Allahabad High Court
State Of U.P. vs Tarik on 9 March, 2022
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Case :- GOVERNMENT APPEAL No. - 464 of 2021 Appellant :- State of U.P. Respondent :- Tarik Counsel for Appellant :- G.A. Counsel for Respondent :- Ram Kumar Yadav Hon'ble Suneet Kumar,J.
Hon'ble Vikram D. Chauhan,J.
(Per: Vikram D. Chauhan, J.)
1. Heard Mrs. Alpana Singh, learned Additional Government Advocate appearing for the State and perused the lower court record.
2. The instant appeal is directed against the judgment and order dated 10.12.2019 passed by the Additional Sessions Judge/F.T.C. Meerut, in S.T. No. 638 of 2014 (State vs. Tarik) arising from Case Crime No. 829 of 2013, under Section 376, 323, 504, 506 I.P.C, Police Station - Mawana, District - Meerut, whereby, accused-Tarik is acquitted.
3. In brief, the prosecution version is that on 26.12.2013, victim submitted a typed report to the Senior Superintendent of Police, Meerut that the victim's father Abid had gone to foreign country in connection with work; victim's mother Afsana was looking after her studies and she is a working woman; victim is student of B.Sc. Ist year; Tarik s/o Mateen, r/o Mohalla-Heeralal, Mawana, Near Naion wali Gali, Makhdumpur Stand, Mawana, District-Meerut has been continuously committing rape upon her on false pretext of marriage, and has made nude video clipping of the victim; when victim asked him for marriage, said accused used to ignore her; victim again made an attempt, on which the accused said that he would talk to his parents; victim has been continuously raped on pretext of marriage; due to shock, victim's mother Smt. Afsana expired on 28.7.2013; victim has been rendered helpless due to death of her mother; victim has young brother-sister; accused took victim's signatures on plain paper for preparation of marriage documents but has been postponing the marriage; on 25.12.2013 around 9:00 p.m., victim along with her younger sister Zeenat, went to the house of Mateen s/o Dost Mohammad, Shahbaaz s/o Mateen, Smt. Shaheen w/o Mohd. Mateen and Tarik s/o. Mateen, r/o. Mohalla - Heeralal, Naion Wali Gali, Makhdumpur Stand, Mawana; after reaching the house, victim disclosed to said persons that Tarik had been committing rape upon her for about last two years on pretext of marriage and now she wants to marry him; then Shaheen hurled filthy abuses at the victim and assaulted her; victim opposed the same, on which Mateen armed with iron rod and Shahbaaz armed with stick, beaten the victim, as consequence whereof victim sustained internal injuries, and Shaheen and Tarik tied a noose around the neck of the victim with dupatta/cloth with intention to kill her; when the victim raised alarm, the passers-by of the locality, viz. Mehtab, Javed, Abad, victim's sister Zeenat and many other persons came over there and rescued victim from said persons; after escaping from there, victim started for police station, when Tarik threatned that if you will lodge a report, then your nude clippings will be circulated in the locality and town, and you will neither remain eligible for marriage nor virgin; victim has requested the Police Station Incharge, Mawana to lodge report and give direction for providing life protection to her brother and sister.
4. F.I.R. was lodged on 27 December, 2013 at 10:00 A.M. at Police Station - Mawana against the accused-respondent under Section 376, 323, 504, 506 IPC. After investigation, police report/chargesheet was filed under the aforesaid sections. The charge under Sections 376, 323, 504, 506 I.P.C. was framed by the trial court. Accused denied the charges and claimed trial. Trial Court acquitted the accused - respondent as the prosecution failed to prove the charge beyond reasonable doubt.
5. The prosecution to prove the charge examined victim (PW-1), Smt. Zeenat (PW-2) younger sister of the victim, Aabad (PW-3), Kesav Datt Sharma, Retd. S.I. (PW-4), Head Constable Raj Singh (PW-5), Dr. Smt. Saranju Baliyan (PW-6).
