Delhi District Court
State vs . Rahul Kumar on 27 February, 2017
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.9162/2016
FIR No.661/15
PS Vasant Kunj (S)
U/s 323/307/376/377/506 IPC
State Vs. Rahul Kumar
S/o Sh. Lt. Sh. Bijender Kumar,
R/o H.No.C-89, T-3, Greater Noida, UP
Permannat Address:-
Village Kurthaul, PS Budhana,
District Muzzaffarpur Nagar, UP
Date of Institution 27.08.2015
Argument heard/order reserved 27.02.2017
Date of judgment 27.02.2017
Final Order Acquittal
JUDGMENT
(A) FACTS OF THE CASE
1. Succinctly, the facts of the case unfolded from the charge sheet filed u/s 173 Criminal Procedure Code (for short Cr.P.C), are that in the month of October, 2013, accused made physical relationship with the prosecutrix "KK" D/o DK (Name of prosecutrix and her father has been withheld with a view to conceal their identity) forcibly and thereafter accused repeatedly on the pretext of marriage / upon the false promise of marriage made physical relationship with her and also threatened the prosecutrix not to make police complaint. Accused also gave beating to her number of times, attempted to kill her by FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 1 of 30 strangulating her / keeping the gas pipe open and also committed unnatural sex with her. On the complaint of prosecutrix, present FIR was registered against the accused for the offences punishable u/s 323, 307, 376, 377 and 506 of Indian Penal Code (for short IPC).
(B) INVESTIGATION
2. During investigation interalia other things, IO got conducted medical examination of prosecutrix in AIIMS Hospital, prepared site plan at the instance of prosecutrix, got recorded statement of prosecutrix u/s 164 of Cr.P.C, arrested the accused, got conducted medical examination of accused in AIIMS Hospital. After completion of investigation, challan was filed before the learned MM on 27.08.2015 and the case was committed to this Court on 09.09.2015.
(C) CHARGE
3. On 26.09.2016, a charge was framed against the accused for the offences punishable u/s 323, 307, 376, 377 and 506 of IPC to which accused pleaded not guilty and claimed trial. Thereafter, matter was posted for prosecution evidence.
(D) PROSECUTION EVIDENCE
4. In order to substantiate the allegations, the prosecution examined following witnesses:-
(I) Prosecutrix/complainant as PW1 who reiterated the facts of the case and proved her complaint Ex.PW1/A and other relevant documents Ex.PW1/B to Ex.PW1/D.
(ii) Smt. Kuldeep Singh, who was the government contractor in MCD and owner/landlord of the house number K2/819, Mahipalpur, Delhi of the accused and prosecutrix as PW2.
(iii) Sh. Naresh Kumar as PW3 owner / landlord of the H.No.L-299, Gali No.1, FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 2 of 30 Mahipalpur Extention, New Delhi, where accused and prossecutrix resided.
(iv) Smt. Santosh as PW4, who was working as a counselor and counseled the prosecutrix.
(v) W/SI Kailash, IO as PW-5 who carried out the investigation in the present case.
All the witnesses were cross examined at length.
During trial vide separate statement of accused, he has not disputed the genuineness of recording of FIR, DD No.41A, preparation of MLC of prosecutrix, his MLC and recording of statement under Section 164 of CrPC of prosecutrix by Ld. MM and therefore, formal examination of witness who prepared these documents were dispensed with.
After completion of prosecution evidence, matter was posted for statement of accused.
(E) STATEMENT OF ACCUSED
5. Statement of accused was recorded u/s 313 Cr.P.C separately. Accused had submitted that he is innocent and he never did any wrong act with prosecutrix. He has further stated that he used to bear all her expenses and when he could not afford it, she used to harass her. He never attempted to hurt her in any manner. She was willing to take him to her country (Mauritius) and forced him for the same many times. As he denied to go with her and could not bear her expenses any further, she leveled false allegations against him. However, accused has not opted to lead any defence evidence. Hence, matter was fixed for final arguments.
(F) FINAL ARGUMENTS
6. Final arguments heard on behalf of both the parties. I have gone through the records as well as relevant provisions of IPC and written submission filed on behalf of accused.
FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 3 of 30
7. It was argued on behalf of the State that the prosecutrix was permanent resident of Mauritius and on student visa since the year 2011, she was pursuing a higher diploma in International Hospitality Management from Rig Institute, Greater NOIDA and affiliated to this higher diploma, she was also pursuing a Bachelor in Tourism Studies from IGNOU. In the year 2013, she met the accused Rahul. Accused took his admission in the same college in August 2013. As prosecutrix was In-charge of all the activities in Rig Institute, she was handling a Fashion Show in which accused was also participating. From September 2013, accused was regularly calling her and asked her to help him for French Tuition during her lunch hours. In the same month, he proposed to her and she rejected his proposal as she told him that she should be given some more time in this relationship. He was constantly calling her and giving her gifts and cards to impress her. In the month of October 2013, the accused again proposed her for marriage. She told him that if he is sincere about getting married to her, he should take her to meet his family members. In the month of November 2013, the accused took her to meet his mother and brother in Jor Bagh, New Delhi and they consented for their relationship and further told that they were having no objection to our relationship. His mother gave her the assurance for marriage and after that prosecutrix and accused started meeting frequently. They used to go for movies, restaurants etc. At that time, she was staying in Greater NOIDA. In the month of February, 2014 accused shifted to Greater NOIDA. He took a separate room on rent. In this month itself, he asked her to get physical with him, to which she denied. After his continuous demands and persistence, she agreed to have physical relationship with him on the basis of his promise to be getting married to her. In the month of April, 2014 the family of accused also shifted to Greater NOIDA (UP) from New Delhi and she started meeting his mother and brother more often. Even when the accused was staying in FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 4 of 30 New Delhi i.e. Jor Bagh, she used to go and stay at his place on a few occasions. Thereafter, all of a sudden, the mother of accused asked her for Rs.4-5 lacs and a car as dowry in order to get married to her son i.e. accused. As she had refused to her greedy demand, her behaviour started changing towards her and she even asked the accused to stop meeting her. She told her very clearly that if she want give the abovesaid amount of money and a car to them, she would get the accused married to some one else from her village. After this incident, she stopped meeting the mother of accused. As it was her last year in college, in July 2014 she left India but again accused made a promise that he would come to her country and ask her hand from her family. When she was in Mauritius, accused was calling her daily on the phone and was emotionally blackmailing her and he also used to cry in order to play with her emotions. He used to tell her that he will commit suicide if she would not come back to him and that he really loves her and not to bother about what his mother has told her about the dowry because he was not interested in dowry. So, in October 2014, she decided to come back to India on his request that even if his family do not agree for marriage, he would still be marrying her. When accused was in relationship with her since the year 2013, she was the one who was bearing all his expenses and on many occasions when she was in Greater NOIDA, he used to come and stay with her in her home. Due to accused's persistent request he came back on student visa and since October 2014, they started residing in proper live-in relationship. They were residing at K-819, Room no.2, Mahipalpur, New Delhi. Over a period of weeks December 2014, the behaviour of accused changed drastically. The accused started raising his hand on her for the first time and on that day, he tried to strangulate her 2 / 3 times just because she asked him a simple question where was he and how come his phone was off for the whole day. Because of violent behaviour of the accused, she was under shock and the next day, she went to police FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 5 of 30 station Vasant Kunj for filing a written complaint. The accused had beaten her so much on the previous night that she was bleeding inside her mouth and her face was swollen. The accused also banged her head three times against the wall after slapping her. Thereafter, so many times the accused raised his hand on her and he even threatened her with knife that if she would go again and lodge a complaint with the police, he would hurt himself. So, being under the tremendous torture of accused, she was not able to take any further action and few times, he used to come back in a drunken state and used to force her to have sex with him. Many times, when she used to deny and run away from him leaving her room at night time, the accused used to come after her and begged her that he would not do any such thing again. But this had occurred many times and two times, after his violent behaviour, he opened the gas pipe from her kitchen in order to burn her as and when she would put the lighter on. 3-4 times after the incident that again prosecutrix reported the matter to police as she was no more able to bear his forceful activities. Because of her resistance as and when the accused tried to have sex with her, he was never able to penetrate deep inside her vagina and this used to frustrate him and make him more violent and after that, he used to finger her private part. Even when he was doing his training, he used to lie to her about his whereabouts and on many occasions, when he used to come back at night time, after giving her the excuse that he was doing night shifts, his body was full with love bites and nail marks which clearly showed that he was cheating her despite promising her that he would be getting married to her. She was made to believe his sincerity again in October 2014 when he himself put 'sindoor' (vermillion) on her forehead. All these facts have been well proved by the prosecutrix in her testimony and have been corroborated by other witnesses. Therefore, accused may be convicted for the offences charged with.
FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 6 of 30
8. On the other hand, apart from several other arguments, learned defence counsel has argued that accused has been falsely implicated in this case. He has further argued that the FIR dated 06.06.2015 lodged by the complainant/prosecutrix resulting into the present case is an outburst and an attempt to harass the accused and the same is evident from the contradictions in the testimony of the prosecutrix and therefore the statement s/allegations made by the prosecutrix upon the accused is not reliable and trustworthy and should be discarded at the threshold. Ld. counsel for the accused has further argued that it can not be ignored that the prosecutrix is aged about 28 years old woman who is living independently in India since 2011 (two years before she alleges to have met with accused) and who initially came to India on a student visa. She also got married in the year 2008 and was divorced in the year 2010 (as admitted by her before this Hon'ble Court in her cross examination). However, the said fact was not disclosed by the prosecutrix to W/SI Saroj (as admitted by W/SI Saroj in her examination before this Court).
9. It was further argued by the counsel for the accused that prosecutrix in her complaint ExPW1/A admits that she was forced to maintain a relationship with the accused. However, to the contrary, during her cross examination, the complainant categorically answered in affirmative that during the period when accused went missing the complainant was willing to marry him or had accused not been missing she would have been willing to marry him. This is again contradictory to all of her statements/ allegations initially made in the FIR. The reason behind filing the FIR (after much delay) is evident from the FIR itself wherein prosecutrix herself admits that "accused is missing since five weeks and many time she also felt that this relationship would not work ..... I hereby want full legal action to be taken against the accused".
FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 7 of 30
10. It was further argued that the statement of the prosecutrix is contradictory which is evident as at one point she has detailed the alleged physical abuse by the accused and to the contradictory at other point she states that the accused was impotent. It was further argued that the said two points are false and baseless as the MLC report of the prosecutrix ExP-4 and ExP-5 proves that "her hymen was intact" and the MLC report of the accused ExP-6 and ExP-7 proves that "he is capable of performing sexual intercourse under normal circumstances"
11. It was further submitted that further contradiction in the statement of the complainant/improvement of the case of the prosecutrix is apparent from a conjoint reading of the FIR, statement of prosecutrix under Section 164 of CrPC and examination in chief and cross examination of the prosecutrix which prove that nowhere in the FIR, the prosecutrix has alleged that the prosecutrix agreed to have physical/ sexual relationship with the accused on the ground of "promise of marry", however, in the cross-examination she has sepcifically admitted that "she agreed to have physical relationship with accused only on the assurance given by the accused that he will be marrying her". This is completely contrary to the allegations which the prosecutrix has leveled against the accused in the FIR. Moreover, the prosecutrix has also admitted in her cross examination that she agreed to have physical relationship with the accused but not to the extent that her virginity would not be maintained and she had sexual relationship with the accused for the first time in February 2014 and they did not use precaution. It is most respectfully submitted that the admissions by the prosecutrix nowhere corroborates with her allegation in the FIR as per which she tries to convey that the accused used to apply force upon her and there was a denial on her part.
12. It was further argued by the Counsel that FIR has clearly stated that accused FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 8 of 30 is impotent. However in her cross-examination she states that it is wrong to suggest that "I have mentioned in my complaint ExPW1/A that the accused never had sexual intercourse with her because of his incapability".
