Delhi District Court
State vs . Thianmin Thang Tonsing on 20 February, 2016
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.42/15
FIR No. 875/14
PS Vasant Vihar
U/s 376/506 of IPC
State Vs. Thianmin Thang Tonsing
s/o Thanjzanang Tonsing
r/o Village Singngat Distt Chura
Chandpur, Manipur
Unique ID No. 02403R0161342014
Date of Institution 16.09.2014
Argument heard/order reserved 20.02.2016
Date of judgment 20.02.2016
Final Order Convicted u/s 506 of IPC
JUDGMENT
1. Succinctly, the facts of the case unfolded from the charge sheet filed u/s 173 Cr.P.C, are that somewhere in the year 2008, the prosecutrix/complainant met the accused through a common friend. Slowly and gradually, a friendship developed between them. Accused expressed his love and proposed to marry prosecutrix. Then a trust developed in prosecutrix and thereafter they had been in relationship for about five years. During the said period, accused was stated to have physically assaulted the prosecutrix and tortured her mentally. But she remained silent in a fear that accused may not take extreme step. In January, 2014, prosecutrix and accused decided to live in together and shifted in a rented apartment at Munirka Village, New Delhi. In April, 2014, the prosecutrix got pregnant. Accused forced her to abort the child and took her to AIIMS Hospital on 07.08.2014 but doctor refused to do so being pregnancy at advance stage. Thereafter, accused forced her to go to another hospital for abortion which was FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 1 of 16 objected by the prosecutrix due to which accused got furious and started abusing and physically assaulting her. In order to save herself, she took shelter at her sister's house. On 08.08.2014, accused went to the house of cousin of her sister to meet her sister with a knife, searched for the prosecutrix and went away extending threat to her cousin and her sister of dire consequences. On prosecutrix's complaint, present FIR was registered against the accused.
2. After completion of investigation challan was filed before the learned MM on 16.09.2014 and the case was committed on 15.10.2014. Thereafter, the case was assigned to this court on 17.08.2015. which was amended vide the order of even date today ie 20.02.2016.
3. On 01.11.2014, a charge was framed by the learned Predecessor against the accused for the offences punishable u/s 376(2)(n) and 506 of IPC to which accused pleaded not guilty and claimed trial.
4. In order to substantiate the allegations, the prosecution examined DO HC Sanjay Kumar as PW1, Ct. Kalyan who joined the investigation of the case after registration of FIR as PW2, Dr. Piyush Sharma who medically examined the accused as PW3, Dr. Neha Purthi who medically examined the prosecutrix as PW4, the prosecutrix/complainant as PW5, Teji Mala complainant's sister as PW6, HC Sitaram who joined the investigation after registration of FIR as PW7, Dr. Amrita Himalayni who examined the prosecutrix when she went to AIIMS to terminate her pregnancy as PW8, Dr. Sandeep Sharma, the Director of MRI Diagnostic and Research Centre where ultrasound of prosecutrix was done to know the stage of pregnancy as PW9, Smt. Rama Tokas the landlady of H.No.251-A Munirka Village, New Delhi where prosecutrix and accused lived as tenant as PW10, Ms. SP Eastland cousin of prosecutrix as PW11, Ct. Arvind Kumar who took the accused to AIIMS for his medical examination as PW12, Ms. Amrita Tonk, learned MM who recorded statement of prosecutrix u/s 164 FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 2 of 16 Cr.P.C as PW13 and IO W/SI Vinod Kapoor as PW14. After completion of prosecution evidence, matter was posted for statement of accused.
5. Statement of accused was recorded u/s 313 Cr.P.C separately. Accused denied the material allegation and stated that he and prosecutrix were residing in live-in relationship but he did not promise to marry her. He is innocent and has been falsely implicated in this case. Accused further stated that he and prosecutrix were working in the same company where prosecutrix was senior to him. They started living together but he never promised to marry her at any point of time. The prosecutrix was already married with one Mr. Matthew and never obtained divorce from him and therefore, there was no question of giving her false promise to marry. The prosecutrix filed the present complaint to pressurize him to marry her.
