Delhi District Court
(Judgment) State vs Aakash on 28 February, 2018
(Judgment) State Vs Aakash
PS: Bharat Nagar
FIR no. 443/15
IN THE COURT OF SH. SHAILENDER MALIK
ADDITIONAL SESSIONS JUDGE, SPECIAL FAST TRACK COURT, NORTHWEST,
ROHINI, DELHI
In the matter of:
SC No.05/16
FIR No.443/15
Police Station : Bharat Nagar
Under Sections : 366/376 IPC
State
Versus
Aakash
S/o. Late Rajkumar
R/o. B112, Sangam Park,
Rana Pratap Bagh,
Delhi ......Accused
Date of FIR : 17.08.2015
Date of institution/committal : 15.01.2016
Charge framed on : 20.02.2016
Arguments advanced on : 22.02.2018
Judgment Pronounced on : 28.02.2018
Decision : Acquittal
Appearance:
Sh. Himanshu Garg, Ld. Addl. PP for the State.
Sh. Gajraj Singh, Ld. Counsel for accused.
JUDGMENT
1. Accused Aakash s/o. Late Rajkumar is facing prosecution for the offences u/s.366/376 IPC.
2. Prosecution story precisely stated is that on 16.8.2015, complainant/prosecutrix 'B' (name withheld to protect privacy) gave statement to police stating that she lived with her brother 'J' at his Page no...... 1 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 residence. Her marriage took place with one Arun on 27.07.2009 at Ghaziabad, UP and she got divorce from her husband 5 / 6 months ago from the date of registration of this case and she does not have any child out of that wedlock. Complainant states that accused Aakash was staying in the same locality where she was staying with her brother and she met him about 3 / 4 years back in the Friday Market (Shukar Bazaar), where accused also came for shopping and she developed friendship with him and she started talking and meeting with the accused. One day, accused took her in a room of hotel at Pahar Ganj, where he developed physical relations with her on the pretext of marrying her. On 15.07.2015, accused took her to the house of his friend namely Rahul at Sonia Vihar, where in the night, he established physical relations with her on the pretext that he would marry her next day and in the next morning, accused put vermilion in her hair parting and told her that he would marry her after two / three days and thereafter, he left. Complainant further states that she alongwith accused stayed at the house of his friend till 21.07.2015 and thereafter, accused left without informing her. Complainant states that accused established physical relations with her till 21.07.2015. Thereafter, complainant approached the family members of accused, but they informed her that they have nothing to do with the accused. Thereafter, on the complaint of prosecutrix, present case was registered on 17.08.2015. During the investigation, prosecutrix was medically examined. Statement of prosecutrix u/s.164 Cr.P.C. was recorded. Accused Aakash was arrested and was also medically examined. Upon completion of investigation, chargesheet was filed.
3. On the basis of material came on record, charge for the offences punishable u/s.366 and 376 was framed against the accused, to which he pleaded not guilty and claimed trial.
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4. In order to substantiate the charge, prosecution has examined as many as 14 witnesses.
PW Name of Nature of Documents proved
witness witness
PW1 'B' Prosecutrix/ She had narrated the
complainant incidents leading to registration of FIR. She has also proved her complaint Ex. PW1/A. She has also proved her MLC Ex. PW1/B. She has also proved recording of her statement u/s. 164 Cr.P.C., which is Ex.
PW1/C. PW2 Dr. Avnish Proved the The witness had proved Tripathi MLC of the MLC of victim / victim prosecutrix Ex. PW1/B, prepared after her medical examination by Dr. Sachin Patil.
PW3 'J' Brother of PW3 is the brother of prosecutrix prosecutrix and he deposed about the facts narrated to him by the prosecutrix.
PW4 Mrs. Dewanti Landlady of She deposed about the house of letting out the premises Page no...... 3 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 Rahul to Rahul at first floor of her house.
PW5 Sudhakar @ Friend of He deposed that on Rahul accused 23.06.2015, he took a Aakash room on rent from one lady namely Dewanti and started residing with his wife and children. He further deposed that accused Aakash is his distant relative being son of his maternal uncle (according to caste).
He further deposed that after one week of his residing at the aforesaid rented premises, police came to him and enquired from him as to how long accused stayed in the said premises with him and he told them that accused came to his premises for 1 / 2 times only and never stayed with him for 4 / Page no...... 4 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 5 days. He further deposed that police also enquired him if accused stayed at his rented premises with some lady and he informed the police that accused came alone to his rented premises and thereafter police left from there.
PW5 was cross examined by Ld. Addl.
