Delhi District Court
State vs Pankaj Kumar Jha on 7 May, 2018
IN THE COURT OF MS. RENU BHATNAGAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK
COURT: SOUTH EAST DISTRICT: SAKET COURTS:
NEW DELHI.
SC No. : 1864/16
FIR No. : 13/16
PS : Okhla
U/s : 366/376/506 IPC
State Versus Pankaj Kumar Jha
S/o Sh. Ashok Kumar,
R/o B5, Harkesh Nagar, OIA
II, New Delhi.
Date of Institution : 29.02.2016.
Judgment reserved for orders on : 03.05.2018.
Date of pronouncement : 07.05.2018.
J U D G M E N T
Brief facts of case:
1.On 07.01.2016, the prosecutrix (name withheld to keep her identity confidential) came to the Police Station Okhla Industrial Area, New Delhi and given her complaint that she was living with her family consisting of her parents and five siblings and pursuing her graduation. She stated that her elder sister got married on 17.04.2012 with accused Pankaj Kumar, who was residing in Bihar. She further alleged that after the 23 months of her sister with the accused, the accused Pankaj Kumar started compelling her sister to persuade her sister i.e the prosecutrix for making physical relations with him, to which her sister refused. On SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 1 of 33 refusal of her sister, the accused used to beat her sister. Their relations became worse and her sister is now living with her since last two years. Prosecutrix further stated that after about one month of marriage of her elder sister, her jija i.e. the accused started blackmailing her to upload her obscene photographs and video on Internet and used to say her to make physical relations with her and used to tease her on the way to her college. On 17.12.2015 accused came near her house and asked her to come with him and take back the cases lodged against him by her. On 27.12.2015 she was going to her college. Accused met her on the way and told her to accompany him to his house otherwise he will show the photograph to everybody and upload the same on the Internet. She, out of fear, went with him. He took her to his rented room and nobody was in the room. He asked her to make physical relations with him otherwise he will kill her father and brother and on threatening he made physical relations with her. She, out of fear, did not tell the incident to anyone and that on 06.01.2016 she told the entire incident to Judge Madam. On 06.01.2016 her statement under Section 164 Cr.P.C was got recorded wherein she told that on 27.12.2015 accused Pankaj Kumar had committed rape with her and took photo. He also had taken video of her and her sister brought the same from his house. On 08.01.2016 accused was arrested and his medical examination was got conducted. On 10.01.2016 sister of prosecutrix namely Shalu produced mobile which was taken into possession by the police and sent to FSL Rohini for examination and thereafter completing the investigation case was registered under Section 376/506 IPC in the court.
SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 2 of 33 Charge:
2. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 03.05.2016 prima facie case was made out against the accused Pankaj Kumar Jha for the offence under Section 366/376/506 IPC. The charge was framed. The accused pleaded not guilty and claimed trial. Prosecution Evidence:
3. To substantiate its allegations against the accused, prosecution examined following witnesses: M aterial witnesses:
4. PW1 / prosecutrix testified on oath that on 17.04.2012, her elder sister Shalu was married to accused Pankaj Kumar Jha. After her marriage, her sister was taken to her matrimonial house at village Anupama situated in Bihar. After 23 months of marriage of her sister, accused started saying to her sister to ask her younger sister to make physical relation with him. Her sister refused for the same. Accused started beating her sister for the same and also forced her to leave the matrimonial house. After one year of marriage of her sister with the accused, turned her sister out from her matrimonial house when she refused to accept his illegal proposal for making physical relation with her i.e the prosecutrix. Her father brought her sister back from her matrimonial home and left her sister in the house of her grandmother in the village Budh Nagara, District Seetamadhi in Bihar. After few months, her sister returned to their house in Delhi. Accused also came to Delhi and started living in a rented premises at Harkesh Nagar. She SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 3 of 33 could not tell date, month or year when accused shifted in Delhi from Bihar. Accused started visiting their rented premises and started quarreling with her sister. He used to ask her sister that he is ready to accept her if he will be allowed to make physical relations with her younger sister i.e the prosecutrix. Her sister refused for the same. Whenever, she used to go outside the house, accused used to follow her. He used to tear her clothes and also used to hold her hand. She had narrated the whole facts in her complaint made to the police. Accused also used to follow her whenever she used to go to her college. The accused had clicked several photographs from his mobile with her when she was in her village and her sister had been living with the accused. She came to know of it later when he started blackmailing her by showing those photographs. She could not understand the intention of the accused initially why he used to click her photographs due to relation of sisterinlaw with the accused. The accused made video from his mobile phone when she was taking bath in the village at the house of her grandmother. This fact she came to know after one year of marriage of her sister when he showed her the said photographs. He started blackmailing her for making physical relation with him. Accused threatened to upload the said photographs and video on the net. Accused continued the aforesaid acts for about three years. On 27.12.2015, when the prosecutrix was returning to her house from her college situated at Nehru Place, accused met her at round about at Nehru Place. It was around 11.30 PM. Accused started showing her obscene photographs qua her taking bath, sleeping or changing her clothes which he had taken SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 4 of 33 from his two mobile phones make OPPO and Samsung. Accused told her to accompany him to his flat and make physical relation with him otherwise, he would upload her photographs on the Internet. She refused for the same and asked the accused to upload these photographs on the