-1, the selfie photograph, contending that it was a

fabricated document created by the Investigating Agency. In support of the said

contention, reliance was placed upon certain portions of the evidence and the

objections raised during the trial. This Court is unable to accept the said

submission.

14.4. A careful reading of the cross-examination of the victim reveals that

the defence itself put a specific suggestion that the victim had voluntarily

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consented to take Exhibit P-1, namely the selfie photograph, along with the

accused. Such a suggestion is wholly inconsistent with the defence plea that the

photograph was fabricated. If the defence asserts that the victim willingly

participated in taking the selfie, it necessarily proceeds on the premise that the

photograph is genuine. Having taken such a defence during cross-examination,

it is not logical to subsequently contend that the very same photograph was

fabricated by the Investigating Agency.

14.5. The law is well settled that though an accused is entitled to raise

alternative defences, the mutually destructive and irreconcilable pleas which

negate each other substantially weaken the credibility of the defence. In the

present case, the plea that the victim voluntarily posed for the selfie is

fundamentally inconsistent with the allegation that Exhibit P-1 was fabricated.

14.6. This Court has independently examined Exhibit P-1 along with

Material Object No. 1 (M.O.1) and the other contemporaneous records. The

materials on record do not disclose any circumstance suggesting that the

photograph was manipulated, fabricated, or subsequently created by the

Investigating Agency. On the contrary, the electronic evidence and the

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connected material objects lend assurance to the authenticity of the photograph.

Accordingly, the contention of the learned Senior Counsel that Exhibit P-1 and

the connected material objects were fabricated by the Investigating Agency is

wholly devoid of merit and is liable to be rejected.

14.7. The Hon'ble Supreme Court has consistently held that when

authenticity of electronic evidence is duly established in accordance with law,

they cannot be discarded on the basis of mere conjectures or hypothetical

possibilities in the absence of tangible material establishing manipulation.

Accordingly, the contention regarding alleged morphing is wholly

misconceived and deserves to be rejected.

14.8. Pending investigation, the Investigating Officer made a requisition

through the jurisdictional Court to the Forensic Science Laboratory by

communication in D.No.1255 of 2020, requesting segregation and preservation

of the electronic evidence specifically relating to the present victim from the

data extracted from the seized electronic devices.

14.9. Only after such identification by both the appellant and the victim,

the investigating agency forwarded the victim's admitted photographs to the

Forensic Science Laboratory for comparison with the images and videos

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extracted from the seized devices. This exercise was undertaken only as a

measure of scientific corroboration and not for the purpose of identifying the

victim for the first time. Thus, the forensic comparison constituted an additional

corroborative step to reinforce the evidence already available through the

appellant's own disclosure, the victim's identification, and the electronic records

recovered during the course of investigation.

14.10. Moreover, the victim, while deposing before the trial Court,

specifically identified Ex.P1, the selfie photograph, and also identified the

offending photographs and videos contained in M.O.1. Her identification was

clear, consistent and remained unshaken during cross-examination. The learned

trial Judge, who had the advantage of observing the demeanour of the victim

during his testimony, as well as the manner in which the electronic materials

were identified before the Court, accepted his evidence as natural and

trustworthy.

14.11. Accordingly, this Court finds no substance in the submission that

the filing of the final report prior to receipt of the forensic comparison report

creates doubt regarding the prosecution case. On the contrary, the evidence on

record, both oral and electronic, establishes the identity of the victim beyond

reasonable doubt, and the subsequent expert opinion only reinforces the

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prosecution version

15. Discussion on the delay in lodging FIR:

15.1. The contention advanced by the learned Senior Counsel regarding

the delay in lodging the First Information Report does not merit acceptance. In

this aspects ,it is relevant to extract the following portion of evidence of victim:

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

15.2. A careful appreciation of the evidence on record reveals that the

delay has been satisfactorily and convincingly explained by the prosecutrix.

Her explanation is not confined merely to her oral testimony but stands fully

corroborated by the attendant circumstances and the documentary evidence

placed before this Court.

15.3. The consistent case of the prosecutrix is that she was subjected to

continuous criminal intimidation by the accused, who repeatedly threatened to

publish her intimate photographs and videos on social media if she disclosed

the sexual assaults to anyone. The prosecution has established through the

electronic evidence recovered during investigation that such objectionable

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materials were, in fact, in the possession of the accused. Consequently, the

apprehension entertained by the prosecutrix was neither imaginary nor

unfounded but was based upon a real and continuing threat.

15.4. The complaint itself lends intrinsic assurance to the prosecution

case. A reading of the complaint shows that the prosecutrix specifically

requested the Investigating Officer to safeguard her identity and not to disclose

her name to any person. She further requested the Investigating Officer to

ensure the deletion of the objectionable photographs and videos from the

electronic devices of the accused. These requests, made contemporaneously

while lodging the complaint, clearly demonstrate the intense fear, trauma and

apprehension under which the prosecutrix was living. They also negate any

suggestion that the complaint was an afterthought or motivated by extraneous

considerations.

15.5. The evidence further discloses that the prosecutrix remained under

continuous threat of exposure until the investigating agency, in the earlier

registered crime, seized the electronic devices containing the incriminating

material. It was only after she became aware that the offending materials had

been recovered by the investigating agency and that her identity and privacy

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could be effectively protected she gathered courage to approach the police and

narrate the entire sequence of events. In her complaint, she specifically referred

to the threats administered by the accused, the repeated acts of sexual assault,

and her request for deletion of the offending electronic material. These

circumstances furnish a natural, cogent and wholly satisfactory explanation for

the delay in lodging the complaint.

15.6. This Court is also unable to overlook the peculiar factual

background of the present case. The materials available on record disclose that

the accused had allegedly employed a similar modus operandi against several

women, exploiting them through deceit, intimidation and the misuse of intimate

electronic images. The prosecutrix, being aware of the influence exercised by

the accused and the smutty material allegedly in his possession, had every

reason to entertain genuine fear regarding her personal safety, the dignity of her

family and the reputation of her sisters. The fear of public humiliation through

dissemination of intimate images on social media constitutes a powerful

psychological restraint, which cannot be lightly ignored while appreciating the

delay in initiating criminal proceedings. In the considered opinion of this Court,

in the above circumstances, the conduct of the victim is natural. Under the

above circumstances, delay in giving complaint is not fatal to the prosecution.

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In the sexual offence Case, acceptance of the reasoning of delay is Rule and

denial is exception. The Hon'ble Supreme Court in the following cases has laid

down the law that the delay in registering the case in sexual offence case is

entirely different from other crime and hence the explained delay is to be

accepted except in the case of false implication.

15.7.The Hon'ble supreme court in the Karnel Singh v. State of M.P.,

reported in (1995) 5 SCC 518 has held as follows:-

7. Merely because the complaint was lodged less than

promptly does not raise the inference that the complaint was

false. The reluctance to go to the police is because of society's

attitude towards such women; it casts doubt and shame upon her

rather than comfort and sympathise with her. Therefore, delay in

lodging complaints in such cases does not necessarily indicate

that her version is false. ...

15.8. The Hon'ble supreme court in the State of Punjab vs Gurmit

singh reported in (1996) 2 SCC 384 has held as follows:-

The courts cannot overlook the fact that in sexual offences delay in

the lodging of the FIR can be due to variety of reasons particularly

the reluctance of the prosecutrix or her family members to go to the

police and complain about the incident which concerns the

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reputation of the prosecutrix and the honour of her family. It is only

after giving it a cool thought that a complaint of sexual offence is

generally lodged. The criticism by the trial court of the evidence of

the prosecutrix as to why she did not complain to the lady teachers

or to other girl students when she appeared for the examination at

the centre and waited till she went home and narrated the

occurrence to her mother is unjustified. The conduct of the

prosecutrix in this regard appears to us to be most natural. The trial

court overlooked that a girl, in a tradition- bound non-permissive

society in India, would be extremely reluctant even to admit that any

incident which is likely to reflect upon her chastity had occurred,

being conscious of the danger of being ostracized by the society or

being looked down by the society. Her not informing the teachers or

her friends at the examination centre under the circumstances

cannot detract from her reliability. In the normal course of human

conduct, this unmarried minor girl, would not like to give publicity

to the traumatic experience she had undergone and would feel

terribly embarrassed in relation to the incident to narrate it to her

teachers and others overpowered by a feeling of shame and her

natural inclination would be to avoid talking about it to anyone, lest

the family name and honour is brought into controversy. Therefore

her informing her mother only on return to the parental house and

no one else at the examination centre prior thereto is in accord with

the natural human conduct of a female

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15.9. The Hon'ble supreme court in the State of H.P. v. Prem Singh,

reported in (2009) 1 SCC 420 is held as follows:

“6.So far as the delay in lodging the FIR is concerned, the

delay in a case of sexual assault, cannot be equated with the case

involving other offences. There are several factors which weigh in

the mind of the prosecutrix and her family members before coming

to the police station to lodge a complaint. In a tradition-bound

society prevalent in India, more particularly rural areas, it would

be quite unsafe to throw out the prosecution case merely on the

ground that there is some delay in lodging the FIR. In that score,

learned counsel for the appellant is right that the High Court has

lost sight of this vital distinction.

