Delhi District Court
State vs . Harun Page No. 1/12 on 1 April, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No.: 02406R0002052014
SC No. : 18/14 and 1713/16
FIR No. : 179/13
U/s : 417/376/506 IPC
PS : Badarpur, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Harun
S/o Riyazuddin
R/o F1/90, Gali No.7,
Sangam Vihar, New Delhi.
Also: Dadri, District Gautam Budh Nagar
Uttar Pradesh. ..............Accused
Date of Institution : 30.01.2014
Judgment reserved for orders on : 31.03.2017
Date of pronouncement : 01.04.2017
J U D G M E N T
FACTS :
1. Briefly, the case of the prosecution is that the accused was the relative of the prosecutrix. He used to visit her house. In January, 2011, he told the prosecutrix that he is unmarried and wants to marry her. In June, 2011, he induced the prosecutrix to go with him in a rented house at Badarpur. She started living with him. There he committed sexual intercourse with her after promising to marry her. They lived together for FIR No. : 179/13 PS : Badarpur State Vs. Harun Page No. 1/12 about 89 months. During that period, he made physical relations with her. In December, 2011, brother of the accused Hashim and his cousin Ali Hassan came there. They asked the prosecutrix to leave the house lest they would kill her. Later she came to know that the accused was already married having three children. In April, 2012, she went to the house of the accused where she was given beatings. She made complaint at the police station Badarpur on 29.04.2012 but no action was taken. On the directions of the Court vide order dated 12.03.2013, the case was registered u/s 376/323/506/34 IPC vide FIR 179/2013. On 26.06.2013, accused Harun was arrested. The prosecutrix and the accused were got medically examined. The accused was found capable of performing sexual intercourse under normal circumstances. After the investigation, the accused was sent for trial for the offences punishable u/s 376/323/506 IPC.
2. After complying with the requirements contemplated under section 207 CrPC, the case was committed to this Court. CHARGE :
3. Prima facie case was made out vide order dated 20.02.2014 and the charge was framed against the accused for the offences punishable under section u/s 417/376 and 506 IPC. He pleaded not guilty and claimed trial. PROSECUTION EVIDENCE :
4. To substantiate its allegations against the accused, the prosecution examined as many as nine witnesses.
PW1 Ct Mahender Kumar witnessed the arrest of the accused. He took the accused to AIIMS for his medical examination vide MLC Ex. PW 1/A. He collected his exhibits and handed over to the IO FIR No. : 179/13 PS : Badarpur State Vs. Harun Page No. 2/12 vide memo Ex. PW 1/B. PW2 Pushpa Devi was the landlord of the premises bearing No. A36, Budh Vihar, Tazpur Pahari, Badarpur, New Delhi which was taken on rent by the accused and prosecutrix. She stated that they lived in the premises from April, 2012 to June, 2012. The accused had introduced the prosecutrix as his wife.
PW3 Mohd. Shagiruddin was the Imam, Masjid Elahi, Ekta Vihar, New Delhi. He stated that on 27.06.2012, he performed the Nikah of the prosecutrix with the accused at his house. He proved the Nikahnama Ex. PW 3/A. He stated that he performed the nikah on the asking of the father of the accused. He stated that earlier he had also performed the nikah of the prosecutrix with some one else but he does not know his name nor the date and year of nikah.
On being crossexamined, he admitted that he performed the nikah of the prosecutrix with Yusuf. He stated that he does not know if the prosecutrix had also married with Chand in 2011. PW4 is the prosecutrix. I will discuss her testimony at the time of appreciation of evidence. PW5 SI Virender Singh verified the nikahnama of the prosecutrix with Harun and found it genuine.
FIR No. : 179/13 PS : Badarpur State Vs. Harun Page No. 3/12 He prepared the report on 17.01.2013. He also got the case registered and handed over further investigation to WSI Anju Tyagi. He stated that the complaint was filed after the nikahnama.
PW6 Dr Rajanikanta Swain proved the MLC of accused Harun Ex. PW 1/A prepared by Dr Hari Prasad, as per which, the accused was capable of performing sexual intercourse under normal circumstances.