Internet, if he wishes to do so. Accused morphed her photographs with some boy who was not known to her. Accused sent her morphed photograph with him to Chandan, who is in their relation. Chandan showed her the said photograph and made inquiry from her in this regard. The said photograph was also seen by her family including her father and her sister. She identified the morphed photograph being of her with the accused and not of her. The accused used to threaten to kill her brother and father if she did not agree for his proposal of making physical relation with him. On 27.12.2015, accused took her in his flat at Harkesh Nagar from round about of Nehru Place after blackmailing her. He forcibly made physical relation with her without her consent after threatening her. He also threatened her not to disclose about this incident to anybody otherwise, he will kill her and her family. Accused was saying to her that he will drag her in prostitution and live on this earning otherwise he will upload her obscene photographs on the Internet. Thereafter, she returned to my house. She did not tell the incident to any of my family members due to terror of accused as he threatened her to upload her obscene photographs on the Internet. On 05.01.2016, she narrated the incident of harassment as well as physical relations made by the accused with her to her sister Shalu. She did not tell this fact to anyone else. She requested her sister to bring the mobile phone of SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 5 of 33 accused make OPPO from which accused had shown her obscene photographs to her. Her sister went to rented premises of accused at Harkesh Nagar as accused had called her sister as his father had visited his house from village and also wanted to talk her sister. Her sister talked with her fatherinlaw when the accused was not present at his rented premises. His mobile phone make OPPO was lying in the flat. Her sister brought the said mobile phone with her. Accused came to their house on the same day and asked her sister to hand over his mobile phone but her sister refused to return his mobile phone. Accused informed her sister that he has saved her photographs as well as video on other mobiles. She lodged four cases against the accused for the aforesaid incident committed by him upon her from time to time. Her sister made a call to police and informed the police officials that there are some obscene photographs in the mobile phone of accused which is in her possession. The police official informed her sister to bring the said mobile phone to the police station. On 06.01.2016, she alongwith her sister went to police station and she made statement to the police regarding the aforesaid facts vide Ex.PW1/A. Her sister also handed over the mobile phone to the police containing her obscene photographs. Police took her to AIIMS hospital for her medical examination. She had also signed the consent form for her medical examination vide Ex.PW1/B. She had also narrated the whole incident happened with her on 27.12.2015 to the doctor, who medically examined her as well as to the Ld. MM. Police also produced her before the Magistrate where her statement u/s 164 Cr.P.C. was recorded vide Ex.PW1/C. PW1 was crossexamined by Ld. SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 6 of 33 Addl. PP on some on certain facts wherein she stated that her elder sister Shalu was living at their house for last two years from the date of lodging of present case by her. She admitted that she made first complaint against the accused at PS Okhla when he used to follow her while going to market as well as to her college and also used to ask her to make physical relations with him. She also admitted that accused used to force her to withdraw her earlier case lodged by her against the accused at PS Okhla. She has admitted that when accused took her to his rented house at Harkesh Nagar, there was no one in the said room except the accused. On 17.12.2015, she was present at her home at Harkesh Nagar. Accused came to her house and asked her to go with him for walk. She refused to go with him. Accused asked her to withdraw all the three cases registered against the accused. She refused to withdraw the cases. She informed her landlord and he came to her room and police was called. They went to police station and lodged a complaint against the accused Pankaj. She showed the police the place where she was raped by the accused and police prepared the site plan. On 05.01.2016, she told her sister Shalu that accused had clicked some photos / videos of her by his mobile phone. She requested her sister Shalu to bring the mobile phone of the accused at any cost as it had her obscene photographs and video. On the same day i.e. 05.01.2016, accused made a telephonic call to her sister Shalu who was residing with them at their house and accused requested her sister to come at her matrimonial home. Her sister Shalu went to her matrimonial home and she returned to the parental home on the same day with mobile of accused Pankaj. As her SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 7 of 33 sister brought the mobile phone of the accused, so accused came to their house and demanded his mobile phone back. He further told her sister that he has saved her videos at different places in addition to the said mobile and he asked to return the mobile. They informed the IO regarding the mobile phone and her videos in the said mobile. IO asked her to hand over the said mobile to him (IO) on the next day. On 06.01.2016, she alongwith her sister Shalu went to police station and handed over the said mobile phone to IO of this case. IO seized the said mobile phone vide seizure memo Ex.PW1/D. Accused threatened to kill her. He also threatened to throw acid on her. Father, brother, and relatives of the accused Pankaj also threatened to her and her sister Shalu to withdraw the case otherwise they would kill them. The prosecutrix has identified the mobile phone of the accused in which her obscene videos and photographs were saved by the accused. The mobile has been sent to FSL for examination and the same has not been received from FSL. Accused had shown her nude video while she was taking bath on his mobile phone and threatened that he would upload the said video on the net. She had lodged a complaint against accused Pankaj on 29.09.2013. On that day, accused had molested her and she lodged a complaint to the police. On 26.04.2014, accused Pankaj has misbehaved and molested her and she lodged complaint to the police.