15.10. The same has been reiterated by the Hon'ble supreme court in the

Deepak v. State of Haryana, reported in (2015) 4 SCC 762 is held as

follows:-

15. The courts cannot overlook the fact that in sexual

offences and, in particular, the offence of rape and that too on a

young illiterate girl, the delay in lodging the FIR can occur due to

various reasons. One of the reasons is the reluctance of the

prosecutrix or her family members to go to the police station and

to make a complaint about the incident, which concerns the

reputation of the prosecutrix and the honour of the entire family.

In such cases, after giving very cool thought and considering all

pros and cons arising out of an unfortunate incident, a complaint

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of sexual offence is generally lodged either by the victim or by any

member of her family. Indeed, this has been the consistent view of

this Court as has been held in State of Punjab v.Gurmit Singh

[(1996) 2 SCC 384 : 1996 SCC (Cri) 316] .

15.11. While examining such an issue, the Court must place itself in the

position of the victim and assess her conduct from the standpoint of an ordinary

person subjected to similar circumstances, rather than from the detached

perspective of a third party. A victim of repeated sexual exploitation coupled

with persistent threats of exposure cannot be expected to immediately rush to

the police in breakneck speed. Human conduct varies according to

circumstances, and hesitation or delay in reporting sexual offences is often the

natural consequence of fear, shame, trauma and social stigma. Therefore this

Court finds no unnaturality in the conduct of the victim.

15.12. Applying the aforesaid principles to the facts of the present case,

this Court is satisfied that the delay in lodging the complaint stands fully

explained. The explanation offered by the prosecutrix is natural, probable and

receives substantial corroboration from the surrounding circumstances as well

as the electronic evidence recovered during investigation. The delay, therefore,

neither affects the credibility of the prosecutrix nor creates any dent in the

prosecution case.

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15.13. Accordingly, this Court finds no merit in the contention of the

learned Senior Counsel that the prosecution case is liable to be disbelieved on

account of delay in lodging the First Information Report. The said contention is,

therefore, rejected.

16. Discussion on the Contention Regarding Omission in the FIR:

16.1. The learned Senior Counsel appearing for the appellant contended

that the First Information Report does not contain any allegation regarding the

three instances of physical intimacy allegedly committed by the accused with

the victim. It was, therefore, argued that the subsequent testimony of the victim

before the Court constitutes an improvement over the FIR and is consequently

unreliable and unworthy of acceptance.

16.2. This Court is unable to accept the said contention.

16.3. The learned trial Judge has elaborately dealt with this aspect in

paragraphs 34 and 35 of the judgment. This Court has independently re

-appreciated the reasoning assigned therein and finds no infirmity warranting

interference.

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16.4. As already discussed in the preceding paragraphs of this judgment,

the materials on record clearly establish that the victim was under severe fear

psychosis due to the act of the accused. The accused had subjected the victim to

a deceptive relationship, continuously intimidated her by threatening to publish

the intimate photographs and videos, and thereby exercised complete

psychological domination over him. The evidence further discloses that the

victim was under persistent mental trauma and, at one stage, had even thought

of committing suicide.

16.5. It is also evident from the records that, after the investigation was

transferred to the CBCID, the victim came to know that the electronic devices

seized from the accused contained objectionable photographs and videos

relating not only to her but also to numerous other victims. Naturally, the

victim's foremost concern was to ensure that the offending materials were

removed and prevented from being circulated through social media. Even at

that stage, she was uncertain whether her own images or videos were still

available in the electronic devices seized by the investigating agency.

16.6. In such circumstances, the complaint was primarily confined to

seeking protection against the publication and circulation of the offending

materials. Though the victim referred to the offence under Section 376(2)(n)

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IPC and the threats made by the accused regarding the disclosure of their

physical relationship, she did not narrate every individual act of sexual assault

in detail.

16.7. The omission to mention all the instances of sexual intercourse in

the FIR cannot, by itself, render the prosecution case doubtful. It is a settled

principle of criminal jurisprudence that an FIR is not expected to be an

encyclopaedia containing every minute detail relating to the commission of the

offence. Its object is merely to set the criminal law in motion. Therefore, every

omission or non-mention of a particular fact in the FIR cannot be treated as a

contradiction so as to discredit the subsequent testimony of the victim.

16.8. This Court has already discussed, while considering the delay in

registration of the case, the peculiar circumstances under which the victim

approached the police. The victim belongs to a lower middle-class family. Out

of shame, fear and social stigma, and ignominy she did not disclose the incident

even to her family members. she specifically requested the investigating agency

not to reveal her identity, and the records so that her identity was effectively

protected throughout the investigation and trial. These surrounding

circumstances adequately explain why the victim did not narrate every instance

of sexual assault in the initial complaint.

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16.9. Significantly, during the course of cross-examination, the defence

itself suggested that the physical relationship between the accused and the

victim was consensual. Such a suggestion necessarily proceeds on the premise

that physical intimacy had in fact taken place. Therefore, the defence cannot

simultaneously contend that the omission to mention all such instances in the

FIR renders the entire prosecution case unbelievable.

16.10. The victim subsequently gave a detailed statement under Section

164 Cr.P.C., wherein she specifically narrated the repeated acts of sexual assault

committed by the accused. The same version was consistently reiterated before

the trial Court on oath. Her testimony stands corroborated by the surrounding

circumstances, the electronic evidence, and through the suggestions put forth

by the defence during cross-examination.

16.11. In view of the foregoing discussion, this Court finds no merit in

the contention of the learned Senior Counsel that the omission to mention every

instance of sexual assault in the FIR renders the testimony of the victim

unreliable. The omission is neither material nor fatal to the prosecution case in

the peculiar facts and circumstances of the present case. Accordingly, this Court

concurs with the findings recorded by the learned trial Judge in paragraphs 34

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and 35 of the impugned judgment and rejects the said contention.

17. Discussion the plea of coercion on the part of Investigation

Officer:

17.1. The learned Senior Counsel further contended that the complaint

lodged by the victim was not voluntary but was the result of coercion and

intimidation exercised by the Investigating Agency. According to the defence,

the Investigating Agency threatened the victim that she would also be

implicated as an accused in another criminal case on the allegation that she had

shared the monetary benefits received from another victim along with the

present accused, and that it was only to escape from such prosecution the victim

was compelled to lodge the present complaint. This Court finds the said

submission to be wholly misconceived, unsupported by any evidence, and

contrary to the facts and circumstances established on record.

17.2. A careful reading of the cross-examination of the victim reveals

that, although such suggestions were put to her, the victim categorically denied

the same. On the contrary, she consistently stated that she refrained from

lodging the complaint because of the continuous threats held out by the accused

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to publish the intimate photographs and videos in his possession. It was only

after realising that the accused had no intention whatsoever of fulfilling his

promise and after the offending electronic materials had come within the

control of the Investigating Agency that the victim plucked up the courage to

approach the police.

17.3. Thus, the delay in lodging the complaint stands satisfactorily

explained by the victim's fear for the accused, the continuing criminal

intimidation, and the emotional trust placed upon the accused's false promise of

marriage. These circumstances are borne out by the evidence on record and

inspire confidence. Significantly, the defence has not produced any

contemporaneous complaint, document, or independent evidence to substantiate

the allegation that the Investigating Agency exercised coercion or intimidation

upon the victim.

17.4. A bald allegation made in the cross-examination do not constitute

evidence unless they are supported by legally admissible material. This Court

is, therefore, of the considered view that the allegation that the complaint was

lodged at the instance or under the pressure of the Investigating Agency is

afterthought, advanced only to sully the fair investigation and to create an

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artificial defence. The said contention deserves outright rejection.

17.5. In this case, the accused also disputed the victim's signature in the

complaint Ex.P1 and sought to compare the signature with the 164 Cr.P.C

statement of the victim and the said petition was dismissed by the learned trial

Judge and the same was confirmed by this Court in Crl.OP(MD).No.692 of

2023 holding that the accused filed the petition only with an intention to drag

on the proceedings.

17.6. The Hon'ble Supreme Court has repeatedly held that vague and

unsupported allegations of coercion or bias against the Investigating Agency

cannot be accepted in the absence of cogent evidence. Equally, where the

evidence satisfactorily explains the victim's conduct and delay in approaching

the police, such delay does not detract from the credibility of the prosecution

case. In the facts of the present case, the explanation furnished by the victim is

natural, probable, and fully consistent with the surrounding circumstances.

17.7. Accordingly, this Court finds no merit in the submission advanced

by the learned Senior Counsel that the complaint was the product of coercion by

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the Investigating Agency. The contention is devoid of substance and is liable to

be rejected.

