Delhi District Court
State vs . Chanderhas Yadav, on 3 December, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 24/14.
Unique Case ID No. 02405R0049722014.
State Vs. Chanderhas Yadav,
S/o Sh. Jai Singh Yadav,
R/o H. No.29/17, Gali No.6,
Village Libaspur,
New Delhi.
Date of Institution : 24.2.2014.
FIR No.656 dated 29.11.2013.
U/s. 376/406 IPC.
P.S. Dabri.
Date of reserving judgment/Order : 25.11.2014.
Date of pronouncement : 03.12.2014.
JUDGMENT
1. Accused Chanderhas Yadav has been facing trial for charges u/s.376/406 IPC.
2. It appears from the perusal of the Charge Sheet that the prosecutrix namely 'J' (real name withheld in order to conceal her identity) had appeared in the police station on 29.11.2013 and submitted a written complaint to the SHO, the contents of which are reproduced hereunder :
".................... My marriage was fixed for 04.12.2013 with Chanderhas Yadav s/o Late Sh. Jai Singh Yadav, SC No.24/14. Page 1 of 28 r/o 29/17, Gali No.6, Libaspur, New Delhi. I knew Chanderhas since five years. First I met him at Ayushman Hospital, Dwarka, as an attendant of a patient. Chanderhas became good friend of mine and later on, he said that he will marry me. I called my mother and elder brother in U.S.A. saying that my friend Chanderhas Yadav wants to marry me. My mother and elder brother came from U.S.A. for my marriage preparation. Mr. Chanderhas Yadav had sex without my permission on 14.2.2008 (Valentine Day) at my residence i.e. RZ-A/18, Sitapuri Part-I, Dabri, New Delhi. I came to know that he is married and has two children also. His elder brother Subhash Yadav was aware about our relationship and knew everything about me. On 14.10.2013 Mr. Chanderhas came to my residence at Sitapuri for talks regarding my marriage and as it was getting too late, I and my mother told him to go but he refused and stayed at my residence and again had sex with me without my permission. He also took my gold ornaments and cash. Ornaments were 5 Tolas chain, 4 gold bangles, 4 gold earrings and cash of Rs.1,50,000/-. He refused to give back these things to me. Now Mr. Chanderhas is refusing to marry me. ..................."
3. The aforesaid complaint of the prosecutrix was marked to SI Domnica Purty for inquiry. She prepared rukka and got the FIR registered. She commenced the investigation after registration of the FIR. Prosecutrix was got medically examined at DDU SC No.24/14. Page 2 of 28 Hospital. The prosecutrix handed over to the IO the wedding invitation card regarding her marriage with Chanderhas. IO got the same verified and it was found to be genuine. The prosecutrix also handed over to the IO the documents regarding booking made at Sacred Heart Cathedral, 1 Ashok Place, New Delhi. These were also got verified and found genuine. The accused came to be arrested on 29.11.2013.
4. After completion of investigation, Charge Sheet was prepared by the IO and submitted to the concerned Ld. M.M., who committed the case to the court of Sessions for trial.
5. Upon committal of the case to the court of Sessions, Charge u/s.376 IPC and u/s.406 IPC was framed against the accused on 15.3.2014. The accused denied the charges and accordingly trial was held. At trial, the prosecutrix examined 14 witnesses to prove the charges against the accused. The accused was examined u/s.313 Cr.PC on 10.9.2014 wherein he denied the prosecution case. He admitted that he had got acquainted with the prosecutrix during his stay in Ayushman Hospital as attendant of a patient and both had become friends. He however denied that he proposed to the prosecutrix for marriage with her and had sexual intercourse with her on the pretext of marrying her. He stated that he was already married when he became friend of the prosecutrix and she knew that he is a married person. He admitted that a sum of Rs.3,46,606/- was sent to him by the mother and brother of the prosecutrix from U.S.A. and further added that the prosecutrix had told him that they cannot send money in her name as it would create some hardship for her relating to income tax. He stated SC No.24/14. Page 3 of 28 that he later on withdrew the money from his account and handed over the same to the prosecutrix. He stated that he had never agreed to marry the prosecutrix and the affidavit Ex.PW7/D was prepared by the prosecutrix herself. He also admitted that his brother Subhash Yadav had made call to prosecutrix's neighbour Kamlesh Bhardwaj telling her that he (accused) cannot perform marriage with the prosecutrix as he (accused) is already married having children.
6. The accused has examined three witnesses in his defence. DW1 is the Clerk from Bank of India, Sector-12, Dwarka, and proved the statement of account pertaining to saving bank account no.605710310000952 in the name of Sh. Frank Moris w.e.f. 14.1.2013 till 31.8.2013 as Ex.DW1/A. DW2 is the Principal, Piramal Girls Sr. Secondary School, Bagar Jhunjhunu, Rajasthan, and proved photocopy of the admission form of Misha Yadav, daughter of the accused as Ex.DW2/A. He also proved the photocopy of her Hostel folder as Ex.DW2/B and photocopy of her school leaving certificate as Ex.DW2/C. He further deposed that the prosecutrix 'J' was accompanying the accused at the time of admission of Misha Yadav in the school and she had filled up the forms. According to him, the prosecutrix had visited the school once after a few days of the admission of Misha Yadav to meet her. DW3 is Misha Yadav, the daughter of the accused. She also deposed that the prosecutrix had accompanied herself and her father to Piramal Girls Sr. Secondary School, Bagar Jhunjhunu, Rajasthan, on 05.4.2013 for her admission and the admission forms were filled up by the prosecutrix. She deposed that she had visited the house of the prosecutrix twice and the prosecutrix SC No.24/14. Page 4 of 28 knew that she is the daughter of accused.
7. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire material on record.
8. The prosecutrix has been examined as PW1. The material portion of her examination in chief is reproduced herein below :
"In the year 2005 I had joined Ayushman Hospital, Dwarka as a Front Officer Manager. During the same year, accused Chanderhas (present in the court today and correctly identified) came to the hospital as the attendant of a patient. He remained in the hospital for quite a long time as the attendant of that patient. During that period I got acquainted with him and we became friends. After the discharge of his patient from the hospital, we used to talk to each other on phone. He used to visit my aforesaid residence about 2 or 3 times in a week. I was residing alone as my whole family is staying in USA.
On 14.02.08, accused Chanderhas came to my residence in the afternoon as it was Valentine Day. First he wished me for the Valentine Day. Then he proposed marriage to me. I told him that I cannot respond to his marriage proposal as I would have to discuss it with my family. Thereafter, he committed forcible sexual intercourse with me and when I resisted, he told me that he would marry me. Thereafter, in the same year, I apprised my mother about the marriage proposal of the accused and she told me to ask the accused when he is going to marry me. Accordingly, I asked accused when is he going to marry me and he replied that it would be in the same year 2008. He also told me that we would first perform the engagement ceremony in August, 2008 as his birthday falls in the same month. Accordingly, I purchased a golden neck chain weighing 50 gms. to be given to accused at the time of engagement SC No.24/14. Page 5 of 28 ceremony.
Thereafter, whenever I asked the accused to perform marriage with me, he used to avoid the same saying that he has suffered losses in his bisleri water business and he has not started a fresh business yet. He also told me that he has taken a loan from somebody for starting business of sale of Parle biscuits and it would take time for him to settle in the said business.
In the whole year 2009, he avoided to solemnise marriage with me. In the year 2010, my mother came to India from USA as she had fallen sick and was suspected of having contracted swine flu. In the year 2011 my mother suffered a heart attack with 90% blockage. The accused again told me in the year 2012 that he would solemnise marriage with me but unfortunately I lost my elder brother in the same year. In the year 2013, accused Chanderhas demanded money from my mother and my brother for the arrangements for the marriage. My mother and my elder brother namely Frank Moris sent a total amount of Rs. 3,46,606/- in three transactions dated 10.06.13, 14.06.13 and 26.06.13 to the accused through Western Union from USA. Accused had also discussed about our marriage through E-mails with my elder sister Christina Colin who also stayed in USA.
In the year 2013 my mother and my brother Frank Moris again came to India from USA for the preparations of marriage. The marriage of myself and accused Chanderhas was fixed for 04.12.13. We had also booked a hall at Sacred Heart Catherdral, Ashoka Road, Gol Dak Khana, New Delhi. Being a Christian I had to undergo a pre nuptial ceremony before marriage. We both had to attend the classes in the Church for the said ceremony from 29.11.13 to 01.12.13. However, the accused did not come to join these classes.
We had submitted pre nuptial form in St. Jhons Church, Mahavir Enclave, New Delhi in Nov, 2013. The accused had submitted his affidavit also alongwith the said form in which he described himself as a bachelor and his date of birth as 10.08.1976.
Since the accused did not come to join the SC No.24/14. Page 6 of 28 aforesaid classes and avoided to take my phone calls, our marriage could not be performed on 04.12.13. We had already printed the invitation cards and had distributed those amongst our relatives and friends. The accused had also taken a sum of Rs. 1.5 lacs from me in the month of August, 2013 for the said marriage. He had also taken my gold jewellery i.e. four golden bangles and four golden rings in September, 2013 saying that he would have to pledge those to raise money for his business.
On 14.10.13 accused had come to my residence and had talks with my mother regarding my marriage. Since it had become very late during the talks, he insisted that he would stay in our house for the night. My mother permitted him for the same. He stayed in our house for the night and during that night also he committed forcible sexual intercourse with me saying that there is nothing wrong in the same as they are going to be married.
The accused had been exploiting me physically, mentally as well as financially. On 22.11.13, the accused's brother Subhash Yadav made a call to our neighbour Kamlesh Bhardwaj telling him that accused cannot perform marriage with me as he is already married and having children. Mrs. Kamlesh Bhardwaj apprised me about the same. Accordingly, I went to the office cum residence of accused at Gurgaon in his search. However, he was not present there. From there I went to the house of accused at Libaspur where the accused gave me beatings as a result of which I suffered injuries on my hands and head and he took me to the hospital. After providing me first aid in the hospital, I was asked to go."