5. PW3 Ms. Shalu, wife of accused and sister of prosecutrix testified on oath that the prosecutrix was aged about 19 years at the time of incident and is her younger sister. She was unmarried and was living at her parent's house G75, Harkesh Nagar. Pankaj Kumar is her husband.
SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 8 of 33 She was married with accused on 17.04.2012. Just after about 23 months, the accused had shown his inclination for having sexual relation with her younger sister. On her protest for not behaving in this manner, accused used to beat her and abuse her. After about four months of marriage, she was taken away by her father from the house of accused situated in village Anguwan in Bihar. The accused had also molested her sister outside her school on 21.09.2013 regarding which a case was registered against accused and he was sent to jail. At that time, her sister was about 16½ years old and again 26.04.2014, accused had also beaten her sister and my mother family members threatening as to why the case against him was not withdrawn by her sister. On 27.12.2015, her sister had gone to college. She left her college at about 1:30 / 2 PM, Pankaj Kumar met her at a round about and met her sister. Her sister was threatened by Pankaj Kumar to take back the case filed by her sister against him. He insisted her to go with him to his room. Her sister did not agree and protested to accused and when some boys tried to help her, accused showed a naked photograph of her sister taking bath to them saying that her sister was his girlfriend. Those boys left. Her sister was threatened by accused saying that he would upload her photograph on net and would also kill her family members and accused forcibly under threat took her to a room taken on rent by him in Harkesh Nagar. There, her sister was forced to have sexual intercourse by accused and her video was also got prepared. Thereafter, her sister remained under continuous threat of accused and finally she disclosed about the incident to her. She had also brought mobile phone of accused OPPO company from his SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 9 of 33 room which contained video of her sister. On 05.01.2016, she had taken her sister to police station Okhla Indl. Area and present case was registered. The said mobile phone seized vide seizure memo Ex.PW1/D. She is still being threatened by one Roshan Kumar Rai who is cousin (bua ka ladka) of accused and she is also threatened by her father in law Ashok Kumar and her jeth Dilip Kumar Jha.
6. PW12 Inspector Kiran Sood had deposed that on 07.01.2016, she was posted as SI at PS Govind Puri. On that day, on receipt of information, she reached PP Okhla PhaseIII of PS Okhla Indl. Area, New Delhi. The prosecutrix met her there. She recorded the statement of the prosecutrix vide Ex.PW1/A. A case vide FIR no. 967/2015 u/s 354 D/506/451 IPC was already registered in PS Okhla Indl. Area on the complaint of the prosecutrix against the accused Pankaj Kumar Jha and the statement of the prosecutrix u/s 164 Cr.P.C. was recorded in that case. In that case in her statement u/s 164 Cr.P.C., the prosecutrix had alleged the allegations of rape committed upon her by the accused Pankaj Kumar Jha. She collected the copy of statement of the prosecutrix recorded u/s 164 Cr.P.C. from SI Bijender. She made an endorsement Ex.PW12/A, on the statement Ex.PW1/A and got the FIR registered through Ct. Harender. She and Lady Constable Alis took the prosecutrix to AIIMS where the prosecutrix was medically examined vide MLC Ex.PW1/B. She reached at the spot i.e. House no. B5, Harkesh Nagar, Okhla and prepared the site plan at the instance of the prosecutrix vide Ex.PW12/A. She recorded the statement of witnesses. On 08.01.2016, the accused Pankaj Kumar Jha was arrested at PP Okhla Indl Area SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 10 of 33 PhaseIII in the presence of HC Harish Chandra vide arrest memo Ex.PW8/A and his personal search memo was conducted vide memo Ex.PW8/B. The accused was sent to AIIMS through HC Harish for his medical examination where he was medically examined qua his potency test vide MLC Ex.PW12/C. The examining doctor handed over the blood in gauze of the accused in sealed condition with sample seal which she seized vide seizure memo Ex.PW8/C. On 10.01.2016, the sister of the prosecutrix produced a mobile phone white colour make OPPO stating that the accused has prepared the obscene video of the prosecutrix by his mobile phone. She converted the mobile phone into a pullanda, sealed with the seal of BS and seized vide seizure memo Ex.PW1/D. She recorded the statement of Shalu. During investigation, she sent the mobile phone to FSL. She recorded the statement of other witnesses. She correctly identified the mobile phone vide Ex.P1. She completed the investigation, prepared the chargesheet and filed the same in Court since pending the FSL result.
Medical Witnesses:
7. PW2 Dr. Tarini Sonwani, Sr. Resident, AIIMS New Delhi had deposed that on 07.01.2016 prosecutrix was brought by W/Ct. Alish for her medical examination. She gave history of forced sexual intercourse by accused who was her Jija on 27.12.2015 at Harkesh Nagar in his house. She also narrated that she was verbally assaulted by Pankaj for about two years and she was also blackmailed by use of her naked pictures. PW2 medically examined prosecutrix. As per her internal examination, her hymen was torn posteriorly, old healed tear but there SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 11 of 33 was no active bleeding and proved the MLC of prosecutrix vide Ex. PW 1/B.