18.Discussion on the consensual sex:

18.1. The learned Senior Counsel appearing for the appellant placed

strong reliance upon several decisions of the Hon'ble Supreme Court, including

the recent judgment in Pramod Kumar Navratna v. State of Chhattisgarh,

reported in 2026 INSC 124, to contend that the relationship between the parties

was purely consensual and, therefore, the offence of rape was not made out. It

was argued that, maximum it is involved a failed romantic relationship and that

the allegation of rape on the basis of deception cannot be accepted.

18.2. To consider the argument of “consensual sex” and “consent” on the

part of the victim, this Court recapitulate the principle laid down by the Hon'ble

Supreme Court in the various cases relied by the learned senior counsel

appearing for the appellant.

18.3. From the perusal of the precedents, it is clear that the Hon'ble

Supreme Court has consistently held that whether the prosecutrix had

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voluntarily consented to the sexual relationship with free will or whether her

consent stood vitiated by deception, misconception of fact, coercion,

intimidation or other circumstances recognised by law must be decided on the

peculiar facts of the each case and the Hon'ble Supreme Court did not lay down

any inflexible or universal proposition that every intimate relationship arising

out of promise of marriage must necessarily be treated as consensual and each

case must be decided on its own peculiar facts and circumstances.

18.4.It is also to be seen that there are two distinct lines of decisions

rendered by the Hon'ble Supreme Court. In one category of cases, the Court has

held that where the prosecution establishes that the accused, from the very

inception, induced the victim into a sexual relationship by practising deception

or making a false promise with no intention of honouring it, the consent is

vitiated by misconception of fact and the offence of rape is attracted. In the

other category of cases, where the evidence discloses a genuine and voluntary

romantic relationship between consenting adults and the promise of marriage

subsequently failed due to supervening circumstances, the Court has held that

the relationship remains consensual and does not amount to rape. Thus, the

applicability of either line of the decisions depends entirely upon the factual

matrix of the individual case.

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18.5.In the case of Karthi alias Karthick Vs State of Tamilnadu

Reported in (2013) 12 SCC 710 The Hon'ble Supreme Court has held that

obtaining consent by exercising deceit, cannot be legitimate defence to

exculpate an accused and the relevant paragraph is as follows:

“ 13. He also used to tell her that he wished to marry her. The

fact that he had sexual intercourse with her, when the

prosecutrix Poomari (PW 1) was all alone in her house, is not

disputed. The prosecutrix Poomari (PW 1) has confirmed in her

deposition, that at the time of the first sexual intercourse with

her at her house, the appellant-accused Karthick had gagged

her mouth with his right hand. He had promised to marry her, by

placing his hand on her head, after having ravaged her. The

subsequent acts of sexual intercourse, were actions of actively

cheating her, by giving her the impression that he would marry

her. The occurrence at the Murugan temple, is of significant

importance. At the temple, for the first time the appellant-

accused Karthick told the prosecutrix Poomari (PW 1), that he

would not marry her. The instant factual position has been

confirmed by Chandran (PW 9) and Ilangovan (PW 10). Despite

lengthy cross-examination, the appellant-accused has not been

able to create any dent in the testimony of the prosecutrix

Poomari (PW 1).”

“14.Obtaining consent by exercising deceit, cannot be

legitimate defence to exculpate an accused.”

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18.6.In the case of Dhruvaram Murlidhar Sonar v. State of

Maharashtra, reported in (2019) 18 SCC 191, the Hon'ble Supreme Court

made a distinction between rape and consensual sex and also distinction

between mere breach of marriage promise and not fulfilling a false promise in

paragraph No. 23 which is as follows:

23. Thus, there is a clear distinction between rape and consensual

sex. The court, in such cases, must very carefully examine whether the

complainant had actually wanted to marry the victim or had mala fide

motives and had made a false promise to this effect only to satisfy his

lust, as the latter falls within the ambit of cheating or deception. There

is also a distinction between mere breach of a promise and not

fulfilling a false promise. If the accused has not made the promise with

the sole intention to seduce the prosecutrix to indulge in sexual acts,

such an act would not amount to rape. There may be a case where the

prosecutrix agrees to have sexual intercourse on account of her love

and passion for the accused and not solely on account of the

misconception created by accused, or where an accused, on account of

circumstances which he could not have foreseen or which were beyond

his control, was unable to marry her despite having every intention to

do. Such cases must be treated differently. If the complainant had any

mala fide intention and if he had clandestine motives, it is a clear case

of rape. The acknowledged consensual physical relationship between

the parties would not constitute an offence under Section 376 IPC

18.7.In the case of Anurag Soni v. State of Chhattisgarh Reported in

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(2019) 13 SCC 1, the Hon'ble supreme court has held that in the case of proof

of false promise to marry at the inception, there was clear misconception of fact

under section 90 of the IPC and consequently, a accused is liable to be

convicted under section 376 IPC and the relevant para read as follows:

“12. The sum and substance of the aforesaid decisions would

be that if it is established and proved that from the inception the

accused who gave the promise to the prosecutrix to marry, did not

have any intention to marry and the prosecutrix gave the consent

for sexual intercourse on such an assurance by the accused that he

would marry her, such a consent can be said to be a consent

obtained on a misconception of fact as per Section 90 IPC and, in

such a case, such a consent would not excuse the offender and such

an offender can be said to have committed the rape as defined

under Sections 375 IPC and can be convicted for the offence under

Section 376 IPC.”

18.8.It is also relevant to differentiate the consensual romantic

Relationship and Relationship induced by Deception.

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Aspect Consensual Romantic Relationship

(No Criminal Offence)

Relationship Induced by Deception / False

Promise of Marriage (IPC/BNS)

Nature of

relationship

The relationship is founded on

mutual affection, trust, equality, and

voluntary participation. Both parties

freely choose to continue the

relationship and may genuinely

intend to marry.

The relationship is induced through

deception, manipulation, or a false promise

of marriage (or other deceitful means)

solely to obtain the woman's consent to

sexual intercourse.

Intention at the

Inception

Both parties honestly intend, at the

commencement of the relationship,

to pursue a genuine relationship or

marry, subject to future

circumstances.

The accused never intended from the very

beginning to fulfil the promise of marriage.

The promise was merely a tool to secure

consent for sexual intercourse.

Validity of consent Consent is free, voluntary, informed,

and based upon mutual affection ,

independent choice and mutual

autonomy . It is not affected by any

misconception of fact and therefore

constitutes valid consent in law.

Voluntariness of consent is

established when the woman

exercises her independent choice

based upon true facts and her own

free will.

Consent is obtained under a misconception

of fact because it is induced by deception or

a false promise never intended to be fulfilled

and such consent given under a

misconception of fact is no consent at all .

Such consent may be legally vitiated

depending upon the statutory provision and

factual circumstances.

The woman does not exercise her

independent choice based upon true facts

and her own free will, which is procured

through deception and therefore lacks

genuine legal autonomy. It is not

voluntariness of consent.

Promise of

marriage

A genuine promise made in good

faith which may subsequently remain

unfulfilled due to unforeseen

circumstances such as Inevitable

family opposition etc

A hoax from the outset; a false promise

made with the deliberate intention of never

marrying the person.

Other Deceitful

Means (Section 69

BNS)

No deception exists regarding

employment, promotion, identity,

marital status, or any other material

fact.

Deceit may include a false promise of

employment or promotion, suppression of

identity before marriage, false

representation, or any other deceitful means

recognised under Section 69 BNS.

Mental Element

(Mens Rea)

No dishonest or fraudulent intention

exists. A subsequent refusal or

inability to marry does not by itself

establish criminal intent.

Dishonest and fraudulent intention exists

from the inception of the relationship. The

deception is deliberate and forms the

foundation of the woman's consent.

Dynamics of the

Union

Built on mutual trust, emotional

reciprocity, and equal autonomy.

Explicitly manipulated to exploit the victim's

trust and vulnerability.

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18.9. The Hon'ble supreme court in the latest case of Pramod Kumar

Navratna v. State of Chhattisgarh, reported in 2026 INSC 124,also issued the

following caution notice :

“22. The Courts have to be extremely careful and cautious in

identifying the genuine cases filed under Section 376(2)(n) of the IPC

by identifying the essential ingredients to constitute the said offence

i.e. there should be a promise of marriage made by the accused

solely with a view to obtain consent for sexual relations and without

having any intent of fulfilling said promise from the very beginning,

and that such false promise of marriage had a direct bearing on the

prosecutrix giving her consent for sexual relations. Such genuine

cases that deserve prosecution of the accused must be clearly

demarcated from the litigation that arises from the cases of

consensual relationships between consenting adults going

acrimonious on account of dispute and disagreement or a future

change of mind.”

18.10. The decision in Pramod Kumar Navratna is based on its own

peculiar facts. In that case, the Supreme Court found that the complainant,

being a married adult and fully aware of the legal impediment to the proposed

marriage, had consciously entered into a consensual relationship. The Court,

therefore, held that the allegations did not disclose a case of consent obtained

by misconception of fact. Similarly the judgements relied upon by the learned

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senior counsel are not applicable to the present fact of the case.