PW7 SI Anju Tyagi was the investigating officer of the case. She deposed on the lines of the investigation. She arrested the accused and got him medically examined. She also got the prosecutrix medically examined vide MLC Ex. PW 4/B. She stated that the prosecutrix was pregnant at that time. She stated that the prosecutrix had given birth to a female child. She stated that prosecutrix never complained to her that Hashim and Ali Hassan threatened her.
PW8 Dr Preeti proved the MLC of the prosecutrix Ex. PW 4/B prepared by Dr. Vinod Bhivsane. She stated that as per the MLC, the prosecutrix was six months pregnant.
PW9 SI Ashok recorded the FIR Ex. PW 9/A. Statement of Accused u/s 313 CrPC
5. After recording the prosecution evidence, the statement of FIR No. : 179/13 PS : Badarpur State Vs. Harun Page No. 4/12 accused was recorded u/s 313 CrPC. He denied all the incriminating evidence against him. He stated that he did nikah with the prosecutrix on 27.06.2012. He made physical relations with the prosecutrix after the nikahnama. At the time of nikahnama, he had told the prosecutrix that he was already married. He stated that the prosecutrix and the female child have been living happily with him and he never abandoned them. He stated that the prosecutrix made the complaint at the instance of her relatives. The prosecutrix had consented for the nikahnama and her parents had also signed on the nikahnama.
Defence Evidence
6. Accused did not examine any witness in his defence. ARGUMENTS
7. I have heard the arguments advanced by Sh. Lalit Kumar, Ld counsel for the accused and Sh. Mohd. Iqrar, Ld Addl. PP for the State.
8. The accused has been charged with the offence of rape and criminal intimidation. As such, before adverting to the merits of rival submissions, a reproduction of the definition of the offences would be necessary and relevant.
9. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First: Against her will.
Secondly: Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.......
Fifthly..........
FIR No. : 179/13 PS : Badarpur State Vs. Harun Page No. 5/12 Sixthly: With or without her consent, when she is under sixteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.......
10. Section 506 IPC provides that whoever commits the offence of criminal intimidation shall be punished.... Criminal intimidation as defined u/s 503 IPC means that whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
11. The basic question now is if the prosecutrix ever consented for the sexual intercourse because of her love for the accused or her consent was obtained under misconception of fact.
12. Section 90 of the IPC defines consent. It reads: a consent is not such a 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.
13. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance the good and evil on each side. Consent in rape covers states of mind ranging widely from actual desire to reluctant acquiescence. Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which FIR No. : 179/13 PS : Badarpur State Vs. Harun Page No. 6/12 will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.
14. Prosecutrix/PW4 testified on oath that she had been living in Delhi for about 1012 years with her step mother. She got married when she was 14/15 years of age. However her gona ceremony was not held since her husband suffered from fits. She took divorce from him after 10/12 days of her marriage through panchayat. She stated that she met the accused through Sonu. He started coming in her house. After couple of months, he told her that he is unmarried and wants to marry her. She stated that the accused took her in a rented house at Badarpur where she lived with him for about 23 months. She stated that the accused established physical relations with her giving her assurance that he would marry her saying that there is nothing wrong in it. She stated that she asked the accused several times to marry her but he avoided and said "aaj mera kaam hai, mei kaam me busy hu, abhi ruk jao, kuch time ke baad karengey". She stated that she came to know from his colleagues that he was already married. The accused was in his native place at that time. She talked to him on phone. He replied "aise rehna hae to raho". She also told him about her pregnancy but he asked her to abort by taking medicine. She thereafter left the house and went to her mother's house where she gave birth to a female child. She stated that Hashim and Ali Hassan used to come at her house. They threatened her to severe relations from the accused. Hashim also beat her. She stated that when the accused refused to marry her, she lodged the complaint Ex. PW 4/A. FIR No. : 179/13 PS : Badarpur State Vs. Harun Page No. 7/12 On being crossexamined, she stated that she had gone to her husband once. She is not in possession of any document of her divorce from her husband. She was confronted with the Election Card where the name of her husband has been mentioned as Chand. She stated that in the Election Card, the name of her husband has been wrongly mentioned. She stated that she does not remember the date when she married with the accused however it happened after the accused made physical relations with her. She denied that she made a false complaint against the accused. She admitted that during her medical examination, she did not state that the accused committed rape upon her. She admitted that their physical relations were consensual. She also admitted that she has been living with the accused after the marriage. She denied that she made the complaint to extort money from the accused.
