Delhi District Court
Sc No. 440309/16 State vs . Sanjeev Kumar Kumra on 16 April, 2018
SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-FAST TRACK
SOUTH-WEST, DWARKA, NEW DELHI
In the matter of:-
S. C. No. 440309/16
FIR No. 513/14
Police Station Dwarka Sector 23
Under Section 376/506 IPC
State
Versus
Sanjeev Kumar Kumra
S/o Sh. Pawan Kumar
R/o H.No. 28, Sector 5
Faridabad, Haryana ....Accused
Date of institution 28.03.2016
Judgment reserved on 31.03.2018
Judgment Pronounced on 16.04.2018
Decision Acquittal
Judgment 1 of 23
SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
JUDGMENT
1. Accused is facing trial on allegations of committing repeated rape on prosecutrix and threatening her.
2. FIR in question was registered on complaint of prosecutrix alleging that she is a divorcée and met accused through a matrimonial site. Accused informed her that he is divorced and looking for a match. In February, 2014 accused took her to his home in Faridabad and promised marriage, thereafter, accused asked her to have alcohol and then established physical with her. Thereafter, in August 2014 accused again took her to Nainital and had sexual intercourse with her and thereafter on several occasions accused established physical relations with her on assurance that he would marry her. Prosecutrix alleged that on 24.11.2014, she found that accused was talking with a lady Rani Vishwakarma and after some time, she contacted her to find out the true facts. Prosecutrix then came to know that accused was Judgment 2 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra already married to Rani. Prosecutrix also became aware that accused was also talking to many other girls. Prosecutrix alleged that accused when confronted by her, threatened to kill her and also to misuse the photographs of prosecutrix clicked by her. Prosecutrix alleged that in order to have sex with her, accused lied about his marital status and stated that accused is a threat to innocent girls who are looking for marriage.
3. During investigations, prosecutrix was medically examined and her statement was recorded U/s 164 Cr.P.C. Accused was granted anticipatory bail and joined the investigations. Accused was charge-sheeted.
4. Charge for offence punishable U/s 376/506 IPC was framed against accused on 26.04.2016 to which he pleaded not guilty and claimed trial.
Judgment 3 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
5. Prosecution examined 7 witnesses.
PW Name of witness Nature of Documents proved witness 1 K Prosecutrix She deposed on lines of her complaint, proved her police complaint as Ex. PW1/A, printouts of profile page of accused as Ex. PW1/B, copy of marriage certificate of accused Ex. PW1/C, marriage photograph of accused as Ex.
PW1/D, her statement recorded U/s 164 Cr.P.C as Ex. PW1/E, seizure memo of laptop and mobile phone of accused as Ex .PW1/F, seizure of her mobile phone (Ex.P-1) as Ex.
PW1/G. Seizure memo of screen shots of messages(Ex.
PW1/I-1 to I-16 & Ex. PW1/J-1 to J-16) exchanged between accused and other girls as Ex.
PW1/H, a suicide note written by accused as Ex. PW1/K, conversations between prosecutrix and accused, prosecutrix and Rani as Ex.
PW1/L-1 to L-3 contained in hard disk Ex. P-2.
2 HC Rameshwar Police Deposited case property with FSL vide documents Ex. PW2/A to C. Judgment 4 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra 3 Rani Wife of accused Deposed that she married accused 05.03.2014 and due to marital discord was residing separately since April 2014. She informed prosecutrix about her marital relationship with accused.
4 Inspector Neeraj Police Got prosecutrix medically Tokas examined.
5 SI Indu Initial Received type written complaint Investigating from prosecutrix and prepared Officer(IO) rukka Ex. PW5/A. Got statement of prosecutrix recorded U/s 164 Cr.P.C and seized whatsapp messages 6 Inspector IO Seized print outs of whatsapp MeenaYadav messages from prosecutrix vide memo Ex. PW1/H and seized mobile phone and laptop of accused vide memo Ex. PW1/F. Seized mobile phone of prosecutrix vide memo Ex.PW1/G. 7 SI Saroj Bala IO Formally arrested accused vide memo Ex. PW7/A and sent case property to FSL, recorded statement of relevant witnesses and filed charge-sheet.
