Delhi District Court
State vs Parveen Bhanderwal // Fir ... on 17 September, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL:
ADDITIONAL SESSIONS JUDGE:SPECIAL FAST TRACK
COURT:ROHINI :DELHI
Sessions Case No : 58696/16.
STATE
V/S
PARVEEN BHANDERWAL
S/O. SH. BHAIRO PARSAD,
R/O. E04/120, SECTOR16,
ROHINI, DELHI.
FIR No : 374/13.
Police Station : BHALSWA DAIRY.
Under Section : 376/313/495/506 IPC.
Date of Committal to Sessions Court: 01.12.2015
Date on which Judgment reserved: 11.09.2019
Date on which Judgment announced: 17.09.2019
Present: Shri V.K. Negi, ld. Addl. PP for State.
Ms. Sindhu Sakkarwal, ld. Counsel for accused.
State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 1 of 16
JUDGMENT
1. The prosecutrix had joined as cashier in a shop "Sab Ka Bazaar" situated in Shashtri Nagar in 2008 where she met accused, who was working as Manager and he proposed her marriage which she refused. Thereafter, he started torturing her saying that if she did not marry her, he would die. Both married in Arya Samaj Mandir on 20.01.2010 and started residing as husband and wife and physical relations were also established but she was not taken to his house. He had not told at the time of marriage that he was a married man having a daughter of 56 years. He got her aborted with medicines and took her to a doctor in Rohini when foetus was not aborted completely. He used to tell her that his brother was employed in Merchant Navy had expired and that his family members wanted him to marry with his bhabhi. She visited his house 34 times but his parents refused to accept her saying that their son was a married man. He and his parents advised her to marry somewhere else. He had borrowed Rs.50,000/ from her in May, 2013 which he did not return. Her marriage was to be solemnized with some other boy on 29.01.2013 but the accused told the would be bride goorm about their relationship due to which her marriage was broken.
2. Charge under sections 495/376/313/506 IPC was framed against accused on 01.06.2016 to which he pleaded not guilty and claimed trial.
3. In order to prove the case, the prosecution examined ten State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 2 of 16 witnesses.
4. PW1/prosecutrix deposed that she met accused first time in 2008 in SabkaBazaar where he was working as store manager and she had joined as customer handler. She consumed some pill on 18.01.2010 due to which she became drowsy and hence, she went to a nursing home and thereafter Mandir Marg, New Delhi where the officials of Hindu Sabha Mandir had obtained her signatures on some papers. She went to police station on 02.12.2013 as there was a quarrel between her and the accused. The police officials took her signatures on papers and took her to BJRM Hospital where she was medically examined. Later, she was produced before the court where she got recorded her statement Ex.PW1/A as per instructions of the police. She did not support the prosecution case and was declared hostile.
PW2 Dropdi Devi is the mother of the prosecutrix and she did not depose any fact favourable to the prosecution. She was also declared hostile. In crossexamination by Addl. PP, she deposed that she did not tell police that her daughter told her that the accused established physical relations with her on the pretext of marriage and later, refused to marry her and made her to abort the child giving him some pills.
PW3 Priya is the wife of the accused and she deposed that she had married with accused on 05.02.2003 according to the Hindu rites and ceremonies and after marriage, she started living with him as his wife in his H.No.E4/120, Sector16, Rohini, Delhi.
5. PW4 Deepak Kumar Shashtri (Purohit) placed on record State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 3 of 16 marriage record of the accused and prosecutrix. He deposed that the accused and prosecutrix came to his office i.e. Akhil Bharat Hindu Mahasabha Mandir, Mandir Marg, New Delhi and gave affidavits Ex.PW4/A and Ex.PW1/F respectively on the basis of which he solemnized their marriage and photographs Mark PW4/C1 to Ex.PW4/C2 were clicked. He issued them marriage certificate Ex.PW1/E, bearing his signature at point B. PW9 Dr. Sunita Goel deposed that she was running a medical centre in 2012 in premise number A1/84, Sector8, Rohini, Delhi. In December, 2012, the prosecutrix came to her centre and told that she had already aborted pregnancy after taking medicines but some pieces were still present in the womb. She checked her in OPD and gave treatment as there was no need of surgery because such problem can be cured even with the help of medicines. She next deposed that police had given her notice Ex.PW9/A under Section 91 Cr.P.C. in 2014 which she had replied in writing on notice itself.