PP for the State, being resiled from his previous statement.
PW6 Muskan Wife of Her testimony is similar Rahul to the testimony of PW5, being his wife and she was also cross examined by Ld. Addl.
PP for the State.
PW7 Dr. Gopal Medical of He deposed about the Krishna accused medical examination of accused Aakash by Dr. Aquil Raja under his supervision vide MLC Ex. PW7/A and after Page no...... 5 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 his medical examination, accused was referred to Forensic Department for his potency test.
PW8 HC Rajender Duty Officer PW8 has proved the Kumar registration of FIR vide Ex. PW1/A, his endorsement on rukka Ex. PW8/B and certificate u/s.65B of Indian Evidence Act as Ex. PW8/C. PW9 ACP Satyavir Posted as He deposed that FIR in Singh SHO PS the present case was Bharat registered through Nagar at the Computer Operator on relevant the directions of Duty time Officer and he verified and attested the certificate u/s.65B of Indian Evidence Act Ex.
PW8/C. PW10 HC Ashok Witness of He deposed that on investigation 16.08.2015, 'J' (brother of prosecutrix) came to PP Sangam Vihar and told him about some wrong act committed Page no...... 6 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 with his sister/prosecutrix 'B', upon which PW10 informed SI Rakesh Duhan, Incharge PP, who informed to Control Room, from where SI Vishambhari came to PP Sangam Vihar. Thereafter, PW10, SI Vishambhari and the said 'J' reached the house of prosecutrix, where prosecutrix 'B' and her sister 'S' met them.
NGO official was also called there. He further deposed that SI Vishambhari enquired from the prosecutrix and then recorded her statement and prepared tehrir and handed over the same to PW10, who took the same to PS and got the FIR registered. During that Page no...... 7 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 period, SI Vishambhari took the prosecutrix alongwith L/Ct. Usha to BJRM Hospital.
Thereafter, further investigation of the case was marked to ASI Parvati, who reached and PW10 alongwith SI Parvati reached BJRM Hospital, where prosecutrix 'B' was present, where medical examination of prosecutrix 'B' was got conducted by the doctors and her MLC was prepared.
Thereafter, PW10, ASI Parvati and Ct. JItender went to the house of accused, where accused and his brother Vikash were found present and accused was arrested vide arrest memo Ex.
PW10/A and his personal search was Page no...... 8 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 conducted vide memo Ex. PW10/B. Accused also made disclosure vide Ex. PW10/C. Thereafter, accused took them to one house at Wazirabad, where the alleged incidence had taken place and IO prepared pointing out memo in this regard vide Ex. PW10/D. Thereafter, accused was got medically examined from BJRM Hospital and then produced before the concerned Court, from where he was remanded to JC.
PW11 ASI Suresh Took the He deposed that on KUmar accused for 27.08.2015, on the getting his directions of IO/ASI medical Parvati, he took the examination accused to BJRM conducted Hospital for getting his medical examianation conducted and after Page no...... 9 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 medical examination, doctors handed over MLC of accused to PW11, who handed over the same to ASI Parvati in the PS. PW12 HC Jitender Witness of He jointed the investigation investigation with IO/ASI Parvati and HC Ashok. The witness deposed that they reached the house of accused, from where accused was arrested and thereafter, accused led them to one house at Wazirabad after arrest his arrest, where allegedly accused established physical relations with the prosecutrix and where also, friend of accused namely Rahul @ Sudhakar and his wife Muskan met them and their statements were recorded. IO prepared Page no...... 10 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 pointing out memo of the said place.
thereafter, accused was produced before the concerned Court, from where he was remanded to JC.
PW13 SI Sushila She filed the PW13 deposed that on chargesheet 02.09.2015, investigation of the present case was marked to her and since the investigation has already been completed by ASI Parvati as she perused the file, therefore, she filed the chargesheet in the Court.
PW14 ASI Parvati IO of the She is the IO of the present case present case and she has deposed about the details of steps taken by her and has proved the statement of complainant. PW14 also referred to the arrest of accused vide Page no...... 11 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 memos Ex. PW10/A and Ex. PW10/B, disclosure statement of accused Ex. PW10/C and pointing out memo at the instance of accused Ex. PW10/D. She further deposed about preparation of site plan Ex. PW14/A and thereafter, took the accused to the office of DCP office for preparing dossier.
Thereafter, accused was got medically examined. She further deposed that on 18.08.2015, she alongwith prosecutrix went to the place of occurrence and the prosecutrix correctly identified the same. On 26.08.2015, PW14 took the permission of Court for getting the potency test of accused Page no...... 12 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 conducted and got the same conducted through HC Suresh.
