Delhi District Court
State vs . Rahul Yadav, on 24 July, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.32/15.
Unique Case ID No. 02405R0049472015.
State Vs. Rahul Yadav,
S/o Sh. Bhagatram,
R/o H.No.149, Village Rajokari,
New Delhi.
Date of Institution : 29.4.2015.
FIR No. 88 dated 02.2.2015.
U/s. 376/313/506 IPC.
P.S. Najafgarh.
Date of reserving judgment/Order : 24.7.2015.
Date of pronouncement : 24.7.2015.
JUDGMENT
1. The prosecution has chargesheeted accused Rahul Yadav for the offences u/s.376/313/506 IPC.
2. It is the case of the prosecution that the accused after befriending the prosecutrix namely 'V' (real name withheld in order to conceal her identity) used to tell her that he wants to marry her. Then one day in the month of March, 2014, accused applied vermilion upon the forehead of the prosecutrix in a temple whereafter they started to have physical relations with each other. The prosecutrix had become pregnant on account of sexual relations with the accused and had to undergo abortion on both SC No.32/15. Page 1 of 16 the occasions. Accused had told her that he does not want a child and would marry her with great pomp and show after the marriage of his sister. The accused has been refusing to kept the prosecutrix alongwith him since the end of January, 2015 and has threatened to kill her.
3. It is further the case of the prosecution that the prosecutrix had come to the police station on 02.2.2015 with the complaint against the accused. Her statement was recorded by SI Seema, on the basis of which FIR was registered. The prosecutrix was taken to RTRM Hospital, Jafarpur, for medical examination and the exhibits given to the doctor were seized. The prosecutrix submitted her medical papers to the IO on 03.2.2015 which were seized. Statement of the prosecutrix u/s.164 Cr.PC was got recorded on 04.2.2015. Accused Rahul and his friend Vijender were summoned to the police station for inquiry. The IO then obtained the call detail records of mobile no.7053455781 of the prosecutrix and 9910700405 of the accused. It came to be known that both have been talking to each other regularly on these mobile numbers. Accused Rahul was granted anticipatory bail by the Sessions Court. His medical examination was got conducted on 28.2.2015 and the exhibits given by the doctor were seized by the IO. All the exhibits were then sent to FSL for forensic examination.
4. After completion of the investigation, Charge Sheet was prepared by the IO and was submitted to the concerned court.
5. Upon committal of the case to the court of Sessions, Charges u/s.376 IPC and u/s.506 IPC were framed against the SC No.32/15. Page 2 of 16 accused on 05.6.2015. The accused denied the charges and hence trial was held.
6. The prosecution has examined five witnesses to prove the charges against the accused. The accused was examined u/s. 313 Cr.PC on 16.7.2015 wherein he denied the prosecution case and claimed false implication. He, however, admitted that the prosecutrix alongwith her friend was residing on rent in his house in Rajokari since March, 2013. He also admitted that he used to talk to the prosecutrix on phone and they used to meet each other near Shiv Murti on Delhi Gurgaon Road. He also admitted that he had engaged in physical relations with the prosecutrix and the prosecutrix had become pregnant on account of the same. He denied that he had asked the prosecutrix to terminate her pregnancy. He further stated that he and the prosecutrix used to have physical relations with each other as they were in love with each other but they never intended to marry each other. He denied that he had extended any promise or assurance to marry the prosecutrix.
7. I have heard Ld. APP for State and have perused the entire record.
8. The prosecutrix has been examined as PW1. The relevant portion of her examination in chief is reproduced herein below :
"In the year 2013, I was doing job in Hotel Ramada, Gurgaon, and was residing in a rented accommodation in Gurgaon. Later on, I shifted to the SC No.32/15. Page 3 of 16 house of the accused Rahul Yadav (present in court and correctly identified). I alongwith my friend Monika had taken up a room on rent in the accused's house in Rajokari in March, 2013. One more tenant by name Bijender was residing in the house of accused. One day Bijender told me that the accused has told him that he loves me. I told Bijender to tell the accused that I do not want to talk to him or otherwise, I would complain to his mother.
Accused had taken my mobile number from Bijender. He called me to say that he loves me and wants to marry me. I told him that I do not want to marry him. He continued to make calls to me and I continued to tell him that I do not want to marry him. After some time, I went to my native place in Jhansi on account of my brother's marriage. Accused used to ask Monika about me and when I would return. Thereafter, Monika also vacated the room.
I returned from my village on 25.3.2013. Accused used to come to my office and used to meet me at the gate of the office. He used to request me to talk to him but I always refused to talk to him. However, after a few days, I started talking to him. We continued to talk to each other on phone. We also used to meet each other near 'Shiv Murti' on Delhi Gurgaon road. On the day of 'Shivratri' in the year 2014, accused took me to Malai Mandir. He applied vermilion on my forehead in the temple and then dropped me at my home. After a few days, the accused took me to his house in Rajokari. His mother was present in the house at that time and she started scolding the accused saying that why he has brought me to home. She scolded me also. However, later on, she told me that if her son is happy with me, she also would be happy. Thereafter, accused shifted all my goods to his house and lodged me in a room on the ground floor of his house. His mother was staying on the first floor. Accused used to stay with me on the ground floor. I stayed in his house for about three months. We used to stay as husband and wife.
