Delhi District Court
State vs . Ravitosh @ Vinay Page No. 1/22 on 6 January, 2016
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0132432014
SC No. : 131/14
FIR No. : 195/14
U/s. : 417/376 IPC
PS : Govind Puri, New Delhi.
State (Govt. of NCT of Delhi)
................... Complainant
Versus
Ravitosh @ Vinay
S/o Bhupneshwar
R/o VPO Sneha, Distt. Lohardega,
Jharkhand. .........................Accused
Date of Institution : 03.07.2014
Judgment reserved for orders on : 10.12.2015
Date of pronouncement : 06.01.2016
J U D G M E N T
1. The case of the prosecution is that on 20.02.2014, the prosecutrix (name withheld to protect her identity) came at the police station Govind Puri and gave a statement inter alia that she knew the accused since 2002. He was her distant relative. They were friends. Their friendship then turned into love. In March, 2010, the accused started living with her at C106 Harkesh Nagar, New Delhi. He had introduced her to his neighbours FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 1/22 as his wife. They lived together for about one year. He had given her false assurance of marriage. In 2011, they shifted in House No. 499E, Gali No. 6 Govind Puri, New Delhi. She was madly in love with him and believed on his assurance to marry her. She alleged that whenever she asked him to marry her, he avoided on one pretext or the other and quarreled with her. She was a patient of epilepsy. She alleged that the accused played with her emotions and said that he would marry her in the court since his brothers are elder to him and not married. He, after giving her false promise of marriage, mentally, physically and sexually assaulted her. She had made her parents agree for her marriage with the accused but the accused made lame excuses and avoided to marry her. In November, 2011, his brother Paritosh @ Pappu got married. When she reminded him to marry her, he told her that he has talked to his parents and they have agreed to marry them in February, 2012. In May/June, 2012, because of illness, he went to his native place. He returned in October, 2012. He again expressed his love for her and made physical relations with her. After spending a week, he again went to his native place. When she did not get her periods and suspected that she is pregnant, she telephoned him. He then told her that since he is unemployed and dependent on his parents, he would not be able to support the child. Although she tried to convince him that they would marry in the court and she would give in writing to take the responsibility of the child and asked him to give his name as father of the child and she has no objection if he marries with someone else but he did not agree nor supported her. She then took medicines for aborting the child. Her FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 2/22 condition started deteriorating. She called the accused on 30.11.2012 at Delhi. The doctor told him that she is the patient of epilepsy and her health is not good and even she did not get periods after taking medicines two times and she would have to go for abortion. After spending a week with her, he again went home leaving her in bad shape. She alleged that whenever she telephoned him, he quarreled or avoided her. By the time, she was two months pregnant. On 09.12.2012, she aborted her pregnancy and came in depression. On 19.06.2013 due to attack of epilepsy, she was admitted in the hospital. In January 2014, she went to Ranchi and told his brother Santosh Kumar about their relations. Santosh and Paritosh, brothers of the accused, cousin Janak Mehto, friend Arun Kumar and uncle Suresh Mehto came in her house. When she asked the accused to accept the truth, he scolded her. When she told them about her pregnancy and abortion, he told them that she is telling a lie. His brother Santosh then demanded Rs.5 lacs for their arrange marriage. She then told them that she would not marry with the accused as he has demoralized her and even did not accept the child. She then asked the accused to admit his fault before their family members and accept her. On 06.02.2014, she returned to Delhi. She alleged that the accused thereafter started abusing her and her family members on phone. After 8/10 days, she received a call from his father whom she told the whole story but he showed his ignorance about their relations. She alleged that the accused not only threatened her but also mentally, physically and sexually exploited her.
On this complaint, case was registered under Section 376/506 IPC FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 3/22 vide FIR No. 195/14. The prosecutrix was taken to AIIMS where she was medically examined. At her instance, the site plan was prepared. On 28.02.2014, statement of prosecutrix u/s 164 CrPC was got recorded. In that statement, she alleged that the accused had sent some objectionable photographs of his bhabi; when she confronted him, he told her that he has played with her emotions; and he refused to marry her. On 29.03.2014, accused was arrested from Ranchi. He was brought at Delhi. On 31.03.2014, he was taken to AIIMS where he was medically examined qua his potency. After the investigation, the accused was sent for trial for the offences punishable under section 376/506 IPC.