15. A bare perusal of the testimony of the prosecutrix/PW4 would show that the prosecutrix before marrying with the accused was already married. Although she stated that she took divorce from her husband since he suffered from epilepsy but in this case, she did not produce any document of her divorce from her previous husband. She has stated that she got divorce through Panchayat but the prosecution did not examine anyone from Panchayat to substantiate this fact. It is relevant to mention that in the Election Card Mark X, the name of husband of the prosecutrix has been mentioned as Chand. Although the prosecutrix has stated that she never married to Chand but she did not take any step to get the name of her husband corrected.
16. In the instant case, the prosecutrix had met the accused through Sonu who is the devar of her cousin. It is strange that before FIR No. : 179/13 PS : Badarpur State Vs. Harun Page No. 8/12 accepting the marriage proposal, she did not verify from her cousin or Sonu about the marital status of the accused. No investigation was made from the cousin of the prosecutrix or Sonu in this regard.
17. In the complaint Ex. PW 4/A, the prosecutrix never alleged that the accused performed nikah with her. When she was confronted with the nikahnama Ex. PW 3/A, she admitted that the accused performed nikah with her. After the nikahnama, she also lived with the accused as his wife. Even after the nikahnama, they had physical relations. She has admitted that the accused did not force physical relations on her and the physical relations between them were with her consent. It is noteworthy that from the relations made by the accused, the prosecutrix became pregnant and she gave birth to a female child. The accused never disputed the paternity of the child and stated that prosecutrix and her female daughter have been living with him.
18. In the complaint Ex. PW 4/A and in her testimony, the prosecutrix has stated that she came to know from the colleague of the accused that the accused is already married having three children. She did not tell the name of the colleague from whom she came to know of this fact. She alleged that Ali Hassan and Hashim threatened her number of times but testimony of PW7 shows that the prosecutrix never complained to her that Hashim and Ali Hassan used to threaten her.
19. In the history narrated to the doctor vide MLC Ex. PW 4/B, she alleged forceful assault by her husband. She did not allege that the accused committed sexual intercourse with her giving her false promise of marriage. In the instant case, the prosecutrix made material improvements in her testimony and also concealed the factum of her nikahnama with the accused in her complaint Ex. PW 4/A which go to the root of the case. Her FIR No. : 179/13 PS : Badarpur State Vs. Harun Page No. 9/12 testimony cannot be said to be of sterling quality to base conviction of the accused. The things appear to have not happened in the manner she has alleged. It appears that when her relations from the accused became strained, she made the complaint.
20. In the case of Rohit Chauhan vs. State NCT of Delhi, 2013, Bail application no. 311/2013 dated 22.05.2013, it was observed:
"There may be cases where both persons out of their own will and choice develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship but when the relationship breaks due to one or the other reason, the woman uses the law as a weapon for vengeance and personal vendetta."
Conclusion
21. Facts and circumstances of the present case show that prosecutrix was quite matured enough to fully understand what was happening between the two. Her consent for physical relationship before marriage was an act of her conscious decision. She has also married with the accused and given birth to a female child. As on now, she has been living with the accused with his daughter. There is no material to show that the accused or his brother/cousin ever threatened the prosecutrix to severe her relations from the accused as alleged in the complaint. Her testimony is not intrinsic worth believing to base conviction of the accused.
22. In the case of Narender Kumar Vs. State, (2012) 7 SCC 171, it was held that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. The prosecution case has to stand on its own leg and cannot take support from weakness of the case of defence. However, the great the suspicion FIR No. : 179/13 PS : Badarpur State Vs. Harun Page No. 10/12 against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
23. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it was held :
"Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record".
24. In the light of above discussions and findings, I am of the view that the prosecution has failed to prove its case against the accused beyond reasonable doubt. I therefore, acquit the accused Harun of the FIR No. : 179/13 PS : Badarpur State Vs. Harun Page No. 11/12 offences punishable under section 417/376 and 506 IPC. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs.20,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.
25. File be consigned to the Record Room.
Announced in the open
court today i.e. 01.04.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 179/13
PS : Badarpur
State Vs. Harun Page No. 12/12