Delhi District Court
State vs Mohd. Tahir Ansari on 29 March, 2012
:1:
In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 55/2011
Unique ID No. : 02401R0370632011
State versus Mohd. Tahir Ansari
S/o Mohd. Islam
R/o Village Harpur Sari,
Distt. Sitamadhi, Bihar.
Case arising out of:
FIR No. : 39/11
Police Station : Kamla Market
Under Section : 376/366/372 IPC
Judgment reserved on : 24.03.2012
Judgment pronounced on : 29.03.2012
JUDGMENT
1. As per record, the present case was registered on a complaint, made by the prosecutrix which is Ex.PW2/A. The prosecutrix contended that she is a native of Jharkhand and came to Delhi about one year ago with her brother and started working as a housemaid in the house of one Smt. Poonam Kalra at Paschim Vihar, Delhi. In August, 2010, she came in touch with the accused. He told her that he will marry her and took her mobile number from her. Thereafter, accused started calling her on her mobile phone and after 1520 days, he took her to a rented :2: room in Gurgaon near Kapashera Border.
2. The prosecutrix alleged that the accused continued to have sex with her after giving her assurance of marriage but whenever she used to ask him about their married, he used to avoid the question and did not marry her. She further contended that about 23 days ago, the accused got her two large size photographs made on the pretext that the said photographs are required for the purpose of their court marriage. She also stated that she heard him talking to someone on phone about Rs.50,000/. Upon enquiry, the accused told her that he was talking about Rs.5500/ which is required to be spent for their court marriage.
3. She further alleged that he took her to G.B. Road road area on the pretext of marriage and made her stand in front of HDFC Bank while he started talking to someone. The prosecutrix became suspicious and enquired from a rickshawwala about the place, the rickshawwala told her that it is G.B. Road which is famous for prostitution. In the meantime, two police personnel came to the spot to whom she narrated the entire incident and the accused was apprehended.
4. The case was accordingly registered on the basis of the aforesaid complaint of the prosecutrix. The prosecutrix was got medically examined and after completion of further investigation, the chargesheet was submitted before the Court.
5. After the committal of the case and on the basis of material :3: on record, the accused was charged for offence punishable U/s 376 IPC. He pleaded not guilty and claimed trial when the charge was read over and explained to him.
6. The prosecution examined 12 witnesses on record in order to prove the allegations against the accused.
7. The prosecutrix was examined as PW2. She deposed that she came to Delhi in June, 2010 and started working as a house maid in the house of one Smt. Poonam Kalra in Paschim Vihar. She further deposed that in August, 2010, she made a call to her relative in Jharkhand but a wrong number was dialed and it was connected to the phone of accused. Thereafter the accused started making calls to her regularly and they became friends. She further deposed that after 1520 days, the accused made a call to her and stated that he wanted to marry her and came to meet her near the house where she was working and induced her to accompany him saying that he will marry her and will take care of her.
8. PW2/ prosecutrix further deposed that on the assurance of accused, she accompanied him along with all her belongings and left the house where she was working. She further deposed that the accused took her to a room in Gurgaon which he had already taken on rent, where they started living as husband and wife and had sexual relations. She further deposed that initially on 23 days, the accused forcibly had sexual relations with her against :4: her wishes though she used to refuse, stating that first they should get married. She stated that the accused assured her that he will marry her but used to avoid it on one pretext or the other, though he continued to develop physical relations with her. She further deposed that on her asking for marriage, the accused used to avoid the same on one pretext or the other. He treated her properly for about 34 months but thereafter his behaviour towards her was changed and he used to remain annoyed with her. He also took her mobile phone from her.
9. PW2 also deposed that on 12.05.11, accused got her photographs clicked from a photo studio, stating that the same are required for court marriage. On the same day, she also heard him talking to some one on the phone and that he was saying something about Rs.50,000/. Upon enquiry, he told her that the said amount is required for their court marriage. He took her to some unknown place in a TSR for their court marriage. PW2 also deposed that on reaching there, he got down from the TSR and she enquired from TSR driver about the place, on which, he replied that it is a place where prostitution is carried on (dhande wali jagah). On hearing this, she realized that the accused wanted to sell her for the purpose of prostitution by giving her false assurance of marriage. When the accused was negotiating with some person, police apprehended him and her statement Ex.PW2/A was recorded. She further deposed that she was :5: medically examined and her statement U/s 164 CrPC Ex.PW2/B was recorded before the Magistrate. Her photograph was recovered from the accused and was seized vide memo Ex.PW2/C and the accused was arrested vide memo Ex.PW2/D.
