Delhi District Court
State vs Prayag Sharma -:: Page 1 Of 65 ::- on 31 March, 2014
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
State
Versus
Mr.Prayag Sharma
Son of Mr. Devi Dutt Sharma,
Resident of H.No.93B, Pkt-II,
Paschim Puri, Delhi.
First Information Report Number : 53/12.
Police Station Punjabi Bagh,
Under section 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 30.06.2012.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 03.10.2012.
to the Sessions Court
Date of transfer of the file to this Court : 05.01.2013.
of ASJ (SFTC)-01, West, THC, Delhi.
Arguments concluded on : 31.03.2014.
Date of judgment : 31.03.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the State.
Accused on bail with counsel, Mr.P.K.Malik and Mr. N.P.Joshi.
Ms.Shubra Mehndiratta and Ms. Poonam Sharma, counsel for the
Delhi Commission for Women.
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Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh,
Under section 376 of the Indian Penal Code.
State versus Prayag Sharma -:: Page 1 of 65 ::-
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. This case falls in the list of twenty oldest cases pending before this Court and a sincere endeavour has been made to dispose this case as expeditiously as practically possible.
2. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is known to the culprit, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted male on the pretext of promise to marry and whose trust is betrayed by a man in whom she reposes maximum trust so much so as to surrender herself before him into a physical relationship and then she is left by this man.
3. "Courts are expected to show great responsibility while trying an Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
4.Mr. Prayag Sharma, the accused, has been charge sheeted by Police Station Nangloi, Delhi for the offence under section 376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 03.11.2007, 09.08.2008, 29.11.2008, 20.05.2009 and on several other occasions at various places including Delhi at the residence of prosecutrix (name withheld to protect her identity) at the residence of the prosecutrix, Hotel Cozy Home at Greater Kailash, at Hill Queen at Mussorrie, Hotel Shubham at Nainitaal, at Bhopal and other places within the jurisdiction of Police Station Punjabi Bagh, he committed rape on the prosecutrix under the false promise to marry.
5. CHARGE SHEET AND COMMITTAL Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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5. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 30.06.2012 and after its committal, the case was assigned to the Court of Additional Sessions Judge-03, West vide order dated 03.10.2012. Further, the case has been transferred and assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court)
-01, West, Tis Hazari Courts, Delhi for 05.01.2013 vide order bearing number 20/372-512/F.3.(4)/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
6. After hearing arguments, charge for offence under section 376 read with section 420 of the IPC was framed against the accused vide order dated 20.11.2012. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
7. In order to prove its case, the prosecution has examined as many as 15 witnesses. HC Hawa Singh, Duty Officer, who brought original FIR and rukka, as PW1; Ms. Harleen Singh, the learned Metropolitan Magistrate, who recorded the statement of prosecutrix under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.); Dr.P.C.Parbhakar, who had medically examined the prosecutrix and the accused as PW3; Dr. Aditi Aggarwal, who was deputed in place of Dr. Anjana Aggarwal, who had medically examined the prosecutrix as PW4; Mr. Indresh Kumar Mishra, FSL Expert as PW5; SI Lokesh Yadav, the first investigation officer as PW6; HC Narender Kumar MHC (M) of the case as PW7; HC Rishi Raj, the witness of investigation, as PW8; Ms.Gulab Rani, mother of the prosecutrix as PW9; the prosecutrix as PW10; Mr. Kamaljeet Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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Singh, Operation Manager in Hotel Nisarga, Bhopal as PW11; Mr.Sudhir Mishra, Manager of Hotel Midland, Bhopal, as PW12; Lady Ct. Anju, who got the prosecutrix medically examined, as PW13; Ct. Banwari Lal, witness of investigation, as PW14; and SI Sushila, the second investigation officer of the case as PW15.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
8. In his statement under section 313 of the Cr.P.C., recorded on 18.02.2014, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. He has stated that he and the prosecutrix were having a friendly relations. They both were pre-decided, from the very beginning of our friendship that they are not to marry each other because of difference in age and caste etc. Even during their friendly relationship, the prosecutrix was searching for suitable match for herself in her community and he was searching a suitable match for himself in his community. It was always clear from inception of their friendship that they would not marrying each other. The prosecutrix was only interested to continue her friendly relation with him. During their friendly relationship, they never had physical relations. When he got engaged with Ms. Kusum, the prosecutrix could not digest the same. Out of jealousy, she made all efforts to stop the marriage and even sent a legal notice to Ms. Kusum and filed a civil suit against him and Ms. Kusum which she had subsequently withdrawn. She may have developed a desire to him which was one sided only due to which she lodged the present case which is false in order to pressurize him into continuing friendship with her and / or marry Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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her. He has been falsely implicated in the present case. Whatever the prosecutrix has deposed in her various statements and evidence is false. The accused has preferred not to lead any evidence in his defence.
ARGUMENTS
9. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
10. The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under section 376 read with section 420 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
11. The counsel for the accused, on the other hand, have requested for his acquittal submitting that there is nothing incriminating against the accused on the record. There are several contradictions and improvements in the different statements of the prosecutrix which remain unexplained due to which the evidence of the prosecutrix is not reliable. There is a delay in lodging of the FIR which is not explained by the prosecution. There is no medical or forensic evidence against the accused. The prosecutrix has claimed herself to be married to the accused and therefore no offence is made out.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
12. The question is how to test the veracity of the prosecution story Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
13. Under this sphere, I now proceed to test the submissions of both the sides and give findings on the issues involved.
Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
14. The prosecution story unfolds with the filing of the complaint of the complainant (Ex.PW10/A) against the accused in Police Station Punjabi Bagh on 08.02.2012. On 09.02.2012, the investigation of case was marked to SI Lokesh Kumar Yadav (PW6). Complainant had come to the Police Post Madi Pur to enquire about the complaint and on the basis of her complaint, the rukka (Ex.PW6/A) was prepared and handed over to Duty Officer HC Hawa Singh (PW1) for registration of the FIR (Ex.PW1/A). He made endorsement on the rukka (Ex.PW1/B) and issued the certificate under section 65 B Evidence Act (Ex.PW1/C). SI Lokesh Kumar along with complainant, Lady Ct. Anju (PW13), Ct. Banwari Lal(PW14) went to the residence of accused where they met him. Inquiry was made and he confessed his guilt. Accused was arrested vide arrest memo (Ex.PW6/B) and his personal search was taken vide personal search memo (Ex.PW6/C). He gave his disclosure statement (Ex.PW6/D). On 09.02.2012 Lady Ct. Anju (PW13) had taken the prosecutrix to the SGM Hospital for her medical examination and Ct. Banwari Lal(PW14) had taken the accused to the SGM Hospital for his medical examination. Dr.P.C.Parbhakar (PW3) had medically examined prosecutrix and the accused and prepared MLCs (Ex.PW3/A and Ex.PW3/B respectively). Prosecutrix was referred to Gynae Department for further management. The prosecutrix was medically examined by Dr.Anjana Aggarwal (since left the services of the Hospital) in the Gynae Department and her samples were taken. The MLC prepared by Dr.Anjana Aggarwal has been proved by Dr.Aditi Aggarwal (PW4). After medical examination, doctor handed over the exhibits pertaining to the prosecutrix and accused. Same were seized by IO vide seizure memos (Ex.PW6/E and PW6/F respectively). On 10.02.2012, SI Lokesh Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
State versus Prayag Sharma -:: Page 8 of 65 ::-
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Kumar (PW6) had deposited three sealed pulendas and two sample seals in the malkhana with HC Narender Kumar, MHCM (PW-7) and the entry to this effect was made in register no. 19 at Sl. no. 3124 (Ex.PW7/A) and on 01.03.2012, three sealed pulendas and two sample seals were sent to FSL, Rohini through SI Lokesh Kumar (PW6) vide RC No. 42/21/12 for deposit of the same and photocopy of RC register as well as acknowledgement receipt (Ex. PW7/B and Ex. PW7/C). The FSL result was received on 10.05.2012 and same were handed over to SI Lokesh Kumar. Prosecutrix had handed over bills (Ex.P1 and P2) of Hotel Midland, Kastruba Nagar, Bhopal and Hotel Nisarga at Maharana Partap Nagar, Bhopal. Same were seized by the IO SI Lokesh through seizure memo (Ex.PW6/G and Ex.PW6/H). Prosecutrix also handed over two photographs containing her photo and of the accused, same are Ex.P3. During the investigation for the purpose of verification of the bills, SI Lokesh went to the hotel in Bhopal. IO SI Lokesh sent HC Rishi Raj (PW8) to Mussorie, Uttrakhand for verification of the bills of hotel Hill Queen in the month of April 2012. HC Rishi Raj verified from the hotel and also obtained the photocopy of register (Mark PW8/X). After verification of the said record same is handed over to the IO SI Lokesh, who seized the same vide seizure memo (Ex.PW6/H). Mr. Kamaljeet Singh, Operation Managar in Hotel Nisarga (PW11) had proved the booking orders of the customer for breakfast/lunch/dinner (Ex.P2) and hotel bills (Ex.PW11/A and Ex.PW11/B). Mr. Sudhir Mishra, Manager in the Hotel Midland, Bhopal (PW12) had proved the hotel bills (Ex.PW12/A to Ex.PW12/C). Mr. Indresh Kumar Mishra, FSL Expert (PW5) had examined the exhibits of this case and proved the FSL report (Ex.PW5/A) and Serological report (Ex.PW5/B). On 10.10.2012, the further investigation marked to SI Sushila (PW15). SI Sushila got recorded the statement of the prosecutrix under section 164 Cr.P.C (ExPW2/A) by Ms.Harleen Singh, Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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learned Metropolitan Magistrate (PW2) on the application of the IO for recording the statement under section 164 Cr.P.C (Ex.PW2/B) and copy of the statement was given to the IO on the application (Ex.PW2/C). IO SI Sushila (PW15) recorded the statement of prosecutrix's mother Ms.Gulab Devi (PW9) under section 161 Cr.P.C. She also collected the call detail records of prosecutrix from the concerned mobile company.
