Delhi District Court
Complainant vs Dhirender Kumar on 16 February, 2015
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0032762014
SC No. : 42/14
FIR No. : 185/11
U/s. : 376/420 IPC
PS : Sarita Vihar
State (Govt. of NCT of Delhi)
................... Complainant
Versus
Dhirender Kumar
S/o Neksha Ram
R/o 121/54V, Gali No. 3,
Molarband Extn. Badarpur,
New Delhi
.........................Accused
Date of Institution : 07.03.2014
Judgment reserved for orders on : 16.02.2015
Date of pronouncement : 16.02.2015
J U D G M E N T
1. In brief the facts are that the prosecutrix after taking divorce from her husband had been staying with her parents,where Ct. Dhirender, the accused used to come being Beat constable of the area. She became friendly with him.
In February, 2010, the accused came at her house when she FIR No. : 185/11 U/s. 376/420 IPC PS : Sarita Vihar Page No. 1/9 was alone. He established physical relations with her without her consent and wishes. When her mother came, she told her the entire incident. She called Dhirender at her house and scolded him. On this accused told her that he is unmarried and he is ready to marry with the prosecutrix. On this assurance, the prosecutrix did not take any action. The accused then solemnized the marriage with the prosecutrix in a temple at Aali Village. He took her to Jaitpur. On 14.11.2010, she gave birth to a child namely Sonu. One day, when the accused was in the bathroom, the prosecutrix took a call on his mobile, where she was revealed that Dhirender had already married to one Kanti. When she inquired from Dhirender, he admitted that Kanti is his wife, with whom he has three children and she lives at 550A/D - 59, Molar Band Extn. Badarpur. When she asked as to why he cheated her, he threatened her of dire consequences. She contacted his family members namely Lakhpat and Kailash, brother and brother in law of the accused but they did not listen rather threatened her to kill. She gave a complaint to the police, on the basis of which case was registered under section 376/506 IPC at the PS Sarita Vihar. Investigation was taken up by IO Josepha Kujur. Her statement under section 164 CrPC was got recorded on 21.10.2011, where she did not allege that she was raped by the accused rather stated that she has been happily living with the accused and her son. She had stated that she had given the complaint because the accused had stopped bearing their expenses. FIR No. : 185/11 U/s. 376/420 IPC PS : Sarita Vihar Page No. 2/9 The prosecutrix and the accused moved a petition under section 482 CrPC for quashing the FIR. It was dismissed for nonprosecution. The investigating officer after collecting the relevant documents and recording the statement of the first wife of the accused Smt. Kanti, added the section 493/496 IPC. After investigation, the accused was sent for trial for the offence punishable under section 376/506/493/496 IPC. Since the allegations against Lakhpat and Kailash Chand could not be substantiated, they were not charge sheeted.
2. After complying with the requirements contemplated under section 207 CrPC, the case was committed to the court of Sessions.
3. Prima facie case was made out and the charge was framed against the accused for the offences punishable under section 376/420 IPC vide order dated 31.03.2014. Accused pleaded not guilty and claimed trial.
4. To substantiate its case, prosecution examined as many as six witnesses.
PW 1 SI Satish Chander was the duty officer. He recorded the FIR on receipt of rukka from SI Josepha and proved its copy Ex. PW 1/A. PW 2 Ct. Raju Ram had accompanied the IO to the house of the accused at Molar Band from where he was arrested vide memo Ex. PW 2/A. He also FIR No. : 185/11 U/s. 376/420 IPC PS : Sarita Vihar Page No. 3/9 proved his personal search memo Ex. PW 2/B. PW 3 Ms. Purva Sareen, Ld. MM had recorded the statement of the prosecutrix under section 164 CrPC and proved it vide Ex. PW 3/A. PW 4 SI Shami Kumar provided the details of the posting of the accused for the year from 2000 to 2006 vide Ex. PW 4/C. PW 5 Sh. Karan Pal was the landlord of the house where the accused had stayed with the prosecutrix and his child.