10. Apart from the prosecutrix, the prosecution also relied upon the testimony of PW1 Pawan Kumar Yadav, owner of the room which was taken on rent by the accused at Village Kapashera. He deposed that the accused was living there with his wife and also correctly identified the accused in the court.
11. PW3 Dr. Ravinder Kumar exhibited the MLC of the prosecutrix as Ex.PW3/A, stating that it was prepared by Dr. Than Singh whose signatures he identified and also deposed that the said doctor has now left LNJP Hospital and that his address is not available. PW6 Dr. Vidhi who had conducted the gynecological examination of the prosecutrix proved her report as Ex.PW6/A.
12. PW9 Ct. Anamika deposed that she had taken the prosecutrix to LNJP Hospital for her medical examination and had deposited the exhibits in the malkhana which were handed over to her by the examining doctor.
13. The next witness upon whose testimony, the prosecution has strongly relied, is PW10 HC Mahesh. This witness deposed that on 11.05.11, he was performing his Beat Duty in the area of G.B. Road where he met one Ashok Aggarwal who told him that :6: one person namely Rahul had met him and had told him that he would come on the next day to sell one girl. On 12.05.11, when PW10 along with Ct. Karim was present in the beat area of GB Road, Ashok Aggarwal met them and stated that Rahul had come and he was present near HDFC Bank. The witness further deposed that he along with Ct. Karim went there and Ashok Aggarwal pointed towards one person who was standing near HDFC Bank, as Rahul. PW10 further deposed that they approached the girl and on enquiry, she revealed her name and pointed towards Rahul and stated that his real name as Tahir Ansari and that he had brought her from Paschim Vihar, Delhi, on the pretext of getting married with her. She further stated that negotiations are going on to sell her for a consideration of Rs. 50,000/.
14. PW10 further deposed that on pointing out of the prosecutrix, he with the help of Ct. Karim overpowered that person and upon interrogation, his name was revealed as Tahir Ansari. The witness also correctly identified the accused, present in the Court. PW10 also deposed that he took the prosecutrix and the accused to PS Kamla Market and produced them before the IO/ Inspector Surenderjeet Kaur, SHO PS Kamla Market. SHO made enquiries from the prosecutrix and also recorded her statement and made endorsement on the same and got the FIR :7: registered against the accused.
15. PW10 further deposed that the further investigation was taken up by the IO and the prosecutrix was sent for her medical examination with Ct. Anamika (PW9). The parcels were handed over by the doctor were seized vide memo Ex.PW5/B and the accused was arrested vide memo Ex.PW2/B.
16. PW10 also deposed that when the accused was overpowered, he was having the photograph of the prosecutrix which was also seized vide memo Ex.PW2/C. He identified the photograph, filed on record, as the same photograph which was recovered from the possession of the accused. The photograph is Ex.PW10/B.
17. Besides the aforesaid witnesses, the prosecution examined PW5 Inspector Jaswant Singh who also deposed regarding registration of FIR, arrest of the accused, pointing out memo, prepared at the instance of the prosecutrix, preparation of site plan, the enquiries made from Ashok Aggarwal and the further investigation conducted in the matter.
18. PW7 ASI Mahender Singh was the Duty Officer who deposed about receiving of rukka, produced by SHO/ Inspector Surenderjeet Kaur, on the basis of which, FIR Ex.PW7/A was registered. PW8 HC Mukesh Tyagi deposited the samples at FSL, Rohini. PW11 is the DD Writer who recorded DD NO.26B on 12.05.11 regarding departure of the police staff for patrolling :8: duty. The said DD entry is Ex.PW11/A. IO/ Inspector Surenderjeet Kaur also appeared into the witness box as PW12.