2. After complying with the requirements contemplated under section 207 CrPC, the case was committed to this Court.
3. Prima facie case was made out vide order dated 28.07.2014 and the charge was framed against the accused for the offences punishable under section 417/376 IPC to which he pleaded not guilty and claimed trial.
4. To substantiate its case, prosecution examined as many as eleven witnesses.
PW 1 ASI Yadram recorded the FIR Ex. PW 1/A and issued certificate u/s 65B of the Evidence Act Ex. PW 1/C. PW 2 is the prosecutrix. I will discuss her testimony at the time of appreciation of evidence.
PW 3 Ct Chaman Singh had taken the accused to AIIMS for his medical examination. Doctor handed FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 4/22 over him the sealed exhibits of the accused alongwith the sample seal which he handed over to the IO vide memo Ex. PW 3/B. PW 4 Ms Neha, Ld. MM recorded the statement of prosecutrix Ex. PW 2/C u/s 164 CrPC vide application Ex. PW 4/A. PW 5 Ct. Sumit was present when the disclosure statement of accused Ex. PW 5/A was recorded.
PW 6 WCt Savita had taken the prosecutrix to AIIMS for her medical examination.
PW 7 Dr. Richa Vatsa did the medical examination of prosecutrix vide MLC Ex. PW 2/B. She did not find any injury mark on her body however her hymen was found ruptured. She did not collect the samples since the last intercourse was one year back.
PW 8 Dr Mohan did the medical examination of accused vide MLC Ex. PW 3/A. He found him capable of performing sexual intercourse under normal circumstances. He collected the blood in gauze of the accused and handed over to the police. PW 9 Dr. Monika Sharma of Nirmal Medical Centre conducted D&C of the prosecutrix on 08.12.2012 vide consent form Ex. PW 9/A. She stated FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 5/22 that in the minor OT register Ex. PW 9/B, the name of her husband has been shown as Ravitosh Kumar.
PW 10 SI Rajendra Kumar arrested the accused from Ranchi vide arrest memo Ex. PW 10/A. He stated that no laptop was recovered from the premises of the accused. On further inquiry, the allegations qua keeping of objectionable photographs of his bhabi levelled by the prosecutrix were found false. He got conducted the medical examination of the accused and brought him to Delhi after obtaining transit remand.
PW 11 SI Madhu Sharma, is the investigating officer of the case. She deposed on the lines of investigation. On receipt of complaint, she got recorded the FIR, got the prosecutrix medically examined, prepared the site plan Ex. PW 11/B, got recorded the statement of prosecutrix u/s 164CrPC Ex. PW 2/C, arrested the accused, got him medically examined and recorded his disclosure statement. She collected the medical documents from Nirmal Medical Centre vide Ex. PW 11/E.
5. After the prosecution evidence, statement of the accused under section 313 CrPC was recorded. He denied all the incriminating evidence against him and stated that their friendly relations had turned bitter due to FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 6/22 her nagging that he has relationship with his bhabi. He stated that his brothers Santosh, Paritosh, cousin Janak, friend Anoop Kumar, uncle Suresh Mehto had gone to the house of prosecutrix to finalize their marriage but she refused to marry him. She lodged a false complaint. He never threatened nor refused to marry her. He never took any objectionable photographs nor such photographs were in his laptop.
6. In defence, the accused examined Vishwamohan Kumar @ Goldy Kumar Singh as DW 1.
DW 1 stated that after completing studies, he came in Delhi in the year 2011. He started living with his cousin Anuj at Govind Puri. He introduced him with the prosecutrix. They became friends. They used to meet everyday. He then proposed her. She accepted his proposal. He used to chat with her on Facebook very frequently. In December, 2013, he shifted at Ranchi. In the meantime, he came to know that she has affair with Akhliesh and Ranvir Chaudhary. He then left the idea of marrying with her. He stated that he came to know of this case in the year 2014 through his cousin Anuj. He proved the copy of his Facebook chats with the prosecutrix Mark DW 1/A.
