Delhi District Court
Sc No: 402/17 State vs . Sagar Shokeen on 27 April, 2018
SC No: 402/17 State Vs. Sagar Shokeen
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-FAST TRACK
SOUTH-WEST, DWARKA, NEW DELHI
In the matter of:-
S. C. No. 402/17
FIR No. 413/16
Police Station Chhawla
Under Section 376/328/307/506 IPC
State
Versus
Sagar Shokeen
S/o Sh. Rajesh Shokeen
R/o H. No. 365, Mohla Kaba,
Village Chhawla, New Delhi
.....Accused
Date of institution 07.07.2017
Judgment reserved on 16.04.2018
Judgment Pronounced on 27.04.2018
Decision Acquitted
Judgment Page No 1 of 17
SC No: 402/17 State Vs. Sagar Shokeen
JUDGMENT
1. Accused Sagar Shokeen is facing trial on the allegations of administering intoxicating substance on prosecutrix with intent to rape her, committing repeated rape on her, threatening and attempting to murder her.
2. FIR in question was registered on complaint of prosecutrix dated 08.11.2016 alleging that she married Ashish Tokas but with him divorce proceedings are pending. Prosecutrix alleged that in February, 2016 she joined a Gym where she met accused who was owner of Gym. Soon they became friends and accused promised to marry her. On 26 th June 2016 accused made prosecutrix to drink alcohol in a cold drink and established physical relations with her in intoxicating state and thereafter promised to marry her. Prosecutrix started to reside with accused in live-in relationship from June 2016 and as a consequence of her physical relations with accused, prosecutrix became pregnant. On 18.08.2016, accused gave a medicine to prosecutrix after which Judgment Page No 2 of 17 SC No: 402/17 State Vs. Sagar Shokeen she aborted. Till October 2016, she remained in live-in relationship with accused and except for Sundays accused used to establish physical relations with her. Prosecutrix alleged that she also gave Rs. 3.5 lacs and a laptop to accused. On 22.10.2016, accused took prosecutrix to her house but their his parents refused to marry accused with her and abused her. Accused brought prosecutrix to a flat in Pochanpur and brought medicines by saying that they both would commit suicide. Accused administered tablets on her and thereafter by making an excuse went outside the flat. Then she called her family members who took prosecutrix to hospital and her life was saved.
On 28.10.2016 accused and his family members came to PS and a written settlement reached between them, copy of the settlement was kept in the police station. Prosecutrix alleged that accused and his family members are threatening to kill her and stated that accused has cheated, blackmailed to viral her MMS and raped her and as such an action be taken against him.
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3. Prosecutrix was counseled and was medically examined. Her statement was got recorded U/s 164 Cr.P.C. Accused joined the investigation after obtaining the anticipatory bail. He was charge-sheeted. Charge for offence punishable U/s 376 (2)(n)/328/506 (II)/ 307 IPC was framed against accused. Accused pleaded not guilty and claimed trial.
4. Prosecution examined 3 witnesses.
5. PW1 prosecutrix supported the prosecution case and deposed on the lines of her complaint. She proved her complaint Ex. PW1/A, her medical examination vide MLC Ex. PW/B and her statement recorded u/s 164 Cr. P.C. as Ex. PW1/C.
6. PW2 Gyanender deposed that prosecutrix joined his Gym in October 2015 for one month and then discontinued. He further testified that at that time, accused was employed in the gym as a trainer.
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7. PW3 WSI Asha Rani Investigating Officer deposed that on the basis of complaint of prosecutrix, she prepared rukka. She got prosecutrix medically examined and got recorded statement of prosecutrix u/s 164 Cr. P.C. IO arrested accused. She seized mobile phone of accused vide seizure memo Ex. PW3/E and sent it to FSL for forensic examination. PW3 collected the FSL result and filed it on record as Ex. F-1. She also proved the pen drive Ex. P-1 in which the data extracted from mobile phone of accused was restored.
8. Accused gave a statement admitting FIR in question, certificate U/s 65-B Indian Evidence Act, his medical examination and of prosecutrix. Accused admitted statement of prosecutrix recorded U/s 164 Cr.P.C as well. In view of his statement, relevant witnesses to prove the aforesaid documents were dropped from array of witnesses.
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9. Statement of accused persons were recorded U/s 313 Cr.P.C. wherein he stated that prosecutrix was already married when she met him. He never established physical relations with her against her consent. His relationship with prosecutrix was consensual and he never promised to marry her. He has been implicated in this case to extort money by blackmailing him and further in order to disrepute him in society.
10. It is contended on behalf of accused that testimony of prosecutrix indicates that at no point of time accused established physical relations with her on false pretext of marrying her. It is argued that prosecutrix herself was a married lady and she consented for live-in relationship with accused and as such allegations against accused are false and not proved.
