Delhi District Court
State vs Mohd. Sartaj on 25 April, 2018
IN THE COURT OF MS. RENU BHATNAGAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
SC No. : 2284/16
FIR No. : 269/16
PS : Govind Puri
U/s : 417/376, 313 IPC
State Versus Mohd. Sartaj
S/o Sh. Imamuddin
R/o H.No.112B,
Gali No. 15,
Tuglakabad Extension,
New Delhi
Date of Institution : 01.06.2016.
Judgment reserved for orders on : 24.04.2018.
Date of pronouncement : 25.04.2018.
J U D G M E N T
Brief f acts of the c ase:
1.The case of the prosecution is that on 22.03.2016 complainant/prosecutrix (name withheld to keep her identity confidential ) had given her complaint at PS Govind Puri regarding sexual assault/rape upon her by accused Mohd Sartaj. The prosecutrix alleged that accused was her friend since June 2010. Soon they started to love each other. In the month of October 2011, accused Mohd. Sartaj took the prosecutrix in a house at Gali no. 18, Tuglakabad SC No. 2284/16 State Vs Mohd. Sartaj Page No. 1 of 28 Extension and made physical relations with her forcibly, on the false assurance/promise of marriage. Thereafter, also accused continued to make physical relations with the prosecutrix several times. Due to physical relations made by the accused, the prosecutrix became pregnant twice, first, in December 2015 and secondly in February 2016. When the prosecutrix asked him to marry her, the accused became furious and gave her some medicine to consume which she consumed and started bleeding. On 14.02.2016, the accused had made physical relations with the prosecutrix for the last time. He made physical relations with her for five years on the false promise of marriage. She also alleged in her complaint that accused has also threatened her to kill her if she would disclose anything to anyone or makes any complaint to the police. On 22.03.2016 her medical examination was got conducted at AIIMS hospital but no sample was collected as the last episode of sex was on 14.02.2016. Ms. Ruby Sain, Counsellor, NGO Shakti Shalini provided counseling to the prosecutrix in police station. At the instance of prosecutrix, pointing out memo of H. No. 251, Ist Floor, Gali No. 18, Tuglakabad Extn. New Delhi where first episode of sex took place, was prepared. As per prosecutrix claim one person Manoj, who was Sartaj's friend, used to live there on rent and Sartaj had one key of the house. At the time of preparation of pointing out memo, said premises was found locked. Site plan of the house was prepared. Pointing out memo of H.No. RZ SC No. 2284/16 State Vs Mohd. Sartaj Page No. 2 of 28 228A, Ground Floor, Tuglakabad Extn. New Delhi was also prepared at the instance of prosecutrix who had told that Sartaj's friend Manoj used to live on rent and Sartaj had made physical relations with her on many occasions on the promise of marriage in this house also. The premise was found locked and site plan was prepared without scale. Prosecutrix had also produced copy of her date of birth certificate and marksheet of her Govt. Girls Senior Secondary School, Tugalakabad Extn, New Delhi as per which her date of birth is 05.10.1994. Both the copies were seized by the police. On 23.03.2016 statement of prosecutrix under Section 164 Cr.P.C was recorded by the Ld. Metropolitan Magistrate. Statement of witnesses were recorded. On 28.03.2016 accused was arrested and his arrest memo, personal search memo and conviction slip were prepared by SI Nirmala Singh. Accused was medically examined at AIIMS Hospital and his exhibits were taken into possession by the police. No exhibits were sent to FSL, Rohini, Delhi for examination as during prosecutrix examination, no exhibit/sample was collected by the doctor.
2. On 06.04.2016 a supplementary statement of prosecutrix was recorded by IO that before arrest of accused she was going to her working place at about 06.30 AM, one person with covered face stopped her near Don Bosco School, Alaknanda and asked her to withdraw the case. Then again, on 27.03.2016 she received a threatening call on her mobile and she provided one mobile number SC No. 2284/16 State Vs Mohd. Sartaj Page No. 3 of 28 9136695402 from which she had received the call. Her supplementary statement u/s 161 Cr.P.C was recorded.
