Delhi District Court
State vs . Vikas Sharma on 5 March, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.125/13.
Unique Case ID No.02405R0068092013.
State Vs. Vikas Sharma
S/o Sh. Murari Lal Sharma,
R/o Village Dheerajpura, Post Lakhani,
Vaya Ringus, Distt. Sikar,
Rajasthan.
Date of Institution : 18.3.2013.
FIR No.66 dated 03.2.2013.
U/s. 376 IPC.
P.S. Dabri.
Date of reserving judgment/Order : 26.2.2014.
Date of pronouncement : 05.3.2014.
JUDGMENT
1. The accused had been chargesheeted by the prosecution for having committed the offence punishable u/s.376 IPC. It may be noted here that the accused is the brother-in-law (Devar) of prosecutrix 'A' (real name withheld in order to conceal her identity) in this case.
2. It is the case of the prosecution that in the month of January, 2012 when the accused shifted to Delhi from Alwar, his visits to the residence of the prosecutrix became regular and he came to know that there has been no co-habitation between the prosecutrix and her husband. Taking advantage of the same, the accused visited the house of the prosecutrix on 07.3.2012 at about SC No.125/13. Page 1 of 28 4 p.m. or 5 p.m., when her husband was not present there and committed forcibly sexual intercourse with her. When the prosecutrix told him that she would apprise the family members about the incident, the accused applied vermilion on her forehead saying that he committed sexual intercourse with her for the reason that she does not have sexual relations with his brother, who would divorce her at any point of time. He further advised the prosecutrix to take divorce from her husband and assured her that he would keep her as well as her minor child. Thereafter, the accused continued to have sexual intercourse with the prosecutrix in the absence of his brother i.e. husband of the prosecutrix. At the same time, he kept on assuring her that he would marry her. At the instance of the accused, the prosecutrix instituted a case for divorce against her husband. However, thereafter his attitude towards the prosecutrix changed. He started telling the prosecutrix that he would not marry her and advised her to make an attempt to unite with her husband. It is also the case of the prosecution that the accused had committed sexual intercourse with the prosecutrix on 28.1.2013 also. The prosecutrix had become pregnant twice on account of sexual intercourse with the accused and on both the occasions, she aborted the pregnancy by consuming MTP pills at the instance of the accused.
3. It is further the case of the prosecution that on 03.2.2013 an information was received in the police station through wireless from Police Control Room at about 7.45 a.m. to the effect that the caller is attempting to commit suicide in RZ-64, Gali No.2, Dabri, in front of Dada Dev Hospital. The information was recorded as DD No.11A. Its contents were communicated to SI SC No.125/13. Page 2 of 28 Beena and accordingly she reached the spot. Meanwhile, ASI Gurumukh alongwith Const. Rajesh also reached the spot from the police station. SI Beena met the prosecutrix 'A' and her husband Manoj. She made inquiries from the prosecutrix, who handed over to her a written complaint. SI Beena prepared rukka on the basis of the complaint of the prosecutrix and got the FIR registered u/s. 376 IPC. Thereafter, the prosecutrix was taken to DDU Hospital and was got medically examined. The exhibits given by the doctor were seized. Site plan of the spot of incident was prepared by SI Beena at the instance of the prosecutrix. She also seized the bedsheet, on which the prosecutrix had been raped by the accused. Accused came to be arrested at the instance of the prosecutrix. The accused was got medically examined in DDU Hospital and the exhibits given by the doctor were seized and the exhibits were deposited in the Malkhana. Statements of material witnesses were recorded by the IO SI Beena. She also sent the exhibits to FSL for forensic examination. She also seized the documents regarding divorce case filed by the prosecutrix against her husband.
4. After completion of the investigation, Charge Sheet was prepared and submitted to the concerned Ilaqa Magistrate. Upon committal of the case to the court of Sessions, Charge u/s. 376 IPC was framed against the accused on 22.2.2013. He pleaded not guilty and accordingly trial was held.