19. On the basis of aforesaid evidence, led by the prosecution, Ld. APP strongly argued that the accused is guilty of offence punishable U/s 376 IPC. He contended that although admittedly, the prosecutrix was above 18 years of age at the time of incident in question yet the aforesaid offence was committed by the accused inasmuch as he had sexual intercourse with the prosecutrix without her consent within the meaning of Section 375 IPC Clause Secondly. He argued that as per Section 90 IPC, the consent of the prosecutrix to the act of sexual intercourse was apparently given under a misconception of fact as the accused had assured her that he would marry her. However, it is clearly borne out from the deposition of the prosecutrix that he never intended to marry her. Moreover, the prosecutrix has clearly stated that initially for 23 days, the accused had forcibly sexual intercourse against her wishes as she used to refuse, stating that first, they should get married. He further argued that the prosecutrix was always kept under an impression by the accused that he would get married to her although his intention was never to get married and rather he wanted to sell her, as deposed not only by the prosecutrix but also by other prosection witnesses including PW10 HC Mahesh.
20. On the other hand, the Ld. Legal Aid Counsel, representing :9: the accused strongly argued that the prosecution has failed to prove the allegations of Section 376 IPC against the accused. It was contended that the prosecutrix was admittedly more than 18 years of age at the time of incident in question. She willingly accompanied the accused when she left the house where she was working with all her belongings particularly as she has herself deposed that the accused had come to meet her near the house where she was working. Ld. Counsel also argued that as per the prosecutrix herself, she remained with the accused in the rented accommodation since August 2010 till May 2011 and did not make any attempt either to escape or to seek any help from any of the neighbours. It was contended that in these circumstances, it is apparent that the prosecutrix was a consenting party.
21. My attention was further drawn to the crossexamination of PW2 where she has admitted that she did not state to the police that initially for 23 days, the accused had forcibly sexual relations with her. She also admitted that 23 months prior to the incident, the accused had taken her to the railway station, stating that he will take her to his native village at Bihar. However, he ran away after making her sit in the train. She also admitted that she did not make any complaint when the accused left her in the train and fled away, rather she remained in touch with the accused even when she was taken to Rajasthan with some persons whom she met in the said train. Not only this, she :10: returned to the accused after coming back from Rajasthan, as deposed by her in her crossexamination.
22. Ld. Legal Aid Counsel also argued that the prosecutrix admittedly did not disclose any facts to her neighbours while living in a rented accommodation with the accused and also did not try to escape though admittedly, the accused used to leave the house at 8.30 AM for work and return by 7.308.00 PM. Further the prosecutrix admitted that she was residing in a hotel with the accused one day prior to the incident in question.
23. On the basis of the aforesaid crossexamination of the prosecutrix, it was strongly argued by Ld. Legal Aid Counsel that there is no force in the argument of the prosecution that the prosecutrix was under any misconception of fact or that the sexual intercourse between her and the accused was not without her consent.
24. The next argument of the defence is that even the public witness Ashok Aggarwal to whom the accused allegedly going to sell the prosecutirx has not been produced into the witness box by the prosecution. Accordingly, it was argued that the prosecution has failed to prove the case against the accused and the accused be acquitted.
25. I have given my thoughtful consideration to the arguments, advanced before me in the light of evidence led. :11:
26. At the outset, it is necessary to observe that the prosecutrix admittedly hails from Jharkhand and came to Delhi for the first time in the year 2010. It is not the case of the defence that the prosecutrix had any reason to falsely implicate the accused in this case. She has also deposed that after her phone incidentally got connected to the phone of the accused, the accused started making calls to her regularly and after 1520 days, he told her that he wanted to marry her. She has deposed that on the said assurance of the accused, she accompanied him with all her belongings and went to a rented room at Gurgaon near Kapashera Border. There also, she used to refuse for establishing sexual relations with the accused, stating that first, they should get married. The accused, however, continued to develop physical relations with her while on the assurance that he will marry her though he used to avoid it on one pretext or the other.
The prosecutrix also deposed that the accused took her to G.B. Road area where he was negotiating to some other person to sell her and the police arrived at the spot and the accused was apprehended.
27. This version of the prosecutrix also finds corroboration from the evidence of PW10 HC Mahesh who deposed that it is the accused Tahir Ansari who had met one Ashok Aggarwal, stating his name as Rahul and had negotiated with him to sell the :12: prosecutrix for a consideration of Rs.50,000/.