3. On 07.04.2016 accused was granted bail by the Sessions Court. On 12.04.2016 CAF and CDR in respect of mobile phone number 9136695402 provided by the prosecutrix and prosecutrix mobile phone number 8447550545 were received. As per CAF, mobile SIM No. 91136695402 is registered in the name of Deepak R/o 1255, Lakkarpur, Faridabad, Haryana but the said address could not be located and finally number was located to a PCO in Tuglakabad Extn. New Delhi. On perusal of CDR of both the SIM, it was found that a call was made between the numbers on dated 27.03.2016 at about 14:41: 54 hrs. and call duration was 134 seconds. On dated 22.04.2016 Sh. Prem Nath Ghosh S/o Sh. Sagar Ghosh R/o RZ 50/14, Tuglakabad Extn., Delhi( owner of PCO) was examined who informed that representative/dealer from service provider gave SIM numbers and when the amount got exhausted, they gave another SIM number and took the previous number. SIM number 9136695402 was given to him by the representative of Tata Service Provider and it was active from 13.03.2016 to 18.04.2016. He also informed that he runs a small PCO and does not keep the records of the calls made by the public. His statement was recorded u/s161 Cr.P.C. Accused Mohd. Sartaj and other person Sh. Narender Singh @ Chintu were also examined in respect of prosecutrix claim but they refused the allegations of SC No. 2284/16 State Vs Mohd. Sartaj Page No. 4 of 28 prosecutrix. Prosecutrix had promised to hand over her mobile phone on many occasions but did not do so and stated that water had spilled on her mobile phone and all the data in the phone has been destroyed. She later on stated that she will not hand over her mobile but would provide a cassette (CD) containing the said threat conversation. Several efforts were made to serve notices u/s91 Cr.P.C to the prosecutrix directing her to provide her mobile phone containing the said threatening call but she as well as her family members refused to receive the same. After completion of investigation, chargesheet was filed in the court under Section 376/506 IPC against the accused. Charge:
4. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 11.08.2016 prima facie case was made out against the accused for the offence u/s 417/376 IPC & 313 IPC. The charge was framed to which accused pleaded not guilty and claimed trial.
Prosecution Evidence:
5. To substantiate its allegations against the accused, prosecution examined the following witnesses: Material Witnesses:
6. PW1 prosecutrix had deposed that she came in contact with the accused about four years ago in a gym. Accused had been living in Tuglakabad Extension. Their friendship turned into love. Accused SC No. 2284/16 State Vs Mohd. Sartaj Page No. 5 of 28 promised to marry her. Physical relations developed between them in the year 2015 at Gali no. 17 out of their consent. She had consented for the physical relation for the first time but thereafter, on the second time, the accused established physical relation with her without her consent. Thereafter, the accused told her that his mother is not agreeing for marriage, although, the accused wanted to marry with her. The accused thereafter told her that he wants to have relations with her. She told her parents about her relations with the accused but her parents advised her to stay away from the accused. The accused thereafter met her and told her that he would marry her. Her parents and she went to the accused's office where the parents of the accused had also come. The parents of the accused told them that they would arrange her marriage with some other boy. The accused also told them that he can not go against his parents. Thereafter, she made the complaint Ex.PW1/A. She had shown the place where the accused made physical relations with her. The IO prepared the site plan Ex.PW1/B and Ex.PW1/C and pointing out memo Ex.PW1/B1 and Ex.PW1/C1. She was medically examined in AIIMS hospital on 22.03.2016 and she had also signed the consent form Ex.PW1/D. She had also told the history of incident to the doctor. She had also given photocopy of 10th certificate to the IO which was taken into possession vide seizure memo Ex.PW1/E. Her date of birth is 05.10.1994. Accused was arrested vide arrest memo and personal SC No. 2284/16 State Vs Mohd. Sartaj Page No. 6 of 28 search memo is Ex.PW1/F and Ex.PW1/G. She had also come to the Court and her statement u/s 164 Cr.P.C. was recorded. She had told the Magistrate that the accused had established physical relations with her giving her false promise of marriage. She had correctly identified her statement u/s. 164 Cr.P.C Ex.PW1/H (running into 6 pages). During examination witness resiled from her statement. Ld. Addl. PP has cross examined the witness but nothing incriminating has come out in the cross examination.
