Delhi District Court
State vs . Prashant Kaushal, on 24 April, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.76/14.
Unique Case ID No. 02405R0259222014.
State Vs. Prashant Kaushal,
S/o Sh. S.K. Kaushal,
R/o H.No.121, Sector-15A,
Noida, U.P.
Date of Institution : 11.12.2014.
FIR No.353 dated 01.6.2014.
U/s.376/377/506 IPC.
P.S. Dwarka north.
Date of reserving judgment/Order : 21.4.2015.
Date of pronouncement : 24.4.2015.
JUDGMENT
1. Accused Prashant Kaushal has been chargesheeted by the prosecution for the offences u/s.
2. It is the case of the prosecution that both the prosecutrix namely 'BK' (real name withheld in order to conceal her identity) as well as accused Prashant were working in Bank of America Continuum Solution Pvt. Ltd., Gurgaon. The prosecutrix was a Sr. Tech Associate whereas the accused was a Sr. Manager. Both had worked on a project together whereupon the accused had started chatting with the prosecutrix. He used to force her to accompany him for dinner or outing. The prosecutrix was sick on SC No.76/14. Page 1 of 32 26.12.2011 and hence did not attend the office on that day. Accused made a call to her saying that he would visit her residence at Atulaya Apartment, Sector-18B, Dwarka, New Delhi, after office hours. Accused reached the house of the prosecutrix at about 9 p.m. She was alone there at that time. The accused drew close to her and despite her resistance committed forcible sexual intercourse with her. She started weeping. The accused admitted his guilt and told her that he would marry her. Thereafter, accused kept on meeting her and promising to marry her. Accused took her to Ajmer in June, 2012 and they stayed in Hotel Umaid Bhawan, Jaipur, where also accused forced her to consume alcohol and committed forcible sexual intercourse with her. Thereafter the accused continued to force her to consume alcohol whereupon he used to have forcible sexual intercourse as well as unnatural sex with her. The accused also used to inflict mental torture upon her. On account of harassment from the accused, prosecutrix sought transfer to Hyderabad. The accused started visiting Hyderabad also on the excuse of business trip. He used to stay there in the flat of the prosecutrix and used to have forcible sexual intercourse with her. He had also given an engagement ring to her. The prosecutrix returned to Delhi in April, 2013 and took up job in another company i.e. M/s. RBS. The accused started following her and took her to Shimla on 20.6.2013 where they stayed in Hotel Quality Inn till 23.6.2013. The accused had forcible relation with her during that period. The accused then again took her to Neemrana on 14.2.2014 where they stayed in Hotel Ramada and there also he engaged in physical relations with her. The accused then took her to Nainital where they stayed in Mountain Quail Hotel from 17.4.2014 to 20.4.2014. The accused threatened her SC No.76/14. Page 2 of 32 there and committed forcible sexual intercourse as well as unnatural sex with her. Accused had been representing her to be his wife in these hotels. The accused introduced her to his parents in September, 2013, for the marriage talks. He told his parents to help him in getting divorce from his wife as he wanted to marry the prosecutrix. His parents expressed willingness for his marriage with the prosecutrix and told the prosecutrix not to marry any other person till the divorce of the accused from his wife is finalized. When the prosecutrix came to know that the accused is already married, she showed hesitation for the marriage but the accused assured her that he would obtain divorce from his wife. The prosecutrix then agreed for the marriage. However, the accused neither obtained divorce from his wife nor initiated any steps for marrying the prosecutrix. When the prosecutrix refused to meet him, he started beating her and abusing her. He threatened her that he would ruin her life and would not allow her to marry anybody else. He also threatened her that he would show her intimate pictures to her parents.
3. It is further the case of the prosecution that the prosecutrix had appeared in the police station on 01.6.2014 with the aforesaid complaint of her rape and unnatural sex. Her statement was recorded by SI Manju Chahar, who prepared rukka and got the FIR registered. The investigation was then entrusted to Inspector Raj Kumari. She got the prosecutrix medically examined in DDU Hospital and also got her counselled by a counsellor from NGO. The statement u/s.164 Cr.PC of the prosecutrix was got recorded on 02.6.2014. The investigating officer recorded the statement of all the material witnesses u/s.161 Cr.PC. The accused SC No.76/14. Page 3 of 32 Prashant had been granted anticipatory bail and accordingly was formally arrested on 26.7.2014. The record of the hotels where the prosecutrix and the accused had stayed, was verified by the IO. She also collected requisite documents regarding employment of prosecutrix and accused in Bank of America Continuum Salution Pvt. Ltd.
4. After completion of the investigation, IO prepared the Charge Sheet and submitted the same to the concerned Ld. M.M.
5. Upon committal of the case to the court of Sessions, Charges u/s.376 IPC, u/s.377 IPC, u/s.328 IPC and u/s.506 IPC were framed against the accused on 05.1.2015. The accused abjured his guilt and hence trial was held.