Judgment 5 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
6. During trial, accused admitted registration of FIR, certificate u/s 65B of Indian Evidence Act in respect of correctness of recording of FIR, Statement of prosecutrix u/s 164 Cr.P.C, his medical examination and of prosecutrix, hotel record in respect of stay in Nainital and FSL result in respect of mobile phones and laptop. In view of statement of accused, witnesses cited to prove said documents were dropped.
7. In his statement recorded u/s 313 Cr.P.C accused claimed his innocence and stated that he did not come in contact with prosecutrix through any website. He never had any relation with prosecutrix by giving any misinformation or on the pretext/promise or in context of any marriage. Prosecutrix has filed complaint under instigation of Ryan and Rani, by manipulating facts.
8. It is contended on behalf of accused that testimony of prosecutrix would show that she is most unreliable witness and Judgment 6 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra has manipulated the facts to suit her will. It is submitted that it is evident that prosecutrix was influenced by persons around her and her testimony is not worthy of any credence. It is argued that the evidence recorded indicates that accused himself was victim of whims and fancies of prosecutrix and as such he is entitled to be acquitted.
9. On the other hand Ld Addl. PP for State submits that prosecutrix in all her statements categorically alleged that accused established physical relations with her on promise of marriage which from very beginning was false and therefore in view of truthful testimony of prosecutrix, accused is liable to be convicted for the offence committed by him.
10. I have heard the rival contentions and have gone through the record carefully.
Judgment 7 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
11. Versions of prosecutrix: After initial complaint, statement of prosecutrix Ex. PW1/E was recorded under Section 164 Cr.P.C. It reads as under:
"I am a divorcée. I have a 6 year old girl. Last year I registered on Secondshadi.com. I got request from Sanjeev Kumra. He asked from me my phone number as well. Then on 4 December, I met him first time at Gurgaon. Then we started conversing on phone. He told that he had a son, who expired. His friend has a son. With whom he spends his time and feels good. And he told me that he has his own house at Faridabad but he was residing at Gurgaon, to maintain his privacy.
Then in February 2014, he took me to his house at Faridabad. There he drank hard drink and established physical relations with me. One day, in mid April, he told me that on Tuesday & Thursday he used to go, to meet a girl to spend time and to meet his physical needs. I felt bad but he told me that he only wanted to marry me. Then he took me to Neemrana and there also he established physical relations with me. He told me earlier that he is Class I Gazetted Officer, but near about April-May he told that he left his job but he did not disclose it to his parents. He told me that he wants to work in share market. Then he told me that he refused that girl, as her husband by calling him used to bother him. And that he wants to break-up relationship of that girl, and for this he told me to contact new boyfriend of that girl. He made me to call boyfriend of that girl whose name was Capt. Archana Chauhan.
Now in August we are having less work in my old office. He also was not having any job, as such, we went to Nainital. For a day, we stayed at Judgment 8 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra Haldwani and for day we stayed at Nanital. Then he forced me to come to his house and every time he told me that "you are my wife, we will stay together".
Once he tried to involve me in wife swapping group, but I refused. Thereafter, he called me to his house many times and many times he confined me in his house by saying that I will not go to my house. Every time, he talked about commitment, that he will marry me.
On my birthday i.e. 14th September, his vehicle met with an accident and I saw on his RC, name of a girl Rani. And he told me that he works in National Stock Exchange with account name of Rani. On asking he told me that she is his friend and he has no relation with Rani and because he was not getting loan on his name then Rani managed the loan for car. Then I talked to him about marriage and asked to introduce to his parents, then he told that he would talk to astrologer. He told that astrologer informed him that he can't marry till 1 ½ year and if it will happen it will not be successful. But I insisted to meet his parents then his behavior changed. Then he told her that his earlier girlfriends didn't do like that. Then he started telling her that he had many girlfriends with whom he had physical relationship.
Then I got to know that he created an ID with name of Renu Sanju on Facebook, which was a couple swapping group. He has HP Laptop which has naked pictures of girl, on asking he told me that he clicked those photographs. In October end, I came to know that he used to check his profile at Secondshadi.com and for this reason, I felt that he is using me. On my asking he immediately deleted his ID. On 22nd November his phone was busy.