7. PW9 W/SI Kala Joshi had deposed that on 22.03.2016, she was posted as SI at P.S Govind Puri. On that day, the prosecutrix came in the police station and gave the complaint Ex. PW1/A. She perused the complaint and discussed the matter with the SHO. She prepared a rukka Ex. PW9/A and got the case registered. The prosecutrix was got medically examined at AIIMS vide MLC Ex. PW 1/D. She was counseled. She recorded the statement of Lady Ct. Kusum Lata. The prosecutrix pointed out the places of incident i.e House No. 251, Gali No.18, TKD Extension vide memo Ex. PW 1/B1 and House No. RZ 228A, Ground Floor, Gali No. 17, TKD extension New Delhi vide memo Ex. PW1/C1. She prepared the site plans Ex. PW 1/B and Ex. PW1/C at the instance of the prosecutrix of both the houses. The prosecutrix produced her birth certificate which she seized vide memo Ex. PW 1/E. As per the certificate, her date of birth was 05.10.1994. She recorded the statement of witnesses. On 23.03.2016, she moved SC No. 2284/16 State Vs Mohd. Sartaj Page No. 7 of 28 an application Ex. PW8/A before the Magistrate for recording the statement of the prosecutrix u/s 164 CrPC. On the same day, her statement was recorded. She collected the copy of the statement. She recorded the statement of mother of the prosecutrix. She also recorded the statement of owners of both the houses i.e the places of incident. The prosecutrix gave to her statement regarding threat extended by some unknown persons to withdraw the case. She collected the CDRs and analyzed the same. The call was made from a PCO but the caller could not be located. She recorded the statement of PCO booth owner. The accused Mohd. Sartaj was arrested by WSI Nirmala since she was on leave. She completed the investigation, prepared the chargesheet and filed the same in the court. The prosecutrix produced her mobile phone on which she received the threatening call which she seized. She sent the mobile phone to FSL since she had alleged that she had recorded the threat.
Formal Witnesses:
8. PW2 Ms. Nisha Sachdeva had deposed that prosecutrix is her younger sister. Her father is a Driver. Her mother used to work as Cook in Kothis. In the month of March 2016, the prosecutrix told her about her relations with the accused Sartaj present. She told her that the accused had committed sexual intercourse with her several times after giving her assurance of marriage. She also told that she had become pregnant two times and accused gave her pills to abort her SC No. 2284/16 State Vs Mohd. Sartaj Page No. 8 of 28 pregnancy. She also told her that now the accused is refusing to marry with her. She also knew that accused and the prosecutrix were friends. She told the entire incident to her mother. She alongwith the prosecutrix and her mother went to the house of the accused at gali no. 15, Tuglakabad Extension, New Delhi to talk to him and his family regarding the marriage of prosecutrix with him. Accused, his parents and his brother met them there. They told the family of the accused about his relation with the prosecutrix and requested them to marry the accused with the prosecutrix. The family of the accused refused to get the accused married with the prosecutrix saying that they are not ready to get their son married with a Hindu girl. The accused also refused to marry the prosecutrix. They also threatened them to do whatever we can. On 22.03.2016, she alongwith the prosecutrix went to the police station where the prosecutrix made complaint against the accused and got registered the case. Police got the prosecutrix medically examined in AIIMS. The accused also threatened the prosecutrix to kill her in case she does not withdraw her complaint. Police recorded her statement.