11. On the other hand Ld Addl. PP submits that prosecutrix in all her statements categorically stated that accused committed rape upon her. It is argued that no material Judgment Page No 6 of 17 SC No: 402/17 State Vs. Sagar Shokeen contradiction has come in testimony of prosecutrix and as such case against accused persons stands proved beyond any reasonable doubt.
12. I have given thoughtful consideration to arguments advanced at bar and perused the entire material on record.
13. Versions of prosecutrix: Loose English translation of statement of prosecutrix Ex. PW1/C recorded u/s 164 Cr. P.C. reads as under:-
" My marriage took place in 2012 and I have a four year old son. A divorce & dowry case is going on with my husband. After 3 months of marriage, I came to my parental home and my delivery also took place there. Since July 2012 I am at my parental home. My child was having problem in his leg and he was got treated by my parents. I was living comfortably in my parental home. In August 2015 I along with my neighbor Aunt went to a Gym. There I met one person namely Sagar Shokeen. He introduced himself as gym owner. Initially we had only hi-hello. Then we started talking to each other and he started calling. We became good friends and started meeting each other.
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On 26.06.2016 he took me in a flat and stated that his friends would be there but there was nobody. There he administered a cold drink after which I fell unconscious. On that day, in state of unconsciousness he committed sex with me and prepared my MMS. After two days he showed me that MMS and blackmailed me for sex. When I refused, he stated that if I will not abide then he would upload MMS on Internet.
Daily he used to say me that he would marry me and would also look after my child and forcibly used to have sex with me. This continued for 3 months. Once I got pregnant. I aborted the child by a medicine given by him.
On 22.10.2016 he stated that he would not delete MMS at any cost nor he would marry me. He stated that his family members are also refusing for marriage and stated that we would die together. He gave me bottle of 100 tablets of Epton. I consumed all of them. He did not eat any and left me alone in the flat. I called my family in bad condition. In the meantime neighbors brought me to Hospital. I got admitted in DDU Hospital but I was not ready for treatment. In the midnight my family members got me admitted with Divya Prabha and there I got stable.
On 28.10.2016 I got discharged from the Hospital. On 29.10.2016 mother of Sagar Shokeen called me in police station and stated that first to withdraw my complaint then they will talk to me. I told them that I have not made any complaint against Sagar. I only stated to get my MMS deleted from Sagar. Sagar stated that Judgment Page No 8 of 17 SC No: 402/17 State Vs. Sagar Shokeen he has broke the phone. I believe that Sagar did not break his phone and recording is still in his laptop.
Then I made complaint against him. Police tried to apprehend him but he escaped. On the same day due to intervention of his family members, we compromised the dispute that I will withdraw my complaint and that he will delete MMS. After reaching compromise on 29.10.2016, he continuously threatening me that he is not afraid of anyone and still he is having MMS which he will upload on Internet."
14. First allegation appearing against accused in the testimony of prosecutrix is that he gave a cold drink mixed with something intoxicating to prosecutrix. After drinking it, prosecutrix fell unconscious for about 2-3 hours and then accused established physical relations with her. After establishing physical relations accused told prosecutrix not to worry and soon he would marry her.
15. Testimony of prosecutrix shows that accused established physical relations with her deceitfully after intoxicating her and before doing so, he had not extended any Judgment Page No 9 of 17 SC No: 402/17 State Vs. Sagar Shokeen promise to marry her. This very act of accused would have made prosecutrix aware about the intentions of accused to exploit her sexually. Even then, prosecutrix went ahead in relationship and believed the promise of accused to marry her.
16. Prosecutrix was herself a married lady with mature understanding of life and its intricacies. It is hard to believe that she entered in a relationship with a person who deceitfully established physical relations with her in her unconscious state. In such a scenario, it was expected from prosecutrix to have lodged complaint against accused but she did not do so rather she continued her relationship with accused. These facts indicate that prosecutrix did not object to the act of accused and went ahead in the relationship.
17. Even otherwise also, question of entering into a physical relationship on promise to marry does not arise at all in Judgment Page No 10 of 17 SC No: 402/17 State Vs. Sagar Shokeen view of the fact that prosecutrix was herself a married lady and not yet divorced from her husband. During cross-examination prosecutrix in this regard deposed as under:
"I did not file any divorce petition against my husband. After my friendship with accused, I thought of getting divorce from my husband. My health did not allow me to file a divorce petition. I am aware that a Hindu woman cannot marry during subsistence of her first marriage."
18. Even after entering into relationship with accused prosecutrix admits that she did not file a divorce petition against her husband. Prosecutrix was fully aware of the fact that she cannot marry accused during subsistence of her first marriage, in such a case, prosecutrix was well aware about impossibility of her contracting marriage with accused. Thus, case of prosecution that accused established physical relations with prosecutrix on false promise to marry her stands belied by the testimony of prosecutrix herself.