13. It was further argued that in the present case the police has also failed to conduct fair and proper investigation independently and has only blindly replied upon the statements of the prosecutrix. This is in the sense that no incriminating evidence or even single evidence has been brought on record by the police before imposing such charges upon the accused in the charge- sheet. Moreove, the lapse or dereliction in duty is proved from the fact that the signatures of the prosecutrix was not taken on the complaint dated 06.06.2015, especially when W/SI Saroj in her cross-examination clearly states that the signature of the complainant/prosecutrix on the complaint is mandatory. The prosecutrix in her cross-examination has admitted that she was not asked to sign the complaint. W/SI Saroj as PW5 further states that the prosecutrix came to her after the complaint was received and DD No.41A was given. However, the prosecutrix in her cross-examination has stated that she wrote the complaint in the police station and IO W/SI Saroj took her complaint.
14. It was further argued by the counsel that further failure to carry proper investigation is proved from the fact that PW5 W/SI Saroj has not even prepared the site plan of the house where the alleged incident of threatening the complainant with knife happened and she could not recover the knife also and could not remember where the knife incident took place. It is also revealed after her cross-examination that the IO has also failed to collect the tenant verification form of the house No.K-891, Mahipalpur, New Delhi where prosecutrix alleges that accused has introduced her as his wife. It has also been admitted by PW5 W/SI Saroj during her cross-examination that even FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 9 of 30 though she was told by the prosecutrix that accused tried to kill her by removing gas pipe, she has not investigated about this incidetn as prosecutrix did not remember the date of the incident. This only proves that no independent investigation has been conducted and there was no evidence to prove the allegations imposed by the prosecutrix even then the charges were imposed in the charge-sheet.
15. It was further argued that the prosecutrix in her cross-examination admitted that she filed her first complaint against the accused in December, 2014 as the accused has slapped her, banged her head on the wall and pressed her throat and threatened to kill her with knife. She further admitted that this incident happened at 6 pm. It is relevant to note that even thought the incident happened at 6 pm the prosecutrix, did not go to the police to report such an alleged grave incident immediately or tried to contact her family members or friends and she also did not go to the doctor after sustaining the alleged injuries but she went to the police station around 12 noon on the next day to file a complaint (copy of which was not received by her as she admits). It was further submitted that the said complaint was never produced by the prosecutrix before this Court to prove the allegations of the prosecutrix.
16. It was further argued by the counsel that the prosecutrix also deposed to have filed 4-5 complaints in the police station against the accused. However the complainant / prosecutrix failed to produce it before this Court to prove the allegations of the prosecutrix. It was further submitted that the prosecutrix has failed to prove even a single allegation leveled by her. This fact is also proved from examination in chief and cross-examination of W/SI Saroj, who has admitted that the complainant failed to give/produce any detail with respect to that. This leads to prove that the statements/ allegations FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 10 of 30 of the complainant are merely false and baseless.
17. It was further argued by the counsel that one of the allegations imposed by the prosecutrix upon the accused is that the accused was in relationship with the complainant only for the purpose of money as she used to fulfill financial needs of the accused and his family members and the prosecutrix was his gateway to abroad. In respect to this allegation, it is submitted that the accused never required any financial assistance from the complainant as his care taker who lives in Europe used to send money to the accused and his family member every month and this is also the reason that accused does not require any gateway to abroad.
18. It was further submitted that it was prosecutrix who used to take financial help / money from the accused and on one such incident she has also sent an email from the email.id of the accused requesting his care taker to transfer the money of that month to her account (this incident took place when accused was allegedly missing). She admitted to have used the email account of the accused without his knowledge in her cross-examination. The prosecutrix has also admitted in her cross-examination that she took rupees fifteen thousand from the accused on the alleged ground of opening joint bank account which she admitted to have failed to open and also admitted that she has not returned fifteen thousand rupees to the accused. Further even when W/SI Saroj asked the prosecutrix to provide bank details but she did not provide the same and as such her bank details could not be verified. This was admitted by W/SI Saroj in her cross-examination.
19. It was further argued by the counsel that the prosecutrix has also admitted in her cross-examination that she had sustained injures in result of the act of the accused and has also consulted a doctor. However, when she was asked FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 11 of 30 to provide the details of the doctor she failed to provide. She had also failed to produce any medical record with respect to this.
