Delhi District Court
State vs . Ravi Kumar Page No. 1/16 on 14 September, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No: 02406R0177132015
SC No. : 117/15 and 2330/16
FIR No. : 1081/14
U/s. : 417/376 IPC
PS : Kotla Mubarak Pur
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Ravi Kumar
S/o Charan Singh
R/o Room No. 23, House No. 2035,
Pillanji Village, New Delhi. ...................Accused
Date of Institution : 01.08.2015
Judgment reserved for orders on : 11.09.2017
Date of pronouncement : 14.09.2017
J U D G M E N T
FACTS :
1. On 01.12.2014, the prosecutrix ( name withheld to protect her identity) came at the police station Kotla Mubarak Pur, New Delhi and gave a complaint alleging that she has been living with her brother at 1958/1, Pillanji, Kotla Mubarak Pur. The accused also lives in the same house. He was of her native place Bareilly, U.P. For about three months, he made physical relations with her giving her false promise of marriage. About 15 FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 1/16 days ago, he eloped with some other girl.
INVESTIGATION :
2. On her complaint, the case u/s 376 IPC was registered. The prosecutrix was sent to the hospital for her medical examination where she refused for her internal examination. Her statement u/s 164 CrPC was got recorded. On 23.12.2014, the accused came in the police station with a girl namely Chandni. He produced his marriage certificate stating that he has married to Chandani at Arya Samaj Mandir, Biharipur, Bareilly. There was a missing report of Chandni by her father vide DD No. 39A dated 16.11.2014 regarding which, a case was registered vide FIR No. 1014/14 u/s 363 IPC. He was arrested. He was got medically examined qua his potency. After the investigation, he was sent for trial for the offence punishable u/s 376 IPC.
CHARGE :
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 09.09.2015, prima facie case was made out against the accused for the offence punishable u/s 417/376 IPC. Charge was framed. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
4. To substantiate its allegations against the accused, prosecution examined as many as fourteen witnesses.
PW1 is the prosecutrix. I will discuss her testimony at the time of appreciation of evidence.
PW2 ASI Rajender Prasad proved the recording of the FIR Ex. PW 2/A. FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 2/16 PW3 Ct Manorama took the prosecutrix to Safdarjung Hospital for her medical examination. PW4 Chandni Kumari is the wife of the accused. She stated that in 2013, the accused had been living in the same building where she was living. He vacated the premises in January, 2015. She eloped with him. He took her to Jaipur, Ambala, Haryana and Bareilly. On 17.12.2014, they married in Arya Samaj Mandir, Bareilly. She stated that she knows the prosecutrix as she used to visit her brother in the same building. She stated that the accused never told her that he had relations with the prosecutrix or he was going to marry her. She stated that if he would have told her about his relations with the prosecutrix, she would not have married him. She stated that on 22.12.2014, when they returned Delhi, they came to know of this case. Since then, she has been living with her parents. She stated that she does not know if the marriage of the prosecutrix was ever fixed with the accused. She stated that she was not on talking terms with the prosecutrix and her brother.
PW5 Santosh Kumar is the brother of the prosecutrix. He stated that the prosecutrix had come to Delhi in March, 2014. The accused was his friend. He used to visit his room. After about three months, his sister/prosecutrix told him that the accused had called FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 3/16 her in his room and proposed her for marriage but she refused and on his persistent requests, she agreed to marry him. She told him that the accused had established physical relations with her on the false assurance of marriage. He stated that he talked to the accused. He told him that he wants to marry with the prosecutrix. They agreed for their marriage. He stated that in November, 2014, the accused eloped with some other girl who had also been living in the same building. They then got the case registered. He stated that the prosecutrix had come to Delhi in March and went back in April. She again came for making the complaint.
PW6 Dr Sunaina Wadhwa did the medical examination of the prosecutrix vide MLC Ex. PW 1/B and recorded the brief history of incident on the narration of the prosecutrix. She stated that the prosecutrix had refused for her internal examination. PW7 Shambhu Singh is the father of Chandni. He stated that on 15.11.2014, when his daughter Chandni did not return from her office, he searched for her but did not find her. He then on 16.11.2014 lodged her missing report.