5. At trial, the prosecution has examined 13 witnesses to bring home the charges against the accused. The statement of the accused u/s.313 Cr.PC recorded on 08.1.2014 wherein he denied SC No.125/13. Page 3 of 28 the prosecution case and claimed false implication. The accused examined the Nodal Officer of M/s. Reliance Communication Ltd. as DW1, one Sh. Rajender Sharma as DW2 and Wardon of Jail No. 3, Tihar Jail, as DW3, in his defence. DW1 has proved the customer details and call detail record of mobile phone no.9024513905. According to DW2, this mobile number is allotted in his name and he had provided the same to the accused for his use. DW3 has proved the records pertaining to the visits of the prosecutrix to Tihar Jail on various dates to meet the accused after his arrest.
6. I have heard Ld. APP alongwith Ld. Counsels appearing for the complainant/prosecutrix, Ld. Counsel for the accused and have perused the entire material on record.
7. Ld. APP as well as Ld. Counsel for the complainant submitted that the accused, being the brother-in-law (Devar) of the prosecutrix, taking advantage of the situation that the relations between the prosecutrix and her husband were strained and there was no co-habitation between the two for quite a long period, committed sexual intercourse with her on the assurance that he would marry her after she obtains divorce from her husband. It is submitted that the accused had even performed symbolic marriage with prosecutrix by applying vermilion on her forehead and every time when he had sexual intercourse with the prosecutrix, he used to make promise that he would marry her. It is further submitted that the accused instigated the prosecutrix to snap the martial ties with her husband and to take steps for obtaining divorce from him. It is further submitted that after the first motion for divorce by mutual consent between the prosecutrix SC No.125/13. Page 4 of 28 and her husband has been granted by concerned court, the accused changed his colour and refused to marry her. It is argued that the consent of the prosecutrix to the sexual intercourse with the accused is not fair and voluntary and it was obtained by the accused on false promise of marriage and by deception. Accordingly prayer is made to convict the accused.
8. On the other hand, Ld. Counsel for the accused submitted that the accused is totally innocent and has been falsely implicated in this case by the prosecution in collusion with her husband. It is submitted that the prosecution has miserably failed to prove that the accused had promised to marry the prosecutrix before taking her consent for the sexual intercourse. It is further submitted that the prosecutrix had submitted an application dated 21.2.2013 before the Ld. Magistrate seeking status report on her complaint wherein she stated that she was suffering from a severe stroke of depression on 02.2.2013, took few sleeping pills to get some sleep and in the morning again, she was under severe stroke of depression, on account of which she made call at telephone no. 100 and lodged complaint for harassment against her husband and brother-in-law i.e. the accused. The Ld. Counsel further submitted that the prosecutrix submitted a complaint dated 14.2.2013 also to the SHO, P.S. Dabri, wherein she has reiterated the aforesaid fact. It is further submitted that the prosecutrix was present before the concerned Ld. ASJ at the time of hearing of the bail application of the accused and she did not controvert the aforesaid facts, which were conveyed to the court by the Counsel for the accused and the accused was granted bail. The Ld. Counsel submitted that it is evident from the conduct of the prosecutrix SC No.125/13. Page 5 of 28 that she had lodged the complaint on 03.2.2013 in a fit of severe depression and there is no truth in her complaint. It is further submitted that the charges framed against the accused have remained to be proved by the prosecution and the accused is liable to be acquitted.
9. I have considered the aforesaid submissions made on behalf of both the parties. I have also gone through the written submissions filed on behalf of both the parties. I have also perused the judgments relied upon by both the Ld. Counsels, copies of which have been annexed alongwith written submissions.
