Delhi District Court
State vs Ashok Kumar on 30 April, 2007
IN THE COURT OF SHRI SANJAY SHARMA, ADDITIONAL SESSIONS
JUDGE, KARKARDOOMA COURTS, DELHI.
SC No.150/06
State Versus Ashok Kumar
FIR NO.175/2002
P.S. Pandav Nagar
U/S 376/420/495 IPC
Ashok Kumar S/o Shri Syaldav
R/o S/181, Pandav Nagar , Delhi
AND
Village Baramarpur, PS Khas
District Bhagalpur, Bihar
JUDGMENT :
The case of the prosecution in brief is that in the year 1996-97 the complainant Sunita Gupta and the accused Ashok Kumar were working together in M/S Shakura Co., Surajpur, Noida . Complainant used to reside at Laxmi Nagar and the accused at Pandav Nagar . They used to go to the company office at Noida in a same bus of the company. During the course of their employment they became friendly and on being proposed by the accused, the complainant agreed for marriage with him. Accordingly, sometime in February 1997 they allegedly got married at a temple in Laxmi Nagar . Thereafter the accused took a house on rent at Noida and started residing with the complainant. He also got open a beauty parlour for the complainant. During this period they developed physical relationship. It is alleged that the complainant became pregnant and revealed this fact to the accused. He advised her to abort the child to which she did not agree and thereafter he started neglecting the complainant. Once when the complainant was three months' pregnant, she went to the house of accused and came to know that he was already married with another lady namely Neelam and was having two children . There she had a scuffle with the wife of accused and later on she gave a complaint to the National Women's 1 Commission and thereafter lodged the present case. After completion of investigation , charge sheet was filed against the accused for offences punishable Under Section 376/420/494/495 IPC.
2. After the case was committed to the Court of Sessions and upon considering the material placed on record, a charge was framed against accused for offences punishable under Section 376 IPC r/w Section 420 IPC & Section 495 IPC dated 03.11.2004 to which accused pleaded not guilty & claimed trial.
3. In order to substantiate the charges, the prosecution has examined 11 witnesses in all.
4. PW1 Sunita Gupta was the complainant, who deposed the alleged facts and proved her photographs with the accused as Ex.PW1/A1 & PW1/A2 and also her report with the police as Ex.PW1/B . PW2 Naveen Chand was the priest who allegedly got the complainant & accused married. However, he turned hostile.
5. PW3 SI Jaswant Singh was the IO of the case who deposed about the investigation conducted by him and proved the arrest memo, personal search memo and disclosure statement of the accused as Ex.PW3/A to PW3/C respectively, pointing out memo prepared at the instance of the accused as Ex.PW3/D to PW3/F, two photographs seized from the accused as Ex.PW3/G to PW3/J , four letters produced by the complainant with photographs & negatives and one discharge slip seized by IO vide seizure memo Ex.PW3/K to Ex.PW3/M1 & M2.
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6. PW4 Dr. AK Verma had taken the blood sample of the accused and the child allegedly born to the complainant from the accused and proved their MLCs as Ex.PW4/A & PW4/B respectively. He also conducted the blood grouping of the complainant vide Ex.PW4/C. He also proved the MLC of the complainant as Ex.PW7/D and of the accused as Ex.PW3/O.
7. PW5 Premwati was the mother of the complainant who deposed that the complainant fell in love with the accused, but could not say if she got married with him . She deposed that her daughter became pregnant from the accused and that the accused told her that he did not want a child. He also deposed that on this pretext the accused refused to keep her and that the complainant visited the house of accused while she was in the family way where she came to know that accused was already married. PW6 ASI Anuradha had accompanied the IO/PW3 and joined investigation with him . PW7 Dr. D. Chakarvarthy proved the blood grouping of the complainant, accused and their child vide Ex.PW7/A to PW7/E. PW8 Ct. Shiv Kumar has also accompanied and joined the investigation with the IO/PW3. PW9 was the Duty Officer who had recorded the FIR and proved the same as Ex.PW9/A and his endorsement as Ex.PW9/B made on ruqqa by him . PW10 Anil was the brother of the complainant and PW11 Smt. Bala was allegedly the land-lady in whose house the complainant & accused resided as tenants. However, she turned hostile.
8. Statement of accused was recorded under Section 313 Cr. PC and the entire evidence was put to him which he denied and pleaded innocence. He stated that the complainant herself developed relationship 3 with him with her consent and that she & her family members were aware that he was a married man . He further stated that the complainant pressurised him to divorce his legally wedded wife and upon refusal by him, she implicated him in this case. No witness was examined by the accused in his defence.
9. I have heard the Ld. APP for the State and Shri Pardeep Tyagi, Advocate for the accused.
10. The accused has been charged for offences punishable under Section 376 IPC r/w Section 420 IPC & 495 IPC. However, in my opinion the charge for offence punishable U/S 495 IPC ought not to have been framed against the accused. Section 495 IPC appears in Chapter XX of the Penal Code. According to Section 198 of Cr. PC, the Courts are barred from taking cognizance of any offence punishable under Chapter XX of the IPC except upon a complaint made by some person aggrieved by the offence. The word "complaint" has been defined in Section 2(d) of the Cr. PC to mean any allegations made orally or in writing to a Magistrate, with a view to take action under this Code, that some person , whether known or unknown , has committed an offence, but does not include a police report.
11. Thus, it is clear from the above quoted provisions that it is mandatory for an aggrieved person or the complainant to approach the Court of the Magistrate and lodge a complaint there for the offence punishable under Section 495 IPC and the Magistrate shall take cognizance of the said offence on that complaint. In that matter the procedure prescribed in Chapter XIV of the Cr. PC has to be followed. In the instant 4 case, the cognizance has been taken by the Ld. MM for the offence punishable U/S 495 IPC on the police report filed U/S 173 Cr. PC.