18.11.In cases involving rape by deception, romantic fraud, and sexual

exploitation through extortion, the plea of consensual sexual intercourse cannot

be taken at its face value. Such a plea must be examined in the light of

Explanation 2 to Section 375 of the Indian Penal Code and Section 90 of the

Indian Penal Code, which deal with the legal concept of consent and the effect

of consent obtained under a misconception of fact.

18.12. Keeping in view the advancement of technology and the

increasing incidence of romantic fraud perpetrated through social media and

other electronic platforms, this Court has examined the statutory provisions

governing consent, the legislative intent underlying the Criminal Law

(Amendment) Act, 2013, and the judicial interpretation of Section 90 IPC

relating to consent obtained under a misconception of fact upon consideration

of Explanation 2 to Section 375 IPC and other relevant precedents and

definitions:

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Section 375 IPC Section 90 IPC

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.”

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;

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18.13. It is also relevant to extract the following definitions relating to

“consent”:

Black dictionaryaffirmative

consent.

Consent that Is freely, willingly, and clearly demonstrated in words

and acts during a sexual encounter, usu. just before intercourse.

Wharton’s law lexiconConsent Consent, an act of reason accompanied with deliberations, the

mind weighing, as in a balance, the good or evil on either side.

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, meditated impositions,

circumvention, surprise, or undue influence, it is to be treated as a

delusion, and not as a deliberate and free act of the mind.

State of H.P. v. Mango

Ram, (2000) 7 SCC

224.

ConsentConsent 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 the resistance and assent.

Submission of the body by a woman under the fear of terror cannot

be construed as a consented sexual Act.

Tulshidas Kanalkar V.

State of Goa, (2003) 8

SCC 590

Consent Every consent involves a submission but the converse does not

follow, and mere act of submission does not involve consent. For

constituting consent, there must be exercise of intelligence based

on the knowledge of the significance and the moral effect of the act.

Deelip Singh v.

State of Bihar, (2005)

1 SCC 88.

Consent The concept and dimensions of 'consent in the context of section

375 IPC 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 upon the

facts of each case,

Satpal Singh v.

State of Haryana,

(2010) 8 SCC 714

Consent The concept of 'consent in the context of section 375 of the code

has to be understood differently, keeping in mind the provision of

section 90 of the code, according to which a consent given under

fear/coercion or misconceptions/mistake of fact is not a consent at

all.Consent is different from submission.

Kaini Rajan v. State of

Kerala, (2013) 9 SCC

113

Consent“Consent”, for the purpose of Section 375, requires voluntary

participation not only after the exercise of intelligence based on the

knowledge of the significance of the 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.

Dhruvaram Sonar

Dhruvaram Murlidhar

Sonar v. State of

Maharashtra, (2019)

18 SCC 191

ConsentConsent” is also stated to be an act of reason coupled with

deliberation. It denotes an active will in mind of a person to permit

the doing of the act complained of.

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State of U.P. v. Chhotey Lal, (2011) 2 SCC 550

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

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 of

violence, submission thereafter is

not 'consent.

Consent, within Penal law,

section 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

18.14.The Hon'ble supreme court in the case of Pramod Suryabhan

Pawar v. State of Maharashtra, reported in (2019) 9 SCC 608 has discussed and

observed the meaning of consent mentioned in both sections 90 & 375 IPC in

the following manner:

“16.Where the promise to marry is false and the intention of

the maker at the time of making the promise itself was not to abide

by it but to deceive the woman to convince her to engage in sexual

relations, there is a “misconception of fact” that vitiates the

woman's “consent”. On the other hand, a breach of a promise

cannot be said to be a false promise. To establish a false promise,

the maker of the promise should have had no intention of upholding

his word at the time of giving it. The “consent” of a woman under

Section 375 is vitiated on the ground of a “misconception of fact”

where such misconception was the basis for her choosing to engage

in the said act.

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10. Where a woman does not “consent” to the sexual acts

described in the main body of Section 375, the offence of rape has

occurred. While Section 90 does not define the term “consent”, a

“consent” based on a “misconception of fact” is not consent in the

eye of the law.

12.This Court has repeatedly held that consent with respect

to Section 375 IPC involves an active understanding of the

circumstances, actions and consequences of the proposed act. An

individual who makes a reasoned choice to act after evaluating

various alternative actions (or inaction) as well as the various

possible consequences flowing from such action or inaction,

consents to such action.

18.15.The decision of the Punjab and Haryana High Court in the case of

Rao Harnarain Singh Sheoji Singh v. State reported in AIR 1958 Punj 123,

differentiated the consent and submission in the following manner:

Para 7 Para 7

“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”

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.

18.16. The said decision of Rao Harnarain Singh Sheoji Singh v. State

reported in AIR 1958 Punj 123 was approved by the Hon'ble Supreme Court in

the case of Deelip Singh v. State of Bihar, reported in (2005) 1 SCC 88.

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Explanation 2 to Section 375 IPC unequivocally provides that consent means an

unequivocal and voluntary agreement by the woman to engage in the specific

sexual act, communicated by words, gestures, or any other form of verbal or

non-verbal communication. The proviso further makes it clear that the mere

absence of physical resistance to the act of penetration shall not, by itself, be

regarded as consent to the sexual activity. The legislative emphasis is, therefore,

free, informed, and voluntary participation. Where the apparent consent is

procured through deception, fraudulent inducement, false promises, abuse of

trust, or exploitation of the victim's vulnerability, the Court must carefully

scrutinise whether there was, in law, any real consent at all. Accordingly, in

cases involving rape by deception, romantic fraud, and sexual exploitation

under the guise of love, marriage, employment, or similar inducements, the

following principles may guide the determination whether the plea of

consensual relationship is legally sustainable:

18.16.1.Consent in law necessarily postulates an unequivocal, informed,

and voluntary agreement to participate in the specific sexual act.

18.16.2.Mere submission or acquiescence cannot be equated with

consent, particularly where the victim accompanies the accused for the purposes

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wholly unconnected with sexual intimacy, such as discussions relating to

employment, marriage, or any other legitimate expectation engineered by the

accused. The Court must also bear in mind the fundamental distinction between

consent and mere submission. Consent is an informed, voluntary, and

conscious act, whereas submission may result from helplessness, fear, coercion,

intimidation, or a sense of inevitable compulsion. Where the evidence

demonstrates that the victim remained with the accused or submitted to the

sexual act because she was unable to extricate herself from his control, threats,

or coercive circumstances, such conduct amounts to no more than passive

submission or helpless resignation. Mere non-resistance or acquiescence under

such circumstances cannot, in law, be construed as voluntary consent.

Therefore, the mere fact that the victim was subjected to repeated physical

intimacy with the accused does not, by itself, establish that the relationship was

consensual. The surrounding circumstances in which the acts occurred, the

absence of free and informed choice, and the existence of coercion, deception,

or intimidation must all be carefully evaluated before concluding that there was

valid consent in the eye of law.

18.16.3.The Court must examine the entire course of conduct between the

parties, including the duration and nature of the relationship, the conduct of the

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accused from its inception, and whether the relationship was founded upon

genuine affection or upon calculated deception.

18.16.4.The Court must determine whether the victim was fully aware of

the true intentions of the accused and voluntarily chose to engage in the sexual

relationship with complete knowledge of all material facts. Only where the

evidence demonstrates such informed and voluntary participation can the

relationship be regarded as truly consensual.

18.16.5.Conversely, where the sexual relationship is induced by

fraudulent representations, false promises, concealment of material facts, or

coercive circumstances that vitiate the victim's free choice, the purposed

consent is rendered legally ineffective and cannot be treated as valid consent in

the eye of law.

18.16.6.These principles are intended to distinguish a genuinely

consensual romantic relationship from one that is the product of deception,

fraud, manipulation, or exploitation, ensuring that the statutory protection

afforded to women is not defeated by a superficial plea of consent.

