Delhi District Court
(Judgment) State vs . Aamir Ansari on 26 April, 2018
(Judgment) State Vs. Aamir Ansari
SC No.225/15
FIR No.354/15
PS : Subhash Place
U/s. 376 IPC
IN THE COURT OF SH. SHAILENDER MALIK
ADDITIONAL SESSIONS JUDGE, SPECIAL FAST TRACK COURT,
NORTHWEST, ROHINI, DELHI
In the matter of:
SC No.225/15
FIR No.354/15
Police Station : Subhash Place
Under Sections : 376 IPC
State
Versus
Aamir Ansari
S/o. Nazim
R/o. A4/31B, DDA Flats,
Inder Lok
Delhi ......Accused
Date of FIR : 06.04.2015
Date of institution/committal : 07.11.2015
Charge framed on : 14.12.2015
Arguments heard on : 11.04.2018
Judgment Pronounced on : 26.04.2018
Decision : Acquitted
Appearance:
Sh. Himanshu Garg, Ld. Addl. PP for the State.
Sh. S.P. Yadav and Sh. Mohd. Khursheed, Ld. Counsels
for accused.
JUDGMENT
1. Accused Aamir Ansari s/o. Nazim is facing prosecution herein for the offences u/s.376 IPC.
Page 17 of 17(Judgment) State Vs. Aamir Ansari SC No.225/15 FIR No.354/15 PS : Subhash Place U/s. 376 IPC
2. Factual matrix of the matter is that on 06.04.2015, prosecutrix 'S' (name withheld to protect privacy), d/o. 'S', came to PS Subhash Place and lodged the complaint, stating therein that she is residing alongwith her family and studied upto 8th standard. She has two brothers and sister. Her brother is two years elder to her. Complainant states that her mother was earlier working in a boutique, but had left that job about two months ago.
Accused Aamir Ansari, who runs a shop in the area of Inderlok, Veer Bazaar Market, where she developed friendship with him. Prosecutrix says that thereafter, accused Aamir Ansari proposed her for marriage, for which she agreed. Prosecutrix says that thereafter, accused Aamir Ansari established physical relations with her against her desire. Prosecutrix says that she disclosed about that fact to her mother 'M'. accused Aamir Ansari has been saying that he will marry with her, to which her family members were also agreeable. However, later prosecutrix says that as and when she talks to the accused Aamir Ansari about marriage, he kept on avoiding this issue on one pretext or other. In March 2015, prosecutrix stated to have strenuously asked from the accused that he has been promised for marriage since 2012, but now she requires a concrete reply from him, as to whether he will marry with her or not, upon which accused allegedly Page 17 of 17 (Judgment) State Vs. Aamir Ansari SC No.225/15 FIR No.354/15 PS : Subhash Place U/s. 376 IPC refused and stated to her that if she will compel, he will die, but will not marry with her.
3. Prosecutrix says that accused Aamir Ansari straight forward denied for marriage, then she told this fact to her mother 'M', who also talked that accused Aamir Ansari on his mobile phone no.9999653572 on 01.04.2015, but accused Aamir Ansari did not agree for marriage and told that he will not marry with prosecutrix at any cost. Prosecutrix says that they have tried, but accused has not agreed for marriage. Therefore, she lodges the complaint with the police alleging that accused Aamir Ansari has been establishing physical relations with her on the false promise of marriage.
4. On the above stated complaint of prosecutrix, present case was registered.
Prosecutrix was got medically examined. Thereafter, statement of prosecutrix u/s.164 Cr.P.C. was recorded on 07.04.2015. Accused was also arrested. After completion of investigation, chargesheet was filed.
5. On the basis of material as come on record, Ld. Predecessor of this Court vide order dated 14.12.2015 framed charge for the offence u/s.376 IPC, to which accused pleaded not guilty and claimed trial.
6. For substantiating the charge against the accused, prosecution has examined as many as 8 witnesses Page 17 of 17 (Judgment) State Vs. Aamir Ansari SC No.225/15 FIR No.354/15 PS : Subhash Place U/s. 376 IPC PW Name of witness Nature of Documents proved witness PW1 'S' Victim / She has deposed about prosecutrix the facts leading to registration of present case, on the basis of her complaint Ex. PW1/A. Prosecutrix further refers to her medical examination and proved the MLC Ex. PW1/B and her statement u/s.164 Cr.P.C. as Ex. PW1/C. In her evidence, prosecutrix has also stated that during the bail application proceedings, accused and his family members agreed to perform marriage with her and thereafter Nikaah was performed in the presence of parents and relative of both sides. However, she was not taken to her matrimonial home.
