Delhi District Court
State vs . Firoz Bahadur Page No. 1/29 on 29 August, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No:
SC No. : 96/14 and 1365/2016
FIR No. : 20/14
U/s. : 417/376 IPC
PS : Jamia Nagar, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Firoz Bahadur
S/o Mohd. Abbas
R/o Village Shivdas Pur, P.O Rampur Maniharan
District Saharanpur,
Uttar Pradesh. ...................Accused
Date of Institution : 05.05.2014
Judgment reserved for orders on : 28.08.2017
Date of pronouncement : 29.08.2017
J U D G M E N T
FACTS :
1. On 07.01.2014, the prosecutrix ( name withheld to protect her identity) came at the police station Jamia Nagar, New Delhi and gave a complaint inter alia that in 2006, she had been working with DMC institute, Madangir. She wanted to purchase a computer. She discussed it with her colleague Sayeed who introduced her to his room mate i.e. the accused Firoz. He told her that the accused has knowledge of computer since he has been working in IT department of Fedex. Accused told her that he would help her purchase a computer with correct specifications. She alleged that FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 1/29 after sometime, accused told her that he loves her and can not live without her. He used to call her everyday, come at her office and express his love for her. He induced her into relationship. He used to tell her that if she would leave him, he would kill himself. He also said that he would change his religion and convert to Hinduism for her. They used to meet at her residence at Govindpuri and Shahin Bagh. She alleged that during the visits, the accused often tried to force her into sexual intercourse saying that he would marry her. In 2008, he performed a marriage ceremony with her by putting vermilion on her forehead making her believe that she is his lawfully wedded wife. He continued to have sexual intercourse with her. He also took her in his house of Shahin Bagh and forced her to have sexual intercourse with him. He used to call her at odd hours. She had no reason to suspect.
She alleged that for the last 4 - 5 months, he started avoiding her calls and did not let her come at his residence. He told her not to call him. Once, she went to his house and called him from the main road but he told her not to come up and wait for him at downstairs. After sometime, he came down. He took her to some distance and started shouting. He hurled filthy abuses at her, raised his hand and threatened to assault her. She was extremely scared and left from there. She narrated the incident to Sayeed who, to her utter shock, told her that Firoz has recently married and has a child. She could not believe him. She tried to call Firoz but he did not answer her call. On 05.01.2014, she went to his house and confronted him. He instead denying anything admitted that he has married and has a child. He also told her that he never intended to marry her and was just using her to have sexual intercourse with him. He, in a fit of rage, assaulted her. He hit on her face FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 2/29 and threatened to kill if she tried to contact him. He pinned her down and did not let her leave. He allowed her to go when she promised that she would not tell anyone about it. She alleged that initially she was extremely scared but now with the help of her family and friends, she mustered courage to make the complaint.
INVESTIGATION :
2. The prosecutrix was got medically examined at AIIMS. The doctor found her hymen not intact. No samples were taken since the incident was 1½ months old. The case was registered u/s 376/506/323 IPC. The accused was arrested. He was got medically examined qua his potency. The documents from the prosecutrix were collected. Her statement u/s 164 Cr.P.C. was got recorded. The prosecutrix also handed over a CD and transcript. After the investigation, the accused was sent for trial for the offences punishable u/s 376/506/323 IPC.
CHARGE :
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 28.07.2014, prima facie case was made out against the accused for the offence punishable u/s 417/376 IPC. The charge was framed. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
4. To substantiate its allegations against the accused, prosecution examined as many as eleven witnesses.
PW1 is the prosecutrix. She deposed on the lines of her complaint Ex.PW1/A and stated that she had purchased a computer through the accused in 2006. They started FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 3/29 talking on phones as friends and it continued for 6 to 8 months. One day, he called her at coffee shop at Madangir. He told her that he likes her and can not live without her. She told him that they can only be friends because they belong to different community and religion. After 1½ months, he again called her to have a meeting to work out the things. They met at Nehru Place. He convinced her that he would change his religion, leave his family and do everything to marry her. She accepted his proposal since she also developed liking for him. They started meeting after office hours almost daily. He also introduced her to his room mates as his would be wife and her colleagues as her would be husband. It continued for two years.
