Delhi District Court
State vs Kamal Chaurasia -:: Page 1 Of 74 ::- on 29 January, 2016
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 129/13
Unique Case ID Number : 02401R0376222013
State
Versus
Mr. Kamal Chaurasia,
S/o Mr. Bhagirath Chaurasia,
R/o WZ-144, Shadi Khampur,
West Patel Nagar, Delhi.
First Information Report Number : 121/2013
Police Station : Patel Nagar
Under sections : 376 and 315 of the Indian Penal Code.
Date of filing of the charge sheet before : 26.07.2013.
the Court of the Metropolitan Magistrate
Date of receipt of this file after committal : 19.08.2013.
Arguments concluded on : 29.01.2016.
Date of judgment : 29.01.2016.
Appearances: Ms.Madhu Arora, Additional Public Prosecutor for the
Accused on bail with counsel, Mr. R.S.Gulia.
Ms.Shubra Mehndiratta, counsel for the Delhi
Commission for Women.
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*
Sessions Case Number : 129/13.
Unique Case ID Number : 02401R0376222013
FIR No. 121/2013, Police Station Patel Nagar
Under section 376 and 315 of the Indian Penal Code.
State versus Kamal Chaurasia -:: Page 1 of 74 ::-
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JUDGMENT
"Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend them- selves. What really needs to be done is teaching men not to rape Go to the source and start there"........Kurt Cobain.
BACKDROP
1. "Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned." describes the backdrop of the case.
2. The prosecutrix (name mentioned in file and withheld to protect her identity) has filed the present case of rape against the accused Mr.Kamal Chaurasia on the allegations that he had physical relations with her on a false promise of marriage.
3. Some thought it's Williams Shakespeare "Hell hath no fury like a woman scorned." The correct quotation is "Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned." by William Congreve in The Mourning Bride of 1697.
PROSECUTION CASE
4. Mr. Kamal Chaurasia, the accused, has been charge sheeted by Police Station Patel Nagar, Delhi for the offence under sections 376 and 315 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that between the period of October, 2012 Sessions Case Number : 129/13.
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and 10.04.2013 at the "A" address at Baljeet Nagar, West Patel Nagar (address mentioned in file and withheld to protect the identity of the prosecutrix as the same was her address earlier) at unknown time, he repeatedly committed rape upon the prosecutrix on a false pretext of marrying her.
CHARGE SHEET AND COMMITTAL
5. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 26.07.2013 and after its committal, the case was assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court)
-01, West, Tis Hazari Courts, Delhi for 19.08.2013.
CHARGE
6. After hearing arguments, vide order dated 15.02.2014, charge for offence under sections 376 and 420 of the IPC was framed against the accused.
PROSECUTION EVIDENCE
7. In order to prove its case, the prosecution has examined as many as 13 witnesses i.e. the prosecutrix, as PW-1; ASI Manrakhan, the Duty Officer who had recorded the formal FIR, as PW2; Dr. P.S.Verma, who had medically examined the prosecutrix, as PW3; Dr. Deepti Kaur, who had medically examined the prosecutrix, as PW4; Ms. Aditi Garg, learned Metropolitan Magistrate, who had recorded the statement under section 164 of the Criminal Procedure Sessions Case Number : 129/13.
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Code (hereinafter referred to as the Cr.P.C.) of the prosecutrix, as PW5; Ms. Kusum, landlady of the prosecutrix, as PW6; Ms. Gunjan Rana, as PW7; Ct. Vakeel Singh, who had recorded the DD, as PW8; Lady Ct. Jyoti, witness of investigation as PW-9; Ct. Sunil, witness of investigation, as PW10; Ms.Veena, paternal aunt of prosectrix, as PW11; Ct.Azad Singh, as PW12; and ASI Kiran Sethi, the Investigation Officer of the case, as PW13.
8. On 29.10.2013, Mr.R.S.Gulia, counsel for the accused, on behalf of accused, has admitted the evidence of Dr. Pritesh Kumar Singh, who had medically examined the accused and the documents prepared by him and/or signed by him. The documents prepared by him and/or signed by him were exhibited. The admission and denial of documents was conducted under section 294 of the Cr.P.C. Therefore, as the evidence of the above mentioned witness and the document prepared by him and/or signed by him was admitted on behalf of the accused, he was ordered not to be examined and his evidence was to be read against the accused at the time of final disposal of the case. Exhibit was put on the document prepared by the above mentioned prosecution witness.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
9. In the statement under section 313 of the Cr.P.C., the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and he has not committed any Sessions Case Number : 129/13.
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offence. There is no evidence against him of the offences alleged against him. The prosecutrix has lodged the false complaint in order to grab money from him. She has also filed similar cases against the other men to extort money. The accused has preferred not to lead evidence in his defence.
ARGUMENTS
10.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
11.The Additional Public Prosecutor for the State had argued the matter at length and has requested for convicting the accused for having committed the offence under sections 376 and 420 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable. No motive can be assigned to the prosecutrix for false implication of the accused.
12.The counsel for the accused has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. The evidence of the prosecutrix is not reliable as it suffers from various contradictions. There is an unexplained delay in lodging of the FIR which indicates that the FIR has been lodged after deliberation and consultation and is motivated. Even the place of occurrence is not proved. There are several contradictions in the Sessions Case Number : 129/13.
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different statements of the prosecutrix which also indicate that the case is false. There is no medical or forensic evidence against the accused. The prosecutrix wanted to extort money from him which he refused to give and then, she has lodged a false case against the accused.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
13.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, Sessions Case Number : 129/13.
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depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
14.Under this sphere, I now proceed to test the submissions of both the sides.
IDENTITY OF THE ACCUSED
15.There is no dispute regarding the identity of the accused Mr.Kamal Chaurasiya who has been identified in the Court by PW1, the prosecutrix, PW6-Ms.Kusum, owner and landlady of the premises taken on rent by the prosecutrix, PW7-Ms.Gunjan Rana, a tenant in the same house as the prosecutrix, and PW7, PW10 and PW11 who are the police witnesses of investigation. It is also not in dispute that the accused and the prosecutrix were known to each other prior to the lodging of the FIR. Accused is also named in the complaint (Ex.PW1/X), complaint (Ex.PW1/A) and the FIR (Ex.PW2/A).
Sessions Case Number : 129/13.
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16.Therefore, the identity of the accused stands established.
AGE OF THE PROSECUTRIX
17.There is no dispute that the prosecutrix was above 18 years ofage at the time of the incident. In her complaint (Ex.PW1/X), her MLC (Ex.PW4/A), her statement under section 164 of theCr.P.C. (Ex.PW1/A) and in her particulars in her evidence, theprosecutrix has mentioned her age as 22 years. As per the prosecution, she was a major at the time of the alleged incident. Her age is not disputed by the accused.
18.Therefore, it is clear that the prosecutrix was a major at the time of incident.
VIRILITY OF THE ACCUSED
19.Dr.Pritesh Kumar Singh had medically examined the accused vide MLC (Ex.PX-1). His evidence and documents prepared by him are admitted by the accused as mentioned in the statement of his counsel recorded on 29.10.2015.
20.It is mentioned in the MLC of the accused (Ex.PX-1) that "Pt. not able to ejaculate, so semen sample could not be taken". It is also mentioned that "Pt is capable to do sexual assault". The doctor had taken and seized the blood sample, pubic hair and nail scrapings of the accused. The accused did not have any fresh injuries.
Sessions Case Number : 129/13.
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21.When the accused was not able to ejaculate and give his semen sample and when the doctor has not examined his private parts to ascertain whether or not the same are normal, then the opinion of the doctor that the accused is capable of sexual assault cannot be considered as correct.
22.The prosecution was required to produce some positive evidence to show that the accused is virile and capable of performing the physical relations and to show his potency.