6. PW7 W/Ct. Seema got the prosecutrix medically examined in BJRM Hospital on 02.12.2013. She deposed that after examination, the doctor handed her over sexual assault evidence collection kit and sample seal which she gave to IO who seized the same vide seizure memo Ex.PW7/A. PW6 Ct. Jaipal Yadav was present with SI Sangeeta on 09.12.2013 on the red light of Bhalswa Dairy, Ring Road, Delhi when the accused was arrested at the instance of the prosecutrix vide arrest and State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 4 of 16 personal search memos Ex.PW1/C and Ex.PW1/D respectively and thereafter, he was medically examined in BJRM Hospital. He deposed that after said examination, the doctor handed over samples of the accused in sealed condition which he handed over to the IO, who seized the same vide seizure memo Ex.PW6/A.
7. PW8 HC Shyam Lal was working as MHC(M) on 02.12.2013 when W/SI Sangeeta deposited with him a sealed parcel containing sexual assault evidence collection kit and sample seal for which he made entry number 1634 Ex.PW8/A in register no.19. He deposed that the same IO deposited with him a sealed parcel and one sample seal on 09.12.2013 for which he made entry number at serial number 1640 Ex.PW8/B in register no.19. He handed over two sealed parcels alongwith sample seals to Ct. Sunil on 10.01.2014 vide RC No.2/21/14 Ex.PW8/C and after deposit in FSL, Rohini, Ct. Sunil handed him over receipt acknowledgment Ex.PW8/D. PW5 HC Sunil Kumar deposed that he took delivery of two sealed parcels and two sample seals from MHC(M) on 10.01.2014 and deposited the same in FSL and he did not tamper with the case property till it was remained in his possession.
8. PW10 IO/W/SI Sangeeta deposed that the prosecutrix alongwith her mother came to police station on 01.12.2013 and alleged rape and abortion by the accused. She was got medically examined through W/Ct. Seema in BJRM Hospital and was brought back to the police station where she recorded her statement Ex.PW1/B, prepared State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 5 of 16 rukka Ex.PW10/A and got the FIR Ex.PX1 registered. W/Ct. Seema produced exhibits of the victim which she seized. She searched the accused in his house but he was not available there. The statement of the prosecutrix under Section 164 Cr.P.C., was got recorded on 07.12.2013. The accused was arrested on 09.12.2013 on the identification of the victim vide arret and personal search memo Ex.PW1/C and Ex.PW1/D respectively and his potency test Ex.PX2 was got conducted through Ct. Jaipal. After examination, Ct. Jaipal had produced exhibits of the accused which she seized vide seizure memo Ex.PW6/A. She next deposed that she served notice Ex.PW9/A under Section 91 Cr.P.C. upon Dr. Sunita Goel on 15.12.2013, which was replied by her on notice page itself on 01.05.2014. She had verified the marriage certificate Ex.PW1/E of the accused and victim and their affidavits Ex.PW1/C and Ex.PW4/A. She next deposed that exhibits were sent to the FSL for analysis on 10.01.2014 through Ct. Sunil. She relied upon FSL report as Ex.PW10/C.
9. The accused admitted following documents and statements under Section 294 Cr.P.C.: S. No. Name of the documents Admitted Denied Exhibited i. MLC No.70291 dt. 01.12.2013 of BJRM Yes - Ex.PX1 Hospital conducted by Dr. Nitin Mukesh, JR, Casualty in respect of prosecutrix ii. MLC No.70291 dt. 01.12.2013 of BJRM Yes Ex.PX1 Hospital conducted by Dr. Prem Singh Bishnoi, CMO in respect of prosecutrix.
iii. MLC No.70649 dt. 09.12.2013 of BJRM Yes Ex.PX2 Hospital conducted by Dr.Pankaj, JR, Casualty in respect of accused.
iv. MLC No.70649 dt. 09.12.2013 of BJRM Yes Ex.PX2 State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 6 of 16 Hospital conducted by Dr.Davender,SR,Surgeon in respect of accused.
v. Opinion No.15/14, dt.03.2.14, of BJRM Hospital Yes Ex.PX3 in respect of Potency Test of accused conducted by Dr. Bhim Singh, MD.
vi. HC Om Prakash, Duty officer, who registered Yes - Ex.PX4 the case FIR.
vii. Sh. Deepak Dabas, ld. MM, Rohini, who had Yes - Ex.PX5
conducted the proceedings u/s. 164 Cr.P.C. &
and also issued certificate both dated PX6
07.12.2013.