10. Before scrutinizing the evidence led by the prosecution, I feel it pertinent to reproduce the relevant portion of the complaint Ex.PW4/A of the prosecutrix, which is the basis of FIR in this case. The same is as under :
"............... I got married to Manoj Kumar Sharma on 22.2.2008 and we were blessed with a girl child on 16.1.2011. We did not co-habitate with each other after birth of the child, on account of some domestic quarrels. In the meanwhile, my brother-in-law (Devar) started visiting our house since January, 2012. I talked to him and he came to know from the attitude of his brother towards me that there has been no co- habitation between us. Taking advantage of the same, he came to our house on 07.3.2012 in the absence of my husband at about 4 p.m./5 p.m., started teasing me and had forcible sexual intercourse with me SC No.125/13. Page 6 of 28 despite my resistance when I told him that I would narrate the incident to the family members, he applied vermilion on my forehead and stated that he did so as his brother does not have sexual relations with me and would divorce me at any moment. He told me to take divorce from my husband and assured me that he would keep me as well as my child. Thereafter he continued to have physical relations with me in the absence of my husband while keeping me under deception that he would marry me after my divorce from my husband. At his instance, I filed a divorce petition against my husband in the month of January. He used to tell me in front of my father, my brother and my husband that he would marry me after my divorce from my husband. After filing of the divorce case by me, his attitude changed. When I asked him the reason for the same, he told me that he would not marry me and further advised me to make efforts to unite with his brother Manoj Kumar. I tried to prevail upon him. I visited his company on 02.2.2013 to tell him that he is not doing good with me and he had established physical relations with me on 28.1.2013 also but he flatly refused to accept me. He had been committing sexual intercourse with me for the last one year by emotionally blackmailing me and on false pretext of marriage by applying vermilion on my forehead. ................"
11. The prosecutrix has been examined in this court as SC No.125/13. Page 7 of 28 PW4. She has deposed that her relations with her husband were not good since the date of marriage itself and the relations worsened after the birth of the child. She did not have physical relations with her husband after the birth of the child on account of acrimony. She further deposed that Vikas shifted to Alwar in the month of August 2011. Prior to that he was working at Chitorgarh. On shifting to Alwar, he used to come occasionally to their residence at RZ 28, Gali no. 3, Dabri Extension Main, New Delhi. His visits to their residence became very frequent since January 2012. Accused came to know about her strained relations with Manoj. He used to tell her that Manoj would divorce her one day or other, and it could be difficult for her to spend rest of life. He used to tell her that after divorce from Manoj, nobody would marry her and in case anybody marries her, he would not give proper fatherly love and affection to my son. He told her that she should marry him after divorcing Manoj and he would take proper care of herself and my child. The accused came to their residence on the occasion of Holi i.e. 07.03.2012. He again started talking to her about his marriage with her and started teasing her. He made sexual advancements towards her which she opposed saying that it is not proper. He emotionally blackmailed her saying that he loves her intensely and would marry her at any cost. He told her that having physical relations is a part of love making and there is nothing wrong in it. She got carried away by his talks and emotions and they had sexual intercourse on that day. Thereafter accused used to visit their residence about thrice in a month and each time he used to have sexual intercourse with her while assuring her that he loves her and is going to marry her. After some months, she told accused that whatever they are doing is SC No.125/13. Page 8 of 28 illegal. She asked him when and how is he going to marry her. Meanwhile, she became pregnant twice from the loin of the accused and on both occasions he got the pregnancy terminated by administering some tablets to her. Thereafter, he told her husband Manoj that since there are disputes between him and her, he is ready to marry her. Her husband intimated this to her parents and his other brother namely Mahesh. Her parents and her brother came to their residence. Mahesh talked to Vikas on phone. Accused declared in front of her parents and brother that he will marry her and would take care of her. Upon this a quarrel took place between herself and her husband in December 2012. She separated from her husband and stayed with the accused at his residence in District Bhiwadi. On 14.12.2012, accused took to her to a hotel in Manesar where they stayed for one night and he had sexual intercourse with her there also. Thereafter, accused shifted to their aforesaid residence at RZ -28, Gali no. 3, Dabri Extension, New Delhi. On 15.12.2012, She, her husband , her brother and the accused went to the office of lawyer at Ramphal Chowk, Dwarka. They asked the lawyer to prepare a petition for divorce of mutual consent but his lawyer demanded huge amount of fee. Accordingly they then came to the office of DLSA in Dwarka Court, where a lawyer from Legal Aid was given to them, who prepared mutual divorce petition and the same was filed. The divorce petition was filed on 22.01.2013. Till then the accused had been meeting her regularly and having intercourse with her. He used to tell her to give the custody of child to her husband but she was not willing to do the same.