23.There is nothing on the record to show that the accused is potent or virile or is medically capable of performing physical relations or committing the offence of rape and for this reason alone, the accused can be acquitted of the charges.
MLC OF THE PROSECUTRIX, MEDICAL EVIDENCE AND FORENSIC EVIDENCE
24.It has been argued on behalf of the accused that as there is no medical and forensic evidence against the accused, it indicates that he has been falsely implicated in this case as the prosecutrix does not have any injury and she has refused her internal gynecological examination and refused to give her samples.
25.The Additional Public Prosecutor has argued that the medical and forensic evidence is only for corroboration. Sessions Case Number : 129/13.
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26.It can be seen from the MLC of the prosecutrix (Ex.PW4/A) which is dated 02.05.2013 that she does not have any external injuries. She had told the doctor in the history that "she was involved with a boy named Kamal for the past 1 ½ years. For the past 1 year, she had been living with this boy in Baljeet Nagar as her parents after knowing that she was involved with the boy, the parents threw her out of the house, she has been in live-in relationship with the boy for 1 year, where she had sexual intercourse with him, as the boy promised her that he will marry her. But after 1 year of living with him, he now refuses to get married to her. There is no H/O physical assault, forceful sexual intercourse. The boy refused to get married, the girl now lodged a complaint in the police". Her hymen is ruptured.
27.As the prosecutrix had refused her gynecological examination and sampling, there is no forensic evidence available with the prosecution.
28.Here, it shall be very important to refer to the evidence of Dr.P.S.Verma (PW3) to whom the accused had taken the prosecutrix and she had told that she was pregnant and given her a tablet. PW3 has also proved the preseciption of the prosecutrix (Ex.PW3/A), her verification on the same (Ex.PW3/B) and writing on her letter head (Ex.PW3/C) that the prosecutrix was not pregnant nor her abortion was conducted.
Sessions Case Number : 129/13.
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29.Although there is nothing incriminating against the accused in the medical and forensic evidence produced by the prosecution, but per se, the ocular and oral evidence as such cannot be ignored, and lack of medical and forensic evidence does not indicate that the accused is innocent.
30.There is nothing incriminating against the accused in the medical evidence produced by the prosecution and there is no forensic evidence.
DELAY IN FIR
31.The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.
32.The counsel for the accused has argued that there is an unexplained delay in lodging the FIR which was lodged after due deliberation and consultation.
33.The contention of the prosecution that there is no delay in lodging the FIR as the prosecutrix lodged the complaint as early as possible. She was exploited by the accused for one year and then he refused to marry her. She went to the Police Station and gave her complaint (Ex.PW1/A) submitted on 30.04.2013 vide DD No.47B dated 30.04.2013 (Ex.PW8/A) and her complaint (Ex.PW1/X) Sessions Case Number : 129/13.
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submitted on 01.05.2013 on which action was taken and the FIR (Ex.PW2/A) was registered on 01.05.2013.
34.The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
35.It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
36.In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the Sessions Case Number : 129/13.
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case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
37.Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
38.In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the Sessions Case Number : 129/13.
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earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."
39.Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
40.The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them. It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the Sessions Case Number : 129/13. Unique Case ID Number : 02401R0376222013 FIR No. 121/2013, Police Station Patel Nagar Under section 376 and 315 of the Indian Penal Code. State versus Kamal Chaurasia -:: Page 14 of 74 ::-
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prosecutrix story was not satisfactorily established"
41.It is claimed by the accused that as the FIR (Ex.PW2/A) has been lodged after a long delay on 01.05.2013 at 22:35 hours (10:35 p.m.) while the allegations made by the prosecutrix in her complaint (Ex.PW1/A) submitted on 30.04.2013 vide DD No.47B dated 30.04.2013 (Ex.PW8/A) are that the accused had physical relations with her for one year on a promise of marriage and when she became pregnant, he put a condition for marriage that she should get an abortion which was done by Dr.P.S.Verma but he did not marry her even thereafter. In her complaint (Ex.PW1/X) she has submitted similarly with some more details. Then the FIR (Ex.PW2/A) was registered on 01.05.2013. The delay in lodging of the FIR has been not explained by the prosecution.
42.The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible.
43.It is clear from the complaint of the prosecutrix (Ex.PW1/A) submitted on 30.04.2013 vide DD No.47B dated 30.04.2013 (Ex.PW8/A) and her complaint (Ex.PW1/X) that the accused had physical relations with her for one year on a promise of marriage and when she became pregnant, he put a condition for marriage that she should get an abortion which was done by Dr.P.S.Verma but he did not marry her even thereafter. She has not given any specific date when the physical relations were last established. Sessions Case Number : 129/13.
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44.In her statement under section 164 of the Cr.P.C. (Ex.PW1/B) the prosecutrix has stated similarly with some variations. She has stated that around 01.12.2012, she had taken a room in Baljeet Nagar where the accused used to visit and have physical relations with her assuring her that he will marry her. He had taken her to Haridwar, Mathura, Vrindavan where he had physical relations with her. In February, 2013, she did not have her menstrual cycle for 1- 1½ months and then the accused took her to Dr.P.S.Verma who gave her a tablet and told her that she must inform when the date comes after 3-4 days. On 10.04.2013, the accused refused to marry her and started making false allegations against her. She has not given any specific date when the physical relations were last established.
45.In her examination in chief, the prosecutrix as PW1, on 19.03.2014 at page 3, has deposed that "In the year 2013, I do not remember the date and month I took a room in "Baljeet Nagar, West Patel Nagar, near Baba Balaknath Mandir, Delhi........Accused used to visit me in my rented accommodation at Baljeet Nagar. He assured me that he would marry me and would not leave me in future. Accused insisted me to have physical relations with him. ......... Finally, I agreed to have physical relations with him in the house at Baljeet Nagar. Accused had physical relations with me number of time in the house at Baljeet Nagar on assurance of the marriage."
Sessions Case Number : 129/13.
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46.In her examination in chief, the prosecutrix as PW1, on 15.05.2014 at page 3, has deposed that "My paternal aunt (tai) Ms. Rajkumari who was working in the house of some judge used to instigate the accused against me as she wanted both of us to separate. Accused used to repair the car of that judge. I do not know the name and address of the judge. Accused had gone to PS Ranjit Nagar along with Ms. Rajkumari to make a complaint against me. He told me that he was making a complaint against me as I was telling him repeatedly to marry me. Accused did not want to marry me so he had gone to make a complaint against me. Accused had met Ms. Rajkumari in a marriage and had developed friendship with her and used to remain in her house. I had phoned the accused and inquired where he was on which he told me that he was in PS Ranjit Nagar with his bhabhi and he also told me to talk to her but I disconnected the phone. I narrated all the facts to Mr. Manoj, my employer and he told me that I should not worry even if the accused was in PS Ranjit Nagar since I had not committed any wrong or murder and I should remain silent. Then, I spoke to one Ms. Seema Kohli, an aunty. She talked to the accused on phone but I do not know what was the conversation thereafter, Ms. Seema Kohli took me to PS Patel Nagar as my room in Baljit Nagar is within the jurisdiction of PS Patel Nagar. I made my complaint against the accused by giving a statement in PS Patel Nagar."
47.It is clear from the examination in chief of the prosecutrix that she Sessions Case Number : 129/13.
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did not have any grievance against the accused till he went to the Police Station to make a complaint against her. It was only a counter blast by the prosecutrix against the accused. It is clear that the prosecutrix preferred to remain silent and not complain to anyone prior to the lodging of the complaint on 30.04.2013.
48.According to the prosecutrix, she had physical relations with the accused since 2013 at Bajeet Nagar till she was taken by him to Dr.P.S.Verma as she was pregnant. As per Ex.PW3/A i.e. the prescription of the prosecutrix prepared by Dr.P.S.Verma, the date is 01.04.2013 and she was not pregnant nor her abortion was conducted.