9. PW4 Sh. Prem Nath Ghosh had deposed that he used to run a PCO at H.No. 43, Gali No. 14, Tuglakabad Extension, New Delhi. There are two telephones number used at his PCO bearing numbers 9136695402 and 9266303920. The person used to come at his PCO for making calls. He does not maintain any record. Police of PS SC No. 2284/16 State Vs Mohd. Sartaj Page No. 9 of 28 Godindpuri met him and recorded his statement.
10. PW5 HC Yadvir had deposed that on 22.03.2015, he was working as Duty Officer in P.S Govind Puri. On that day, his duty hours were from 8 AM to 4PM. At about 12.40 p.m, he received a rukka from SI Kala Joshi upon which he recorded the FIR, the computer generated copy is Ex. 5/A. He made endorsement Ex. PW 5/B on the rukka. After registration of the FIR, he had handed over the original rukka and copy of FIR to SI Kala Joshi for further investigation.
11. PW6 Sh. Rajiv Kumar Ganglani had deposed that he used to work as property dealer. He was the owner of flat no. RZ251/18, upper ground floor, Tuglakabad Extn. New Delhi. About 5 years back, he had given this flat on rent to one Manoj who lived there about 10 - 11 months. He sold out the said flat and purchased another flat on ground floor of RZ228A/17, Tuglakabad Extn., New Delhi. Manoj then shifted in the flat. He lived there for about 45 months and then shifted to somewhere else. He gave his flats on rent to Manoj on the guarantee of accused Sartaj. He know accused Sartaj as he lives in the same vicinity where he lives. The accused told him that he knew Manoj as they both worked together. He never gave my flat on ground floor of RZ228A/17, Tuglakabad Extn., New Delhi to accused Sartaj. In 2016 before Holi, police of PS Govind Puri met him and recorded his statement. During examination witness resiled from his statement.
SC No. 2284/16 State Vs Mohd. Sartaj Page No. 10 of 28 Ld. Addl. PP has cross examined the witness but nothing incriminating has come out in the cross examination.
12. PW7 SI Nirmala had deposed that on 28.03.2016 the investigation was entrusted to her. She arrested the accused vide arrest memo Ex.PW1/F, got conducted his personal search vide memo Ex.PW1/G. She took the accused to AIIMS Hospital for his medical examination where he was medically examined vide MLC Ex.PW3/A. Ct. Uday Bhan collected his exhibits in sealed condition along with sample seal which he handed over to her vide memo Ex.PW7/A. She deposited the exhibits in the Malkhana.
13. PW8 Ms. Manisha Tripathi had deposed that she was posted as MM (NI Act), South East, Saket Courts, New Delhi. On that day, the application Ex. PW8/A for recording the statement of prosecutrix under section 164 Cr P C was assigned to her by Ld. Link MM. On the same day, she recorded the statement of prosecutrix Ex.PW1/H in accordance with law. Prosecutrix had also appended her signature at points A on the said statement. Before recording the said statement of the prosecutrix, she had put certain questions to her to ascertain her voluntariness to make the said statement. The said statement contains true accounts of the statement made by the prosecutrix. She had also appended the certificate to this effect at point C to C on the statement Ex. PW 1/H. After recording the said statement, copy of the statement was supplied to the IO on her request vide application Ex.PW8/A. SC No. 2284/16 State Vs Mohd. Sartaj Page No. 11 of 28 Ahlmad was directed to send the proceedings in a sealed envelope to the concerned Court.
Medical Witnesses:
14. PW3 Dr. Suraj Ohal had deposed that on 28.03.2016, he was posted as Sr. Resident, Department of Forensic at AIIMS hospital, New Delhi. On that day, accused Mohd. Sartaj was brought by police to AIIMS hospital for his medical examination qua his potency to perform sexual intercourse under normal circumstances. He examined him and found nothing to suggest that he was incapable of performing sexual intercourse under normal circumstances. The MLC prepared by him in this regard is Ex.PW3/A. He had also taken blood sample of the accused in gauze, preserved, signed and sealed with the seal of department and handed over the same to the police along with sample seal.