9. She further deposed that she reached P.S. Dabri on 29.11.2013 and submitted a written complaint Ex.PW1/A. From the police station, she was taken to DDU Hospital for medical examination. She had handed over the marriage invitation card, cash memo regarding printing of invitation card and the copy of statement of her bank account in State Bank of Bikaner, Dwarka, SC No.24/14. Page 7 of 28 to the IO, who seized those vide seizure memo Ex.PW1/B, Ex.PW1/C, Ex.PW1/D and Ex.PW1/E. She also proved her statement u/s.164 Cr.PC as Ex.PW1/F.
10. In the cross examination, she deposed that the accused had taken Rs.1.5 Lacs from her in cash in the month of September, 2013 and she came to know for the first time on 22.11.2013 that the accused is already married having children. She deposed that she did not narrate the incident dated 14.10.2013 of forcible sexual intercourse to her mother in the morning on 15.10.2013 as the accused had told her that there is nothing wrong in it and he would marry her. The accused had slept in the room of her brother during that night. Her mother had slept in her room and she herself slept in the living room on a bed. The accused had come to the living room and committed forcible physical relations with her. She did not raise alarm at that time but had refused to engage in physical relations with the accused. However, the accused asked her that why does she fear as they are going to marry shortly. She deposed that after talking to each other till about 11.30 p.m. after the dinner, they all went to sleep and the accused came back to the living room after about one hour. She had bolted both the doors of the living room from inside but the accused himself opened the door of the living room by pressing the knob of the handle. She asked the accused to close the door completely but he did not do it saying that her mother would wake up and may think something adverse. She stood up and closed the door completely but did not lock it. She admitted not having mentioned in her complaint Ex.PW1/A and in the statement u/s.164 Cr.PC Ex.PW1/F that she and the accused were SC No.24/14. Page 8 of 28 supposed to attend the prenuptial classes at St. John Church from 29.11.2013 to 01.12.2013 and the accused did not come to join these classes; that the accused had submitted an affidavit alongwith the prenuptial form stating that he is a bachelor; that her mother and brother had sent a total sum of Rs.3,46,606/- in three instalments to the accused through Western Union from U.S.A. for arrangement of marriage and that the accused used to visit her residence about two or three times in a week.
11. In further cross examination, she deposed that after discussion with her mother, she told the accused in the month of May, 2008 that she is willing to marry him and before May, 2008, she had not made any decision to marry. She had purchased gold neckchain on 6th or 7th August, 2008 to be given to the accused at the time of engagement ceremony to be held in the month of August, 2008. Their marriage was fixed towards the end of year 2008. She stated that her brother had never sent money in the name of son of one Pandit ji, who resides in the house adjacent to the house of Kamlesh Bhardwaj. She stated that her brother has an account in Bank of India, Sector-12, Dwarka and he himself operates the said account whenever he come to India. According to her knowledge, her brother has only bank account in Delhi. She deposed that her brother Frank Moris had come to India for the first time on 15.9.2013 and stayed here for about one month. Before that he had come to India about one year ago i.e. at the time of demise of his elder brother and stayed here for about 15 to 20 days. His elder brother had expired on 13.10.2012. Her brother Frank Moris did not send any money to her during the year 2013. She denied that the money which had been sent by her brother in SC No.24/14. Page 9 of 28 the name of accused Pandit ji's son was taken by her from them and she prepared an FDR in the sum of Rs.4,59,110/- from the said amount in the name of her brother. She could not tell the date when the accused had demanded money from her mother and brother for marriage preparation. She identified her photographs on the medical card of Misha Yadav but denied that the admission form of Misha Yadav has been filled up by her. She did not know whether accused's wife had also come to the hospital during the period accused stayed there as attendant of his ailing brother-in- law (Jija). She deposed that she had never seen or met the wife of the accused. She stated that she had visited the house of the accused at Libaspur on 29.11.2012 at the time of marriage of his niece. She remained there for about two hours and the accused introduced her to his eldest brother whose daughter was going to marry, his another brother, his elder sister and the children of his brother. She was not sure whether her photographs were taken in the marriage ceremony. She had also attended the marriage ceremony of daughter of accused's sister as also her engagement ceremony. She could not say whether accused's wife was present in the said two ceremonies. She deposed that the photographs Ex.PW1/D1 to Ex.PW1/D7 pertain to the marriage of accused's niece Priyanka held on 28.11.2012. She did not know whether the lady seen wearing Firozi colour Sari in these photographs is the wife of the accused. She stated that she must have attended five or six Hindu marriages but is not aware about the ceremonies performed in a Hindu marriage. She deposed that the photographs Ex.PW1/D8 to Ex.PW1/D12 pertains to the marriage of accused's another niece (sister's daughter) namely Sheena. According to her, she is seen alongwith accused's brother Subhash Yadav in SC No.24/14. Page 10 of 28 photograph Ex.PW1/D9, accused's sister Smt. Kuntesh is seen in photograph Ex.PW1/D10 wearing a blue colour Sari. She stated that the girl at the extreme end seen in photograph Ex.PW1/D11 are the daughters of accused's brother Sh. Subhash Yadav and the girl sitting in her lap is Misha. She further deposed that the accused has two brothers and two sisters and his parents have already expired. All the brothers and sisters of the accused are elder to him and are already married. Accused's brother Subhash Yadav has four children. She denied that the boy seen at point A in photograph Ex.PW1/D8 is accused's son. According to her, he is the son of accused's brother Subhash Yadav. She further denied all the suggestions put to her.