6. At trial, the prosecution examined 11 witnesses to establish the guilt of the accused. The accused was examined u/s. 313 Cr.PC on 06.4.2015 wherein he denied the prosecution case. However, he admitted that he was posted as Manager in ITS Department of M/s. B.A. Continuum Salution Pvt. Ltd. in the year 2010. He also admitted that his acquaintance started with the prosecutrix in the year 2011 and stated that she had requested him to help her in completing course assignment of MBA which she was doing part time. He admitted that he had accompanied the prosecutrix to Ajmer Sharif in June, 2012. He also admitted that the prosecutrix took a new responsibility in the same organization and was then posted at the office of the company in Hyderabad. He admitted that he had gone to Hyderabad for official work in July, 2012, but denied that he shared the same room in the hotel SC No.76/14. Page 4 of 32 with the prosecutrix and tried to come close to her on the pretext of marriage. He admitted that he had again gone to Hyderabad in August, 2012, at the request of the prosecutrix but denied that he proposed her for marriage or gave engagement ring to her. He stated that he had accompanied the prosecutrix to Shimla in June, 2013 at her request. He admitted that he used to visit the residence of prosecutrix's brother at Noida and added that it was at her request. He admitted that he alongwith prosecutrix had stayed in Hotel Mountain Quail Lodge, Naintial, from 18.4.2014 to 20.4.2014. He also admitted that he alongwith prosecutrix had stayed in Hotel Ramada, Neemrana, Jaipur, for two nights for 14.2.2014 and 15.2.2014. He also admitted that he alongwith prosecutrix stayed in Hotel Umaid Bhawan, Jaipur, from 22.6.2012 to 24.6.2012. He denied that he had committed sexual intercourse or unnatural sex or oral sex with the prosecutrix at any point of time. He stated that the prosecutrix was only his good friend. He stated that the prosecutrix had never expressed her intention to marry him and he too had never any intention to marry her. He reiterated that the prosecutrix has filed a false complaint against him. The accused chose not to lead any evidence in his defence.
7. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire documentary as well as oral evidence on record.
8. Ld. APP submitted that the testimony of the prosecutrix is consistent with her statements recorded during the course of investigation and there appears no reason to disbelieve her version. She submitted that the prosecutrix appears to be a SC No.76/14. Page 5 of 32 truthful and trustworthy witness, who has been exploited sexually as well as emotionally by the accused continuously since December, 2011. She submitted that the accused raped the prosecutrix for the first time at her residence on 26.12.2011 and thereafter continued to have physical relations as well as unnatural sex with her forcibly and after forcing her to consume alcohol. She further argued that the accused has taken different stands at different times in this case which reveal that he is in fact the culprit and is making strenuous efforts to build up a good defence. She submitted that during the trial before this court, the accused has taken the defence that he never indulged in any kind of sexual relations with the prosecutrix whereas in the anticipatory bail application filed in the High Court, his stand has been that the sexual relations between him and the prosecutrix were consensual. She submitted that the conduct of the accused makes it evident that his only object in starting friendship with the prosecutrix was to satiate his sexual lust and he had no intention to divorce his wife and to marry the prosecutrix. She further submitted that the conversation between the prosecutrix and the father as well as sister of the accused contained in audio CD Ex.PW2/F clearly demonstrates that the parents of the accused were aware that the accused has sexually exploited her and ditched her and they had tried to prevail upon the prosecutrix to withdraw her complaint. She argued that the accused is liable to be convicted of all the offences with which he has been charged.
9. On the other hand, Ld. Counsel for the accused maintained that the accused is innocent and has been falsely implicated by the prosecutrix in this case. He reiterated that the SC No.76/14. Page 6 of 32 accused had never engaged in any kind of sexual relations with the prosecutrix and the prosecutrix has filed a false complaint against him. He argued that though the prosecutrix claimed that she was sick on 26.12.2011 and did not attend the office on that day but the office record shows that she was present in the office on that day and when she realized that she has been caught on the wrong foot, she then made an attempt to come out of the same by deposing that she does not remember exactly whether the incident took place on 26.12.2011 or 29.12.2011. He submitted that the contradictory statements given by the prosecutrix in this regard demonstrate that no such incident had taken place on that day. He further argued that the evidence on record would show that no promise of marriage was made by the accused to the prosecutrix and the prosecutrix had been in friendship with him knowing fully well that the accused is already married. He submitted that the audio CD and printouts of E-mails produced by the prosecutrix during the course of her testimony are forged and fabricated and for that reason, these were not handed over to the IO during the course of investigation. According to the Ld. Counsel, there are various discrepancies and inconsistencies in the version of the prosecutrix which make her version highly improbable and unbelievable. He submitted that prosecutrix being an educated and employed lady was not so numb as to fall prey to the forcible sexual relations with the accused so many times and would not complain to the Workplace Harassment Cell in the office. He also argued that prosecutrix has herself admitted in cross examination that she had received a marriage proposal for one Mr. Malik but she asked him to contact her parents. However, she didn't ask accused to contact her SC No.76/14. Page 7 of 32 parents when he assured her of marrying her which demonstrates that no such promise of marriage was made by the accused to the prosecutrix.
10. Ld. Counsel further argued that Ex.PW3/C, which is the reply submitted to the IO on behalf of M/s. B.A. Continuum India Pvt. Ltd. to the notice u/s.91 Cr.PC, shows that the prosecutrix and the accused were part of different teams, reporting to different Managers and did not work together in business related project in the year 2011. He submits that therefore there was no occasion for the accused to develop intimacy with the prosecutrix and the very foundation of the prosecution case gets shattered. He further argued that the said document Ex.PW3/C further shows that the prosecutrix did not seek a new responsibility at Hyderabad on her own but was relocated to Hyderabad by the company as her role had become redundant at Delhi and in a way it was a compulsive transfer to Hyderabad and not her voluntary decision. He submitted that the prosecutrix has been telling lies regarding every circumstances in order to gain sympathy of this court and to support false allegations levelled by her against the accused. He vehemently submitted that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and therefore, the accused is liable to be acquitted.