10. Under Section 313 Cr.P.C., accused denied all incriminating material put to him.
11. No witness has been examined in defence.
12. Ld. defence counsel argued that the prosecutrix and her mother have been declared hostile. None of them deposed that the accused had promised that he would marry prosecutrix and under that impression, prosecutrix established physical relation with him.
Next argument is that the prosecution has failed to prove Section 313 IPC also because it has been deposed by the prosecutrix herself as PW1 that she had taken some pills on 18.01.2010 as she was not feeling well. After consuming the pills, she became drowsy and went to a nursing home alongwith accused. She nowhere deposed that it was accused who had given her pills to abort the child.
The last argument is that prosecution has failed to prove charge under Section 495 IPC also because PW4 Deepak Kumar Shashtri (Purohit) did not depose that while undergoing marriage ceremonies on 20.01.2010, the accused and victim had done the saptapadi ceremony.
State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 7 of 16
13. On the other hand, ld. Addl. PP argued that it has been proved by PW3 Priya that she was married with the accused as per Hindu Rites and Ceremonies on 05.02.2013. As per PW4 Deepak Kumar, the accused married with victim on 20.01.2010. Subsequent marriage is proved by marriage certificate and affidavits of accused and victim. He submitted that the victim has admitted that affidavit for marriage was bearing her signatures. He concluded the argument saying that case is fully proved against the accused under Section 495 IPC.
14. Perusal of the chargesheet shows that the main grouse of the victim is that accused did not marry her despite establishing physical relations on the promise of marriage. As per her, she had come into contact with the accused first time in 2008. There is a vital document Ex.PW10/DA i.e. copy of a petition under Section 13 of the Hindu Marriage Act 1955 filed by the prosecutrix against one Gajender. As per that document, the prosecutrix was married with Gajender on 08.06.2006 i.e. before coming into contact with the accused. There is an ordersheet dated 22.12.2010 passed by Family Judge 02, Ms. Poonam A Bamba, Rohini courts vide which the case of the prosecutrix for divorce was dismissed in default as well as for non prosecution. It means that the marriage of the prosecutrix with one Gajender was in existence from 08.06.2006 to 22.12.2010. She came into contact with accused in 2008. In 2008, she was a married lady and hence, she was well aware that even if the accused wanted to marry her, she was not in a position to marry him as incompetency to marry was from her side because she was a State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 8 of 16 married lady. As she was well aware that she cannot marry with the accused in 2008, it cannot be said that she established physical relation with him on his promise that he would marry her. On this score, the case of the accused is well covered by Prashant Bharti vs. State of NCT of Delhi, in Criminal Appeal No. 176 of 2013 (arising out of SLP (Criminal) No. 1800 of 2009), decided on 23.01.2013, in which following was held by Hon'ble Supreme Court of India: "16. The factual position narrated above would enable us to draw some positive inferences on the assertion made by the complainant/prosecutrix against the appellantaccused (in the supplementary statement dated 21.02.2007). It is relevant to notice, that she had alleged, that she was induced into a physical relationship by Prashant Bharti, on the assurance that he would marry her. Obviously, an inducement for marriage is understandable if the same is made to an unmarried person. The judgment and decree dated 23.09.2008 reveals, that the complainant/prosecutrix was married to Lalji Porwal on 14.06.2003. It also reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two divorced one another by mutual consent under Section 13B of the Hindu Marriage Act. In her supplementary statement dated 21.02.2007, the complainant/prosecutrix accused Prashant Bharti of having had physical relations with her on 23.12.2006, 25.12.2006 and 01.01.2007 at his residence, on the basis of a false promise to marry her. It is apparent from irrefutable evidence, that during the dates under reference and for a period of more than one year and eight months thereafter, she had remained married to Lalji Porwal. In such a fact situation, the assertion made by the complainant/prosecutrix, that the appellant - accused had physical relations with her, on the assurance that he would marry her, is per se false and as such, unacceptable. She, more than anybody else, was clearly aware of the fact that she had a State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 9 of 16 subsisting valid married with Lalji Porwal.
Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage. If the complainant/prosecutrix herself is taken into consideration alongwith the factual position depicted in the supplementary statement dated 21.2.2007, it would clearly emerge, that the complainant/ prosecutrix was in a relationship of adultery on 23.12.2006, 25.12.2006 and 01.01.2007 with the appellantaccused, while she was validly married to her previous husband Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the assertion made by the complainant/prosecutrix, that she was induced to a physical relationship by Prashant Bharti, the appellant
- accused, on the basis of a promise to marry her, stands irrefutably falsified".
15. Moreover, the prosecutrix did not depose that the accused had ever promised to marry her or he had ever established physical relation with her or he ever refused to marry her. In crossexamination by Addl. PP, she deposed that she had not told police that the accused promised to marry her, established physical relations on that promise and later refused to marry.
Her mother also did not support the prosecution case as she deposed that she had not told police that her daughter told her that the accused had promised to marry her, established physical relation with her on that pretext and later refused to marry.
FSL report Ex.PW10/C is also not supporting the prosecution case because as per that report, no semen could be detected in cervical mucus, vaginal secretion, vaginal washing, breast swab, rectal swabs and oral swabs. So, it is held that the prosecution has failed to State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 10 of 16 prove case under Section 376 IPC.
16. For offence under Section 313 IPC, the prosecutrix did not depose that the accused had given her pills due to which she aborted the child. Rather, she deposed in crossexamination by ld. Addl. PP that she had not told IO that due to physical relations with the accused she became pregnant and he got her aborted by giving her medicines. In order to prove abortion, the prosecution examined PW9 Dr. Sunita Goel but she also failed to prove abortion as she deposed that the prosecutrix came to her centre in December 2012, and told that she had aborted pregnancy after taking medicine but some pieces were left in the womb. She gave her medicines. So, as per evidence of PW9 Dr. Sunita Goel, it was the prosecutrix herself who had aborted the pregnancy.
17. To prove the charge under Section 495 IPC, the prosecution examined PW4 Pandit Deepak Kumar Purohit who deposed that the prosecutrix and accused came to his office i.e. Akhil Bhartiya Hindu Mahasahba Mandir, Mandir Marg, New Delhi on 20.01.2010 and tendered their original affidavits for the purpose of marriage on the basis of which he solemnized their marriage and issued marriage certificate Ex.Pw1/E. Photographs Mark PW4/C1 to C2 of the marriage were also clicked.
The first marriage of the accused has been proved by none else than his wife i.e. PW3 Priya who deposed that she had married with the accused as per Hindu rites and ceremonies on 05.02.2003. There is no document on record that the first marriage of the accused was ever State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 11 of 16 dissolved. So, his first marriage with PW3 as on 20.01.2010 was subsisting.
The first marriage of the prosecutrix with one Gajender is proved by the certified copy of her divorce petition Ex.PW10/DA in which it is mentioned that she had married with Gajender on 08.06.2010. The ordersheet dated 22.12.2010 shows that her petition for dissolution of marriage was dismissed in default as well as for nonprosecution. It means that her marriage with Gajender had started to exist on 08.06.2010 and was still subsisting on 20.01.2010.
18. On marriage with accused, the prosecutrix deposed that she was not feeling well on 18.01.2010 and so, she took some pills after consuming of which she became drowsy and went to Mandir Marg, New Delhi where her signatures were taken on some papers. In cross examination by ld. Addl. PP, she admitted that the marriage certificate Ex.PW1/E was bearing her signature at point A and her affidavit Ex.PW1/F was also bearing her signatures at point A. Ex.PW4/A is copy of the affidavit of a person namely Parveen Bhanderwal to the effect that he was a bachelor and he intended to marry with the prosecutrix. It is mentioned in the affidavit Ex.Pw1/F of the prosecutrix that she was unmarried and she intended to marry Mr. Parveen Bhanderwal. It is mentioned in marriage certificate Ex.Pw1/E that accused Parveen Bhanderwal and victim had married with each other on 20.01.2010.