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18.17.This Court has carefully considered the submission of learned

senior counsel appearing on behalf of accused that there was consensual

relationships on the basis of principles formulated by this court to plea of

voluntarily consent. But this court is unable to accept it. The facts of the

present case stand entirely on a different footing. To make further discussions

on facts, this court for better appreciation extract the following portion of the

cross examination of victim:

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

18.18.From reading of the evidence of victim more particularily the

above portion of crossexamination, unmistakably establishes that the

prosecutrix was placed in circumstances engineered entirely by the accused,

which deprived her of a meaningful choice and to submit to his coercion . Our

constitutional and legal framework unequivocally recognizes every individual

& bodily autonomy and sexual autonomy. Any physical relationship must be

founded upon the free, voluntary, informed consent, and unequivocal consent of

the person concerned. A physical act performed without such consent attracts

the penal consequences contemplated under the criminal law. In the present

case,the evidence does not indicate that he invited the victim for a date or for

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any consensual intimate meeting. Rather, the victim was induced to accompany

the accused solely on the belief that discussions would be held regarding

employment and marriage. the accused deceptively induced the victim to

accompany him by representing that the meeting was for discussions relating to

employment opportunities and a prospective marriage alliance. After securing

her presence through such deception, the accused wrongfully deprived the

victim of her personal liberty by restraining her and, despite her hesitation,

resistance, and express objections,compelled her to engage in a physical

relationship. The conduct of the accused demonstrates that the victim was

placed in circumstances where she was deprived of a meaningful choice. Her

hesitation and objections clearly negate any inference of free and voluntary

participation. Hesitation is a natural and significant response in the context of

sexual intimacy. It is a clear indication that the other person may not be ready

or willing to engage in sexual activity and therefore,requires the other party to

pause and re-evaluate the situation. Accordingly, hesitation cannot, by itself, be

treated as consent to a sexual relationship. Rather, it is a circumstance that

calls for caution and requires that any sexual activity be deferred unless and

until clear, voluntary, and informed consent is affirmatively expressed.in this

circumstance, this court legitimately presume that there was no subjective

agreement on the part of the victim to engage in the specific physical

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relationship to constitute the consensual relationship. Mere accompaniment

with the accused or participation in discussions concerning employment or

marriage cannot, in law, be construed as consent to sexual intimacy. By falsely

representing the purpose of the meeting, he induced the victim to enter his car

and thereafter wrongfully restrained her by locking the vehicle, thereby

depriving her of her personal liberty. Despite her hesitation, resistance, and

reasonable objections, the accused proceeded to establish physical intimacy by

force. The conduct of the accused, therefore, was inherently dishonest and

deceptive. In these circumstances, the prosecution has established that there

was no voluntary, informed consent, conscious, and unequivocal agreement on

the part of the victim to permit any physical contact. The mere fact that the

victim voluntarily accompanied the accused in his car cannot, by any stretch of

imagination, be construed as consent to engage in a physical relationship. Her

willingness to accompany the accused was for the simple reasons of discussing

about the marriage and employment. Consent obtained by deception as to the

very nature and purpose of the meeting is vitiated in law. Consent, is the

product of a conscious and reasoned choice made by a person possessing the

capacity to understand the nature and consequences of the proposed act. An

individual can be said to have consented to a sexual act only when ,actively

understanding the nature of the act, the surrounding circumstances, and its

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consequences, they make a reasoned and voluntary choice to engage in it. Such

consent requires the capacity to evaluate the available alternatives, including

the choice to refuse or abstain, and to appreciate the possible consequences

flowing from either consenting or declining, action or inaction. The victim was

never informed that the meeting was intended for a sexual encounter, nor is

there any material to indicate that she had agreed to such intimacy. On the

contrary, her hesitation, resistance, and objections clearly establish the absence

of free, voluntary, and informed consent. The deceptive conduct of the accused,

coupled with the use of force after wrongfully restraining the victim,

completely negatives any theory of a consensual relationship.This court as

already discussed in detail in the preceeding paragraphs, the prosecution has

established that the appellant deliberately lured the victim into a deceptive

relationship, clandestinely recorded intimate acts, retained the obscene

materials under his exclusive control, repeatedly threatened to publish them on

social media, and thereby exercised continuous psychological domination over

the victim. The evidence further establishes that every subsequent act of

physical intimacy was procured under the continuing threat of exposure and

public humiliation. The victim remained under constant fear, emotional distress

and coercive control, and was deprived of the freedom to exercise an

independent and voluntary choice. The surrounding circumstances also lend

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complete assurance to her testimony. The reluctance shown by the victim in

meeting the accused, her hesitation in entering the vehicle, her refusal to

occupy the front seat, her continued resistance to the physical advances of the

accused, and the deliberate acts of the accused in locking both the premises and

the vehicle, together constitute a continuous chain of circumstances

establishing that the sexual act was not the result of a free and voluntary

agreement.The accused never approached the victim with any bona fide

intention of developing a genuine relationship. His conduct throughout

demonstrates that the representations made to the victim regarding employment

opportunities and a prospective marriage alliance were merely deceptive

devices employed to secure her confidence and company. Consequently, this

Court holds that the physical relationship was not consensual, and the purported

consent, if any, stood vitiated by deception and coercion. Hence, this Court has

no hesitation in holding that the prosecution has clearly established the absence

of free and voluntary consent.

18.19.There is not even a scintilla of evidence on record to establish that

the victim voluntarily and freely consented to the repeated acts of sexual

intercourse. On the contrary, the entire prosecution evidence unmistakably

demonstrates that the appellant obtained submission by practising deception

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and thereafter held control over the victim through criminal intimidation and

the persistent threat of circulating the intimate photographs and videos.

therefore, this case is not one of a consensual romantic relationship between

two willing adults. It is a case where the relationship itself was founded upon

deception and thereafter perpetuated through intimidation and technological

blackmail. Accordingly, this Court holds that there was a complete absence of

free, voluntary, and informed consent. Any apparent acquiescence, if at all,

stood vitiated by deception, coercive circumstances, and the conduct of the

accused. Consequently, the defence of a consensual physical relationship is

wholly untenable.

18.20.Accordingly, this Court has no hesitation in holding that the

reliance placed by the learned Senior Counsel on the aforesaid decisions is

wholly misplaced. The facts of the present case clearly establish a case of

consent vitiated by deception and coercion, and consequently constitute the

offence punishable under Section 376(2)(n) of the Indian Penal Code. The

submission that the relationship was consensual is, therefore, rejected.

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19.Discussion on the plea of accused's geneuine intention to marry:

19.1. The learned Senior Counsel contended that the accused had a

genuine intention to marry the victim and that the relationship between them

was founded upon genuine and sincere love. It was further argued that even

during the cross-examination of the victim, a suggestion was put to her that the

accused was still willing to marry her, as if he was genuinely willing to marry.

This Court is unable to accept the said submission.

19.2. During her cross-examination, the victim was specifically

confronted with the suggestion that the accused was still willing to marry her.

She unequivocally denied the same, stating: "mJ ngha;" ("That is false." The

defence sought to project the case as one arising out of opposition due to inter-

caste relationship, contending that the accused had disclosed the relationship to

his parents and that the present prosecution was initiated due to such

opposition. However, the evidence on record completely demolishes this

defence. A2 has admitted that the accused had never informed him about any

such relationship and that he had no prior knowledge of the alleged love affair.

This categorical denial is further corroborated by the statements recorded under

Section 313 (1)(a) Cr.P.C. and the answering of A2 under section 313 (1) (a) of

Cr.P.C which reads as follows:

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XXXXXXXXXXXXXXXXXXXXXXXXXXXXX

19.3. This admission completely belies the defence theory that the

accused had seriously thought of marrying the victim or had taken any earnest

effort to make it fructify.

19.4. Significantly, except the solitary argument during course of hearing,

there is absolutely no evidence that the accused or his family ever initiated any

proposal for marriage, informed their family members, approached the victim's

family, or undertook any act consistent with a genuine intention to marry. Such

a plea, raised only during trial after the commencement of criminal proceedings,

is clearly an afterthought devised to escape criminal liability.

19.5. The conduct of the accused before the occurrence, during the

subsistence of the relationship, after the occurrence, and even through out the

trial unmistakably demonstrates the absence of any bona fide intention to

marry. On the contrary, the evidence establishes that the accused, right from the

inception, deliberately cultivated acquaintance with the victim through social

media, persistently pursued her despite her reluctance, and resistence exploited

her emotional vulnerability by promising employment, gradually won her

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confidence, and thereafter induced her into a sexual relationship by holding out

a false promise of marriage. Simultaneously, he clandestinely recorded intimate

videos and photographs and subsequently used those materials as instruments

of intimidation and continued sexual exploitation.

19.6. The entire course of conduct dont reveal a genuine romantic

relationship which ultimately failed due to caste issues, but a carefully

orchestrated deceptive relationship founded upon fraud, manipulation,

coercion, and abuse of trust. The so-called promise of marriage was merely a

means adopted by the accused to secure the victim's consent, which was

vitiated by deception from its very inception. Therefore, the prosecution clearly

proved the absence of consent in the eye of law and being one obtained under a

misconception of fact within the meaning of Section 90 of the Indian Penal

Code.

19.7. Applying the above principles to the facts of the present case, this

Court has no hesitation in holding that the contention of promise of marriage

was never genuine. It was only a device employed by the accused to deceive.