15. As per the allegations of the prosecution, especially the statement of the prosecutrix under section 164 of the Cr.P.C., the accused Prayag Sharma had raped the prosecutrix under the false promise to marry on 03.11.2007, 17.11.2007, 09.08.2008, 29.11.2008, 20.05.2009 and on several occasions at various places including Delhi at the residence of prosecutrix, at Hotel Cozy Home at Greater Kailash, at Hill Queen at Mussorrie, Hotel Shubham at Nainitaal, at Hotel Nisarga and Hotel Midland at Bhopal, and other places.
IDENTITY OF THE ACCUSED
16. There is no dispute regarding the identity of the accused Mr.Prayag Sharma who has been identified by PW10-the prosecutrix, PW9-Ms.Gulab Rani, mother of the prosecutrix as well as the police witnesses of investigation. It is also not in dispute that they were known to each other prior to the lodging of the FIR. Accused is also named in the FIR (Ex.PW1/A) as well as her complaint (Ex.PW10/A).
17. Therefore, the identity of the accused stands established.
Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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AGE OF THE PROSECUTRIX
18. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. During her evidence on 05.02.2013, the prosecutrix has given her age as about 35 years. In her MLC dated 09.02.20112 (Ex.PW3/A), she has disclosed her age as 34 years. As per the prosecution, she was a major at the time of the alleged incident.
19. Therefore, it is clear that the prosecutrix was a major at the time of incident.
VIRILITY OF THE ACCUSED
20. PW3, Dr.P.C.Prabhakar, had medically examined the accused and has proved the MLC of the accused (Ex.PW3/B). He has not been cross examined by the accused.
21. It is mentioned in the MLC of the accused (Ex.PW3/B) that "There is nothing to suggest that this person is not capable of performing sexual intercourse"
22. Even on physical examination, the doctor has found that the secondary sexual character is well developed.
23. Therefore, it is clear that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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24. PW3, Dr.P.C.Prabhakar, had medically examined the prosecutrix and has proved her MLC (Ex.PW3/A). She was referred to Gynae Emergency where she was medically examined by Dr.Anjana Aggarwal, who has since left the service of the hospital. The relevant part of MLC (Ex.PW3/A) prepared by Dr.Anjana Aggarwal has been proved by Dr.Aditi Aggarwal (PW4).
25. It is clear from the MLC of the prosecutrix (Ex.PW3/A) that the prosecutrix had told the doctor in the history that she had sexual relations with her boy friend Mr.Prayag for last five years. There was commitment for marriage but now he had denied to get married with her.
26. The prosecutrix did not have any fresh external injury. She was conscious, oriented. There was old hymen rupture. Her blood and other samples were taken.
27. It has been argued on behalf of the accused that as there is no medical evidence against the accused, it indicates that he has been falsely implicated in this case. She does not have any fresh injury on her body and had she been raped, there would have been injuries on her body and private parts.
28. However, this contention is not tenable as the medical evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. It is evidence of the prosecutrix or the eye witness which is of utmost importance and the judgment is mainly based on that evidence.
29. It cannot be ignored that as per the evidence of the prosecutrix, she last Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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had physical contact with the accused when she stayed with him in a hotel at Bhopal from 30.12.2011 to 02.01.2012 while the prosecutrix was medically examined on 09.02.2012.
30. In such a situation, there could not have been any injury on her body and private parts due to lapse of time.
31. Otherwise also, medical and forensic evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. It is evidence of the prosecutrix which is of utmost importance and the judgment is mainly based on her evidence.
FORENSIC EVIDENCE
32. The FSL reports (Ex.PW5/A and Ex.PW5/B) proved by Mr.Indresh Kumar Mishra (PW5) also show that semen was not detected on the exhibits pertaining to the prosecutrix although semen was detected on the underwear of the accused. Blood was not detected on the exhibits of the prosecutrix taken in her internal gynecological examination although blood was detected on the blood samples of the prosecutrix and the accused.
33. It has been argued on behalf of the accused that as there is no medical and forensic evidence against the accused, it indicates that he has been falsely implicated in this case.
34. However, this contention is not tenable as although the FSL reports do not help the prosecution in any manner but it cannot be ignored that the prosecutrix Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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was medically examined after a long time of the alleged last physical contact with the accused. It may be mentioned here again that the medical and forensic evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted.
DELAY IN FIR
35. The contention of the advocate for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.
36. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
37. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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38. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
39. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
40. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."
Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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41. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
42. The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"
43. It is claimed by the accused that as the FIR (Ex.PW1/A) has been lodged on 09.02.2012 at 9:10 pm while the allegations made by the prosecutrix in her complaint (Ex.PW10/A) are that the accused had physical relations with her on the pretext of marriage for the first time on 03.11.2007 and thereafter continued to have physical relationship with her and she had last physical contact with the accused when she stayed with him in a hotel at Bhopal from 30.12.2011 to 02.01.2012. The delay in lodging of the FIR has been not explained by the prosecution.
Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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44. The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the prosecutrix was under the impression that the accused would marry her and kept waiting. She had given her complaint (Ex.PW10/A) to the police on 09.02.2012 and then the FIR was lodged.
45. As per the complaint, Ex.PW10/A which is filed on 08.02.2012, it is mentioned that the date of the first offence was on 03.11.2007.
46. The prosecutrix in her MLC (Ex.PW3/A) dated 09.02.2012 has told in the history that she had sexual relations with the accused for last five years which would mean that the first contact was in the year 2007.
47. The prosecutrix, in her evidence before the Court recorded on 05.02.2013, has deposed that the first incident was on 03.11.2007.
48. The FIR has admittedly been lodged on 09.02.2012 at 21:10 hours.
49. As regards the period w.e.f. 03.11.2007 till 02.01.2012 is concerned, it may be mentioned that during this period as there was an alleged promise to marry, so there was no occasion for the prosecutrix to make a complaint against the accused and therefore, it can be said that there is no delay in lodging of the FIR.