15. PW10 Dr. Varnit had deposed that on 22.03.2016 he medically examined the prosecutrix vide MLC Ex.PW1/D. Prosecutrix gave history of consensual sexual activities with accused multiple times after he promised her for marriage as mentioned in the MLC at point B to B. As per internal examination, hymen was not found intact. Samples were not collected since last episode was on 14.02.2016. Statement of accused and Defence taken by accused:
16. Statement of accused was recorded under Section 313 Cr.P.C wherein accused deposed that he met her in the gym. He and SC No. 2284/16 State Vs Mohd. Sartaj Page No. 12 of 28 prosecutrix became friends in 2013. She used to go to gym where he was trainer. She also joined the gym as trainer. He never promised to marry her. He stated that during the period of their relationship they made physical relation once and that too with her consent in her house. Her parents were not in the house at that time. She herself had called him in her house. Later he came to know that she had relation with another boy Virender @ Veeru. He thereafter stopped talking to her. She called him number of times and even as on date she has been calling him. He did not commit any offence. He deposed that he and his parents never met in his office. He stated that neither he nor his friend or relative threatened her at any time. He stated that he is innocent and falsely implicated in this case. Accused in his defence had produced two witnesses.
17. DW1 Sh. Sanjay Sarkar had deposed that accused used to work as Free Lancer Instructor in his gym in the name of Olympia Gym at S569, GKII about 89 years ago. They then engaged the prosecutrix as female Instructor on pay roll in 2013. He sought help from the accused to train the prosecutrix since she was not much experienced. She learnt the work and started working independently. He do not know if the prosecutrix or the accused knew each other from before.
18. DW2 Mohd. Sartaj had deposed that in the year 2013, he was working as Gym Instructor in a gym at Greater KailashII, New Delhi. The prosecutrix joined the gym as a female Trainer. The prosecutrix SC No. 2284/16 State Vs Mohd. Sartaj Page No. 13 of 28 took training from him for two months since she was not fully trained. Gradually, they became friends. He never made any promise to marry the prosecutrix but she wanted to marry him. He told her that due to our different religion, he will not be able to marry her. They were only the friends. Even after knowing that he is Muslim and not ready to marry her, she remained in touch with him being friend. In 2015, once the prosecutrix called him in her house where they had consensual physical relation. As there were other boyfriends of the prosecutrix, he started making distance from her. The prosecutrix got this case registered falsely against him at the instance of her friend namely Raj in order to pressurize him for marriage. He, his friends or his family members never threatened the prosecutrix. After registration of the case, the prosecutrix called him and forced him to marry her. She told him that she would take back the case if he marries her. On the night intervening 21/22.07.2017, the prosecutrix came to him. We went for roaming in his car. He asked her about this false case. She told him that she got this case registered at the instance of her friend Raj. She further told him that she got this case registered just to let him down. She recorded the conversation between him and the prosecutrix in his mobile phone make HTC Ex.DP1. He got prepared two CDs containing conversations between him and the prosecutrix. The CDs are Ex.DP2 and Ex.DP3. The transcript of CD Ex.DP2 is Ex.DP4 and the transcript of CD Ex.DP3 is Ex.DP5. His certificate u/s 65B of the SC No. 2284/16 State Vs Mohd. Sartaj Page No. 14 of 28 Evidence Act is Ex.DP6. He has been falsely implicated in this case. He never made promise to marry her. They had consensual physical relations only once in her house. Since the prosecutrix wanted to marry him in order to pressurize him, she got this false case registered against him.
19. I have heard the submissions of the Ld. Counsel for accused and the Ld. Addl. PP for the State and perused the record. Conclusion:
20. Before appreciating the facts of this case, it is necessary to know the ingredients of the offence of rape by resorting to the provisions of section 375 read with section 376 IPC. Section 375 IPC provides as under: "375. Rape. A man is said to commit "rape" if he (a) penetrates, his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body or a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions : First. against her will.