PW 6 is the prosecutrix. She has deposed that when she was residing at Aali Gaon with her parents, the accused a constable in Delhi police, met her. He was the beat constable and used to visit her father, who was property dealer. Gradually, they became friends. After 34 years, he was transfered, however their relations continued. She stated that they used to live together and had physical relations. They were also blessed with a baby boy. She stated that since the accused stopped to meet her daily expenses, she made the present complaint. However, she stated that the physical relations which she had with the accused were with her consent and accused did not do FIR No. : 185/11 U/s. 376/420 IPC PS : Sarita Vihar Page No. 4/9 anything wrong with her forcibly. She proved her statement Ex. PW 3/A. She was declared hostile by the prosecution. On being cross examined by Ld. Addl. PP, she denied that the accused had committed rape upon her. She was read over the contents of the complaint but she denied of having happening of such an event. She admitted that she has given her statement under section 164 CrPC Ex. PW 3/A. PW 7 Smt. Kanti Devi was the first wife of the accused. She has stated that she was married to the accused according to Hindu rites and customs in the year 1995. She has three children from the accused and she has been living happily with the accused. She has stated that she has no complaint against her husband of having relations with the prosecutrix, having one child.
5. In the present case, star witness was the prosecutrix as prosecution machinery came into motion on her complaint. She did not support the prosecution case in any manner & completely turned hostile. Perusal of the list of witnesses reveals that Smt. Akhtari, Ms. Gulshita are the mother and sister of the prosecutrix . Dr. Munish Sharma had conducted the medical examination of the FIR No. : 185/11 U/s. 376/420 IPC PS : Sarita Vihar Page No. 5/9 accused. Other witnesses are the police officials and were the part of the investigation. Their testimony even if unrebutted could not become the basis of the conviction of the accused. The prosecution evidence was accordingly closed as examination of other formal witnesses would have been a dead formality.
6. The testimony of the prosecutrix PW 6 is categorical to the effect that she had met the accused at her parents house, where he used to visit being the beat constable of the area. They became friendly and he established physical relation with her consent. He did not commit rape upon her and with this relation, she gave birth to a baby boy. She has stated that she had given the complaint Ex. PW 6/A since the accused stopped paying her daily expenses. She has also stated that accused did not conceal of his previous marriage with Smt. Kanti, with whom he has three children before establishing physical relations with her.
7. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape"
if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or FIR No. : 185/11 U/s. 376/420 IPC PS : Sarita Vihar Page No. 6/9
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 .............."
8. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free FIR No. : 185/11 U/s. 376/420 IPC PS : Sarita Vihar Page No. 7/9 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
9. In the instant case, no averments or incriminating evidence has come on record against the accused that he had committed sexual intercourse. Rather, the statement of the prosecutrix is categorical to the effect that whatever accused did with her, was with her consent. He did not do any sexual intercourse with her against her wishes. She denied that accused had criminally intimidated her and threatened her to kill or forced her to have sex. She also denied that the accused had concealed from her that he is already married having three children before establishing relations with her. She has stated that she has been living happily with her son and the accused. PW 7 the first wife of the accused has also stated that she has no complaint against her husband of having relations with the prosecutrix, with whom he has one child.
10. Since no incriminating evidence has come on record against the accused so his statement under section 313 Cr.P.C was dispensed with.
11. Considering the testimony of PW 6, who has categorically stated that the accused never forced her for illicit intercourse, nor concealed any information regarding his first marriage for obtaining her consent with dishonest intention, I am of the view that prosecution case is not proved against the accused under section FIR No. : 185/11 U/s. 376/420 IPC PS : Sarita Vihar Page No. 8/9 376/420 IPC. The accused deserves to be acquitted of the charges framed against him. I therefore, acquit the accused of the offence punishable under section 376/420 IPC. Accused is directed to furnish bail bond in the sum of Rs 10,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.
12. File be consigned to record room.
Announced in the open court today i.e. 16.02.2015 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi FIR No. : 185/11 U/s. 376/420 IPC PS : Sarita Vihar Page No. 9/9