PW2 HC Joginder Duty Officer He was working as Duty Officer and has proved regarding registration of FIR on receipt of complaint of the prosecutrix/complainant.
PW3 Dr. Amrita Soni Doctor, who This witness has deposed
proved the in place of Dr. Priyanka,
medical who had medically
examination examined the prosecutrix
of prosecutrix and proved her MLC Ex.
PW1/B.
Page 17 of 17
(Judgment) State Vs. Aamir Ansari
SC No.225/15
FIR No.354/15
PS : Subhash Place
U/s. 376 IPC
PW4 'M' Mother of She is mother of
prosecutrix prosecutrix and she
deposed that her daughter
'S' / prosecutrix told her
about physical relations
being established by the
accused with her. On this,
she made call to accused
and told him that she
wants to meet with his
parents, upon which
accused threatened to
commit suicide by
consuming poison,
hanging himself or to go
somewhere and then
accused disconnected his
phone. On next day, one
friend of accused called
on the mobile of
prosecutrix and enquired
her whether accused was
at her home as he was
missing since yesterday,
to which she replied in
denial. Thereafter,
prosecutrix, her mother
and sister of her mother
went to the house of
accused, where her father
met her, who called one
other person and that
person misbehaved with
them. Thereafter, father
of accused threatened
them that he will see
them if his son does not
find. Thereafter, she
alongwith prosecutrix
Page 17 of 17
(Judgment) State Vs. Aamir Ansari
SC No.225/15
FIR No.354/15
PS : Subhash Place
U/s. 376 IPC
went to PS and lodged
the present complaint.
MLC of prosecutrix was
conducted from Bhagwan
Mahavir Hospital vide
Ex. PW1/B. Seizure
memos have been proved
as Ex. PW1/D and
PW1/E. She further
deposed that now accused
has performed marriage
with her daughter and on
that ground, bail was
granted to him. She
further deposed that after
marriage, accused did not
take away his daughter /
prosecutrix with him. The
witness has brought the
photographs of marriage
of prosecutrix which are
Marked Ex. PW4/A1 to
PW4/A10. She deposed
that since accused was
not taking his daughter
with him, therefore, on
18.07.2015, she took her
daughter to the house of
accused, but they refused
to keep prosecutrix with
them. She further
deposed that she again
visited the house of
accused persons with her
relatives, but even then,
they refused to keep her.
PW5 Ct. Meenakshi Witness of She has joined the
investigation investigation with IO on 06.04.2015 and got the Page 17 of 17 (Judgment) State Vs. Aamir Ansari SC No.225/15 FIR No.354/15 PS : Subhash Place U/s. 376 IPC prosecutrix medically examined. The doctor handed over her the sexual assault evidence in sealed condition alongwith sample seal and she handed over the same to IO, who seized the same vide seizure memo Ex. PW1/D. Thereafter, the present case was registered.
Prosecutrix handed over 15 photographs to her, which were seized by IO vide seizure memo Ex.
PW1/E. The photographs are proved on record as Ex. G1 to G15 respectively.
PW6 Dr. Pankaj Shah Doctor The witness conducted examined the medical examination and accused potency test of accused.
He proved the MLC as Ex. PW6/A and also the potency test, which was conducted by Dr. Syed Altmash.
PW7 Ct. Ajeet Singh Witness of He joined the investigation investigation of present case with IO on 16.05.2015 and on that day, accused was apprehended from outside the PS Subhash Place at the instance of prosecutrix and was arrested vide arrest memo Ex. PW1/H and personal Page 17 of 17 (Judgment) State Vs. Aamir Ansari SC No.225/15 FIR No.354/15 PS : Subhash Place U/s. 376 IPC search memo Ex. PW1/I. Disclosure statement of accused was recorded vide Ex. PW1/J. On the directions of IO, witness took the accused to Bhagwan Mahavir Hospital for conducting his medical examination, where doctor after medical examination of accused, handed over him the sealed parcel of accused and sample seal of hospital and handed over the same to IO, who took the same into possession vide seizure memo Ex. PW7/A. PW8 Inspector Shashi Investigation She is the Investigating Lata Officer Officer of IO and has deposed about the steps taken by her during the investigation.