She stated that sometime in 2008 at about 12:00 noon, he called her in his room at Madangir. There, he tried to establish physical relation with her but she did not allow and slapped him. She returned home and severed her relations from him. After 3 - 4 months, he again called her at about 12:00 mid night and said that he was standing outside her house. He asked her to forgive him and said that he would remain standing and would not leave the place. She, however, did not meet him and he went away from there. She stated that after 2 - 3 days, he again called her and asked her to come at Nehru Place. She went there and met him. He swore in the name of FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 4/29 Quran and assured her that he would not indulge in physical relation with her without her consent. She then resumed her relations with him. She stated that after 2 - 3 months, he again called her in his room at Madangir where he again tried to establish physical relation with her. When she did not permit him to do so, he put vermilion on her parting and said "le me tera pati ban gaya. Ab mujhe mera haq chahiye". She accepted him as her husband. She stated that after 2 - 3 months, he took her to Kalkaji mandir, again put vermilion on her parting and said that he has now married her. But, she used to argue that it was not the proper marriage.
She stated that one day in the evening, he called her in a park at Nehru Place. He told her that he would solemnize marriage in the Court but she refused for Court marriage and told him that she would marry him in the presence of their family members. She stated that the accused used to meet her and force her to come in his room and it continued till 2009.
She stated that in 2009, she conceived from the relations made by him but he convinced her that it was not the right time to carry the pregnancy. He consulted a doctor, brought some medicines and gave to her. After taking medicines, she suffered miscarriage. She stated that he continued to have physical relations with her till 2010. When she reminded him to marry her publicly, he FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 5/29 told her that he is not financially sound and has a lot of responsibility of his family. She then realized that he was exploiting her and does not intend to marry her. She then decided to severe relations from him.
She stated that during that period, he developed heart and mental problem. His friend Sayeed called her at his house and showed her, his medical reports. She then resumed relations with him. She stated that in December 2010, he told her that the marriage of his sister is to take place on 25.12.2010. They both went to Karol Bagh and did shopping. The accused then went to his native place for 15 - 20 days. After coming from there, he again put vermilion on her parting and established physical relation with her. She stated that in 2011, she again conceived from the physical relations made by him. She got her pregnancy tested but the accused concealed the report. He rather gave her medicines after mixing with other medicines and she aborted. On the next day, he told her that her pregnancy was positive and he had given her medicines to abort the pregnancy. She stated that her relations with the accused continued till 2013. She stated that whenever she reminded him to marry her publicly, he avoided on one pretext or the other and said that he needs 2 - 3 years time to marry her. Having got fed up from his excuses, she severed her relations from him and changed her mobile number but he got to know her new number FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 6/29 and called her. They again started talking. She stated that in May 2013, he forced her to make physical relation with him.
She stated that in October 2013, she asked him to finally decide about their relations. He then forced her to go with him to his room at Shahin Bagh saying that he would make her talk with his family members but he did not. He rather established physical relation with her forcibly. She slapped him. He also slapped her and said "yehi jawab hai". When she told him that she would make complaint, he apologized and requested her not to make complaint.
She stated that on 12.12.2013, she was surfing on the facebook. She came in contact with Sayeed and chatted with him. During that course, she came to know that the accused was already married, he married on 19.12.2010 and has a son. When she confronted it with the accused, he told her that it is false. She then called the accused and Sayeed and put them on conference. There also he denied about his marriage. Sayeed then asked him not to tell lie. Next time when she called him, he admitted his marriage. When she told him that he has cheated her, he asked her to suggest some solution of this problem and told her that he married with some other girl under the pressure of his family but he still loves her. He told her that he would leave his wife since he is not happy with FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 7/29 her.
