Delhi District Court
State vs . Sujit Kumar on 9 May, 2016
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.32/15
FIR No.986/14
PS Vasant Kunj (N)
U/s 376 IPC
State Vs. Sujit Kumar
S/o Sh. Krishan Chaudhary
R/o Vill. Kurjee, Balupur,
PS Digha, Patna Bihar
Unique ID No. 02403R0042632015
Date of Institution 14.01.2015
Argument heard/order reserved 09.05.2016
Date of judgment 09.05.2016
Final Order Acquitted
JUDGMENT
1. Succinctly, the facts of the case unfolded from the charge sheet filed u/s 173 Cr.P.C, are that since 2008 prosecutrix knew accused and in the year 2011 they became friend. Slowly and gradually, their friendship grew deep and they started living in live-in relationship since March, 2012 till September, 2014. During their relationship, accused also got himself involved in relationship with other girl and had all kind of relationship with that girl and the prosecutrix as well but he kept prosecutrix in dark regarding his relationship with other girl. The prosecutrix was very serious about the accused and as such, she was almost living with accused as husband and wife. During that time, accused got fixed his marriage in Bihar on the pretext that the prosecutrix was never serious about him and this way he tried to leave her. Thereafter, prosecutrix filed an FIR against the accused. Then the parents of accused assured the prosecutrix stating that since they were loving with each other, therefore, they should get married. On assurance and considering the age of parents, and career of accused, prosecutrix made FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 1 of 14 compromise. Thereafter, accused started abusing the prosecutrix by raising finger on her character, slapped her in public and even tried to kill her. In the mean time, second affairs of the accused came into notice of prosecutrix and he was alleged to have confirmed about his second affair. Accused used to satisfy his mental, physical and other needs from the relationship. Accused was alleged to be very sexually active with her hand had sex with her even without her consent on false promise to marry her and cheated her twice. Accused was also alleged to have tortured the prosecutrix mentally, harassing her by calling her randi/prostitute, characterless and cheated her on several occasions. On 11.11.2014, the prosecutrix filed he present complaint Ex.PW3/A upon which present FIR was registered against the accused.
2. After completion of investigation, challan was filed before the learned LMM on 14.01.2015 and the case was committed on 30.01.2015. Thereafter, the case was assigned to this court on 17.08.2015.
3. On 30.04.2015, a charge was framed by the learned Predecessor Court against the accused for the offence punishable u/s 376(2)(n) IPC to which accused pleaded not guilty and claimed trial.
4. In order to substantiate the allegations, the prosecution examined Dr. Manisha Jhirwal who examined the prosecutrix as PW1, DO/HC Bijender Singh who registered present FIR as PW2, complainant/prosecutrix as PW3, W/Ct. Neeta who accompanied prosecutrix to Safdarjung Hospital for her medical examination as PW4, Ct. Kamal Kishore who joined the investigation and assisted IO in arresting accused as PW5, HC Ram Veer in whose presence prosecutrix gave written complaint to SHO in JNU Hostel on 11.11.2014 as PW6, Sh. Shyam Singh Palni, Security Inspector from JNU as PW7, and IO/WSI Kailash Kain as PW8.
FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 2 of 14
5. During evidence, accused admitted genuineness of preparation/recording of his MLC Ex.PX1, recording of statement of prosecutrix u/s 164 Cr.P.C Ex.PW3/B and CFSL report Ex.PX2. After completion of prosecution evidence, matter was posted for statement of accused.
6. Statement of accused was recorded u/s 313 Cr.P.C separately. Accused denied the material allegations stating that he is innocent and has been falsely implicated in this case. He never ever made any physical relationship with prosecutrix forcefully or without her consent. Accused further stated that his marriage was not fixed with other girl by his parents in Bihar nor he was having relationship with some other woman. He never offered any boy of his hotel to make physical relationship with prosecutrix. Accused further stated that he and his parents were ready to marry him with prosecutrix. He offered her for marriage but prosecutrix never intended to marry him and hence, she filed the present false case against him to get rid of him. Accused further stated that he never hacked e-mail of the prosecutrix. However, accused opted not to lead any defence evidence.
7. Final arguments heard on behalf of both the parties. I have also gone through the records.
8. It is argued on behalf of the State that the prosecutrix met accused in the year 2008 in the hostel of JNU where accused was also residing and preparing for Civil Services Exams. In the year 2011, they became friend. Slowly and gradually, they fell in love with each other in all forms since March, 2012 till September, 2014. Accused made physical relationship with her on several occasions giving assurance of marriage. During that time, accused got fixed his marriage in Bihar and tried to get rid of from her compelling prosecutrix to file the present complaint and these facts have been proved by prosecution witnesses beyond reasonable doubt. Therefore, accused may be held guilty for the alleged FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 3 of 14 offence.
