Delhi District Court
State vs . Ramanand on 29 March, 2014
IN THE COURT OF SHRI YOGESH KHANNA,
ADDITIONAL SESSIONS JUDGE - SPECIAL FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique ID No. 02406R0368382010
SC No. : 14/2013
FIR No. : 118/2008
U/s. : 420/376 IPC
PS : Greater Kailash, New Delhi.
State
(Govt. of NCT of Delhi)
........................ Complainant.
Versus
Ramanand
S/o Late Shri Sunder Lal
R/o G-46, Type-II, DESU Colony,
Tipolia, Shakti Nagar,
Delhi.
.........................Accused person.
Date of Institution : 05-01-2014
Judgment reserved for orders on : 24-3-2014
Date of pronouncement : 29-3-2014.
JUDGMENT
1. On 29-5-2008 the prosecutrix has given the following complaint against accused Ramanand, his wife Poonam and his three daughters, namely, Kajal, Richa @ Heena and Parul, stating, inter alia, that :
"I was working with DESU on State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 1 contract basis where Ramanand was also working in the capacity of Meter Reader. During the course of working the accused enticed and lured me by making false promise by saying that he is unmarried and that because of his allurement I got married with accused on 11-11-2005 at Arya Samaj Mandir, New Delhi. Thereafter, we started living in a rented house at Jamroodpur, G.K-1, New Delhi.
After about two months of the marriage the first wife and his children came at the rented house and started hurling abuses upon me and gave beating to me. I made a call to the accused and he came after some time and when I asked as to if he was married or does he have children, he made false excuses. Since he had spoiled my life so there was no other alternative for me except to live with him.
State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 2 On 22-5-2006 at about 10:30 PM the wife and children of the accused along with 4/5 other person came outside my office at Delhi Jal Board, G.K-1, Sadiq Nagar, South-III, New Delhi. As I came out of my office they all gave merciless beating to me and threaten to kill me. Because of their action I became terrified and being a single lady could not report the matter to police. Ramanand thereafter established physical relations with me on the pretext of marrying me and kept me as his wife and established relations till 17-10-2008. He is now trying to throw me out of his life. He has cheated me by taking a sum of Rs.27000/- in cash and Rs.13,700/- by cheque(s). Accused has been mentioning my name as his wife in police verification. Action be taken against him.
2. On the basis of this complaint, FIR no. 118/2008 State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 3 was registered at P.S Greater Kailash, New Delhi under section 420/406/493/376 IPC. After investigation of the case, the charge sheet was filed.
3. Since it was a Session's triable case, it was committed to this court. On 4-8-2009, a charge under 376/420 IPC was framed against the accused. He pleaded not guilty and claim trial.
4. The prosecution examined as many as 13 witnesses. Before proceeding further, let me state in brief the depositions made by the prosecution witnesses.
PW1 is the prosecutrix.
PW2 Dr. Manish Mohil, on 9-1-2007, had examined the prosecutrix. The prosecutrix had generalized weakness, nausea, high coloured urine and pain in lower abdomen. He proved her OPD Card Ex.PW2/A. The patient had filled up the admission form Ex.PW2/B. PW3 Dr. Manju Khemani deposed that on 9-1-2007 the prosecutrix was admitted in their hospital and on 10-1-2007 she found her to be suffering from tumor in State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 4 her left ovary. The pregnancy test was found to be negative and she was advised Laproscopic removal of her left ovary tumor and it was done on 12-1-2009. Not only the pregnancy test done in the hospital was negative even the USG done show that she was not pregnant and it was confirmed at the time of Laproscopic operation. She also proved the inform-consent form Ex.PW3/A where the husband of the prosecutrix gave consent for Laproscopic surgery operation. On 15-1-2007 the patient was discharged. The examination sheet Ex.PW10/B running into three pages was proved and the operation notes were also proved as Ex.PW3/C. PW4 Dr. Sudipta Ranjan Singh examined the accused vide MLC Ex.PW4/A and was of the opinion that there was nothing to suggest that accused was incapable of performing sexual intercourse under normal circumstances.
PW5 Shri Virender Marwah deposed that house no. 87-A, Jamrudpur, Greater Kailash-1, New Delhi, belongs to his mother. In the year 2007 the accused with prosecutrix used to reside there as a tenant and they State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 5 resided only for 8 to 10 days. The prosecutrix told his mother that she was working in Delhi Jal Board and her husband / accused was also working in BSES. However some of the tenant had complained his mother that accused was not the real husband of the prosecutrix and they often quarrel with each other. His mother warned them to vacate the room and then the accused vacated the room. The accused celebrated a function and PW5 attended it. PW5 identified himself and his family members in the photograph Ex.PW5/A, taken in a function celebrated by accused and the prosecutrix in the rented accommodation.
During his cross examination he deposed that both accused and the prosecutrix are matured and were voluntarily residing in the rented accommodation.
PW6 HC Naresh Kumar, on 23-8-2008, had recorded the FIR bearing no. 118/2008 under section 406/420/493 IPC and made endorsement Ex.PW6/A on the Rukka.
PW7 HC Mukesh Kumar, on 1-5-2009, had executed the NBW against accused and apprehended him State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 6 at the identification of the prosecutrix. The Investigating Officer had arrested the accused vide memo Ex.PW7/A ; conducted his personal search vide memo Ex.PW7/B and he accompanied the accused to AIIMS hospital for his medical examination.