50. The prosecutrix has tried to justify the period w.e.f. 02.01.2012 till 08.02.2012 by deposing in her examination in chief that the accused started Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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ignoring her and did not take her calls and as his paternal uncle (Tau ji) has expired in October 2011, he could not get married for one year. On 01.02.2012, his friend had telephoned her and told her that he had received an invitation card for the marriage of the accused on which the name of the bride is mentioned as Ms.Kusum. She confronted the accused on which he told her that some one was instigating her and told her that the information given to her was wrong. After that, the prosecutrix had telephoned at the residence of the accused and the call was taken by his sister Ms. Sona. Prosecutrix told her that she is his wife on which Ms. Sona told her that the accused had many wives and she was of which number (Kise Number Ki Wife). She told Ms. Sona, her name but she disconnected the phone. She telephoned the accused and narrated everything and told him to tell her the correct facts. He still continued to deny everything. One day, Mr. Kavi, his brother telephoned her and threatened her of kidnapping in case she did not stop phoning him. Then she went to Mr. Narender Kalra, Advocate and consulted him on 04.02.2012 and had sent a notice through her lawyer by courier to Ms. Kusum. The accused telephoned her and told her to withdraw her case otherwise Ms. Kusum may die on which she confronted with her plight. Then he admitted that he was getting married to Ms. Kusum. It was on 07.02.2012. He told her that he was coming to Delhi and threatened her with dire consequences (Tujhe chodonga nahi). Thereafter, she lodged the complaint on 08.02.2012.
51. In her complaint (Ex.PW10/A), the prosecutrix has not mentioned anything about the accused taking time from her on the pretext of the demise of his paternal uncle or that she had talked to his sister on phone. She has also not mentioned about her meeting a lawyer on 04.02.2012 and that on 07.02.2012 the accused admitted to her that he was getting married to Ms.Kusum.
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52. In her civil suit for permanent injunction filed against the accused and Ms.Kusum Fulara on 16.02.2012 (Ex.PW10/D-9), the prosecutrix in paragraph number 15 has stated that "That on 1.2.2012 the plaintiff came to know that the defendant No.1 has already engaged with the defendant No.2 and is going to marry with defendant No.2 on 23.2.2012." This implies that she was aware on 01.02.2012 that the accused shall not be marrying her as he was already engaged to another girl.
53. I find on perusal of the record that indeed the criminal action was swung into motion on 09.02.2012 while there is delay from 01.02.2012 (as per Ex.PW10/D-9). The prosecutrix and the prosecution have not been able to justify the delay between 01.02.2012 to 08.02.2012 and why she did not report the matter earlier.
54. These facts indicate that the possibility of the complaint being motivated or manipulated and the version of the prosecutrix being untrue cannot be completely ruled out. The discrepancies in the evidence with the complaint (Ex.PW10/A) and the civil suit (Ex.PW10/D-9) regarding the delay in lodging of the FIR indicate that the prosecutrix and the prosecution are unable to justify the delay in lodging of the FIR which is fatal to the prosecution version.
55. Therefore, it can be said that the FIR was lodged after a delay which is fatal to the prosecution story. The delay has not been satisfactorily explained by the prosecutrix and the prosecution.
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STATEMENTS AND EVIDENCE OF THE PROSECUTRIX
56. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW10, the prosecutrix.
57. PW10, the prosecutrix, has deposed on oath in her examination in chief that in the year 2003, she was learning computer course at Guru Padam Jain Institute situated in Paschim Puri area. Accused was also doing the same course. She became conversant with him during her course as both used to discuss your problems. He also used to sit on the same table with her. After completion of course, they both did not meet each other frequently. Whenever they met each other, they used to exchange greetings and sit together for some time. This was during the period between the year 2003 and 2007 and they were good friends at that time. On 03.11.2007 at around 9.00-9.30 am, the prosecutrix (PW10) was waiting for a bus at Paschim Puri Bus stand for going to Lajpat Nagar as there was her interview. When she was standing at Paschim Puri bus stop waiting for a bus, in the meanwhile the accused came there on a bike and made enquiry from her where she was going. She told him that she was going to Lajpat Nagar to attend her interview. He asked her to show her interview letter to verify her place of interview. After showing her interview documents, he told her that he will drop her at place of interview as he was employed at Greater Kailash. She sat on his bike for going to place of interview. He dropped her at the place of interview at around 11.30 am and he also counselled her for the interview. He also requested her to inform him when her interview is finished. After finishing of her interview, the prosecutrix informed the accused at around 5.00 pm. He asked her to stay as he was reaching there. He reached there at around 5.45-6.00pm for dropping her at her residence. He dropped her in front of her house and she asked him to have a Sessions Case Number : 15 of 2013.
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cup of tea at her residence. He agreed for the same. He had also visited earlier to deliver invitation card of his sister's marriage. He came to the house of the prosecutrix and they both had taken cup of tea together. Her mother had gone to market to purchase vegetables, she was alone at her house. She went to prepare tea. He also came inside her kitchen. He started touching her body and she objected for the same. She asked him to wait outside in the room as she is preparing tea. He did not go outside kitchen. He told her that he proposed to her earlier also and he liked her. In her computer course also, other students knew that he liked her. When she was studying in computer class, she had gone with the accused to Kalkaji temple. He told her that you will not leave her. She told him that it is not practically possible. He kept touching her despite her objection. He forcibly established physical relations with her despite her resistance. He kept telling her that he liked her. He also assured her that he will not leave her and soon he will marry her. After about half an half, he left her house. On 17.11.2007, the prosecutrix (PW10) had another interview at Lajpat Nagar and the accused had taken her to the place of interview from the bus stop near her residence. He had also booked a room in a hotel namely Cozy Home in Greater Kailash. He took her to the hotel after her interview, where he again had physical relationship with her assuring marriage. In between also, they both used to talk on telephone and he used to assure marriage to her. On 02.08.2009, both the prosecutrix and the accused had gone to Vrindavan where they performed a marriage which a husband and wife do. They both stayed in a hotel name Krishna in Vrindavan over night, where the accused had physical relationship with her. He used to regularly dropped to her office at Moti Nagar. Sometime she used to prepared lunch for him and some time he used to bring lunch for her. He was working in Greater Kailash at that time. On 28.11.2009 or in the year 2008, they both went to Mussorrie and Sessions Case Number : 15 of 2013.
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stayed in a hotel Hill Queen as husband and wife for two days. There also, both had physical relations. On 20.05.2009, they both had gone to Nainitaal and stayed in a hotel name Shubham for two days. They both had physical relations at Nainitaal. On 17.08.2009, the accused was transferred from Delhi to Bhopal. They both had discussed about their future since there was pressure from her family on her and he had also told her that he was unable to tell about his family about both of them. He told her that after he moved to Bhopal, she should join him there. On 07.10.2009, on the occasion of Karva Chouth, the accused called her to Bhopal and both of them stayed in a hotel named Surinder Villa for two days and they had physical relations in the hotel. Both of them also performed the pooja which husband and wife performed and the accused also gave her a saree as gift on Karva Chouth. On 09.10.2009, the prosecutrix vacated the hotel and returned to Delhi. He used to come to Delhi several times and they both used to roam around together and take lunch or dinner together. He had never ignored her till this time. In the beginning of 2010, she had left her job at his instance as he had told her to do so since he did not like her working and he used to put some money sometimes Rs. 5000/- some times Rs.10,000/- in her bank account. On 22.06.2011, he called her to Bhopal, where she went. They both stayed in a hotel for two or three days. He had called her to show her a room, which he was going to taken on rent and to verify whether or not she would be comfortable or not. The room was in Nehru Nagar. On 30.08.2011, he again called her to Bhopal and she stayed in the same hotel where she had stayed on 22.06.2011. On 15.10.2011, on the occasion of Karva Chouth, she had again gone to Bhopal, where she had stayed in the same hotel with the accused. He had physical relations with her every time, whenever she visited Bhopal and whenever he came to Delhi. They both used to talk to each other daily on telephone and they both used to meet whenever he was in Delhi and Sessions Case Number : 15 of 2013.
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she used to go to Bhopal. On 30.12.2011, prosecutrix had again gone to Bhopal and stayed in the same hotel with the accused and they both returned on 02.01.2012 to Delhi. He went to his residence while she returned to her home. He started ignoring her and did not take her calls. Prior to that he was looking after her and taking care of her but all of a sudden, he started ignoring her. He used to take her calls some times. She could understand. Something wrong was happening as he was not taking her calls every time. Whenever she used to enquire from the accused whether he had informed his family about them, he used to tell her that as his paternal uncle (Tau ji) has expired in October 2011, he could not get married for one year. She used to ask him to tell her clearly why he was ignoring her and whether anything was wrong but he only used to give her excuse about the death of his paternal uncle. On 01.02.2012, his friend had telephoned her and told her that he had received an invitation card for the marriage of the accused on which the name of the bride is mentioned as Ms.Kusum. She confronted the accused on which he told her that some one was instigating her and told her that the information given to her was wrong. She asked his friend to tell her the residence of Ms. Kusum and he told her that she resides in Income Tax Colony, Pritampura. She had a complete address in her mobile phone. She again confronted the accused but he again denied about his scheduled marriage. After that, the prosecutrix had telephoned at the residence of the accused and the call was taken by his sister Ms. Sona. Prosecutrix told her that she is his wife on which Ms. Sona told her that the accused had many wives and she was of which number (Kise Number Ki Wife). She told Ms. Sona, her name but she disconnected the phone. She telephoned the accused and narrated everything and told him to tell her the correct facts. He still continued to deny everything. One day, Mr. Kavi, his brother telephoned her and threatened her of kidnapping in case she did not stop phoning him. Then she went Sessions Case Number : 15 of 2013.