11. I have considered the submissions made on behalf of both the parties.
12. It would be appropriate to note briefly the deposition of various witnesses examined by the prosecution.
SC No.76/14. Page 8 of 3213. PW1 was the Duty Officer in P.S. Dwarka North on 01.6.2014 and had registered FIR Ex.PW1/A on the basis of rukka handed over to him by WSI Manju Chahar. He proved his endorsement on the rukka as Ex.PW1/B.
14. The prosecutrix has been examined as PW2. Her deposition being a detailed one, would be discussed at the relevant places in the judgment.
15. PW3 is Sh. Sanjay Kumar Dass, Vice President (HR), B.A. Continuum India Pvt. Ltd., Gurgaon. He deposed that both the accused as well as the prosecutrix were the employees of their company but the prosecutrix left with effect from 29.3.2013. He stated that as per the company policy, both the accused as well as prosecutrix were provided official E-mail IDs as [email protected] and <Name Redacted>@ bankofamerica.com respectively. He had brought the printouts of E-mails and E-mail chats exchanged between the accused and the prosecutrix through official E-mail IDs and proved the same as Ex.PW3/A (colly) alongwith certificate u/s.65B of the Evidence Act as Ex.PW3/B. He further deposed that their company had received a notice u/s.91 Cr.PC from the investigating officer during the course of investigation of this case and they had responded to the queries of the Investigating Officer vide reply dated 22.8.2014 Ex.PW3/C. In the cross examination, he admitted that the prosecutrix was not to report to the accused during her tenure in their office and was working under some other Manager. He also deposed that they have a Workplace Harassment Cell in their office where employees can complaint about any kind of SC No.76/14. Page 9 of 32 harassment suffered in the office and the prosecutrix had not submitted any such complaint to the said Cell.
16. PW4 is the Front Office Manager in Hotel Quality Inn, Himdev, Shimla and produced the record regarding stay of the prosecutrix as well as accused in their hotel from 20.6.2013 to 23.6.2013. He deposed that at the time of check out, a bill in the amount of Rs.2,106/- was raised in the name of accused Prashant who made its payment through Credit Card. In the cross examination, he deposed that they did not receive any complaint from the accused or his companion during their stay in the hotel.
17. PW5 is Sh. Deepak Arora. He deposed that the prosecutrix 'BK' and her brother Arif Khan were residing as tenants in Flat No.422, Atulaya Apartment, Dwarka, from 01.7.2010 till 03.9.2012 and proved the registered Lease Agreement executed by him and his wife jointly with the prosecutrix and her brother as Ex.PW5/A and Ex.PW5/B.
18. PW6 is Ms. Bhawana Anand, the owner of Hotel Mountain Quail Lodge, Pangot, District Nainital, Uttrakhand. She proved the record pertaining to the stay of the accused alongwith one more adult in their hotel from 18.4.2014 to 20.4.2014. In the cross examination, she stated that they do not serve liquor to the guests staying in their cottage but the guests can consume liquor if they carry on their own. She stated that they did not receive any complaint from the accused or his companion during their stay in their Cottage.
SC No.76/14. Page 10 of 3219. PW7 Sh. Anil Sharma is the HR Manager in Hotel Ramada, Neemrana, Jaipur. He proved the record of the hotel regarding stay of accused and prosecutrix for about nights from 14.2.2014 to 16.2.2014. He deposed that no complaint was received by any hotel staff from the accused or the prosecutrix.
20. PW8 is Sh. Karan Rathore, Manager of Hotel Umaid Bhawan, Jaipur. He proved the record of their hotel regarding stay of accused Prashant alongwith one female from 22.6.2012 to 24.6.2012.
21. PW9 is Inspector Raj Kumari. She was the final Investigating Officer of the case and had got records from the aforesaid hotels collected through a Constable. She also obtained records regarding internet chats between the accused and the prosecutrix from the company where they were employed. She had prepared the Charge Sheet in this case.
22. PW10 is SI Manju Chahar, who had recorded the statement Ex.PW2/A of the prosecutrix, prepared rukka Ex.PW10/A and got the FIR registered. She had taken the prosecutrix to DDU Hospital for medical examination. She also got the statement u/s. 164 Cr.PC of the prosecutrix recorded. She had seized the copy of passport and rent agreement of the prosecutrix. She formally arrested the accused on 26.7.2014 as he had been granted anticipatory bail by the High Court.
23. PW11 is Ms. Manu Vedwan, Metropolitan Magistrate, who had recorded the statement u/s.164 Cr.PC Ex.PW2/B of the SC No.76/14. Page 11 of 32 prosecutrix. She proved her certificate annexed to the said statement as Ex.PW11/A.
24. As per the prosecution case, the accused raped the prosecutrix for the first time on 26.12.2011 at her residence in Atulaya Apartment and thereafter continued to exploit her sexually as well as emotionally by promising and assuring her that he would marry her. It is also the case of the prosecution that the accused had told the prosecutrix that he has fallen apart from his wife and has initiated divorce proceedings but it came to be known later on that no such divorce proceedings had been initiated by him and he had been deceiving the prosecutrix all throughout in this regard as he never had any intention to marry her. He only intended to satiate his sexual lust upon the prosecutrix and had been forcing the prosecutrix to engage in sexual intercourse, anal sex as well as oral sex with him by inducing the belief in her that he is going to get divorced from his wife and would marry her at any cost.
