Delhi District Court
State vs 1. Shahzad on 26 March, 2018
IN THE COURT OF MS. RENU BHATNAGAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
SC No. 2711/2016
FIR No. 97/16
PS - Jamia Nagar
Under Section 328/376, 417/376,
420 and 506 IPC
State Versus 1. Shahzad
S/o Sardar Khan,
R/o F26, BlockD,
Hazi Colony,
Gaffar Manjil, Jamia Nagar,
New Delhi.
Date of Institution : 25.10.2016.
Judgment reserved for orders on : 08.03.2018.
Date of pronouncement : 26.03.2018.
J U D G M E N T
Brief facts of the case:
1.The case of the prosecution is that on 09.02.2016 complainant/Prosecutrix 'X' ( name withheld to keep her identity confidential ) came to police station and gave her complaint to register an FIR wherein she alleged that one boy namely Shahzad living in her SC No. 2711/16 State Vs Shahzad Page No. 1 of 25 neighbour used to pass smile on seeing her. She never took interest and ignored him. However, somewhere in the month of April, 2014 Shahzad called her from his mobile and on her enquiry he told her that he had taken her phone number from one of the common friend/neighbour and that he has started loving her and cannot live without her. She told Shahzad that she is not interested but thereafter he started calling her on routine basis and ultimately friendship developed between them. Thereafter, in the month of August, 2014 he Shahzad requested her to meet at Tikona Park Lawn, Jamia Nagar, New Delhi. She went there and had a talk with Shahzad who told her that from the day he saw her, he fell in love with her and wants to marry her. Thereafter, they started meeting their every week and within almost one year they both got developed intimacy and care for each other. She was staying in the house of her real sister Parveen. In the month of May, 2015 her sister Parveen went to Meerut due to summer vacation of his child. Meanwhile, Shahzad told her that he is suffering from financial crisis and has no money to pay the rent. He asked her that he wanted to shift in her home temporarily for one month. As she has started loving him and considering his promise of marriage with her, she agreed for the same. On 15.05.2015 in the night he requested her to have sex with her to which she objected. Thereafter, at about 10 PM they had dinner and thereafter Shahzad gave her a glass of cold drink and thereafter went to their separate bed to sleep. She does not remember at what time she got completely SC No. 2711/16 State Vs Shahzad Page No. 2 of 25 slept and unconscious and when she woke up she found herself completely naked and saw that Shahzad is also lying naked on her bed. She then started quarreling with him upon which he stated that since she was not ready for sexual intercourse so he gave some sustance with pepsi/cold drink secretly for fullfiling his sexual desire and committed sexual intercourse with her and that there is nothing to worry at all. He stated to her that once his financial crisis is over he will marry her. Thereafter, she got silent and became normal. On the next night, he again requested her for sexual intercourse to which she objected again. He again stated the same thing that he will marry her once his financial crisis is over. She believed his version that he will marry her once his financial crisis is over and that sexual intercourse has already been established by him last night, she agreed to have sexual intercourse with him. Thereafter, Shahzad regularly used to have sexual intercourse with her at her residence. In the month of June, 2015 accused Shahzad left her home as her sister Parveen had to return to her house. They then again started meeting at Tikona Park Lawn, Jamia Nagar. Accused asked her to give him a loan of Rs. 1 Lac so that their marriage ceremony can be performed. She arranged an amount of Rs. 80,000/ from her well wishers and handed over the same to him, who promised to marry her within a week. Thereafter a week, she called him but he started avoiding to talk to her on the point of marriage. He stated to her that he wanted to take consent of his parents who are not ready for the marriage as they had already chosen SC No. 2711/16 State Vs Shahzad Page No. 3 of 25 another girl for his marriage. Besides this, the accused continued putting pressure on her to have sexual intercourse with him and threatened her that he had made her MMS and Video in her naked position during sexual intercourse when he made her unconscious by mixing substance in pepsi cold drink and threatened that in case she did not agree to have sex with him he will upload the MMS and Video of her naked position during sexual intercourse and further that he will throw 'Tezaab' on her face but she never complained about the same as she was knowing that woman chastity has already been used by Shahzad and there is no way out except to marry him. She hoped that by the passage of time accused Shahzad will mend his behaviour but when she came to know that accused Shahzad is going to marry other girl of his family's choice, she filed a case before Ld. MM under Section 12 DV Act and also filed a complaint for registering the FIR against the accused Shahzad. Site plan was prepared at the instance of complainant. Statement under Section 161 Cr.P.C and 164 Cr.P.C was got recorded. Accused Shahzad was formally arrested since he was on anticipatory bail and his potency test was got conducted from AIIMS Hospital. Exhibits were taken into possession and deposited in the Malkhana. Exhibits of complainant/victim could not be collected therefore, were not sent to FSL for examination. On the complaint of complainant/victim 'X', the case under Section 376 IPC was registered and chargesheet was filed in the court.