12. She further deposed that suddenly thereafter the SC No.125/13. Page 9 of 28 behaviour of the accused changed and he told her that he would keep either her or the child. The accused asked him to give the custody of the child to her husband. She made efforts to persuade he accused to keep his words of marrying her and keeping the child as well but he did not listen to her. She went to the house of the accused at Bhiwadi to prevail upon him but there the accused gave beatings to her and did not listen to her. Next morning, she made a telephonic call at telephone no.100. Police officials came to her residence and she narrated the whole story to them. She was taken to police station where she wrote a detailed complaint and handed over the same to the police officials. She proved the said complaint as Ex.PW4/A. She was got medically examined in DDU Hospital. She is also a witness to the seizure of the bedsheet from her bed by the police officials and proved seizure memo as Ex.PW4/B. She had also handed over the divorce file to police officials which was seized vide memo Ex.PW4/C.
13. In the cross examination, she deposed that she did not tell her husband or any other person that the accused was insisting upon her to take divorce from her husband Manoj and to marry him. She had not told the accused straightly that she is not co-habitating with the accused. According to her, the accused himself realised the same on account of frequent quarrel between them. She deposed that she has been staying separately from her husband almost since the birth of her son but was not able to tell the exact date. She admitted that she had signed the petition for divorce by mutual consent after going through it and at the time of filing of the same, she and her husband were staying in a separate room of the same house which they had taken on rent. She was SC No.125/13. Page 10 of 28 residing in the room on the first floor and her husband was staying on the room on the ground floor. She deposed that the second motion petition for divorce by mutual consent has not yet been filed as the requisite time for filing of the same has not expired as yet. She denied the suggestion that she and her husband have filed divorce petition in collusion with each other in order to create a ground for false implication of the accused in this case. She deposed that she had signed the divorce petition on the asking of the accused and had told so to her lawyer also. She denied that she had signed the divorce petition voluntarily and without any pressure or coercion from the accused. She deposed that on the day when her testimony was recorded in the court i.e. in the month of October, 2013, she was residing in Quarter No.5, Type-II, Dada Dev Hospital Complex, Dabri. Her husband and her son also has been staying with her in the said accommodation. She had called her husband to stay with her on 18.9.2013 on account of threats received by her. According to her, her husband reside in a flat at Dwarka but she did not know the exact address. She had gone to meet her husband in AIIMS where he is working and apprised him to the threats received by her. She denied the suggestion that she keeps on meeting her husband in AIIMS Hospital and stated that she occasionally talks to him on phone. She reiterated that she and her husband have been residing separately since 03.2.2013 and before that date they usually reside in the same house except for a certain period in between when her husband had gone to reside somewhere else. They both used to pay rent for the tenanted house jointly. She was shown the certified copy of the first motion petition for mutual divorce filed by her against her husband and she identified her photographs as SC No.125/13. Page 11 of 28 well as her signatures on the same and on the affidavit accompanying the same. The petition is Ex.PW4/D. She had signed the aforesaid petition after going through it. She further deposed that first motion for mutual divorce has bee granted by the Family Court, Dwarka, on 22.1.2013. She deposed that her husband had accompanied her to the police station at the time of lodging the complaint against the accused and reiterated that she had written the complaint Ex.PW4/A in the police station. She had not consulted any lawyer before lodging the complaint. She admitted that she had gone to Tihar Jail to meet the accused two or three times after his arrest. She stated voluntarily that once she was taken there by the parents of the accused and second time by her husband. She denied that she has filed a complaint against the police officials in P.S. Dabri on 14.2.2013. She was shown an application dated 21.2.2013 from the court record captioned as "application for calling of status report". She stated that the signatures appearing at point A on the same are not her signatures. She was also shown the photocopy of the complaint dated 14.2.2013 addressed to SHO, P.S. Dabri, from the court record and stated that the signatures appearing at point A on the same appear to be her signatures but she has not signed or filed any such complaint. She denied that on 02.2.2013 she had consumed intoxicant tablets and in this regard, she had made a call at telephone no.100 on 03.2.2013.