12. PW2 has proved the extract from an electoral roll of the assembly constituency Badli village as Ex.PW2/A showing Ms. Usha Rani w/o Sh. Chander Har as a voter.
13. PW3 is the Manager in Sacred Heart Cathedral, Ashoka Place, New Delhi. He deposed that the prosecutrix 'J' had booked the said church on 08.11.2013 for marriage ceremony and had paid a sum of Rs.22,000/- as booking amount by way of a cheque. He proved the receipt issued to the prosecutrix as Ex.PW3/A. He further deposed that the prosecutrix cancelled the booking on 02.12.2013 and they repaid the booking amount of Rs.22,000/- to her and the same is noted at point X in the aforesaid receipt.
14. PW4 was the Duty Officer in P.S. Dabri on 29.11.2013 and had registered the FIR in this case. He proved the copy of FIR as Ex.PW4/A and his endorsement on the rukka as Ex.PW4/B. SC No.24/14. Page 11 of 28
15. PW5 is the Assistant Director General, Unique Identification Authority of India and proved the Aadhar Card issued in the name of Usha Rani w/o Sh. Chanderhas as Ex.PW5/A. He deposed that it was issued on basis of Election I. Card provided by her which he proved as Ex.PW5/B.
16. PW6 is Dr. Pallavi, who had had conducted medical examination of the prosecutrix in DDU Hospital on 29.11.2013.
17. PW7 was the Father in St. John Church in the year 2012. He deposed that as per the record maintained in the Church, the prosecutrix and Chanderhas Yadav had come to the Church on 04.12.2014 and submitted notice for prenuptial inquiry which he proved as Ex.PW7/A and Ex.PW7/B. He further deposed that the prosecutrix had submitted a Baptism certificate issued by Sacred Heart Cathedral which he proved as Ex.PW7/C. He further deposed that Chanderhas had also submitted an affidavit duly notorised which he proved as Ex.PW7/D. He stated that later on Chanderhas did not come to the Church and only prosecutrix came to him and told him that she has come to know that Chanderhas has got already married to somebody else. In the cross examination, he admitted that the fact regarding prenuptial enquiry to be held in Church before marriage is only known to Christians. He further deposed that he had explained to Chanderhas the purpose of prenuptial enquiry.
18. PW-8 is Sh. Vivek Bhasin, the General Manager M/s. Bhola Sons Jewellers, Goldsouk, Gurgaon, Haryana. He proved SC No.24/14. Page 12 of 28 copies of invoice dated 07.08.11 and 01.10.11 in the name of prosecutrix 'J' as Ex .PW8/B and Ex. PW8/C respectively.
19. PW-9 is Sh. Deepak Verma, the Proprietor of M/s. Krishna Jewellers. He had not brought the summoned record as the same being six years old was not traceable at his shop.
20. PW-10 is Sh. Sunil Kumar, the Proprietor of M/s. Blue Prints Advertising and Printing. He had printed the wedding invitation card Ex. PW1/C. He deposed that the sister of the bride 'J' had came to me for printing of these marriage invitation cards. He proved the invoice issued by him to her as Ex. PW1/D.
21. PW-11 is S.I. Gajender. His deposition is not of much relevance.
22. PW-12 is S.I. Domnica Purty, the Investigating Officer of this case. She had prepared rukka Ex. PW12/A on the basis of the written complaint of the prosecutrix and got the FIR registered. Then she took the prosecutrix to DDU Hospital for medical examination. She arrested the accused in the police station on the same day i.e. 29.11.13 vide Arrest Memo Ex. PW12/B and recorded his disclosure statement Ex. PW12/D. She sent the accused to DDU Hospital alongwith Ct. Ajeet for medical examination. She also prepared a rough site plan of the crime spot i.e. prosecutrix's H.No. RZ-18, Sitapuri, New Delhi and proved the same as Ex. PW12/E. She had got the statement of the prosecutrix u/s. 164 Cr.P.C. recorded on 30.11.13. In the cross examination, she deposed that prosecutrix did not write the complaint in her SC No.24/14. Page 13 of 28 presence but had brought a written complaint alongwith her. She admitted that she had recorded the statement u/s. 161 Cr.P.C. of Smt. Kamlesh and Mrs. Eggie (mother of prosecutrix) but didn't know why they have not been cited as witnesses in the charge sheet. She deposed that charge sheet was not prepared by her. She further stated that prosecutrix was accompanied by her neighbour Kamlesh when she met her in the police station for the first time and Kamlesh remained with them through out the course of investigation on 29.11.13 and 30.11.13.