SC No. 2711/16 State Vs Shahzad Page No. 4 of 25Charge:
2. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 19.01.2017, prima facie case was made out against the accused for the offence u/s328/376, 417/376, 420 and 506 IPC. The charge was framed to which accused pleaded not guilty and claimed trial. Prosecution Evidence:
3. To substantiate its allegations against the accused, prosecution examined five witnesses in all.
Material Witness:
4. PW1 prosecutrix deposed in the court that in April,2014 accused had called on her mobile phone no. 7834958566 and told that he got her mobile phone number from her neighbour. He stated that he loves her and wants to marry her. She disconnected the phone since she did not believe him. On the next day, accused again called her and requested her not to disconnect the phone and that he loves her. He used to call her daily and thereafter 34 months she believed on the accused. She on the asking of accused called him at Tikona Park and accused told him that he love her and wants to marry her. The accused then dropped her at her residence. Thereafter they started meeting each other. In May, 2015 the accused told her that he has some financial problem and he has to make payment to his landlord. She had been living with her sister. Accused asked her if he could live SC No. 2711/16 State Vs Shahzad Page No. 5 of 25 with her and on her reply in affirmative he started living with her in the house. On 15.05.2015 he asked her to have physical relations with him but she refused. He asked her not to worry and gave her cold drink. She became unconscious. When she got up in the morning she found accused on her bed with no cloth on him. There was no cloth on her body. Accused was lying with her on the bed. When she got annoyed, accused told her that since she was not agreeing for the physical relations he gave her cold drink and thereafter, he committed sexual intercourse with her and told her not to cry as he would marry her. On next day evening and then on the next day morning, accused committed sexual intercourse with her. She opposed but he told her that since he has made physical relations with her why she has been objecting for it. The accused time and again told her that he will marry her. Her sister had to come from the village in June, 2015 therefore he asked the accused to look for suitable accommodation for him. On asking accused, accused told her that he needs time and will talk to his family members for marriage. Accused stated that if she can arrange money he will marry her in the next week. He asked her to arrange for Rs. 80,000/. She was having Rs. 20,000/ with her. She took loan from her sister and friend and gave Rs. 80,000/ to accused. On 15.07.2015 when accused was going to his house he came to her house and upon her asking he told her that his family members have selected a girl for him and he will marry her as per the wish of his family. The accused then threatened her not to tell their SC No. 2711/16 State Vs Shahzad Page No. 6 of 25 relations to anyone otherwise he would upload her obscene video on internet. However, she had not seen the accused making her obscene video. She waited for accused for 34 months. She talked to her sister and cousin of accused namely Arif who told that accused will marry the girl who has been searched by his family members. On 22.12.2015 she filed a case of DV Act in the court against the accused which was dismissed on 14.01.2016 by the Ld.MM stating that the case is not of Domestic Violence but of Rape. She thereafter made complaint Ex.PW1/A in the police station Jamia Nagar. Accused and his family members were called by the police who sought time from police but accused did not marry her. The accused once met her on the way and took her to the Court to marry but did not marry her. She was got medically examined by the police vide MLC Ex.PW1/B. She was taken to the court by police where she gave her statement Ex.PW1/C before the Magistrate under Section 164 Cr.P.C. The accused married on 04.04.2016 with some other girl.
Ld. Addl. PP put leading questions to the witness submitting that prosecutrix is not disclosing the complete facts. PW1 deposed that when the accused came to live with her they used to sleep on different beds but in the same room. She deposed that when she gave Rs. 80,000/ accused told her that he will marry her in a week. After a week when she contacted the accused he avoided her phone and also blocked her number. On 15.07.2015 he told her that he will marry her only when his parents will agree for their marriage. The accused SC No. 2711/16 State Vs Shahzad Page No. 7 of 25 thereafter did not make physical relations with her. Accused threatened her to throw acid on her if she would go to the police station or the Court.