7. I have heard the arguments advanced by Sh. Rajesh Ranjan, Ld. counsel for the accused and Ld. Addl. PP for the State.
8. Ld. counsel for the accused vehemently argued that the accused FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 7/22 and the prosecutrix were in livein relationship. The accused never promised to marry her. A quarrel took place between them. The prosecutrix went revengeful and filed the complaint. Ld. counsel stated that the accused had gone to Ranchi since he had urinary problem. The prosecutrix used to suspect the accused that he has relations with his bhabi and she used to nag the accused. The relations between the accused and the prosecutrix were consensual. No photographs showing the accused in objectionable position with his bhabi were recovered during investigation. Ld. counsel stated that there is complete variance in the complaint, statement recorded u/s 164 CrPC and the evidence. Ld counsel stated that the accused wanted to marry with the prosecutrix but prosecutrix had an affair with Akhilesh and Goldy. Ld counsel stated that accused never refused to marry the prosecutrix. Ld. counsel also stated that due to recession in the IT field and serious urinary problem, the accused had to shift to Ranchi. In support of his contentions, ld counsel placed reliance on the case Uday Vs. State of Karnataka, AIR 2003 Supreme Court 1639.
9. Ld. Addl. PP on the contrary argued that the accused and the prosecutrix had relations for about ten years. The accused was distant relative of the prosecutrix. It is true that they were in livein relationship but the accused had promised to marry her and on that pretext, he established physical relations with her though his intention since beginning was not to marry the prosecutrix. He even disowned his relations with the prosecutrix and the child in her womb before his family members. Ld. Addl. PP stated that it was the accused who forced the prosecutrix to go for FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 8/22 abortion though the prosecutrix wanted to give birth to the child in her womb. Ld. Addl. PP stated that the chats on the Facebook placed by DW1 are inadmissible in evidence in the absence of certificate u/s 65B of the Evidence Act. Ld. Addl. PP stated that when the prosecutrix insisted upon the accused to marry her, he threatened her with dire consequences. Ld. Addl. PP stated that the testimony of the prosecutrix is cogent and consistent and is sufficient to base conviction of the accused.
10. I have considered the submissions and gone through the entire material available on record.
11. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:First: Against her will. Secondly: Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.......
Fifthly.........
Sixthly ........
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 9/22
12. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
13. Prosecutrix/PW2 has testified on oath that the accused Ravitosh is her distant relative. She knew him since when she was in class tenth. After doing her fashion designing course, she came to Delhi. She stayed there for sometime and went back to her native place. In November, 2009, she came to Delhi with the accused as they had love affair. The accused told her that he would search a job in Delhi and take care of her. He promised to marry her. They stayed together for about one year. During stay, whenever she asked the accused to marry her, he avoided on one pretext or the other and said that he would marry her after the marriage of his elder brother. Since accused was physical with her, she had firm belief that he would not ditch her and certainly marry her. The elder brother of the accused got married in November, 2011. After his return, she noticed change in his behaviour. The accused uploaded some of his objectionable photographs with his newly wedded bhabi in her laptop. When she enquired, he started quarreling with her and did not give any explanation. Her relations started becoming bitter day by day because of the said photographs. Due to recession in IT field, the accused left the job. In May/June, 2012, he went to Ranchi as he was not keeping well. In October, 2012, he came to Delhi FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 10/22 to take his luggage. He stayed with her for about ten days. During the stay, he established physical relations with her. She got pregnant. She informed the accused on phone but he asked her to terminate the pregnancy. She tried to persuade him that she has been working and can take care of the child and if he marries her in the court, she will give an undertaking that she will not claim any expenses from him for the upkeeping of the child and she will not interfere in his life and he will be free to marry with some other girl. But the accused insisted her to abort the child. He, however, promised to marry her. She believed his words and took the medicine but got complications. She asked the accused to come to Delhi. He came in November, 2012 and gave her some medicines but it did not help her. He took her to a doctor who advised her to go for MTP. The accused then left her in Delhi and went to his native place. She got her pregnancy terminated at Nirmal Medical Center at Neb Sarai. She stated that whenever she called the accused on phone, he avoided. She came in depression and went to her native place in June, 2013. On 19.06.2013, she was taken to Military Hospital due to severe attack of epilepsy. In January, 2014, she