On 23rd or 24th I downloaded true caller and true dialer. Then I came to know that one Rani Judgment 9 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra wants to talk to me. Then I called her, initially she refused to talk to me and stated she will talk to me in evening. Within 10 minutes, Sanjeev called me, he told me that if Rani calls me then I should say that I am his School friend and we are not having any relations. Then he told me that he was having live-in relation with Rani for 1 ½ years about 1 ½ year before. Then he stated that "I am not having any job and when my career will get set then he will marry".
Then on 25-26 November2014 he told me that he is going to Indore with his business partners Sumit, Ila and Illa's husband. Then on 4th December we met at New Friends Colony for lunch. Neither he was breaking relationship nor he was marrying me. I came to know that he was using Rani. Then at request of Rani, I gave my Gmail ID to her. Then Rani sent me her marriage photographs with Sanjeev. I was shocked to see them. Rani told me that she got married to Sanjeev on 5th March and despite that he went with me to Neemrana on 19th April. In between, I came to know that his earlier girlfriend Archana was seen by her son in compromising position and then they beat that boy and then they resumed their relation. His wife was having knowledge of all his girlfriends. She also tells that perhaps she is his second or third wife and she herself does not know him. Once he threatened to commit suicide and blame of his suicide will be on me and said if I will go legal then I have to bear the consequences. He used to say that he does not know that with how many girls he has made relations. From his laptop, it will be revealed that he was running a prostitution racket or wife swapping racket. I provided IO with number which I took from my office and had given to him. He is bald but after wearing wig, he posted pictures. He is not even class I Gazetted Officer but only a clerk."
Judgment 10 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
12. Prosecution's case is that the accused established physical relations with prosecutrix on false pretext of marriage. In her initial complaint Ex. PW1/A prosecutrix stated as under: -
"... thereafter, on 19th April, he took me to Neemrana for 1 day and stayed there and there he started saying that he needs some more time before taking a final decision. After that I asked him either to continue the relation, as I was thinking only in terms of marriage as promised by him earlier or break-up......."
13. From the complaint itself it becomes clear that even after establishing physical relations with accused, prosecutrix was herself open to either continue her relationship with accused or to break-up her relation with accused. Prosecutrix stated that when accused sought more time for taking a final decision, then she was open for the marriage as well for break-up with him. Therefore, at that stage, the consent given by prosecutrix for physical relations with accused cannot be understood to be given under any misconception rather even prior to that prosecutrix had already established physical relations with accused in February 2014.
Judgment 11 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
14. Prosecutrix claims that she came to know about the earlier marriage of accused with Rani in December 2014 and in this regard prosecutrix in her examination- in- chief deposed as under:
"On 24.11.2014 I received a true caller notification that some Rani Vishwakarma had checked my True Caller profile and she tried to contact me. Then I co- related the name of Rani Vishwakarma as once I was in the house of accused and I had seen the name of Rani Vishwakarma on the laptop of accused on the account of NSE (National Stock Exchange) as he was doing the work of trading and I had seen "Hi Rani"
written on the top right corner on the screen of the laptop of the accused."
"..... On 12.12.2014, I then finally decided to contact Rani and to verify the facts disclosed by accused to me about her because accused was constantly changing his versions about his relation with Rani. I contacted her on Whatsapp and Rani sent her marriage photographs which took place between her and accused on 05.03.2014 i.e. the same year when accused allured me into relationship by making false claims. Rani told me is in habit of deceiving girls through matrimonial sites. I shared my e-mail with Rani and thereafter Rani kept on sharing her relations with accused and the relationship with accused with other woman."
Judgment 12 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
15. Prosecutrix alleged that only after coming to know of previous marriage of accused with Rani (PW3), she decided to lodge a complaint Ex. PW1/A on 28.12.2014.
16. PW-3 Rani testified that on 05.03.2014 she married accused but due to marital discord she was residing separately from accused since April 2014. She deposed that in April 2014 prosecutrix called her and told her that she was having intimate relations with accused and at that point of time, PW-3 informed prosecutrix that she was wife of accused. During her cross examination, PW-3 testified that many a times she noticed that accused and prosecutrix near her office during April 2014 and during that time prosecutrix exchanged greetings with her. PW-3 further deposed that prosecutrix was aware that accused used to come there to pick her from her office.