5. PW3 W/SI Shanti is the IO of the present case. She deposed that she sent the prosecutrix to AIIMS with W/Ct. Veer Pal Kaur for her medical examination, prepared rukka on the complaint of the prosecutrix vide Ex.PW3/A, got the FIR registered which is Ex.PW3/B, prepared the site plan Ex. PW3/C at the instance of the prosecutrix. She also moved an application Ex.PW3/D vide which statement of prosecutrix under Section 164 Cr.P.C was got recorded. Accused was formally arrested since he was on anticipatory bail vide arrest memo Ex.PW3/E and recorded his disclosure statement vide Ex.PW3/F. Accused was medically examined on 19.03.2016 in the AIIMS Hospital qua his potency test. The doctor handed over blood in gauze of the accused in sealed condition with sample seal which she seized vide seizure memo Ex.PW3/G and recorded the statement of witnesses and thereafter filed the chargesheet in the court. Formal Witness:
6. PW4 HC Nathu Lal has deposed before the court that he was working as Duty Officer on 09.02.2016 at PS Jamia Nagar. W/SI Shanti produced the rukka for registration of FIR. He recorded the FIR and handed over the copy of FIR and rukka to W/SI Shanti. He also proved on record rukka Ex.PW4/A and gave a certificate under SC No. 2711/16 State Vs Shahzad Page No. 8 of 25 Section 65B of the Indian Evidence Act Ex.PW4/C.
7. PW5 Ms. Shivani Chauhan, Ld. MM had deposed in the court that she recorded the statement of prosecutrix under Section 164 Cr.P.C and proved on record the exhibits.
Medical Witness:
8. PW2 Dr. Venus Dalal deposed that on 09.02.2016 prosecutrix was brought by W/Ct. Vir Pal Kaur to their department for her medical examination. She gave history of forced sexual intercourse by accused Shahzad during the period from 15.05.2015 to 02.06.2015 and thereafter, he committed sexual intercourse with her giving her promise to marry her. PW2 medically examined the prosecutrix vide MLC Ex.PW1/B. As per her internal examination, hymen was not found intact.
Statement of Accused:
9. Statement of accused under Section 313 Cr.P.C was got recorded wherein he stated that he is innocent and all the witnesses have deposed falsely against him. The prosecutrix wanted to extort money from him and used to blackmail him. He never proposed her nor promised her to marry nor made physical relations with her at any time. Accused did not lead evidence in his defence hence, Defence Evidence was closed.
Arguments of Ld. Addl. PP for the State:
10. It is argued by the Ld. Addl. PP for the State that accused had SC No. 2711/16 State Vs Shahzad Page No. 9 of 25 firstly raped the prosecutrix who had given shelter to him and this is not the case of livein relationship. It is stated that the accused was aware that the father of the prosecutrix had disowned her and when sister of the prosecutrix left the house, he intentionally came to her house and made physical relations with her after giving sedative to her and as such he had raped her. It is stated that the suggestion as put by the accused to the prosecutrix show that he was making allegations against her that she was indulging in criminal activities but on the other hand he made consensual relations with her. This shows that all his suggestions are false. It is stated that authorities cited by the counsel for accused are not applicable in the facts of the case especially the authority of Deelip Singh @ Dilip Kumar Vs State of Bihar Appeal (Crl) 44/2004 of Hon'ble Supreme Court because accused had no intention to marry the prosecutrix since inception which is clear from the statement that he stated to the prosecutrix that he will marry with the girl who is selected by her parents. Hence, it is prayed that the accused be convicted.
Arguments of Ld. Counsel for accused:
11. It is argued by the Ld. Counsel for accused that there is delay in lodging of the FIR. First incident is of 15.05.2015 and continued till 30.05.2015 but the FIR was filed by the prosecutrix at a belated stage. It is stated that after the prosecutrix was raped by the accused on 15.05.2015 without her consent and willingness, she should have SC No. 2711/16 State Vs Shahzad Page No. 10 of 25 made complaint at the first outset against the accused. It is stated that she and her sister are disowned by her father on account of their criminal activities. She indulged in relations with the accused but did not inform even the parents and her sister who was residing with her. She filed a case under Domestic Violence Act which was dismissed by the court on the ground that she is married with the accused. It is stated that no evidence of cheating is collected by the IO. From where Rs. 80,000/ were arranged and given to the accused is not proved on record. Hence, it is prayed that the accused be acquitted. Ld. Counsel for accused has placed reliance on the judgments of Manoj Bajpai Vs State of Delhi W.P. (Crl) 771/2014 of Hon'ble Delhi High Court, Deelip Singh @ Dilip Kumar Vs State of Bihar Appeal (Crl) 44/2004 of Hon'ble Supreme Court decided on 03.11.2004, Karthick Theodre Vs State of Rep. by Inspector of Police All Women Police Station Cantonment, Trichy (Crl. A. (MD) No. 321/2011) of Hon'ble Madras High Court.