Court Question :Did you and accused engage in physical relations with each other during the aforesaid period?SC No.32/15. Page 4 of 16
Answer : No. Again said, 'Yes', there had been physical relations between us.
All the neighbouring villagers had come to know about our marriage but the accused and his family did not want to disclose this fact to anybody. They advised me not to disclose this fact to anybody till the marriage of accused's sister Priyanka.
I had become pregnant on account of physical relations with the accused. However, the accused's family asked me to terminate the pregnancy saying that they cannot disclose about this fact to anybody. Accordingly, I got my pregnancy aborted on 17.7.2014 in Orbit Hospital, Gurgaon. From hospital, I was brought to the house of the accused. Thereafter, the accused used to beat me. Relatives of accused used to come to their house and asked about me. Upon this, they told me to reside outside their house for some time. Accused arranged a room on rent for me in Rajokari itself and I started residing there. I also took up a job. Accused's sister Priyanka got married on 19.4.2015.
In the month of January, 2015, I came to know that engagement of the accused has been performed. I confronted the accused and his family member with the same and they denied that accused's engagement has been performed. I met the accused for the last time on 25.1.2015 and 26.1.2015. Thereafter whenever I made calls to him, his phone was switched off. I visited the house of accused but he was not present there. His mother told me that he has gone to his maternal uncle's house. I requested her to give me the telephone number of his maternal uncle so that I can talk to him but she did not give the telephone number to me. I again visited their house the next day and this time, his mother rebuked me. She told me that she cannot make me her daughter in law as I am not a good girl. She also told me that they want a Swift car in dowry.
I did not see accused and did not talk to him thereafter till date. We had physical relations with each other from April, 2014 to January, 2015.
On 02.2.2015, I alongwith my father and an SC No.32/15. Page 5 of 16 official of NGO namely Manju Dahiya reached P.S. Najafgarh where my statement was recorded which is Ex.PW1/A bearing my signature at point A. From the police station, I was taken to RTRM Hospital where my medical examination was conducted. From hospital, I was brought back to police station and then I returned to my home."
9. She further proved her statement u/s.164 Cr.PC as Ex.PW1/B. She also stated that she had accompanied the police officials to the house of accused on 04.2.2015 and the accused was apprehended and brought to the police station. In the cross examination conducted by Ld. APP after she was declared hostile, she denied that the accused has issued any threat to her. She stated voluntarily that accused's parents had threatened to kill her when she had gone to their house in January, 2015.
10. In the cross examination conducted on behalf of the accused. She deposed that she took up a room on rent in the house of accused on 15th or 16th March, 2013 and Monika was already residing there as a tenant. She did not know when Monika had taken the room on rent. She shifted to the house of accused at the asking of Monika and she shared the room with Monika. She used to pay her share of rent to Monika. She had not executed any rent agreement with the accused. She stated that she saw accused Rahul for the first time in the tenanted house after she shifted there. She admitted that the accused was not residing in that house and he resided in another house which was at a distance from the house in which she was staying as a tenant. She deposed that accused's family had kept their cattle also in the house in which she was staying as a tenant and the accused as SC No.32/15. Page 6 of 16 well as his family members used to visit the said house frequently to look after the cattle. She knew that the accused is a son of their landlord.
11. She further deposed that Monika had vacated the tenanted room in the house of accused in April, 2013 at her back. However, she again started residing with Monika upon her return from her native village. According to her, Monika had become fed up with the enquiries of accused Rahul about her. She denied that the actual reason for vacating the house of accused was that she had a desire to marry him as he belongs to affluent family and her family was having financial constraints. She stated that Monika had introduced her to accused's mother saying that she is the landlady. She used to exchange greetings with accused's mother whenever she visited the tenanted house.
12. She deposed that she did not apprise her family members about her relationship with Rahul. She did not tell them that accused had put vermilion on her forehead in the temple. She also did not tell them that Rahul has been persuading her to have friendship with him. She admitted that she knew that there is a wide difference in financial status of her family and accused's family. She also admitted that her marriage was not possible with the accused on account of such huge difference in financial status of the two families. She admitted that her family members had never met the family members of the accused. She denied that the physical relations between her and the accused were with her consent out of their love and affection towards each other and also for the reason that she herself intended to marry him, he SC No.32/15. Page 7 of 16 belonging to an affluent family. She denied that she remained in relationship with the accused only till the time he continued to sponsor her luxurious needs and decided to lodge the complaint against him as soon as she realized that he is about to get engaged and would not have in a position to continue financial help to her.
13. As already noted herein-above, it is not disputed by the accused that he was having sexual relations with the prosecutrix. His defence is that the physical relations between him and the prosecutrix were with her consent out of their love and affection towards each other and not on account of his promise or assurance to marry her. However, the case of the prosecution is that the accused obtained consent of the prosecutrix for sexual intercourse on the basis of false promise of marriage and therefore, the consent of the prosecutrix cannot be termed as free or fair, the same being tainted and hence the accused has committed offence of rape.