6. In support of his claim and contention, accused examined his sister Ms. Vung Ngaih Lian as DW1.
In her statement, DW1 stated more or less similar facts as stated by accused in his statement u/s 313 Cr.P.C. DW1 also stated that during consented relationship, prosecutrix got pregnant and also delivered a female baby on 09.01.2015. DW1 further stated that the prosecutrix as well as her family members used to blackmail and threatened her and her family members to pay huge amount or forced accused to get married or they will falsely implicate the accused. DW1 also stated that complainant's mother admitted that the prosecutrix has already been married with Mathew years back but they had already shifted from the village.
7. Final arguments heard on behalf of both the parties. I have also gone through the records as well as written submissions filed on behalf of the accused.
8. It is argued on behalf of the State that prosecutrix met accused in the year 2008 FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 3 of 16 and since then they became friends. Accused induced the prosecutrix by stating that he loves her and also promised to marry her. On assurance of marriage, a trust developed in the prosecutrix. On the false promise of marriage, accused made physical relationship with prosecutrix at house No.251A, Munirka, Vasant Vihar, New Delhi and other places in Rajasthan and Goa etc since 2008. During said relationship, prosecutrix got pregnant number of times and lastly she got pregnant in the month of April, 2014 and when the prosecutrix informed about her pregnancy and asked to marry, accused started forcing the prosecutrix to terminate the pregnancy which was objected by the prosecutix upon which accused beaten her and refused to marry. In order to save her life and pregnancy she took shelter at her sister's house but accused also went there with a knife and threatened her cousin and family member of dire consequences. It is further argued that from the last pregnancy, prosecutrix had also delivered a female child on 09.01.2015 and this fact also stands proved from the testimony of DW1. The prosecutrix as well as other witnesses have well supported the prosecution case and identified the accused. Thus, it is prayed that accused may be held guilty for the alleged offences.
9. On the other hand, apart from other arguments, learned defence counsel vehemently argued that prosecutrix and accused were in love with each other and this fact is also admitted by the prosecutrix in her cross examination. With mutual consent, they were residing in live-in relationship but accused never promised to marry her at any point of time. It is further argued that prosecutrix was well aware that she and accused belong to different tribe and therefore, their marriage will not be possible. It is further argued that the prosecutrix was already married with one Mr. Matthew and never obtained divorce from him and therefore, there was no question of giving her false promise to marry. It is further argued that in her evidence, PW14 W/SI Vinod Kapoor also admitted that during investigation, she came to know that the prosecutrix was already married but she did not inquire about this fact further. There are several contradictions in the FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 4 of 16 testimony of prosecutrix as well as other prosecution witnesses and therefore, her testimony is not reliable and trustworthy. It is further argued that prosecutrix left the house of live-in relationship of her own on 08.08.2014 and accused never went to the house of sister of prosecutrix with a knife nor he threatened her sister and her family members at any point of time as accused was not aware as to where her sister was residing. In his evidence, PW5/prosecutrix also admitted that accused did not know the residence of her sister where she (prosecutrix) was staying. There is unexplained delay in lodging FIR. On these grounds, it is prayed that accused may kindly be acquitted for the alleged offences. In support of claim and contentions, learned defence counsel placed reliance on the following judgments:-
1. AIR 1974 SC 1822 State of Bihar vs Jamuna Chaudhari
2. (1997) 2 Crimes 660 (Gau) State of Assam vs Mohd. Jainal Abedin
3. 2000 Cr.L.J. 92 (Guj) State of Gujrat vs Gandabhia Govindbhai'
4. AIR 2006 SC 321 State of UP vs Triloki Nath
5. 1996 Cr.L.J 2619 (Mad) State of Madras vs Benedict Balanathan Mahendera @ Babu Mahendran
6. 2006 (3) RCR (Criminal 345 State of Haryana vs Shamsher Singh
7. State vs Rahul, 2011 (2) JCC 701
8. Sunil Kumar vs State 181 (2011) DLT 528
9. State of HP vs Ritu Raj 1992 (1) Crimes 311
10. Satpal Singh vs State of Haryana (2010) 8 SCC 714: (2010 Cr.L.J. 4283)
11. State of Andhra Pradesh vs Madhusudhan Rao (2008) 15 SCC 582
12. 2005 SCC (Cri) 61 State of Rajasthan vs Ramswaroop
13. 2010 Cr.L.J. 3745 (Cal) State of West Bengal vs Tarun Chakranorty