8. PW5 Dr. Mohan Singh Meena, Junior Resident, Department of FMT, AIIMS, New Delhi had deposed that on 08.01.2016, accused Pankaj was brought to the office for his medical examination. He examined the accused Pankaj and found nothing to suggest that he was incapable of performing sexual intercourse in normal circumstances. The MLC prepared by him is Ex. PW5/A. He had also taken the blood sample of accused in gauze, penile swab with control and his undergarment, preserved the same, sealed and handed over it over to the police alongwith the sample seal.
9. PW13 Sh. Mahendra Singh Niranjan, JR Forensic, Assistant Chemical Examiner, FSL Rohini, Delhi had stated that on 10.03.2016, he had received the duly sealed exhibits for examination. He retrieved all the data, copied in CD and prepared the detailed report vide Ex. PW13/A. He also proved the CD Ex. PW13/B. Formal Witnesses :
10. PW4 Ms. Neha, Ld. MM had deposed that on 06.01.2016, she recorded the statement of prosecutrix u/s 164 Cr.P.C. Ex. PW1/C. She had also appended the Certificate and copy of the statement was supplied to IO on the application Ex. PW4/A.
11. PW6 SI Raghunath Prasad is Duty Officer and has stated that on 07.01.2016, he recorded FIR Ex.PW6/A. He endorsed the rukka Ex. PW6/B and gave a Certificate u/s 65B of the Indian Evidence Act vide Ex.PW6/C. SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 12 of 33
12. PW7 W/Ct. Alish had stated that on the direction of the IO, she took the prosecutrix to AIIMS for her medical examination. She is the formal witness of the prosecution.
13. PW8 ASI Harish Chander had stated that on 08.01.2016, he joined the investigation of case FIR No. 967/2015 PS Okhla Industrial Area with SI Bijender Singh. They reached B5, Harkesh Nagar, New Delhi where accused Pankaj Kumar Jha was found present. He was interrogated and arrested in that case. They brought him to chowki PP Okhla Industrial Estate PhaseIII. IO of this case W/SI Kiran Sood came at chowki and she also interrogated the accused in this case and arrested vide arrest memo Ex.PW8/A. Personal search of accused was conducted vide memo Ex.PW8/B. Accused was taken to AIIMS for medical examination. The examining doctor handed over the pullanda of blood sample of the accused with sample seal in sealed condition, which he had handed over to the IO. IO seized the same vide seizure memo Ex.PW2/C. IO recorded his statement.
14. PW9 SI Bijender Singh had deposed that on 06.01.2016, he was posted as SI at PS Okhla Industrial Area. A case FIR no. 967/2015 u/s 451/506/354D IPC had already been registered at PS Okhla Industrial Area on the complaint of the prosecutrix of this case. On 06.01.2016, he moved an application Ex.PW4/A before the Magistrate for recording the statement of the prosecutrix u/s 164 Cr.P.C. On the same day, statement of the prosecutrix was recorded by the Magistrate in that case wherein the prosecutrix made allegations of rape against the accused Pankaj Kumar Jha. He has collected the copy of the statement. WSI Kiran Sood SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 13 of 33 recorded the statement of the prosecutrix and got this case registered. On 08.01.2016, he alongwith HC Harish Chand reached D5, Harkesh Nagar and arrested the accused Pankaj in case FIR no. 967/2015 PS Okhla Industrial Area. They brought him to chowki Okhla Industrial Estate PhaseIII. SI Kiran Sood also interrogated the accused and arrested him in this case. On 10.01.2016, Shalu sister of the prosecutrix produced a mobile phone make OPPO without SIM to IO SI Kiran Sood. IO converted it into a pullanda and sealed with the seal of BS and seized vide seizure memo Ex.PW1/D. IO recorded his statement.
15. PW10 Head Constable Harinder Singh got registered the case FIR vide Ex.PW6/A on the basis of rukka received by him from SI Kiran Sood.
16. PW11 SI Rakesh Kumar is Duty Officer and has stated on 17.12.2015, he recorded FIR bearing no. 967/15 under Section 451/354D/506 IPC vide Ex. PW11/A and issued a Certificate u/s 65B of Indian Evidence Act Ex. PW11/B.
17. PW14 Constable Mahender Singh deposed that on 10.03.2016, on the directions of IO he took sealed exhibit with documents and specimen seal from Malkhana and deposited the same in FSL, Rohini, New Delhi and handed over its receipt to MHC(M).