23. PW-13 is Mrs. Kamlesh, a neighbour of the prosecutrix. She deposed that accused used to visit the house of the prosecutrix for the last four or five years and the prosecutrix had told her that they are going to marry each other. She further deposed that the prosecutrix had come to her house on 20.11.13 to give her the marriage invitation card and the marriage was to be solemnised on 04.12.13. She further stated that she received the call from the brother of the accused on 22.11.13 saying that accused cannot marry 'J' as he is already married and the prosecutrix also met her on the same day in the evening and told her that accused Chander would not marry her as he is already married. She accompanied the prosecutrix to the police station on 29.11.13 where the prosecutrix submitted a complaint. She stated that her statement was also recorded in the police station. In answer a leading question put to her by Ld. APP on 25.11.13 that accused would not marry her as he is already married. In the cross examination she was confronted with her statement u/s. 161 Cr.P.C wherein she had not mentioned that she received a call from accused's brother on 22.11.13 saying that accused is already SC No.24/14. Page 14 of 28 married and cannot marry 'J'. She deposed that she had received the call from accused's brother on her landline telephone no. 64646111. She didn't know how accused's brother had came to know about her telephone number. She had met accused's brother. She also knew the wife of accused's other brother as well as his nephew. She had seen them in the house of prosecutrix about two or three years ago. She stated that she had never seen accused's daughter in the house of prosecutrix. She had not seen any little girl with prosecutrix any time. She deposed that the prosecutrix wrote the complaint in the police station in presence of a lady police official and the gist of her grievance was that accused is running away from the marriage. She further stated that accused was arrested in the police station in her presence on the same day i.e. 29.11.13. She further denied the suggestion put to her on behalf of the accused.
24. PW-14 is S.I. Ratan Singh who was the Investigating Officer of this case w.e.f. 10.01.13. He had seized the cash memo regarding the marriage invitation cards from the prosecutrix and copy of her statement of account in State Bank of Bikaner, Dwarka and seized those vide memo Ex. PW1/B. He had found certain documents regarding prenuptial ceremony to be held at Sacred Heart Cathedral, Ashoka Place, C.P. New Delhi between the prosecutrix and the accused in the case file and got these documents verified from the said church. He had prepared the charge sheet in this case.
25. The gist of the deposition of three defence witnesses examined on behalf of the accused has already been mentioned in SC No.24/14. Page 15 of 28 para no. 6 herein above.
26. It was submitted by Ld. APP that it a clear cut case where the accused, having been already married, trapped the prosecutrix by deception and took her consent for sexual intercourse on the false promise to marry her. She submits that it is not disputed by the accused that he was a married person in the year 2008 when he started friendship with the prosecutrix and the evidence led by the prosecution shows that he did not disclose his marital status to the prosecutrix and represented to her falsely that he is unmarried. According to her, the prosecutrix always believed that the accused is unmarried and would marry her at any cost and it is under this belief only that she consented to have physical relations with the accused. She argued that the fact that the accused had submitted affidavit Ex. PW7/D in St. Jhons Church for attending prenuptial classes alongwith the prosecutrix manifest that he had been telling that he would marry her and even in this affidavit he has stated that he is unmarried. She further submits that the accused has admitted in his statement u/s. 313 Cr.P.C. that the mother and brother of the prosecutrix had sent him a sum of Rs. 3,46,606/- in the month of June, 2013. According to her this amount was sent to the accused for marriage preparations as the marriage was fixed for 04.12.13 but the accused refused to marry the prosecutrix and misappropriated the aforesaid money. She submitted that the accused had been taking the money from the prosecutrix also on various occasions and the prosecutrix had purchased various golden jewellery articles to be worn by her in the marriage function. She would further submit that the prosecutrix had got printed the marriage invitation cards for the SC No.24/14. Page 16 of 28 marriage function to be held on 04.12.13 and had also booked Sacred Heart Cathedral, Ashoka Place, New Delhi for the marriage ceremony which had to be cancelled later on as the accused refused to marry her. The Ld. APP submitted with vehemence that the accused is liable to be convicted of the charges framed against him.
27. Per contra, Ld. Counsel for the accused submitted that accused is innocent and liable to be acquitted. He submitted that evidence on record shows that the accused and the prosecutrix were mere friends and the sexual relations between the two were on account of the said friendship and consensual. He submitted that the prosecutrix knew since the year 2008 itself that the accused is a married person, having children and therefore there was no occasion for the accused to extend any false representation to her or to deceive her. He submitted that the prosecutrix has admitted in her cross examination that she has attended various marriage function in the family of the accused and knew all the family members of the accused including his brothers, nephews, nieces etc. and hence it cannot be believed that she was ignorant about the actual marital status of the accused during all these years. He argued that admittedly the prosecutrix has attended the marriages of the two nieces of the accused and the accused was present in these functions alongwith his wife which is evident from the photographs Ex. PW1/D1 to Ex. PW1/D12. He submitted that both the prosecutrix as well as the accused's wife are seen in many of these photographs which demonstrates that the prosecutrix must have come to know in all probability that accused is a married person. He also drew my SC No.24/14. Page 17 of 28 attention to the deposition of DW2 and DW3 saying that their testimony establishes beyond doubt that the prosecutrix knew that the accused is a married person having children. He further submitted that the money received by the accused from mother and brother of the prosecutrix from USA in the month of June, 2013 has been duly deposited by him in the bank account of prosecutrix's brother Sh. Frank Moris on 20.07.13 and therefore it cannot be said that he misappropriated this account. The Ld. Counsel made a forceful submission that the accused is liable to be acquitted.