49.Here, the judgment of the hon'ble High Court of Delhi reported as Shashi Chaudhary v. Ram Kumar and anr, 2011 (1) JCC 520 would be relevant wherein it has been observed that there is no explanation given by the prosecutrix for her not making hue and cry, when the alleged offence took place, nor is there any explanation for failure on her part to lodge the complaint with the police immediately or for that matter within a reasonable time of incident.
50.No explanation is coming forth from the prosecution regarding the delay. No reasonable or logical explanation is coming from the prosecution regarding the delay in lodging of the FIR on 01.05.2013 at 22:35 hours (Ex.PW2/A), giving her complaint Sessions Case Number : 129/13.
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(Ex.PW1/A) on 30.04.2013 vide DD No.47B dated 30.04.2013 (Ex.PW8/A) at 08:20 pm when the alleged incidents of rape occurred much earlier prior to 01.04.2013 for about one year. No explanation is coming forth from the prosecution regarding her waiting till 30.04.2013 for making the complaint.
51.The prosecutrix and the prosecution have not been able to justify the delay and why the prosecutrix did not report the matter immediately or earlier. No logical explanation has been furnished by the prosecution for the delay, as elaborated above.
52.These facts indicate that the possibility of the complaint being motivated or manipulated and the version of the prosecutrix being untrue cannot be completely ruled out. The possibility that the FIR was lodged after due deliberation and consultation cannot be ruled out. The discrepancies in the evidence and the documents regarding the delay in lodging of the FIR indicate that the prosecutrix and the prosecution are unable to justify the delay in lodging of the FIR which is fatal to the prosecution version.
53.Therefore, it can be said that the FIR was lodged after a delay which is fatal to the prosecution story. The delay has not been satisfactorily explained by the prosecutrix and the prosecution.
EVIDENCE AND OTHER STATEMENTS OF THE PROSECUTRIX Sessions Case Number : 129/13.
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54.It is very essential and important to discuss and analyse the different statements of the prosecutrix.
55.The prosecutrix, as PW1, has deposed that her aunt Ms. Beena whom she addressed as Tai resided at "A" address (address mentioned in file and withheld to protect the identity of the prosecutrix) She had given this address at the time of lodging of the FIR. She has four brothers and one sister. Her parents and paternal grandmother (dadi) were also living in jhuggi situated at "A"
address and her aunt (Tai-Ms. Beena) was living in one of the jhuggis at the same address. There were about 12-13 jhuggis situated at "A" address. I had been living with her paternal grand mother (dadi) and was working in "B" office (name of office and address mentioned in file and withheld to protect the identity of the prosecutrix) as an office help, doing the cleaning of the office, preparing tea, serving water etc. Her another aunt (tai) namely Ms. Rajkumari was also living in one of the jhuggis at "A" address where accused Kamal Chaurasia used to visit. Accused was living in the same locality at the distance of about 4-5 galis from their jhuggi. In the year 2011, the accused met her for the first time and whenever he met her, he told her that he wanted to do some setting with her as he liked her. He used to say 'tum mujhe achi lagti ho'. He told her that he wanted to have friendship with her. Initially, she refused for the same but the accused kept visiting the jhuggi of her aunt Ms. Rajkumari after consuming liquor and again asked her whether or not she was willing friendship with him. He said that if Sessions Case Number : 129/13.
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she refused for the friendship, he would continue to visit there in a drunkard condition and would keep on insisting her for the friendship. Finally, she agreed for the friendship with him. Accused gave her his mobile phone number asking her to give him call on that number. She started talking to him on phone. When her mother and brothers saw her while talking on phone with accused, they asked her as to with whom she was talking to. She did not tell them that she used to talk to accused because the accused had threatened her that if she tells her family members about the friendship of accused with her, he would leave her. Her mother got annoyed with her and she turned her out of the jhuggi where she was living. Thereafter, she started living with her aunt Ms. Beena in her jhuggi. After sometime, her mother and brothers started fighting with her aunt Ms. Beena as to why she had given shelter to her in her jhuggi. Her mother and brothers used to abuse her. She was very upset and she told the accused that she wanted to leave the jhuggi of her aunt Ms. Beena, on which accused asked her to take a room on rent somewhere else and he assured her that he would keep visiting her and would take care of her. In the year 2013, she took a room in Baljeet Nagar. The complete address of the place which was taken by her on rent is mentioned in her complaint lodged by me in Police Station Patel Nagar. Accused used to visit her in her rented accommodation at Baljeet Nagar. He assured her that he would marry her and would not leave her in future. Accused insisted her to have physical relations with him. Initially, she refused for the same and asked him to marry her first. Sessions Case Number : 129/13.
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He asked her why she did not trust him and assured her that he would not leave her. Finally, she agreed to have physical relations with him in the house at Baljeet Nagar. Accused had physical relations with her number of time in the house at Baljeet Nagar on assurance of the marriage. Accused used to accompany her till her office in the morning and he used to come to take her from the office in the evening and they used to walk to and fro from the office. At night, he used to go to his residence. She is receiving threats from the brother of the accused that he would throw acid on me since she has got the accused implicated in the present case. Out of fear, she has not lodged any police complaint regarding the threat. Her paternal aunt (tai) Ms. Rajkumari who was working in the house of some judge used to instigate the accused against her as she wanted both of them to separate. Accused used to repair the car of that judge. She did not know the name and address of the judge. Accused had gone to Police Station Ranjit Nagar along with Ms. Rajkumari to make a complaint against her. He told her that he was making a complaint against her as she was telling him repeatedly to marry her. Accused did not want to marry her so he had gone to make a complaint against her. Accused had met Ms. Rajkumari in a marriage and had developed friendship with her and used to remain in her house. She had phoned the accused and inquired where he was, on which he told her that he was in Police Station Ranjit Nagar with his bhabhi and he also told her to talk to her but she disconnected the phone. She narrated all the facts to Mr.Manoj, her employer, and he told her that she should not worry even if the Sessions Case Number : 129/13.
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accused was in Police Station Ranjit Nagar since she had not committed any wrong or murder and she should remain silent. Then, she spoke to one Ms. Seema Kohli, an aunty. She talked to the accused on phone but the prosecutrix not know what was the conversation. Thereafter, Ms.Seema Kohli took her to Police Station Patel Nagar as her room in Baljit Nagar is within the jurisdiction of Police Station Patel Nagar. She made her complaint against the accused by giving a statement (Ex.PW1/A) in Police Station Patel Nagar. A noting in her writing is on the rear side of Ex.PW1/A. Thereafter, IO, two police officials and she went to the house of the accused at Mandir Wali Gali, Ranjit Nagar in search of the accused. She did not know the exact address of the accused but she knew the location of his house. Accused was not available at his house but his brother whose name she did not know and his bhabhi were there. The bhabhi of the accused told them that accused had gone to the Railway station to leave his mother. The brother of the accused was brought to Police Station Patel Nagar. Some relative of the accused telephoned him and he came to the Police Station after about half an hour. SHO had interrogated the accused and inquired from him whether he wanted to marry her but the accused, who was drunk, at that time refused to marry her. Accused was arrested in her presence in Police Station vide arrest memo (Ex.PW1/C). His personal search was conducted vide personal search memo (Ex.PW1/D). Thereafter, she and the accused were taken by the police to a hospital where they were medically examined. She did not know the name of the hospital. Sessions Case Number : 129/13.
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She did not remember whether her blood and other samples as well as her clothes were taken by the doctor. Then, they were brought back to Police Station Patel Nagar. She had taken the IO and one police official to her landlords, one lady and a gentleman, whose names she did not know. Only the lady was there and she told the police as her husband was not at home, she would not say anything. Thereafter, they returned. Next morning, she was brought to Tis Hazari Courts by IO/SI Kiran Sethi and one lady police official. Accused was also brought to Tis Hazari Courts. Her statement (Ex.PW1/B) was recorded by the learned Metropolitan Magistrate. She has prayed that accused may be punished.