14. The husband of the prosecutrix namely Manoj Kumar has been examined as PW3. He deposed that after the birth of male child to them, the relations between him and his wife 'A' became strained but they were staying together in House SC No.125/13. Page 12 of 28 No.RZ-20A, Dabri Extension, New Delhi. However, they were not having physical relations for the last one year. He further deposed that the accused is his younger brother and used to come to their house regularly at weekends. He could not say whether accused used to come to their house in his absence also and added that his wife 'A' had told him that the accused had come to their house on 28.1.2013. He further deposed that the accused as well as his wife 'A' had been telling him to separate from 'A' so that they could stay together . His wife 'A' had told him that the accused was having sexual intercourse with her regularly for the last one year. He deposed that he and his wife 'A' had filed a petition for divorce by mutual consent on 21.1.2013 and the first motion for mutual divorce has already been passed. In the cross examination, he admitted that he had visited the police station alongwith his wife 'A' on the day when the FIR was registered. He deposed that he had filed divorce petition on account of pressure exerted upon him by 'A'. According to him, he used to stay alongwith his wife 'A' since 16.1.2011 except for one month i.e. February, 2013 when he stayed separately from her. He admitted that they have stated in the divorce petition that they are residing separately since October, 2011. He stated voluntarily that their lawyer had told them that if they would not say so, the divorce petition would not be entertained as one year's separation before the filing of divorce petition is mandatory under the law.
15. Undoubtedly, in cases involving offence of rape, the testimony of the prosecutrix, if found to be worthy of credence as well as reliable and inspiring confidence requires no corroboration and court may convict the accused on the basis of her sole SC No.125/13. Page 13 of 28 testimony. She is undoubtedly a competent witness u/s.118 of Evidence Act and her evidence must receive the same weight as is attached to that of an injured in case of physical violence. However, if for some reason, the court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for some other evidence on record, which may lend assurance to her testimony, short of corroboration required in case of accomplice. If the court finds it difficult to accept the version of the prosecutrix at its face value, it may search for evidence, direct or circumstantially which would lend assurance about her testimony. It also needs mention that even in cases of rape the onus is always on the prosecution to prove affirmatively all the ingredients of the offence which it seeks to establish and such onus never shifts. It is not the duty of the defence to explain why and how the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take the support from the weakness of the case of defence. However, the great suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legally admissible evidence and the material on record, the conviction cannot be ordered. There is initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt.
16. In the instant case, the prosecution alleges that the accused obtained consent of the prosecutrix for sexual intercourse on the basis of false promise of marriage and therefore the SC No.125/13. Page 14 of 28 consent of the prosecution cannot be termed as free or fair, the same being a tainted one and hence the accused has committed offence of rape.
17. The Supreme Court considered this issue at length in case of Uday vs. State of Karnataka, 2003 (1) JCC 506, AIR 2003 SC 1639 and held as under :
"It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It may also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."
18. Similarly, in Pradeep Kumar @ Pradeep Kumar Verma vs. State of Bihar & anr., (2007) 7 SCC 413, the Supreme Court observed as under :
SC No.125/13. Page 15 of 28"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry. We do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her."
19. In Deelip Singh @ Dilip Kumar vs. State of Bihar, AIR 2005 SC 203, it has been observed :
"20. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, SC No.125/13. Page 16 of 28 the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology."
20. The Supreme Court again in Deepak Gulati vs. State of Haryana, Criminal Appeal No.2322/10 decided on 20.5.2013, held as under :
"Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."SC No.125/13. Page 17 of 28
21. Thus in view of law laid down by the Supreme Court in the aforesaid judgments, the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love and on the promise that he would marry her on a later date cannot be said to be given under a misconception of fact. A false promise is not an fact within the meaning of Indian Penal Code. The failure to keep the promise to marry at future uncertain date does not always tentamount to misconception of fact at the inception of a fact itself. The matter would be different if the consent is obtained by creating a belief in mind of the prosecutrix that she is already married to the accused. In such a case, the consent would be said to result from a misconception of fact. In each case, the evidence led by the prosecution has to be scrutinized keeping in view the well established legal dogma that the burden is on the prosecution to prove each and every ingredients of the offence, the absence of free consent to sexual intercourse being one of them. It is also to be kept in mind that the consent is an act of reason, preceded by due deliberation wherein the mind ways the good and evil on each side. There is a distinction between mere breach of promise and not fulfilling a false promise. The court must examine whether the prosecutrix had given a consent to sexual intercourse after wholly understanding the nature and consequences of sexual indulgence. There may be cases where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of misrepresentation made to her by the accused. There may be cases where the accused on account of circumstances, which he could not have foreseen or which were beyond his control, was unable to marry the prosecutrix despite having every intention to do so. These cases deserve to be SC No.125/13. Page 18 of 28 treated differently. An accused can be convicted for rape only if the court reaches the conclusion that his intention was malafide right since the inception of relations and that he had clandestine motives and that he was conscious of the fact that the prosecutrix would not have given the consent to sexual intercourse but for his misrepresentation and deception.