18. PW15 HC Satish Kumar MHC(M) proved that the exhibits of mobile phone in sealed condition were deposited in Malkhana vide entry No. 2368 vide Ex. PW15/A. He has also proved the copy of RC with acknowledgement vide Ex. PW15/B. Statement of accused and Defence of Accused: SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 14 of 33
19. Statement of accused persons u/s 313 Cr.P.C. recorded separately in which he denied all the allegations levelled against them and alleged false implication. He also stated that he is innocent and have been falsely implicated in the present case. He never harassed the prosecutrix nor asked from the prosecutrix or his wife to ask the prosecutrix to make physical relation with him. He never took her obscene photographs nor prepared her obscene video. The mobile phone make OPPO did not belong to her. He did not know how the video / photographs were made. The prosecutrix used to come to his flat at Harkesh Nagar and they had physical relations, but it were with the consent of the prosecutrix. His wife wanted him to settle in Delhi, but since, he had business in Mumbai, he refused. She with the help of the prosecutrix falsely implicated him in this case. His wife had extra marital affairs which he used to object. They were not having cordial relations. Her family members used to come in his flat and abuse him. They made false complaints against him. The prosecutrix requested him to get her admitted in the college. He helped her in getting admission. She started visiting his flat. She told him that his wife would not live with him and she is willing to live with him and take care of his daughter.
20. Accused preferred to lead evidence in his defence. However, he did not produce any witness in his defence and his defence evidence was closed vide order dated 12.07.2017.
Arguments of Ld. Addl. PP for State:
21. It is argued by Ld. Addl. PP for the State that accused has committed the crime by abducting prosecutrix from her college and SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 15 of 33 committed sexual intercourse with prosecutrix forcibly and also threatened her to upload her photographs on the Internet and to kill her brother and father. It is argued that seeing the nature and severity of the offence, accused is liable to be convicted.
Arguments of the Ld. Counsel for accused:
22. It is argued by the Ld. Counsel for accused that the allegations of rape levelled by the prosecutrix are false as there is a delay in informing the incident to the police from 27.12.2015 to 06.01.2016. It is stated that the prosecutrix is in the habit of levelling false allegations against the accused. She has already lodged three FIRs against the accused in collusion with her sister. It is stated that the sister of the prosecutrix is trying to settle her scores through the prosecutrix. The allegations are not specific and there are discrepancies. Landlord of the prosecutrix namely Narender Bhadana is hostile on the point of quarreling. It is stated that the mobile phone having the obscene video is not of the accused. The video was made by the sister of the prosecutrix only and have revealed that relations were consensual. It is argued that the mobile is of the father of the prosecutrix. It is stated that Shalu sister of the prosecutrix is not in talking terms with father of accused and as such the story of going to the house of the accused to talk to her father in law is concocted. As per the statement of the prosecutrix and her sister mobile phone is handed over on 06.01.2016 but the seizure memo was prepared later on. It is stated that after watching the CD the court could find that relations were consensual. It is stated that the accused has been falsely implicated in this case. The accused never took her obscene photographs SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 16 of 33 or obscene video nor harassed her or sister of prosecutrix to make physical relations with the accused. Prosecutrix used to come to the house of accused and make physical relations with her consent. She also told the accused that his wife will not live with him and that she is willing to live with the accused and take care of his daughter. It is stated that the wife of the accused is having extra marital affair which accused used to object and the wife of the accused falsely implicated him through prosecutrix. Hence, it is prayed that the accused be acquitted. Conclusion:
23. I have heard the arguments of Ld. Addl. PP for the State and Ld. Counsel for accused and have perused the record.
24. Before appreciating the facts of this case, it is necessary to know the ingredients of the offence of rape by resorting to the provisions of section 375 IPC. Section 375 IPC provides as under: "375. Rape. A man is said to commit "rape" if he
(a) penetrates, his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body or a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions : SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 17 of 33 First. against her will.
Secondly. Without her consent Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. With or without her consent, when she is under eighteen years of age.
Seventhly. When she is unable to communicate consent. Explanation 1. For the purpose of this section, "vagina" shall also include labina majora.
Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specified sexual act;
Provided that a woman who does not physically resist to the act of the penetration shall not be the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1. A medical procedure or intervention shall not constitute rape.
Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
25. Offence under section 366 IPC: For proving the offence under section 366 IPC the prosecution has to prove the following ingredients.
SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 18 of 33 The essential ingredients of section 366 of IPC are :
(a) A person kidnaps or abducts any woman.
(b) The act is done
(i) with intent that she may be compelled to marry any person against her will, or
(ii) knowing it to be likely that she will be so compelled, or
(iii) in order that she may be forced or seduced to illicit intercourse, or
(iv) knowing it to be likely that she will be so forced or seduced.
26. Section 506 IPC defines: Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
If threat be to cause death or grievous hurt, etc. And if the threat be to cause death of grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
27. Rape is the act of physically forcing a woman to have sexual intercourse; an act of sexual intercourse i.e. forced upon a woman against her will. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 19 of 33 as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. Lett. 130b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the following essentials"
1) Sexual intercourse by a man with woman.
2) The Sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
28. Section 90 of the IPC defines consent. It reads: a consent is not such a consent as it intended b y 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.
29. The most material witness to prove the offence of rape is the prosecutrix herself. It is settled law that court can convict the accused only on the sole testimony of the prosecutrix, if the same inspires confidence.