Secondly. Without her consent SC No. 2284/16 State Vs Mohd. Sartaj Page No. 15 of 28 Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. With or without her consent, when she is under eighteen years of age.
Seventhly. When she is unable to communicate consent. Explanation 1. For the purpose of this section, "vagina" shall also include labina majora.
Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specified sexual act;
Provided that a woman who does not physically resist to the act of the penetration shall not be the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. A medical procedure or intervention shall not constitute rape.
Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
21. Rape is the act of physically forcing a woman to have sexual intercourse; an act of sexual intercourse i.e. forced upon a woman SC No. 2284/16 State Vs Mohd. Sartaj Page No. 16 of 28 against her will. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. Lett. 130b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the following essentials"
1) Sexual intercourse by a man with woman.
2) The Sexual intercourse must be under circumstances falling under any of the seven clauses in Section 375 IPC.
22. Section 90 of the IPC defines consent. It reads: a consent is not such a consent as it intended b y 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.
23. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance the good and evil on each side. Consent is rape covers states of mind ranging widely from actual desire to reluctant acquiescence. Consent within penal law, defining rape, requires exercise of intelligent based on knowledge of its SC No. 2284/16 State Vs Mohd. Sartaj Page No. 17 of 28 significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to the understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.
24. In the case of Rao Harnarain Singh Sheoji Singh Vs. The State, AIR 1958 P H 123, the High Court while holding the accused liable for the offence of rape has distinguished between the word ' consent' and 'submissions' as shown below: "(1) A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be " consent" as understood in law.
(2) Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.
(3) Submission of her body under the influence of a fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and mere act of submission does not involve consent.
SC No. 2284/16 State Vs Mohd. Sartaj Page No. 18 of 28 (4) Consent of the girl in order to relieve an act, of a criminal character, like rape must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.
(5) A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wants. Consent implies the exercise of a free and untrammeled right to forbid or without what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former."
25. In Sujit Ranjan Vs. State 2011 Law Suit (Del) 601, it was held: "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 SC No. 2284/16 State Vs Mohd. Sartaj Page No. 19 of 28 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."
26. The essence of rape is absence of consent. The consent means intelligent and positive concurrence of woman. A woman is said to consent, only when she freely agrees to submit herself while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under influence of fear or terror or false promise is not consent. If the physical relations are made with consent, that cannot be termed as rape.
27. To prove the offence, prosecutrix has appeared as PW5 and deposed on the lines of her complaint. She has deposed in the court that she came into contact with the accused about 4 years ago in gym and their friendship turned into love. Accused promised to marry her. Physical relations developed between them in the year 2015 at Gali No. 17 out of their consent. She further deposed that she consented SC No. 2284/16 State Vs Mohd. Sartaj Page No. 20 of 28 for physical relations for the first time but thereafter the physical relations were made without her consent by the accused. She also deposed that the accused told her that his mother is not agreeing for marriage although he wanted to marry her. He also told her to have relations with him. As per her deposition, she told her parents about her relations with the accused and her parents advised her to stay away from the accused. Thereafter accused met her and told her to marry him.
28. As per the statement of the prosecutrix she became pregnant in the month of December, 2015 as well as in the month of February, 2015 from the physical relations made by the accused and at both the times the accused gave her pills leading to abortion. As per her statement the last physical relation was made between her and the accused on 14.02.2016. Her case is that on 27.03.2016 she received a phone call on her mobile phone number 8447550545 from mobile phone number 9136695402 whereby she was threatened to take back the case otherwise they would kill her parents and her and throw acid on her. As per the chargesheet despite efforts by the IO, the prosecutrix had not supplied her mobile phone containing the said threatening calls as claimed by her.