Conclusion:
12. Before appreciating the facts of this case, it is necessary to know the ingredients of the offence of rape by resorting to the provisions of section 375 read with section 376 IPC. Section 375 IPC provides as under: "375. Rape. A man is said to commit "rape" if he (a) penetrates, his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do SC No. 2711/16 State Vs Shahzad Page No. 11 of 25 so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body or a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions : First. against her will.
Secondly. Without her consent Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. With or without her consent, when she is under eighteen years of age.
Seventhly. When she is unable to communicate consent. Explanation 1. For the purpose of this section, "vagina" shall also include labina majora.
Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal SC No. 2711/16 State Vs Shahzad Page No. 12 of 25 communication, communicates willingness to participate in the specified sexual act;
Provided that a woman who does not physically resist to the act of the penetration shall not be the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. A medical procedure or intervention shall not constitute rape.
Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
13. Rape is the act of physically forcing a woman to have sexual intercourse; an act of sexual intercourse i.e. forced upon a woman against her will. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. Lett. 130b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the following essentials"
1) Sexual intercourse by a man with woman.
2) The Sexual intercourse must be under circumstances falling under any of the seven clauses in Section 375 IPC.
14. Section 90 of the IPC defines consent. It reads: a consent is not SC No. 2711/16 State Vs Shahzad Page No. 13 of 25 such a consent as it intended b y 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.
15. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance the good and evil on each side. Consent is rape covers states of mind ranging widely from actual desire to reluctant acquiescence. Consent within penal law, defining rape, requires exercise of intelligent based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to the understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.
16. In the case of Rao Harnarain Singh Sheoji Singh Vs. The State, AIR 1958 P H 123, the High Court while holding the accused liable for the offence of rape has distinguished between the word ' consent' and 'submissions' as shown below: "(1) A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be " consent" as understood in law.
SC No. 2711/16 State Vs Shahzad Page No. 14 of 25(2) Consent, on the part of a woman as a defence to an allegation of rape, 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 freely exercised a choice between resistance and assent.
(3) Submission of her body under the influence of a fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and mere act of submission does not involve consent.
(4) Consent of the girl in order to relieve an act, of a criminal character, like rape must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.
(5) A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wants. Consent implies the exercise of a free and untrammeled right to forbid or without what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former."
17. The essence of rape is absence of consent. The consent means intelligent and positive concurrence of woman. A woman is said to SC No. 2711/16 State Vs Shahzad Page No. 15 of 25 consent, only when she freely agrees to submit herself while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under influence of fear or terror or false promise is not consent. If the physical relations are made with consent, that cannot be termed as rape.
18. 420. Cheating and dishonestly inducing delivery of property: "Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
19. 506. Punishment for criminal intimidation: Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc. If threat be to cause death or grievous hurt, etc.and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 3*[imprisonment for life], of with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or SC No. 2711/16 State Vs Shahzad Page No. 16 of 25 with both.
20. The prosecution has tried to build up a case of rape upon the prosecutrix by the accused forcibly on the first occasion whereafter she succumbed to the entreaties of the accused to have sexual relations with him on account of the promise made by the accused to marry her and thereafter continued to have sex with her on different occasions. The effort by her to get marital tie failed and then she filed the case against the accused.
21. For proving the case of rape under Section 375 IPC, it is required to be proved that the same was against the will of the prosecutrix or without her consent as per first and second clause of section 375 IPC which clauses are only attracted in this case. The expression "against will" seems to connote that the offending act was done despite resistance and opposition of the woman. In this context it is necessary to scrutinize her statement to know whether it would lead to the conclusion, beyond reasonable doubt that the accused was having sexual contact with her against her will at the first instance. This is how she had deposed in the court : " In April 2014, for the first time, the accused had called me on my mobile phone no. 7834958566. He told me that he got my number from my neighbour. The accused told me that he loves me and wants to marry me. I disconnected the phone since I did not believe on him.
