Delhi District Court
State vs . Kapil; on 28 November, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL
ADDITIONAL SESSIONS JUDGE / SPECIAL FAST TRACK
COURT (NORTH): ROHINI: DELHI
Sessions Case No : 58388/16
State
Versus
Kapil
S/o Sh. Sunder Lal
R/o H. No. 225, Jatav Mohalla,
Azadpur, Delhi.
FIR No. : 369/13
Police Station : Bhalswa Dairy
Under Sections : 323/376/506 IPC
Date of Committal to Sessions Court : 05.03.2015
Date on which Judgment reserved : 18.11.2019
Date on which Judgment announced : 28.11.2019
JUDGMENT
1. Prosecution case is that the victim was married about 12 years ago and had two daughters. She was employed in a factory in Wazirpur and the accused used to work in a factory opposite to her factory and hence, both came to know each other. After one month of acquaintance, the accused started visiting her house but later, her husband started objecting his visits. One day, the accused came to her house alongwith State vs. Kapil;
SC No. 58388/16; FIR No. 369/13; PS: Bhalswa Dairy Page No. 1 of 12 his friends in her absence and beat her husband. When she returned home from duty, she was told by accused that her husband had left the house alongwith both daughters. So, she attempted to intimate police at 100 number but was not allowed by the accused. He and his four friends took her forcibly to Nirankari Colony, Dhirpur where the accused had already taken a room on rent. His friends went away from there and he raped her on the strength of knife and thereafter, promised to marry her. After keeping her in Nirankari Colony for 56 months, she was taken to another rented house in Mukundpur. On 12.08.2013, when there was quarrel between them, accused's mother, sisterinlaw (bhabhi) and brother came there and beat her. It was his brother who had given intimation of fight to police on 100 number. The accused left her alone in lurch on 13.08.2013.
2. Charge under Section 376/506/323 IPC was framed against accused on 12.08.2015 to which he pleaded not guilty and claimed trial.
3. In order to prove the case, prosecution examined 13 witnesses.
4. As PW8, prosecutrix deposed all the facts mentioned in complaint Ex.PW8/A upon which FIR was registered. Additionally, she deposed that when her husband left her house, the accused took her to rented house in Nirankari Colony where he established physical relations on the pretext of marriage. They lived there for about 56 months and thereafter, they came to Janta Vihar, Hanuman Road, Mukundpur where they stayed for 78 months. In Mukundpur, family members of the State vs. Kapil;
SC No. 58388/16; FIR No. 369/13; PS: Bhalswa Dairy Page No. 2 of 12 accused beat her. One day in 2013, the accused stabbed her and ran away from the house. She visited police station several times for lodging FIR which was registered at last in November 2013 upon statement Ex.PW8/A. She further deposed that her statement Ex.PW8/B U/s 164 Cr.P.C. was also recorded.
PW7 Smt. Mewa Devi is landlady of H. No. 352, village Dhirpur which was let out to accused and victim. She deposed that victim and accused came to her house and requested for a room on rent. The victim had told her that she was wife of the accused. They started residing on the first floor of the house and stayed for about 23 months.
PW6 Jagat Singh is landlord of H. No. 151, Main Road, Janta Vihar, village Mukundpur which was let out to accused and victim. He deposed that accused and prosecutrix came to him and requested for a room on rent saying that they were husband and wife. He rented out a room @ Rs. 1500/ per month to them where they resided for about 45 months. He next deposed that a quarrel took place between accused and victim for which the prosecutrix gave intimation on 100 number. Family members of the accused also came there and the accused surrendered his room.
5. PW3 Dr. Neeraj Chaudhary identified the signature and handwriting of Dr. Khaleelullah Khan on the MLC Ex.PW13/A of victim who was initially medically examined by Dr. Khan on 28.11.2013 and thereafter, she was referred to S.R. Gynae. He deposed that he was in the State vs. Kapil;
SC No. 58388/16; FIR No. 369/13; PS: Bhalswa Dairy Page No. 3 of 12 position of identifying the handwriting and signature of Dr. Khaleelullah Khan as he had seen him writing and signing during the course of duty.