25. The prosecutrix has mentioned the incident dated 26.12.2011 in the FIR Ex.PW2/A as under :
"I had not gone to the office on 26.12.2011 as I was not feeling well. Prashant called me and told me that he would come to my Flat no.422, Atulaya Apartment, Sector-18B, Dwarka, after office hours. Prashant came to my house at about 9 p.m. when I was present alone there. He started coming close to me and despite my refusal, he had physical relations with me forcibly. I SC No.76/14. Page 12 of 32 started weeping and he told that he has committed a mistake. He further stated that he would marry me. I asked him to leave my house. Thereafter, he continued to beat me and give me false assurance that he would marry me."
26. She has stated this incident in her statement u/s.164 Cr.PC Ex.PW2/B as under :
"On 26.12.2011 when I was present alone at my residence at Dwarka, I received his call. I told him that I am not feeling well. He reached my house and had forcible sexual intercourse with me. He did not stop despite my resistance. Then he apologized and stated that it does not matter. I started weeping and he left. Thereafter, I received his call saying that he has met with a minor accident and requested me to permit him to come to my house. He came to my house and started weeping. He offered apology saying that he has committed wrong with his wife also. Thereafter I snapped all my relations with him."
27. In her deposition before this court, she has not mentioned the date of said incident. She has deposed that one day in the last week of December, 2011, accused came to my previous residence i.e. Flat No.422, Atulaya Apartment, Sector-18B, Dwarka, where she was present alone at the time. Finding her alone in the flat, accused started forcing himself upon her and did SC No.76/14. Page 13 of 32 not stop despite her resistance. He committed sexual intercourse with her forcibly and against her consent. When she started weeping after the said act, he left the spot. Immediately after about five minutes, he called her up saying that he has met with a minor accident and pleaded with her to allow him to come to her flat again. He reached her flat again and started pacifying her that she should not report the matter to anybody and not to talk to anybody about it as it would spoil his career. He then assured her that he would marry her. He apologized again and left.
28. I do not see any material inconsistency between the above noted three statements of the prosecutrix regarding the incident dated 26.12.2011. There is nothing in her cross examination also which would indicate that the version of the prosecutrix regarding the said incident is not trustworthy or that it is highly improbable that such an incident would have occurred. It is no longer in dispute that the accused and the prosecutrix had become friends in the year 2011 while working together in B.A. Continuum Saluation India Pvt. Ltd. Therefore the accused was not a stranger to the prosecutrix and his visit to the house of the prosecutrix on 26.12.2011 does not appear to be improbable.
29. As noted herein-above, the prosecutrix has not mentioned in her deposition before this court that the said rape incident took place on 26.12.2011. She has deposed that it took place one day in the last week of December, 2011. It was argued by the Ld. Counsel for the accused that when the prosecutrix mentioned the date of rape incident as 26.12.2011 in her statement to police Ex.PW2/A and statement to the Ld. M.M. SC No.76/14. Page 14 of 32 Ex.PW2/B, what made her to forget the date while deposing before this court. He tried to explain the conduct of the prosecutrix while submitting that the prosecutrix in her statement recorded during the course of investigation mentioned that she did not attend her office on 26.12.2011 as she was sick but when the IO received reply Ex.PW3/C from M/s. B.A. Continuum India Pvt. Ltd. to the notice u/s.91 Cr.PC wherein it was mentioned that the prosecutrix had attended office on 26.12.2011, the prosecutrix realized that the falsehood of her statement has been revealed and for this reason she avoided mentioning the exact date of rape of incident in her testimony before this court. With regard to the same, it may be noted here that the prosecutrix has stated in her cross examination that she was not sure whether the rape incident took place on 26.12.2011 or on 29.12.2011 and hence she did not mention the exact date before this court. Even otherwise also, it was not necessary for the prosecutrix to remember the said date as her intimacy with the accused had strengthened in the year 2012 and they had started visiting various places and staying in various hotels together, which fact is not denied by the accused. There was no reason for the prosecutrix to feel that the accused would ditch her and as further events unfolded in her life, she must have forgotten the date of the said incident.
30. Even otherwise also, whether or not the prosecutrix had attended her office on 26.12.2011 is of least importance as the accused had visited her house on that day at 9 p.m. i.e. much beyond the office hours.
31. Ld. Counsel for the accused further argued that the SC No.76/14. Page 15 of 32 rape incident dated 26.12.2011 cannot be believed as the prosecutrix neither made a call at telephone no.100 nor filed a complaint against the accused in the police station and also did not apprise her brother about the same, who was staying with her. The argument has no force at all for the reason that the prosecutrix has mentioned in each of her statements including her deposition before this court that soon after the incident, the accused realized his mistake, offered apology and assured her that he would marry her. Further, the prosecutrix has deposed in her cross examination that she did not lodge a complaint against the accused after 26.12.2011 as she had got scared and accused had promised to marry her. She also apprehended that she may lose her job and would get humiliated in the society. In view of the facts and circumstances on record, the prosecutrix cannot be blamed for not reporting the incident to police as she remained under the belief that the accused would marry her.
32. The prosecution has therefore established beyond doubt the fact that the accused had committed rape upon the prosecutrix at her house on 26.12.2011.
33. Here I think it necessary to reproduce the remaining portion of the testimony of the prosecutrix which is as under:
"After this incident, the accused started persuading me for marriage saying that his relations with his wife are not cordial and they have been living separately and he would get divorced from his wife within six months. He again expressed his intentions to marry me. I told him to first get divorced from his wife and then talk to me regarding the marriage.SC No.76/14. Page 16 of 32
I cleared PMP (Project Management Professional) exams in June, 2012. Upon clearing the said exams, I wished to visit Dargah Sharif in Ajmer. The accused showed his willingness to accompany me to Ajmer saying that we should start a new life with the blessing of God. Accordingly, he accompanied me to Ajmer Sharif in June, 2012. We stayed in Hotel Umed Bhawan in Jaipur. During the night, he compelled me to consume alcohol, upon consuming which I felt intoxicated and he again committed sexual intercourse with me against my consent. Seeing my resistance to the acts of sexual intercourse, he started discussing about the status of his divorce and told me that the divorce proceedings would take a long time and my resistance to the sexual relations with him would bring a gap and that he cannot leave me.