went to the house of the accused at Ranchi to discuss the problem. She met Santosh Kumar and narrated him the whole story. The brothers of the accused namely Santosh, Paritosh, cousin brother Janak Mehto, friend Arun Kumar and uncle Suresh Mehto came in her house alongwith the accused where the accused denied his relation with her and the pregnancy. She returned Delhi on 06.02.2014. She stated that when she was in Ranchi, the accused had come in her house and asked her to marry FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 11/22 him but she asked him to first clear his relation with his bhabi. She stated that at that time, she was not thinking of marrying with the accused as he had denied their relations. She stated that the accused then told her that he could not muster courage before his family to admit that the child belonged to him. She stated that her father requested the family members of the accused to arrange their marriage but the family members of the accused demanded dowry of Rs.5.0 lacs. She stated that on 20.02.2014, she filed the complaint Ex. PW 2/A. She stated that before filing the complaint, the accused had threatened her of dire consequences. She was medically examined vide MLC Ex. PW 2/B. On being crossexamined, she stated that after doing fashion designing course and seeing the good prospects, she decided to settle in Delhi. She admitted that they shifted at Harkesh Nagar since the job of the accused was near Okhla Industrial Area. She stated that in fact it was the accused who started ignoring her after the marriage of his brother Paritosh. She stated that when the accused deleted his photographs with his bhabhi from his laptop, her suspicion strengthened. She admitted that the accused had been suffering from severe problem so he shifted to Ranchi for treatment. She stated that accused had told her the reason of his shifting that there was recession in IT industry.
On being further crossexamined, she stated that she had formal friends in Delhi. Goldy Kumar Singh had met her in Ranchi and remained his friend for some time. She knew Arun through the accused. When she was having bitter relationship with the accused, Arun tried to FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 12/22 flirt her and she narrated this fact to the accused. She stated that she used to chat with Goldy on social networking site. She denied that she had relationship with Goldy Kumar Singh, Arun and Ranvir Chaudhary during the period when the accused shifted to Ranchi. She however admitted that Goldy had proposed her to marry and she had told him that if he has guts, he may contact her parents and come in a formal manner. She denied that she was torturing the accused by telephoning him every day, nagging him of his relation with his bhabhi saying that if he can have relation with his bhabhi, she can also have friendship with boys. She denied that the accused had not made physical relations with her in October, 2012. She stated that she knew Akhilesh. He was an assistant in her office. She stated that though Akhilesh telephoned the accused telling his intentions to marry her but it was only in her presence as he told her that accused would never marry her. She stated that when Akhilesh telephoned the accused, he replied in affirmative and said that he can go ahead as he is not interested in marrying her as she is talking to many boys. She stated that father of the accused telephoned her twice requesting her to marry with the accused but she told him that she felt offended as the accused refused his relation with the child in her womb.
14. On an analysis, I find that the prosecutrix knew the accused since 2002. The accused is distantly related to the prosecutrix. After doing the course of fashion designing, the prosecutrix came in Delhi for internship. Seeing good prospects, she wanted to settle in Delhi. In November, 2009, she came to Delhi with the accused. By that time, she FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 13/22 and the accused had love affairs. They stayed together in Delhi. The accused was searching for a job. The elder brother of the accused got married in November, 2011.
15. PW1 has stated that during her stay with the accused whenever she asked the accused to marry her, he avoided on one pretext or the other. She had firm belief that accused would not ditch her and marry her since he was physical with her. She did not say whether their first physical relation was consensual or the accused before making physical relation with her had promised to marry her. She has stated that when she insisted upon the accused to marry her alongwith the marriage of his brother, he told her that it is not the custom in their family. She then noticed a change in his behaviour. He after coming to Delhi uploaded some of his objectionable photographs with his newly wedded bhabi on her laptop. When she confronted him, he quarreled with her. Their relations became bitter because of the confusion due to the said photographs and their physical intimacy reduced. It is surprising that even after seeing the said photographs, she went physical with the accused. It is relevant to note that the prosecutrix during investigation did not hand over those objectionable photographs which the accused had allegedly uploaded on her laptop. PW10 had made search of the laptop of the accused but no laptop was recovered from the premises. Further his enquiry revealed that the allegations made by the prosecutrix qua photographs were false.
