Delhi District Court
State vs . Upender Tiwari Page No. 1/9 on 31 January, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
SC No. : 2757/16
FIR No. : 214/14
U/s. : 376/506/509 IPC
PS : C.R. Park, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Upender Tiwari
S/o Shri Rakesh Kumar Tiwari
R/o House no. 5630,
Sector3, Ballabhgarh,
Haryana ......................... Accused
Date of Institution : 28.11.2016
Judgment reserved for orders on : 31.01.2017
Date of pronouncement : 31.01.2017
J U D G M E N T
FACTS :
1. On 25.08.2016, the prosecutrix (name withheld to protect her identity) came at the police station C.R. Park, New Delhi and got recorded her statement alleging therein that in June 2015, she had joined Ansal API, K.G.Marg. The accused had been working there in IT Department. She got familiar with him and started talking on FIR No. : 214/16 PS : C.R. Park State Vs. Upender Tiwari Page No. 1/9 phone. She used to go with him for outings after office hours. They started liking each other. He told her that they belong to different community but he will marry her. On 14.11.2015, they went to watch a movie in Odeon where he kissed her. Thereafter, they met many times and went for outings. She asked him if he had talked to his parents about their relationship to which he replied in affirmative. He told her that she has become his 99% wife and rest 1% she would be when he would put vermilion on her parting. She alleged that the accused tried to be physical with her 2 3 times but she refused. On 19.05.2016, he called her to meet at Kashmiri Gate. He then took her to GTC Hotel, GKII, New Delhi where he established physical relations with her. Thereafter, he took her there many times and did wrong with her on the pretext that she is his wife. She became pregnant. She told him about her pregnancy. He brought her medicine and after consuming, she aborted her pregnancy. Thereafter, he stopped talking and meeting her. She alleged that on 23.08.2016, his friend Gaurav Tiwari phoned her that such type of girls come in their lives. He told her to keep distance from the accused, lest, he would kill her. She alleged that the accused committed sexual intercourse with her giving her false promise of marriage. INVESTIGATION :
2. On this statement, the case was registered u/s 376/506/509 IPC.
The prosecutrix was got medically examined at AIIMS. Her statement u/s 164 Cr.P.C. was got recorded. On 30.08.2016, the FIR No. : 214/16 PS : C.R. Park State Vs. Upender Tiwari Page No. 2/9 accused was arrested. He was got medically examined for his potency. During investigation, the prosecutrix gave an affidavit that neither the accused nor his friend Gaurav Tiwari made any threatening call to her. After the investigation, the accused was sent for trial for the offences punishable u/s 376/506/509 IPC. CHARGE :
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case committed to this Court. Vide order dated 12.01.2017, prima facie case was made out against the accused u/s 376, 417/376 and 506 IPC. Charge was framed. He pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
4. To substantiate its allegations against the accused, prosecution examined Akshat Tripati as PW1 and the prosecutrix as PW2.
PW1 had been working as Manager in Hotel GTE, E514, GKII, New Delhi. He stated that on 15.09.2016, the police came in the hotel and collected the record as per which the accused had checked on 15.09.2016 with a female and stayed in room no. 205. Similarly on 28.05.2016, 18.06.2016, 16.07.2016, 19.07.2016 and 28.07.2016, he had stayed with a girl in the hotel. He proved the record Ex.PW1/A to Ex.PW1/F and FIR No. : 214/16 PS : C.R. Park State Vs. Upender Tiwari Page No. 3/9 stated that he had given the CCTV footage to the police which he had taken with the help of his technical staff. He proved the certificate u/s 65B of the Evidence Act Ex.PW1/G. He identified the PEN drive Ex.P1 in which the CCTV footage was recorded.
PW2 / prosecutrix stated that on 29.05.2016, she joined Ansal API as receptionist. The accused used to work there in IT Department. They exchanged their numbers and became friends. On 18.10.2015, he took her to Connaught Place for a movie and thereafter, they started going for outings after office hours. They started liking each other and decided to marry.
She stated that on 19.05.2016, they went to GTC Hotel where they took a room and made physical relations. They went there 5 - 6 times till 19.08.2016 and on every occasion they had consensual physical relations. She stated that from the relations, she became pregnant but she aborted her pregnancy by taking medicine. She stated that after termination of her pregnancy, she tried to contact the accused and made several calls but his phone was found switched off. She stated that FIR No. : 214/16 PS : C.R. Park State Vs. Upender Tiwari Page No. 4/9 since they belong to different communities, she misunderstood that the accused was ignoring her. She got enraged, took advise from a counsel and made the complaint Ex.PW2/A. She proved her MLC Ex.PW2/B and her statement u/s 164 Cr.P.C. Ex.PW2/C and stated that later she came to know that the accused was busy in his personal work and for that reason, he could not contact her. She realized her mistake, went to the police station and asked the police that she wanted to withdraw the complaint but the police told her that she can not withdraw her complaint. She stated that she had appeared in the High Court during the hearing of the bail application moved by the accused where she had filed an MOU MarkX that she was in relationship with the accused for some time with an understanding and hope that he would marry her. Some misunderstanding developed as she apprehended that the accused would walk out. She stated that on 24.10.2016, the accused married to her at Arya Samaj mandir, Malviya Nagar. She proved the marriage certificate Ex.PW2/D and stated that she has been living happily with the accused.