After a few days, accused told me about the pregnancy of his wife. I asked him to reconcile with his wife, to which he stated that he is not sure whether the child in the womb of his wife is fathered by him or not. I later on came to know that he had not even filed the petition for divorce at all, as he had stated to me earlier. To maintain a distance from the accused, I took a new responsibility in the same organization and I was posted at the office of the company in Hyderabad. I shifted to Hyderabad in July, 2012. during same month, accused also came to Hyderabad for some official work and stayed in the same hotel where I was putting up i.e. Red Fox Hotel. He again tried to come close to me on the pretext of marriage but I thwarted his advancements.
The accused again came to Hyderabad in August, 2012 and met me. He proposed me for marriage by giving an engagement ring to me. The accused kept on exploiting me emotionally as well sexually. When I did not give my consent for sexual intercourse with him, he used to masturbate in front of me. He also forced me to let him drink my urine. He used to force me to urinate upon his face. He also had anal sex with me on several occasions despite my resistance and against my consent.
I joined RBS (Royal Bank of Scotland), Gurgaon, in April, 2013 and started living with my younger SC No.76/14. Page 17 of 32 brother at Gurgaon. The accused came to know about the same and again started roaming about around me. He again started assuring me that he loves me and would marry me. However, I maintained distance with him. The accused again approached me for marriage in June, 2013 and told me that he has now filed a petition for divorce against his wife. He planned a trip to Shimla alongwith me. Accordingly, we visited Shimla in the same month i.e. June, 2013 where he again intoxicated me by compelling me to consume alcohol and again had sexual intercourse with me forcibly and against my consent. When I resisted, he told me that if I do not believe his intentions to marry me, I should accompany him to a temple where he would marry me.
Thereafter he used to tell me that all the steps required to be taken for divorce between himself and his wife have been completed and only certain formalities have to be fulfilled. He used to tell me that he is ready and willing to marry me. When I used to ask him to show me the divorce papers, he avoided on one pretext or the other.
I met the parents of the accused in September, 2013 and they seemed to be supportive of the relations of accused with me. They told me that Prashant is likely to get divorced from his wife and thereafter I can marry him. They also told me that Prashant's wife is stalling and is not cooperating with him. His father asked me to be in live-in relationship with Prashant which I refused. His father requested me to remain single till the divorce proceedings of Prashant are finalized and he is able to marry me. After the assurance of Prashant's parents, I was convinced that he is going to marry me after he obtains divorce from his wife. Thereafter I accompanied the accused to Neemrana on 14th February, 2014 and to Nainital in 17th April, 2014. In Neemrana we stayed in Hotel Ramada and in Naintal, we stayed in Hotel Montain Quail. At both the places, accused had forcible sexual intercourse with me. While coming back from Neemrana, he gave me an i-pill to avoid pregnancy. At both the places, he had oral sex as well as anal sex with me forcibly.SC No.76/14. Page 18 of 32
While in Delhi, the accused used to tell me to give him oral sex in his car. Since I was not comfortable in doing the same, he used to force me to consume alcohol so as to intoxicate me and then in the state of intoxication, he used to force me to give him oral sex. Accordingly, I had given oral sex to him several times in his car and he also used to force me to swallow his semen.
Seeing no progress regarding the divorce between Prashant and his wife, I asked him that I would meet his wife to know what was happening. However, at that juncture, Prashant told me that in fact, he had not initiated any divorce proceedings at all. When I told Prashant that I would apprise his wife about his sexual relations with me, he threatened me that if I did so, he would spoil my social image, so that I would never get married in my life.
The accused also abused me physically in the basement of our office building in mid of March, 2014. he also visited the residence of my brother at Noida and spoke foul about me in order to create pressure upon me so that I would exit from his life silently.
Thus I realized that the accused had been sexually exploiting me to the knowledge of his parents and since beginning his intention was not to marry me and he never intended to divorce his wife. He has exploited me sexually as well as emotionally on the pretext of marrying me. He always used to refer me as his wife amongst unknown people. However, when I asked our common friend Manish about the same, he told me that nobody knows that accused is going to marry me. I was all throughout under the conception that accused loves me, intends to marry me and has initiated proceedings for divorce from his wife.
Feeling cheated and deceived by the accused Prashant, I contacted National Commission for Women in May, 2014 and they advised me to lodge a complaint in the police station. Accordingly, I visited P.S. Dwarka North on 31.5.2014. My statement was recorded in the police station which is Ex.PW2/A bearing my signature at point A. The FIR was registered during the same night. From the police station, I was taken to DDU Hospital during the night SC No.76/14. Page 19 of 32 itself for medical examination where I was examined by a lady Doctor. From hospital, I was brought back to the police station and then I returned home."
34. She also proved her statement u/s.164 Cr.PC as Ex.PW2/B. She further deposed that one day in the month of June, 2014 after she had lodged the complaint in the police station against the accused, accused's father Sh. S.K. Kaushal and sister Ms. Rashmi Kaushal had come to her residence in Gurgaon saying that they were not able to figure out how the divorce between the accused and his wife would be obtained. They further told her that the accused would convert to Islam which would be a ground for his divorce and then he can marry her. Accused's father also told her that being a father, it is his responsibility to rectify the mistakes of his son i.e. the accused. Accused's sister also admitted before her that her brother Prashant has done wrong with her. She stated that she recorded the entire version between herself and accused's father and sister and had handed over the CD containing the said version to the IO.