PW8 Shri C.S Tiwari brought the original record of the accused qua his leaving of Air Force on 30-6-1992 and per record he was married to one Smt. Poonam on 18-5-1986 according to Hindu rites and ceremonies. Accused is a father of four girls, namely, Heena and Kajal (twins), Parul and the fourth namely Chandani. The certified copy of his record is Ex.PW8/A. PW9 Shri Ravinder Marwah deposed that the prosecutrix had approached his mother to take a room on rent and when his mother told her to come with her husband, the prosecutrix brought accused and one room was then rented to the accused and the prosecutrix at the first floor of house no. 87-A, Jamrudpur, New Delhi wherein they resided only for 10-12 days as husband and wife but as accused used to quarrel so the said room was got vacated. He identified two photographs Ex.PW5/A and State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 7 Ex.PW9/A of a function celebrated by the accused and his wife in the said rented accommodation.
PW10 Inspector P.D Singhal had recorded the statement of witnesses and had collected the medical record of the prosecutrix from the Gujarmal Modi Hospital already exhibited as Ex.PW2/A and Ex.PW2/B. PW11 Lady Constable Kaushlaya, on 19-3-2009, got conducted the medical examination of prosecutrix at AIIMS. She collected the MLC and gave it to Investigating Officer.
PW12 Insp Subhash Malik recorded the supplementary statement of the prosecutrix and statement of other witnesses.
PW13 Shri Raj Kumar, ACP on 9-3-2009 got conducted the medical examination of the prosecutrix and added section 376 IPC at the advise of the doctor ; arrested accused and conducted his personal search and filed the charge sheet.
During his cross examination he deposed that he inquired from the Priest of Arya Samaj (Anarkali), Mandir Marg, New Delhi who told that no marriage took place State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 8 between accused and the prosecutrix on 11-11-2005 as alleged.
5. After examination of prosecution witnesses, the statement of accused, under section 313 Cr.P.C, was recorded wherein he denied the allegations made against him. He also denied that he resided for about 10-12 days at a rented accommodation but stated that he occasionally visited the said residence. He further stated that he had a quarrel with the prosecutrix as she used to insist that he should reside with her. He did not celebrate any function but it was the prosecutrix who celebrated it and he joined the said function as an office colleague. He also admitted that he had gone to Shimla with the prosecutrix at her request in connection with her M.Com from Shimla University and they stayed at Rajdoot Hotel for about four hours to refresh themselves. He also admitted that he filled his name in the consent form Ex.PW3/A at Modi Hospital but did not told anyone that he is the husband of the prosecutrix. He submitted that he had taken a loan of Rs.25,000/- from the prosecutrix which State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 9 he had returned.
6. Accused had produced the following witnesses in his defence :
DW1 Shri Rajender Singh Dahiya, Assistant Grade-
II, BSES, had deposed that in the year 2007 a lady came to BSES office at G.K-1, New Delhi and inquired about the accused. Since accused was not in the office so she gave her mobile number and left. When accused came DW1 gave the mobile number to accused but he was not interested in talking to her. The said lady called at his mobile number and DW1 told her that accused is not willing to talk to her. The prosecutrix one day came to their office and quarrelled / scuffled with the accused. Police was called by ringing at no. 100 and the police took both of them. Next day the prosecutrix left a steel tiffin having sweets and dry fruits etc., with the guard which he gave to the accused and DW1 asked the accused not to involve him in his personal matters.
DW2 Smt Poonam, wife of accused, deposed that she had talked to prosecutrix on phone firstly on 15-8-2003 State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 10 and then the prosecutrix accompanied her family to Brila Mandir where the prosecutrix clicked the photograph of the accused and his family. DW2 was having three daughters at that time and the prosecutrix used to say that she should be treated as her fourth daughter and for this reason DW2 allowed the prosecutrix to visit her residence.
DW2 further deposed that she visited the house of the prosecutrix with her husband/accused at Batla house where the prosecutrix introduced them to her family i.e her mother, sister and brother. However, in the year 2005 DW2 started suspecting the behaviour of the prosecutrix towards her husband / accused and found that she was attracted towards him and always wanted to talk to him alone. She further deposed that the prosecutrix was well aware of the fact that accused was a married man and DW2 then started objecting to her husband / accused to keep himself away from the prosecutrix but the prosecutrix used to make calls and harass her husband in his office.
Even her growing daughters were disturbed due to behaviour of the prosecutrix and then the prosecutrix filed a case against the accused for blackmailing / harassing State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 11 him. DW2 denied that on 22-5-2006 she had ever gone to the office of Delhi Jal Board to quarrel with the prosecutrix that she had married her husband but rather deposed that on 22-5-2006 the prosecutrix made her a telephonic call saying that she was in disturbed state of mind and she intends to meet DW2 and for this reason she had gone there. DW2 further deposed that after 2 / 4 days the prosecutrix came to her house, fully dressed as a bride and told that she would not leave the house and as was married with accused. The accused scolded her and though thereafter she stopped coming at their residence but started blackmailing.
7. Before proceeding further, it would be now appropriate to examine the deposition of the prosecutrix, who has since been examined as PW1. She deposed that she met accused on 7-2-2003 in a restaurant at Nehru Place, New Delhi where she had gone to submit her Bio- Data for a job in a placement agency. The accused there told the prosecutrix that he is a government employee in DESU and could provide her a government job. The State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 12 accused took her Bio Data and gave his office telephone number whereas the prosecutrix gave her residential landline number. In the end of February, 2003 the accused made a call at her residence and told her that a training is going to start in DESU office at Nehru Place, New Delhi. The prosecutrix later joined the data entry training for 15 days.
