Delhi District Court
State vs . Mohd. Shahid Page No. 1/9 on 23 January, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R04472016
SC No. : 70/16 and 2557/16
FIR No. : 1470/15
U/s. : 417/376/313/506 IPC
PS : Jamia Nagar, New Delhi.
State (Govt. of NCT of Delhi)
................... Complainant
Versus
Mohd. Shahid
S/o Mohd. Ahmad
R/o C62/2, Abul Fazal Enclave,
PartII, Shaheen Bagh, Jamia Nagar,
New Delhi. .........................Accused
Date of Institution : 04.06.2016
Judgment reserved for orders on : 23.01.2017
Date of pronouncement : 23.01.2017
J U D G M E N T
Facts
1.Accused Mohd. Shahid has been sent to stand trial for the offence punishable u/s 376 IPC on the allegations that he after making friendship with the prosecutrix (name withheld to protect her identity) made physical relations with her for four years giving her false assurance of marriage and thereafter refused to marry her. He also threatened her to kill. On 11.10.2015, at about 8.30 p.m, he took her to a remote place near Jasola where he committed rape upon her. She became pregnant from the relations made by him but he caused her to go for miscarriage forcibly.
FIR No. : 1470/15 PS : Jamia Nagar State Vs. Mohd. Shahid Page No. 1/9
2. Briefly, the facts are that on 14.10.2015, the prosecutrix came at the police station Jamia Nagar and gave a complaint alleging therein that she had been working in a beauty parlor near Okhla. She came in contact with the accused who used to live in the same locality. They became friends. After sometime, he allured her saying that he loves her and wants to marry her. She trusted him but he took undue advantage of her innocence and started making physical relations with her on the pretext of marrying her. He sexually exploited her for four years. She became pregnant. When she informed him about her pregnancy and requested him to marry her, he pressurized her to abort and flatly refused to marry her. He also threatened to kill her. She made the complaint at the police station on 22.08.2014. Accused was called in the police station who with the intervention of the respectable persons compromised and gave an undertaking on 25.08.2014 to perform nikah with her upto 22.09.2014. Believing on him, she withdrew her complaint. He and his family members thereafter induced her to get her pregnancy terminated. She finding no other option had to terminate her pregnancy on 27.08.2014. She alleged that the accused did not perform nikah with her within the agreed time and avoided the issue of marriage. On 11.10.2015, at about 8.30 p.m, he took her in a remote place near Jasola and made forcible physical relations with her. On 13.10.2015 when she requested him to perform nikah with her, initially he avoided and then refused.
Investigation On this complaint, the case u/s 376 IPC was registered. The prosecutrix was got medically examined at AIIMS. Her hymen was FIR No. : 1470/15 PS : Jamia Nagar State Vs. Mohd. Shahid Page No. 2/9 not found to be intact. Her statement u/s 164 CrPC was got recorded. During hearing of anticipatory bail application, the prosecutrix submitted that due to anger she made the complaint however she has compromised with him. The accused was granted anticipatory bail. He was formally arrested. He was got medically examined for his potency. He was found capable of performing sexual intercourse under normal circumstances. After the investigation, the accused was chargesheeted under section 376 IPC.
3. After complying with the requirements contemplated under section 207 CrPC, the case was committed to this Court. Charge
4. Prima facie case was made out vide order dated 29.08.2016 and the charge was framed against the accused for the offences punishable under section 417/376, 376,313 and 506 IPC. He pleaded not guilty and claimed trial.
Prosecution Evidence
5. To substantiate its case, prosecution examined as many as four witnesses.
PW1 is the prosecutrix. She testified on oath that she knew the accused for 34 years. She had met the accused through a common friend. She had been working in a beauty parlor at Okhla. They became friends. She stated that they had consensual physical relations once or twice but the accused never promised to marry her. Someone informed her that the accused has relations with some other girl, she got FIR No. : 1470/15 PS : Jamia Nagar State Vs. Mohd. Shahid Page No. 3/9 enraged, tried to contact the accused but could not since his phone was switched off. She then contacted a lawyer and on his advice, she made the complaint Ex. PW 1/A even without reading the contents of the complaint prepared by her lawyer. She stated that during her medical examination, the doctor did not ask anything from her about the incident and she gave the statement Ex PW 1/C on the advise of the lawyer to the Magistrate. She stated that later she came to know that the accused was not in relationship with another girl and he was out of Delhi. She realized her mistake and attended the court hearing where she made the statement Ex. PW 1/D that she made the complaint in a fit of anger.
She was declared hostile by the prosecution but she denied that the accused established physical relations with her for four years giving her false assurance of marriage or that from the relations made by the accused, she became pregnant or the accused pressurized her to abort the pregnancy or refused to marry her or threatened to kill her. She denied that the accused gave an undertaking in the police station that he would perform nikah with her on 22.09.2014. She also denied that the accused and his family members induced her to abort her pregnancy saying that the pregnancy before marriage would spoil their reputation or that on 27.08.2014, she aborted. She FIR No. : 1470/15 PS : Jamia Nagar State Vs. Mohd. Shahid Page No. 4/9 admitted that accused did not marry her but she denied that on 11.10.2015, the accused committed rape upon her and threatened her.