56.In her complaint (Ex.PW1/A), the prosecutrix has stated that the accused was living with her at "A" address. He was maintaining physical relations with her on regular basis on assurance that he shall marry her. He also used to abuse her while maintaining physical relations with her. She became pregnant and repeatedly asked him to marry her and he kept a condition that she should get an abortion. He took her to the clinic of Dr.P.S.Verma where her abortion was conducted on 01.04.2013. Accused has refused to marry her. Her Tai Ms.Beena brought her to the house of Seema Aunty. When the prosecutrix phone the accused from the phone of Seema Aunty, he told her that he was going to Police Station Patel Nagar to lodge a report against her. Then 2-3 calls were received on the phone of Seema Aunty and the caller disclosed himself as SHO Ranjit Nagar. Then the accused threatened her. She wanted action Sessions Case Number : 129/13.
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against the accused.
57.On the rear side of the complaint (Ex.PW1/A), the proseutrix has written that she had come to the Police Station to make a complaint. As she had a fast and had to do her prayers, she would come on the next day and tell what action should be taken on her complaint. Till then, no action should be taken on her complaint.
58.In her complaint (Ex.PW1/X), the prosecutrix has stated that she was living earlier in the house of her paternal grand mother (dadi) and about four years earlier, the accused was residing with his family 4-5 streets away from there. He offered her friendship which she had initially refused but agreed later and started talking to him.
When her family came to know about the same, her mother told her to make him meet them or she should live with him. Accused told her that if she told about their friendship to anyone, he would leave her so she did not tell her mother about him. He mother turned her out of the house and she started living with her Tai Ms.Beena. She used to talk to the accused and go out with him. Her family fought with Ms.Beena and then the accused offered to marry her saying that they have to wait till his brother's marriage. She left her Tai Ms.Beena's house and started living at "A" address. The accused used to visit to meet her and have physical relations with her several times, assuring marriage to her. On 29.01.2013, he took her to Haridwar where by the river side, he put vermillion in the parting of her hair. When she tells the accused to marry her socially Sessions Case Number : 129/13.
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and keep her with his family, he has refused. She became pregnant from the accused and he got her abortion conduced at the clinic of Dr.P.S.Verma. He has refused to marry her. He has raped her and ruined her life. She want legal action against him.
59.In her statement under section 164 of the Cr.P.C. (Ex.PW1/B) recorded on 02.05.2013, the prosecutrix has stated that she is in love with the accused for last two years and used to talk to him on phone. Her parents had turned her out of the house saying that she should live with the man, she talks to. For six months, she stayed with her Tai and her parents fought with her Tai. Accused offered marriage to her and she took a room on rent in Baljeet Nagar around 01.12.2012. Accused used to come there and have physical relations with her. He had taken her to Haridwar, Mathura, Vrindavan where he had physical relations with her. In February, 2013, she did not have her menstrual cycle for 1- 1½ months and then the accused took her to Dr.P.S.Verma who gave her a tablet and told her that she must inform when the date comes after 3-4 days. On 10.04.2013, the accused refused to marry her and started making false allegations against her. She has not given any specific date when the physical relations were last established.
60.Before coming to the factual matrix, briefly the law regarding physical relations on a false pretext of marriage is required to be elaborated briefly.
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61.In the case reported as Uday v. State of Karnataka, AIR 2003 SC 1639, the Hon'ble Supreme Court has held as under :-
"It therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid done by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."
62.In the case reported as Sujit Ranjan v State, 2011 LawSuit (Del) 601, the Hon'ble Delhi High Court has held that:
"Legal position which can be culled out from the judicial pronouncements referred above is that the consent given by the prosecutrix to have sexual intercourse with whom she is in love, on a promise that he would marry her on a later date, cannot be considered as given under "misconception of fact".
Whether consent given by the prosecutrix to sexual Sessions Case Number : 129/13.
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intercourse is voluntary or whether it is given under " misconception of fact " depends on the facts of each case. While considering the question of consent, the Court must consider the evidence before it and the surrounding circumstances before reaching a conclusion. Evidence adduced by the prosecution has to be weighed keeping in mind that the burden is on the prosecution to prove each and every ingredient of the offence Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception and that promise made was false to his knowledge. The failure to keep the promise on a future uncertain date may be on account of variety of reasons and could not always amount to "misconception of fact" right from the inception."
63.In the case reported as Deepak Gulati v State of Haryana, (2013) 7 SCC 675 : 2013 Law Suit (SC) 442 , the Hon'ble Supreme Court has held 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 rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had 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 any early stage a false promise of marriage by the accused ; and whether the consent Sessions Case Number : 129/13. Unique Case ID Number : 02401R0376222013 FIR No. 121/2013, Police Station Patel Nagar Under section 376 and 315 of the Indian Penal Code. State versus Kamal Chaurasia -:: Page 28 of 74 ::-
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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 malafide, 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 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."
64.Thus, in Uday's case (supra) and Deepak Gulati's case (supra), the Hon'ble Supreme Court laid down the 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 Sessions Case Number : 129/13.
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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 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.
65.In the case reported as Kuldeep Tyagi v The State NCT of Delhi, 2013(2) JCC 840, it was observed that it was never the case of the prosecutrix that she ever insisted the accused to marry her. Thus, it was not a case of refusal to marry, despite promise, hence, not relevant.
66.In the judgment reported as Nikhil Parashar v. State of Delhi, 2010 (1) JCC 615, it was observed as follows:
"If I take the view that sexual intercourse with a girl, in the facts and circumstances such as in the present case, does not amount to rape, it will result in unscrupulous and mischievous persons, taking undue advantage of innocent girls by promising marriage with them, without having any intention to do so, re-assuring the girl and her family by making the two families meet each other and formalize the matter by ceremonies, such as an engagement, persuading the girl to have sexual intercourse with him by making her believe that he was definitely going to marry her and then abandoning her, after robbing her of what is most dear to her. A case where Sessions Case Number : 129/13. Unique Case ID Number : 02401R0376222013 FIR No. 121/2013, Police Station Patel Nagar Under section 376 and 315 of the Indian Penal Code. State versus Kamal Chaurasia -:: Page 30 of 74 ::-
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the girl agrees to have sexual intercourse on account of her love and passion for the boy and not solely on account of the misrepresentation made to her by the boy or a case where a boy, on account of circumstances, which he could not have foreseen or which are beyond his control, does not marry her, despite having all good intentions to do so, has to be treated differently from a case, such as the present one, where the petitioner since the very inception had no intention of marrying the prosecutrix to whom he was a complete stranger before he met her to consider the proposal for marriage with her."
67.In the case reported as Karthi @ Karthick v State of Tamil Nadu, Crl. Appeal No. 601 of 2008 decided on 01/07/2013, AIR 2013 SC 2645, the facts were that the 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.
68.The Hon'ble Supreme Court after considering the case law laid Sessions Case Number : 129/13.
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down, 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 be legitimate defence to exculpate an accused.
69.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 is 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. Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception and that promise made was false to his knowledge. The failure to keep the promise on a future uncertain date may be on account of variety of reasons and could not always amount to Sessions Case Number : 129/13.
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"misconception of fact" right from the inception."
70.Turning to the present case, on carefully scrutiny of her different statements, it transpires that the prosecutrix has made several improvements, contradictions and inconsistencies in her evidence and her deposition is contrary to her earlier statements. Her cross examination shall be discussed later. Some of the improvements, contradictions and inconsistencies in the different statements of the prosecutix are regarding her going to the Police Station, at whose instance the complaint was made, the reason for making the complaint, role of her Tai Ms.Raj Kumari, role of her Tai Ms.Bina, role of her employer Mr.Manoj, role of Seema Aunty, her pregnancy, her abortion, tablet given to her, when the accused offered to marry her, when they were to get married, going to Haridwar, Mathura, Vrindavan, etc. The prosecutrix and the prosecution have not been able to furnish any explanation regarding the contradictions which are too major to be ignored and strike at the very root of the case due to which the prosecution case appears to be false.