On 7-4-2003 the accused managed to get her a job on contract basis from 7-4-2003 to 30-9-2003 in DESU. She took an appointment letter and was given a salary of Rs.4352/-. Then the accused got her employed with one Mr. Manoj Kumar, a property dealer at Mehar Chand Market, Lodhi Road, New Delhi on a monthly salary of Rs.2500/-. On 19-4-2005 the prosecutrix joined Delhi Jal Board as an computer operator on contract basis. The prosecutrix deposed that accused represented to her that he is a bachelor and could provide her with a government job and even assured to marry her.
The prosecutrix further deposed that between 7-2-2003 to 19-4-2005 the accused made sexual relations with her on the pretext of marrying with her and for getting State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 13 her employed in a government job. On her persistent request accused used to give her dates like after Diwali, after Dusherra, after New Year etc. Finally the accused assured the prosecutrix that he would marry her on 11-11-2005 and even asked her to bring some money. The prosecutrix obtained a loan of Rs.20,000/- from one Ishwar Singh of Delhi Jal Board and gave it to the accused. On 10-11-2005 the accused took her to Chandni Chowk, Delhi from where the accused had purchased a Mangal Sutra, Anklets, two chutkies (Bichuas) and then they went to Sarojini Nagar Market, New Delhi for purchasing a Salwar Suit, Chooda, Sandal, nose pin, earrings etc. and then to Connaught Place to purchase Sindoor and Bindi.
On 11-11-2005 at about 10 AM they both had reached the office of Shri Zubair Hashmi, Advocate, Chamber No. 907, Patiala House Courts, New Delhi and he demanded Rs.40,000/- or Rs.50,000/- for court marriage and he also obtained the signatures of both of them on blank papers. The said lawyer prepared certain documents and gave those to the accused and the prosecutrix. Then they both went to Arya Samaj Mandir, Mandir Marg, New State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 14 Delhi where accused put Mangal Sutra and vermilion on her forehead in the Mandir premises itself and then they both came at Shop No. 78, Janpath, New Delhi and got themselves photographed. Thereafter the accused took the prosecutrix to a Hotel at Navyug Market, Ghaziabad where they stayed for three hours and made relations as of husband and wife. She further deposed that accused had even physical relations with her in the year 2003 when she was having training for 15 days at DESU at Nehru Place Office on the pretext of marrying her and also on the pretext of getting her a government job.
On 27-11-2005 the accused took a room on rent at premises no. 87/2, Jamrudpur, Greater Kailash, New Delhi where they had started residing as husband and wife. During all this period the accused had assured her that he was unmarried. After about two months of their marriage she came to know that accused was a married man as in March, 2006 his wife and three daughters visited her rented accommodation at Jamrudpur, G.K-1, New Delhi and they had a quarrel. The accused was in his office at that time. When the accused returned from his office she State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 15 confronted the accused but he assured her that he would not betray her trust and shall marry her legally, hence, she did not lodge any complaint till March, 2006.
On 22-5-2006 at about 10:30 AM the wife of accused along with 3 / 4 persons came at her office and kept waiting for her outside Delhi Jal Board Office at Sadik Nagar, New Delhi. At about 4 PM when PW1 came out of her office after her duty hours, the wife of accused and her associates started quarreling / misbehaving / threatening her. Some passerbys rescued her. PW1 reached her house at Jamroodpur, New Delhi and made a telephonic call and informed the accused about the incident but accused replied that he is busy and would talk later. After sometime the accused refused and again assured that he would marry her legally.
However, she called the police in her office and the police advised her to approach the CAW Cell. On 23-5-2006 she met Shri Zubair Hashmi, Advocate and he prepared a complaint for her and she filed it at P.S Greater Kailash-1, New Delhi and sent the copy to the CAW Cell, Amar Colony, New Delhi. After about 2 / 3 days, at the State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 16 instance of wife of accused, she also had shown her the Arya Samaj Mandir at Mandir Marg, New Delhi and the place where on 11-11-2005 the photographs were taken. The said photographs are Ex.PW1/A-1 and Ex.PW1/A-2 taken at Janpath Studio, Delhi.
The accused requested PW1 to withdraw her complaint, filed by her at CAW Cell as he would enter into a legal marriage. On 4-7-2006 they both then went to Shimla for an outing in a bus and resided there at Hotel Rajdoot and returned on 6-7-2006 at their rented room at Jamrudpur, New Delhi. They took photographs Ex.PW1/A-3 to Ex.PW1/A-11 at Simla, Himachal Pradesh. Since the landlord of house no. 87-A, Jamrudpur came to know of their dispute so he had asked them to vacate his house.
In September, 2006 accused had asked the prosecutrix to arrange for an amount of Rs.30,000/-. She got a loan of Rs.30,000/- from one Ishwar Singh, her colleague and she gave it to accused. In October, 2006 they vacated the room at house no. 87-A, Jamrudpur and went to another rented accommodation where they started cohabiting together and lived there till January, 2007. On State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 17 11-11-2006 they had celebrated their first marriage anniversary. She proved the photographs of her marriage anniversary as Ex.PW1/A-12 to Ex.PW1/A-21.
On 6-1-2007 PW1 fell ill and accused was at home. At about 6:30 PM the accused left the house and then the prosecutrix was taken by his sister to Dr. Madhu Tiwari, Greater Kailash, Part-1, New Delhi where she was found to be pregnant. In February, 2007 they vacated the said rented premises and shifted to house of one Mr. Bhalla at Village Jamrudpur, New Delhi, but again they shifted to another house at Jamrudpur, New Delhi owned by one Om Prakash Verma where they had stayed till 17-5-2008. As the accused did not come to reside / visit her for about two weeks so on 23-5-2008 she went to the residence of the family of accused at Kotla Mubarakpur, New Delhi and found such premises locked and came to know that it has been sold. Then PW1 approached the SHO, P.S G.K.-1, New Delhi and also to CAW Cell and filed a complaint Ex.PW1/B. She then led the police to house no. 147, Kilokari, New Delhi, but the accused was not found residing there.