16. PW2 has stated that in May/June, the accused due to illness went to his native place. In October, 2012, he came to Delhi to take his FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 14/22 luggage. He stayed with her for ten days and made physical relations. He then left for his native place. She became pregnant. She informed the accused about her pregnancy but he asked her to abort the child by saying that he is jobless and lot of money has been spent on his treatment. She tried to persuade him that she can take care of the child and would not claim any expenses for his upkeep and he will be free to marry with some other girl. Question arises how the issue of marrying the accused with some other girl arose. PW2 has stated that in November, 2012, the accused came in Delhi to give her medicine for termination of her pregnancy but it did not help. He then took her to the doctor who advised her for MTP. He then left for his native place. When her condition got complicated, she got her pregnancy terminated. It is relevant to mention that the accused never disputed his relations with the prosecutrix. He wanted to marry with the prosecutrix but the prosecutrix used to nag the accused by saying that he has relationship with his bhabi and because of which their relations turned bitter.
17. PW2 has stated that the accused started avoiding taking her calls. She went into depression and went to her native place in June, 2013. After about one and a half month, she returned to Delhi. In January, 2014, she went to Ranchi to meet the accused and his family members to discuss the problem. She met his elder brother and told him the problem in detail. Thereafter, the family members with the accused came in her house. When she asked the accused to make the things clear in front of their family members, the accused denied their relations and even the pregnancy. He FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 15/22 thereafter came alone in her parents house and asked her to marry. She then asked him to clear his relations with his sister in law. He then offered to marry her in a temple or court but she refused. She stated that her father had requested the family members of the accused for arrange marriage but their family members demanded Rs.5 lacs as dowry and finally on 20.02.2014, she made the complaint. Perusal of her testimony would show that she had friendship with Goldy and Arun. She has stated that when her relations with the accused turned bitter, Arun tried to flirt with her. She also admitted that she used to chat with Goldy and he had proposed her to marry her and she then told him that if he has guts, he may contact her parents and come formally. She has stated that she knows Akhilesh. Akhilesh had telephoned the accused that he intends to marry her. She has also stated that the father of the accused had telephoned her two times requesting her to marry with the accused but she told him that since the accused had refused about his relation with the child in her womb, she felt offended. From the testimony of DW1/Goldy who has also filed the print out of the chats mark DW 1/A, I find that his cousin Anuj had introduced her to him. They used to meet everyday. He had proposed to marry her which proposal she had accepted. They used to chat and convey their feelings of love with each other. After coming to know that the prosecutrix had an affair with Akhilesh and Ranvir, he dropped the idea of marrying with her. The chats are of the period from 29.07.2013 to 05.10.2013. The complaint in the instant case was lodged on 20.02.2014. I am unable to comprehend when she had affair with Goldy during the aforesaid period, FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 16/22 why she went in January, 2014 to Ranchi and met the family members of the accused to discuss about the problem and when the accused started avoiding her since June, 2013, why she lodged the complaint in February, 2014. Even otherwise, the prosecutrix in her testimony introduced some facts which were not the part of her complaint i.e the accused giving the medicine for termination of her pregnancy and confessing by the accused that the child belonged to him or his objectionable photographs with his bhabi.
18. In the instant case, the prosecution did not examine the parents of the prosecutrix to find out whether the family members of the accused had ever contacted them or the accused before them had disowned his paternity qua the child or his relations with the prosecutrix or the parents of the accused had made a demand of Rs.5 lacs for doing arrange marriage as coming in the testimony of the prosecutrix. I am of the view that they were the material witnesses in this case since the accused and the prosecutrix were in distant relations and their relations were since 2002.
19. Facts and circumstances of the present case show that the prosecutrix and the accused knew each other being residents of Ranchi. They had an affair in Ranchi. They were in livein relationship for a long time. The prosecutrix used to nag the accused that he has an affair with his bhabi and for that reasons their relations became sour. It is not the case that the accused did not want to marry with the prosecutrix or his intention since beginning was not to marry with the prosecutrix. The intention of the accused is gathered from the fact that the family members of the accused FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 17/22 had gone to the house of the prosecutrix and the father of the accused had telephoned the prosecutrix twice to marry with the accused. It was the prosecutrix who felt offended from the behaviour of the accused and denied to marry him. Facts and circumstances further show that during the said period, the prosecutrix had an affair with Goldy which facts are substantiated by the chats mark DW 1/A. It is true that DW1 did not produce the certificate u/s 65B of the Evidence Act regarding the chats but the testimony of the prosecutrix show that she used to chat with Goldy on social networking site. The Apex Court in Ram Singh case Crl. App. No. 932/2009 held that the evidence tendered by defence witness cannot always be termed to be tainted one. The defence witness is entitled to equal term and equal respect as with of the prosecution. The issue of credibility and trustworthiness will also to be attributed to the defence witness at par with that of the prosecution. It was held in the case of Dudh Nath Pandey Vs. State of UP AIR 1981 SC 911 that defence witnesses are entitled to equal treatment with those of the prosecution and the Court ought to overcome their traditional instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses.