71.The prosecutrix had inclination towards him and she did not listen to her parents or anyone else. It can be seen that due to her love for the accused, the prosecutrix wanted to marry the accused and her desperation is evident. Apparently, it is a case of one sided love of the prosecutrix which may not have been reciprocated.
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72.The prosecutrix was fully aware that she had taken of risk of having physical relations with the accused without his marring her. She was fully aware of the pros and cons of the act being mature (22 years).
73.The above mentioned overwhelming contradictions and glaring inconsistencies in the evidence of the prosecutrix and the other statements of the porsecutrix cannot be ignored. The veracity of the testimony of the prosecutrix stands shattered.
74.Prosecutrix a consenting party and enjoyed the company of the accused on her own. If a full grown girl consents to act of sexual intercourse on promise to marry and continues to indulge in such activity, it is act of promiscuity on her part and not an act induced by misconception of fact.
75.It appears that the prosecutrix despite knowing about all the pros and cons that the accused has not married her after the acquittal in the first case, she still had physical relations with him. She apparently took this step at her own risk and peril. It may be as she was in love with him and was desperate to marry him that such a major step was taken by her. This fact clearly indicates that the prosecutrix was a consenting party. It also transpires from the evidence of the prosecutrix that she was phoning him, having physical relations with him, and this indicates that she herself was interested in the physical relations with the accused. It appears that Sessions Case Number : 129/13.
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the prosecutrix was aware of the acts she was indulging in and she being a major surely knew about the morality and complications attached to the act and hence the accused cannot be held liable.
76.It can be seen from the above table that the prosecutrix has made several contradictions in her different statements and the prosecution has not been able to explain or justify them.
77.Here, it may be mentioned that it is important to understand what consent implies and what is consent on misconception of facts or misrepresentation.
78.An argument has been raised by the Additional Public Prosecutor that the accused on the pretext of love and promise to marry established a physical relationship with the prosecutrix which amounts to rape as this is obtaining the consent of the prosecutrix by fraud and incitement which neither voluntary nor free. Had the prosecutrix known that the accused would not marry her and he is already married, she would not established physical relations with him. There has to be unequivocal consent but the consent of the prosecutrix was taken by misrepresentation amounting to breach of trust.
79.On the other hand, it had argued by the counsel for the accused that the accused and the prosecutrix did not have any physical relations and assuming that the prosecutrix had physical relationship with the accused, it was with her free consent and will despite knowing Sessions Case Number : 129/13.
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that he will not marry her.
80.The crucial expression in section 375 of the IPC which defines rape as against her will. It seems to connote that the offending act was despite resistance and opposition of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained in Section 90 which reads as follows:
"Consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all."
81.Jowitts Dictionary on English Law, Words and Phrases, Permanent Edn. explains "consent" as follows:
"Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent is obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of mind."
82.In Words and Phrases, Permanent Edn., Vol.8-A, the following passages culled out from certain old decisions of the American Courts are found:
".....adult females understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent."
83.Here, it would be necessary to mention that in the case reported as Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC (Cri) 1448, it has been observed that:
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"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to an act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case unless the Court can be assured that from the very inception the accused never really intended to marry her."
84.Similar observations have also been made in the judgments reported as Pradeep Kumar Verma v. State of Bihar & anr., AIR 2007 SC 3059; Jyotsana Kora v. The State of West Bengal and anr., Manu/WB/0364/2010; Deelip Singh alias Dilip Kuamr v. State of Bihar, (2005) 1 SCC 88; Uday v. State of Karnataka, (2003) 4 SCC 46 and Naresh Kumar v. State (Govt. of NCT) Delhi, 2012 (7) LRC 156 (Del).
85.When a girl, a major, willfully has physical relations with the accused on the promise to marry on an uncertain date, it cannot be said that it is a misconception of fact or that her consent has been obtained by fraud. It is clear that the prosecutrix accepted whatever Sessions Case Number : 129/13.
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physical relationship was there with her free consent.
86.In the present case, it is clear that that the consent of the prosecutrix on the promise to marry cannot be said to be under a misconception of fact as she was a major at the time of the alleged incident and intelligent enough to understand the consequences of establishing physical relationship with the accused. Mere promise to marry on an uncertain date does not indicate that the accused has obtained her consent for the physical relationship by fraud or misrepresentation. Consent given by the prosecutrix to have physical relationship with whom she is in love, on a promise that he would marry her on a later date, cannot be considered as given under misconception of fact.
87.Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix 'against her consent'. How is 'consent' defined? Section 90 of the IPC defines consent known to be given under 'fear or misconception' which reads as under:-
"Consent known to be given under fear or misconception -
A consent is not such consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception."
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88.Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated. It cannot be said that the alleged consent said to have obtained by the accused was not voluntary consent and the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is not borne out from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix.
89.This kind of consent taken by the accused with clear intention not to fulfill the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent.
90.Section 114-A of the Indian Evidence Act, 1872 provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, alongwith the provisions of Section 90 of the Act 1872. Section 90 of the Act 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so Sessions Case Number : 129/13.
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far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.
91.The judgments reported as 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 SCC 615; and Pradeep Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059, observe that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act (s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the 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.
92.Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at Sessions Case Number : 129/13.
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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.
93.Turning back to the case in hand, it may be mentioned here that the prosecution has not produced any proof of the prosecutrix being administered any intoxicant at the time of the alleged first incident. Except for a bare assertion, there is nothing to substantiate this allegation.
94.In her cross examination, the prosecutrix as PW1, has deposed that "It is correct that I was in love with the accused for the last two years and I do not want to leave him. It is correct that I had made the first telephone call to the accused after he had given his mobile number to me asking to call me at that number." It is crystal clear that it was the prosecutrix who was in love with the accused and who had taken the initiative to talk to him. It was the Sessions Case Number : 129/13.
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prosecutrix who was interested in a relationship with the accused and for the same, she even defied her parents.
95.It is also clear that the complaint was made by the prosecutrix when the accused was making a complaint against her and her complaint was made at the instance of Seema Kohli @ Seema Aunty. PW1 has deposed in her cross examination that "It is correct that I had lodged a complaint against the accused after he had lodged a complaint against me." She has also deposed that "I know a lady named Ms. Seema Kohli who resides in West Patel Nagar. My boss namely Mr. Manoj knew Ms. Seema Kohli and had told her about my relationship with accused and that he was not talking to me, then she had come to office where I had met her. Ms. Seema Kohli had telephoned the accused inquiring from him as to why he was not talking to me. He told her that he would make her talk to SHO of PS Ranjeet Nagar. He also made someone call on the mobile phone of Ms. Seema Kohli, then she brought me to PS Patel Nagar where I made complaint against the accused which is already exhibited as Ex. PW1/A and then my statement was recorded which is now exhibited as Ex.PW1/X which bears my signatures at point A. Ms. Seema Kohli had gone with me to the PS on two different days..."
96.The prosecutrix has alleged that she became pregnant from the accused and he got her abortion conducted from Dr.P.S.Verma at her clinic. She has deposed in her cross examination that "It is Sessions Case Number : 129/13.