State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 18 The prosecutrix also deposed that since 11-11-2005 to 27-5-2005 she resided with her mother but from 27-11-2005 till 17-5-2008 she resided with accused as husband and wife.
On 7-1-2007 accused had taken her to Modi Hospital where he filled an admission form Ex.PW2/B in his own handwriting giving the consent to perform ectopic pregnancy surgery. She paid Rs.20,000/- in the hospital. The prosecutrix also deposed that between the period from 2006 to 2008 the accused used to take money from her on one pretext or the other and she had paid him Rs.20,000/- in November, 2005 ; Rs.15000/- in September, 2006 and Rs.15000/- in October, 2006 etc. In total, the accused took Rs.1,05,000/- from her and had returned Rs.25000/- only to her. PW1 proved photographs Ex.P1 and Ex.P2 ; Ex.PA21 to Ex.PA26 ; negatives Ex.PA1 to Ex.PA20. The photographs Ex.P1 and Ex.P2 were taken by digital photographs.
The vigilance inquiry against the accused was also conducted by his department and the same is State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 19 Ex.PW1/1. She deposed that when she came to know about the fraud committed by the accused she had raised an objection before the accused and he promised her to marry in a legal manner.
During cross examination she deposed that she is a graduate (B.Com), done in the year 2003. She deposed that she changed her name from Ruhina Anjum to Ruhi Ramanand after her marriage with the accused. PW1 further admitted that neither she nor the accused changed their religion. Though she deposed that the marriage was done though the court but she admitted that she did not appear before the Ld. MM or the Marriage Officer. She admitted that firstly she met the accused in February, 2003 and had given him her landline phone number and whereas accused gave her his mobile number. PW1 denied that on 7-4-2003 she ever had a talk with the wife of accused. She denied that on 18-5-2003 on the marriage anniversary of accused with his first wife, she ever had accompanied the accused's family to India Gate or to Birla Mandir, New Delhi. Rather she deposed stated that she met them for the first time in March,2006. PW1 reiterated that she was State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 20 not aware of the marital status of the accused in April, 2003. She deposed that day to day decisions were taken by her. PW1 also deposed that she had decided herself to visit Patiala House Court, New Delhi, to marry the accused and told the advocate that she was Muslim and whereas accused was a Hindu. The Advocate told her that he was preparing papers for conversion from Muslim religion to Hindu religion and she signed four stamp papers, two of which were blank and the other two were typed. PW1 admitted that the said advocate had not taken her inside any court. She further deposed that she was not aware of the marriage ceremonies of Hindu and only in May, 2006 she was told by the police about the Phera ceremony of the Hindu religion. She deposed that she did not make any inquiries from the relatives of the accused or his colleagues prior to 11-11-2005 as to if he was married or about his conduct or his occupation. PW1 admitted that accused was not posted as an Officer having a power to appoint any person and rather he was a LDC in BSES. She voluntarily told that his cousin was posted in Ministry as an Officer and he also knew a member of Legislative Council but she State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 21 neither met his cousin nor the MLC. PW1 deposed that she knows that one has to properly apply to a department for a job but in the year 2003 she was not aware of the procedure. She knew that she had to give Bio Data to the placement agency for a job.
Thus, from the bare perusal of the statement of the prosecutrix the following facts have emerged :
(i) that the prosecutrix met the accused in connection with a job and he promised her to get her job ;
(ii) that the accused was a married man in February, 2003 when he first met the prosecutrix ;
(iii) She admitted that she was in DESU from 7-2-2003 to 20-9-2003 and had sexual relations with accused in February, 2003 as the accused promised to marry her ;
(iv) she came to know that accused is a married man in March, 2006 when his wife and children came at her rented accommodation and created a scene ;
(v) that the prosecutrix stayed with the accused as husband and wife even after she came to know about State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 22 the factum of marriage of accused as accused allured her to believe that he would legally marry her by divorcing his wife and that thereafter they went to Shimla for three days and later stayed together till May, 2008 when the accused finally deserted her.
(vii) During her stay with accused once she had to undergo an operation when accused filled up a consent form Ex.PW3/A and gave his consent for the operation, representing himself to be the husband of the prosecutrix.
(viii)The photographs Ex.P1 ; Ex.P2 ; Ex.P3 to Ex.P-9 and Ex.P-10 to Ex.P-13 depict their relations of more than a mere colleague.
The basic question now is if the prosecutrix ever consented for the sexual intercourse because of her love for the accused or her consent was obtained by the accused under misconception of fact and if the accused can be held guilty for the offence under section 376/420 IPC.
State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 23 Before coming to the factual matrix as narrated by me above, let me refer to the judgments cited by the ld counsel for the accused viz.,
(a) "Shri Durjoy Chakraborty v. the State of Tripura", decided on 17-4-2014 in Criminal Revision Petition 61 of 2004 by the Hon'ble High Court of Guhati (Agartala Bench) ;
(b) "Deepak Gulati v. State of Haryana", decided on 20-5-2013 in Criminal Appeal No. 2322 of 2010.
(c) "Uday v. State of Karnataka", AIR 2003 SC 1639
(d) "Pradeep Kumar Verma v. State of Bihar and another", AIR 2007 SC 3057.
Similarly the Ld. Addl. P.P has referred to various judgments, primarily among them are :
(a) "Anil Shashikant Dukhande v. State of Maharashtra", decided on 17-2-2011 in Criminal Appeal No. 65 of 1997 by the Hon'ble Bombay High Court.