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to Mr. Narender Kalra, Advocate and consulted him on 04.02.2012. He advised her against filing the case stating that she would not be able to manage it. He advised her to contact Ms. Kusum and make her aware about her relationship with the accused but she did not contact her and had sent her a notice through her lawyer by courier. Ms. Kusum did not respond to the notice. The accused telephoned her and told her to withdraw her case otherwise Ms. Kusum may die on which she confronted with her plight. Then he admitted that he was getting married to Ms. Kusum. It was on 07.02.2012. He told her that he was coming to Delhi and threatened her with dire consequences (Tujhe chodonga nahi). Thereafter, she filed the complaint (Ex.PW10/A) in Police Station on 08.02.2012.
58. The prosecutrix was cross examined by the Additional Public Prosecutor as she was not disclosing complete facts and was hostile. She has admitted some details mentioned in her complaint which were missed out in her examination in chief.
59. She has also similarly stated in her statement under section 164 of the Cr.P.C. (Ex.PW).
60. Before coming to the factual matrix, briefly the law regarding physical relations on a false pretext of marriage is required to be elaborated briefly.
61. In the case reported as Uday v. State of Karnataka, AIR 2003 SC 1639, the Hon'ble Supreme Court has held 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 Sessions Case Number : 15 of 2013.
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marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is 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 strait jacket 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 tests laid done 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 weigh 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."
62. In the case reported as Sujit Ranjan v State, 2011 LawSuit (Del) 601, the Hon'ble Delhi High Court has held that:
"Legal position which can be culled out from the judicial pronouncements referred above is that the consent given by the prosecutrix to have sexual intercourse with whom she is in love, on a promise that he would marry her on a later date, cannot be considered as given under "misconception of fact". Whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under " misconception of fact " depends on the facts of each case. While considering the question of consent, the Court must consider the evidence before it and the surrounding circumstances before reaching a conclusion. Evidence adduced by the prosecution has to be weighed keeping in mind that the burden is on the prosecution to prove each and every ingredient of the offence Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception and that promise made was false to his knowledge. The failure to keep the promise on a future uncertain date may be on account of variety of reasons and could not always amount to " misconception of fact " right from the inception."
63. In the case reported as Deepak Gulati v State of Haryana, (2013) 7 SCC 675 : 2013 Law Suit (SC) 442 , the Hon'ble Supreme Court has held that:
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"Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had malafide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at any early stage a false promise of marriage by the accused ; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so, such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was malafide, and that he had clandestine motives. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The " failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance." Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirely, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."
64. Thus, in Uday's case (supra) and Deepak Gulati's case (supra), the Hon'ble Supreme Court laid down the law that if the prosecutrix is matured to understand the significance and morality associated with the act, she was Sessions Case Number : 15 of 2013.
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consenting to and that she was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor and also that if it is difficult to impute to the accused, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her and further that if there is any evidence to prove conclusively, that the appellant never intended to marry with the prosecutrix, the accused be given benefit of doubt.
65. In the case reported as Kuldeep Tyagi v The State NCT of Delhi, 2013(2) JCC 840, it was observed that it was never the case of the prosecutrix that she ever insisted the accused to marry her. Thus, it was not a case of refusal to marry, despite promise, hence, not relevant.
66. In the judgment reported as Nikhil Parashar v. State of Delhi, 2010 (1) JCC 615, it was observed as follows:
"If I take the view that sexual intercourse with a girl, in the facts and circumstances such as in the present case, does not amount to rape, it will result in unscrupulous and mischievous persons, taking undue advantage of innocent girls by promising marriage with them, without having any intention to do so, re-assuring the girl and her family by making the two families meet each other and formalize the matter by ceremonies, such as an engagement, persuading the girl to have sexual intercourse with him by making her believe that he was definitely going to marry her and then abandoning her, after robbing her of what is most dear to her. A case where the girl agrees to have sexual intercourse on account of her love and passion for the boy and not solely on account of the misrepresentation made to her by the boy or a case where a boy, on account of circumstances, which he could not have foreseen or which are beyond his control, does not marry her, despite having all good intentions to do so, has to be treated differently from a case, such as the present one, where the petitioner since the very inception had no intention of marrying the prosecutrix to whom he was a complete stranger before he met her to consider the proposal for Sessions Case Number : 15 of 2013.
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marriage with her."
67. In the case reported as Karthi @ Karthick v State of Tamil Nadu, Crl. Appeal No. 601 of 2008 decided on 01/07/2013, AIR 2013 SC 2645, the facts were that the accused used to tease the prosecutrix and one day finding her alone in her house committed sexual intercourse forcibly and then promised to marry her and requested that she should not disclose this fact to anybody. Thereafter they both were engaged in consensual sex at different places and in all these meeting the accused swore that he would marry with the prosecutrix. However one day on 05.10.2003, both the prosecutrix and accused gone in a temple where she requested the accused to marry her but he refused and on his refusal, she divulged the entire facts to her family members. Panchayat was held in village and the accused was summoned there and persuade to marry with prosecutrix but he refused to marry the prosecutrix and then the prosecutrix lodged a report.
68. The Hon'ble Supreme Court after considering the case law laid down, held that the first sexual intercourse was forceful and thereafter the subsequent acts of sexual intercourse, were actions of actively cheating her, by giving her the impression that he would marry her. The occurrence at the Murugan temple, is of significant importance, where he left the prosecutrix when he was asked to marry her. Hence the court held that the sexual intercourse by the accused with the prosecutrix was not consensual as obtaining consent by exercising deceit, cannot be legitimate defence to exculpate an accused.
69. Thus, on analyzing the law laid down by the Hon'ble Superior Courts it appears that the intention of the accused at the time of entering into a relationship Sessions Case Number : 15 of 2013.
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is to be seen by the court as to if he really intended to marry the prosecutrix or he merely made the promise to get sexual favours from the prosecutrix. If the facts suggest that the accused genuinely wished to marry prosecutrix but it could not materialize due to reasons beyond his control, then in such an event no offence could be made out. However, on the contrary, if he had no intention to marry the prosecutrix since beginning then his case would be squarely covered within the ambit of offence under section 376 IPC.
70. Turning to the present case, on carefully scrutiny of her different statements, it transpires that the prosecutrix has made several improvements in her evidence and her deposition is contrary to her earlier statements.
71. The prosecutrix is more or less consistent in her different statements regarding the accused and her being together in a computer course till 2002-2003 and there were no meetings from 2003 till 03.11.2007 and till then no offence had been committed.
72. Then, as per the version of the prosecutrix, the accused met her on 03.11.2007 and later in the day the offence of rape on the pretext of marriage was committed for the first time.
73. There are different versions coming forth regarding their meeting on 03.11.2007 as in her complaint (Ex.PW10/A), the prosecutrix has stated that she was waiting at Bus Stand of Paschim Puri for going to Lajpat Nagar for an interview and the accused came there and offered her a lift saying that he was going in the same direction to Greater Kailash. He waited for her at the place of Sessions Case Number : 15 of 2013.