7. Upon completion of prosecution evidence, all the incriminating evidence was put to the accused, to which the accused denied all the incriminating evidence and has taken the plea that he is innocent and has been falsely implicated in this case. Accused further pleaded that no proposal or promise of marriage was done by him with the prosecutrix and prosecutrix herself voluntarily established physical relations with him at her residence. Accused also stated that after his marriage, he is residing Page 17 of 17 (Judgment) State Vs. Aamir Ansari SC No.225/15 FIR No.354/15 PS : Subhash Place U/s. 376 IPC happily with the prosecutrix. No evidence was led in defence.
Statement of prosecutrix u/s 164 CrPC
8. Before I discuss the evidence, it is appropriate to reproduce herein , statement of prosecutrix recorded u/s 164 CrPC on 07.04.15 which reads as under;
" Amir had met me for the first time in June, 2012. Then we developed a friendship and started roaming together. In year 2013 we had physical relations which were made in my house. I denied for it but he told me that he will marry me. Whenever there is no one in my house, he used to come and forcibly do sex with me in my house. I knew that he was my friend."
Discussion of Evidence
9. In the facts as discussed above , let us now considered the evidence as come on the record. Material witness in this case is prosecutrix who has appeared in the witness box as PW1. Prosecutrix PW1S has testified that one day in the month of June 2012 , she had gone to Thursday market in Inder Lok, accused Amir was running a lace stall in that market and I purchased the lace from his stall. PW1 says that when she was giving money for the lace , accused refused to take it . Maternal uncle of the accused who was selling laces there with accused, wrote mobile number on a piece of paper and accused handed over that number to her. Prosecutrix says that next day she made a call on that number, which was attended by the accused and when she inquired as to why he gave number to her, accused stated to have told her that he liked her and wanted to have friendship with her. Prosecutrix says that thereafter she used to call to the accused sometimes and sometimes accused used to call her and then they became close friends. Prosecutrix says that accused then made a proposal Page 17 of 17 (Judgment) State Vs. Aamir Ansari SC No.225/15 FIR No.354/15 PS : Subhash Place U/s. 376 IPC of marriage to her, which she accepted. She says that accused gradually started visiting to her house. At that time her mother was working in a boutique. PW1 says that in February 2013 accused asked her to make physical relations, but she refused. Accused told her that why should she feel afraid when he is going to marry and then on the pretext of marriage, accused stated to have forcibly established physical relations with her.
10. Prosecutrix/PW1 further testifies that whenever she refused to make physical relations with the accused, he used to pressurize her for the same. Prosecutrix says that whenever she asked the accused to fulfill his promise of marriage, he avoided the same on one pretext or the other and assured that he would marry later on. PW1 says that accused continued making physical relations with her till 14.02.2015. Accused thereafter refused to marry her and when prosecutr5ix stated to have told her mother, in April 2015, that accused has refused to marry her and has developed physical relations on false pretext of marriage. Mother of the Prosecutrix also spoke with the accused on his mobile and asked him as to why he has cheated her daughter on false pretext of marriage. Prosecutrix says that thereafter accused stopped meeting her. PW1 says that her mother and maternal aunt went to the house of the accused but father of the accused and other male relatives, friends of the accused misbehaved with them. Prosecutrix then stated to have lodged the complaint Ex.PW1/A and her medical examination was conducted and her MLC Ex.PW1/B and statement recorded before MM u/s 164 CrPC is Ex.PW1/C.
11. Prosecutrix in her examination in chief further testifies that during bail proceedings accused and his family members agreed to perform marriage of the accused with her. Thereafter, Nikah was performed in the presence Page 17 of 17 (Judgment) State Vs. Aamir Ansari SC No.225/15 FIR No.354/15 PS : Subhash Place U/s. 376 IPC of parents of both the sides. PW1 says that she however was not taken to her matrimonial home, after Nikah with the accused on the ground that there was a death in the family of the accused and they told her that they would take her to their house later. Prosecutrix says that later father of the accused after about one month, straight away refused to take her to their house by saying that they succeeded in getting bail of accused and she is not acceptable to them as wife of the accused.
12. At the very outset it be noted the court in such cases where allegations are of assurance of marriage, is required to examine the facts and circumstances and evidence of prosecutrix to see whether "consent" of prosecutrix was obtained fraudulently or deceptively by putting her to believe, right from the beginning that accused would marry with her. In that process it is also to be seen that if prosecutrix being major and grown up lady, was very much aware about her conduct and whether she consented for sexual relations with the accused, knowing well that there may be situation that accused may not fulfill his promise of marriage. It is important to note here that nonfulfillment of promise of marriage by itself does not make an offence of rape rather prosecution is required to prove from the evidence of prosecutrix that accused acted deceitfully right from the very beginning and his intentions were only to cause deception and to drive her to agree for sexual relations with him and thereby her consent was obtained by misconception of facts.