PW8 Kuldeep is the son of landlord of the house bearing No. 1958, Pillanji Village. He stated that he does not know if accused Ravi Kumar or Sunil were FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 4/16 tenants in the aforesaid house.
He was declared hostile by the prosecution. On being crossexamined by the Public Prosecutor, he denied that he used to manage the rooms on rent. PW9 Ms Vasundhara Chhaunkar, Ld. MM recorded the statement of the prosecutrix u/s 164 CrPC Ex. PW 1/C. PW10 Shri Chand was the landlord of House No. 1958, Pillanji Village. He stated that father of accused Ravi Kumar had taken a room on rent in 2014 where he used to live with the accused and son. The family of brother of the accused also used to live there. Chandni was also the tenant in the said building. He stated that he came to know from the police that accused had eloped with Chandni. He stated that Chandni has still been living in his house as tenant with her mother but the accused Ravi vacated the premises in 2015. PW11 Dr Piyush Sharma did the medical examination of the accused vide MLC Ex. PW 11/A and found him capable of performing sexual intercourse under normal circumstances.
PW 12 ASI Janardan Singh Bhati was the investigating officer of case FIR No. 1014/14 and DD No. 39A dated 16.11.2014 regarding missing of Chandni and Kajol. He stated that on 23.12.2014, Ravi and Chandni had come in the police station. He FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 5/16 produced her in the court and got recorded her statement u/s 164 CrPC wherein she had stated that she had willingly gone with the accused Ravi and married him. He then handed over the custody of the accused to Insp. Santosh Chauhan.
PW13 Ct Naveen took the accused to AIIMS for his medical examination. He handed over the sealed exhibits of the accused to the IO vide memo Ex. PW 13/A. PW14 Insp. Santosh Chauhan was the investigating officer. She deposed on the lines of the investigation. STATEMENT OF ACCUSED U/S 313 CR.P.C. :
5. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him. He stated that he never had relation with the prosecutrix. He never established physical relations with her nor promised to marry her. Infact the prosecutrix wanted to marry him. When he married to Chandni, she got annoyed and falsely implicated him in this case. DEFENCE EVIDENCE :
6. In defence, the accused did not examine any witness. FINDINGS:
7. I have heard the arguments advanced by Ld. Counsel Sh. M S Karwasra for the accused and Sh. Mohd. Iqrar, Ld. Addl. PP for the State.
8. The accused has been charged with the offence of committing sexual intercourse with the prosecutrix giving her false promise of marriage.
FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 6/16
9. Section 90 of the IPC defines consent. It reads: a consent is not such a consent as it 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.....
10. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance the good and evil on each side. Consent in rape covers states of mind ranging widely from actual desire to reluctant acquiescence. Consent within penal law, 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. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.
11. 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.
(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.
FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 7/16 (3) Submission of her body under the influence of 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 a 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 withhold 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.
12. The expression 'under a misconception of fact' is enough to include a case where the misrepresentation, made by the accused, leads to a misconception of fact in the mind of prosecutrix, who, believing the misrepresentation made to her and presuming, it to be true and correct, forms a misconception of fact that the accused was definitely going to marry her and acting thereupon, she consents to have sexual intercourse with him.
13. In Sujit Ranjan Vs. State 2011 Law Suit (Del) 601, it was held:
"Legal position which can be culled out from the judicial pronouncements referred above is that the consent given by the prosecutrix to have sexual intercourse with whom she is in love, on a promise that he would marry her on a later date, cannot be considered as given under "misconception of fact". Whether consent given FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 8/16 by the prosecutrix to sexual intercourse is voluntary or whether it is given under "misconception of fact" depends on the facts of each case. While considering the question of consent, the Court must consider the evidence before it and the surrounding circumstances before reaching a conclusion. Evidence adduced by the prosecution has to be weighed keeping in mind that the burden is on the prosecution to prove each and every ingredient of the offence. Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception and that promise made was false to his knowledge. The failure to keep the promise on a future uncertain date may be on account of variety of reasons and could not always amount to "misconception of fact" right from the inception."