Judgment 13 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
17. Going by the version of PW-3 Rani, it becomes evident that from very inception of her relationship with accused, prosecutrix was aware that accused was having relations with Rani and not only this PW-3 confirms that she herself told prosecutrix that she is wife of accused. PW-3 falsifies the claim of prosecutrix that for the first time in November 2014 she became aware about the marriage between accused and Rani.
18. There is one another aspect of the matter. During the cross examination, prosecutrix deposed that she was not aware whether office of Rani was near to her office or that Rani was working with NDR Solutions Pvt. Ltd. Though she admitted that for the first time she met accused outside her office. On the other hand, PW-3 Rani during her cross examination deposed that she was working with NDR Solutions, Gurgaon and also deposed that Pearl Tower in which office of prosecutrix was located was just behind her office. This version of PW-3 lends support to her Judgment 14 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra testimony that she noticed accused and prosecutrix near her office during April 2014 and she met prosecutrix during that time.
19. Prosecutrix was not only aware about the relationship of accused with Rani but she was also aware that accused was in relationship with another woman namely 'AC' (identity withheld). In this regard prosecutrix in her testimony deposed as :-
"He also told me that about a lady namely Ms. Ac and that he used to visit her once in a week i.e. on Tuesdays or Wednesdays and also used to spend night with her. When I questioned accused about this, he told me that he is no more having any relations with Ac and he further told me that he is serious for me. Thereafter I stopped talking to accused due to above reasons of his relations with Ms. Ac and during this period accused tried to convince me that he had ceased all his relations with Ms. Ac. Accused further told me that he had earlier told me a lie that he used to go to meet a son of his male friend for the reason that had his son been alive he would have of the same age and in fact he used to go to meet son of Ms. Ac. Accused further told me that he i.e. accused is now no more interested in said Ms. Ac and said 'No' to her. I was quite upset and started maintaining distance from him due to conduct of the accused but accused continuously tried to contact me on my mobile phone Judgment 15 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra and he tried to convince me that his all relations with Ms. Ac are over now and he wants to marry me."
20. Above stated testimony of prosecutrix indicates that accused was visiting 'AC' once in a week and was also spending night with her. Moreover, prosecutrix during her cross- examination admitted her conversation in a CD Ex. PW1/D-6 with friend of accused AC and its transcript as Ex. PW1/D-7. In conversation prosecutrix is telling 'AC' that there is no fault on part of accused and one Ryan is plotting against 'AC' and Rani is plotting against accused. In this conversation, prosecutrix mentioned that accused supports and loves 'AC' .
21. The very fact that from the beginning of her relationship with accused, prosecutrix was aware that there are another women in the life of accused and with whom accused has intimate relationship, in such a scenario, it is hard to believe that prosecutrix under pretext of marriage consented to have physical relations with accused.
Judgment 16 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
22. Before filing of the FIR prosecutrix sent some messages to accused and during her cross-examination she admitted Whatsapp messages exchanged between her and accused. During her deposition prosecutrix in respect of these messages deposed as under:
" It is correct that on 03.11.2014, I sent a message to accused that "luckily Sachin is back and with me. You stand nowhere in front of him. Really love him. We are going to Neemrana this weekend. Earlier I was avoiding and now we are going". Vol I sent this message to accused to make him jealous In fact there was no Sachin in my life."
23. It is evident that prosecutrix herself stated that one Sachin is back in her life and she loves him. Prosecutrix states that accused is nothing in front of Sachin. Though prosecutrix claimed that she sent this message to accused to make him jealous but the fact remains that such a message was sent to accused by prosecutrix even before when she claims to have come to know about the marriage of accused with Rani.
Judgment 17 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
24. Prosecutrix admits sending of another message dated 05.11.2014 to accused and the same reads as under:
"Yaa I am not accusing you for rape it was mutual between us. I never insisted to stay at your place. It was mutual again. You won't understand. You better don't talk about it. Your bill is still lying opened with me. Aunty jaise karna hota to ab tak kardiya hota. Upload real you if I really value your future relation. I accepted you the way you were."
25. Prosecutrix explained that she sent this message on the context that accused uploaded his fake pictures wearing wig at Secondshadi.com but the fact remains that prosecutrix in this message do admits that relationship between her and accused was mutual and she is not accusing accused for raping her.