PW4 Dr. R. Kappu identified the signature and handwriting of Dr. Smita Pathak, S.R. Gynae, who had medically examined the victim internally, saying that the present whereabouts of that doctor were not known and that he was in a position to identify her signatures and handwriting as he had seen her writing and signing during the course of duty.
PW1 Dr. Arun deposed that the accused was referred to him for potency test which he conducted and opined that he was capable of doing sexual intercourse.
PW9 ASI Sarla registered case FIR Ex.PW9/A on 28.11.2013 at 3.15 pm when SI Sangeeta handed him over rukka.
6. PW2 HC Shyam Lal was working as MHC(M) on 28.11.2013 when SI Sangeeta deposited one sealed packet containing sexual assault evidence collection kit, for which he made entry no. 1627 Ex.PW2/A in register no. 19. He handed over the sealed parcel and sample seal to Ct. Sunil on 10.01.2014 for deposit in FSL, vide R.C. Ex.PW2/B and after depositing the same in FSL, the constable gave him receipt of acknowledgment Ex.PW2/C. PW12 HC Sunil Kumar deposited exhibits in FSL on 10.01.2014 without tampering with them.
PW5 Sh. Indresh Kumar Mishra, Assistant Director (Biology) State vs. Kapil;
SC No. 58388/16; FIR No. 369/13; PS: Bhalswa Dairy Page No. 4 of 12 FSL, Rohini, examined the parcel received on 10.01.2014, biologically and gave report Ex.PW5/A.
7. PW10, first IO SI Sangeeta, deposed that prosecutrix came to police station on 28.11.2013 and a lady constable got her medically examined in BJRM Hospital and brought her back and handed her over her MLC. After recording victim's statement, she prepared rukka Ex.PW10/A and got the case FIR registered. Ct. Geeta handed her over sexual assault evidence collection kit in sealed condition and one sample seal which she seized vide seizure memo Ex.PW10/B. She got her statement recorded U/s 164 Cr.P.C. on 03.12.2013. Thereafter, she was transferred and handed over case file to MHC(R).
8. PW13 Ct. Gurdeep Singh accompanied W/SI Roshni to the house of the accused bearing No. 225, Jatav Mohalla, Azadpur and 06.11.2013 from where he was arrested vide arrest memo Ex.PW1/A and after interrogation, his disclosure statement Ex.PW11/B was recorded. He pointed out place of incident resulting into preparation of pointing out memo Ex.PW11/C. He next deposed that the accused led them to another house also bearing no. 352, Village Dhirpur and pointed out a room where he had raped the victim pursuant to which, pointing out memo Ex.PW11/D was prepared.
PW11 SI Roshni came into picture when investigation was assigned to her on 07.07.2014 at the stage when proceedings U/s 82 Cr.P.C. against accused were pending. She deposed that she invoked State vs. Kapil;
SC No. 58388/16; FIR No. 369/13; PS: Bhalswa Dairy Page No. 5 of 12 section 506 IPC against him on 29.10.2014 after discussion with senior police officials. She next deposed that the accused got anticipatory bail and thereafter, he came to police station on 06.11.2014 and was arrested vide arrest memo Ex.PW11/A and his disclosure statement Ex.PW11/B was also recorded. Then he pointed out two places where he had raped the prosecutrix and pointing out memos Ex.PW11/C and Ex.PW11/D were prepared. His potency test was got conducted on 10.11.2014 in RML Hospital. She next deposed that the victim had named accused's brother Sonu, Bhabhi Asha and mother Mam Kaur as accused persons but their complicity in rape was not established. She had interrogated two police officials including SI Krishan and another SI on 17.11.2014, who were enquiry officers of two 100 number calls made by the victim. At last, she filed the chargesheet.
9. On 29.04.2019, the accused admitted following statements/ documents U/s 294 Cr.P.C.: S. Name of the documents Admitted Denied Exhibits No.