28. I also find on going through the crossexamination of the prosecutrix that she admitted that she had not stated to the police that initially for 23 days, the accused had forcibly sexual intercourse with her while she used to refuse, stating that first, they should get married. She has also admitted that 23 months prior to the incident, the accused had taken her to the railway station, stating that he will take her to his native village at Bihar. However, he ran away after making her sit in the train. She also deposed that the train ticket were purchased by the accused after selling her mobile phone. However, it is noteworthy that the prosecutrix categorically deposed that the accused later apologized and she promised not to disclose this incident to anyone including police. Thus, the prosecutrix was still having faith on the accused and due to this reason, she did not disclose this incident to anyone till she stepped into the witness box. The prosecutrix also admitted in her crossexamination that there were other persons residing in her neighbourhood. She also admitted that the accused used to leave for his work at 8.30 AM and used to return by 7.30/ 8.00 PM and she did not make any attempt to escape from the rented room.
29. A careful reading of her entire deposition would, however, reveal that she did not make any attempt to flee or make any complaint to anyone as she trusted the accused and believed the :13: assurance that he would marry her. The accused, however, ran away instead of taking her to his native village for marriage and went even to the extent of attempting to sell her for the purpose of prostitution by taking her to G.B. Road area.
30. It is in the light of the aforesaid evidence that the term 'misconception of fact' as laid down in Section 90 IPC must now be interpreted. I may at this juncture refer to a judgment titled as Uday Vs. State of Karnatka in Crl. App. No.336/96, passed on th 19 February, 2003 where the Hon'ble Apex Court has discussed the meaning of 'consent', as defined in Section 90 IPC at length. In the said judgment, the Court relied upon a decision of the Division Bench of Calcutta High Court titled Jayanti Rani Panda Vs. State of West Bengal & Anr. 1984 Crl. LJ 1535 where it was observed : 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. S.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."
31. In the judgment titled as Pradeep Kumar @ Pradeep Kumar Verma Vs. State of Bihar & Anr. Crl. App No. :14: th 1086/2007, decided on 17 August, 2007, the Hon'ble Apex Court referred to a judgment of the Hon'ble Madras High Court rendered in N. Jaladu, RE [ILR (1913) 36 Madras 453] wherein the Division Bench of that Court considered the scope and amplitude of the expression misconception of fact and held : The expression under a misconception of fact is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act, Illustration (d) that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married. In considering a similar statute, it was held in England in R.V. Hopkins [(1842) Car & M 254] that a consent obtained by fraud would not be sufficient to justify the taking of a minor.
32. In a recent judgment titled as Ashok Rai Vs. State reported as 2010 Cri.LJ 1105, it was held by the Hon'ble Delhi High Court as under : Allegation that accused established physical relations with prosecutrix on promise that he would marry her - Suicide note written by prosecutrix showed that accused earlier ravished her on pretext of marriage and thereafter told her to submit herself to a person from whom accused had to seek a favour - This shows that intention of accused was to use unfortunate girl and never marry her
- Thus, it can be said that consent of prosecutrix was :15: obtained under false promise.
33. In another judgment titled as Yedla Srinivasa Rao Vs. State of AP (2006) 11 Supreme Court Cases 615, the Hon'ble Apex Court after considering the evidence on record observed : It appears that the intention of the accused as per the testimony of PW1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him.
34. In the aforesaid judgment, the Hon'ble Apex Court has held that : What is a voluntary consent and what is not a voluntary consent depends on the facts of each case. In order to appreciate the testimony, one has to see the factors like the age of the girl, her education and her status in the society and likewise the social status of the boy. Court should closely scrutinize evidence while taking into consideration the said factors.
35. In the light of the aforesaid case law and after considering the facts & circumstances of the present case, I find that it has been clearly brought out on record in the instant case that the accused never intended to actually marry the prosecutrix. On more than one occasions, the accused established physical relations with the prosecutrix by assuring her that he would marry her. Further, as deposed by the prosecutrix as PW2, in her cross :16: examination, the accused on one occasion took her to the railway station, stating that he will take her to his native village at Bihar but he ran away after making her sit in a train. He even sold her mobile phone for purchasing the train tickets. The prosecutrix did not make any complaint against the accused and even continued to live in the rented room with him without making an attempt to escape or even to raise an alarm only because she trusted the accused and was under a mistaken belief that the accused would marry her. The intention of the accused from the beginning was, however, only to use the prosecutrix and he never intended to marry her. This is apparent from his conduct as he even went to the extent of making negotiations to sell the prosecutrix for the purpose of prostitution when he took her to G.B. Road area on 12.05.11.