20. It was further submitted that even after imposing such serious allegations upon the accused, the prosecutrix on 05/12/2015 (after FIR) asked the accused to pick her from the airport when she returned to India through facebook messenger. This has been admitted by the prosecutrix in her cross- examination.
21. It was further argued that there is a major delay in filing the FIR which is fatal for the prosecution case as first incident of threatening happened in December 2014 and first incident of unconsented physical relationship was in Feb 2014. However the prosecutrix never lodged FIR against the accused and on the contrary, as stated above, she was willing to marry the accused. It was only when the accused allegedly went missing, she lodged the FIR but that was also done admittedly after five weeks
22. It was further argued that the accused was granted bail on 22/06/2015 on the ground that the prosecutrix has made contradictory statements in her complaint and prosecutrix has failed to bring on record any incriminating evidence against the accused and has therefore, failed to prove its case against the accused beyond reasonable doubt. On these grounds, it is prayed that accused may kindly be acquitted.
(G) RELEVANT PROVISIONS OF LAW
23. Relevant provision of section 307 IPC are reproduced for ready reference as under:-
Attempt to murder :-whoever does any act with such intention or knowledge, any under such circumstance FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 12 of 30 that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts- [when any person offending under this section is under section of (imprisonment for life), he may, if hurt is caused, be punished with death.] Section 323 : Punishment for voluntarily causing hurt -
whoever, except in the case povided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which my extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 375 IPC defines rape with a woman against her will -
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following 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 FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 13 of 30 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 sixteen years of age.
Seventhly - When she is unable to communicate consent.
Explanation 1. - For the purposes of this section, "vagina" shall also include labia majora.
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".
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.
FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 14 of 30 Section 377 : Unnatural offences -
Whoever voluntarily has carnal intercourse against the order of nature, with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 503 IPC - Criminal intimidation -
"Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation". Explanation - A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
(H) CASE LAW (A) 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 FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 15 of 30 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.
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.
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.
(B) 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".
(C) 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:
FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 16 of 30 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 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.
(D) 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:-
FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 17 of 30 "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".
(E) 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 FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 18 of 30 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".
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 under the misconception of marriage or on false promise of marriage by the accused.
(I) FINDINGS:
24. In the present case, the accused has been put on trial with the allegations that accused had committed sexual assault upon the prosecutrix repeatedly while she was residing with her on the false promise of marriage, had beaten her and caused simple hurt upon the prosecutrix and also attempted to kill her and criminally intimidated her not to report this matter to police .
25. The first allegation regarding sexual assault is that the prosecutrix and accused started living in live in relationship since long and at that time the accused used to try to insert his private part without consent of the prosecutrix and used to try to commit unnatural sexual assault upon her while biting on several parts of her body including private parts as stated in the complaint ExPW1/A. As per the statement under Section 164 of CrPC ExPW1/B, she had reiterated the facts and has further stated that in October 2014, accused promised her to marry and promised that till then he would maintained virginity of the prosecutrix but started forcing for physical relationship since January 2015 and with regard to sexual assault, she has stated that the accused though used to try to insert private parts but because of resistance by the prosecutrix, he could not penetrate deep inside ever but after about five seconds he used to start ejaculating and since he could not FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 19 of 30 penetrate deep inside, he used to finger in the private parts of the prosecutrix and used to bite on the different parts of the body of the prosecutrix.
26. In her examination in chief before the Court, she has stated that in the month of October 2013, accused promised her to marry and in the month of February 2014, accused took a separate room in Greater Noida and asked for physical relationship but prosecutrix denied. She has further deposed that after the continuous demands and persistence by the accused, she had made physical relationship with him on the basis of promise to marry. She left India in the month of July 2014 and since she again returned in October 2014 at the repeated request of accused and started residing in proper live in relationship with the accused at Mahipalpur.