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wrong to suggest that I had told doctor (Mrs.) P.S Verma that I am married for one year and three months. Vol. I had not so told her but the accused had told her that I am married for one year and three months. I did not tell the police and the Ld. MM that the accused had told the doctor (Mrs.) P.S Verma that I am married for one year and three months .Vol. No one had asked me about the same.......... When I had visited Dr. Ms. P.S Verma, I had told her that I had told her that I did not have menstrual cycle about a month and she had given me a pregnancy kit. After I had done the test, the doctor had taken the kit to another room. The kit was not returned to him. I am not aware the result of the pregnancy test. I cannot say whether or not the pregnancy test was negative as I was not told the result of the pregnancy test. I had told the police in my statement that I was taken to doctor Ms. P.S Verma but I do not remember whether or not I had told the police that I was given a pregnancy kit and after the test I was not told the result. I had also not told the police regarding the conversation between me and the doctor. Neither myself nor Ms. Seema Aunty had told the police that the pregnancy was aborted in the womb (pet mein baccha mar gaya tha)(Confronted with statement under section 161 Cr.PC dated 02.05.2013 Ex.PW1/DA where it is so recorded)." Here again reference can be made to the evidence of Dr.P.S.Verma PW3 and the documents proved by her Ex.PW3/A to Ex.PW3/C) that the prosecutrix was not pregnant nor her abortion was conducted.
Sessions Case Number : 129/13.
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97.The role of Mr.Wasim in the life of the prosecutrix is also revealed in her cross examination. She has deposed that "Accused had visited me inside my premises for the first time in the rented accommodation at Baljeet Nagar. Mr. Wasim and accused did not know each other. Mr. Wasim has never visited me inside my room in Baljeet Nagar although he used to leave me outside the same to and fro from the office." However, PW6 Ms.Kusum, landlady of the prosecutrix has deposed that "Prosecutrix along with Wasim used to reside in one room located at second floor........Two-three boys used to come to meet the prosecutrix. The prosecutrix had stated to me that she was engaged to Mr.Wasim and was getting married to him very soon." PW7, Ms.Gunjan, another tenant in the same house as the prosecutrix, has deposed that "She (prosecutrix) had told me that accused Kamal is her brother. Mr. Wasim had got the tenanted room arranged for the prosecutrix and he used to visit her daily. Both Mr. Wasim and prosecutrix had told me that they were engaged and going to be married in near future." It is clear from the evidence of PWs 6 and 7 that the prosecutrix is not telling the truth about her relationship with Mr.Wasim and has leveled false allegations against the accused.
98.The prosecutrix has deposed that after she was turned out by her mother from her parental home, she lived with her paternal aunt and her parents had fought with the aunt and then she had taken a tenanted room to stay. However, PW11 Ms.Veena, the paternal aunt Sessions Case Number : 129/13.
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(tai) of the prosecutrix, has deposed that "the prosecutrix was thrown out from her house by her mother, therefore, she lived in my jhuggi for about 6-7months. After sometime, she left my jhuggi and told me that she had taken a room on rent in Ranjit Nagar and she had started earning when she was working in Patel Nagar. I do not know whether she had a friend by the name Kamal or there was any quarrel between the prosecutrix and her mother because of Kamal." She was hostile and nothing material has come forth in her cross examination on behalf of prosecution.
Her paternal aunt has neither deposed about the alleged fight between her and the parents of the prosecutrix nor she knew anything about the accused.
99.Where the evidence of the prosecutrix is found suffering from serious infirmities, contradictions and inconsistencies with other material and there being no forensic or medical evidence, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not Sessions Case Number : 129/13.
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disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
100. If one integral part of the story put forth by a witness-
prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
101. The fact that the prosecutix did not make any complaint immediately after the alleged incident of February, 2009 and thereafter. The same also points towards the prosecution case not being true.
102. The Hon'ble Supreme Court had observed in the case of Deelip Singh Alias Dilip Kumar vs. State of Bihar , AIR 2005 SC 203 that where sexual intercourse took place between parties on promise of marriage by accused and the statement of the prosecutrix revealing that she was fully aware of moral quality of act and inherent risk involved, she had considered pros and cons of act and the prospect of marriage proposal not materializing had also entered her mind. The participation of prosecutrix in sexual act Sessions Case Number : 129/13.
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could be said to be voluntary and deliberate.
These statements do indicate that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act. The prospect of the marriage proposal not materializing had also entered her mind. Thus her own evidence reveals that she took a conscious decision after active application of mind to the things that were happening.
Incidentally, we may point out that the awareness of the prosecutrix that the marriage may not take place at all in view of the caste barrier was an important factor that weighed with the learned Judges in Uday's case in holding that her participation in the sexual act was voluntary and deliberate."
103. It is clear from the record that the prosecutrix is 22 years old and working in an office (as mentioned in her particulars during evidence). She is a mature woman. The prosecutrix was fully aware that she had taken of risk of having physical relations with the accused without his marrying her. She was fully aware of the pros and cons of the act being working and mature.
104. The above mentioned overwhelming contradictions and glaring inconsistencies in the evidence of the prosecutrix and the other statements of the porsecutrix cannot be ignored. The veracity of the testimony of the prosecutrix stands shattered. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
Sessions Case Number : 129/13.
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105. Prosecutrix a consenting party and enjoyed the company of the accused on her own for a long perod years w.e.f. October, 2012 to 10.04.2013. If a full grown girl consents to act of sexual intercourse on promise to marry and continues to indulge in such activity, it is act of promiscuity on her part and not an act induced by misconception of fact.
106. It appears that the prosecutrix despite knowing about all the pros and cons that the accused has not married her, she still had physical relations with him. She apparently took this step at her own risk and peril. It may be as she was in love with him and was desperate to marry him that such a major step was taken by her.
107. Despite knowing everything, the prosecutrix still preferred to be with the accused and did not raise any objection or resistance.
This fact clearly indicates that the prosecutrix was a consenting party. It also transpires from the evidence of the prosecutrix that she went to Shimla with him and this indicates that she herself was interested in the physical relations with the accused. It appears that the prosecutrix was aware of the acts she was indulging in and she being a major surely knew about the morality and complications attached to the act and hence the accused cannot be held liable.
108. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the Sessions Case Number : 129/13.
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prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version.
109. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime.
110. It is a case of heinous crime of rape, which carries grave Sessions Case Number : 129/13.
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implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused and not merely dwell upon the shortcoming of defence.
111. Consequently, no inference can be drawn that the accused is guilty of the charged offence under section 376 and section 420 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was forced into having physical relations by the accused on a false promise of marriage.
112. It appears that the prosecutrix had willfully remained with the accused and had physical relationship, if any, with him being a consenting party and that the accused does not appear to have committed any offence.
113. The prosecutrix is an adult. She is sufficiently intelligent to understand the significance and moral quality of the act she was consenting to, having friendship with the accused and having no grievance about her conduct and behaviour at any time and having established physical relationship number of times with her consent and without any resistance. She never informed her family about her relationship with the accused or his offer to marry her. Her Sessions Case Number : 129/13.
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versions are inconsistent and contradictory. All the surrounding circumstances reveal that the prosecutrix established physical relationship with the accused with her free consent and in such a situation, there is nothing on the judicial record to show that the accused has ever committed any offence, as alleged.
114. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped by the accused on a false promise of marriage as her consent is not free.
115. The hon'ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment reported as Bharwada Boginbhai Hijri Bhai v. State of Gujarat, 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
a. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
b. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
c. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. d. By and large people cannot accurately recall a Sessions Case Number : 129/13.
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conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
e. In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
f. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron. g. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
116. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming Sessions Case Number : 129/13.
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contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is she has leveled false allegations of rape against the accused.
117. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
118. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
119. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
120. Consequently, no inference can be drawn that the accused is Sessions Case Number : 129/13.
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guilty of the charged offences as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was forced by the accused.
121. This brings me to the final question as to whether it was she was raped by the accused, raped on a false promise of marriage and made to undergo a semblance of ceremony of marriage. In this regard it is no doubt true that in her statement before this Court she has stated that she had physical relations with the accused on a false pretext of marriage but there are several contradictions in her statements which remain unexplained and indicate that no such offence was ever committed by the accused. She has willfully gone with the accused to Haridwar, Mathura and Vrindvan, as alleged by her, which also reflects her conduct and desperation to be with the accused at all costs.
122. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
123. In the judgment reported as Suraj Mal v. The State (Delhi Sessions Case Number : 129/13.
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Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
124. In such a situation, the assertions made by the prosecutrix that the accused had physical relations with the prosecutrix forcibly, the prosecutrix had physical relations with the accused, on the assurance that he shall marry her, or undergoing a semblance of ceremony of marriage are per se false and as such, unacceptable and unbelievable. It is apparently clear that the prosecutrix had herself got involved physically with the accused. It can be seen from the evidence of the prosecutrix that the allegations leveled by her of rape by the accused are false and unbelievable. It seems that she has not been raped at any point of time but she was a consenting party to the physical relationship with the accused.
125. It is also saddening to note that when the prosecutrix, an unmarried almost illiterate woman (fifth class pass), gets involved with a man, in order to save her respect in society or in her desperation to marry the accused as she may have one sided love for him, she is projecting herself to be a victim and the accused to be a culprit and guilty of raping her on a false promise of marriage when she herself is fully aware that the accused has not committed any offence. A case where the girl agrees to have sexual intercourse Sessions Case Number : 129/13.
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on account of her love and passion for the boy and not solely on account of the misrepresentation made to her by the boy or a case where a boy, on account of circumstances, which he could not have foreseen or which are beyond his control, does not marry her, despite having all good intentions to do so, has to be treated as innocent.
126. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happen to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable.
127. All the above facts and the ratio of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offences of rape on promise to marry the prosecutrix by accused Mr.Kamal Chaurasiya and the accused merits to be acquitted for the offence under section 376 and section 420 of the IPC.
EVIDENCE OF PWS 6, 7 AND 11.
128. It is clear from the evidence of PWs 6, 7 and 11 that the prosecutrix has levelled false allegations of rape against the accused.
129. PW 6 is the owner and landlady of the premises taken on rent by prosecutrix. She has categorically deposed that the prosecutrix along with Mr.Wasim used to reside in one of the rooms located at second floor. The prosecutrix had also told her that she was Sessions Case Number : 129/13.
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engaged to Mr.Wasim and was getting married to him very soon. One day accused had come to the room of prosecutrix at around 06.00 pm for five minutes and on her enquiry the prosecutrix had told her that the accused is her cousin(mausi ka ladka).
130. PW 7 who is the neighbour of the prosecutrix at the tenanted premises has deposed that the prosecutrix had told her that the accused is her brother. Mr.Wasim had got the tenanted room arranged for the prosecutrix and he used to visit her daily. Both Mr. Wasim and the prosecutrix had told her that they were engaged and were going to be married in near future.
131. PW11 is the paternal aunt (Tai) of the prosecutrix with whom she had stayed after she was turned out by his parents. She was hostile and has not deposed anything incriminating against the accused.
132. It is clear that the allegations levelled by the prosecutrix that her parents had quarreled with PW11 due to which she had to leave the house of PW11 and take a rented accommodation at Baljeet Nagar are false. It is also clear from the evidence of PW6 and 7 that the prosecutrix was involved with Mr.Wasim with whom she was engaged and getting married in near future and she was not involved in any manner with the accused.
133. The evidence of PWs 6, 7 and 11 indicates that the accused is Sessions Case Number : 129/13.
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innocent and has been falsely implicated in the present case by the prosecutrix.
MENS REA / MOTIVE
134. Regarding the motive of crime, it may be observed that in a case based on evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
135. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which Sessions Case Number : 129/13.
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the alleged motive.
136. In the present case, a story has been projected that the accused has raped the prosecutrix w.e.f October, 2012 till 10.04.2013 on a false promise of marriage. This version appears to be untrue as there is no reason why he would do so. No reason is shown as to why the accused would jeopardize his future. It is clear from the record that the prosecutrix was already involved with Mr.Wasim and he was living with her. She had also told her landlady and neighbor (PWs 6 and 7 respectively) that they are engaged and would be getting married very soon. In such a situation, when the prosecutrix is already involved, there can be no reason why a man would want to marry her.
137. There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecution. He is a mature man aged about 29 years (as per his MLC-Ex.PX-1) and capable of understanding the implications of his acts. He has completely denied having physical relations with the prosecutrix at any point of time.
138. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against Sessions Case Number : 129/13.
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the accused, to wish to implicate him falsely. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
139. There does not appear to be any criminal intention and mens rea on the part of the accused.
DEFENCE OF THE ACCUSED
140. In his statement under section 313 of the Cr.P.C., the accused has stated that he is innocent and has been falsely implicated in this case. He has denied all the evidence of the prosecution. The prosecutrix had started giving him threats to implicate him in a false criminal case and was trying to extort Rs. 50,000/- from him. As he refused to give her the money and went to Police Station Ranjit Nagar to lodge the complaint against her on 29.04.2013, the prosecutrix called him on his phone and he told her that he had already made the complaint against her on which she threatened him dire consequences. Thereafter, she has implicated him in the present case. As a matter of fact, prosecutrix had met him once in Ms. Rajkumari's house. She was asking for Rs. 500/- from Ms. Rajkumari to which Ms. Rajkumari replied "I do not have" and she asked him to give her the money, if he had. He lent her Rs.500/- for treatment of her sickness. One more time Rs. 500/- were given to Sessions Case Number : 129/13.
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the prosecutrix on the request of Ms. Rajkumari in the similar circumstances. She had taken his mobile number. Once, she had disclosed that she was engaged with one Mr. Vasim with whom she was residing. She had asked him "Bhaiya, I want to introduce you with Mr. Vasim". So only once or twice, he had been to her residence to see Mr. Vasim but Mr. Vasim was not found there so he stayed there for not more than 5 minutes. He has prayed that he may be acquitted as he has been implicated in a false case. Accused has preferred not to examine any witness in his defence.
141. Although the accused has not examined any witness but he has produced a copy of his complaint received in Police Station Ranjit Nagar on 29.04.2013 at 01:45 pm (Ex.D-1) with the original receiving endorsement which indicates that his defence that the prosecutrix has lodged the present case on 30.04.2013 as counterblast to his complaint is correct.
142. The defence of the accused has also been put to the prosecutrix that she was involved with Mr.Wasim which has been denied by her in her cross examination.
143. It is clear from the evidence of PWs 6 and 7 that the accused was not living in the house of the prosecutrix, as alleged by her. He had come to the residence of the prosecutrix on one day for five minutes and the prosecutrix had told her that the accused is her cousin (as per PW6) and the prosecutrix had told PW7 that the Sessions Case Number : 129/13.
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accused is her brother. Both PWs 6 and 7 have deposed that the prosecutrix was involved with Mr.Wasim and they had told them that they were getting married. Ir is clear that there was no reason for the accused to be involved with the prosecutrix when she was involved elsewhere. Also, there is no medical and forensic evidence against the accused.
144. It is also clear while discussing the different statements of the prosecutrix, that her version is neither reliable nor believable.
145. Therefore, the defence of the accused although is not proved properly but considering the unreliable evidence of the prosecutrix which suffers from overwhelming contradictions and glaring inconsistencies, the prosecution version is not believable and reliable.
146. The case of the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused.
147. Therefore, as the prosecution version is unreliable and unbelievable that the accused had raped the prosecutrix on a false pretext of marriage, the defence of the accused appears to be plausible that he has not committed any offence.
Sessions Case Number : 129/13.
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PUBLIC WITNESSES NEITHER CITED NOR EXAMINED
148. The prosecution has failed to examine some very material witnesses and this lapse gives a severe blow to the prosecution case.
149. The Investigation Officer has failed to associate in the investigation Ms.Raj Rani (paternal aunt-Tai of the prosecutrix), Ms.Seema Kohli (who had gone with the prosecutrix to the Police Station and written the complaint-Ex.PW1/A), Mr.Manoj (employer of the prosecutrix to whom she had told everything regarding the accused), Mr.Wasim (with whom the prosecutrix is involved and was getting married) who were very material for this case. These very material witnesses have neither been cited as witnesses nor produced nor examined by the prosecution. Their evidence could have facilitated the Court in adjudicating the matter.