36. It is borne out from the deposition of the prosecutrix and PW10 HC Mahesh that the accused was negotiating with one Ashok Aggarwal who incidentally not traceable despite efforts and wanted to sell the prosecutrix after exploiting her.
37. In these circumstances, I am of the considered opinion that the consent of the prosecutrix cannot be said to have been obtained for the purpose of sexual intercourse with the accused freely or voluntarily and was due to the false promise of marriage held out to her by the accused. The prosecutrix who had come to :17: Delhi for the first time from Jharkhand was allured by the said promise of the accused that he will marry her and would take care of her and acting on this promise, she not only left the house of her employer but also succumbed to his sexual exploitation, to which though she initially resisted.
38. Thus, from her deposition, I find that the prosecutrix has not only deposed that initially on 23 occasions, the accused had sexual intercourse with her forcibly though she continued to insist that they should establish such relations only after marriage but the accused also continued to develop physical relations with her by continuously promising her marriage. He, however, never intended to enter into any matrimonial alliance with her and rather took her to G.B. Road for selling her.
39. In these circumstances, I find that the offence of rape, as defined in Section 375 is clearly made out against the accused who had sexual intercourse with the prosecutrix without her consent and by keeping her under a misconception of fact. Accordingly, the accused is hereby convicted for offence punishable U/s 376 IPC. Let him be heard on sentence. Announced in the Open Court on 29.03.2012.
(Kaveri Baweja) :18: Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
:19:In the Court of Ms. Kaveri Baweja Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 55/2011
Unique ID No. : 02401R0370632011
State versus Mohd. Tahir Ansari
S/o Mohd. Islam
R/o Village Harpur Sari,
Distt. Sitamadhi, Bihar.
Case arising out of:
FIR No. : 39/11
Police Station : Kamla Market
Under Section : 376/366/372 IPC
Judgment pronounced on : 29.03.2012
ORDER ON SENTENCE:
1. Vide separate detailed judgment dated 29.3.12, the above named accused has been convicted for offence punishable under Section 376 IPC.
2. I have heard the submissions of Ld. Defence Counsel as well as Ld. APP on the point of sentence.
3. It is submitted by Ld. Defence Counsel that convict is first time offender, unmarried and aged about 24 years. He was doing the work of hand embroidery and his family comprises of his father and four younger brothers who are dependent upon him. The convict is :20: stated to be in custody in this case since 15.5.11. It has been submitted by Ld. Defence Counsel that considering the aforesaid circumstances, convict may be sentenced for the period already undergone by him in custody. On the other hand, Ld. APP prays for the sentence of 07 years, as prescribed under Section 376 IPC.
4. I have considered the submissions made by Ld. Defence Counsel and Ld. APP. I have also gone through the judgment of Hon'ble Apex Court titled as State of Madhya Pradesh Vs Munna Choubey and another AIR 2005 SC 682 wherein it has been laid down that "imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. Where it relates to offences against women, decoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of any per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counter productive in the long run and against societal interest which needs to be cared for any strengthened by string of deterrence inbuilt in the sentencing system".
5. It was further laid down that "in order to impose a sentence less than the prescribed minimum, the court has to record adequate and special reasons in the judgment and not fanciful :21: reasons". In the present case, however, the submissions made by Ld. Defence Counsel, to my mind, do not constitute any adequate or special reasons for imposing lessor sentence than is prescribed under Section 376 IPC. Having regard to the fact that convict in the present case sexually exploited the prosecutrix who was native of Jharkhand and took undue advantage of her naivety , I find that there is no scope for exercise of any discretion in favour of convict in the present case.
6. Consequently, the above named convict is hereby sentenced to Rigorous Imprisonment for 07 years in addition to payment of fine of Rs. 2,500/, in default whereof, he shall undergo Simple Imprisonment for 03 months. The convict shall be entitled to benefit of Section 428 CrPC. Ordered accordingly.
7. Copy of judgment and order on sentence be given to convict free of cost. File be consigned to Record Room. Announced in open court today on 31.3.12 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.