26. Prosecutrix claims that accused met her through the website Secondshadi.com but prosecution is unable to prove that prosecutrix at any point of time created a profile on that website. Prosecutrix during her cross-examination in respect of profile of accused on Secondshadi.com deposed as under:-
Judgment 18 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
".....It is also correct that no date is mentioned on Ex. PW1/B. Profile picture of accused visible in Ex. PW1/B was clicked by me when I was going with accused to Nainital....."
".... I do not remember the date when I clicked profile of accused on my mobile phone. I clicked Ex. PW 1/B on my mobile from the computer at my residence. It is correct that the page which is visible in Ex. PW1/B is "My profile" page which can be opened by the user/owner. Vol. This profile page was got opened through my ID of second Shaadi.com. It is correct that at point X on Ex. PW1/B, height is mentioned as 4' 5''. As per my observation accused must be around 5 feet".
27. Prosecutrix admits that the photograph appearing on profile page of accused was in-fact clicked by her when she was going with accused to Nainital. Prosecutrix admits that the page Ex. PW1/B is "My profile" page which was opened by her through her ID of Secondshaadi.com. Prosecutrix also admitted that in this profile page, height of accused is mentioned as 4' 5'' feet whereas accused is about 5 feet tall.
Judgment 19 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
28. From testimony of prosecutrix it is crystal clear that she was having password of said profile at Secondshadi.com of accused and even the photograph appearing on profile was clicked by prosecutrix herself. Therefore, it is doubtful that the profile was created by accused nor there is any evidence on record to substantiate this allegation. The fact that even the height of accused is mentioned as 4.5 feet on the profile page Ex. PW1/B further creates doubt over the genuineness of creation of profile by accused on Secondshadi.com as no person who is interested in a marriage would mention himself to be of shorter height from his actual height.
29. Complaint Ex. PW1/A though was lodged with police on 31.12.2014 but the same is bearing the date 28.10.2014. In the Complaint prosecutrix narrated the incident of November 2014. Prosecutrix during course of her cross-examination admits that before filing of the complaint she talked to Rani and one Ryan Judgment 20 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra in respect of contents of complaint. Prosecutrix admits that before filing of the complaint she sent a draft of complaint Ex. PW1/D-4 to her lawyer and in the body of complaint the words promise to marry, threaten or having forceful sexual intercourse were not appearing. A copy of such complaint as Ex. PW3/D-3 dated 27.10.2014 was also sent to PW3 Rani by prosecutrix. These all facts show that prior to lodging of present complaint, prosecutrix was in consultation with her friends as to ascertain kind of allegations she should make against accused.
30. Main gist of prosecution case is that accused obtained consent of prosecutrix to establish physical relations with her on false promise to marry her. In Uday Vs State of Karnatka, 2003(4) SCC 46, Hon'ble Apex Court held as under:
In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception.
Judgment 21 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
31. If we for sake of arguments presume that accused did establish physical relations with prosecutrix even then statements of prosecutrix do indicate that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act. Thus, her own evidence reveals that she took a conscious decision after active application of mind to the things that were happening. She was will aware about relations of accused with other women.
32. From above stated discussions it emerges that :
i) Prosecutrix is an educated lady with mature understanding.
ii) Prosecutrix was aware that accused was in relationship with other women.
iii) Prosecutrix herself admits to be in relationship with other person.
iv) There is no evidence on record to establish that accused obtained consent of prosecutrix for physical relations with her deceitfully.
Judgment 22 of 23 SC No. 440309/16 State Vs. Sanjeev Kumar Kumra
33. Conclusion: From aforesaid discussions, it is held that prosecution has failed to bring on record clear, cogent and consistent evidence against accused. Hence, by giving benefit of doubt, accused is acquitted of the offence he is charged with.
Accordingly, accused stands acquitted. His surety is discharged. Bail bond stands canceled. Accused is directed to furnish a personal and surety bond in sum of Rs. 10,000/- under provisions of Section 437-A Cr.P.C which shall remain in force for period of six months.
File be consigned to record room.
Announced in the open court on 16th day of April, 2018. Digitally signed by (GAUTAM MANAN)
GAUTAM GAUTAM MANAN
ASJ (SFTC) /SOUTH WEST
MANAN Date: 2018.04.17
14:57:25 +0530 DWARKA COURTS:DELHI
Judgment 23 of 23