6. The prosecution in support of its case produced the documentary evidence being Written report (Exhibit Ka-1), statement of the victim (Exhibit Ka-2), site plan (Exhibit Ka-3), charge sheet (Exhibit Ka-4), chik FIR (Exhibit Ka-5), carbon copy of GD entry (Exhibit Ka-6), report of weeding of original GD by SSP office (Exhibit Ka-7), medical examination report (Exhibit Ka-8), supplementary medical report (Exhibit Ka-9).
7. The statement of the accused was recorded by the trial court on 24 July, 2019 under Section 313 Cr.P.C. The accused in his statement under Section 313 Cr.P.C. has stated that he has been falsely implicated and incident alleged is false. It is also stated by the accused that the victim was having one sided affair and she was creating pressure on the accused for marriage and he refused to marry, the present false case has been lodged.
8. The investigation in the present case was initiated on the basis of the first information report dated 26 December, 2013 (Ex.Ka.1). On the aforesaid basis, the Chik FIR was prepared and the same was marked as Ex.Ka.5 and the entry was made in the General Diary of the police Station being Ex.Ka.6. The first information report was registered as Case Crime No.829 of 2013 under Sections 376, 323, 504, 506 I.P.C. at Police Station Mawana, District Meerut.
9. During investigation, the statement of the victim was recorded under Section 164 Cr.P.C. by the court concerned. The statement of the victim recorded on 1 January, 2014 was marked as Ex. Ka.2 before the trial court. Victim in her statement has stated that the incident is of 25 December, 2013; she knew Tarik earlier; Tarik assured the victim to marry her and she knew Tarik for last two years; accused by assuring her for marriage had physical relation for last two years; when the victim asked the accused for marriage he would assure that he will talk to his parents. On 25 December, 2013 at 6.00 pm when the victim along with his sister went to the house of the accused to talk about marriage, then accused, his mother, his father and brother have beaten them and threatened for life and thrown them out of their house; threatened that he has prepared a video clip of the victim and in case victim harass him he will upload the same on social media. She has also stated that accused threatened that the way he has treated victim, he will also treat his sister.
10. The Investigating Officer also prepared the site plan of the place of incident on 30 December, 2013. The site plan is marked as Ex.Ka.3. The site plan was prepared by S.I. Keshave Datt Sharma (PW4).
11. After investigation, the charge sheet was submitted by the Investigating Officer. S.I. Keshav Datt Sharma being PW4. The charge sheet was submitted against the accused under Section 376, 323, 504, 506. The charge sheet is marked as Ex.Ka.4 before the trial court.
12. The victim was medically examined by Dr. Smt. Swaranju Baliyan. Victim was examined on 30th December, 2013. In the medical examination, no external injury was found by the Doctor examining the victim and the hymen was old, torned and healed. The medical examination report dated 30th December, 2013 was marked as Ex.Ka.8 and was proved by PW6.
13. The supplementary medico legal report was also prepared on the basis of the pathology report. In the aforesaid report, no spermatozoa was found. The supplementary report was marked as Ex.Ka.9 was proved by PW6.
14. In support of the prosecution case, victim (PW1) has been examined before the trial court. She has stated that she knew accused for last two years. The accused after making false promise of marriage raped her and also prepared nude video clips; when victim asked the accused for marriage he would assure the victim that he would talk to his family members. On 25 December, 2013, victim along with her younger sister, at about 6.00 pm went to the house of accused; at the house of the accused his father, mother and brother were present and when the victim informed the family members of the accused that the accused was committing rape on the promise of marriage, his family members started abusing and beating the victim and also beaten the victim with rod; thereafter, the accused with the intention to kill the victim has used his Dupatta for strangulation and as a result of the same, the victim sustained injuries; on the alarm by the victim, neighbours of the locality came and saved the victim and her sister; accused and his family members also threatened that in case she report the incident to any person, they will viral the video clipping; she stated that she went to the police station however, her report was not lodged and thereafter, on 26 December, 2013 she had made complaint to the Senior Superintendent of Police, Meerut. The aforesaid witness has proved the first information report Ex.Ka.1. The victim has also stated that her statement was recorded under Section 164 Cr.P.C. and the same was marked as Ex.Ka.2. The victim has also stated that she was medically examined at District Women Hospital, Meerut.