29. Since the prosecutrix had resiled from her earlier statement, Ld. Addl. PP for the State sought permission of the court to cross examine her. During the cross examination from the side of Ld. SC No. 2284/16 State Vs Mohd. Sartaj Page No. 21 of 28 Addl. PP for the State prosecutrix admitted that she and the accused became friends in June, 2010. She also admitted that in October, 2010, accused took her to Gali No. 18 and made physical relations with her on the false promise of marriage and thereafter continued to make physical relations with her.
30. During the cross examination from the side of accused she has deposed that her parents had told her to stay away from the accused as the accused would not marry her. She also deposed that when she asked the accused whether he would marry her, he refused to marry the prosecutrix. She further deposed that even thereafter in the year 2013, 2014 and 2015, they used to move around i.e. in restaurants, theaters, coffee shop and for long drives and she had also visited the house of the accused number of times during their friendship. She was also meeting the parents of the accused since 2011 and used to talk to them. As per her statement, her family members knew that she and the accused love each other. She also deposed that after her first relations with the accused, he has stated to her that he would not marry the prosecutrix whereupon she stopped talking to him but he made calls to her number of times. The prosecutrix despite knowing the fact that the accused refused to marry her and even she was asked by her parents to stay away from the accused, she continued to make physical relations with the accused. As per her deposition in the court she did not tell her parents about the physical relations made by the accused by giving her SC No. 2284/16 State Vs Mohd. Sartaj Page No. 22 of 28 promise of marriage. The prosecutrix became pregnant twice from the relation of the accused. The accused had provided abortion pills to her everytime and did not marry her. Prosecutrix is a grown up girl of 22 years and is also educated. She is a working girl. It cannot be believed despite knowing the fact that the accused was refusing to marry her even after his first relation and even after aborting her pregnancy two times, she could not understand that the accused did not want to marry her. Knowing fully well, she continued to indulge in physical relations with the accused till 14.02.2016.
31. In her deposition before the Court, the prosecutrix has tried to put forth that her physical relations with the accused for the first time was with her consent but thereafter it was without her consent. If that would have been the position, she should have taken action to resist the said act of the accused but she did not do so for 6 years and continued to make relations with him. It appears that she continued to willingly consent to have physical intercourse with the accused with whom she was in love and not because he promised to marry her. In these facts, it is difficult to impute knowledge to the accused that she consented in consequence of misconception of a fact arising from his promise. Indulging in physical relationship for 6 years is nothing but promiscuity on her part.
32. In her cross examination, prosecutrix admitted that in the year 2015 accused told her that he had received a proposal of marriage SC No. 2284/16 State Vs Mohd. Sartaj Page No. 23 of 28 from somewhere though the prosecutrix has denied this fact but later on she admitted that she spoke to the parents of the girl who had given proposal of marriage to the accused that accused does not bear a good character, he is alcoholic etc. Hence, it goes to show that the prosecutrix was aware in 2015 that accused was going to perform marriage with other girl but despite knowing this fact she continued to make physical relations with her till 14.02.2016. Prosecutrix has not even informed her sister till March, 2016 that she was having relations with the accused. Moreover, sister of prosecutrix PW2 has specifically deposed that family of the accused refused to get married the accused with the prosecutrix saying that they are not ready to marry the prosecutrix. Hence, it is clear that prosecutrix could have smelt that there might be problem in their marriage due to their difference in their religion.
33. Prosecutrix in her cross examination from the side of accused has specifically given name of the doctor who was being consulted by her after pregnancy. However, she deposed that she does not know the name of the doctor nor know the complete address. She cannot even tell the date and month when she consulted the doctor. As per her statement she came to know about her pregnancy only from the doctor and she did not get any pregnancy test conducted from the doctor. In the absence of any such detail testimony of the prosecutrix that she consulted the doctor or became pregnant becomes doubtful SC No. 2284/16 State Vs Mohd. Sartaj Page No. 24 of 28 however even if it is believed that she became pregnant testimony of the prosecutrix that she was given pills is also not very convincing since she was indulging in physical relations with the accused out of her free will and consent and there is no evidence of administration of pills from the accused.