14. 1995 Cr.L.J. 1711 (Kerala) State of Kerala vs Chimamma
15. AIR 1999 SC 1969 State of Maharashtra vs Ramprasad
16. 2010 Cri. L.J. 2867 State of West Bengal vs Utpal Das
17. Harijit Singh vs State of MP AIR 2010 SC 1540
18. Vijayan vs State of Kerla (2008) 14 SCC 763
19. 2014 CRI. L.J. 4919
20. Deepak Gulati vs State of Haryana (2013) 7 SCC 675 : AIR 2013 SC 2071 FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 5 of 16
21. Sharad Birdhichand Sarda vs State of Maharastra AIR 1984 SC 1622
22. Kumar Mahsi vs Union of India, (1994) 5 SCC 704
23. Phul Singh vs State of Haryana, AIR 1980 SC 249
24. Rajoo vs State of MP AIR 2009 SC 858
25. Bhaiyamiyan @ Jardar Khan vs State of MP AIR 2011 SC 2218
26. Narender Kumar vs NCT of Delhi AIR 2012 2281
27. Tameezuddin @ Tammu vs State (2009) 15 SCC 556
28. Yedla Srinivasa Rao vs State of AP (2006) 11 SCC 615
29. Jayanti Rani Panda vs State of West Bengal & Anr., (1984) Cri.L.J. 1535
30. Udav vs State of Karnataka [2003] 4 SCC 46 : (AIR 2003 SC 1639)
31. Raju & Ors vs State of MP (2008) 15 SCC 133
32. Hemraj vs State of Haryana 2014 iii AD (SC) 546
33. Sudhir Kr vs State of Uttarakhand 2014 Cri. L.J. 3870
34. Pandurang Sitaram Bhagwat vs State of Maharashtra 2005 (9) SCC 44
35. Hamsavent vs The Inspector of Police, All women police station, Tindivanam & Ors.
36. State of Gujrat vs Dhirajlal Naranbhai Patel & Ors. 2014 Cri.
L.J. 2058
37. Raju Kumar Rai vs State of Bihar 2014 Cri.L.J. 1670
38. Ajinappa vs State of Karnataka 2014 Cri.L.J. 82
10. The allegation against accused in the present case is that since 2008, accused made physical relationship with prosecutrix repeatedly at different places giving assurance to marry but later on accused refused to marry and also criminally intimidated her sister on 08.08.2014 to kill prosecutrix. Thus, the first question arises whether there was consent of the prosecutrix or not for physical relationship and if she consented, the consent was under misconception of fact that she gave the consent only upon the false promise of marriage by the accused.
11. Consent is not defined in positive terms in Indian Penal Code but the provisions of section 90 of IPC clearly indicates that what cannot be regarded as consent. Consent given firstly under fear of injury and secondly under a misconception of FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 6 of 16 fat is not a consent at all. The relevant provision of section 90 of IPC is reproduced for ready reference:-
"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."....
12. Section 375 IPC defines rape with a woman against her will. Relevant provision of section 375 IPC are reproduced for ready reference as under:-
375. Rape. - A man is said to commit "rape" if he -
a) ....
b) ....
c) ....
d) .....
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 FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 7 of 16 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. - ....
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.
13. In the case of "Pradeep Kumar @ Pradeep Kumar Verma vs State of Bihar and Anr., Crl. Appeal No.1086 of 2007 decided on 17.08.2007, Hon'ble Supreme Court held as under:-
10. In most of the decisions in which the meaning of the expression consent under the IPC was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words and Phrases, Permanent Edn.
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 added the following:
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 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.
11. In words and Phrases, Permanent Edn., Vol.8-A, the following passages culled out from certain old decisions of the American courts are found:-
Adult female's understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent.
FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 8 of 16 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.
14. In the case of State of H.P. Vs Mango Ram, MANU/SC/0527/2000 : 2000 Cri. LJ 4027, the Hon'ble Supreme Court observed as under:-
"Submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent 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 resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances".
15. In the case of "Jayanti Rani Panda vs State of WB, MANU/WB/0299/1983", the Hon'ble Calcutta High Court has held as under:-
Para 7:
Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is ... Why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore, it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged.
The discussion that follows the above passage is important and is extracted hereunder:-
The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 9 of 16 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 IPC can not be called in aid in such a case to pardon the acts of girl and fasten criminal liability on the other, unless the court can be assured that form the very inception the accused never really intended to marry her.