(b) "Raju Das v. the State of West Bengal", MANU/WB/0778/2012 ;
(c) "Gurmeet Singh v. State of Himachal Pradesh", 2011 Cril. L. J 3529 ;
(d) "Senthil Kumar v.The State", MANU/TN/1401/2009 State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 24
(e) "Yedla Sriniwas Rao v. State of A.P", (2006) 11 SC 615.
The Hon'ble Supreme Court of India in the aforesaid judgments has come to the conclusion that in the event of accused's promise being not false and was not made with the sole intention to seduce the prosecutrix to indulge in sexual act, such an act would not amount to rape. However, where the prosecutrix, under a misconception of fact to extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.
The Hon'ble Supreme Court in Deepak Gulati's case (Supra) has also observed that :
"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 rap.e and consensual sex and in a case like this, the court must very carefully examine whether the State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 25 accused had actually wanted to marry the victim, or had malafide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation 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.
Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 26 victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance." Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirely, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."
Further in Uday's case (supra) and Deepak Gulati's case (supra), the Hon'ble Supreme Court laid down the following law :-
"That if the prosecutrix is
matured to understand the
significance and morality associated with the act, she was consenting to and that she was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor and also that if it is difficult to impute to the accused, knowledge of the fact that the prosecutrix had consented as a consequence of a State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 27 misconception of fact, that had arisen from his promise to marry her and further that if there is any evidence to prove conclusively, that the appellant never intended to marry with the prosecutrix, the accused be given benefit of doubt.
Further, while deciding Pradeep Kumar Verma (Supra), the Hon'ble Supreme Court placed reliance upon the judgment of the Madras High Court delivered in N. Jaladu, Re ILR (1913) 36 Mad 453, wherein it has been observed: "We are of opinion that the expression "under a misconception of fact" is broad enough to include all cases where the consent is obtained by misrepresentation ; the misrepres- entation 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) states 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........
"thus ... if the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person". ... Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90 IPC is that such consent cannot, under the criminal law, be State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 28 availed of to justify what would otherwise be an offence."
Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance." Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."
And in "Yedla Srinivasa Rao Vs. State of A.P.", 2006(3) JCC 1623,the Hon'ble Supreme Court has held as under :
"In the present case the accused on one day on finding the prosecutrix alone committed rape upon her and when she resisted he allured her by saying that he would State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 29 marry her. Thereafter under this pretext the accused used to commit sexual intercourse with her and she became pregnant. The accused then gave her some tablets for abortion to get rid of the pregnancy which did not work. Subsequently when the prosecutrix insisted the accused to marry her, the accused informed that his parents were not agreeing for their marriage and as such he would not marry.
The Hon'ble Supreme Court after going through the law laid down in various cases held that the intention of accused, as per the testimony of the prosecutrix, 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.
Hence, the Hon'ble Supreme Court held that the consent was not voluntarily as was given under the misconception of fact that the accused shall marry her and hence it is not a consent in law."
The Ld. Prosecutor had also referred to Karthi @ Karthick v State of Tamil Nadu, Crl. Appeal No. 601 of 2008 decided on 01/07/2013, wherein the facts were State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 30 as under :-
"Accused used to tease the prosecutrix and one day finding her alone in her house committed sexual intercourse forcibly and then promised to marry her and requested that she should not disclose this fact to anybody. Thereafter they both were engaged in consensual sex at different places and in all these meeting the accused swore that he would marry with the prosecutrix. However one day on 05.10.2003, both the prosecutrix and accused gone in a temple where she requested the accused to marry her but he refused and on his refusal, she divulged the entire facts to her family members. Panchayat was held in village and the accused was summoned there and persuade to marry with prosecutrix but he refused to marry the prosecutrix and then the prosecutrix lodged a report.
The Hon'ble Supreme Court after considering the case law laid down in (Uday's case) held that the first sexual intercourse was forceful and thereafter the subsequent acts of sexual intercourse, were actions of actively cheating her, by giving her the impression that he would marry her. The occurrence at the Murugan temple, is of significant importance, where he left the prosecutrix when he was asked to marry her. Hence the court held that the sexual intercourse by the accused with the prosecutrix was not consensual as obtaining consent by exercising deceit, cannot State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 31 be legitimate defence to exculpate an accused.
On delay the Hon'ble Supreme Court held that as long as the commitment of marriage subsists, relationship between the parties could not be described as constituting the offence of rape u/s. 376 IPC, it was only after the accused had declined to marry with prosecutrix, be different dimension came to be attached to the physical relationship, which had legitimately continued over the past six months. Things changed when the accused declined to marry her. After he declined, without any delay prosecutrix disclosed, the entire episode to her immediate family and then the Panchayat was called. On the refusal of the accused to marry her, without any further delay the prosecutrix referred the matter to the police and hence it would not be possible to hold that any doubt can be said to have created in the version of the prosecutrix., merely on account of delay in the registration of the first information report."