35. The aforesaid CD handed over by the prosecutrix to the Investigating Officer was found to be in the police file. The said audio CD alongwith its seizure memo dated 02.6.2014 and the copies of complaint dated 07.6.2014 and 30.6.2014 submitted by the prosecutrix in the police station were taken on record on 03.2.2015 pursuant to an application filed in this regard by the Ld. APP.
36. The prosecutrix in her further testimony recorded on 03.2.2015 proved the said CD as Ex.PW2/F and her complaints SC No.76/14. Page 20 of 32 dated 07.6.2014 and 30.6.2014 as Ex.PW2/E, Ex.PW2/G and Ex.PW2/I.
37. It is manifest from the testimony of the prosecutrix that the accused persuaded her not to lodge any complaint regarding the rape incident dated 26.12.2011 by assuring her that he would marry her. He was married at that time but could not conceal the factum of his marriage from the prosecutrix and gained her sympathy by telling her that he has strained relations with his wife, is living separately from his wife and would get divorced from his wife within six months. The evidence on record shows that the prosecutrix and the accused visited Ajmer together in June, 2012 and stayed in Hotel Umaid Bhawan, Jaipur, from 22.6.2012 to 24.6.2012. They again visited Jaipur in February, 2014 where they stayed in Hotel Ramada, Neemrana, for two nights from 14.2.2014 to 15.2.2014. They again visited Nainital together in April, 2014 where they stayed in Hotel Mountain Quail Lodge from 18.4.2014 to 20.4.2014. It may be noted here that the accused in his examination u/s.313 Cr.PC has admitted having visited the aforesaid places alongwith the prosecutrix and having stayed there in the aforesaid hotels alongwith prosecutrix. It is manifest from the testimony of the prosecutrix that the prosecutrix used to enjoy the company of the accused only for the reason that he had promised and assured her that he would marry her after divorcing his wife.
38. The prosecutrix has reiterated in her cross examination that the accused had been telling her that he has filed a petition for divorce against his wife and she came to know SC No.76/14. Page 21 of 32 for the first time in September, 2013, when she met accused's parents, that no such divorce petition has been filed by the accused. She has also reiterated that after the incident dated 26.12.2011, she tried to maintain only professional relationship with the accused but it again turned into intimate one in January or February, 2012 when the accused told her that he has filed divorce petition against his wife.
39. The Ld. Counsel for the accused has maintained throughout in his arguments that the accused and the prosecutrix were only close friends and nothing more than that. He submitted that there has been no physical relations of any kind between the two at any point of time. The conduct of the accused in visiting various places out of Delhi alongwith the prosecutrix and spending nights with her in various hotels in one and the same room negate the submissions of the Ld. Counsel. There could have been no other reason for the accused to take the prosecutrix to various places out of Delhi and to spend nights with her in the same room in various hotels, than to satiate his sexual lust. The manner in which the prosecutrix and the accused have conducted with each other during all this period, nowhere indicates that they were only good friends and did not have any intimate relations with each other. Suggestions had been put to the prosecutrix in her cross examination by the Ld. Counsel for the accused that she had sent her various photographs to the accused through E-mail which suggestions were admitted by the prosecutrix. These E-mails are Ex.PW2/D3, Ex.PW2/D6, Ex.PW2/D7 (colly) whereas the photographs are Ex.PW2/D4 and Ex.PW2/D5. The sending of these photographs in various poses by the prosecutrix to the accused SC No.76/14. Page 22 of 32 too indicate that there was something more than mere friendship between them.
40. The prosecutrix has very specifically deposed that the accused was having physical relations, unnatural sex and oral sex with her during the years 2012 and 2013 forcibly as well as on the pretext of marriage. I see no reason from the material on record to disbelieve her version in this regard. Nothing has been brought out in her cross examination which may indicate that she is not a trustworthy or reliable witness. She has reiterated in her cross examination also that she may have engaged in oral sex with the accused in intoxicated state in the car three or four times but she did not lodge the complaint against the accused on those occasions as accused used to tell her that he is going to marry her. She has deposed in her examination in chief that since she was not comfortable in giving oral sex to the accused in the car, he used to force her to consume alcohol so as to intoxicate her and then in the state of intoxication he used to force her to give him oral sex and also used to force her to swallow his semen. She has deposed that the accused had unnatural sex with her on several occasions despite her resistance and against her consent.
41. However, I feel in agreement that the submissions of the Ld. Counsel for the accused that the instances of physical relations between the accused and the prosecutrix could not have been forcible all the time and if it was forcible for the first time, the prosecutrix would not have accompanied him again out of Delhi to spend nights with him. It does appear that the prosecutrix was having sexual encounters with the accused voluntary but SC No.76/14. Page 23 of 32 having belief in her mind that the accused has filed petition for divorce against his wife and is going to marry her at any cost. Therefore, the sexual relations between the prosecutrix and the accused, though being consensual, the consent of the prosecutrix to the same cannot be termed as free and voluntary for the reason that the same was induced by the accused by falsely representing to her that he is obtaining divorce from his wife very shortly and is going to marry her. Therefore the acts of sexual intercourse between the prosecutrix and the accused tentamount to offence of rape as defined u/s.375 of IPC. The accused also used to force her to consume alcohol before engaging in sex with her in order to ensure that she does not offer much resistance and he gets more pleasure and satisfaction from it. Therefore the consent of the prosecutrix to the sexual intercourse with the accused is also hit by Clause 'fifthly' of Section 375 of Indian Penal Code.