28. The submissions made on behalf of both the parties and the entire documentary as well as oral evidence led by the parties has been considered.
29. The prosecutrix, in her testimony, has described two incidents of sexual intercourse between her and the accused which took place on 14.02.08 and 14.10.13. Though she has stated that the accused committed forcible sexual intercourse with her on both these occasions yet it appears that the physical relations between the two on these two occasions was consensual. The only issue which arises for consideration is whether the prosecutrix had consented to the sexual relations with the accused voluntarily, without any misrepresentation or false promise of marriage from the accused or the accused obtained her consent on the false pretext of marriage. It may be noted here that the accused, in his statement u/s. 313 Cr.P.C., has denied that there had been sexual relations between him and the accused. However, his counsel had argued at the time of hearing of the accused's bail application as SC No.24/14. Page 18 of 28 well as at the time of final hearing of this case that the sexual relations between him and the prosecutrix were always consensual. Even no suggestion has been given to the prosecutrix that there had been no physical relations between her and the accused at any point of time. From the tone and tenor of the cross examination of the prosecutrix conducted on behalf of the accused also, it appears that the defence of the accused is that there had been sexual relations between him and the prosecutrix but the same were consensual and the consent of the prosecutrix was voluntary without being influenced by any misrepresentation or promise of the accused.
30. It is evident from the testimony of the prosecutrix that she had been pestering the accused all along since the year 2008 to solemnise marriage with her but the accused had been avoiding the marriage on one pretext or the other. She has deposed that the accused had told her that marriage would be performed in the year 2008 itself and before the marriage, engagement ceremony would be performed in August, 2008 as his birthday falls in the same month. She has deposed that she purchased a golden neck chain to be given to the accused at the time of engagement ceremony. There is no cross examination of the prosecutrix in this regard. Further the invoice Ex. PW8/B produced and proved by PW-8 shows that the prosecutrix had purchased a gold jewellery weighing 9.520 gms on 07.08.11. The uncontroverted testimony of the prosecutrix and PW-8 in this regard demonstrates that the prosecutrix and the accused had consented to perform engagement ceremony in the month of August, 2008 and thereafter the marriage ceremony in the same year.
SC No.24/14. Page 19 of 2831. The undisputed testimony of PW-7 corroborates the version of the prosecutrix that ultimately the date of marriage had been fixed as 04.12.13 and both had to attend prenuptial classes in St. Jhons Church from 29.11.13 to 01.12.13. The testimony of PW-7 shows that the prosecutrix had submitted notice for prenuptial inquiry on behalf of herself as well as on behalf of the accused. The same are Ex. PW7/A and Ex. PW7/B respectively. She had also submitted Baptism Certificate Ex. PW7/C issued by Sacred Heart Cathedral, Ashoka Place, New Delhi. The accused had also submitted affidavit Ex. PW7/D claiming to be unmarried and expressing intention to marry the prosecutrix of his own free will and without any coercion or pressure. PW-7 has deposed that later on accused did not come to the church for prenuptial classes and only prosecutrix came to him saying that the accused got already married to somebody else. He has deposed in his cross examination that he explained to the accused the purpose and object of prenuptial inquiry.
32. The execution of aforesaid affidavit Ex. PW7/D by the accused and its submission to the St. Jhons Church is not disputed from the side of the accused. Ld. Counsel for the accused had argued that the accused executed this affidavit only on account of pressure form the prosecutrix as she had been coercing him to solemnise marriage with her. When this affidavit was put to the accused in his examination u/s. 313 Cr.P.C., he stated that it was prepared by the prosecutrix herself. It is significant to note that he did not deny his signatures on the affidavit. It is not understandable as to why would accused succumb to the pressure SC No.24/14. Page 20 of 28 of prosecutrix and swear the affidavit Ex. PW7/D describing himself as unmarried and expressing willingness to marry the prosecutrix, if there had been no talks of marriage between the two. Accused nowhere explains as to how did prosecution pressurize him to sign this affidavit. The swearing of the said affidavit by accused and its submission to the church clearly indicates that he had been keeping the prosecutrix in dark about her marital status. He had been telling her that he is unmarried and would marry her. The fact that the accused appeared before PW-7 and agreed to attend prenuptial classes also supports the version of prosecutrix. PW-7 has deposed that he had explained the purpose of prenuptial enquiry to accused Chanderhas.