FIR No. : 214/16 PS : C.R. Park State Vs. Upender Tiwari Page No. 5/9 She was declared hostile by the prosecution. On being crossexamined, she denied that the accused had forced her to abort the pregnancy or the friend of the accused had threatened her. She admitted that she had given an affidavit Ex.PW2/E but explained that since she was disturbed at that time, she gave the affidavit, however, she was not threatened. She also denied that the accused committed sexual intercourse forcibly or that when he committed sexual intercourse with her, he pretended that she is his wife. She rather affirmed that they had consensual physical relations. She admitted that she had given the statement Ex.PW2/C to the Magistrate but explained that since she was enraged and under shock, she made the said statement. She stated that she did not state anything to the doctor during her medical examination. She also denied that the accused refused to marry her or her complaint Ex.PW2/A is genuine.
5. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the 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 FIR No. : 214/16 PS : C.R. Park State Vs. Upender Tiwari Page No. 6/9 a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
6. Perusal of the testimony of prosecutrix would show that the prosecutrix and the accused used to work in the same office i.e. Ansal API at Kasturba Gandhi Marg. They exchanged their numbers and started liking each other. They used to go for outings. They went to the Hotel GTC, Greater Kailash PartII where they had physical relations number of times. She has stated that their physical relations were consensual and the accused never forced upon her. She has stated that from the relations, she became pregnant but she aborted the pregnancy voluntarily and the accused never forced her to abort the pregnancy. She also denied that the accused and his friend threatened her. She has stated that when after the abortion, she could not contact the accused for long, she apprehended that the accused would not marry her owing to different community which made her lodge the complaint. She has stated that she made the complaint in a fit of anger and misconception though the accused never refused to marry her nor forced upon her nor threatened her. She was cross examined at length by Ld. Addl. PP but she remained consistent and cogent that their physical relations were consensual and it was not on the false promise of marriage. She has also referred the MOU which she had given during the hearing of the bail application that she had been in relationship with the accused with mutual understanding. The accused never intended to walk out from the relationship. PW1 has FIR No. : 214/16 PS : C.R. Park State Vs. Upender Tiwari Page No. 7/9 stated that the accused and prosecutrix used to come in the hotel and stay for a day. Nothing came in his testimony that she had complained to him that the accused forcibly made physical relations with her. She has denied that the accused and his friend threatened her to kill. Her testimony shows that she has married with the accused on 24.10.2016 at Arya Samaj Mandir, Malviya Nagar. She also proved the marriage certificate Ex.PW2/D in this respect.
7. Nothing came in the testimony of the prosecutrix that the accused forced upon her or committed sexual intercourse with her giving her false promise of marriage or threatened her to kill which are sine quo non for the offences punishable u/s 376, 417/376 and 506 IPC. Her testimony is very categorical that their physical relations were consensual and the accused and his friend never threatened her. She has also stated that she has married with the accused and has been living happily with him.
8. In the instant case, the star witnesses were the prosecutrix/PW2 and Akshat Tripathi / PW1. Rest of the witnesses came in motion on the complaint of PW1. Since the prosecutrix did not support the prosecution case in any manner, I did not find any purpose to examine the remaining prosecution witnesses as their testimony even if unrebutted would not become the basis of the conviction of the accused. Prosecution evidence was accordingly closed. Since, no incriminating evidence came on record against the accused, his statement u/s 313 CrPC was dispensed with.
FIR No. : 214/16 PS : C.R. Park State Vs. Upender Tiwari Page No. 8/9
9. For the aforesaid reasons, I am of the view that necessary ingredients of the offences punishable u/s 376, 417/376 and 506 IPC are not proved against the accused. It is a case of consensual sexual intercourse. I, therefore, acquit the accused of the offences punishable u/s 376, 417/376 and 506 IPC. His bail bond be cancelled. His surety be discharged. He is however, directed to furnish bail bond in the sum of Rs.10,000/ with one surety in the like amount, in compliance of section 437A CrPC.
10. File be consigned to record room.
Announced in the open court today i.e. 31.01.2017 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi FIR No. : 214/16 PS : C.R. Park State Vs. Upender Tiwari Page No. 9/9