Similarly, in Raja Dass Vs. State of West Bengal, Crl. Appeal No. 291 of 2006, the Hon'ble High Court of Kolkatta held that :
" The case must be judged by its own facts and circumstances in the backdrop of the evidence on State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 32 record. The evidence on record is overwhelming to establish that the accused had physical relationship with the victim under a promise of marriage for over a period of 3 / 4 years which he never intended to perform and that ultimately victim became pregnant and that on account of refusal on the part of accused to marry victim, the victim was compelled to disclose about her pregnancy to her mother followed by village "Salish" wherein accused was asked to marry victim but without any result and that accused ultimately left village and his father proposed to give Rs. 40,000/- to the victim or to her family to hush up the matter and for arranging marriage of victim in some other place. There is no denial that the financial status of accused was much higher than that of victim. The accused should have known and knew very well that his father being a military personnel and well off will not agree to the proposal of marriage with victim and that inspite of said knowledge accused continued to mix with victim and had physical relation with a promise of marriage. If we go by section 90 of the Indian Penal Code which defines a free consent, we find that consent of the victim to have physical relation with the accused was given by the victim in view of the promise of marriage of the accused who knew from very beginning that the said promise was false one, and hence consent of the victim was not a free consent and State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 33 was rather a consent under misconception of fact within the meaning of section 90 of the Indian Penal Code and amounted to "without her consent" as made out under section 375 of the Indian Penal Code. In this connection it also came out from the evidence on record that whenever victim asked the accused to marry her, accused took the plea that he was unemployed and that on getting employment he would marry her and continued to have physical relation with her with that promise of marriage.
Thus, on analyzing the law laid down by the Hon'ble Superior Courts it appears that the intention of the accused at the time of entering into a relationship has to be seen by the court as to if he really intended to marry the prosecutrix or he merely made the promise to get sexual favours from the prosecutrix. If the facts suggest that the accused genuinely wished to marry prosecutrix but it could not materialize due to reasons beyond his control, then in such an event no offence could be made out. However, on the contrary, if he had no intention to marry the prosecutrix since beginning then his case would be squarely covered within the ambit of offence under section 376 IPC.
State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 34 Thus, if one analyse the judgments cited above one may broadly find the following situations to deal with :
(i) a boy and a girl deeply in love have sexual intercourse and later the boy promises to marry her, such facts may not make it a case of misrepresentation or a misconception of fact ;
(ii)If the boy has forcible sexual intercourse with the girl but later promises to marry her and did not keep his promise ; the act may / shall fall within the ambit of rape ;
(iii)an unmarried boy indulging in sex with a married woman - not competent to marry, later the woman cannot allege that she was cheated by the boy on the pretext of marrying her ;
(iv)if the boy makes promise to marry the girl and commit sexual intercourse with her only to satisfy his lust and did not marry her, do make out a case of misconception of fact.
It is only the preposition (iv) above we are concerned with in this case.
Here is a case where the prosecutrix had deposed that she was in dire need of a job when she first met the accused. The accused got friendly with her by representing to her to be an unmarried person. Later on a promise to marry her and to find her a job he started exploiting her physically. To satisfy his lust, despite being a married man, he did not disclose the fact of his marriage to the prosecutrix and even faked his marriage with the State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 35 prosecutrix by taking her to various places viz., to an Advocate's office at Patiala House Courts ; to a market at Chandni Chowk ; to Sarojini Nagar Market ; to Connaught Place and also to Arya Samaj Mandir, Mandir Marg, New Delhi where he put vermilion on her forehead and a mangalsutra in her neck to make her believe that now she is legally married with him. The prosecutrix being a Muslim girl was not aware of the ceremonies of a Hindu marriage and believed his version and even went to a hotel to celebrate and consumate their marriage. Later they went to stay in a rented accommodation at Jamrud Pur, New Delhi where they stayed as husband and wife.
These facts deposed by the prosecutrix rather are more or less admitted by the accused as in his statement under section 313 Cr.P.C he has admitted (a) the prosecutrix being in need of a job ; (b) he occasionally visited the rented accommodation where prosecutrix was staying ; (c) the prosecutrix used to quarrel and insist him to reside with her.
Now, why would a lady to whom the accused refers to be merely his colleague would insist the accused State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 36 to reside with her if her allegations are not correct. Rather the accused has admitted of filling-up a consent form Ex.PW3/A at Modi Hospital where the prosecutrix got admitted for her laproscopy. Would a simple colleague go to an extent of getting her admitted in a hospital and signing consent forms as a husband. The answer is No. PW3 Dr. Manju has categorically deposed that the husband of prosecutrix gave the consent for operation vide document Ex.PW3/A. Further DW2 Smt. Poonam, the wife of accused, rather proved the fact that the accused was a married man, having four daughters and further went on to say that the prosecutrix knew this fact in August, 2003 itself when she met the prosecutrix for the first time, though denied by the prosecutrix. Rather her deposition corroborate the contention of the prosecutrix, as the prosecutrix had deposed that it was in February, 2003 that accused first met her and represented to her to be an unmarried man and had sex with her on the promise to marry her during the period she was undergoing training with DESU in March, 2003.
State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 37 The bare fact that accused was a married man in February 2003 do make it clear that he was incompetent to marry but he preferred to indulge in sexual activities with an unmarried girl viz., the prosecutrix on a promise to marry her rather clarifies his intention when he first entered into this relationship. A married man with three daughters, without obtaining a divorce, is not competent even to make a promise to marry and hence it can easily be inferred that his intention was merely to exploit the prosecutrix, being an unmarried poor girl, desperately in need of a job and he cleverly maneuvered the things by making her believe that he is unmarried and would marry her and would also help her to find a job, hence, cheated her.
Though, it was argued by the ld. defence counsel that even per deposition of the prosecutrix, in the year 2006, she finally came to know that accused was a married man when allegedly the wife of accused barged into her house and fought with her but then also she lived with accused shows that she condoned his acts ; is simply not convincing. Rather the answer is provided by the State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 38 prosecutrix herself as she had deposed that on her confronting and quarreling with the accused he yet again assured her that he would divorce his first wife and would legally marry her.