27. Thus, from examination in chief of the prossecutrix itself shows that she was residing with the accused in live in relationship and even in his complaint ExPW1/A she has stated that she has been residing with the accused since long in live in relationship prior to filing of the present complaint on 06.06.2015. In the present case, the prosecutrix is matured lady aged about 28 years and also well educated lady and having done diploma in International Hospitality Management. Thus she must be aware about the consequences of live in relationship. Though she has stated that there was promise of marriage on behalf of the accused and on that account she consented for physical relationship. However, from the perusal of the complaint ExPW1/A, it can be safely held that in the complaint she has only alleged that the accused used to try to have the physical relationship with her in different forms but in the entire complaint nowhere she has stated that she had ever physical relationship with the accused on the promise of marriage. Instead allegation is of attempting to have physical relationship by the accused against the will of the prosecutrix and without her consent FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 20 of 30 repeatedly. It is to be noted here that even in her statements under Section 164 of CrPC ExPW1/B she has nowhere stated that accused ever promised her to marry in the year 2013 or made any physical relationship with her on the promise of marriage in the year 2013. Instead it has been stated in the statement under Section 164 of CrPC ExPW1/B that in the month of October 2014 when the accused promised her that he would marry her and thereafter since January 2015 the accused had been forcing her for physical relationship. Thus in her both the statements ExPW1/A and ExPW1/B there is improvement regarding the factum of promise of marriage. In her examination in chief she has even contradicted her statement ExPW1/B regarding the time period of physical relationship which has shifted from January 2015 to February 2014. In the present case, it is to be noted here that the prosecutrix in her cross-examination has admitted that she got married in the year 2008 and was divorced in the year 2010 and even from the above facts it is clear that she must be aware about the consequences of live in relationship. Moreover her all the three statements are contradictory to each other. In her examination in chief she has made totally contradictory statement regarding physical relationship.
28. It is here to be noted in her complaint ExPW1/A she has stated that accused is impotent and this fact was always hidden by him from prosecutrix and as and when she confronted the accused, he used to deny it. If this statement of the prosecutrix is believed to be true, her statement having physical relationship with the accused stands belied.
29. In her cross-examination, she has stated that she does not know whether accused really loved her or not, in reply to the question that whether it is correct that accused really loved her and therefore, she returned back and started living together. This answer of the witness contradict her own version FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 21 of 30 as once hand she is alleging that she was promised to marry and on the other hand she has stated that she does not know whether accused loved her or not. In her further cross-examination she has stated that she did not approve the proposal of the accused for marriage given on second time in October 2014 and thus, from her testimony as well other statements it is not clear as to which time she accepted the proposal of marriage of the accused. This position becomes more complex when she has further testified in her further cross-examination that she was willing to marry with accused during the month of October 2013 and she informed this fact to her family members. In her further cross-examination, she has testified that she agreed for physical relationship with the accused only on the assurance given by the accused that he would be marry her and she agreed to have physical relationship with the accused to the extent that her virginity would be maintained at the promise of the accused. Thus from her own testimony, it appears that she has leveled false allegations in the complaint that accused used to try the physical relationship with her against her will or without her consent.
30. It is to be further noted that in her cross-examination the prosecutrix has stated that she had physical relationship with the accused in the month of February 2014. However she has admitted that neither in the complaint nor in statement under Section 164 of CrPC, she has stated that she had physical relationship with the accused in the month of February 2014. The prosecutrix has denied the suggestions that there was no physical relationship between her and the accused. This denial of suggestion contradicts the version of the prosecutrix that there was no physical relationship between them except the attempt. Further by her voluntarily statement she has stated that the accused could not have physical relationship with her because of her resistance and thus she herself has contradicted earlier version that she had physical FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 22 of 30 relationships with the accused on the promise of marriage.
31. Thus, from the above testimony of the proseecutrix, it is clear that either there was no physical relationship between the prosecurix and accused or if that was there, that was with the consent of the prosecutrix.
32. In the present case, there is no medical or forensic evidence to corroborate the version of the prosecutrix that she had physical relationship with the accused. Furthermore, in OPD card Ex.PX-4 and MLC of the prosecutrix Ex.PX-5, the alleged history has been recovered that the prosecutrix was in live in relationship with the accused since for two years, both of them tried to have sexual intercourse multiple times but because of premature ejaculatory dysfunction they were not able to have sexual intercourse and thus from this alleged history, it is clear that the prosecutrix had improved her statement before the Court while deposing that accused had physical relationships with her. It is further to be noted that in the medical opinion, it was opined that hymen of the prosecutrix was intact. This also rules out any physical relationship with the prosecutrix forcibly.