19. In view of above discussion, it is apparent that first marriage State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 12 of 16 of the accused as well as of the prosecutrix with their spouses is well proved. For the purpose of conviction under Section 494/495 IPC, the prosecution is required to prove that they validly married with each other accordingly to the ceremonies applicable to them. On this point, following was held by Hon'ble Supreme Court in Bhaurao Shankar Lokhande & Anr Vs. State of Maharashtra and Anr AIR 1965 SCR 1564 : "...We are of opinion that unless the marriage which took place between appellant no.1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicant to a marriage between the parties, the marriage cannot be said to have been 'solemnized' and therefore appellant no.1 cannot be held to have committed the offence under Section 494 IPC."
We may now determine what the essential ceremonies for a valid marriage between the parties are. It is alleged for the respondent that the marriage between appellant no.1 and Kamlabi was in 'gandharva' form, as modified by the custom prevailing among the Maharashtrians. It is noted in Mullas Hindu Law, 12 th Edition, at p.605:
"The Gandharva marriage is the voluntary union of a youth and a damsel which springs from desire and sensual inclination. It has at times been erroneously described as an euphemism for concubinage. This view is based on a total misconception of the leading texts of the Smritis. It may be noted that the essential marriage ceremonies are as such a requisite part of this form of marriage as of any other unless it is shown that some modification of those ceremonies has been introduced by custom in any particular community or caste."
State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 13 of 16 At p. 615 is stated:
"(1) There are two ceremonies essential to the validity of a marriage, whether the marriage be in the Brahma form or the Asura form, namely: (1) invocation before the sacred fire, and (2) Saptpadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacret fire.
(2) A marriage may be completed by the performance of ceremonies other than those referred to in subsection (1), where it is allowed by the custom of the caste to which the parties belong"
The Hon'ble Apex Court concluded : "...We are therefore of opinion that the prosecution has failed to establish that the marriage between appellant no.1 and Kamlabai in February 1962 was performed in accordance with the customary rites as required by S.7 of the Act. It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law. It follows therefore that the marriage between appellant no.1 and Kamlabai does not come within the expression 'solemnized marriage occurring in S. 17 of the Act and consequently does not come within the mischief of S. 494 I.P.C. even though the first wife of appellant no.1 was living when he married Kamlabai in 1 February 1962..."
20. In the case in hand, PW4 Pandit Deepak did not say a single State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 14 of 16 word about the ceremonies under which the accused and victim underwent while marrying with each other on 20.01.2010. He merely placed on record some documents. In crossexamination by the accused, he deposed that necessary ceremonies of vaidik marriage are :
(a) Enchanting of mantras, (b) jaimala, (c) kanyadaan,
(d) hawan, (e) gathbandhan, (f) feras, (g) sindur, (h) daan and
(i) mangalsutra.
He did not depose specifically that accused and victim had undergone those ceremonies. Even it is presumed that the accused and victim had undergone the ceremonies deposed by PW4 in cross examination, still the prosecution has failed to prove the case because as per above citation two essential ceremonies for a valid marriage are :
(i) Invocation of the sacred fire and
(ii) Saptapadi.
If the parties did not undergo above ceremonies, they can marry validly by performing ceremonies which are allowed by the custom of the caste to which they belong. In the case in hand, PW4 did not depose that chanting of mantras was before sacred fire. He did not depose about the number of saptapadi undertaken by the parties. Due to that reason, the prosecution has failed to prove that marriage between parties was performed by observing above two essential ceremonies. It is not the prosecution case that for marrying validly, the parties had an exception of ceremonies as per the custom of their caste.
21. Taking into account these facts and circumstances and above State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 15 of 16 citation, it is held that prosecution has failed to prove the case under section 495 IPC also.
22. In view of above discussion, it is held that the prosecution has failed to prove the case. Hence, the accused Parveen Bhanderwal @ Sunny is acquitted of the offence he was charged with.
23. The personal and surety bonds of the accused are hereby cancelled. Surety is hereby discharged. The endorsement made, if any, on any document of soundness of surety, be cancelled and the document be returned to surety.
File be consigned to record room.
Digitally signed UMED by UMED
SINGH GREWAL
SINGH Date:
GREWAL 2019.09.18
13:13:40 +0530
Announced in the open Court (Umed Singh Grewal)
on this 17th September, 2019 ASJ : Spl. FTC (North)
Rohini Courts : Delhi
State vs Parveen Bhanderwal // FIR No.374/13//S.C. No.58606/16//PS - Bhalswa Dairy page 16 of 16