20. The reasonable inference which can be drawn from the facts and circumstances of this case is that when the accused and the prosecutrix established physical relations with each other, there was no promise of marriage. They remained in livein relationship for a long time and their relations were consensual. The prosecutrix was major, educated and matured enough to understand the implications of such relations before FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 18/22 marriage. In the case of Uday vs. State of Karnataka, 2003 (1) JCC 506, the prosecutrix and the accused were deeply in love. They used to meet often. She went out with the accused to a lonely place at night. The accused had also made promise on more than one occasion to marry her. It was held that in such circumstances, the promise loses all significance particularly when they are overcome with emotions and passions and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well and the prosecutrix had willingly consented to having sexual intercourse with the accused with whom she was deeply in love but not because that he promised to marry but also she desired it. In these circumstances, it would be very difficult to impute to the accused knowledge that the prosecutrix had consented in consequence of a misconception of a fact arising from his promise. The observations made in the case supra have relevance in this case.
21. In the case of Mohd. Iqbal Vs. State, Bail application no. 2145 of 2009 it was held by Hon'ble High Court as under :
"There is an old Jewish saying "if you are close when you should be distant, you will be distant when you should be close". It is for both man and woman to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral and ethical, both, on the part of men not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But ultimately, it is woman herself who is the protector of her own body. Promise FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 19/22 to marry may or may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues."
22. It was observed in the case of Rohit Chauhan vs. State NCT of Delhi, 2013, Bail application no. 311/2013 dated 22.05.2013 in the Hon'ble High Court of Delhi that there may be cases where both persons out of their own will and choice develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship but when the relationship breaks due to one or the other reason, the woman uses the law as a weapon for vengeance and personal vendetta and sometimes even to force the boy to get married to her.
23. On considering the facts in entirety, I find that the prosecutrix and the accused had livein relationship for a long time. After the marriage of the brother of the accused, the prosecutrix started suspecting on the accused that he has relations with his bhabhi ( brother's wife). She started nagging the accused very oftenly. She also tried to clear the relations of the accused with his bhabhi even when she went to his parents house. Their relations became bitter day by day. The accused never refused to marry the prosecutrix. She wanted the accused to disclose before his parents that she had become pregnant from the relations made by the accused with her. The accused could not muster courage before them but later he personally FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 20/22 contacted the prosecutrix and made her convinced to marry in a temple which the prosecutrix did not agree. She refused to marry the accused and lodged the report. Nothing can be inferred from the facts and circumstances that intention of the accused since inception was to sexually exploit the prosecutrix. He wanted to marry the prosecutrix which fact he never denied. The prosecutrix had willingly consented to having sexual intercourse with the accused with whom she was deeply in love. It was not because that he promised to marry her but she desired it. It cannot be imputed that the prosecutrix had consented in consequence of a misconception of a fact arising from his promise.
24. In the case of Narender Kumar Vs. State, (2012) 7 SCC 171, it was held that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. The prosecution case has to stand on its own leg and cannot take support from weakness of the case of defence. However, the great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
25. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it was held :
"Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or FIR No. : 195/14 PS : Govind Puri State Vs. Ravitosh @ Vinay Page No. 21/22 unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record".
26. In the light of what has been stated above, I am of the view that prosecution has failed to prove its case against the accused, I therefore, acquit the accused of the offences punishable under section 417/376 IPC. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs.20,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C. Case property if any be confiscated to the State after the expiry of period of appeal or revision. File be consigned to the Record Room.
Announced in the open
court today i.e. 06.01.2016 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi.
FIR No. : 195/14
PS : Govind Puri
State Vs. Ravitosh @ Vinay Page No. 22/22