1. Proceedings U/s 164 Cr.P.C. Yes - Ex.PX1 & conducted by Sh. Chanderjit Ex.PX2 Singh, Ld. MM, Rohini Courts and certificate issued by him regarding correctness and trueness of statement u/s 164 Cr.P.C.
2. MLC No. 70177 dated 28.11.2013 Yes Ex.PX3 prepared by Dr. Prem Singh Bishnoi, CMO, BJRM Hospital of the prosecutrix.
SC No. 58388/16; FIR No. 369/13; PS: Bhalswa Dairy Page No. 6 of 12
10. Under section 313 Cr.P.C., the accused took the defence of false implication.
11. The accused did not examine even a single witness in defence.
12. Ld. defence counsel argued that the marriage of the victim was inexistence during the period she remained into contact with the accused. Due to that reason, she was well aware that the accused cannot marry her. So, consent for sexual intercourse was not due to promise for marriage but due to mutual love and affection. Love and affection was the reason of delay in registration of FIR. The love between the parties is also reflected from the evidence of PW6 and PW7.
13. As per complaint Ex.PW8/A, the victim was married about 12 years prior to registration of the FIR and had two daughters. She used to reside with her husband when the accused started visiting her house which was objected to by her husband. It is further mentioned in the complaint that due to that objection, the accused and his four friends beat her husband and he left house alongwith both daughters. Thereafter, she was taken to some rented house where sexual intercourse was established and ultimately, the accused deserted her on 13.08.2013.
To the same effect is her statement Ex.PW8/B U/s 164 Cr.P.C.
In examinationinchief, about marriage, she deposed the same facts mentioned in the complaint and statement.
SC No. 58388/16; FIR No. 369/13; PS: Bhalswa Dairy Page No. 7 of 12
14. So, consistent stand of the prosecutrix in complaint, statement and evidence is that she was a married lady when she first came into contact with the accused and her marriage was still subsisting when the accused deserted her on 13.08.2013. Hence, she was well aware that the accused cannot marry her even if he wanted because the incapacity to do so was flowing from her side. Despite knowing the fact that she was not legally competent to marry the accused, she allowed him to intrude her privacy. Hence, promise of marriage cannot be the reason of her consent for sex. On this conclusion, this court is supported by Prashant Bharti vs. State of NCT of Delhi, in Criminal Appeal No. 176 of 2013 (arising out of SLP (Criminal) No. 1800 of 2009), decided on 23.01.2013, in which following was held by Hon'ble Supreme Court of India: "16. The factual position narrated above would enable us to draw some positive inferences on the assertion made by the complainant/prosecutrix against the appellantaccused (in the supplementary statement dated 21.2.2007). It is relevant to notice, that she had alleged, that she was induced into a physical relationship by Prashant Bharti, on the assurance that he would marry her. Obviously, an inducement for marriage is understandable if the same is made to an unmarried person. The judgment and decree dated 23.09.2008 reveals, that the complainant/prosecutrix was married to Lalji Porwal on 14.6.2003. It also reveals, that the aforesaid marriage subsisted till 23.9.2008, when two divorced one another by mutual consent under Section 13B of the Hindu Marriage Act. In her supplementary statement dated 21.2.2007, the complainant/prosecutrix accused Prashant Bharti of having had physical relations with her on 23.12.2006, State vs. Kapil;
SC No. 58388/16; FIR No. 369/13; PS: Bhalswa Dairy Page No. 8 of 12 25.12.2006 and 01.01.2007 at his residence, on the basis of a false promise to marry her. It is apparent from irrefutable evidence, that during the dates under reference and for a period of more than one year and eight months thereafter, she had remained married to Lalji Porwal. In such a fact situation, the assertion made by the complainant/ prosecutrix, that the appellant - accused had physical relations with her, on the assurance that he would marry her, is per se false and as such, unacceptable. She, more than anybody else, was clearly aware of the fact that she had a subsisting valid married with Lalji Porwal.
Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage. If the complainant/ prosecutrix herself is taken into consideration alongwith the factual position depicted in the supplementary statement dated 21.2.2007, it would clearly emerge, that the complainant/prosecutrix was in a relationship of adultery on 23.12.2006, 25.12.2006 and 01.01.2007 with the appellantaccused, while she was validly married to her previous husband Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the assertion made by the complainant/ prosecutrix, that she was induced to a physical relationship by Prashant Bharti, the appellant - accused, on the basis of a promise to marry her, stands irrefutably falsified".
In, Salman vs. State of Rajasthan and Anr., Crl. Revision No. 54/17 decided by Hon'ble High Court of Rajasthan on 05.09.2017, Hon'ble High Court set aside the order of ld. ASJ vide which rape charge was framed against the accused observing that the prosecutrix had already married with another person and consequently, there was no possibility of State vs. Kapil;
SC No. 58388/16; FIR No. 369/13; PS: Bhalswa Dairy Page No. 9 of 12 her marriage with the petitioner because she was already continuing in a subsisting marital relationship with another person.
In, X (Assumed name) vs. State & Anr., Crl. Revision Petition No. 110/2017 & Crl. M.A. No.187517 decided on 16.08.2017, Hon'ble High Court Delhi observed that the prosecutrix was well aware that there was no possibility of legal marriage between two as the respondent was already having a living spouse and no proceedings, whatsoever, had been initiated to seek divorce. It further observed that even the prosecutrix was herself a married lady having the custody of nine years old child. The High Court did not find any fault in the order of ld. ASJ discharging the accused under section 376/417 IPC.
15. As per complaint, the accused first came into contact of victim about 2½ - 3 years prior to the registration of FIR. To the same effect is her statement U/s 164 Cr.P.C. As per her, she lived with accused for about 1314 months as his wife as he had promised to marry her. 14 months is quite a long period to disbelieve a person for his false promise. The lady comes to know within 34 months of the promise whether the accused wanted to act upon the same or not. Cohabitation as a wife for long 14 months, shows that cohabitation was not result of promise to marry but due to love and affection. Had accused promised her to marry and later refused to carry out with promise in action, the victim would have come into action quite earlier by lodging FIR but she kept mum for about a year.
SC No. 58388/16; FIR No. 369/13; PS: Bhalswa Dairy Page No. 10 of 12 As per her own evidence, she was ditched at last on 13.08.2013. Despite it, she waited for expiry of 3½ months to lodge report on 28.11.2013.
Delay in reporting the matter to the police is compelling this court to reach to the conclusion that her cohabitation with the accused as wife was not due to his promise to marry but due to mutual love and affection.
The above conclusion is corroborated by the evidence of PW6 and PW7 also. PW6 deposed that the accused and victim had both visited his house to take a room on rent and at that time, the accused had described himself as husband of victim. PW7 Mewa Devi deposed that when both parties came to her house to take a room on rent, the victim described herself as wife of the accused. So, as per PW6 and PW7, both parties were describing themselves as spouses of each other even before marriage. It also shows that there was great mutual love and affection between them.
16. In view of above discussion, it is held that the prosecution has failed to prove its case. Hence, the accused is acquitted of the offences, he was charged with.
17. The personal and surety bonds of the accused are hereby cancelled. Surety is hereby discharged. The endorsement made, if any, on any document of soundness of surety, be cancelled and the document be returned to surety.
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18. However, in terms of Section 437(A) Cr.P.C., the accused has furnished personal bond in the sum of Rs. 10,000/ with one surety of the like amount, which are accepted with the directions to appear before Higher Court, in the event, he receives any notice of appeal or petition against the judgment.
File be consigned to record room.
UMED Digitally signed
by UMED SINGH
SINGH GREWAL
Date: 2019.11.28
GREWAL 17:22:16 +0530
Announced in the open Court (Umed Singh Grewal)
On this 28th November 2019 ASJ: Special FTC (North)
Rohini Courts: Delhi
State vs. Kapil;
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