PW 2 SI Shanti was the IO. She on receipt of complaint made endorsement Ex. PW 2/A and got the case registered vide FIR Ex. PW 2/B. She got the prosecutrix and the accused medically examined vide MLC Ex. PW 1/B and Ex. PW 2/E. She prepared the site plan Ex. PW 2/C and got recorded her statement u/s 164 CrPC Ex. PW 1/C. She stated that the prosecutrix had given her a copy of affidavit/undertaking mark X whereby the accused had undertaken to marry her. She however did not give its original nor she verified it during examination.
PW3 Ashfaq Hussain is the father of the prosecutrix. He stated that the prosecutrix had told him that the accused is her friend. A quarrel took place between the two and she made the complaint to the police. He denied that the prosecutrix was in relation with the accused for four years. He also denied that they had selected suitable match for the prosecutrix but she refused saying that she would marry with the accused only or that her daughter made the complaint when the accused refused to marry her. He was confronted with his statement Ex. PW 3/A recorded during the investigation but he denied having stated FIR No. : 1470/15 PS : Jamia Nagar State Vs. Mohd. Shahid Page No. 5/9 the facts recorded in the statement.
PW4 Javed is the neighbour of the prosecutrix. He stated that the police had made enquiry from him about the prosecutrix. Since he did not know anything, he did not tell anything to the police. He was also declared hostile by the prosecution. He denied that he used to visit the house of the prosecutrix and knew about her relations with the accused or that the accused had given in writing that he would marry the prosecutrix or that the accused thereafter refused to marry her.
Findings
6. The essence of rape is absence of consent. The consent means an intelligent and positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
7. A bare perusal of the testimony of the prosecutrix/PW1 would show that the prosecutrix and the accused knew each other for many years. They were friends. During their relations, they made physical relations and it were with the consent of the prosecutrix. When the prosecutrix came to know that the accused has relation with some other girl, she in a fit of anger made the complaint Ex. PW 1/A without knowing its consequences. Her testimony shows that their relations were consensual and the accused never promised to marry her. She even denied that from the relations made by the accused, FIR No. : 1470/15 PS : Jamia Nagar State Vs. Mohd. Shahid Page No. 6/9 she became pregnant or that the accused caused her miscarriage forcibly. She also denied that the accused threatened her to kill or that on 11.10.2015, the accused took her to a remote place near Jasola and committed rape upon her. She also denied that the accused had undertaken to perform nikah with her when she went to the police station on 22.08.2014.
8. Facts and circumstances also shows that the prosecutrix and accused were in livein relationship for four years but the livein relations were not on the promise of marriage but consensual. Her testimony shows that when the matter of bail of the accused was heard in the court, she appeared and gave statement Ex. PW 1/D that she made the complaint in a fit of anger. She has categorically stated that the accused never allured her nor gave her assurance of marriage and their physical relations were consensual. Testimony of the IO shows that the prosecutrix never gave the original of the undertaking Mark X nor she verified it during investigation. In the absence of its original, no reliance can be placed on the document Mark X. PW3 and PW4 did not say anything incriminating against the accused. PW Hashmi Malik used to work with the prosecutrix.
9. It was held in the case of Alok Kumar vs State & Anr. in Crl. M. C No. 299/2009, decided on 9 August, 2010 that:
''Livein relationship' is a walkin and walkout relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out FIR No. : 1470/15 PS : Jamia Nagar State Vs. Mohd. Shahid Page No. 7/9 at will at any time. Those, who do not want to enter into this kind of relationship of walkin and walkout, they enter into a relationship of marriage, where the bond between the parties has legal implications and obligations and cannot be broken by either party at will. Thus, people who chose to have 'livein relationship' cannot complain of infidelity or immorality as livein relationships are also known to have been between married man and unmarried woman or between a married woman and an unmarried man''.
10. It was held in the case of Rohit Tiwari Vs. State Crl 928/2015 dated 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. In the case of Uday v. State of Karnataka, AIR 2003 SC 1639, it was held where the prosecutrix had sufficient intelligence to understand the significance and moral quality of the act she was consenting to, it is difficult to impute that the prosecutrix had consented in consequence of a misconception of fact arising from his promise.
11. Looking into the testimony of the prosecutrix and above witnesses, I did not find any purpose to examine the other prosecution witnesses as their testimonies even if unrebutted could not become the basis of the conviction of the accused. Hence, Prosecution Evidence was closed. Since nothing incriminating evidence came on record against the accused, his statement u/s 313 Cr P C was dispensed with.
Conclusion
2. In the light of what has been stated above, I am of the FIR No. : 1470/15 PS : Jamia Nagar State Vs. Mohd. Shahid Page No. 8/9 view that the necessary ingredients of the offences with which the accused has been charged are not proved against the accused. I therefore, acquit the accused of the offences punishable under section 417/376, 376, 313 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 CrPC.
10. File be consigned to record room.
Announced in the open court ( Sanjiv Jain) on 23.01.2017 ASJSpl.FTC/ Saket Courts New Delhi.
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