22. The prosecutrix, on her part also, is obliged to satisfy the court that she would not have given consent to the sexual intercourse with the accused but for his false promise of marriage and that at that time when promise is made to her, she was free to marry the accused i.e. she was not under any legal bar to solemnize marriage with the accused.
23. In the case at hand, the prosecutrix has deposed that visits of the accused to her residence became very frequent since January, 2012 and he came to know about her strained relations with her husband Manoj and used to tell her that Manoj would divorce her one day or the other. She further deposed that the accused used to tell her that nobody would marry her after Manoj divorces her and further told her that she should marry him after getting divorce from Manoj. Then she goes on to depose regarding the incident dated 07.3.2012 when accused is stated to have committed sexual intercourse with her for the first time. In her complaint Ex.PW4/A she has stated that upon his regular visits to their residence, the accused came to know from the attitude of his brother towards her that there has been no co-habitation between them and taking advantage of the same, he came to their house on 07.3.2012 in the absence of her husband at about 4 p.m. or 5 SC No.125/13. Page 19 of 28 p.m., started teasing her and had forcible sexual intercourse with her despite her resistance.
24. The sexual relations between husband and wife are a matter of intense private nature and remain embedded in their hearts, unknown to any third person, unless either the husband or the wife shares it with somebody else. In this case, I wonder how the accused came to know that there had been no co-habitation between the prosecutrix and her husband for a very long time and that the relation between them are very strained. Either the prosecutrix or her husband may have told him so. The husband of the prosecutrix appearing as PW3 has nowhere deposed that he confided with his brother i.e. accused about lack of co-habitation between him and the prosecutrix. The only indication which can be had from the testimony of the prosecutrix is that she apprised the accused about her strained relations with her husband and the lack of co-habitation between the two.
25. As per the deposition of the prosecutrix, the accused told her for the first time on 07.3.2012 that he loves her intensely and would marry her at any costs and it was on that day that they had sexual intercourse with each other. To understand properly the circumstances in which the sexual intercourse took place between the two on 07.3.2012 it would be necessary to reproduce here the relevant portion of the examination in chief of the prosecutrix in this regard :
"The accused came to our residence on the occasion of Holi i.e. 07.03.2012. He again started SC No.125/13. Page 20 of 28 talking to me about his marriage with me and started teasing me. He make sexual advancements towards me which I opposed saying that it is not proper. He emotionally blackmailed me saying that he loves me intensely and would marry me at any cost. He told me that having physical relations is a part of love making and there is nothing wrong in it. I got carried away by his talks and emotions and we had sexual intercourse on that day. Thereafter accused used to visit our residence about thrice in a month and each time he used to have sexual intercourse with me while assuring me that he loves me and is going to marry me."
26. It is evident from the aforenoted deposition of the prosecutrix that she had consented to sexual intercourse with the accused after the accused told her that having physical relations is a facet of love making and she got carried away by his talks and emotions. She does not say that she believed the representation of the accused that he would marry her and for this reason only she consented to physical relations with him. Emotional blackmailing is one thing and a promise to marry is a totally different thing. If a person engages a lady, whom he loves, in sexually explicit talks and makes sexual advancement towards her during those talks, on account of which the lady becomes sexually active and consents to sexual intercourse, it can be said that the boy provoked the lady mentally and physically to have physical relations with him, but it cannot be said that he obtained her consent by any misconception, fraud or any other promise. Mental SC No.125/13. Page 21 of 28 and physical provocation is altogether different from a promise to marry and the two cannot be equated. There is no categorical statement of the prosecutrix in her examination in chief that she gave consent to the sexual intercourse with the accused only on the basis of his promise to marry. It is evident that she did not offer any resistance and did not try to leave that place. It was for the prosecutrix in such circumstances to weigh pros and cons of the intended act and to decide whether or not she should submit her body to the accused. After all she was not the minor or an immature girl. She was about 29 years of age, already married and also having a son. It is very difficult to believe that such a woman in her late 20's and already married would get emotionally blackmailed or carried away by any person and would engage in sexual intercourse with him without giving a second thought to what she is about to do. Admittedly, it was not a forcible act on the part of the accused. He did not threaten or force the prosecutrix to engage in sex with him. At best, it can be said that he cajoled her to have physical relations with him.