30. In Sada Shiv Ram Rao Hadbe Vs. State of Maharashtra and Anr., 2006 (10) SCC 92, Apex Court has observed :
"It is true that in rape case, the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or "the whole surrounding circumstances" are highly improbable and belie the case, the case set up by the prosecutrix, the court shall not act SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 20 of 33 on the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
31. The court, while evaluating the facts of a case, is supposed to form an opinion about the credibility of the witnesses examined in a case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion on the credibility of the witnesses. For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence taken in the context of other facts of the case. Law recognizes following ways in which evidence of a witness can be termed unreliable:
a) the witness's statement is inherently improbable or contrary to the course of nature,
b)his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity,
e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and,
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
32. It is for the court to consider in each case whether as a result of cross examination, the witness stands discredited or can still be believed in regard to any party of his testimony. In appropriate cases, the court can rely upon a part of the testimony of a witness if the said deposition is found to be credit worthy. The law even recognizes to rely upon the part of the testimony of a hostile witness if the same inspires confidence. A part of the testimony of a witness can be incredible but the other part can SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 21 of 33 be credible on a careful scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence can be relied upon if the testimony is found to be credible.
33. Before looking into the testimony of the prosecutrix it is necessary to point out that prior to registration of FIR of this case, prosecutrix had registered one more case bearing FIR No. 967/15, PS OIA, U/s 354D/506/451/323 IPC and during the statement of the prosecutrix recorded under Section 164 Cr.P.C in the said case by the Magistrate on 06.01.2016, the prosecutrix has alleged that she was raped by the accused on 27.12.2015 after blackmailing her and as a result of this statement made by the prosecutrix to the Magistrate U/s 164 Cr.P.C, the present FIR was registered against the accused U/s376 IPC.
34. To ascertain whether the prosecutrix was raped or not, it is necessary to scrutinize the statement of the prosecutrix made in the Court. In the statement, the prosecutrix has specifically deposed that her sister Shalu was married with the accused on 17.04.2012 and after 23 months of the marriage of her sister, the accused started saying her to ask her younger sister i.e prosecutrix to make physical relations with him. Her sister refused for the same for which the accused had beaten her up and forced her to leave the matrimonial house after one year of the marriage when she refused to accede to the illegal proposal. As per her statement, the accused then shifted from Delhi to Bihar and started visiting her rented premises and quarreling with her sister and used to ask her that he is ready to accept her, if he will be allowed to make physical relations with the prosecutrix. Her sister refused for the same. The prosecutrix further deposed that whenever she used to go outside the SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 22 of 33 house, accused used to follow her, used to tear her clothes and used to hold her hand. It is admitted fact between the parties that earlier also two FIRs were got registered by the prosecution against the accused for molesting her which are still pending trial in POCSO Court. The third FIR No. 967/15 was registered with the allegations of molestation and stalking by the prosecutrix in the year 2015 and from which the present FIR was made out.
35. Prosecutrix has specifically alleged that accused had clicked her several photographs from his mobile phone when she was taking bath in the village at the house of her grandmother, which fact came to her knowledge only after one year of the marriage of her sister, when she showed her the said photographs. During cross examination the prosecutrix has specifically mentioned that the accused had made the obscene video at her village by his mobile phone. She also deposed that 'pakka bathroom' is not built up in her village and they were using a temporary bathroom covered with clothes. As per her version, the accused started blackmailing her by showing this video after one year of the marriage of her sister. As per version, the accused was blackmailing her for making physical relations and threatened to upload the said nude photographs of the prosecutrix and the video on the internet and he continued with this act for three years during which period the prosecutrix had registered three FIRs of molestation against him. As per the allegations, whenever accused used to come out on bail he used to molest her. She had deposed that on the basis of these obscene photographs on 27.12.2015 the accused had taken from her college to his house asking her to accompany him and make relations with him SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 23 of 33 otherwise he would upload her photographs on the internet. The prosecutrix stated to him to do the same if he likes and then accused morphed her photographs with some other boy and sent it to her relative Chandan. On 27.12.2015 the accused then took her to his flat after blackmailing her and made physical relations with her without her consent after threatening her. He threatened her not to disclose the incident to anyone otherwise he will kill her and her family. As per the version, the accused was saying to her that he will drag her in prostitution and live on her earning otherwise he will upload her obscene photographs on the Internet. Due to terror of the accused, the prosecutrix did not disclose the incident to anybody but disclosed on 05.01.2016 to her sister Shalu and requested her to bring the said mobile phone make OPPO from the house of the accused. Her sister went to the rented premises of the accused as the accused had called her sister due to visit of her father in law who wanted to talk to her. Her sister went there. The mobile phone was lying there and the same was brought by her and ultimately given to the police on 06.01.2016. The prosecutrix was cross examined by the Ld. Counsel for accused however her testimony could not be shattered.