16. The Hon'ble Supreme Court further opined in the case reported as "Uday vs State of Karnataka MANU/SC/0162/2003 (2003 Cri LJ 1539)" as under:-
"It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the test laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weight the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them".
FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 10 of 16
17. Further, factum of presumption of no consent on behalf of prosecutrix u/s 114A of Evidence Act, 1872 was discussed in case where there allegation of rape is on account of false promise of marriage in case of Deepak Gulati vs State of Haryana (2013) 7 SCC 675) : AIR 2013 SC 2071 and it was observed as under:-
"15. Section 114-A of Indian Evidence Act, 1872 (hereinafter referred to as the 'Act 1872') provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved therein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of sections 417, 375 and 376, IPC have to be taken into consideration along with the provisions of Section 90 of the Act, 1872. Section 90 of the Act, 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375, IPC are concerned, that thus, such a physical relationship would tantamount to committing rape".
18. In the light of above discussed principles of law, I propose to examine the evidence available on record whether in present case the consent for physical relationship by the prosecutrix was given to the accused under misconception ie on false promise of marriage by the accused or that the accused had no intention to marry prosecutrix since beginning of relationship.
19. In her testimony before the court PW5/prosecustrix reiterated the allegations in the complaint and deposed that accused told that he loves her and also promised to marry. No doubt, the statement of the prosecutrix alone is sufficient to convict the accused but also equally important fact is that as to what reliance the court should place on statement of prosecutrix in peculiar facts and circumstances of the case.
20. In her cross examination, the prosecutrix/PW5 has admitted that she was having FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 11 of 16 physical relationship with the accused for the last about 4-5 years and also admitted the suggestion that "she was in love with the accused which resulted into physical relationship". Though, in her further testimony, she stated that there was verbal promise made by the accused to marry her but she admitted that her family members were not aware about her relationship with the accused. She further admitted that she belongs to different community ie Zeliangrong/Tribe and accused belongs to Paite community/Tribe and accused speaks different dialect. She further testified that she started living with accused in live-in relationship since January, 2014 and she also admitted that she used to stay with accused and spent nights with the accused prior to January, 2014. She further testified that during her relationship, she got pregnant three times and earlier two times, pregnancy was aborted whereas from the third pregnancy she delivered a baby girl. She further testified that prior to August, 2014, accused used to take him to doctor for her medical checkup but during her stay, the accused was not caring enough to her. She further testified that she left her residence of live-in relationship on 08.08.2014 of her own in presence of the accused and accused did not try to stop her. She further testified that she had undergone the torture of the accused silently thinking that accused would change someday. She further testified that accused did not know the residence of her sister where she was staying nor she herself seen the knife and her sister had told about the same. PW5/prosecutrix also denied the suggestion that her family members including her sister knew her relationship. She further denied the suggestion that her physical relationship with accused was purely out of lust and not mutual love to one another. She further denied the suggestion that family members of the accused refused to marry on account of differences in language and tribe. She denied the suggestion that she was previously married with somebody else before coming into contact with the accused or she was having physical relationship with anybody else prior to the accused. Thus, from her own testimony, it is clear that initially physical relationships were established by her with accused because of love and not any promise of marriage with FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 12 of 16 accused. It is further clear from the testimony of PW5/prosecutrix that she was well aware that the accused belongs to different Tribe and speaks different dialect. Thus, even for the sake of argument, if it is assumed that there was promise of marriage on behalf of accused at the time of relationship, it cannot be said that the physical relationship between the parties was established only on account of assurance of marriage by the accused and further, from the testimony of prosecutrix, it is clear that she must be aware being a grown up lady aged about 28 years that the promise of marriage at all given by the accused can be fulfilled in future or it may not be fulfilled on account of fact that they both belong to different community/tribe and they speak different dialect. There is no explanation by the prosecutrix that as to why she kept it secret even from her family members that there is relationship between her and accused.
21. Further from the examination in chief of prosecutrix, it is clear that she became pregnant for the first time in December, 2008 and the accused at that time told that he could not marry her and he will marry her later and got the child aborted. She further deposed in her examination in chief that they were in on and off relationship till 2014. Thus, it is clear from the examination in chief of the prosecutrix itself that she was well aware about the consequences of the relationship in future. This facts find corroboration from the cross-examination on behalf of State wherein prosecutrix has voluntarily stated that "it is correct that mother of accused had told me that if the accused does not want to marry her then what would she do".