She stated that on 05.01.2014, she went to his house at Shahin Bagh to know about the solution where an altercation took place. She called the maternal uncle of the accused Servat Ali. He talked to the accused but no solution could be worked out. They then assembled in a park at Nehru Place where he again had altercation with her and refused to marry her. In the evening, she narrated the incident to her family members and on 06.01.2013, she contacted a lawyer and got her complaint prepared. She made the complaint Ex.PW1/A on 07.01.2014. She proved her MLC Ex.PW1/B and stated that she had given brief history of incident to the doctor. She also proved her statement u/s 164 Cr.P.C. Ex.PW1/C. She stated that when her statement was being recorded, the Magistrate passed some remarks in front of the IO and Purshottam as a result she became nervous and perplexed and could not give the statement in detail. She then moved an application Ex.PW1/CC for recording her statement which was dismissed. She stated that she also handed over a CD Ex.P1 containing the conversation between her, accused and Purshottam for the period from 12.12.2013 to 25.12.2013 which she had recorded on her mobile. She stated that she got the CD prepared from the office of her tenant. She stated that she got the transcript of the conversation running into 71 pages Ex.PW1/D and FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 8/29 handed over to the police. She stated that in November 2013, accused called her at Lajpat Nagar. At about 8:30 p.m., she with Purshottam went there where the accused again told Purshottam that he is unmarried and would marry her.
On being crossexamined, she stated that she is Graduate from Delhi. She did her graduation in 2004. She used to teach. She stated that she knew the accused since 2006 but they came close in 2008. She stated that the accused had established physical relation with her in 2008 against her wishes in his house. She had consented for relations only after the accused put vermilion on her parting. She admitted that the accused established physical relation with her only after he put vermilion on her parting. She admitted that she did not make complaint when he attempted to make relation with her. She stated that she accepted the accused as her husband when he put vermilion on her parting which he did number of times. She stated that she did not read her statement u/s 164 Cr.P.C. before she signed and she read it when IO gave her the copy. She denied that she had stated in her statement Ex.PW1/C that she did not marry the accused since her sister was to be married and her parents were not financially secured. She denied that she never became pregnant nor her pregnancy was terminated. She, however, admitted that she knew that putting vermilion FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 9/29 does not amount to marriage. She denied that she knew about the marriage of the accused since the day she had met him. She denied that her relations were consensual and the accused never promised to marry her nor put vermilion on her parting. She, however, admitted that the accused after putting vermilion established physical relations with her with her consent. She stated that she did not tell her family members about the accused putting vermilion on her parting. She stated that she did not have problem to marry with the accused who is Muslim. She would have convinced her parents for their marriage even if the accused would not change his religion. She stated that the moment the accused put vermilion on her parting she accepted him her husband, however, she does not have any photo in this regard. She stated that she used to financially help the accused. She stated that she used to run a company and do the business of insurance and holiday packages. She denied that she had affair with Lalit and Samir. She, however, admitted that Lalit wanted to marry her but she refused. She stated that he never went alone for a trip with Lalit. Although, he had proposed her in 2010. She denied that she had affair with Lalit. She denied that no conversation took place between her and the accused as Ex.PW1/D and their physical relations were consensual or she was aware that the accused married in 2010. She denied that nothing of this FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 10/29 sort happened and everything was consensual and with her knowledge.
PW2 Ct Nirmala Kumari took the prosecutrix to AIIMS and got her medically examined.
PW3 HC Anil Kaushik was present when the accused was arrested on the identification of the prosecutrix. He stated that one photograph of the prosecutrix was recovered from the purse of the accused amongst other articles.
PW4 HC Ram Sanehi proved the recording of the FIR Ex. PW 4/A. PW5 Dr Piyush Sharma did the medical examination of the accused vide MLC Ex. PW 5/A. He found him capable of performing sexual intercourse under normal circumstances.
PW6 SI Shanti was the investigating officer of the case. She deposed on the lines of the investigation. She proved the arrest memo and personal search memo of the accused Ex. PW3/A and Ex.PW3/B. She stated that on 10.01.2014, she recorded the statement of Purshottam who knew about the relations between the prosecutrix and the accused. She stated that she was not in the chamber of the Magistrate when the statement of the prosecutrix u/s 164 Cr.P.C. was being recorded. She stated that the Magistrate did not pass any remark against the prosecutrix in her presence.
FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 11/29 PW7 Dr Venus Dalal proved the MLC of the prosecutrix Ex. PW1/B and casualty card Ex. PW7/A prepared by Dr. Monia Gupta. He also proved the brief history of incident recorded on the MLC on the narration of the prosecutrix. PW8 HC Satbir took the accused to the hospital for his medical examination. He collected his exhibits and handed over to the IO.
PW9 Purshottam was the friend of the prosecutrix. He stated that he knows the prosecutrix since 2011. They were working in the same office. He had met the accused through the prosecutrix. He and company staff knew that prosecutrix was engaged with the accused and both were going to marry. He stated that the accused used to come in their office. He had also met him 2 - 3 times. He stated that once he asked the prosecutrix why they were not marrying, she then replied that the accused has told her that his financial condition is not good. He stated that in October / November 2013, he met them at Lajpat Nagar and asked the accused to marry the prosecutrix. The accused swore in the name of Quran that he is in Delhi for the prosecutrix only and he will marry her. He stated that in December 2013, the prosecutrix came to know from Sayeed that the accused is already married having a son. When the prosecutrix confronted it with the accused, he refused and told her that he is unmarried. He stated that on 4th / 5th January, the prosecutrix told her that she had FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 12/29 gone to the house of the accused where he quarreled and slapped her. They then fixed the meeting with Sarvat and accused at Nehru Place where also he did manhandling and told them that he is already married.
On being crossexamined, he admitted that he was Manager in the company of which the prosecutrix was the Director. He stated that he came to know of their relations in 2011 only. The prosecutrix had told her that she and the accused had physical relations. He was confronted with some of the facts as to the accused swearing in the name of Quran and the incident of 4th and 5th January 2014 where the said facts were not recorded in his statement Ex.PW9/DA recorded during the investigation. PW10 Sayeed Zama stated that he and the prosecutrix used to work in an academy at Pushp Vihar in 20022003. He and the accused Firoz had worked in Fedex together and were friends. The prosecutrix wanted a computer for her nephew. He got her talked with the accused. The accused gave the number of someone and asked her to contact at Nehru Place. The prosecutrix purchased the computer but it started giving trouble. She wanted to get it replaced, which the accused did. He stated that they became friends and started loving. After two years, he left Fedex and joined another company. In 2009, he started his own business and left Delhi.
He stated that when he was sitting in the office, the FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 13/29 prosecutrix contacted him on his facebook. She asked him if the accused has married. He replied in affirmative and asked why she was inquiring. She then asked if the accused has a child. He told her that he does not know. She told him that the accused has cheated her. He then told her that she knew that the accused has married and now what was the problem. His wife then took the phone and asked him not to interfere in their affairs. PW11 Ms Monika Saroha, Ld. MM recorded the statement of the prosecutrix u/s 164 CrPC Ex. PW1/C. She stated that she did not pass any remark on the prosecutrix when she was produced before her by the IO. She stated that the prosecutrix had come with the IO and no person by the name of Purshottam was with her. She stated that she did not appear to be perplexed. STATEMENT OF ACCUSED U/S 313 CR.P.C. :
5. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He admitted that PW10 had introduced the prosecutrix to him. He had helped the prosecutrix to purchase a computer from Nehru Place in 2006. He denied all the incriminating evidence against him and stated that they were just friends. There were no talks of marriage.
He never promised to marry her nor at any time, he put vermilion on her parting. The prosecutrix never got pregnant from him. He stated that the prosecutrix very well knew that he is married having daughter. There were no talks of changing of religion. He stated that the prosecutrix wanted to marry him despite the fact that he was already married. She pressurized FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 14/29 him to divorce his wife which he refused. He stated that the prosecutrix had taken loan from him to start a business. When he asked her to return the loan, she made false allegations against him. He stated that he did not have any photograph of the prosecutrix in his purse nor any conversation took place between them as alleged in the CD Ex.P1 or the transcript Ex.PW1/D. DEFENCE EVIDENCE :
6. In defence, the accused did not examine any witness. FINDINGS:
7. I have heard the arguments advanced by Ld. Counsel Sh. M N Siddiqui for the accused and Sh. Mohd. Iqrar, Ld. Addl. PP for the State.