5. Upon completion of prosecution evidence, accused was called upon to explain and all the incriminating evidence put to him u/s.313 Cr.P.C. wherein while denying all the evidence, accused has taken the defence that he has been falsely implicated in the present case and about 3 / 4 years before the registration of FIR, prosecutrix who resided in the same locality where he resides, gave him the offer for friendship and he accepted the same and she told him that she wanted to marry him and accused agreed for the same, but he came to know from the people of locality that prosecutrix was already married. Thereafter, accused told the prosecutrix to take divorce from her husband, but she started giving excuses. Thereafter, accused refused to marry with prosecutrix as she was not interested to give legally divorce to her husband. Accused further deposed that he did not know about the previous marriage of prosecutrix as she was not known to him before his first meeting with her. He deposed that a false case has been registered against him to pressurize him to marry with prosecutrix.
6. Accused opted to lead evidence in defence and examined DW1 Raju s/o. Sh. Banarsi.
7. DW1 deposed that he knew accused Aakash and prosecutrix as they reside in the same locality, where he lives. He deposed that both prosecutrix and accused were good friends and they were in love affair. He deposed that prosecutrix was already married and she proposed the accused to marry with her, but accused told her to first get divorce from her husband, upon which she did not agree. DW1 further deposed that Page no...... 13 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 some oral altercation took place between accused and prosecutrix in his presence number of times and prosecutrix told the accused that if he would not marry her, then she will implicate the accused in a false case. DW1 was crossexamined by Ld. Addl. PP for the State.
8. I have heard Sh. Himanshu Garg, Ld. Addl. PP for the State and Sh. Gajraj Singh, Ld. Counsel for the accused. I have also gone through the written synopsis filed on behalf of the defence.
9. Having considered the evidence as come on the judicial record, let us examine first the most material evidence in this case i.e. evidence of prosecutrix PW1 B.
10.Prosecutrix has testified in her examination in chief that she is 26 years of age and was living with her brother. PW1 says that accused Akash was also staying in the same locality where she was living with her brother. PW1 says that accused had come for shopping at 'Shukar Bazar' and she developed friendship with him. PW1 says that accused took her to a hotel in Pahar Ganj where accused made physical relations with her in the room of the hotel. Prosecutrix says that accused made physical relations with her on the pretext of marriage. Witness further testifies that on 15.07.2015, accused had taken her to the house of his friend which was taken on rent, in the area of Sonia Vihar, where also accused established physical relations with her in the night, on the pretext that he would marry her on the next day.
11.PW1 further says that next morning, accused put vermilion on her hair partition and told her that he would marry her after one or two days and thereafter left. PW1 says that she stayed with the accused in the house of his friend till 21.07.2015 and then accused left her without informing. Prosecutrix says that she contacted the family members of the accused and they told her that they had already turned the accused out of their Page no...... 14 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 house and have nothing to do with him. PW1 says that thereafter she lodged the complaint Ex. PW1/A. Witness further testifies regarding recording of her statement U/s 164 Cr.P.C.
12. Considering such evidence of prosecutrix, important aspect to be noted here is that she in her complaint Ex. PW1/A had specifically stated that she was already married in February, 2009 with one Arun but her husband had left her. Therefore, she was residing with her brother. There is no reference in her statement Ex. PW1/A regarding taking of divorce from her husband. However, prosecutrix when appeared in the witness box, for the first time testified that her husband had given divorce about 5/6 months prior to date of her deposition. However, in her crossexamination recorded on 08.06.2016, prosecutrix admits that she had not filed any documents relating to grant of divorce from her husband in the Court of Law. PW1 says that she had taken the divorce in Panchayat of Relatives. It is very established law that divorce can be effective and legal only if taken from the Court of Law as per the provisions of the law. A divorce taken in the Panchayat of people have no legal force. Thus, for all intent and purposes, prosecutrix was married and was having a subsisting marriage with her husband. In such circumstance, there could not have been any promise for marriage when prosecutrix was already married.