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her interview, went through her resume, boosted her morale and then took her to an office in Greater Kailash and from there brought her to her residence; in her statement under section 164 of the Cr.P.C. (Ex.PW2/A), she has stated that she was standing at the bus stop for going for a job interview when the accused came there and offered to drop her and after the interview he phoned her and came to drop her at her residence; in her civil suit (Ex.PW10/D-9) she has stated that she was waiting for bus for going to Lajpat Nagar and accused offered her lift as he was going in the same direction and in the evening he gave her a lift to her residence; and in her examination in chief, she has deposed that she was waiting for a bus at Paschim Puri Bus stand for going to Lajpat Nagar as there was her interview. When she was standing at Paschim Puri bus stop waiting for a bus, in the meanwhile the accused came there on a bike and made enquiry from her where she was going. She told him that she was going to Lajpat Nagar to attend her interview. He asked her to show her interview letter to verify her place of interview. After showing her interview documents, he told her that he will drop her at place of interview as he was employed at Greater Kailash. She sat on his bike for going to place of interview. He dropped her at the place of interview at around 11.30 am and he also counselled her for the interview. He also requested her to inform him when her interview is finished. After finishing of her interview, the prosecutrix informed the accused at around 5.00 pm. He asked her to stay as he was reaching there. He reached there at around 5.45-6.00pm for dropping her at her residence. He dropped her in front of her house.
74. Further, there are different versions coming forth regarding the first instance of physical relations on 03.11.2007 as in her complaint (Ex.PW10/A), the prosecutrix has stated that when she was preparing tea, accused came close to Sessions Case Number : 15 of 2013.
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her and started making proposal of marriage and started touching her to which she objected. After having tea when she was going to see him off, he enticed her, gained her confidence, proposed marriage to her assuring to talk to her mother and forcibly had physical relations with her; in her statement under section 164 of the Cr.P.C. (Ex.PW2/A), she has stated that when she had gone to the kitchen for tea, he had teased her (cheda) and when she resisted he said "I want to marry you" and then had physical relations with her; in her civil suit (Ex.PW10/D-9) she has stated that when she was going to see off the accused, he showed his interest in her and made a promise to marry her ; and in her examination in chief, she has deposed that when she went to prepare tea, the accused also came inside her kitchen. He started touching her body and she objected for the same. She asked him to wait outside in the room as she is preparing tea. He did not go outside kitchen. He told her that he proposed to her earlier also and he liked her. In her computer course also, other students knew that he liked her. When she was studying in computer class, she had gone with the accused to Kalkaji temple. He told her that you will not leave her. She told him that it is not practically possible. He kept touching her despite her objection. He forcibly established physical relations with her despite her resistance. He kept telling her that he liked her. He also assured her that he will not leave her and soon he will marry her.
75. Further, there are different versions coming forth regarding the cities, hotels where the accused and the prosecutrix had physical relations as in her complaint (Ex.PW10/A), the prosecutrix has stated that on 17.11.2007, accused took her to a hotel Cozy Home in Greater Kailas where they had physical relations (para 10). On 09.08.2008, accused took her to Vrindavan and had physical relations with her in the hotel (para 14). On 28.11.2008, accused took her Sessions Case Number : 15 of 2013.
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to Mussoorie in Hotel Hill Queen where they stayed till 01.12.2008 and had physical relations with her. On 20.05.2009, accused did the same thing with her at Hotel Shubham, Nainital (para 17). 0n 07.10.2009, accused called her to hotel Surinder Villa in Bhopal where she observed Karva Chowth (para 19). She visited Bhopal on 26.06.2011, 31.08.2011, 15.10.2011, 15.10.2011 and 30.12.2011 (para
25); in her statement under section 164 of the Cr.P.C. (Ex.PW2/A), she has stated that on 17.11.2007, they had physical relations in hotel Cozy Home in Greater Kailash. On 09.08.2007, they went to Vrindavan where they performed a puja as husband and wife. Then they went to Mussorrie in 2008 and Nainital in 2009. On 07.10.2009, she went to Bhopal and till 01.01.2012, she went to Bhopal 7-8 times.;
in her civil suit (Ex.PW10/D-9) she has stated that the accused kept exploiting her sexually on the assurances of the marriage (para 8). The accused took her to Bhopal on one occasion, enticed her in his love bond and exploited her further on the wrong assurance of marrying her (para 10).; and in her examination in chief, she has deposed that on 17.11.2007, the accused took her to a hotel namely Cozy Home in Greater Kailash where he again had physical relationship with her assuring marriage. On 02.08.2009, both the prosecutrix and the accused had gone to Vrindavan where they performed a marriage which a husband and wife do. They both stayed in a hotel name Krishna in Vrindavan over night, where the accused had physical relationship with her. On 28.11.2009 or in the year 2008, they both went to Mussorrie and stayed in a hotel Hill Queen as husband and wife for two days. There also, both had physical relations. On 20.05.2009, they both had gone to Nainitaal and stayed in a hotel name Shubham for two days. They both had physical relations at Nainitaal. On 07.10.2009, on the occasion of Karva Chouth, the accused called her to Bhopal and both of them stayed in a hotel named Surinder Villa for two days and they had physical relations in the hotel. Both of Sessions Case Number : 15 of 2013.
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them also performed the pooja which husband and wife performed and the accused also gave her a saree as gift on Karva Chouth. On 22.06.2011, he called her to Bhopal, where they both stayed in a hotel for two or three days. On 30.08.2011, he again called her to Bhopal and she stayed in the same hotel where she had stayed on 22.06.2011. On 15.10.2011, on the occasion of Karva Chouth, she had again gone to Bhopal, where she had stayed in the same hotel with the accused. He had physical relations with her every time, whenever she visited Bhopal and whenever he came to Delhi. On 30.12.2011, prosecutrix had again gone to Bhopal and stayed in the same hotel with the accused and they both returned on 02.01.2012 to Delhi.
76. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version.
77. It is pertinent to mention here that besides the above stated different versions on the material points there are some overwhelming contradictions and glaring inconsistencies in the evidence of the prosecutrix which cannot be ignored. In her cross examination, the veracity of the testimony of the prosecutrix stands shattered.
Sessions Case Number : 15 of 2013.
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78. The prosecutrix has alleged that the accused used to take her to different hotels in different cities where they stayed together and had physical relations. It is clear from the hotel records (Ex.PW11/A, Ex.PW11/B, Ex.P2, Ex.PW12/A to C) that the name of the accused is mentioned on the same and the dates are also tallying with the evidence of the prosecutrix. However, it is also clear from the same as well as the evidence of PWs 11 and 12 that the bills were paid by the prosecutrix and not the accused and the bookings were made by the prosecutrix. Also, the bills of the alleged stay at Hotel Cozy Home in Greater Kailash, Delhi, hotel Surinder Villa in Bhopal, Hotel Shubham, Nainital and the hotel at Vrindawan have neither been given by the prosecutrix to the IO during investigation nor filed by the prosecutrix during her evidence nor any proof of existence of such hotels has been produced. Therefore, it can be said that the prosecution has failed to show that the accused had taken the proseuctrix to hotels in different cities, as alleged by her.
79. Further, it is clear from all the different statements of the prosecutrix that for the purpose of the commission of the alleged offence, the accused had not used any force or threat.
80. In fact, contrary to her complaint (Ex.PW10/A) and her evidence, in the civil suit (Ex.PW10/D-9), the prosecutrix has not mentioned anything about the accused establishing physical relations with her on a false pretext of marriage with her. She has also not mentioned the dates and details of the alleged offence, as have been deposed by her in her evidence. No explanation is coming forth from the prosecution regarding the same.
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81. It appears that whatsoever physical relations were between her and the accused were with her consent. In her cross examination dated 03.02.2014, page 2, she has deposed that "When I had gone with the accused to different hotels and different places at Vrindavan, Mussorrie, Bhopal, Nainitaal and Delhi hotels I was fully aware that I would be having physical relations with the accused. It is correct that I had consented for the physical relations with the accused at different places." When she was fully aware that she would be having physical relations with the accused and still she went with the accused to different cities and stayed with him in different hotels, it only indicates that everything between her and the accused was with her consent.
82. It is also clear from the cross examination dated 04.07.2013, page 3 that all the siblings of the prosecutrix were married at the age of 18-20 years while she herself was 32 years old when she met the accused and was still unmarried. The contention of the defence counsel appears to be probable that due to her age, which was much more than the age at which her siblings had married, she was herself interested in marrying the accused and for this reason she may have got associated with him.
83. There is a contradiction in the evidence of the prosecutrix as on page 8 of her cross examination dated 03.02.2014, she has deposed that accused was taking precautions and they never had physical relations without precautions while on page 9 of her cross examination dated 03.02.2014, she has deposed that on 03.11.2007, accused had not taken any precautions when they had physical relations.