13. From the above discussion of examinationinchief of prosecutrix, it is evident that prosecutrix - PW1 developed friendship with the accused somewhere in June 2012. As per her evidence, accused gave her his mobile number and then she called the accused and thereafter prosecutrix and accused, used to make call to each other and thereafter accused stated Page 17 of 17 (Judgment) State Vs. Aamir Ansari SC No.225/15 FIR No.354/15 PS : Subhash Place U/s. 376 IPC to have given her proposal for marriage and Prosecutrix accepted that proposal and then in 2013 accused established physical relations with her on the assurance of performing marriage with her. As per the evidence of Prosecutrix she had physical relations with the accused at different times at her house. Thus, from such evidence it cannot be stated that accused had deceived the prosecutrix. Prosecutrix being a grown up lady, got involved in love affair with the accused and then both of them had physical relations, this in itself does not indicate any element of deceit by the accused.
14. Here law regarding physical relations on a false pretext of marriage is required to be elaborated briefly. 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."
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15. 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 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."
16. In the case reported as Deepak Gulati v State of Haryana, (2013) 7 SCC 675, 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 Page 17 of 17 (Judgment) State Vs. Aamir Ansari SC No.225/15 FIR No.354/15 PS : Subhash Place U/s. 376 IPC 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 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."
17. 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 the fact that her marriage may not take place owing to various factors. In such circumstances, it cannot be stated that consent of prosecutrix was deceitfully obtained.
18. In the facts of the present case, Prosecutrix in her examinationinchief has admitted that she had performed marriage with the accused, after the Page 17 of 17 (Judgment) State Vs. Aamir Ansari SC No.225/15 FIR No.354/15 PS : Subhash Place U/s. 376 IPC registration of FIR. Even in crossexamination, she has admitted that she has sent SMS and Whatsapp messages to the accused relating to her love affair with him. Prosecutrix further admitted that accused had not sent any SMS or Whatsapp messages to her, promising for marriage. Messages were relating to her love affair only. There are certain improvement and contradictions in the evidence of Prosecutrix for which, witness was duly confronted with her previous statements. Thus, entire reading of evidence of Prosecutrix clearly indicates that she had love relationship with the accused and was very much aware about the consequence of her acts and conducts. Admittedly, physical relations were made at the house of the Prosecutrix.
19. In this context it is important to refer here the evidence of PW4M(mother of the Prosecutrix). PW4 testifies that her daughter / prosecutrix told her that accused had established physical relations with her on promise of marriage. Upon which, PW4 stated to have made a call to the accused, who told her that his parents would kill him, if he would talk to his parents about his marriage with the prosecutrix. PW4 further says that she later went to the house of accused to discussed about marriage of prosecutrix with the accused. PW4 says that father of the accused called one person from outside, who humiliated her. PW4 further says that thereafter they lodged the complaint, on the basis of which present case was registered. PW4 says that later accused performed marriage with her daughter on 05.06.2015. After marriage, accused however did not take her daughter with him on the pretext that there has been some death in the family. PW4 says that accused has not taken the prosecutrix to her matrimonial home despite marriage. In crossexamination, this witness was duly confronted with her previous statement on all those facts, which Page 17 of 17 (Judgment) State Vs. Aamir Ansari SC No.225/15 FIR No.354/15 PS : Subhash Place U/s. 376 IPC she stated for the first time in her evidence.
20. Thus, from the reading of evidence of PW1 / prosecutrix and her mother / PW4, it is evident that there is no element of deceit or fraudulent act proved, as such, it can safely be concluded that consent of the prosecutrix being a grown up girl, have not taken deceitfully or fraudulently. Rather, she consented for physical relations with the accused having clear understanding of consequences of her conduct. As such, I find that such evidence on record does not establish the offence of rape as defined u/s.375 IPC. More particularly, when it came in the evidence of prosecutrix as well as her mother that accused had already performed marriage with her. For the reasons stated above, accused to my mind is certainly entitled for benefit of doubt and therefore, stands acquitted. Previous bail bond and surety bond of accused is cancelled. The accused is directed to furnish bail bond and surety bond in sum of Rs.10,000/ in compliance to Section 437A Cr.P.C.
21. File be consigned to Record Room on compliance to section 437A Cr.P.C.
Announced in open Court on 26th of April, 2018 (SHAILENDER MALIK) ASJSpecial Fast Track Court NorthWest, Rohini Courts, Delhi Page 17 of 17