8. Ld. Counsel for the accused vehemently argued that the prosecutrix was 32 years of age. She was Director in a company. The accused had met her through his friend. She wanted to purchase a computer. He had helped her to purchase the same. They were just friends. He was already married, which fact the prosecutrix knew during their friendship. Ld. Counsel stated that the prosecutrix wanted to marry with the accused but the accused refused to give divorce to his wife and marry her. This made the prosecutrix annoyed and she made the false complaint against the accused. Ld. Counsel stated that the accused never promised to marry her and their physical relations were out of love and affection and not under misconception of fact.
In support of his contentions, Ld. Counsel referred the case of Uday Vs. State of Karnataka 2003 AIR (SC) 1639, Alok Kumar Vs. State & Anr. 2010 (4) JCC 2385, Rohit Chauhan Vs. State Bail appln 311/2013 decided on 22.05.2013 and Jagdish Nautiyal Vs. State 2013 [1] JCC 311.
9. Ld. Addl. PP on the contrary argued that the prosecutrix had met the accused through their common friend / colleague / PW10. They became FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 15/29 friends. The accused promised to marry her. They started meeting after office hours almost daily. He had also introduced the prosecutrix to his colleagues as his would be wife. He swore in the name of Quran and assured her that he would marry her. He put vermilion on her parting. He made physical relations with her giving her false assurance of marriage. The prosecutrix became pregnant from the relations made by him but he convinced her that it would not be right to carry pregnancy. She took the medicines and suffered miscarriage. In December 2013, she came to know that the accused was already married having a child. She confronted it with the accused but the accused told her lie that he is not married. Ld. Addl. PP stated that the accused elicited the consent of the prosecutrix for the physical relations giving her false promise of marriage though he was already married. When the prosecutrix again confronted it, an altercation resulted and he refused to marry her. Ld. Addl. PP stated that intention of the accused since inception was dishonest. He married in 2010 but he represented to the prosecutrix that he is unmarried and he would marry her.
10. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and have gone through the statements of the witnesses and the documents on record and also the case laws referred during the course of arguments.
11. The accused has been charged with the offence of committing sexual intercourse with the prosecutrix giving her false promise of marriage. As such, before adverting to the merits of the case, a reproduction of the definition of the offence would be necessary and relevant.
12. Section 375 IPC defines rape. It reads as:
"Rape A man is said to commit "rape" who, FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 16/29 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..........
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.......
13. The basic question now is whether the prosecutrix ever consented for the sexual intercourse because of her love for the accused or her consent was obtained under the misconception of fact.
14. 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.....
15. 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 FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 17/29 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 understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.
16. 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 act, but after having freely exercised a choice between resistance and assent.
(3) Submission of her body under the influence of 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 a 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 FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 18/29 exercise of a free and untrammeled right to forbid or withhold 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.
17. The expression 'under a misconception of fact' is enough to include a case where the misrepresentation, made by the accused, leads to a misconception of fact in the mind of prosecutrix, who, believing the misrepresentation made to her and presuming, it to be true and correct, forms a misconception of fact that the accused was definitely going to marry her and acting thereupon, she consents to have sexual intercourse with him.
18. In Sujit Ranjan Vs. State 2011 Law Suit (Del) 601, it was held:
"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 FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 19/29 uncertain date may be on account of variety of reasons and could not always amount to "misconception of fact" right from the inception."
19. A bare perusal of the testimony of the prosecutrix / PW1 would show that she was Graduate from Delhi. She had been working with DMC Institute. She had met the accused in 2006 through her colleague PW10. She wanted to purchase a computer. The accused being in IT Department helped her to purchase the computer. They became friends and started talking. She was Hindu and the accused was Muslim. They started meeting after office hours almost daily and it continued for two years.