150. By not citing, producing and examining the above named persons, the prosecution has left out some very material evidence which may have been of some help to the prosecution in this case against the accused.
INVESTIGATION
151. The investigation conducted in the present case has been deposed by police witnesses (PWs 9, 10, 12 and 13). The FIR has been proved by PW2. The DD entry No. 47 B has been proved by PW8. PW3 Dr.P.S.Verma has proved the medical relcord of the Sessions Case Number : 129/13.
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prosecutrix that she was not pregnant nor her abortion was done by her. The MLCs of the prosecutrix has been proved by the doctor (PW4). The MLC of the accused (Ex.PX-1) is admitted by him.
PW6 is the landlady of the prosecutrix and PW7 is her neighbour. PW11 is the paternal aunt (Tai) of the prosecutrix with whom the prosecutrix stayed when she was turned out of her house by her parents. The statement under section 164 of the Cr.P.C. of the prosecutrix has been proved by the prosecutrix (PW1) as well as PW5. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
152. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. There is nothing on the record to show that their testimonies are false or not reliable.
153. However, it must be mentioned here again that the Investigation Officer has failed to associate Ms.Raj Rani (paternal aunt-Tai of the prosecutrix), Ms.Seema Kohli (who had gone with the prosecutrix to the Police Station and written the complaint- Ex.PW1/A), Mr.Manoj (employer of the prosecutrix to whom she had told everything regarding the accused), Mr.Wasim (with whom the prosecutrix is involved and was getting married) who were very material for this case.
Sessions Case Number : 129/13.
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154. Also, it is clear from the evidence of the prosecutrix that the accused had come to the Police Station Patel Nagar and he was arrested in the Police Station. However, as per the evidence of PWs 9, 10 and 13, when they were returning from the house of the accused where he was not found and were on the way at Patel nagar, Shadipur Depot near Metro Station, the prosecutrix shouted that the man coming from in front towards them is accused, and then the accused was arrested does not appear to be correct. Apparently all the documents of arrest have been prepared at the Police Station and not at the place of alleged arrest. Similarly, it is also clear from the evidence of the prosecutrix that the prosecutrix and the accused were taken together to the hospital and were also brought back together which is against the law.
155. No investigation has been conducted in the present case regarding the complaint made by the accused which was received in Police Station Ranjit Nagar on 29.04.2013 at 01:45 pm (Ex.D-1) as his claim was that the prosecutrix has lodged the present case on 30.04.2013 as counterblast to his complaint.
156. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix and other material witnesses, then the investigation becomes less important as prosecutrix has not only deposed regarding the manner of commission of the crime but has also elaborated all the details and has assigned a clear and specific role to the accused. Sessions Case Number : 129/13.
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157. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
158. Therefore, the investigation is not being taken into consideration although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable and believable.
FINAL CONCLUSION
159. The prosecution has failed to furnish any explanation in respect of the numerous contradictions and inconsistencies in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is that there appears to be an element of Sessions Case Number : 129/13.
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consent of the prosecutrix in having physical relations with the accused as she has subsequently deposed that she had physical relations with the accused with her consent and she was in love with him. It is also clear from the evidence of the prosecutrix that she had accepted the proposal of the accused. It appears that the present rape case was lodged by the prosecutrix as she was in love with the accused and wanted to pressurize him to marry her. She was also aware that he is getting married elsewhere to another girl of his parents' choice.
160. It may be observed here that consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind of a person to permit the doing of an act complained off. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent.
161. Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception and that promise made was false to his knowledge. The failure to keep the promise on a future uncertain date may be on account of variety of reasons and could not always amount to "misconception of fact" right from the Sessions Case Number : 129/13.
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inception."
162. The prosecutrix is an adult who is responsible for her actions.
She is sufficiently intelligent to understand the significance and moral quality of the act she was consenting to, having physical relations with the accused knowing that he will not marry her. Her versions are inconsistent and contradictory. All the surrounding circumstances reveal that the prosecutrix established physical relationship with the accused with her free consent and in such a situation, there is nothing on the judicial record to show that the accused has ever committed any offence, as alleged.
163. Since the evidence of the prosecutrix, PW1, is neither reliable nor believable as there are overwhelming contradictions in her different statements as well as in totality with the other evidence on record, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.
164. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
i. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
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ii. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; iii. The circumstances should be of conclusive nature and tendency;
iv. They should exclude every possible hypothesis except the one to be proved; and v. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
165. Applying the above principles of law to the facts of present case, it stands established that the accused had not raped the prosecutrix on a false promise of marriage. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.
166. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the testimony of the prosecution witnesses is unreliable and unworthy of credence.
167. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution is found to be Sessions Case Number : 129/13.
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improbable, prosecution case becomes liable to be rejected.
168. If the prosecution evidence is read and considered in totality of circumstances along with other material on record, in which offence is alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. Prosecution has not disclosed true genesis of crime.
169. It is a case of heinous crime of rape which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused. The prosecution story does not inspire confidence and is not worthy of credence. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place. Here in the present case, is a prosecutrix who is not truthful. She has given different statements and made numerous contradictions and inconsistencies which remain unexplained.
170. Once again, it may be mentioned there is nothing on the record to show that the accused is potent or virile or is medically capable of performing physical relations or committing the offence of rape Sessions Case Number : 129/13.
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and for this reason alone, the accused can be acquitted of the charges.
171. The prosecution has miserably failed to prove that from October, 2012 to 10.04.2013, the accused had raped her on the false pretext of marriage with her.
172. All the above facts indicate that there is no veracity in the prosecution case in respect of the offences of rape on promise to marry the prosecutrix by accused Mr.Kamal Chaurasiya and the accused merits to be acquitted for the offence under section 376 and section 420 of the IPC.
173. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Kamal Chaurasiya.
174. Accordingly, Mr.Kamal Chaurasiya, the accused, is hereby acquitted of the charges for the offences of rape on promise to marry the prosecutrix under section 376 and section 420 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
175. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
Sessions Case Number : 129/13.
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176. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
177. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is neither reliable nor believable, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
178. Here, I would also like to mention, once again as already observed in several other similar cases, that in recent times a new expression is being used for a rape victim i.e. a rape survivor. The prosecutrix, a woman or a girl who is alive, who has levelled allegations of rape by a man is now called a rape survivor. In the present case, the accused has been acquitted of the charge of rape, after trial, as evidence of the prosecutrix is not reliable. In the circumstances, such a person, an acquitted accused, who has remained in custody for a considerable period during inquiry, investigation and trial and who has been acquitted honourably, should he now be addressed as a rape case survivor? This leaves us with much to ponder about the present day situation of the Sessions Case Number : 129/13.
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veracity of the rape cases.
179. It cannot be ignored that the accused due to this case which has ultimately ended in his acquittal, has suffered humiliation, distress and misery besides the expenses of the litigation. His plight may also continue after his acquittal as his implication may have caused an uproar in society but his acquittal may not even be noticed. He would continue to suffer the stigma of being a rape case accused. He has remained in custody for a considerable period.
180. It may not be possible to restore the dignity and honour of the accused nor compensate him for the humiliation, misery, distress and monetary loss. However, his acquittal may give him some solace. He may also file any case for damages against the prosecutrix, if advised. No one discusses about the dignity and honour of a man as all are only fighting for the rights, honour and dignity of women. Laws for protection of women are being made which may be misused by a woman but where is the law to protect a man from such a woman where he is being persecuted and implicated in false cases, as in the present case. Perhaps, now it is the time to take a stand for a man.
181. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
182. After the expiry of the period of limitation for appeal and Sessions Case Number : 129/13.
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completion of all the formalities, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 29th day of January, 2016. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
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