36. In her entire statement, prosecutrix is consistently telling that she was continuously molested by the accused after 23 months of the marriage of her sister with him, who wanted to have physical relations with her in which the accused ultimately succeeded on 27.12.2015. The prosecutrix has lodged two more FIRs bearing No. 492/13 and 293/14, PS OIA against the accused as to the molestation. Both the said cases were registered by her when she was minor and are pending in Children SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 24 of 33 Court dealing with POCSO Court. Her case is that the accused is continuously molesting her and even after registration of cases, he continued with the acts whenever bailed out in those matters. He wanted to make physical relations with her and forcing his wife/sister of prosecutrix for this illegal demand and ultimately succeeded in the same on 27.12.2016. A girl who is continuously facing molestation at the hands of her jija who had an evil eye upon her and wanted to be physical with her since after the marriage of her jija with sister of prosecutrix, had no option but to file the complaint with the police, which the prosecutrix of this case is doing right since the time when she was minor and which continued till the registration of this FIR. Her various police complaints, culminating in registration of four FIRs against the accused, tell tale of the helpless situation of a girl, who despite taking recourse to law and police, fell prey in the hands of the accused, who ultimately succeeded in committing rape with her, despite all her resistance and efforts. Nothing adverse came out in the cross examination of the prosecutrix so as to show that she was deposing falsely in the court. Her testimony is consistent throughout. On the similar lines, the sister of the prosecutrix has deposed with her husband after 23 months of the marriage which shows his inclination for having sexual relations with her younger sister and on her pretext the accused used to beat and also abused her and also had beaten her sister on two FIRs against the accused. She also deposed that on 21.09.2013 accused had molested prosecutrix outside her school for which a case was registered and again on 26.04.2014 he had beaten her sister and family members, threatened them to withdraw the case SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 25 of 33 filed by her sister. Accused also used to give threat to PW3 to withdraw the cases filed by the prosecutrix. He had also taken her nude photographs while she was taking bath. She had also deposed that accused used to threaten the prosecutrix to upload her photographs on the Internet and to kill her family members and also forced to have sexual intercourse with her which was finally disclosed by her to PW3. As per her version, she brought the mobile phone make OPPO belonging to the accused from his room which contain video of her sister and the accused. The said phone was handed over to the IO. PW3 was also cross examined but nothing adverse had come in the cross examination. Both the prosecutrix and her sister were consistent in their testimonies.
37. Ld. Counsel for accused has vehemently relied upon the CD of the recording of the mobile phone make OPPO which was given by the sister of the prosecutrix i.e PW3 to the IO and argued that the physical relations were consensual between the accused and prosecutrix. The said mobile phone was sent to the FSL by the IO and the contents of the mobile phone was converted into CD by PW13 Mahendra Singh Niranjan, Jr. Forensic/Assistant Chemical Examiner, FSL Rohini, Delhi.
38. During the course of arguments I had asked the IO to bring the prosecutrix in the court so as to ascertain her identity before viewing the CD since the statement of the prosecutrix was recorded by the Ld. Predecessor of this Court. Prosecutrix was produced in the court. IO was also directed to make arrangement for display of the CD. I have seen the said CD and in one of the video clipping in the said CD retrieved from the mobile phone make OPPO as given by PW3 to the IO, the prosecutrix and the accused were shown to be making physical SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 26 of 33 relations willingly.
39. Though PW13 in his cross examination had deposed that he did not examine the mobile phone in respect of the tampering but the accused had also admitted the contents of the CD in so far as it relates to making physical relations between the accused and the prosecutrix. Accused had admitted making of physical relations with the prosecutrix who had stated that they were consensual. He had only denied that the phone OPPO does not belong to him but admitted the making of physical relations. IO has not collected any proof to show that the mobile phone make OPPO belong to the accused but the contents of the video recording wherein the prosecutrix and the accused are shown in intimate relationship and to be making physical relations with each other prove that physical relations were made between the two moreso when it is admitted fact between the accused and the prosecutrix. The accused had not denied the said video clipping. He had only denied the ownership of the mobile phone. Even if, the mobile phone did not belong to him, the factual position still remains that it is a video clipping in which the accused and the prosecutrix are being shown to be involved in sexual relationship with each other. Ld. Counsel for the accused has argued that though he had not seen the video but if the making of relations is shown in video it proves the defence of the accused that relations between the prosecutrix and the accused were consensual whereas Ld. Addl. PP has argued that physical relations were made by the accused with the prosecutrix after blackmailing her and the possibility cannot be ruled out that by taking recourse of the blackmail the accused had SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 27 of 33 pressurized the prosecutrix to make physical relations in normal manner so that he may later on use the said video clippings in his favour.
40. Now the question to be decided is whether the consent given by the prosecutrix was free or voluntary or whether she was coerced to indulge into physical relations by the accused.
41. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance the good and evil on each side. Consent is rape covers states of mind ranging widely from actual desire to reluctant acquiescence. Consent within penal law, defining rape, requires exercise of intelligent based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to the understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.
42. In the case of Rao Harnarain Singh Sheoji Singh Vs. The State, AIR 1958 P H 123, the High Court while holding the accused liable for the offence of rape has distinguished between the word 'consent' and 'submissions' as shown below: "(1) A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be " consent" as understood in law.
(2) 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 moral quality of the SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 28 of 33 act, but after having freely exercised a choice between resistance and assent.
(3) Submission of her body under the influence of a fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and mere act of submission does not involve consent.
(4) Consent of the girl in order to relieve an act, of a criminal character, like rape must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.
(5) A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wants. Consent implies the exercise of a free and untrammeled right to forbid or without what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former."