33. The uncontroverted evidence of PW-3 demonstrates that the prosecutrix had booked the Sacred Heart Cathedral, Ashoka Place, New Delhi for the marriage ceremony to be held on 04.12.13 and had paid a sum of Rs. 22,000/- as booking amount on 08.11.13 vide receipt Ex. PW3/A. It is further evident from the testimony of PW-3 that the prosecutrix cancelled the booking afterwards on 02.12.13 and the aforesaid booking amount of Rs. 22,000/- was repaid to her.
34. The testimony of PW-10 corroborates the deposition of the prosecutrix that they had got the marriage invitation cards printed and had distributed those amongst their relatives and friends. The invitation card has been proved as Ex. PW1/C. The invoice Ex. PW1/D issued by PW-10 shows that these invitation cards had been got printed in the month of October, 2013.
SC No.24/14. Page 21 of 2835. The evidence led by the prosecution, discussed herein above, clearly and undoubtedly shows that the accused had been assuring the prosecutrix right since the year 2008 that he would marry her and ultimately the date of marriage had been fixed as 04.12.13. The necessary documents regarding the prenuptial classes had been submitted to the St. Jhons Church, which were to be held from 29.11.13 to 01.12.13. The prosecutrix had booked Sacred Heart Cathedral, Ashoka Place, New Delhi for the marriage ceremony and had also got printed the marriage invitation cards. There appears to be no force in the contention raised on behalf of the accused that she and the accused were mere friends and there was no talk of marriage between the two. It is evident that the accused had been assuring and promising the prosecutrix right since the year 2008 that he would marry her and gave her indication in the year 2013 that he is going to fulfill his promise by agreeing to solemnise the marriage on 04.12.13 and submitting the documents for prenuptial classes to the St. Jhons Church. Therefore, it cannot be doubted and appears to be plausible that the prosecutrix agreed to have sexual relations with the accused only under the belief that the accused is going to marry her. It is also apparent that the accused knew that the prosecutrix has given consent for physical relations with him only for the reason that he has promised and assured her that he would marry her.
36. Having said so, it is also manifest that the accused had concealed his actual marital status from the prosecutrix. It is quite evident that in case the accused had disclosed to the prosecutrix at the time of inception of friendship between the two in the year 2008 itself that he is a married person, the prosecutrix would not SC No.24/14. Page 22 of 28 have been pestering for marriage. It is inconceivable that if the prosecutrix would have known that the accused is a married person, she would have agreed for the engagement ceremony with the accused to be held in August, 2008 or for the marriage ceremony to be held on 04.12.13. The conduct of the prosecutrix towards the accused all along since the year 2008 and accused's conduct towards her, as discussed hereinabove, clearly demonstrates that she was under the firm belief that the accused is a bachelor and would marry only her and that the accused too knew that the prosecutrix is under the belief that he is unmarried and would solemnise marriage with her.
37. Reliance was placed by the Ld. Counsel for the accused upon the photographs Ex. PW1/D1 to Ex. PW1/D12 as well as upon the testimony of DW-2 and DW-3 to canvas that the prosecutrix was having knowledge that the accused is a married man and despite such knowledge she engaged in physical relations with the accused and later on pressurised him for the marriage ceremony to be performed on 04.12.13.
38. The prosecutrix has admitted in her cross examination that photographs Ex. PW1/D1 to Ex. PW1/D7 pertain to marriage ceremony of Priyanka, accused's niece and she is seen in all these photographs. She denied knowledge that the lady seen wearing ferozi colour sari in these photographs and encircled in red colour ink is the wife of the accused. She voluntarily stated that the accused had never introduced her with his wife. The prosecutrix has also admitted in the cross examination that the photographs Ex. WP1/D8 to Ex. PW1/D12 pertained to the marriage ceremony SC No.24/14. Page 23 of 28 of accused's another niece Sheena which was performed on 05.12.11 and she is seen in all these photographs. She identified accused's brother Subhash Yadav, his sister Smt. Kuntesh, Subhash Yadav's daughter and a girl named Misha in these photographs. She denied that Misha is infact the daughter of the accused. She also denied that the boy seen at Point A in photograph Ex. PW1/D8 is the son of accused. According to her, he is the son of accused's brother Subhash Yadav. What appears from the aforenoted cross examination of the prosecutrix and the above referred photographs is that the accused had introduced all his family members except his wife to the prosecutrix and he had introduced his children to her as the children of his brother Subhash Yadav. It has nowhere been put to the prosecutrix that the accused had introduced his wife also to her and she had met as well as talked to accused's wife. Merely because the prosecutrix knows the other family members of the accused is not sufficient to presume and impugned knowledge to her that she also knew accused's wife or that she was aware that the accused is a married person.
39. PW-13 has deposed that she received a call from accused's brother on 22.11.13 saying that accused cannot marry 'J' as he is already married. Though it appears that she had not stated so in her statement u/s. 161 Cr.P.C. yet her testimony appears to be truthful for the reason that the accused, in answer to question no. 33, in his examination u/s. 313 Cr.P.C. has admitted this fact that his brother had made a call to PW-13 Kamlesh Bhardwaj telling her that accused cannot perform marriage with prosecutrix as he is already married and having SC No.24/14. Page 24 of 28 children. If the contention raised on behalf of the accused that the prosecutrix was having knowledge that he is married person, is true, where was the occasion for accused's brother to make aforesaid call to PW-13 Kamlesh Bhardwaj. This only indicates that the accused had not, at any point of time, disclosed to the prosecutrix that he is married man having children but on the contrary represented to her always that he is a bachelor and would marry her. This also corroborates the version of the prosecutrix that she came to know for the first time on 22.11.13 that the accused is already married.