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20.Discussion on the failure to explain the circumstances and

furnishing the false answer during the course of questioning under Section

313 Cr.P.C of accused:

20.1. During the trial, various incriminating circumstances were put to

the accused during the 313 Cr.P.C questioning, more particularly recovery of

the M.O.3 which contained numerous offending videos of accused and various

number of persons like victim. The victim's evidence of deceptive, forceful

physical relationship also put to the accused. The accused never denied the said

facts. He did not furnish any explanation of consensual relationship and taking

the victim's offending video with her consent. The appellant did not seriously

dispute that M.O.3, namely the Apple Mac-Book laptop recovered during the

course of investigation, belonging to him. On the contrary, the father of the

accused (A2), during the cross examination of P.W.27, by way of suggestion

admitted that the laptop belonged to the appellant. During his examination

under Section 313 of the Code of Criminal Procedure, as well as at every other

stage of the proceedings, the accused never denied his ownership or exclusive

possession of the said laptop. Thus, the ownership and possession of M.O.3 by

the accused stand established.

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20.2. The forensic examination of M.O.3 disclosed the presence of

approximately 355 obscene videos and more than 1,000/- obscene

photographs, among which the video depicting the victim was also recovered.

The Investigating Officer has categorically deposed regarding the recovery of

the said electronic materials, and the same has been scientifically corroborated

by the expert opinion. The victim, during her evidence, identified herself as

well as the accused in the offending video recovered from the laptop. The

identity of the accused and the victim in the video has therefore been

established by cogent oral as well as electronic evidence. Further there is clear

evidence about cell phone number 9629359759 and IMEI number

353839101001992 and email address kasi_k9, Face Book Kasi.9pm.

20.3. The existence of the incriminating electronic material in the laptop

belonging to the accused is a fact especially within his knowledge. Once the

prosecution has established that the laptop belonged to the accused and that the

incriminating material was recovered therefrom, the burden shifts upon the

accused to offer a plausible explanation as to how such offending material

came to be stored in his device. In the above factual circumstances, the

provisions of Section 106 of the Indian Evidence Act, 1872 are clearly

attracted.

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20.4. The Hon'ble Supreme Court has consistently held that Section 106

does not relieve the prosecution of its primary burden of proving the case

beyond reasonable doubt. Apart from that, in this case, presumption under

Section 114A of Evidence At applies. In view of the circumstances that the

prosecution established its case of charged offence under Section 90 r/w 376(2)

(n) of IPC, through proof of foundational facts through unimpeachable evidence

of victim and other circumstances beyond reasonable doubt. However, where

the prosecution establishes foundational facts and the remaining facts are

especially within the exclusive knowledge of the accused, his failure to offer

proper explanation constitutes an additional incriminating circumstance.

20.5.In the present case, despite the recovery of the incriminating

electronic evidence from his personal laptop, the accused has not offered any

explanation whatsoever, either during his examination under Section 313

Cr.P.C. or by adducing defence evidence, as to how the offending video and

photographs came to be stored therein. But he furnished the following false

explanation:

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

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20.6.There is also no material on record to suggest that the laptop had

been tampered with, manipulated, or accessed by any third party. On the

contrary, the prosecution has established the genuineness and authenticity of the

electronic records through forensic examination in accordance with law.

20.7.The silence maintained by the accused in the face of such

overwhelming incriminating circumstances, coupled with the scientific

evidence and the testimony of the victim identifying both herself and the

accused in the recovered video, constitutes a strong additional link in the chain

of circumstances.

20.8.The learned Trial Judge, in paragraphs 21 and 22 of the impugned

judgment, has undertaken a detailed and well-reasoned analysis of the evidence

relating to the recovery, forensic examination, and evidentiary value of the

electronic records. Upon an independent re-appreciation of the entire evidence,

this Court finds no infirmity or perversity in the reasoning adopted by the

learned Trial Judge.

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21. Conclusive finding on conviction:

21.1. In view of the above discussion, summary of our conclusion is that

the victim belonged to a lower middle-class family consisting of her mother and

sisters. She was in search of employment . It was during this vulnerable stage of

her life that the accused initiated contact with her through social media. the

victim initially declined the accused's request for friendship. It was only after

repeated persuasion and persistent requests she reluctantly accepted his social

media request. He gradually gained her confidence through false assurances of

marriage and arrangement of employment, with the sole object of satisfying his

sexual desires. she was reluctant even to accompany the accused in his car. The

accused forcibly took the victim to his father's godown and factory premises,

locked his car despite her resistance, and thereafter committed forcible sexual

intercourse against her wishes. The accused clandestinely captured intimate

photographs and videos and continuously used those recordings as instruments

of blackmail to perpetuate the sexual exploitation and thereafter accused

criminally intimidated the victim that he had recorded intimate videos and

photographs of the incident and threatened to circulate the same through social

media. Pressurised under such threats, fear and intimidation, the victim was

compelled to submit to the sexual demands of the accused.The victim has

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cogently narrated the sequence of events from the inception of her

acquaintance with the accused until the repeated acts of sexual exploitation

without any infirmities. Her testimony is natural, cogent, trustworthy and

fully supported by the surrounding circumstances and the electronic

evidence collected during investigation. The sequence of events clearly

demonstrate a calculated and deceptive design adopted by the accused from the

very inception. A careful reading of the evidence of the prosecutrix

unmistakably establishes that at every stage she objected to the sexual acts,

resisted the advances of the accused and submitted herself only because of fear,

coercion and intimidation. It is relevant to note the principle that exaggerated

devotion to the rule of benefit of doubt must not nurture fanciful doubts or

lingering suspicions and thereby destroy social defence as held by the Hon'ble

Supreme Court in various judgments including in the case of Devender Pal

Singh v. State (NCT of Delhi), reported in (2002) 5 SCC 234 held as follows:

53.Exaggerated devotion to the rule of benefit of doubt must

not nurture fanciful doubts or lingering suspicions and thereby

destroy social defence. Justice cannot be made sterile on the plea

that it is better to let a hundred guilty escape than punish an

innocent. Letting the guilty escape is not doing justice according to

law.

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21.2.This Court, therefore, has no hesitation in holding that the

prosecution has established beyond reasonable doubt that the accused

repeatedly committed rape upon the prosecutrix against her will and without

her free and voluntary consent, such ostensible submission having been

procured by deception, fear, criminal intimidation and misconception of fact.

The prosecution has successfully established that the accused clandestinely

recorded the sexual acts with the victim without her consent, stored the videos

and photographs in M.O.3 (Apple MacBook laptop), and there was no

explanation from the accused under Section 106 of the Indian Evidence Act

regarding the above offending material in his laptop and that the electronic

evidence.Apart from that, when there was no evidence adduced on the side of

the accused to dispel the presumption under Section 114(A) of the Indian

Evidence Act, the prosecution case gets further strengthened. Consequently,

this Court is satisfied that the prosecution has proved, beyond all reasonable

doubt, that the accused committed the offence punishable under Section under

Sections 376(2)(n), 417, 354(A), 294(b), 354(c) of IPC and Section 66E of

Information Technology Act.

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22. Discussion on Sentence:

“Rape is the most morally and physically reprehensible crime in a

society, as it is an assault on the body, mind and privacy of the victim. While a

murderer destroys the physical frame of the victim, a rapist degrades and

defiles the soul of a helpless female. Rape reduces a woman to an animal, as it

shakes the very core of her life. By no means can a rape victim be called an

accomplice. Rape leaves a permanent scar on the life of the victim, and

therefore a rape victim is placed on a higher pedestal than an injured witness.

Rape is a crime against the entire society and violates the human rights of the

victim. Being the most hated crime, rape tantamounts to a serious blow to the

supreme honour of a woman, and offends both, her esteem and dignity. It

causes psychological and physical harm to the victim, leaving upon her

indelible marks.

1

”

22.1.Therefore, harsh punishment is provided in section 376 IPC. The

principle of imposition of punishment should commensurate with crime

committed, otherwise, the court will be failing in its duty if appropriate

punishment is not awarded for a crime which has been committed not only

against the individual victim but also against the society to which the criminal

and the victim belong and the same has been illustrated and reiterated by

Hon'ble Supreme Court in various cases. The Hon'ble Three Judges Bench of

the Supreme Court in the case of State of M.P. vs. Bala Alias Balaram reported

1. Deepak Gulati v. State of Haryana , (2013) 7 SCC 675

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in 2005 (8) SCC 1 has considered the doctrine of necessity to give adequate

punishment in the case of the crime against women and has directed to give

proportionate punishment in the case of the offence under Section 376(2) of

IPC and the relevant paragraph is as follows:

6. Sub-section (1) of Section 376 IPC provides that whoever, except in

the cases provided for by sub-section (2), commits rape shall be

punished with imprisonment of either description for a term which

shall not be less than 7 years but which may be for life or for a term

which may extend to 10 years and shall also be liable to fine. In the

category of cases covered under sub-section (2) of Section 376, the

sentence cannot be less than 10 years but which may be for life and

shall also be liable to fine. The proviso appended to sub-section (1)

lays down that the court may for adequate and special reasons to be

mentioned in the judgment, impose a sentence of imprisonment for a

term of less than 7 years. There is a similar proviso to sub-section (2)

which empowers the court to award a sentence of less than 10 years

for adequate and special reasons to be mentioned in the judgment. The

High Court in the impugned order has awarded a sentence which is

not only grossly inadequate but is also contrary to the express

provision of law. The High Court has not assigned any satisfactory

reason much less adequate and special reasons for reducing the

sentence to a term which is far below the prescribed minimum.