13.Prosecutrix in her evidence has stated that she developed friendship with the accused and thereafter accused took her to a hotel in Pahar Ganj where he established physical relations with her. It is at this stage prosecutrix has deposed that accused established physical relations with her on the pretext of marriage with her. I have already noted above that prosecutrix being a married woman and her marriage was not dissolved by legal decree of divorce, in such situation, prosecutrix being a grown Page no...... 15 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 up and mature lady, cannot be accepted to have consented for sexual intercourse only on the pretext of marriage by the accused. In this context, it is important to again refer her crossexamination recorded on 08.06.2016 that she do not remember the date, month or year as to when accused for the first time established physical relations with her. Reading the evidence of the prosecutrix in totality, clearly indicate that she had a consensual relation with the accused. Law with regard to false promise of marriage is well settled as laid down in Udai Vs. State of Karnatka AIR 2003 SC 1639, Deepak Gulati Vs. State of Haryana (2013) 7 SCC 675 and Tilak Raj Vs. State of H.P. 1 (2016) SLT 262, wherein it has been laid down by Apex Court that there is a clear distinction between rape and consensual sex. The Court of Law has to examine whether there was any false promise of marriage or deceitful intention of accused right from the beginning to obtain the consent of the prosecutrix for sexual intercourse and such consent was given by the victim on false representation, or circumstances deriving her to surrender to the sexual lust of the accused. However, at the same time, if prosecutrix voluntarily agreed for establishing physical relations, in that case, merely alleging of promise of marriage would not bring the case to be within the definition of rape U/s 375 of IPC.
14. In this case also, meaningful reading of the evidence of prosecutrix clearly show that while she was residing in the same locality in which accused was residing, she developed liking for the accused and went with him to the hotel at Pahar Ganj and also stayed at the house of friend of the accused. Such conduct of the prosecutrix who being mature lady expected to be aware of consequence of her conducts, cannot be described that her consent was fraudulently obtained or her consent was affected by misconception of fact rather conduct shows that she was Page no...... 16 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 consensual with the accused in keeping the relation.
15. In this context, it is important to refer to the evidence of PW3 J who is brother of the Prosecutrix. PW3 says that accused Akash had taken his sister alongwith him for marrying her and kept her at the house of his friend. Thereafter, on 21.07.2015, accused left his sister at the house of his friend without informing anything to her and did not return. PW3 says that thereafter, he accompanied his sister to Police Station where she got registered her complaint against the accused. PW3 in his cross examination has admitted that his sister had not taken divorce from the court of law. He says that divorce was granted in the panchayat of village. PW3 further admits that FIR was registered against accused to put pressure upon him to perform marriage with his sister without insisting for seeking divorce from the court, before performance of marriage. Such deposition of PW3 clearly corroborate the defence version. PW3 in his crossexamination further admitted that his sister did not lodge complaint in her own handwriting, at the time of registration of FIR. PW3 says that his sister only signed the complaint.
16. Above discussed evidence of the prosecutrix clearly prove that present case was registered only to pressurize the accused to perform marriage with the prosecutrix without asking for divorce from her first husband by decree of Court of Law. Moreover, evidence of PW1 and only PW3 also indicate that there was consensual relations between prosecutrix and the accused. Another aspect to be noted here is that as per prosecutrix, accused left her on 21.07.2015, without informing her. However, present case was registered on 16.08.2015. There is no explanation coming forth either in the evidence of prosecutrix or in evidence of PW3 as to why there was delay in registration of FIR when accused left her on 21.07.2015. This court is conscious of the fact that in a rape case, delay Page no...... 17 of 18 (Judgment) State Vs Aakash PS: Bharat Nagar FIR no. 443/15 in registration of FIR, per se is not having much bearing. As there is always the possibility that prosecutrix feel hesitant in reporting the matter of sexual assault. However, there must be some explanation for the delay in registration of FIR which Court generally accepts without deep scrutiny. In the present case, there is no explanation at all coming from the evidence of PW1 or 3 for such delay in registration of FIR against the accused when according to prosecutrix accused had already left her on 21.07.2015 without informing her and relatives of the accused also did not give any satisfactory answer.
17. Thus, from the above discussion of evidence, when it has come on the record that prosecutrix was already married having a subsisting marriage in the eye of law, accompanying the accused to a hotel as well as to the house of his friend, was certainly having consensual relations with the accused. In such circumstance, I do not find that consent of the prosecutrix was fraudulently obtained on false pretext of marriage. For the reasons discussed above, I find that prosecution has failed to establish charge against the accused. Accordingly, accused is acquitted. Accused is directed to furnish bail bond and surety bond in sum of Rs.10,000/ in compliance to Section 437A Cr.P.C. File be consigned to Record Room on compliance to section 437A Cr.P.C.
Announced in open Court on 28th day of February, 2018 (SHAILENDER MALIK) ASJSpecial Fast Track Court NorthWest, Rohini Courts, Delhi Page no...... 18 of 18