42. The consent is immaterial so far as the carnal intercourse against the order of nature between a man and a woman is concerned and therefore, every act of unnatural sex committed by the accused with the prosecutrix is an offence u/s. 377 of IPC.
43. As already noted herein-above, the accused has totally denied during the trial of this case that he had any sexual relations with the prosecutrix. However, in the anticipatory bail application filed in the High Court, he has stated that the physical relations between him and the prosecutrix were with free will and volition of the prosecutrix. It would be pertinent to reproduce here paras 6 & 7 of the said bail application no.1508/2014 :
SC No.76/14. Page 24 of 326. That with efflux of time, the Applicant and the Complainant developed a relationship which was edificed on free will and volition, with full knowledge of their past and the attending circumstances enwombing their respective lives.
7. That gradually the Complainant became over-
possessive of the Applicant and would exhibit patterns of vacillating behaviour ranging from desire for commitment to detachment coupled with lack of interest, often leaving the present Applicant perplexed and riddled about this relationship. It is pertinent to mention that sometimes the complainant would pressurize the Applicant to make their relationship public in the eyes of society and at other instances, she would threaten to walk out of it citing that her needs could be met by someone else as well."
44. It would also be apposite to reproduce here the Ground-V contained in the aforesaid bail application of the accused:
"(v) BECAUSE of contents of E-mail dated 10.06.2014 sent by the Complainant to the sister of the Applicant professing true love for the Applicant is clearly contrary to allegations levelled in the FIR. A bare perusal of the said E-mail would prima facie evince the intimacy between the Complainant and the Applicant was mutual, willing and consensual. Furthermore, a bare perusal of the said E-mail reveals that the said FIR stems out of frustration and anger of the complainant and she regrets the same, wanting to settle the issue."SC No.76/14. Page 25 of 32
45. Hence the accused, on one hand, states that the sexual relations between him and the prosecutrix were with her consent, when he had to secure favourable bail order from the High Court and on the other hand during the trial of this case totally denied that there had been any kind of sexual relations between him and the prosecutrix at all. The totally contradictory and vascillating stand taken by the accused, as noted herein- above, is an important circumstance which cannot be ignored and which strengthens the prosecution case that there had been instances of sexual relations between her and the accused.
46. I also find it appropriate to reproduce herein the following paragraph from the cross examination of the prosecutrix :
"It is correct that I had made a call to the accused's wife Shubha Mehta in January, 2014. Volunteered : the accused had dialled her number from my mobile number and made me to talk to her to assure me that they are staying separately. It is correct that I had sent an E-mail to Shubha Mehta on 12.5.2014 saying "I need to talk to you about your fucking husband, you is ruining my life."
47. The accused, therefore, himself admits that the prosecutrix had sent the aforesaid E-mail dated 12.5.2014 to his wife. The contents of the E-mail, as reproduced herein above, also demonstrate that the relation between the prosecutrix and the accused was not that of a mere good friendship but they had been sexually involved with each other and it is for this reason that the prosecutrix wanted to tell accused's wife that he has been ruining SC No.76/14. Page 26 of 32 her (prosecutrix's) life. Had it been a case of mere friendship, there was no reason or occasion for the prosecutrix to send such E-mail to the accused's wife.
48. It is true that the prosecutrix has deposed in her cross examination that one Mr. Malik, her office colleague based in U.S.A., had expressed desire to marry her and she told him to talk to her parents in this regard. It was argued by the Ld. Counsel for the accused that when the prosecutrix told Mr. Malik to talk to her parents regarding the marriage proposal, why did not she tell the accused to talk to her parents regarding his marriage proposal. He argued that the fact that the prosecutrix did not ask the accused at any point of time to contact her parents with marriage proposal clearly indicates that no such marriage proposal or assurance was given by the accused to her. The arguments of the Ld. Counsel is without any force. Malik's case was totally different from accused's case. Malik was based in U.S.A. and had expressed desire to marry the prosecutrix through the office communicator. On the other hand, the prosecutrix was sexually and emotionally involved with the accused. She had no option but to accept the marriage proposal of the accused after the rape incident dated 26.12.2011 and therefore had no occasion to tell the accused to contact her parents in this regard.
49. It was also argued by the Ld. Counsel for the accused that since the prosecutrix had not submitted any complaint against the accused to Workplace Harassment Cell set up in the company office, the allegations levelled by her against the accused in the present case cannot be believed. This argument of SC No.76/14. Page 27 of 32 theLd. Counsel has been noted only to be rejected. It was not a case of sexual harassment at workplace. The accused had committed rape upon the prosecutrix for the first time at her house after office hours and thereafter also they were having sexual encounter with each other after office hours at places other than their office. Therefore, there was no reason or occasion for the prosecutrix to file any complaint before the Workplace Harassment Cell.