20. PW1 has stated that in 2008 at about 12 noon, the accused called her in his room at Madangir and tried to establish physical relation with her but she refused and slapped him. She then severed her relations from him. After 3 - 4 months, he called her again at Nehru Place and swore in the name of Quran that he would not indulge in physical relation with her without her consent. She then resumed relations with him. She stated that after 2 3 months, he again called her in his room and tried to establish physical relation with her. When she refused, he put vermilion on her parting and said "le me tera pati ban gaya. Ab mujhe mera haq chahiye". She then accepted the accused as her husband. She stated that after 2 - 3 months, he took her in Kalkaji mandir and put vermilion on her parting and said that he has married her. She, however, used to argue with him that it was not the proper marriage. He then called her in a park at Nehru Place and told her that he would do court marriage with her but she refused and said that she would marry him in the presence of their family members. Question arises when she knew that putting vermilion would not amount to marriage, how FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 20/29 she accepted the accused as her husband and agreed to have physical relation with him. Further what was the occasion for the accused to put vermilion again on her parting at Kalkaji mandir. I failed to understand why she not insisted for the marriage before making physical relation with him when she fully knew that they belong to different caste and religion. Her testimony shows that the accused after putting vermilion established physical relations with her with her consent.
21. PW1 has stated that in 2009 and 2011, she became pregnant from the relations made by the accused. The accused brought medicines for her and got her pregnancy terminated. First time, he told her that it would not be right time to carry the pregnancy and on second time, he mixed the medicine with other medicines and she aborted. It is pertinent to mention that in the complaint Ex.PW1/A, she is silent about her pergnancy and abortion. Her testimony reveals that she had consulted a lawyer before making the complaint Ex.PW1/A. I am unable to understand what had prevented the prosecutrix from stating these facts in her complaint Ex.PW1/A. Further, she did not file any document either of her pregnancy or her abortion to substantiate this fact.
22. PW1 has stated that their relations continued till 2013. The accused used to call her in his house and make physical relations with her. Whenever she reminded him to marry her publicly, he avoided on one pretext or the other and sought time. Having been fed up from his excuses, she severed her relations and stopped talking. It is significant to note that they became friends in 2006. In 2008, he proposed her for marriage. Their first physical relation took place in 2008 and their relations continued till 2013. She made the complaint in 2014. It is not the case that she was illiterate. She was an FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 21/29 educated lady and matured enough to understand the implication of the act which was happening between the two. There is nothing in her evidence to demonstrate that she was incapable of understanding the nature and implications of the act which she consented to. She even went for the physical relations with the accused after her abortion.
23. 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."
24. In the case of Uday vs. State of Karnataka, 2003 (1) JCC 506, the prosecutrix and the accused were deeply in love. They used to meet often. She went out with the accused to a lonely place at night. The accused had also made promise on more than one occasion to marry her. It was held that in such circumstances, the promise loses all significance particularly when they are overcome with emotions and passions and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well and the prosecutrix had willingly consented to having sexual intercourse with the accused with whom she was deeply in love but not because that he promised to marry but also she desired it. In these circumstances, it would be very difficult to impute to the accused knowledge that the prosecutrix had consented in consequence of a misconception of a fact arising from his promise. The observations made in FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 22/29 the case supra have relevance in this case. It was held that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activities until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact. It was held "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."
25. In the case of Mohd. Iqbal Vs. State, Bail application no. 2145 of 2009 it was observed:
"There is an old Jewish saying "if you are close when you should be distant, you will be distant when you should be close". It is for both man and woman to restrain themselves and not to indulge in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral and ethical, both, on the part of men not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But ultimately, it is woman herself who is the protector of her own body. Promise to marry may or may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues."