40. In view of aforementioned overwhelming evidence on record establishing the fact that the accused had kept the prosecutrix in dark about his actual marital status and used to falsely represent to her at every point of time that he would marry her, the evidence of DW-2 and DW-3 runs into pale of insignificance and cannot be believed. DW-2 has nowhere deposed that accused's wife had also come to the school on that day or that the accused had told him that the prosecutrix 'J' is only her friend. The document Ex. DW2/B produced by him patently appears to be forged. It is the photocopy of the Hostel Folder of accused's daughter Misha Yadav and bears the photograph of prosecutrix at Sl. No. 3. This document shows father's name of Misha Yadav as Chanderhas Yadav (accused). It was argued by the Ld. Counsel for the accused that this form was filled up by prosecutrix and therefore it is evident that she knew that Misha is the daughter of accused Chanderhas Yadav. The argument deserve to be rejected for the reason that this document Ex. DW2/B appears to be a manipulated one. A copy of this document SC No.24/14. Page 25 of 28 has also been filed by the accused alongwith his bail application dated 14.03.14 by the accused on which there is no photograph at the place of 'Guardian photo'. However, on Ex. DW2/B, there is a photograph of accused's brother Subhash Yadav at the said place. Further, the particulars of accused are mentioned in column no.1 of this document, particulars of Subhash Yadav in column no. 2 and those of prosecutrix in column no. 3. So it should have photographs of these three persons only. Why has the photograph of Usha Yadav (accused's wife) affixed on it, is not discernible. It is manifest that this document has been fabricated to create evidence in favour of the accused. The accused has lead no evidence to show that his daughter, infact, studied in Piramal School, Jhunjhunu, Rajasthan. It appears that admission form Ex. DW2/A also is a manipulated document. A perusal of this document shows that the 'class/section' has been changed from II to VII, 'S.R. No. Allotted' has been changed from 11 to 157 and 'Admission in class' has been changed from III to VIII. There is overwriting in the 'Date of Birth' column and the caste has been changed from 'General' to 'OBC'. All these corrections cannot be said to be genuine or bonafide. These only indicate that the form Ex. DW2/A is a fabricated document and hence no reliance can be placed on the same.
41. DW-3, being the real daughter of the accused, appears to be a tutored witness. However, it is evident from her testimony that accused had never introduced her to the prosecutrix as his daughter and that the accused had never taken her as well as her mother to the house of the prosecutrix. She has nowhere deposed that the prosecutrix has met her mother and knew her mother. Her SC No.24/14. Page 26 of 28 testimony demonstrates that she had been taken to the house of the prosecutrix by her uncle Subhash Yadav and not by her father i.e. the accused. Her testimony, therefore, is of no help to the accused.
42. In view of the aforesaid discussion, I hold that the prosecution has been successful in establishing that the accused had represented falsely to the prosecutrix all along that he is bachelor and would marry her and had taken her consent for sexual intercourse on the false promise of marriage as he being already married, knew that he could not marry her. He also knew that the prosecutrix is under the firm belief that he is a bachelor and would marry her and it is for this reason she consented to have sexual relations with him. Therefore, the consent of the prosecutrix to the physical relations with the accused is not a free and voluntary consent. Hence, the sexual relations between the accused and the prosecutrix tentamount to offence of rape committed by the accused, as envisaged u/s. 375 of Indian Penal Code r/w Section 90 of the same.
43. So far as the charge u/s. 406 IPC framed against the accused is concerned, I find that there is no evidence on record to suggest that the prosecutrix had entrusted the accused with her golden jewellery and cash for any specific purpose and that he did not utilize those for that purpose or did not return the same to the prosecutrix despite her demands. The prosecutrix has deposed that accused had taken a sum of Rs. 1.5 lacs from her in August, 2013 for their marriage and had also taken her golden jewellery i.e. 4 golden bangles and 4 golden rings in September, 2013 SC No.24/14. Page 27 of 28 saying that he would have to pledge those to raise money for his business. It appears from her testimony that she had provided financial assistance to the accused in the form of money and the jewellery and she had not created any trust with the accused respecting the said money and the jewellery. Even otherwise also, the prosecutrix has nowhere stated that she had demanded the money as well as the jewellery back from the accused and he did not return her the same. Therefore, the essential ingredients of the offence u/s. 406 IPC have not been established by the prosecution in this case and the accused is liable to be acquitted of the charge u/s. 406 IPC.
44. Resultantly, the accused is hereby acquitted of the charge u/s. 406 IPC. He is however, convicted of the offence of rape u/s. 376 IPC.
Announced in open (VIRENDER BHAT)
Court on 03.12.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.24/14. Page 28 of 28