Now if we consider the situation from the angle of the girl who is being duped, she infact is left with no choice but to believe her partner ; as once caught in such a web it is always difficult for a girl to wriggle out of it. Any girl in such a situation would desperately try to work out to find a solution to give sanctity to her relation and perhaps this was being tried by the prosecutrix too. Even otherwise, such heinous offences cannot be said to be condoned on a mere delay of filing complaint if the prosecutrix in the meanwhile, is trying to buy an honourable solution.
Thus, the tests laid down by the Hon'ble Supreme Court viz., (a) she gave her consent under misconception of fact i.e., false promise of marriage by accused and also (b) that the accused was cautious of the fact that such consent was under misconception as he himself was a married man and was not competent to give State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 39 such promise ; stands satisfied.
On the aspect of delay, I may refer to Karthi @ Karthick's case (Supra) wherein the Hon'ble Supreme Court held that as long as the commitment of marriage subsists, the relationship between the parties could not be described as constituting the offence of rape under section 376 IPC. It is only after he declines, be different dimension came to be attached to such relationship. If on his refusal the prosecutrix seeks immediate action, it would not be right to say that there was any delay in lodging the report. Even otherwise, delay is to be seen by a different yardstick in cases of sexual offences than in any other type of offence.
The fact that accused was a married man lead to an irresistible inference beyond reasonable doubt that he had no intention to marry prosecutrix at all from inception and the promise made by him was false to his knowledge. Hence, the acts of accused are squarely covered within the ambit of section 376 IPC. Thus, convicted. Announced in the open court today i.e. 29-3-2014 ( Yogesh Khanna ) ASJ-Spl. FTC / Saket Courts New Delhi State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 40 State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 41 In the light of the above facts and circumstances, I need to determine if the accused committed rape of the prosecutrix, per section 376 IPC.
As the facts goes the prosecutrix admitted that she met the accused for the first time in March, 2003 when she was in search of a job. The accused promised to get her a job and in fact got her trained and later got her a contractual job in DESU and thereafter also got her employed with a friend of his at Lodhi Colony, New Delhi.
It is the case of the prosecutrix that she was unmarried and accused too pretended to be an unmarried man and that the accused promised to marry her and on his promise they had sexual intercourse. It is the case of the prosecutrix that she had sexual intercourse with accused only after the accused promised to marry her and that on 10-11-2005 the accused took her to Chandni Chowk, Delhi from where he purchased a Mangal Sutra, anklets, two chutkies (Bichuas) and then took her to Sarojini Nagar market at New Delhi for purchasing salwar- suit, chooda, sandal, nose pin, earrings etc and then to State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 42 Connaught Place for purchasing sindoor and bindi. Further on 11-11-2005 at about 10 am he took the prosecutrix to the office of Shri Zubair Hashmi, Advocate, Chamber No. 907, Patiala House Courts, New Delhi where the Advocate demanded Rs.30,000/- for getting them married in the court. The said advocate obtain their signatures on some documents and from there they reached at Arya Samaj Mandir, Mandir Marg, New Delhi where accused put Mangal Sutra around her neck and put vermilion on parting of her forehead in the Mandir premises and told her they are married now. From there they had reached the shop no. 78 at Janpath, New Delhi and they got themselves photographed. From there accused took the prosecutrix to a hotel at Navyug Market, Ghaziabad where they stayed for about three hours and made relations as of husband and wife. Prosecutrix admitted that she had physical relations with accused in the year 2003 even during the period she had a training of 15 days at DESU, Nehru Place, New Delhi, though it as on the pretext of accused promising her to get her a government job and marry her. No doubt the prosecutrix knew that accused was an LDC in BSES and State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 43 was not competent enough to provide her with a government job but qua the promise to marry, the prosecutrix admitted that accused faked marriage with her on 11-11-2005 and deceived her about the ceremonies of a Hindu marriage and made her reside with him as husband and wife.
However, in March, 2006 the wife and three daughter of the accused visited her at her rented accommodation at Jamrudpur, Greater Kailash-1, New Delhi and quarreled with her. Accused was in his office at that time but when he returned he assured that he would not betrey her trust and would marry her legally and continued sexually exploiting her.
Further, on 22-5-2006 at about 10:30 AM the wife of accused along with 3 / 4 person came at her office and kept on waiting for her till 4 PM and that when she came out of her office those person including wife of accused started quarreling, misbehaving and threatening her and that she rescued by the passerbys. The prosecutrix alleges that accused on all these occasions assured her to marry her legally and hence she continued State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 44 staying with him but on 23-5-2006 she prepared a complaint and filed it at P.S Greater Kailash -1, New Delhi as accused ditched her.
Thus above facts do show that accused being a married person did not disclose this fact to the prosecutrix and faked his marriage with her by taking her to the court and then to Arya Samaj Mandir where he put sindoor on the parting of her forehead and mangal sutra on her neck and told her that now they are married. The prosecutrix being a Muslim was not ware of the ceremonies of Hindu marriage and that the accused took its advantage and made her believe that they are now married. Thereafter the prosecutrix started residing with the accused as his wife till the news of his earlier marriage broke to her.
In his statement under section 313 Cr.P.C the accused though have denied that he ever resided with the prosecutrix for 10 to 12 days in any rented accommodation but admitted that he frequently visited the said residence of the prosecutrix and that the prosecutrix used to quarrel with him and used to insist that he should reside with her. He even admitted to have gone to Shimla with the State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 45 prosecutrix and stayed in a hotel Rajdoot though for about four hours to refresh themselves and even filled up a consent form of Modi Hospital where her pregnancy test was done. If he had no relation with the prosecutrix then why she used to quarrel with her and insist him to reside with her. Thus, he can't be a mere colleague of her.