On the next day again, the accused called me and requested me not to disconnect the phone saying that SC No. 2711/16 State Vs Shahzad Page No. 17 of 25 he loves me a lot. He told me that when I would believe on him, I should say yes. He used to make calls daily. Sometimes, I used to talk and sometimes, I used not to talk. After 34 months, I believed on the accused that he will not cheat me.
In the second week of August, the accused asked me to call when I would be free, he would come at Tikona park near my house. At about 2/2.30 PM, I got free and then called the accused. The accused came at Tikona park. He had brought cold drink with him. He tole me about him. He told me that from the day he saw me, he fell in love with me and he wants to marry with me. We talked to each other for about half an hour. We both had the cold drink. The accused then dropped me near my house and went away. We started meeting each other at the tikona park. I fell in love with him and started believing him.
In May 2015, the accused told me that he has some financial problem. He has to make payment to his landlord. I had been living with my sister. He asked me if my sister was going back. I asked him how he came to know of it. He told me that he knows it. The accused told me that he loves me and will marry me. He thereafter asked me if he could live with me. I replied in affirmative. He started living with me in the house w.e.f first week of May 2015. I and the accused used to live in the house. I had blind faith on him.
On 15.05.2015, he asked me to have physical relation with him but I refused. He asked me not to worry. He gave me cold drink. I became unconscious. When I got up in the morning, I found the accused on my bed. There was no cloth on my body. He was also without cloth. He was lying with me on the bed. When I got annoyed, the accused told me that since I was not agreeing for the physical relation, he gave me cold SC No. 2711/16 State Vs Shahzad Page No. 18 of 25 drink and thereafter, he committed sexual intercourse with me. The accused asked me not to cry as he would marry me.
On the next day evening, he again committed sexual intercourse with me. He then on the next day morning committed sexual intercourse with me. Though, I opposed but he told me that since he has already physical relation with me why I have been objecting for it. The accused time and again told me that he will marry me only."
22. The prosecutrix has deposed in the court that accused had stayed in her house for 1215 days on her asking only. She did not have any objection as to his stay in the house. She has admitted that she loves accused. Accused had admittedly stayed in her house when for a short duration, sister of the prosecutrix was away from the house. As per her version, she was meeting the accused and fell in love prior to the date when the first incident of rape had happened with her. The accused had even promised to marry her. Accused had raped her after giving some sedative to her and consoled her saying that he would marry her and thereafter on the next day and next to next day, the accused continued to make physical relations with her. Her testimony shows that she became consenting party under the impact of his promise to marry her and as such it is not safe to lend credence to her statement that she was subjected to rape against her will in the first instance. As per her version the accused made the promise of marriage prior to the alleged first incident of rape. If the rape was committed by SC No. 2711/16 State Vs Shahzad Page No. 19 of 25 the accused first time much against her will, she would not have volunteered to submit to his wish subsequent to the alleged first incident of rape. She had also developed love for the accused and had invited the accused to her house in the absence of her sister. This conduct of the prosecutrix cast element of doubt on the version of the prosecutrix that she was subjected to rape. Further, as per her cross examination the prosecutrix had not even narrated the incident to her sister with whom she was residing. As per deposition in the court her sister even refused to intervene in the matter. The prosecutrix has admitted that she had loved the accused and had allowed him to stay in her house. Her affair with the accused was prior to the incident of rape forcibly on the first occasion and as per her statement she was believing the accused who had stated to her that he wants to marry her and that they used to meet each other with such an intention in their mind. Hence, in the light of this statement of the prosecutrix it is not safe to lend credence to her version that she was subjected to rape against her will at the first instance.
23. Now the next question which calls for consideration is whether accused is guilty of having sexual intercourse with her without her consent.
24. In Deelip Singh @ Dilip Kumar Vs State of Bihar Appeal ( Crl. ) 44/2004 it is held by Hon'ble Apex Court that : "Though will and consent often interlace and an act done against the will of a person can be said to be an SC No. 2711/16 State Vs Shahzad Page No. 20 of 25 act done without consent, the Indian Penal Code categorized these two expressions under separate heads in order to be as comprehensive as possible.
What then is the meaning and content of the expression 'without her consent'? Whether the consent given by a woman believing the man's promise to marry her is a consent which excludes the offence of rape? These are the questions which have come up for debate directly or incidently.