33. So far as promise of marriage is concerned as discussed herein above there is contradictory statement regarding the said promise. Even no date has been specified as to when the accused promised the prosecutrix to marry. Though she has stated that accused used to send her card while she was in her country and used to make her believe of his sincere promise to marry, however no such card has been handed over, nor has been produced or has been proved during the trial.
34. Regarding the incident of attempt to murder and criminal intimidation, she has not disclosed any particular date. However she has alleged that in the FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 23 of 30 month of December 2014, the accused attempted to kill her and criminally intimidated her but from in her testimony it is clear that she was staying with the accused till April 2015. Though she has deposed that she had make different complaint to the police I this regard but no such complaint has been filed on record nor has been proved during the trial. Even regarding the incident of attempt by putting gas pipe open, there is no evidence that even there was any gas pipe line or rented accommodation where the prosecutrix was residing with the accused. In absence of any such material, her bald statement can not be relied upon. Even IO W/SI Saroj as PW5 in her cross- examination has admitted that she had not investigated this incident as prosecutrix did not remember the date of the incident.
35. Regarding the criminal intimidationm, PW1 in her testimony has deposed that room size was normal where the accused had criminally intimated her with knife but in her examination in chief she has not sated any date. From her statement, it appears to be an incident of PW1 has deposed in her cross- examination that the knife was thrown from about a distance of 10 meters by the accused. It is here to be noted that the said incident is alleged to have been commit inside the room. When the size of the room was normal, there is no question of throwing the knife from the distance of 10 meters i.e. about 30 feet which is not normal size of the room. In the present case there is no recovery of knife and no site plan was prepared of the place of incident. Even PW5 has contradicted to PW1 stating that PW1 could not told the distance from which knife was thrown upon her.
36. Even in the MLC ExPX-4 and ExPX-5, it was reported that there was no external injury upon the persons of the prosecutrix which the prosecutrix has claimed and has stated that she consulted the doctor when she received the injury on her person. Even she has failed to tell the name of the doctor or FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 24 of 30 even the place of his clinic.
37. It is further here to be noted that prosecutrix has claimed that she has handed over the money to the accused on different occasion but PW5 / IO W/SI Saroj in her cross-examination has testified that she could not verify the bank accounts of the prosecutrix as she did not provide any bank details despite her asking. Moreover, the prosecutrix in her cross-examination has admitted that there was no bank transaction from her account to the accused showing any debit or credit of the amount during the period of relationship. However, in her further cross-examination she has admitted that accused has transferred to her bank account a sum of Rs.15,000/- on 06.09.2014. It is to be noted that during the said period i.e. 05/06.09.2014, the prosecutrix was at her native place at Mauritius. It is further to be noted that she herself has stated that at that time accused was requesting her to return to India and according to her version she returned to India in October 2014. Her explanation given in her cross-examination that the accused was having indebted to her and therefore he transferred the said amount in her bank account does not appear to plausible as by that time even the prosecutrix was not sure that she would return to India.
38. Even the veracity of the statement of the prosecutrix is doubtful as apparent from her own testimony. The present complaint was lodged on 06.06.2015. According to the proscutrix, she did not contact to the accused after lodging the present complaint. However in her cross-examination, she has admitted that she was in Mauritius once between the period from July 2015 to February 2016. She has further admitted that she left for Mauritius on 28.10.2015 and came back on 05.12.2015. She has further admitted that she asked the accused to pick her from the airport when she returned to India on 05.12.2015. Thus admissions of the prosecutrix itself contradicts her own FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 25 of 30 version that she did not contact the accused. Furthermore, this testimony makes it clear that even after lodging the present complaint she was in touch with the accused and had been there any criminal intimidation or any other threat upon the prosecutrix, she would have never asked the accused to pick her from the airport after lodging the present complaint.
39. In the present case according to the prosecutrix accused went missing since July 2015 and the present complaint was registered on 06.06.2015. There is no no explanation at all for delay in lodging the present complaint.