Therefore, the sentence awarded by the High Court is clearly illegal.

11.The crime here is rape. It is a particularly heinous crime, a

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crime against society, a crime against human dignity, one that reduces

a man to an animal. The penal statute has prescribed a maximum and

a minimum punishment for an offence under Section 376 IPC. To view

such an offence once it is proved, lightly, is itself an affront to society.

Though the award of maximum punishment may depend on the

circumstances of the case, the award of the minimum punishment,

generally, is imperative. The provisos to Sections 376(1) and 376(2)

IPC give the power to the court to award a sentence lesser than the

minimum for adequate and special reasons. The power under the

proviso is not to be used indiscriminately or routinely. It is to be used

sparingly and only in cases where special facts and circumstances

justify a reduction. The reasons must be relevant to the exercise of

such discretion vested in the court. The reasons must be set out clearly

and cogently. The mere existence of a discretion by itself does not

justify its exercise. The long pendency of the criminal trial or the offer

of the rapist to marry the victim are not relevant reasons. Nor is the

age of the offender by itself an adequate reason.

22.2. More ever, the Hon'ble Three Judges Bench of the Supreme Court

in the case of Shimbhu and Another vs. State of Haryana reported in 2014 13

SCC 318 had revisited the sentencing principle in the case of the crime against

women upon considering the earlier judgments and also the legislature intention

to bring the Criminal Law Amendment Act, 2013 and directed to impose

adequate sentence taking into the account of increasing the crimes against

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Crl.A(MD).No.644 of 2023

women and also condemned giving inadequate and fleabite punishment

exercising with insensitivity to the sufferings of the victims and the relevant

paragraphs as follows:

Shimbhu v. State of Haryana, (2014) 13 SCC 318

21. It is imperative to mention that the legislature through the

Criminal Law (Amendment) Act, 2013 has deleted this proviso in the

wake of increasing crimes against women. Though, the said

amendment will not come in the way of exercising discretion in this

case, on perusal of the above legislative provision and catena of

cases on the issue, we feel that the present case fails to fall within the

ambit of exceptional case where the Court shall use its extraordinary

discretion to reduce the period of sentence than the minimum

prescribed.

22.This is yet another opportunity to inform the subordinate

courts and the High Courts that despite stringent provisions for rape

under Section 376 IPC, many courts in the past have taken a softer

view while awarding sentence for such a heinous crime. This Court

has in the past noticed that few subordinate and High Courts have

reduced the sentence of the accused to the period already undergone

to suffice as the punishment, by taking aid of the proviso to Section

376(2) IPC. The above trend exhibits stark insensitivity to the need

for proportionate punishments to be imposed in such cases.

23.This Court has carefully considered the submissions made on the

question of sentence, the materials available on record, and the reasons assigned

by the learned Trial Judge.

24.Having regard to the gravity of the offences, the calculated manner in

which they were committed, the repeated exploitation of vulnerable women by

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the accused, and the continuing threat posed by him to society, the learned Trial

Judge made a detailed discussion in paragraph Nos.50 and 51 and imposed the

sentence as stated in the judgment. The Trial Court, in particular, took into

account the incriminating materials recovered during the investigation,

including approximately 355 nude and semi-nude videos and more than 1,000

obscene photographs depicting hundreds of young women who had allegedly

been victimised by the accused. The Trial Court also considered the evidence

demonstrating that the accused had subjected several women to sexual

exploitation, though only a few had the courage to come forward and lodge

complaints despite the threats and intimidation to which they had been

subjected. The modus operandi adopted by the accused was to deceptively

establish relationships with vulnerable women, clandestinely record their

intimate moments, and thereafter use those recordings as instruments of

intimidation and coercion, ensuring that the victims remained subservient to his

demands under the constant fear of exposure. The learned Trial Judge further

found that the accused had, as a matter of deliberate practice, deceived women

by making false promises, secretly recorded and preserved their nude and semi-

nude videos, and repeatedly exploited them for to quench his lust. The

multiplicity of criminal cases registered against the accused, including the

present case, also weighed with the Trial Court while considering the question

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of sentence. The absence of any mitigating circumstance, the learned Trial

Judge recorded special reasons and has awarded life imprisonment until natural

death prescribed under Section 376(2)(n) of IPC and in view of the above

punishment, he has not awarded any punishment for the remaining proved

offence. “This court finds no infirmity in the said punishment and affirms the

same for the following reasons”:

24.1.The present case is a glaring instance of a calculated romantic fraud

culminating in rape, where the accused weaponised the victim's trust, emotional

vulnerability, and economic necessity to facilitate sexual exploitation. Taking

advantage of the victim's vulnerable circumstances, the accused systematically

exploited her in every possible manner. By inducing a false promise of

employment and professing an insincere promise of love, he subjected the

victim to repeated sexual intercourse. He clandestinely recorded the sexual acts

without her knowledge or consent and thereafter intimidated her by threatening

to circulate the objectionable videos on social media if she disclosed the

offences or refused to submit to his further unlawful demands. Such threats

effectively silenced the victim and buried her grievances. Despite such trauma,

she exhibited exceptional courage in lodging the complaint after learning that

the entire offending material had been seized by the investigating agency. She

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had to face social stigma, the rigours of the investigation, and the ordeal of the

prolonged litigation process. The courage and resilience displayed by the

victim, notwithstanding the severe physical, mental, and social consequences

suffered by her, deserve due recognition. The offence committed by the accused

is not an isolated act of sexual assault. The evidence on record establishes that

the accused deviously planned and executed the nefarious act. He initially

deceived the victim through false promises of employment and marriage,

thereafter repeatedly subjected her to sexual assault, clandestinely captured

intimate photographs and videos, retained such material instead of deleting it,

and subsequently used the same as an instrument of criminal intimidation to

repeatedly exploit the victim sexually. The accused abused the confidence

reposed on him by the victim, exploited her emotional vulnerability, repeatedly

ravished her dignity, and thereafter continued to control and exploit her by

threatening to circulate her intimate photographs and videos. The retention of

such offending material and its use as a weapon of coercion demonstrates that

the acts of the accused were not impulsive but deliberate, calculated and

persistent. The offences thus disclose a sustained pattern of deception,

manipulation, intimidation and sexual exploitation extending over a

considerable period. The victim not only suffered physical and mental trauma

at the hands of the accused as a consequence of the deceitful sexual assault

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perpetrated upon her, but also endured an intensive and searching cross-

examination during the course of the trial.

24.2.Courts cannot permit such offender to exploit women seeking

employment by luring them with false promises of love and career

opportunities, only to subject them to repeated sexual abuse and blackmail

through non-consensual recordings. The conduct of the accused reveals a high

degree of premeditation, cruelty, and moral depravity. In these circumstances,

no mitigating factor is found warranting any reduction of the sentence imposed

upon the accused.

24.3.Apart from that, the offending material found in the material objects

relating to the number of victims shocks the judicial conscience of this Court

and he had been exploiting number of girls, women and minor children, not

only committing sexual assault but also capturing the offending materials and

criminally intimidating them. Therefore,the aggravating circumstances in the

present case far outweigh any mitigating circumstance. This Court finds no

mitigating circumstance warranting interference with the sentence imposed. On

the contrary, the conduct of the accused reveals that he is a habitual sexual

predator who systematically preyed upon vulnerable women by deceit,

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Crl.A(MD).No.644 of 2023

intimidation, and blackmail. The materials recovered from his possession

further indicate that many victims had refrained from lodging complaints solely

out of fear and social stigma. In such circumstances, awarding the minimum

sentence would neither meet the ends of justice nor have the necessary deterrent

effect. Considering the nature of the offences, their impact on the victims, and

the continuing danger posed by the accused to society, this Court is in complete

agreement with the sentence imposed by the learned Trial Judge and finds no

reason to interfere with the same. This Court is of the considered opinion that

the sentence imposed by the learned Trial Judge under Sections 376(2)(n),

354(c) and 506(ii) of IPC and is just, proportionate and commensurate with the

seriousness of the crime and this Court finds no ground warranting interference

with the sentence imposed by the learned Trial Judge. The learned trial Judge

also taken into account of Section 71 of IPC has not passed any sentence

separately under Sections 417, 354(A), 294(b), 354(c) of IPC and Section 66E

of Information Technology Act and this Court has no jurisdiction to

interfere with the said decision of the learned trial Judge without any

appeal on the side of the prosecution.

24.4.Accordingly, this Court finds no merit in the plea for reduction of

sentence. The sentence of imprisonment for the remainder of the natural life of

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Crl.A(MD).No.644 of 2023

the accused, imposed by the learned Trial Court, is justified and affirmed.