34. Hence, from the testimony of the prosecutrix it is revealed that she was having love affair with the accused since 2010 and was making physical relation with the accused with her own consent and during this period of 6 years of relationship she continued to be intimate with the accused though the accused did not marry her. The prosecutrix is a quite mature and working girl. It is not believable that she could not understand that the accused was not having any intentions to marry her during the period of this 6 years of relationship with him despite the fact that he stated to her several times that he will not marry her and even her parents were dissuading her. She also knew that due to difference in their religion there could have been problem in their marriage. She had adequate intelligence to understand the implications of making physical before marriage. Period of 6 years is not a small period to understand the intention of the accused whether he would marry her or not. Facts and circumstances show that she was consenting to physical relations with the accused voluntarily and her consent cannot be treated to be in consequence of any misconception of fact and this is nothing but promiscuity on her SC No. 2284/16 State Vs Mohd. Sartaj Page No. 25 of 28 part.
35. In the case of Uday vs. State of Karnataka, 2003 (1) JCC 506, the prosecutrix and the accused were deeply in love. They used to meet often. She went out with the accused to a lonely place at night. The accused had also made promise on more than one occasion to marry her. It was held that in such circumstances, the promise loses all significance particularly when they are overcome with emotions and passions and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well and the prosecutrix had willingly consented to having sexual intercourse with the accused with whom she was deeply in love but not because that he promised to marry but also she desired it. In these circumstances, it would be very difficult to impute to the accused knowledge that the prosecutrix had consented in consequence of a misconception of a fact arising from his promise. The observations made in the case supra have relevance in this case. It was held that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activities, it is an act of promiscuity on her part and not an act induced by misconception of fact.
36. In the case of Rohit Chauhan vs. State NCT of Delhi, 2013, Bail application no. 311/2013 dated 22.05.2013, it was observed:
SC No. 2284/16 State Vs Mohd. Sartaj Page No. 26 of 28 "There may be cases where both persons out of their own will and choice develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship but when the relationship breaks due to one or the other reason, the woman uses the law as a weapon for vengeance and personal vendetta."
37. It was held in the case of Alok Kumar vs State & Anr. in Crl. M. C No. 299/2009, decided on 9 August, 2010 that: 'Livein relationship' is a walkin and walkout relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time. Those, who do not want to enter into this kind of relationship of walkin and walkout, they enter into a relationship of marriage, where the bond between the parties has legal implications and obligations and cannot be broken by either party at will. Thus, people who chose to have 'livein relationship' cannot complain of infidelity or immorality.
38. It was held in the case of Rohit Tiwari Vs. State Crl 928/2015 dated 24.05.2016 that if a fully grown up lady consents to the act of sexual intercourse on a promise to marry and continue to indulge in SC No. 2284/16 State Vs Mohd. Sartaj Page No. 27 of 28 such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of facts.
39. In view of the above discussion it is clear that accused and the prosecutrix were in love with each other and relations between them were consensual without any misconception of fact arising from false promise of marriage.
40. In the light of above discussion it is held that prosecution has failed to prove its case beyond reasonable doubt against the accused. Giving benefit of doubt, accused is acquitted of the offence punishable under Section 417/376 IPC and 313 IPC for which he has been charged.
41. In view of the Section 437A of Cr.P.C., accused is directed to furnish bail bond in a sum of Rs. 30,000/ with one surety of like amount for the period of six months with the condition that he shall appear before the Hon'ble High Court as and when notice be issued in respect of any appeal filed by the state against the judgment within a period of 6 months. Case property be confiscated to the state after expiry of period of revision/appeal, if any. File be consigned to Record Room.
Announced in the open court today i.e. 25.04.2018 ( Renu Bhatnagar) ASJSpl. FTC / SED/Saket Courts New Delhi SC No. 2284/16 State Vs Mohd. Sartaj Page No. 28 of 28