14. PW1/prosecutrix has deposed that accused was the friend of his brother with whom she used to live at Kotla Mubarak Pur after coming from her native place. The accused was of her District. She stated that her marriage with the accused was fixed for 01.12.2014 but before the marriage he eloped with Chandni who used to live in the same building. She then lodged the complaint with the police. She stated that the accused before the marriage used to meet her, come in her room and say that he would marry her and would not leave her. He also committed sexual intercourse with her several times without her consent. He used to force upon her. He also promised to marry her. He used to threaten her not to reveal their relations to anyone. He used to call her in his room and have sexual intercourse with her. She proved her complaint Ex. PW 1/A, her statement u/s 164 CrPC Ex.
FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 9/16 PW 1/C and her MLC Ex. PW 1/B. In her crossexamination, she stated that she came to Delhi in March, 2014. She stayed in Delhi for five months. She had been working in Agra. From there she went to her village. She knew the accused for 34 years. Earlier her marriage was fixed for March, 2014 but it was postponed for June, then for July and then for December. She at that time was working in Agra where she worked for one year. Her marriage date was fixed in February, 2014. She worked in Agra till February, 2015. She stated that she used to come to Delhi from Agra and stay for 24 days. She also used to call the accused from Agra. She denied that she had told the accused that she had gone to Budha Garden with her brotherinlaw Jagdish or she has a close friend in Agra. She stated that her engagement was fixed in 2013. She admitted that when the accused eloped with Chandni, she got annoyed and made the complaint. She denied that the accused never committed sexual intercourse with her or that the accused never threatened her.
15. In the complaint Ex. PW 1/A, the prosecutrix had alleged that the accused had been making physical relations with her giving her false promise of marriage for about three months. About 15 days ago, he eloped with some other girl. In her statement u/s 164 CrPC Ex. PW 1/C, she had stated that accused had promised her that he would marry her. He did galat kaam with her. He established physical relations with her two times. Her marriage with the accused was fixed for 01.12.2014 but 15 days before her marriage, he eloped with her neighbour Chandni. In the history narrated to the doctor vide MLC Ex. PW 1/B, she had stated that she was engaged to the accused. It was the mutual intercourse. Since he left her, she wanted to put a case on him. In the complaint Ex. PW 1/A, her statement Ex. PW 1/C FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 10/16 and MLC Ex. PW 1/B, she never alleged that the accused committed sexual intercourse with her forcibly. In her testimony, she made material improvements and deposed that sexual relations between them were not with her consent, he used to force upon her and threaten her. Her testimony reveals that he used to come in her room and sometimes he used to call her in the room. Question arises when the accused used to make physical relations with the prosecutrix forcibly, what made the prosecutrix go to his room or allow him to come in her room.
16. PW1/prosecutrix has stated that she knew the accused for about 34 years. He is of her District. Earlier, her brother and the accused used to share the room. She has stated that her engagement was done in Delhi in 2013. Her father had come at that time. Earlier her marriage was fixed for March, 2014 but it was postponed for June, then for July and then for December. She has stated that when her marriage was fixed, she was working in Agra. She has stated that she used to visit Delhi from Agra and stay with her brother for 24 days. She has stated that she used to call the accused from Agra. In her complaint Ex. PW 1/A, she has stated that the accused had been making physical relations with her for three months giving her false promise of marriage. Question arises when she was already engaged with the accused and her marriage was fixed, how there could be false promise of marriage. PW5 has deposed that the prosecutrix had come to Delhi to live with him in March, 2014. The accused used to live in the same building. After about three months, she told him that one day the accused had called her in his room and proposed her for marriage but she refused. The accused then told her that he loves her and wants to marry her and on his persistence, she agreed. Question arises when her engagement FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 11/16 had already been made with the accused and her marriage was fixed with the accused for March, 2014, how after three months, she had told her brother that the accused had called her in the room and proposed her for marriage and on his persistence, she agreed for the marriage.