14. 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 SC No.32/15. Page 8 of 16 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."
15. Similarly, in Pradeep Kumar @ Pradeep Kumar Verma vs. State of Bihar & anr., (2007) 7 SCC 413, the Supreme Court observed as under :
"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."
16. In Deelip Singh @ Dilip Kumar vs. State of Bihar, SC No.32/15. Page 9 of 16 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, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology."
17. 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 SC No.32/15. Page 10 of 16 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."
18. 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 SC No.32/15. Page 11 of 16 due deliberation wherein the mind weighs 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 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.
19. 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.
20. In the instant case, the prosecutrix has not mentioned either in her complaint to the police Ex.PW1/A or in her statement u/s.164 Cr.PC Ex.PW1/B or in her testimony before this court that SC No.32/15. Page 12 of 16 the accused had promised or assured her that he would marry her and that she had given consent for physical relations with him only on the belief that he is going to marry her.
21. In the complaint Ex.PW1/A, the prosecutrix has mentioned that the accused used to tell her that he likes her and wants to marry her and she also liked him. She further mentioned that one day in the month of March, 2014, accused put vermilion on her forehead in Malai Mandir and thereafter started having physical relations with her. In her statement u/s.164 Cr.PC Ex.PW1/B, she has stated that the accused used to tell her that he likes her and wants to marry her but she always spurned him. However, when the accused continued to make calls to her, she started talking to him and by the passage of time, they both started liking each other. She further mentioned that they solemnized marriage in the temple on the day of 'Shivratri' in year 2014. About one month thereafter, she started residing with the accused at his house and both were having physical relations with each other on account of which she became pregnant.
22. In her deposition before this court, she has stated that after initial refusal to talk to the accused, she started talking to him and they also used to meet each other near Shiv Murti, Delhi Gurgaon Road. She further deposed that accused took her to Malai Mandir on the day of 'Shivratri' in the year 2014 where he applied vermilion on her forehead. After a few days thereafter, he took her to his house in Rajokari where she stayed for three months and during that period, they had physical relations with each other as husband and wife.
SC No.32/15. Page 13 of 1623. A minute analysis of the aforesaid three statements would reveal that she nowhere mentions that the accused had promised to marry her. In all these statements, she has merely stated that the accused used to tell her that he likes her and wants to marry her. She has nowhere mentioned in any of the statements that she believed that the accused would marry her and for that reason only she consented to sexual relations with him. Her contention that the accused had put vermilion on her forehead in Malai Mandir in year 2014 does not appear to be trustworthy as she has admitted that she did not apprise her family members or anybody else about the same. In fact, she had, at no point of time, informed her family members, who also stayed at Delhi, that the accused has promised to marry her and they are going to marry very soon.
24. On the other hand, the prosecutrix has further admitted in her cross examination the fact that her marriage with the accused was not possible on account of huge difference in financial status of her family and that of accused's family. Therefore, it is manifest that the prosecutrix knew that it is not possible for her to enter into wedlock with the accused and despite such knowledge, she engaged in physical relations with him. Thus it cannot be said by any stretch of imagination that she had consented to physical relations with the accused with belief in her mind that he is going to marry her at any cost. In fact, there was no such promise or assurance extended by the accused to her.
25. It is also difficult to say that the accused had SC No.32/15. Page 14 of 16 knowledge or reason to believe that the prosecutrix had given consent to sexual relations with him because of the misconception that he is going to marry her. This is for the reason that the prosecutrix appears to have readily agreed to engage in physical relations with the accused without any protest at all merely on his saying that he likes her and wants to marry her.
26. This appears to be a case where the prosecutrix liked the accused, as admitted by her in her testimony, and agreed to have sexual intercourse with him on account of her love and passion for him and not on account of any misrepresentation made to her by the accused. I may say at the cost of repetition that the prosecutrix was aware in her mind that there is a huge difference in financial status between her family and the accused's family and therefore, their marriage is not possible.
27. Hence the evidence on record suggests that the consent of the prosecutrix to the physical relations with the accused was free, fair and voluntary and the same was not influenced by any misconception or misrepresentation. The prosecutrix liked and loved the accused. She was clear in her mind that her marriage with the accused is not possible but engaged in sexual relations with him out of love and affection for him.
28. The prosecution has failed to lead any credible and reliable evidence to prove that the accused had obtained consent of the prosecutrix to the physical relations with him by deceit or misrepresentation or by any false promise. Therefore, Charge u/s. 376 IPC fails.
SC No.32/15. Page 15 of 1629. Regarding Charge u/s.506 IPC, I may note the prosecutrix has denied that the accused had issued any threats to her. Hence this Charge too fails.
30. Resultantly, accused is hereby acquitted.
Announced in open (VIRENDER BHAT)
Court on 24.7.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.32/15. Page 16 of 16