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84. Another striking fact emerges from the evidence of the prosecutrix which indicates that her claim is wrong. In her cross examination dated 03.02.2014 at page 4, she has deposed that she wanted the financial status of the accused as well herself to be string before they married. In her cross examination dated 03.02.2014 at page 5, she has admitted that in the year 2011, her financial condition had weakened and had not become better. She has also accepted that the accused had taken a loan for purchase of a house in Bhopal.
85. In her cross examination dated 03.02.2014 at pages 3- 4, she has deposed that "It is correct that between 2007-2011 for about four years there was no date of marriage fixed. Vol. Since 2007 I considered myself as wife of the accused and he considered himself to be my husband and for this reason I was having physical relations with him at different places. I had told the police in my complaint that since 2007 I considered myself as wife of the accused and he considered himself to be my husband and for this reason I was having physical relations with him at different places. (Confronted with the complaint made by the prosecutrix Ex.PW10/A where it is not so recorded). I and the accused required to be formally married in the society in the presence of our families and friends despite our considering ourselves to be married. There was no obstruction or difficulty from any side in our marriage between 2007-2012. We wanted the marriage to be performed with the blessing of both the families and due to this reason there was no marriage between 2007-2012."
86. In her cross examination dated 03.02.2014, page 3, the prosecutrix has deposed that "He was my husband. .....I consider myself as the wife of accused Sessions Case Number : 15 of 2013.
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as we had performed pooja- paath, Karva Chauth etc together. We had acknowledged each other as husband and wife although there was no formal ceremony of marriage.....We had acknowledged each other as husband and wife although there was no formal ceremony of marriage.......I had not discussed about my marriage with the accused with the family of accused after we had physical relations on 03.11.2007. Vol. I had to convince my family and the accused had to convince his family for our marriage. Both the families had never met for discussing our marriage."
87. In her cross examination dated 03.02.2014, page 3, the prosecutrix has deposed that "Neither my self nor my family has discussed about my marriage with the accused with his family between 2007-2012. The accused had never told me any date of our marriage however, we had discussed that we would be getting marriage after the Diwali of 2011. There was no time frame fixed for getting marriage after the Diwali of 2011...... It is correct that between 2007-2011 for about four years there was no date of marriage fixed."
88. It is clear from the evidence of the prosecutrix that 03.11.2007 when the alleged physical relations were established for the first time, the date of the marriage between the accused and the prosecutrix was not fixed. Even later, on the subsequent occasions when the alleged physical relations were established, the date of the marriage between the accused and the prosecutrix was not fixed. The families of the both the accused and the prosecutrix had also not met since 03.11.2007 till 08.02.2012 (date of filing of complaint) for the purpose of marriage of the accused. The prosecutrix had not met the family of the accused for the purpose of marriage between herself and the accused. As there was no date decided Sessions Case Number : 15 of 2013.
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for the prospective marriage at the time of first incident of alleged physical relations and even thereafter, it can be said that there was a promise to marry made by the accused and on misrepresentation, he made the prosecutrix have physical relations with him. In her cross examination dated 03.02.2014, page 7, the prosecutrix has deposed that "According to me I married with the accused. I can not tell the date of my marriage but it was in October 2009. Accused had put Sindoor in the parting of my hair on Karva Chauth. I have been observing Karva Chauth till 2011. Even today I consider my self as wife of the accused. I have not filed any case against accused in the capacity of his wife." Merely by considering herself to the wife of the accused and him being her husband or observing karva chauth or performing any pooja does not indicate that the accused had promised to marry her.
89. The counsel for the accused have argued that if the accused was the husband of the prosecution then the question of rape does not arise. However, it is clear from the evidence of the prosecutrix that she was fully aware that the marriage between the accused and her had not been solemnized and therefore they were not husband and wife.
90. It also emerges from the evidence of the prosecutrix that she was also fully aware about the difference of caste between herself and the accused. In fact, she has made a contradiction regarding her own caste in her cross examination. She has deposed that "It is correct that accused is Brahmin by caste and is Pahari Brahmin as told to me by the accused. I do not know whether the accused is religiously inclined. It is correct that I belong to Rajesthan and Sessions Case Number : 15 of 2013.
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that I am not a Brahmin. Volt. I am a Rajpoot. ...... It is correct that the hotla community hails from Rajasthan. I can not say whether or not Hotla community falls in the tribal community. ... The accused was alway aware that I am not Brahmin. He knew everything about me. I belong from Reserve category being Schedule tribe." However, the argument of the counsel for the accused that due to difference of caste, there was no occasion for the accused to propose marriage to the prosecutrix is not tenable as we are living in an advanced modern society where caste differences do not matter now a days, in the educated and emancipated as well as the illiterate and orthodox since the qualities and the character of a prospective bride or groom are now considered.
91. The prosecutrix has admitted that she had exchanged pornographic e- mails with the accused, sent SMSs to him and chatting with him. She had also chatted with him regarding her private parts. She has deposed that "I had send pornographic pictures to the accused through my Email ID as the accused had also sent me similar pictures and we used to exchange such pictures. ....It is correct that we used to chat on the net and I had kept coded numbers for my private parts regarding which we used to chat..... It is correct that there was a chat date 15.05.2008, transcript of which is Ex.PW10/D8. It is correct that in this chat the provocation had been made by me. Vol. The accused also used to make provoking conversation....." Although she has tried to cover the same up by saying that the accused was aware about her e-mail id and had created a new one (Both e-mail ids are being withheld to protect the identity of the prosecutrix. They are however, mentioned in her evidence) and he himself was sending e-mails from one e-mail id to the other. However, this fact Sessions Case Number : 15 of 2013.
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stands falsified in later part of her cross examination dated 26.08.2013, page 2, second last paragraph) wherein she has deposed that "It is correct that during my relationship with the accused, I used to chat with him using the Email ID (id allegedly created by accused, withheld) and I operated the same using its password which was within my knowledge. Email ID (id allegedly created by accused, withheld) was created after the creation of Email ID (id of the prosecutrix, withheld). It is correct that till the Email ID (id allegedly created by accused, withheld) was created, I was using Email ID (id of the prosecutrix, withheld) and I operated the same using its password which was within my knowledge."
92. In her cross examination dated 26.08.2013, page 7, the prosecutrix has deposed that "It is correct that when I had agreed to have physical relations with the accused on 03.11.2007, I also had the option to refuse for the same. I had agreed only because the accused had convinced me that he would marry me as he was promising marriage to me all the time. It is correct that accused had not used any physical force upon me. It is also correct that he had not threatened me." Despite option of not having physical relations with the accused, the prosecutrix preferred to have physical relations with the accused even when he did not threaten her or use any force, and this fact indicates that she herself was inclined to establish physical relations with him.
93. The Additional Public Prosecutor, relying upon the judgments reported as Karthi @ Karthick v State of Tamil Nadu, Crl. Appeal No. 601 of 2008 decided on 01/07/2013, AIR 2013 SC 2645 and State of U.P. Vs. Naushad, Criminal Appeal No.1949 of 2013 arising out of SLP (CRL.) No.5390 of 2008, Sessions Case Number : 15 of 2013.
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decided on 19.11.2013 has argued that the prosecutrix was under a misconception of facts and her consent for physical relations was obtained by misrepresentation and fraud.
94. Here, it may be mentioned that it is important to understand what consent implies and what is consent on misconception of facts.
95. An argument has been raised by the Additional Public Prosecutor that the accused on the pretext of love and promise to marry established a physical relationship with the prosecutrix which amounts to rape as this is obtaining the consent of the prosecutrix by fraud and incitement which neither voluntary nor free. Had the prosecutrix known that the accused would not marry her, she would not established physical relations with him.
96. On the other hand, it had argued by the counsel for the accused that the prosecutrix had physical relationship with the accused with her free consent and will.
97. The crucial expression in section 375 of the IPC which defines rape as against her will. It seems to connote that the offending act was despite resistance and opposition of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained in Section 90 which reads as follows:
"Consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all."
98. Jowitts Dictionary on English Law, Words and Phrases, Sessions Case Number : 15 of 2013.
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Permanent Edn. explains "consent" as follows:
"Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent is 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 mind."
99. 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 females understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent."
100. Here, it would be necessary to mention that in the case reported as Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC (Cri) 1448, it has been observed that:
"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 an 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 cannot be called in aid in such a case unless the Court can be assured that from the very inception the accused never really intended to marry her."