So in a way the accused towed in the lines of allegations made by the prosecutrix by admitting various facts / allegations in his statement under section 313 Cr.P.C. He even admitted to have signed a consent form Ex.PW3/A at Modi Hospital and it all show his was in relationship with the prosecutrix. State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 46 Now the question is if the act of the accused falls under section 376 IPC. The allegation of the prosecutrix is that accused was entered into sexual intercourse on the alleged false promise to marry. It is already on record that accused has cheated her but it has also came on record that she came to know that accused was already a married man and having three daughters and she still insisted the accused to reside with him. Hence, it can not be said that sexual intercourse was without her consent.
However, section 493 IPC deals with deceitfully inducing a women belief of lawful marriage and inducing a women to have sexual intercourse with him in that belief.
Now the prosecutrix had deposed that at that time of such fake marriage the accused pretended that he was a unmarried person and it was later she came to know that he was a married man. Though the accused shows that he never married the prosecutrix but the signing of the consent form Ex.PW3/A in the Modi Hospital and also visiting the prosecutrix at her room time and again and State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 47 insisting of the prosecutrix that she should stay with her, all points show that accused had deceit the prosecutrix.
The crux of the matter is that accused practices a deceit as such deceit causes women who is not his lawfully married wife to believe that she is his lawfully married wife and to have sexual intercourse with him in that belief. The essential words of accent and emphasis in this section are the words "deceit" and "belief". It is not real thing. The marriage is not real. What is done is that by practice of deceit a man makes a woman think that she is her lawfully married wife and by that deceit causes the woman to have sexual intercourse with him and that also the section says "in that belief".
Thus, the case of the prosecution squarely covers under the four corners of section 493 IPC. State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 48 State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 49 In the light of the above facts and circumstances, I have to determine whether the prosecutrix was raped by the accused or that it was a love affair which was later culminated into marriage between accused and the prosecutrix and further in a dispute between them which led to the filing of the present complaint.
Though the prosecutrix alleged that she had never met wife and children of accused prior to March, 2006 but DW2, the wife of accused, had categorically stated that she had met the prosecutrix with her family at her house in the year 2003 and not only that she along with her husband / accused had gone to leave the prosecutrix at her residence. It is admitted by the prosecutrix that she knew the accused since 2003 and secondly relations with him. The question is if she was aware of the official status of the accused and she being a graduate would she mingle with the accused without verifying this fact as to if he is married man or not. Even by appearance the prosecutrix is half of the age of the accused. State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 50 DW1, the office colleague of accused had also categorically stated that the prosecutrix had met him on numerous occasions. Now the question if the prosecutrix had not aware of the marital status and the accused is something which is not easily digestible. The fact if the accused had misused her on the promise of marriage and the prosecutrix also did not lodge complaint anywhere since she herself admitted that the accused kept his promise on 11-11-2005 when he ultimately married her. The fact that the prosecutrix failed to inquire about the marital status or the official status of the accused before marriage, rather goes against her as she ought to have done so but allegedly blindly believed him probably because of being deeply in love with accused. The fact that she has been travelling and residing with the accused even after coming to know of the marital status of accused, as alleged by her, though challenged by DW2, the wife of accused, one thing is clear that she was in love with accused and despite coming to know about the marital status and State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 51 also that he was not the person who could get a job she continued living with him till March, 2008 when accused left her alone and it led to the filing of this complaint. It all shows that if the accused had not left her alone or being resided with her she may not have file this complaint. Hence, the dispute is something else then the one given the colour of rape. I have also been told that the domestic violence proceedings are going on.
I would like to refer to the latest judgment of Deepak Gulati v. State of Haryana, Criminal Appeal No. 2322 of 2010 decided on 20-5-2013, after going through the issues involved in Uday v. State of Karnataka AIR 2003 Sc 1639 ; Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203 ; Yedla Srinivasa Rao v. State of A.P. (2006) 11 SC 615 and Pradeep Kumar Verma v. State of Bihar and another, AIR 2007 SC 3059, The instant case is factually very similar to the case of Uday (Supra), wherein the following facts were found to exist:
I. The prosecutrix was 19 years of State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 52 age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to. II. She was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor.
III. It was difficult to impute to the accused, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her.
IV. There was no evidence to prove conclusively, that the appellant had never intended to marry the prosecutrix.
State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 53
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State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 54 Thus, in these circumstances, I am of the considered view that the deposition of the prosecutrix is neither straight nor appear to be truthful or convincing to convict the accused for such an heinous offence. The prosecutrix appears to be concealing facts and hence benefit of doubt needs to be given to accused. Thus, accused deserves to be acquitted of the charges framed against them.
In the result, both the accused stands acquitted of the charge under section 365/376(2)
(g)/328/506 IPC. Their bail bond stands cancelled ; sureties discharged. Accused person are directed to furnish bail bond in the sum of Rs.10,000/- each with one surety each in the like amount, in compliance of section 437-A Cr.P.C. File be consigned to record room.
Announced in the open court today i.e. 17-8-2013. ( Yogesh Khanna ) ASJ-Spl. FTC / Saket Courts New Delhi.
State vs. Ramanand SC No. : 14/2013 FIR No. : 118/2008 PS : Greater Kailash, New Delhi. Page No. 55 In Deelip Singh's case, it has been observed as under:
"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
State vs. Ramanand
SC No. : 14/2013
FIR No. : 118/2008
PS : Greater Kailash, New Delhi. Page No. 56
couched in negative
terminology."
State vs. Ramanand
SC No. : 14/2013
FIR No. : 118/2008
PS : Greater Kailash, New Delhi. Page No. 57