26. The prosecutrix in her complaint Ex.PW1/A has alleged that for the last 4 - 5 months, he started avoiding her calls and did not let her come at his residence. He also told her not to call him. Once, she went to his house, he met her at downstairs and hurled filthy abuses and threatened to FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 23/29 assault her. She narrated it to Sayeed who, to her utter shock told her that the accused has recently married and has a child. She did not believe him. She tried to call the accused but he did not answer her calls. On 05.01.2014, he went to his house. He instead denying anything, admitted that he is married and has a child. He also told her that he never intended to marry her and was just using her. He threatened to kill her. In her testimony, she has stated that on 12.12.2013, she was surfing on the facebook, she came in contact with Sayeed. During that course, she came to know that accused was already married and he married on 19.12.2010. When she confronted it with the accused, he told her that it is false. He took both of them on conference where also he denied his marriage. Next time, when she called him, he admitted his marriage. When she told the accused that he has cheated her, he asked her to suggest some solution to come out of the problem telling her that he married with that girl under the pressure of his family member but he still loves her and he is not happy with his wife. On 05.01.2014, they gathered to find out some solution but it resulted into altercation and he refused to marry her. She then narrated the incident to her family members and made the complaint on 06.01.2014. PW10 has stated that when he was sitting in the office, the prosecutrix contacted him on his facebook and asked him if the accused has married which he replied in affirmative. When he asked her why she was inquiring, she again asked him if the accused has child. He then said she knew that accused is married, then what is the problem now.
27. In the instant case, after registration of the case, the prosecutrix was produced before the Magistrate and her statement u/s 164 Cr.P.C. Ex.PW1/C was recorded. In that statement, she had stated that she and the FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 24/29 accused became friends in 2007. She fell in love with him. She used to go with him in his room where they had consensual physical relations. She became pregnant twice but both the times, she took tablet and aborted. She did not marry the accused since her sister was to be married and her parents were not financially secured. Although the prosecutrix in her testimony has stated that the Magistrate before recording her statement had passed some remarks as a result she became nervous and perplexed and could not give the statement in detail but PW11, who had recorded her statement has stated that she did not pass any remark nor any person by the name of Purshottam had come with her nor she appeared to be perplexed. PW6 has also stated that PW11 did not pass any remark against the prosecutrix. It is pertinent to mention that the prosecution had moved an application for rerecording of her statement u/s 164 Cr.P.C., which application was dismissed. Neither the prosecutrix nor the prosecution went in revision against that order.
28. Now, coming to the authenticity of CD Ex.P1 and its transcript Ex.PW1/D containing the conversation between her, accused and Purshottam which the prosecutrix has claimed to have recorded on her mobile phone between the period from 12.12.2013 to 25.12.2013. In the instant case, the prosecutrix neither gave her mobile phone nor the certificate u/s 65B of the Evidence Act. I agree with the contentions of Ld. Defence Counsel that in the absence of certificate u/s 65B of the Indian Evidence Act or production of the mobile phone, the CD or its transcript are inadmissible in evidence. For electronic evidence to be seen or read or heard as primary evidence by the court, the law requires that the original device in which the electronic evidence is stored/transmitted is placed before the court. The Supreme Court in Anvar P.V v. Bashir P.K (2014) 10 FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 25/29 SCC 473 holds explicitly that: "Para 24 The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied.
CONCLUSION
29. Facts and circumstances of the present case show that both prosecutrix and the accused were well educated. They were friends. The consent given by the prosecutrix for the physical relations was not under misconception of fact rather their relations were consensual. Her consent for the physical relationship was an act of her conscious decision. It was held in the case of Rohit Tiwari Crl. Apll no. 928/2015 dt. 24.05.2016 that if a fully grown up lady consents to the act of sexual intercourse on a promise to marry and continue to indulge in such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of facts. The same observations were reiterated in the case of Jayanti Rani vs. State of W.B. 1984 Cr LJ 1535.
FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 26/29
30. In the case of Kaini Rajan Vs. State of Kerala (2013) 9 SCC 113, it was held that consent is stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. A misrepresentation as regards the intention of the person seeking consent could give rise to the misconception of facts but a promise to marry without anything more will not give rise to misconception of facts within the meaning of Section 90 IPC.
31. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication".
32. 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.
FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 27/29 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 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.
33. 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"
34. 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 Firoz Bahadur of the offence punishable under section 417/376. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the FIR No. : 20/14 PS : Jamia Nagar State Vs. Firoz Bahadur Page No. 28/29 sum of Rs.50,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.
35. File be consigned to record room.
Announced in the open
court today i.e 29.08.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 20/14
PS : Jamia Nagar
State Vs. Firoz Bahadur Page No. 29/29