101. Similar observations have also been made in the judgments reported as Pradeep Kumar Verma v. State of Bihar & anr., AIR 2007 SC 3059; Sessions Case Number : 15 of 2013.
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Jyotsana Kora v. The State of West Bengal and anr., Manu/WB/0364/2010; Deelip Singh alias Dilip Kuamr v. State of Bihar, (2005) 1 SCC 88; Uday v. State of Karnataka, (2003) 4 SCC 46 and Naresh Kumar v. State (Govt. of NCT) Delhi, 2012 (7) LRC 156 (Del).
102. When a girl, a major, willfully has physical relations with the accused on the promise to marry on an uncertain date, it cannot be said that it is a misconception of fact or that her consent has been obtained by fraud. It is clear that the prosecutrix accepted whatever physical relationship was there with her free consent.
103. In the present case, it is clear that that the consent of the prosecutrix on the promise to marry cannot be said to be under a misconception of fact as she was a major at the time of the alleged incident and intelligent enough to understand the consequences of establishing physical relationship with the accused. Mere promise to marry on an uncertain date does not indicate that the accused has obtained her consent for the physical relationship by fraud or misrepresentation. Consent given by the prosecutrix to have physical relationship with whom she is in love, on a promise that he would marry her on a later date, cannot be considered as given under misconception of fact.
104. Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix 'against her consent'. How is 'consent' defined? Section 90 of the IPC Sessions Case Number : 15 of 2013.
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defines consent known to be given under 'fear or misconception' which reads as under:- "90. Consent known to be given under fear or misconception -
A consent is not such consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
105. Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated. It cannot be said that the alleged consent said to have obtained by the accused was not voluntary consent and the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is not borne out from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix.
106. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent.
107. Section 114-A of the Indian Evidence 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 herein 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, alongwith the provisions of Sessions Case Number : 15 of 2013.
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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, and thus, such a physical relationship would tantamount to committing rape.
108. The judgments reported as Uday v. State of Karnataka, AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059, observe that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act (s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.
109. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the Sessions Case Number : 15 of 2013.
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consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
110. After careful perusal of the judgment reported as Karthi @ Karthick v State of Tamil Nadu, Crl. Appeal No. 601 of 2008 decided on 01/07/2013, AIR 2013 SC 2645, it can be said that the same does not apply to the facts of the present case as in that case force had been used by the accused at the time of first incident of physical relations, a panchayat for the marriage between the prosecutrix and the accused had been held where the accused had refused to marry her and there were two witnesses also. However, the facts of the present case are very different.
111. The judgment of the hon'ble Supreme Court in State of U.P. Vs. Naushad, Criminal Appeal No.1949 of 2013 arising out of SLP (CRL.) No. 5390 of 2008, decided on 19.11.2013, relied upon by the prosecution, would not be applicable to the facts of the present case as in that case the prosecutrix had become pregnant due to the physical relations with the accused, who was also related to her. The accused had admitted before two prosecution witnesses who were functioning as Panchayat that he had committed sexual intercourse and Sessions Case Number : 15 of 2013.
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promised to marry her but he absconded despite the promise made before the Panchayat. He had even offered money to her. That shows that the accused had no intention to marry her right from the beginning and committed sexual intercourse totally under the misconception of fact by prosecutor that he would marry her. However, the facts of the present case are different.
112. As regards the incident of 03.11.2007, it may be observed that the prosecutrix has given different versions of the same in her different statements. In her cross examination dated 26.08.2013, page 6, she has deposed that "The accused had mentioned to me about having physical relations with me while we were in the kitchen and the physical relations were established while we were in the bed room. I had not agreed for physical relations in the kitchen. While we were having tea in the drawing room, I had agreed for having physical relations with the accused."
113. In case, on 03.11.2007, the accused made overtures by touching her in the kitchen and asked her for physical relations with him, there was no reason why the prosecutrix preferred to serve him tea thereafter and let the accused remain in her house for about an hour (her cross examination dated 26.08.2013, page 6) instead of turning him out of her house and then also went ahead and had physical relations with him when he said that he shall marry her, without mentioning any date or time of the marriage.
114. Also on 17.11.2007, she again had an option not to go with the accused to hotel Cozy Home, Greater Kailsh, Delhi, as alleged by her, but she still preferred to go there to have physical relations with the accused.
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115. The prosecutix also preferred to go with the accused to different hotels in different cities several times knowing that she would have physical relations with the accused. She was also aware that she is not married to him. Despite the same, she still preferred to be with him and did not raise any objection or resistance nor told her family or contacted the family of the accused nor both the families ever met for the marriage of the prosecutrix with the accused. This fact clearly indicates that the prosecutrix was a consenting party. It also transpires from the evidence of the prosecutrix that she was e-mailing him pornographic pictures, sending SMSs and chatting with him about her private parts and this indicates that she herself was interested in the physical relations with the accused. It appears that the prosecutrix being aware of the acts she was indulging in and she being a major surely knew about the morality attached to the act and hence the accused cannot be held liable.
116. The evidence of the prosecutrix also discloses that she is taking contradictory stands regarding her helping the accused in procuring bail. In her cross examination dated 26.08.2013, page 3, she has deposed that "It is correct that I had help the accused in procuring bail." However, she has also deposed thereafter that "It is wrong to suggest that I objected the bail of accused. It is wrong to suggest that I never helped the accused to procure the bail.....It is correct to suggest that on every date of hearing I used to object to the accused being released on bail."
117. Despite being present before the Court in the bail matter, she has very conveniently deposed that "I had told the fact that accused had asked to get Sessions Case Number : 15 of 2013.
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him released from jail and that he would marry me after his release to Mr.Rakesh Siddharth, Ld. ASJ. Thereafter, the Court had enquired from the accused and he had refused to marry me. As I have not read the bail order of accused, I can not say whether or not this fact is incorporated in the order." She has also deposed that "I had filed a Civil case for stopping the accused in getting marriage. I was told by the Ld. Court that everyone has a right to get marriage and I was made to sign on some document. I do not know whether the case had been dismissed or withdrawn but the accused was not stopped from getting marriage." The prosecutrix has herself appeared before the Court in the bail matter, filed a civil suit and in her evidence she has volunteered a lot of facts in her cross examination and therefore, it does not appear to be believable that she has not read the bail order and the order of the learned Civil Judge (Ex.PW10/D-14) whereby her suit was dismissed as withdrawn.
118. Another fact, fatal to the prosecution version, emerges from the evidence of the prosecutrix that the accused had advised her to marry a suitor found by her family, as mentioned in the transcript of chatting dated 23.05.2008 (Ex.PW10/D-15) which also indicates that the accused had not offered to marry her. The prosecutrix has deposed that "It is correct that I had exchanged SMS with the accused that my brother had a proposal of some other boy for me. I do not remember whether or not the accused had responded by saying that I should go ahead with that proposal and marry the other boy....It is correct that the chatting as mentioned in the transcript dated 23.05.2008 was done by me with the accused. The same is exhibited as Ex.PW10/D15."
119. The prosecutrix has admitted in her cross examination dated Sessions Case Number : 15 of 2013.
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26.08.2013, page 8 that there may be some contradictions between her complaint (Ex.PW10/A), her plaint (Ex.PW10/D-9), legal notice (PW10/D-11), her statement under section 164 of the Cr.P.C. (Ex.PW2/A), her examination in chief and her cross examination. She has also made some improvements in her evidence from her complaint (Ex.PW10/A) and statement under section 164 Cr.P.C. She has admitted the same in her cross examination dated 03.02.2014, page 9. The improvements are with regard to her telling the police that she was to convince her family and the accused was to convince his family for their marriage; they were to get married after Diwali, 2011; she had mentioned in her complaint that since 2007 she considered herself to be the wife of the accused and he considered himself as her husband and for this reason they were having physical relations at different places; her mentioning in the plaint that she had physical relations with the accused several times at several places; etc. No explanation is coming forth from the prosecutrix and the prosecution regarding the improvements which is fatal to the prosecution version.