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 on the facts of each case. Indian Penal Code does not define 'consent' in positive terms, but what cannot be regarded as 'consent' under the Code is explained by Section 90.
Section 90 reads as follows: "90. Consent known to be given under fear or misconception. A consent is not such a consent as is intended by any Section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows or has reason to believe, that the consent was given in consequence of such fear or misconception;
Consent given firstly under fear of injury and secondly under a misconception of fact is not 'consent' at all. That is what is enjoined by the first part of Section 90. These two grounds specified in Section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries.
The factors set out in the first part of Section 90 SC No. 2711/16 State Vs Shahzad Page No. 21 of 25 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the Court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology. Section 90 cannot, however, be construed as an exhaustive definition of consent for the purposes of the Indian Penal Code. The normal connotation and concept of 'consent' is not intended to be excluded. Various decisions of the High Court and of this Court have not merely gone by the language of Section 90, but travelled a wider field, guided by the etymology of the word 'consent'. In most of the decisions in which the meaning of the expression 'consent' under the Indian Penal Code was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words & Phrases Permanent Edition and other legal Dictionaries. Stroud defines consent as "an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side". Jowitt, while employing the same language SC No. 2711/16 State Vs Shahzad Page No. 22 of 25 added the following: Consent supposes three things physical power, a mental power and a free and serious used to them. Hence, it is that if consent be obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion and not as a deliberate and free act of the mind."
It was observed by B.P. Singh, J. speaking for the Court in Uday Vs State of Karnataka [2003 (2) Scale 329], " the Courts in India have, by and large, adopted these tests to discover whether the consent was voluntary or whether it is vitiated so as not to be legal consent". There is a good analysis of the expression 'consent' in the context of Section 375 IPC by Tekchand, J. in Rao Harnarain Singh Vs State [AIR 1958 Punjab 123]. The learned Judge had evidently drawn inspiration from the above passages in the law dictionaries. The observation of the learned Judge that " there is a difference between consent and submission and every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent", is quite apposite. The said proposition is virtually a repetition of what was said by Coleridge,J. in Regina Vs Day in 1841 as quoted in Words and Phrases ( Permanent Edition) at Page 205. The following remarks in Harnarain's case are also pertinent: "Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non resistance and passive giving in cannot be deemed to be Consent."
In the case of Jayanti Rani Panda Vs State of West Bengal [ 1984 Crl. L. J. 1535] it is held that : "The failure to keep the promise at a future uncertain date due to reasons not very clear on the SC No. 2711/16 State Vs Shahzad Page No. 23 of 25 evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 of IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her."
25. In the present case, the prosecutrix is a full grown up girl. Knowing full well that her sister is away from house, she has allowed the accused to come and stay in her house with her. The accused asked for a sexual favour which is denied by her and when he made relations with her after intoxicating her, she did not try to take action on account of his promise that he will marry her, but again she continued to make relations with him on such an assurance. There is no doubt that accused must have hold out a promise to marry her which was the predominant reason for the prosecutrix to agree to sexual intimacy and prosecutrix was also too keen to marry him but the promise he made was not proved to be false since inception. No evidence has come on SC No. 2711/16 State Vs Shahzad Page No. 24 of 25 record to infer that accused had no intention to marry the prosecutrix since inception. From the evidence, it is clear that the prosecutrix, a full grown up girl of 26 years entered into physical relationship with the accused and continued with that and when relationship became sour, she came to the court. It is nothing but promiscuity on the part of prosecutrix.
26. Accordingly in view of the above observations, it is held that prosecution has failed to prove its case beyond doubt against the accused. Giving benefit of doubt to the accused, accused is acquitted of the charges under Section 328/376, 417/376, 420 and 506 IPC framed against him.
27. In view of the Section 437A of Cr.P.C., accused is directed to furnish bail bond in a sum of Rs. 30,000/ with one surety of like amount for the period of six months with the condition that he shall appear before the Hon'ble High Court as and when notice be issued in respect of any appeal filed by the state against the judgment within a period of 6 months. Case property be confiscated to the state after expiry of period of revision/appeal, if any.
28. File be consigned to Record Room.
Announced in the open court today i.e. 26.03.2018 ( Renu Bhatnagar) ASJSpl. FTC / SED/Saket Courts New Delhi SC No. 2711/16 State Vs Shahzad Page No. 25 of 25