40. Even she has admitted that she used email account of the accused after lodging the FIR without his knowledge. This fact shows that there was no threat or criminal intimidation upon the prosecutrix.
41. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 26 of 30 to her testimony. In this case also, the evidence of the prosecutrix is suffering from serious infirmities and inconsistencies with other material and she had also made deliberate improvements/concealments on material point including forceful physical relationship in her testimony before the court and there is no plausible explanation for the delay in lodging the complaint. It appears that the present complaint has been lodged when the accused stopped fulfilling the demand of the prosecutrix which is apparent from her testimony. There is no explanation as to why the perosecutrix did not disclose about the incident which had happened in the year 2014 to any one till the lodging of the present complaint. The unexplained delay itself raises the doubt over the prosecution story. Even the present complaint was filed only after five weeks when the accused got missing.
42. In the present case, the prosecutrix was aged about 26 years at the time of incident; she is a well educated lady and capable of understanding the complications and future consequences. The complainant never disclosed to her parents / family members about staying alone with accused. From bare perusal of statement of prosecutrix, it is clear that prosecutrix did not resist or make any efforts to stop accused while physical relationship was established with her for the first time on giving assurance of marriage and they were residing admittedly in live in relationship. The witness further deposed that accused kept on promising to marry her and later on he failed to keep his words but prosecutrix never informed about sexual harassment being caused by the accused on the pretext of marriage to anybody.
43. From the statement of prosecutrix, it appears that their relationship was going on smoothly and their relationship became bitter only whenthe mother of the accused did not allow her to contact the accused. Thus all these evidence make it further clear that in the present case it can not be said that since FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 27 of 30 beginning there was any promise of marriage by the accused to the prosecutrix while entering into relationship with her. Further, prosecutrix was well aware of the fact that the family of the accused might not be agreeable for her marriage.
44. In the present case, the prosecutrix is a major and full-grown up lady aged about 28 years who could well understand what is wrong and right. It is clear from the above discussion that physical relationship, if any, was made by the accused with consent of prosecutrix. In her cross examination on behalf of the accused, she has clearly stated that she never disclosed about her relationship with accused either at the first time when accused made physical relationship with her or on subsequent occasions to any one.
45. 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 that the consent of prosecutrix for physical relationship with accused was under misconception of any fact or on account of false promise of marriage/pretext of marriage by the accused and attracts commission of offence u/s 376 (2) (n) of IPC.
46. The Hon'ble Supreme Court further held in "AIR 1974 344. Harchand Singh and Another vs State of Haryana" as under:-
"11. The function of the court in a criminal trial is to find whether the person arraigned before it as the accused is guilty of the offence with which he is charged. For this purpose the Court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to found the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in a case the prosecution leads two sets of evidence, each one of which FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 28 of 30 contradict and strikes at the other and shows it to be unreliable, the result would necessarily be that the court wold be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such situation".
47. It is relevant to mention at this stage that it is necessary for the prosecution to prove its case beyond reasonable doubt as held by he Hon'ble Supreme Court in Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103;
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits.
48. In view of the testimony of prosecutrix and in the facts and circumstances of the case as discussed herein above, it is held that prosecution has miserably failed to prove its case against accused. Accordingly, accused Rahul Kumar is acquitted of charges leveled against him. He is directed to furnish fresh bail bond in the sum of Rs.25,000/- in terms of section 437A of CrPC.
At this stage, fresh bail bond furnished u/s.437A of CrPC on his behalf and accepted for a period of six months. His earlier bail bond stands cancelled. Surety stands discharged. Original documents, if any, be returned back to the rightful claimants after endorsement cancelled thereupon.
FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 29 of 30 File be consigned to the Record Room after due completion.
(Devendra Kumar Sharma) ASJ/FTC/Court No.7/PHC Lockup Building/27.02.2017 Announced in open court on 27.02.2017 (Total number of page 30) (One spare copy attached) FIR No.661/15 State vs. Rahul Kumar PS Vasant Kunj (S) U/s 323/307/376/377/506 of IPC 30 of 30