17. In the instant case,as appearing in the testimony of the prosecutrix, she used to work in Agra. She used to come from Agra to stay with her brother. She was quite mature and capable of understanding what was happening between her and the accused. She used to visit the room of the accused. The accused used to come to her room and several times they made physical relations. She made the complaint when the accused eloped with another girl namely Chandni. She did not complain to the police when the accused allegedly committed sexual intercourse with her forcibly as appearing in her testimony which is not there in her complaint Ex PW 1/A. She had also refused for her internal examination.
18. Facts and circumstances of the present case rather show that the prosecutrix and the accused used to love each other. They used to meet often. The prosecutrix used to come from Agra to meet the accused. They used to make physical relations. When the accused eloped with some other girl, she got annoyed and made the complaint. Nothing came be imputed from the facts and circumstances and testimony of witnesses that their physical relations were under misconception of fact or based on false promise of marriage.
19. In the case of Uday vs. State of Karnataka, 2003 (1) JCC 506, the prosecutrix and the accused were deeply in love. They used to meet often. She went out with the accused to a lonely place at night. The accused had also made promise on more than one occasion to marry her. It was held FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 12/16 that in such circumstances, the promise loses all significance particularly when they are overcome with emotions and passions and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well and the prosecutrix had willingly consented to having sexual intercourse with the accused with whom she was deeply in love but not because that he promised to marry but also she desired it. In these circumstances, it would be very difficult to impute to the accused knowledge that the prosecutrix had consented in consequence of a misconception of a fact arising from his promise. The observations made in the case supra have relevance in this case. It was held that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activities, it is an act of promiscuity on her part and not an act induced by misconception of fact.
20. It was held in the case of Md. Iqbal Vs. State, Bail application no. 2145 of 2009 : "There is an old Jewish saying "if you are close when you should be distant, you will be distant when you should be close. It is for both man and women to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral and ethical, both, on the part of men not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But ultimately, it is a women herself, who is the proctor of her own body. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A women should not throw herself to a man and indulge in promiscuity, becoming source FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 13/16 of hilarity. It is for her to maintain her purity, chastity and virtues".
21. In the case of Rohit Chauhan vs. State NCT of Delhi, 2013, Bail application no. 311/2013 dated 22.05.2013, it was observed:
"There may be cases where both persons out of their own will and choice develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship but when the relationship breaks due to one or the other reason, the woman uses the law as a weapon for vengeance and personal vendetta."
22. In the case of Gaurav Magoo Vs. State of NCT Crl. Appeal no. 369/2014 dated 29.05.2015, It was held that if a fully grown up lady consents to an act of sexual intercourse on a promise to marry and continues to indulge in such activities for long, it is an act of promiscuity on her part and not an act induced by misconception of fact.
23. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 14/16 distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration".
24. In the case of Narender Kumar Vs. State of NCT Of Delhi AIR, 2012 SC 2281, it was observed:
23. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts.
25. From the evidence discussed above, I am of the view that the circumstances appearing in this case when examined in the light of above principles do not lead to any decisive conclusion that the accused committed sexual intercourse with the prosecutrix forcibly, or he elicited the consent of the prosecutrix for the physical relations giving her false promise of marriage punishable under section 417/376 IPC.
26. In the light of what has been stated above, I acquit the accused FIR No. : 1081/14 PS : K M Pur State Vs. Ravi Kumar Page No. 15/16 of the offence punishable under section 417/376 IPC. His bail bond be cancelled. His surety is discharged. Accused is however directed to furnish bail bond in the sum of Rs.25,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.
27. File be consigned to record room.
Announced in the open
court today i.e 14.09.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 1081/14
PS : K M Pur
State Vs. Ravi Kumar Page No. 16/16