22. In her cross examination, the IO W/SI Vinod Kapoor admitted that during investigation she came to know that the prosecutrix was already married but she does not know whether earlier marriage of prosecutrix was subsisting when prosecutrix started residing with the accused or she had taken divorce at the time of her relationship with the accused and that the prosecutrix had told to the accused about her earlier marriage though prosecutrix denied in her testimony FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 13 of 16 that she was previously married. She further testified that complainant/prosecutrix went for negotiation to the mother of the accused but family of the accused did not agree. Thus all these evidence make it further clear that in the present case it can not be said that since beginning there was any promise of marriage by the accused to the prosecutrix while entering into relationship with her or that since beginning he was having no intention to marry the prosecutrix and prosecutrix was well aware of the fact that the family of the accused might not be agreeable for her marriage with the accused which may be reason of outright denial of prosecutrix about her earlier marriage. In her deposition before the court, DW1 Ms. Vung Ngaih Lian has stated that the prosecutrix was already married prior to coming into relationship with the accused and this fact was told to her by the prosecutrix as well as mother of the prosecutrix also admitted the said fact. However, this testimony of witness/DW1 remains un-controverted despite lengthy cross-examination on behalf of the State.
23. In the present case, the prosecutrix is a major and full-grown up lady who could well understand what is wrong and right. It is clear from the above discussion that physical relationship was made by the accused with consent of prosecutrix. In her cross examination on behalf of the accused, she has clearly stated that she was in love with accused which resulted into physical relationships with her by the accused with her consent. Further, since it has come on record in evidence that she was already married, therefore, in absence of any evidence that she got divorced from earlier marriage, possibility can not be ruled out that her earlier marriage might be subsisting even at the time of relationship with accused. Even present case was got registered by the prosecutrix as per her testimony only when accused went to the place of residence of PW11 to criminally intimidate her sister.
24. Thus, this court does not see any reason to assume that the physical relationship made by the accused with prosecutrix was without her consent or FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 14 of 16 there was no intention of accused to marry prosecutrix since beginning or that the consent of prosecutrix for physical relationship with accused was under
misconception of any fact or on account of false promise of marriage by the accused and attracts commission of offence u/s 376 (2)(n) of IPC. Thus, it is held that the prosecution has failed to prove its case u/s 376 (2)(n) of IPC against the accused beyond reasonable doubt. Accordingly, accused stands acquitted for the said offence.
25. However, from the testimony of PW5/prosecutrix and PW11 Ms. SP Eastland, it is clear that prosecution has been able to prove its case against the accused for the offence punishable u/s 506 of IPC beyond reasonable doubt. In this regard, PW11 has deposed before the court that on 08.08.2014, the accused came to her house and asked about the prosecutrix and she inquired the reason for the same, accused told that he asked the prosecutrix for the abortion but she was not willing for abortion as per his wishes. She further testified that accused was having a knife and threatened to kill the prosecutrix and since it was not safe and due to work she went outside the house.
26. Though, it has been argued on behalf of the accused that in the testimony of prosecutrix, it has come on record that accused was not aware about the address of the sister of the prosecutrix and therefore, no question of visiting the accused the house of the PW11 has arisen. It was further submitted that knife was not recovered which was alleged to have been used by the accused at that time. However, this submissions are meritless. The testimony of PW11 could not be shaken in the cross examination on behalf of the accused. The presence of the accused stands established to the place of residence of PW11 from the suggestion on his behalf that accused was not having the knife but it was only rolled paper and that accused was simply passing through residence of PW11. Further, non-recovery of knife becomes immaterial when it is the case of accused that he was carrying only rolled paper. Thus, it is clear that accused FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 15 of 16 was well aware about the place of residence of PW11 and he went there in order to criminally intimidate PW11 by stating that he will kill her cousin sister/prosecutrix. Hence, accused is held guilty for the offence punishable u/s 506 of IPC.
Be put up for arguments on sentence on 22.02.2016 at 2.00 pm. (Devendra Kumar Sharma) ASJ/FTC/Court No.7/PHC Lockup Building/20.02.2016 Announced in open court on 20.02.2016 (Total number of page 16) (One spare copy attached) FIR No. 875/14 PS Vasant Vihar U/s 376/506 of IPC State vs Thianmin Thang Tonsing 16 of 16