120. The only dispute which emerges is whether or not it was with her free consent or under a misconception on the false pretext of promise to marry that the prosecutrix had physical relations with the accused. By no stretch of imagination it can be said that the accused had promised to marry her. It is crystal clear that the prosecutrix had physical relations with the accused voluntarily and with her free consent and it was without any misconception of facts or any false promise of marriage. She was capable of understanding the complications and issues surrounding her marriage with the accused and then being involved with the accused to the extent of having physical relations with him.
Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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121. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime.
122. If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence.
123. It is a case of heinous crime of rape, which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused and not merely dwell upon the Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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shortcoming of defence.
124. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 376 and 420 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was forced into having physical relations by the accused on a false promise of marriage.
125. It is clear that the prosecutrix had willfully remained with the accused and had physical relationship, if any, with him being a consenting party and that the accused does not appear to have committed any offence.
126. The prosecutrix is an adult. She is sufficiently intelligent to understand the significance and moral quality of the act she was consenting to, having friendship with the accused and having no grievance about his conduct and behaviour at any time and having established physical relationship number of times with her consent and without any resistance. She never informed her family about her relationship with the accused or his offer to marry her. Her versions are inconsistent and contradictory. All the surrounding circumstances reveal that the prosecutrix established physical relationship with the accused with her free consent and in such a situation, there is nothing on the judicial record to show that the accused has ever committed any offence, as alleged.
127. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped as her consent is not free.
Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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128. The hon'ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment reported as Bharwada Boginbhai Hijri Bhai v. State of Gujarat, 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
1.By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
2.Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
3.The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
4.By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
5.In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
6.Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron.
7.A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it Sessions Case Number : 15 of 2013.
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is a sort of psychological defence mechanism activated on the moment.
129. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is she has leveled false allegations of rape against the accused.
130. In the light of the aforesaid nature of deposition of the prosecutrix, PW10, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
131. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
132. Consequently, no inference can be drawn that the accused is guilty of Sessions Case Number : 15 of 2013.
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the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
133. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was forced by the accused.
134. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
135. This brings me to the final question as to whether it was she was raped by the accused on a false promise of marriage. In this regard it is no doubt true that in her statement before this Court she has stated that she had physical relations with the accused on a false pretext of marraige but there are several contradictions in her statements which remain unexplained and indicate that no such offence was ever committed by the accused.
136. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of Sessions Case Number : 15 of 2013.
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FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
137. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
138. All the above facts and the ration of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offence of rape on promise to marry the prosecutrix by accused Mr.Prayag Sharma and the accused merits to be acquitted for the offence under sections 376, read with section 420 of the IPC.
EVIDENCE OF PW9-MOTHER OF PROSECUTRIX
139. In her evidence as PW9, the mother of the prosecutrix has given a version different from the version of the proseuctrix.
140. At the outset, PW9 has deposed that the prosecutrix is aged about 26-27 years while the prosecutrix has herself stated in her particulars that she is aged about 35 years. In her cross examination, she has admitted that "It is correct that she may be 35-36 years old today."
Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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141. She has deposed in her examination in chief on 10.01.2013 that "My daughter (name withheld although mentioned) told me that accused Prayag present in the court today (correctly identified) used to love her for the last five to six years. She also told me that accused wants to perform marriage with her..... Accused used to visit my house and also used to meet me. I asked accused whether he wanted to marry with my daughter. Accused told me that he wants to marry her. Accused used to take my daughter out of Delhi several times as I was assured by the accused that he will marry my daughter." However, there is no such deposition of the prosecutrix that she had told her mother about the accused or that he had met her mother.
142. PW9 has also deposed that "Accused told me that he will marry my daughter in the month of November, 2012. I started preparation of marriage of my daughter with the accused. My daughter informed me that accused had refused to perform marriage with her." However, there is no such deposition of the prosecutrix who has not even mentioned about any tentative time of marriage.
143. She has also made several improvements in her evidenc regarding her telling the police that Prayag used to love her daughter for last five six years; that accused used to take her daughter out of Delhi several times as she was assured by the accused that he will marry her daughter; that accused told me that he will marry my daughter in the month of November, 2012; that she started preparation of marriage of her daughter with the accused; that her daughter informed her that accused had refused to perform marriage with her. No explanation is coming from Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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the prosecution regarding the improvements.
144. It appears that the evidence of the mother of the prosecutrix is unreliable.
DEFENCE OF THE ACCUSED
145. In his statement under section 313 of the Cr.P.C., the accused has stated that he is innocent and has been falsely implicated in this case by the prosecutrix. He and the prosecutrix were having friendly relations. They both were pre-decided, from the very beginning of our friendship that they are not to marry each other because of difference in age and caste etc. Even during their friendly relationship, the prosecutrix was searching suitable match for herself in her community and he was searching a suitable match for himself in his community. It was always clear from inception of their friendship that they would not marrying each other. The prosecutrix was only interested to continue their friendly relation with me. During their friendly relationship, they never had physical relations. When he got engaged with Ms. Kusum, the prosecutrix could not digest the same. Out of jealousy, she made all efforts to stop the marriage and even sent a legal notice to Ms. Kusum and filed a civil suit against him and Ms. Kusum which she had subsequently withdrawn. She may have developed a desire to marry him which was one sided only due to which she lodged the present case which is false in order to pressurize him into continuing friendship with her and / or marry her. He has preferred not to lead any evidence in his defence.
146. The defence of the accused appears to be plausible considering the unreliable evidence of the prosecutrix which suffers from overwlelming Sessions Case Number : 15 of 2013.
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FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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contradictions and galring inconsistencies.
147. It may also be mentioned here that although the accused has taken the stand in his statement under section 313 of the Cr.P.C. that he did not have physical relations with the prosecutrix and has also given similar suggestions to the prosecutrix. However, his own stand is falsified when he has given suggestions contrary to his stand to the prosecutrix, which indicates that indeed there were physical relations established between the accused and the prosecutrix. In the cross examination of the prosecutrix dated 04.07.2013, page 3, she has deposed that "It is wrong to suggest that in order to fulfil my physical desire I used to force the accused to have physical relations with me." In the cross examination of the prosecutrix dated 26.08.2013, page 7, she has deposed that "It is correct that when I had agreed to have physical relations with the accused on 03.11.2007, I also had the option to refuse for the same."
148. However, the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused. The prosecution cannot take advantage of the weakness of fact that the accused as not led any evidence in his defence.
MENS REA / MOTIVE
149. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the Sessions Case Number : 15 of 2013.
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case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
150. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
151. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
152. In the present case, a story has been projected that the accused has raped the prosecutrix on promise of marriage and thereafter continued to rape her for five years and this version appears to be untrue as there is no reason why he would do so. There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecutrix.
153. There does not appear to be any criminal intention and mens rea on the part of the accused.
INVESTIGATION
154. The investigation conducted in the present case has been deposed by PWs 6, 7, 8, 13, 14 and 15. The MLCs of the prosecutrix and the accused have been proved by PWs 3 and 4. The FSL reports have been proved by PW5. The FIR has been proved by PW1. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
155. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case. The investigation Sessions Case Number : 15 of 2013.
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appears to have been conducted fairly and properly.
156. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.
157. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
158. Therefore, the investigation although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable CONCLUSION
159. Since the prosecutrix as PW10 is neither reliable nor believable as there are overwhelming inconsistencies, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.
160. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the Sessions Case Number : 15 of 2013.
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veracity of the prosecution case and the prosecution has failed to establish rape by the accused on the pretext of marriage. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
161. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
162. Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Prayag Sharma stands established. It also stands established that the prosecutrix was not a minor when the alleged offence was committed. It also stands established that the accused had not raped her on a false promise of marriage. It also stands established that the accused has neither promised to marry the prosecutrix nor raped her on a false pretext of marriage. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. Sessions Case Number : 15 of 2013.
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163. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped by the accused on a false promise of marriage.
164. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Prayag Sharma.
165. Accordingly, Mr.Prayag Sharma, the accused, is hereby acquitted of the charges for the offence punishable under section 376 read with section 420 of the IPC.
166. It would not be out of place to mention here that today there is so much public outrage and a hue and cry being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
167. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
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168. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
169. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
170. After the expiry of the period of limitation for appeal and on completion of the formalities, the Ahlmad shall consign the file to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 31st day of March, 2014. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
****************************************************************** Sessions Case Number : 15 of 2013.
Unique Case ID Number : 02401R0309652012.
FIR No. 53/2012, Police Station Punjabi Bagh, Under section 376 of the Indian Penal Code.
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