9. On the other hand, learned defence counsel argued that accused has been falsely implicated in this case. Accused and prosecutrix was in love with each other but accused never made physical relationship with her forcibly at any point of time as alleged by the prosecutrix. He never offered any boy to make physical relationship with prosecutrix. He never denied to marry her nor his marriage was fixed with other girl in Bihar. His parents were ready to marry him with prosecutrix but prosecutrix never intended to marry with him and in order get rid of from him, she filed the present complaint against the accused. It is further argued that prosecutrix has improved her statement before the Court and testimony of prosecutrix is not reliable and trustworthy. On these grounds, it is prayed that accused may be acquitted of charge leveled against him.
10. Section 375 IPC defines rape with a woman against her will. Relevant provision of section 375 IPC are reproduced for ready reference as under:-
375. Rape. - A man is said to commit "rape" if he -
....
....
....
.....
under the circumstances falling under any of the following seven 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. - With her consent, when the man knows
that he is not her husband and that her
FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 4 of 14
consent is given because she believes
that he is another man to whom she is or
believes herself to be lawfully married.
Fifthly. - ........
Sixthly. - ........
Seventhly. - ........
Explanation 1. - ....
Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
11. The allegations against the accused are that between March, 2012 to 09.11.2014, at Room No.348 Extension, Brahmaputra Hostel, JNU, Delhi and other places, accused made physical relationship with prosecutrix several times on the pretext or upon the false promise of marriage and later refused to marry.
12. In the case of "Pradeep Kumar @ Pradeep Kumar Verma vs State of Bihar and Anr., Crl. Appeal No.1086 of 2007 decided on 17.08.2007, Hon'ble Supreme Court held as under:-
10.In most of the decisions in which the meaning of the expression consent under the IPC was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words and Phrases, Permanent Edn. And other legal dictionaries.
Stroud defines consent as an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. Jowitt, while employing the same language added the following:
Consent supposes three things a physical power, a mental FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 5 of 14 power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.
11.In words and Phrases, Permanent Edn., Vol.8-A, the following passages culled out from certain old decisions of the American courts are found:-
Adult female's understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent.
Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent.
13. In the case of State of H.P. Vs Mango Ram, MANU/SC/0527/2000 : 2000 Cri. LJ 4027, the Hon'ble Supreme Court observed as under:-
"Submission of the body under the fear or terror cannot be construed as a consented sexual act. 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. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances".
14. In the case of "Jayanti Rani Panda vs State of WB, MANU/WB/0299/1983", the Hon'ble Calcutta High Court has held as under:-
Para 7:
Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is ... Why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 6 of 14 that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore, it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged.
The discussion that follows the above passage is important and is extracted hereunder:-
The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry. We do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC can not be called in aid in such a case to pardon the acts of girl and fasten criminal liability on the other, unless the court can be assured that form the very inception the accused never really intended to marry her.
15. The Hon'ble Supreme Court further opined in the case reported as "Uday vs State of Karnataka MANU/SC/0162/2003 (2003 Cri LJ 1539)" 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 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 straitjacket formula for determining whether consent given by the prosecutrix to FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 7 of 14 sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the test laid down 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 weight 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".
16. Further, factum of presumption of no consent on behalf of prosecutrix u/s 114A of Evidence Act, 1872 was discussed in case where there was allegation of rape on account of false promise of marriage in case of Deepak Gulati vs State of Haryana (2013) 7 SCC 675) : AIR 2013 SC 2071 and it was observed as under:-
"15. Section 114-A of Indian Evidence Act, 1872 (hereinafter referred to as the 'Act 1872') provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved therein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of sections 417, 375 and 376, IPC have to be taken into consideration along with the provisions of Section 90 of the Act, 1872. Section 90 of the Act, 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375, IPC are concerned, that thus, such a physical relationship would tantamount to committing rape".
17. In the light of above discussed principles of law, I propose to examine the evidence available on record whether in present case the consent for physical relationship by the prosecutrix was given to the accused under misconception on the pretext of marriage or upon the false promise of marriage or that the accused had no intention to marry prosecutrix since beginning of relationship FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 8 of 14 and was giving false promise of marriage.