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19. There is another aspect of the matter, prosecutrix in her cross-examination admitted to have executed a live-in relationship agreement Ex. PW1/D-1. Though prosecutrix deposed that while signing it, she was not conscious but in her complaint Ex. PW1/A prosecutrix herself stated that till October 2016, she was in live-in relationship with accused and during this time except for Sundays accused used to establish physical relations with her. In this agreement it is mentioned that both the parties are in this relationship out of their sweet will and shall live together in a live-in relationship at a mutually agreed place. In light of this agreement, it can be safely concluded that prosecutrix was not under any kind of threat or coercion of accused rather she consented for physical relations with accused out of her own will.
20. Another set of allegations appearing against accused is that accused also filmed prosecutrix in a sexual act in which only she was visible and told prosecutrix that if she will not abide by his dictates then accused would viral that video. Allegations in Judgment Page No 12 of 17 SC No: 402/17 State Vs. Sagar Shokeen respect of making a video by accused of the sexual act of prosecutrix is not appearing in the complaint Ex. PW1/A and for the first time, prosecutrix alleged about filming of the act by accused in her statement U/s 164 Cr.P.C.
21. Prosecutrix has not explained that why on the first case, she allowed accused to film her. Prosecutrix also did not disclose the circumstances under which the said film was prepared by accused. Fact remains that no such photograph or video of prosecutrix has been unearthed during investigations of this case.
22. PW3 ASI Asha Rani during her cross-examination admitted that she did not find any obscene or nude photograph or video of prosecutrix from the data extracted from mobile phone of accused. Thus, prosecution has not been able to prove that accused filmed prosecutrix in sexual act or under threat of making video of prosecutrix viral used to call her and established physical relations with her.
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23. Prosecutrix in her complaint Ex. PW1/A alleged that on 22.10.2016, accused took her to Pochanpur flat where at about 8 pm, he brought some medicine and stated that if they can't live together, they can die together. Then first, accused made her to consume those pills and by making an excuse he went from there. In this regard, in her testimony prosecutrix deposed as under:
"... Accused then told me that if we cannot live together we can die together. Accused then brought some tablets. I took 100 tablets but accused did not take any tablet. After I consumed tablets by making an excuse of receiving a phone call went away from there and did not return..."
24. It is evident that in her testimony prosecutrix did not allege that accused made her to consume tablets rather prosecutrix admitted that she herself took 100 tablets, so it is not the case that the tablets were administered by accused upon prosecutrix. Nonetheless, MLC of prosecutrix Ex. PW3/D-1 is part of charge- sheet which mentions that prosecutrix was admitted with history of taking unknown substance unknowingly by husband at home.
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25. PW3 IO/ASI Asha Rani during course of her cross- examination admitted that prosecutrix did not cooperate with investigation in respect of her poisoning and on her MLC also, name of husband of prosecutrix is mentioned as Ashish and not that of accused. There is enough doubt as to whether prosecutrix consumed those tablets in presence of accused.
26. Main gist of prosecution case is that accused obtained consent of prosecutrix to establish physical relations with her on false promise to marry her. In Uday Vs State of Karnatka, 2003(4) SCC 46, Hon'ble Apex Court held as under:
In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception.
27. Statements of prosecutrix do indicate that she was fully aware of the moral quality of the act and the inherent risk Judgment Page No 15 of 17 SC No: 402/17 State Vs. Sagar Shokeen involved and that she considered the pros and cons of the act. The prospect of the marriage between prosecutrix and accused is not possible was known to her. Thus, evidence of prosecutrix reveals that she took a conscious decision after active application of mind to the things that were happening.
28. From above stated discussions it emerges that :
i) Prosecutrix is a married lady not yet divorced.
ii) There is no evidence that she entered into relationship with accused under misconception of any fact rather she was residing with accused in a live-in relationship.
iii) There is no evidence that accused prepared her video in a sexual act nor there is any evidence to indicate that accused blackmailed prosecutrix.
iv) Testimony of prosecutrix that accused established physical relations with her after intoxicating her is not worthy of credence as prosecutrix even after alleged act entered into relationship with accused and did not report the matter.
v) There is no evidence on record to establish that accused obtained consent of prosecutrix for physical relations with her deceitfully.
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vi) Prosecution has failed to proved that accused attempted to kill prosecutrix by making her to consume tablets.
29. Conclusion: In the light of above discussions, it is held that prosecution has failed to bring on record clear, cogent and consistent evidence against accused. Accordingly, he is acquitted. His surety is discharged. Bail bond stands canceled. Accused is directed to furnish a personal & surety bond in sum of Rs. 10,000/- under Section 437-A Cr.P.C which shall remain in force for period of six months.
File be consigned to record room after due compliance. Announced in the open court on 27th day of April, 2018.
Digitally signed
GAUTAM
by GAUTAM
MANAN
GAUTAM MANAN
MANAN Date:
2018.04.28
Addl. Sessions Judge (SFTC)
14:27:53 +0530 South-West, Dwarka Courts, Delhi
Judgment Page No 17 of 17