27. It also needs note that the prosecutrix has given contradictory versions of this incident dated 07.3.2013 in her complaint and in her testimony before this court. In the complaint Ex.PW4/A, she has stated that the accused had committed forcible sexual intercourse with her whereas in the court, she deposed that she had sexual intercourse with the accused after being carried away by his talks and emotions. In my opinion, it is not too minor a discrepancy to be ignored. It dents the credibility of the prosecutrix's testimony.
SC No.125/13. Page 22 of 2828. According to the prosecutrix, the sexual intercourse between her and the accused took place for the first time on 07.3.2013. However, that is not correct. She has herself mentioned in the complaint Ex.PW4/A thgat they had established physical relations on 28.1.2013 too. She does not say that that time too, the accused has committed forcible sexual intercourse with her or that it was on account of emotional blackmailing by the accused. Thus it is evident that the physical relations between the prosecutrix and the accused has started much before 07.3.2013 and these were consensual. Therefore, even if the accused told the prosecutrix before engaging in sexual intercourse with her on 07.3.2013 that he loves her intensely and would marry her, it does not suggest that she had given her consent only on his promise to marry her.
29. There is another major flaw in the prosecution case. On 07.3.2013 or on any date thereafter, whenever the prosecutrix and the accused engaged in physical relations, there was no possibility of their marriage as the prosecutrix was already a married lady. That being so, I wonder that where was the occasion for the prosecutrix to believe any word of the accused that he would marry her when she knew that the marriage was not possible until and unless she obtained divorce from her husband Manoj. There was no guarantee that Manoj would cooperate with her in dissolving the marriage by mutual consent. Thus the prosecutrix engaged in sexual intercourse with the accused knowing fully well that there were no chances of their marriage in near future. Therefore, there was no scope of her being mislead by any promise or misrepresentation of the accused.
SC No.125/13. Page 23 of 2830. According to the prosecutrix, the accused had declared before her parents and her brother that he will marry her and would take care of her. However, they have not been examined by the prosecution to lend credence and corroboration to the version of the prosecutrix.
31. The prosecutrix in her cross examination has denied that she filed any application before the court of Sh. Jagminder Singh, M.M., seeking status report on her complaint. However, there is an application dated 21.2.2013 on record purportedly filed by the prosecutrix seeking status report on her complaint. The same was shown to the prosecutrix during her cross examination and she denied that it bears her signature. The Ld. M.M. has noted miscellaneous orders dated 22.2.2013 and 26.2.2013 and 28.2.2013 on the first page of the application itself. The presence of the applicant i.e. prosecutrix has been noted in the order dated 26.2.2013 and 28.2.2013. In fact, the Counsel for the prosecutrix was also present before the Ld. M.M. on 28.2.2013. Therefore, it does not lie in the mouth of the prosecutrix to deny that she had filed any such application. She has probably denied the filing of this application as it is mentioned in this application that she made a call at telephone no.100 on 03.2.2013 in a fit of severe depression and the complaint which she had submitted in the police station on that day i.e. Ex.PW4/A was dictated to her by the police official. It has also been mentioned that after 2 or 3 days itself when the prosecutrix was able to understand the things properly, she came to know that her brother in law (Devar) i.e. accused Vikas has been sent to jail by police and she tried to SC No.125/13. Page 24 of 28 contact the police official to state correct version of the circumstances but she was told that the Investigating Officer is on leave.
32. The prosecutrix, in her cross examination, was also shown photocopy of the complaint dated 14.2.2013 purportedly submitted by her to the SHO, P.S. Dabri, and DCP South West, Dwarka, reiterating what has been stated in the application referred to herein-above and requesting that the police officials may be directed to record her statement at the earliest so that the correct facts are brought on the case file. She deposed that the signature appearing on the said complaint appears to be her signature but denied having signed or filed any such complaint.