12. In the case of G. Narasimhan Vs. TV Chokkappa AIR 1972 SC 2609 it was held that in view of Section 198 Cr. PC, no cognizance for the offence Under Section 494 or Section 495 IPC can be taken by a Magistrate except upon a complaint by the person aggrieved. It is mandatory.
13. Thus, the instant case suffers from legal lacunae as far as offence under Section 495 IPC is concerned. Even otherwise, it is clear from the evidence which has been recorded in this case that the alleged second marriage of the accused with the complainant could not be proved. The priest who allegedly performed the said marriage turned hostile and did not support the prosecution case despite being cross-examined by the Ld. APP. No other witness to the said marriage was examined by the prosecution . The mother & brother of the complainant, i.e. PW5 & PW10 respectively, were not even having knowledge whether the complainant and the accused performed any marriage or not. The marriage is required to be proved as a fact which include the proof of 'saptpadi' ceremony. Thus, I am of the opinion that the prosecution has been unable to prove and substantiate the charge for the offence punishable under Section 495 IPC against the accused.
14. The other charge which has been framed against the accused is that for the offences punishable under Section 376 IPC read with Section 420 IPC. In my considered opinion , charge has not been correctly framed. 5 Both the offences, i.e. Section 376 IPC & 420 IPC are distinct offences. For the charges of an offence punishable under Section 420 IPC, there must be some delivery of property. Thus, no charge for offence punishable under Section 420 IPC is made out against the accused. At the most, from the allegations which have come on record, it can be alleged against him that he obtained the consent of the complainant for sexual intercourse by misrepresenting her that he is unmarried. The last part of Section 415 IPC reads as " ....................... or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'. The Explanation attached to the Section provides that -- A dishonest concealment of facts is a deception within the meaning of this section . Now the question is whether the accused concealed the fact of his first marriage from the complainant and under that deception married the complainant or obtained her consent for sexual intercourse.
15. As already held herein above, the marriage between the accused and the complainant could not be proved on record. It has also come on record in the testimony of PW1 that she was residing in same locality where the accused was residing when they allegedly met for the first time. It has also been accepted by the complainant that she and the accused were working in the same company and were transporting in the same bus. Though she claimed that their other colleagues knew about their affair but no such person has been examined as a witness. The mother of the complainant/PW5 in her examination-in-chief itself has deposed that her daughter fell in love with the accused who was not sure about their 6 marriage.
16. The age of the complainant is not in dispute and admittedly she was a major at the time when she allegedly got involved with the accused. She has no where in her deposition testified that the house of the accused was not known to her and deposed that she straight away went to the house of accused to inquire as to he was not coming home for the last three months. She also deposed that when she went to Pandav Nagar accused met her with his wife Neelam which shows that she was already known to her. In her cross-examination the complainant/PW1 deposed that she had been meeting the accused for a period of about 5/6 months before her marriage but never verified from the company about the marital status of the accused. She further admitted that though she told her intention to marry the accused to her parents, but no one from her family verified about the status of the accused from his house. It is quite unlikely that the parents of a girl would not try to verify about the status of the boy before giving consent to her marriage with that boy. The accused and the complainant were working in the same company and when , according to the complainant she developed intentions to marry the accused, it is again unbelievable that she did not made any inquiry either from the accused or from the company records about his status and just believed his words.
17. In her further cross-examination , the complainant deposed that she told her mother about her marriage with the accused at the end of the year 1999-2000 when she started a beauty parlour and started residing with the accused at Noida . It was during this period that both the complainant & the accused cohabited with each other with the consent of the complainant. 7 Thus, according to the complainant herself, they did not cohabited since 1997 till the end of 1999-2000 though they were allegedly married in the year 1997 .
18. The above circumstances which have come on record in the testimony of PW1, i.e. the complainant, clearly shows that the prosecution has failed to prove that the consent of the complainant was taken by the accused by playing a fraud or under a deception . The complainant has further claimed that a son was born out of the relationship between her and the accused. However, there is nothing on record to prove the paternity of the child. PW7 did the blood grouping of the accused, complainant and of the said child and the accused was found to be having the blood group B- Positive and the complainant was found to be having blood group B- Negative and the child too was having blood group B-Negative. It is an inconclusive evidence about the paternity. The photocopy of the birth certificate of the child has also been placed on record. However, the same could not be proved. PW11, who was allegedly cited as a witness to prove the fact that the accused and the complainant lived together in a tenanted accommodation owned by the said witness, turned hostile and thus, the fact that they ever lived together in any house at Noida could not be corroborated. The complainant was subjected to medical examination but nothing come out of it. Thus, the testimony of the complainant/PW1 could not be corroborated by any circumstantial, direct or medical evidence. Her own mother & brother were unable to depose anything about her relationship with the accused. On the contrary, it is apparent from their testimony that the accused and the complainant were having a love affair. 8
19. In the above circumstances and the evidence which has come on record, I am of the considered opinion that no deception or inducement on the part of the accused could be proved and it also appears that the complainant was a consenting party when she cohabited with the accused. The allegations against the accused could not be proved beyond reasonable doubts and in my opinion he is entitled to benefit of doubt. Accordingly, accused Ashok Kumar is acquitted for the offences punishable under Section 376 IPC read with Section 420 IPC & 495 IPC. He is set at liberty. His personal bond & surety bond stand discharged. File be consigned to record room .
ANNOUNCED IN OPEN COURT ON 30th day of April 2007 (SANJAY SHARMA) ADDL. SESSIONS JUDGE KARKARDOOMA COURTS : DELHI 9