43. The mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in by duress, cannot be considered as consent of the prosecutrix. In the present case when the prosecutrix was specifically asked during her cross examination she has deposed that " It is wrong to suggest that my relations with accused were with my consent. Both of us made the video but it was on the coercion of the accused." She also denied the suggestions that she used to send obscene messages from her mobile to accused. She also denied the suggestion that she wanted to marry and live with the accused and when accused refused, she made false complaint. At this stage, it is to be kept in mind that sister of the SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 29 of 33 prosecutrix has also appeared as a witness in this case and supported the version of the prosecutrix. If the prosecutrix wanted to marry the accused and spoil her family life why she would have deposed in her favour.
44. Prosecutrix is regularly and continuously making the complaint against the accused who happened to be her brother in law. She will not continue to tell lie on the point that she was being blackmailed as she would not like to level false allegation against her jija and spoil married life of her sister. Her continuous FIRs lodged against the accused go to show that the accused was after her and had an evil eye upon the prosecutrix since after his marriage with her sister which is also proved from testimony of PW2, wife of accused. Prosecutrix had been making complaints to the police against the accused since the time when she was minor and all these complaints continued even after her becoming major. Despite lodging of FIRs the accused did not stop nor mend his ways and continued to blackmail her and in that scenario on account of inevitable compulsion and blackmailing from the side of accused, the prosecutrix was coerced into making physical relationship. Previous conduct of the prosecutrix, her consistent testimony duly supported by statement of her sister go to show that the participation in the sexual act with the accused was not voluntary. The consent, if any, in entering into the sexual relationship with the accused cannot be termed as voluntary since the same was clouded by fear on account of the threats given by the accused to the prosecutrix that he will upload her obscene photographs on the Internet and will also kill her and her family members.
45. The prosecutrix is sister in law of the accused. Admittedly, marriage of the accused and her sister was lovecumarrange marriage SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 30 of 33 but soon after 23 months of the marriage the accused started pressurizing sister of the prosecutrix to ask the prosecutrix to make physical relations with her. The prosecutrix has deposed that on account of this illegal demand by accused, her sister was residing separately from him. The accused has taken the defence that his wife was not inclined to stay with him as she wanted to reside in Delhi and not in his native village and was also objecting in giving financial help to his family members. If that would have been the position, there was no ground to comprehend that prosecutrix and her sister would come to the Court with the allegations of molestation and rape which allegations had adverse impact even on the career and future life of unmarried prosecutrix. The making of physical relations is admitted fact by the accused. If that would not have been a ground of discord between the accused and his wife PW3, there was no other reason on account of which the sister of the prosecutrix was staying away from the accused. Sister of the prosecutrix could have easily departed from accused if there were other allegations. There was no ground to make such like allegations against the accused knowing full well that these allegations will also adversely impact the name of unmarried prosecutrix. In such circumstances to my mind the complaints against the accused cannot be termed as false. If the prosecutrix was making physical relations with accused voluntarily, she could not have lodged four cases against the accused since 2012 onwards nor the wife of accused who is sister of prosecutrix would have supported her at the cost of spoiling her married life. The act of making physical relations was under coercion and the consent was not voluntary SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 31 of 33 and it was passive giving in by the prosecutrix on account of inevitable compulsion and clouded by the fear of threats of blackmailing by the accused that he will upload her nude photos on the internet. The CD was handed over by sister of prosecutrix to IO. If the relations would have been made voluntarily by prosecutrix, she would not have given this CD to IO as it is an evidence against her ownself.
46. Despite the continuous FIRs against the accused, the accused was not desisting from his act of molesting the prosecutrix and the conduct of the accused certainly had a scary impact on the mind of the prosecutrix and her act of not disclosing the incident of rape at the first opportunity to her sister or family members should be viewed in this scenario and to my mind the fact that prosecutrix did not disclose the incident of rape in her earlier complaint in FIR No.967/15, PS OIA, U/s 354D/506/452/323 IPC is no ground to disbelieve her.
Medical Evidence:
47. Prosecutrix was medically examined after 12 days of the incident on 07.01.2016. Though, exhibits were not collected since the incident was 12 days old but the hymen of the prosecutrix was found torn posteriorly and tear was old. The medical evidence also corroborates the statement of the prosecutrix. As per the MLC of the accused proved by PW5 Dr. Mohan Singh Meena and exhibited as Ex.PW5/A nothing found to suggest that the accused was incapable of performing sexual intercourse under normal circumstances. Accordingly, in view of the above discussion from the testimony of the prosecutrix it is proved that she was raped by the accused on 27.12.2015 after abducting from her SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 32 of 33 college and after giving threats to her to upload her photographs on the Internet and after threatening to kill her brother and father. Hence, in view of above discussion, the prosecution has duly proved its case beyond reasonable doubt against the accused. Accordingly, accused is convicted for the offences punishable under Section 366/376/506 IPC for which he has been charged.
48. Case be listed for arguments on the point of sentence.
Announced in the open
court today i.e. 07.05.2018 ( Renu Bhatnagar)
ASJSpl. FTC / Saket Courts
New Delhi
SC No.1864/16 State Vs Pankaj Kumar Jha Page No. 33 of 33