50. It is not only the accused but his parents also who deceived the prosecutrix and persuaded her to continue sexual relations with their son i.e. accused on the promise that he would marry her after he gets divorced from his wife. In this regard, reference can be profitably made to the following portion of the examination in chief of the prosecutrix :
"I met the parents of the accused in September, 2013 and they seemed to be supportive of the relations of accused with me. They told me that Prashant is likely to get divorced from his wife and thereafter I can marry him. They also told me that Prashant's wife is stalling and is not cooperating with him. His father asked me to be in live-in relationship with Prashant which I refused. His father requested me to remain single till the divorce proceedings of Prashant are finalized and he is able to marry me. After the assurance of Prashant's parents, I was convinced that he is going to marry me after he obtains divorce from his wife. Thereafter I accompanied the accused to Neemrana on 14th February, 2014 and to Nainital in 17th April, 2014. In Neemrana we stayed in Hotel Ramada and in Naintal, we stayed in Hotel Montain Quail. At both the places, accused had forcible sexual intercourse with me. While coming back from Neemrana, he gave me an i-SC No.76/14. Page 28 of 32
pill to avoid pregnancy. At both the places, he had oral sex as well as anal sex with me forcibly."
51. It is evident from the testimony of the prosecutrix that when she realized that the accused is avoiding to show her divorce papers regarding his first marriage, she met his parents in September, 2013, who also assured her that the accused is likely to get divorced from his wife and thereafter he can marry her. Accused's father further requested her to remain single till the divorce proceedings are finalized and the accused is able to marry her. This assurance from the accused's father, a fatherly figure to the prosecutrix also, reinforced the belief in her mind that the accused is likely to get divorce from his wife and would marry her at any cost. It is only thereafter that she visited Neemrana and Nainital alongwith the accused in the months of February, 2014 and April, 2014 respectively where they engaged in physical relations with each other. The prosecutrix has specifically deposed that the accused had oral sex as well as anal sex with her forcibly at both these places during their stay in the hotels there. There is no cross examination of the prosecutrix regarding this portion of her examination in chief and therefore, there is no reason to disbelieve her with regard to the same.
52. The Ld. Counsel for the accused has placed much reliance upon the printouts of E-mails exchanged between the prosecutrix and the accused and the printouts of Chats between them on the official communicator produced and proved by PW3 as Ex.PW3/A. He submitted that these printouts are accompanied by certificate u/s.65B of the Indian Evidence Act Ex.PW3/B and therefore, admissible in evidence and these show that the SC No.76/14. Page 29 of 32 prosecutrix and the accused were only friends and nothing more. PW3 is Sh. Sanjay Kumar Dass, Vice President (HR), B.A. Continuum India Pvt. Ltd., Gurgaon, where the prosecutrix and the accused were working. He produced these printouts during his deposition before this court. The certificate u/s.65B of the Indian Evidence Act Ex.PW3/B is signed by one Deepak Sahni, Vice President (GIS) of the company. I find that the said certificate is not in consonance with the provisions of section 65B of the Indian Evidence Act. Firstly, Mr. Deepak Sahni has not entered the witness box to depose that he had issued the said certificate. Secondly, the certificate nowhere mentions that Mr. Deepak Sahni was responsible and in control of the electronic device, in which the E-mails and Chats had been stored and that he had taken these printouts or that the printouts had been taken under his direction and supervision. Further the certificate also does not identify the electronic device involved in storage of the said data, from which these printouts had been taken. The conditions laid down in sub section 4 of the Section 65B of the Indian Evidence Act are mandatory in nature and in case of their non compliance, no electronic record produced before a court is admissible in evidence. Hence the printouts of E-mails and Chats produced by PW3 are not admissible in evidence and cannot be considered at all.
53. Similarly, the CD Ex.PW2/F proved by the prosecutrix during her testimony, which allegedly contains the conversation between her and the accused's father as well as brother, also is not admissible in evidence. In support of the genuineness of the said CD, the prosecutrix produced her affidavit Ex.PW2/N during SC No.76/14. Page 30 of 32 the course of her testimony recorded on 03.2.2015 purportedly in compliance of the provisions of section 65B of the Indian Evidence Act. It may be noted here that as per the testimony of the prosecutrix herself, she had submitted this audio CD to the investigating officer on 07.6.2014. She did not handover her certificate u/s.65B of the Indian Evidence Act to the investigating officer at that time alongwith CD. The CD remained in the police file till it was taken on record by this court on 03.2.2015 pursuant to an application filed in this regard by the Ld. APP. It is at this juncture, the aforesaid affidavit Ex.PW2/N came to be filed by the prosecutrix. The certificate u/s.65B of the Indian Evidence Act was required to be produced at the time of handing over the CD to the investigating officer. Further the prosecutrix claimed that she had recorded the conversation in her mobile phone which she transmitted to a computer and then prepared the CD. She did not produce the mobile phone, in which she had recorded the conversation, either before the investigating officer or before this court. The details of the computer system into which she had fed the conversation have not been mentioned in the affidavit Ex.PW2/N. Therefore, I am of the opinion that mere filing of affidavit Ex.PW2/N does not tentamount to compliance of the provisions of sub section 4 of Section 65B of Indian Evidence Act. Hence I have no hesitation in holding that the CD Ex.PW2/F is not admissible in evidence and hence cannot be considered.
54. In view of the aforesaid discussion, I hold that the prosecution has succeeded in proving the charges u/s.376 IPC, u/s. 377 IPC and u/s.328 IPC against the accused beyond reasonable doubt. However, there is no evidence on record to show that the SC No.76/14. Page 31 of 32 accused had issued any threat to the prosecutrix at any point of time. Therefore, the Charge u/s.506 IPC fails and the accused is liable to be acquitted of the same.
55. Resultantly, the accused is hereby convicted of the offences u/s.376 IPC, u/s.377 IPC and u/s.328 IPC. However, he is acquitted of the charge u/s.506 IPC.
Announced in open (VIRENDER BHAT)
Court on 24.4.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.76/14. Page 32 of 32