25. Emotional Appeal and earnest request:

25.1. This Court is conscious of its constitutional duty to uphold the

dignity, liberty and safety of every individual. The Courts, as guardians of the

rule of law, have a solemn responsibility to ensure that victims of sexual

offences receive effective legal protection and that the criminal justice system

responds appropriately to offences facilitated by modern technology.

25.2. Having regard to the nature of the present case, this Court considers

it appropriate to make an earnest appeal, particularly to young persons and their

families, to exercise utmost caution while entering into online or

technologically facilitated relationships. The exponential growth of digital

communication and the use of social media has undoubtedly enriched human

interaction; however, it has also created opportunities for exploitation through

deception, emotional manipulation, coercion, non-consensual recording of

intimate images, and threats of their dissemination. Awareness, vigilance and

timely reporting of such offences are indispensable to prevent victimisation.

25.3. This appeal is made not only in the interest of women, who are

often disproportionately targeted by such crimes, but equally in the interest of

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Crl.A(MD).No.644 of 2023

all members of society who may become victims of technology-enabled sexual

exploitation.

25.4.Considering the wider public importance of the issues involved, this

Court deliver this portion of the judgment in English,Tamil and Hindi.

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Crl.A(MD).No.644 of 2023

English Hindi Tamil

From the very dawn of human

civilisation, it has been recognised that

modesty and privacy are integral to

human dignity. The Biblical account of

Adam and Eve symbolically reflects this

truth: after becoming conscious of their

nakedness, they covered themselves with

leaves, signifying the innate human

instinct to preserve personal privacy and

modesty. As civilisation evolved, clothing

came to represent not merely a physical

necessity but an essential attribute of

human dignity and social order.

Regrettably, in the present digital era,

some unscrupulous individuals exploit

the trust and emotional vulnerability of

young girls and women. By deceit, false

promises, or emotional manipulation,

they induce victims to share their

intimate photographs or videos. Having

obtained such material, these offenders

betray the confidence reposed in them

and resort to blackmail by threatening to

publish the intimate images on social

media or other digital platforms, thereby

subjecting the victims to continued

exploitation, humiliation, and

psychological trauma.

In these circumstances, this Court

considers it appropriate to make a

humble but earnest appeal to all young

girls and women. No matter how deep

the affection, trust, or promise of

confidentiality may appear, intimate

photographs or videos should never be

shared with anyone through electronic

means. Once such material leaves one's

exclusive control, it can easily be

misused, leading to irreversible

consequences for the victim's privacy,

dignity, and mental well-being.

Prevention is always better than the

arduous process of seeking legal redress

after such trust has been betrayed.

This Court, therefore, respectfully urges

every young girl and woman to exercise

the utmost caution in safeguarding their

privacy and dignity in the digital world.

A moment of misplaced trust should

never become a lifetime of suffering.

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25.5. Owing to the paucity of time, this Court is unable to exercise

translation in all regional language of this country, for which, we express our

regret. This Court further requests the print, electronic and digital media to give

wider publicity to this advisory in the larger public interest, with the object of

promoting awareness regarding technology-enabled sexual offences and to be

wary of exploitation.

25.6. In view of the foregoing discussion, this Court finds no merit in any

of the submissions advanced by the learned Senior Counsel. The prosecution

has established the guilt of the accused beyond reasonable doubt, and the

judgment of conviction recorded by the learned trial Court does not suffer from

any legal or factual infirmity warranting interference. Accordingly, the appeal is

liable to be dismissed.

26. Conclusion:

Accordingly, the Criminal Appeal is dismissed, and the conviction and

sentence imposed by the Fast track Mahila Court, Nagercoil, in S.C.No.41 of

2021 dated 14.06.2023 are hereby confirmed.

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Crl.A(MD).No.644 of 2023

N.ANAND VENKATESH.J,

27.I had the advantage of carefully reading the well-crafted judgment of

my brother judge and I completely concur with each finding. I have included

this postscript because the issue it addresses will likely trouble future minds,

and because I hope the system will evolve to deal with such cases more

professionally and without imposing unacceptable harm on the human beings

who operate it.

28.For generations, judges and lawyers evaluated evidence through a

traditional, language based process. We reconstructed the past from written

depositions, oral testimony, and clinical reports. None of the decision makers

actually saw the crime unfold. That traditional method created an important

protective buffer in terms of an intellectual distance between the professional

mind and the raw trauma of the event. We processed suffering through words,

not through direct sight.

29.The digital era has shattered that protective wall. We are no longer

asked merely to evaluate descriptions, we are now compelled to watch the

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violence itself. Courts dealing with sexual offences are increasingly flooded

with explicit videos and photographs that record the worst of human behaviour.

30.In this case, a lady investigating officer had to sit through nearly sixty

files of hardcore, perverted material to locate the single item relevant to the

victim. Prosecutors, defence counsel, and judges at every level then face the

same poisonous images. The system now requires its officers to do something

fundamentally unnatural: to become, repeatedly and retrospectively, spectators

to the violation of human dignity.

31.To understand why this is profoundly disturbing, the law must engage

with what we now know of human neurobiology. Our brains evolved for a

physical world. For hundreds of thousands of years, human minds reacted to

threats, violence, and social interactions that happened in front of them.

Embedded within this architecture are mirror neurons which is the biological

substrate of empathy and which fire similarly when we experience an event and

when we merely observe it.

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Crl.A(MD).No.644 of 2023

32.From an evolutionary standpoint, the human brain cannot truly tell the

difference between a traumatic event happening in real life and a high-

definition video of that same event on a screen. When a legal professional sits

in front of a screen watching hours of perverted, explicit material, the primitive,

emotional center of the brain is repeatedly triggered. The logical mind tries to

say, "This is just evidence for a case," but the deeper, evolutionary parts of the

brain feel like they are repeatedly witnessing a live, horrific assault. We are

trying to navigate a parallel "screener world" using a brain that was built only

for the physical world.

33.There is a dangerous myth in the legal profession that our

"professional detachment" makes us immune to the horrific things we see.

Neuroscience and psychology demonstrate otherwise. Repeatedly watching

graphic digital evidence causes real, measurable psychological harm, known as

vicarious trauma with predictable physiological and functional consequences

such as;

Constant alarm mode,

where the brain’s

emotional alarm

system becomes

hypervigilant, leaving

the person with

prolonged anxiety and

loss of personal calm.

Cognitive fatigue,

The front part of the brain

which is the area judges use to

make calm, rational legal

decisions, has to use an immense

amount of energy just to suppress

the natural disgust and distress

caused by graphic videos.

Emotional numbing,

To protect itself, the brain

may eventually numb its own

empathy. This is a tragic

defense mechanism, because a

judge without empathy loses the

very quality needed to deliver

true justice.

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Crl.A(MD).No.644 of 2023

34.When this court expressed concern for the lady investigating officer

who endured sixty files of raw perversion, it was not sentimentality. It was

recognition of a clinical assault upon her mental peace willy nilly a foreseeable

occupational hazard of our digital age. No amount of police or legal training

will inoculate a human being from absorbing such toxic material without

incurring a substantial mental cost.

35.We are entering a new era where these types of digital crimes are

rapidly increasing. The law has built strict checks and balances under the

Evidence Act to make sure digital files are not manipulated. But the law has

completely ignored how these same digital files manipulate and harm the

human minds required to judge them.

36.The machinery of justice cannot treat its human beings like unfeeling

computers. If we continue to ignore the mental and neurological toll of this

digital age, we will end up with burnt-out, traumatized, and emotionally

numbed investigators, lawyers, and judges.

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Crl.A(MD).No.644 of 2023

37.It is time for judiciary and institutional leaders to confront this

challenge candidly. We must build institutional responses that protect those who

carry the system through mandatory psychological screening, regular

counselling, decompression protocols after exposure, rotation of personnel

assigned to graphic material, training to recognise and respond to vicarious

trauma, and secure facilities and procedures to minimise unnecessary exposure.

Such measures are not luxuries but they are essential to the integrity and

sustainability of a justice system that still depends on human judgment.

38.The law must continue to refine the technical rules for digital

evidence. It must also, with equal seriousness, safeguard the minds entrusted to

apply it.

[N.A.V.,J.] & [K.K.R.K.,J.]

14.07.2026

NCC :Yes/No

Index :Yes/No

Internet:Yes/No

pal/sbn

Note: The Registry is hereby directed to remove the Tamil portion from this

order while uploading this order on the official website except paragraph No.

25.4"

135/137 https://www.mhc.tn.gov.in/judis

Crl.A(MD).No.644 of 2023

To

1.The Inspector of Police,

CBCID, Nagercoil, Kanyakumari District.

2.The Section Officer,

VR Section,

Madurai Bench of Madras High Court, Madurai.

136/137 https://www.mhc.tn.gov.in/judis

Crl.A(MD).No.644 of 2023

N.ANAND VENKATESH,J.

and

K.K.RAMAKRISHNAN,J .

pal/sbn

Pre-delivery Order made in

Crl.A(MD).No.644 of 2023

14.07.2026

137/137 https://www.mhc.tn.gov.in/judis