33. IO appearing as PW13 has admitted that the complaint dated 14..22013 was received from the prosecutrix in the police station but she denied making any inquiry from the prosecutrix regarding that complaint. IO had produced the original complaint in the court and the same is Ex.PW13/B. The signatures appearing on the same are exactly similar to the signatures of the prosecutrix appearing on various documents in the court file. The prosecutrix has also not disputed that these are her signatures. She has failed to explain when, where and in what circumstances were her signatures obtained on the said complaint and by whom. In the absence of any such explanation from the prosecutrix, it is to be taken that she had voluntarily signed the said complaint and the complaint was submitted by her to the SHO.
34. It may also be noted here that the bail order dated SC No.125/13. Page 25 of 28 18.3.2013, vide which the accused was granted bail shows that the prosecutrix was present in the court on that day alongwith her Counsel. The Ld. Counsel for the accused had contended that the prosecutrix had made a call to the police in the morning on 03.2.2013 under the influence of severe stoke of depression and lodged a complaint for harassment against her in-laws and the FIR was lodged. He had also contended that after 2 or 3 days when the prosecutrix was able to understand the things properly, she came to know that the accused has been arrested and sent to jail and she tried to contact the police officials to state the correct version but she was told that the Investigating Officer is on leave. Ld. Counsel also cotended that the prosecutrix submitted a complaint dated 14.2.2013 (already referred to herein-above) to the SHO but her statement was not recorded. He had also contended that the prosecutrix appeared before the court of Ld. M.M. Dr. Jagminder Singh on 20.2.2013 (the order has also been referred to herein-above) but police did not take any action. It was also contended by the Ld. Counsel for the accused that the prosecutrix has been meeting the accused in jail regularly. Pertinent to mention here is that it is noted in the aforesaid order that the prosecutrix has not controverted the aforesaid factual position. This indicates that the prosecutrix had filed the application dated 21.2.2013 before Ld. M.M. seeking status report on her complaint and had also filed a separate complaint dated 14.2.2013 (Ex.PW13/B) to the SHO and the contents of both these are true and correct. It is, therefore, manifest that soon after lodging the FIR against the accused, the prosecutrix wanted to make a fresh statement exonerating the accused but the IO did not pay any heed to her requests.
SC No.125/13. Page 26 of 2835. The record produced by DW3 shows that the prosecutrix had gone to meet the accused at Tihar Jail on various dates i.e. 14.2.2013, 21.2.2013, 25.2.2013, 28.2.2013, 11.3.2013 & 14.2.2013.
36. The assessment of the overall evidence on record in this case, as discussed herein-above, is indicative of the fact that there was no cohabitation between the prosecutrix and her husband for a very long time and in the meanwhile, she came close to her brother-in-law i.e. accused and engaged in voluntary sexual intercourse with him. It is during the course of these sexual relations that two decided that the prosecutrix would take divorce from her husband and they would marry each other. However, there is not an iota of evidence on record to suggest that the accused had deceived the prosecutrix by promising to marry her before taking her consent for sexual intercourse. The prosecutrix was about 29 years of age, already married and also having a son at that time when she started sexual liaison with the accused. The accused was unmarried at that time. Therefore, it cannot be said that the accused could not have married her but on the contrary, it is evident that the prosecutrix, being already married at that time, could not have legally solemnized the marriage with the accused. It is also very difficult to believe that such a lady in her late 20's and already married would get deceived by any kind of promise or assurance from the accused, who was none other than her own brother-in-law.
37. It is a clear case of the prosecutrix having engaged in SC No.125/13. Page 27 of 28 extra martial relations with the accused and depicts promiscuity on her part, for which no criminal liability can be fastened upon the accused. It needs note that the conduct of the accused too has not been clean or aboveboard. He engaged in sexual relations with his own sister-in-law (Bhabhi). His act smacks of immorality and depravity of mind to the highest degree. He deceived and cheated his own brother. But howsoever high the religious conviction or moral belief of a court may be, the accused cannot be convicted unless his act is covered by the definition of an offence prescribed by any law in force for the time being. That is not the case here.
38. Resultantly, the prosecution has failed to prove the charges against the accused. The accused is liable to be acquitted and is hereby acquitted as such.
Announced in open (VIRENDER BHAT)
Court on 05.3.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
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