18. In her testimony before the Court PW3/prosecustrix reiterated the allegations in the complaint and deposed that in the year 2008 she met with the accused and thereafter they developed friendship from the year 2011. The purpose of their friendship was to study for Civil Services Exam. From March, 2012 onwards, they developed a love affair in all forms. In her statement before the Court, PW3 further deposed that initially everything was going fine but later on accused developed a conception that she is a prostitute. PW3 further deposed that accused got this idea after hacking her g-mail accounts where one of her friends had jokingly written this terms in Bengali. That friend was stated to be student of JNU earlier but now he had left JNU. After all these things, she realized that accused has been stalking her through her e-mails, phone and also personally. However, this plea of the prosecutrix does not inspire any confidence. Prosecutrix did not disclose date, time, place and in which manner, the accused was stalking. She also did not disclose as to when and how accused hacked her e-mail account and when she came to know that her e-mail account was hacked by the accused. Furthermore, in her cross examination, PW3 admitted that she knew Mr. Prasanjit Dass who was her classmate in Calcutta University and afterwards he was her classmate in JNU and he used to send the mail in abusive language which was also a reason of quarrel between her and accused. Admittedly, prosecutrix was in love with accused and was also residing in same room thus, the allegation of prosecutrix that accused used to stalk her or hacking her e-mail appears to be doubtful. Rather, it can be said that after seeing such abusive e-mail in g-mail account of prosecutrix, accused might have developed suspicion in her mind and due to said reason he might be monitoring the activity of the prosecutrix.
19. The prosecutrix/PW3 further deposed that in November, 2012, accused doubted her of liking somebody else and to prove this fact he called a boy at his room, FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 9 of 14 who was residing in his hostel and asked that boy to make physical relationship with her. That boy tried to make accused understand but accused abused her in front of that boy. The witness further stated that he had a conception that she was in need of money, hence she was involved in prostitution activities. PW3 further deposed that beside this, accused was in relationship with other woman since 2011 onwards; the woman was a resident of Netherlands and came to Delhi in the year 2011 on accused's invitation and they both had intimate physical relationship within a very short span of time. Accused had always told her that that lady was his friend but the reality was that he wanted a child from her but when accused realized that the said lady was a divorcee, he left her but kept connection with her. However, this plea of the prosecutrix does not inspire any confidence. From bare perusal of testimony of prosecutrix, it appears that accused as well as prosecutrix was having some doubt over each other and the allegation qua the relationship between accused and that lady is only hearsay evidence. In her cross examination on behalf of the accused, prosecutrix admitted that she did not mention this fact in her complaint Ex.PW3/A. PW3 also stated that she did not ever seen accused establishing physical relationship with that lady. PW3 further stated that that lady herself called her and told her about her relationship with accused which was disclosed to her after registration of her complaint/FIR. Thus, all these allegations became immaterial.
20. In her examination in chief before the Court, prosecutrix further deposed that accused made physical relationship with her number of occasions forcibly against her will on the pretext of marriage. No doubt, the statement of the prosecutrix alone is sufficient to convict the accused but also equally important fact is that as to what reliance, the court should place on statement of prosecutrix in peculiar facts and circumstances of the case. The plea of the prosecustrix that accused made physical relationship with her on several occasions against forcibly against her will, does not hold much water. On the one hand, she alleged that accused made physical relationship with her number FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 10 of 14 of times forcibly while on the other hand she clearly stated that when they developed a love affair in form of physical and mental terms, everything was mutual. Accused had not pressurized her. Furthermore, in her cross examination on behalf of accused, PW3/accused categorically testified that when the first physical relationship between her and accused was established on 17/18.03.2012, at that time there was no promise of marriage by the accused.
21. PW3/prosecutrix in her examination in chief further deposed that accused to forced her to make physical relationship with her despite her objections; he used to go to her hostel late in the night despite her hectic schedule and force her to follow him to his hostel. The witness further deposed that at one moment, when he had to urgently go out of campus but accused did not allow her and forced her to stay in his room for whole day and did not allow to go to her hostel; accused developed physical relationships at that time without her consent. However, these plea of the prosecutrix does not carry much weight. In the entire testimony of PW3/prosecutrix, it has nowhere come on record that the prosecutrix has ever raised any hue and cry and tried to resist the accused from committing rape upon her. In her cross-examination, PW3 further clearly stated that she never discussed about the exploitation by the accused with her friends. Prosecutrix did not disclose as to what prevented her from making complaint about the aforesaid incidents to her parents or anybody. PW3 simply stated that she never discusses her relationship with her friends. She had never discussed with her parents prior to registration of the present case that accused used to exploit her physically. PW3 further stated that in January, 2013 she visited Madurai along with accused to attend conference. Her father was also in the hotel where they were staying but she did not tell her father about her relationship with accused. All these facts, reflect how much she was concern for her marriage with the accused. In view of the aforesaid discussions, it appears that physical relationship, if any, was consensual between the parties.
FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 11 of 14
22. In the cross-examination, PW3/prosecutrix further deposed that she met accused in her hostel for the first time in the year 2008; she was introduced by one Ms. Jyoti who had filed a rape case against the accused somewhere between 2008-2011 with the university authority. The accused was already familiar with Ms. Jyoti and she was in company of Ms. Jyoti in her hostel. Jyoti never told about the reputation and character of accused nor about making complaint against the accused; accused told her after 6/7 months of relationship that said Jyoti had made a complaint of rape against her. The witness further deposed that she continued her relationship with accused even after coming to know the said facts. In such circumstances, it is very hard to say that accused made physical relationship with her forcibly.
23. From the statement of prosecutrix, it is clear that the prosecutrix never made any complaint regarding sexual assault by the accused to anybody prior to filing of the present complaint. It further appears that their relationship was going on smoothly and their relationship became bitter when accused in the month of August, 2014, when accused's mother got ill and he went to his native place; then he called the prosecutrix and informed her that his mother is pressurizing her to marry. So, he wanted to talk about their marriage before the Civil Services Exams which were just two weeks later. Upon which prosecutrix told that they can talk later after th exams but accused was not convinced. In her cross- examination, PW3 further stated that they belong to different case and never thought that being from different castes they cannot marry. She also stated that she never talked to her parents about her marriage with accused or any proposal for marriage with the accused. They used to quarrel since the beginning of their relationship in May, 2012 till of filing the present complaint.
24. During the course of arguments, learned defence counsel also argued that prosecutrix did not intend to marry accused and she filed the present complaint in order to get rid of from the accused and this fact is evident from the FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 12 of 14 documents Ex.D1 ie RTI application through which necessary information qua court marriage of accused and prosecutrix between the parties were sought, notice to SDM, Hauz Khas and copy of supporting affidavits duly signed by the parties. In her cross-examination, PW3 stated that she did not apply for court marriage in the office of SDM though she collected form from the office. However, this plea of the prosecutrix is falsified by the documents Ex.D1. The copy of application form send to the Marriage Officer/SDM clearly bears the name and signatures of both parties. Supporting affidavits also bear signature of both the parties. Prosecutrix also admitted that she had signed on affidavit as well as application form. She also stated that her affidavit was signed and attested at Tis Hazari Courts. She also stated that those documents were prepared with a view to perform marriage. She handed over her signed documents to one Mr. Rajesh, however, he did not come again and she did not know who had applied for court marriage before SDM. However, prosecutrix did not disclose as to why said Mr. Rajesh did not come again and as to what he had done with those documents, if he had not applied/submitted the said form before SDM on behalf of prosecutrix. All these facts creates doubt over the veracity of the testimony of the prosecutrix. The aforesaid discussed facts and circumstances also show that it can not be said that since beginning accused had no intention to marry prosecutrix.
25. In the present case, the prosecutrix is a major and full-grown up girl aged about 31 years, studying in P.H.D. From JNU, who could well understand what is wrong and right. It is clear from the above discussion that physical relationship was made by the accused with consent of prosecutrix as according to prosecutrix herself she lived with accused in live-in relationship. In her cross examination on behalf of the accused, she has clearly stated that despite quarrel since beginning of relationship, she established physical relationship repeatedly.
26. Thus, this court does not see any reason to assume that the physical FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 13 of 14 relationship made by the accused with prosecutrix was without her consent or that the consent of prosecutrix for physical relationship with accused was under
misconception of any fact or on account of false promise of marriage/on the pretext of marriage by the accused and attracts commission of offence u/s 376 (2)(n) of IPC. Thus, it is held that the prosecution has failed to prove its case u/s 376 (2)(n) of IPC against the accused beyond reasonable doubt. Accordingly, accused stands acquitted for the said offences. He is directed to furnish fresh bail bond in the sum of Rs.25,000/- in terms of section 437A Cr.P.C.
At this stage, fresh bail bonds furnished u/s 437A Cr.P.C and accepted for a period of six months. His earlier bail bonds stands cancelled. Surety stand discharged. Original documents, if any, be returned back to the rightful claimants after endorsement cancelled thereupon.
File be consigned to the Record Room after due completion.
(Devendra Kumar Sharma) ASJ/FTC/Court No.7/PHC Lockup Building/09.05.2016 Announced in open court on 09.05.2016 (Total number of page 14) (One spare copy attached) FIR No.986/14 PS Vasant Kunj (N) U/s 376 of IPC State vs Sujit KUmar 14 of 14