15. The prosecution has further examined Smt. Zeenat as Prosecution witness no 2. The said witness has stated that she knew the accused. She has stated that the victim is her elder sister; she has stated that accused promised the victim to marry her and on the promise of marriage he developed physical relation with the victim. On 25 December, 2013, accused called the victim to her house for talking about marriage. She along with her sister/victim went to the house of accused; accused along with his mother, father and brother were present. Accused and his family members abused the victim and had beaten her. The victim was also beaten by rod as a result of the same, she sustained injuries. On the alarm, the neighbours came; accused threatened the victim that he has video clip of the victim, which he will show to all the persons or otherwise do not make any report of the incident; victim went to the police station however, her report was not registered and thereafter, on the next date the victim went to the Senior Superintendent of Police, Meerut and gave the application.
16. The prosecution further examined Abaad (PW3), who has stated that he knows accused who lives near his house; he has stated that the victim and accused were having relation and talks of marriage was going on between them; the victim and accused were in relationship for past two years from the date of incident; accused did not marry the victim; on 25 December, 2013 at about 5-6 pm he was present in his house; when he came out of his house he heard noise coming out from the house of Mateen and a huge crowd was assembled at the door steps of accused; when the witness went to the house of Tarik, father of accused namely Mateen, his wife Shaheen, his son Shahbaz, victim and her sister were present. Zeenat was shouting and accused, Shahbaz, Mateen and Shaheen were beating her; victim was raising alarm and was stating that for last two years, accused was making false promise of marriage and was having physical relationship with the victim. Javed and other persons were also present who saved the victim and her sister; accused and his family members were abusing the victim and her sister; the victim and her sister went home crying.
17. The prosecution has further examined Keshav Datt Sharma, retired Sub-Inspector as Prosecution Witness No 4. The said witness has stated that on 27 December, 2013 he was posted at Police Station Station - Mawana as Sub-Inspector; on 27 December, 2013 he has received investigation of the present case and CD-1 was prepared in respect of the application of the victim; on 30 December, 2013 statement of victim under Section 161 Cr.P.C. was recorded; on the identification by victim, the place of incident was visited and the site plan was prepared and the same was marked as Ex. Ka.3; victim was medically examined at District Women Hospital, Meerut; on 1 January, 2014 the statement of the victim under Section 164 Cr.P.C. was recorded and the statement of witness Km. Zeenat was recorded. On 20 January, 2014, accused was taken on remand. On 9 February, 2014, supplementary medical report was received and the statement of Dr. Suranju Baliyan was recorded under Section 161 Cr.P.C. On 22 February, 2014 statement of witness Javed, Aabad, Mohd. Salim was recorded; during investigation the name of Mateen, Shahbaz and Smt. Shaheen was found to be falsely implicated and as such was taken out of investigation; chargesheet was submitted against accused under Section 376, 323, 504, 506 I.P.C. and the charge sheet was marked as Ex.Ka.4.
18. The prosecution has further examined HC-366 Raj Singh as PW5; he has stated that on 27 December, 2013 he was posted as Constable/Clerk at Police Station Mawana; on the said date he had received by post typed application of the victim and on the aforesaid Case Crime No.829 of 2013 was registered under Section 376, 323, 504, 506 I.P.C. against accused and others and the Chik FIR was marked as Ex.Ka.5. The GD entry was made and the carbon copy was marked as Ex.Ka.6. He has also stated that the original General Diary has been weeded out and he has received letter from the office of Senior Superintendent of Police and the same was marked as Ex.Ka.7.
19. The prosecution has further examined Dr. Smt. Suranju Bailiyan as PW6. She has stated that on 30 December, 2013 she was posted at District Women Hospital, Meerut on the post of Senior Consultant; on 30 December, 2013 at 1.45 pm she had examined the victim; victim had given her date of birth as 7th July, 1993; victim had stated that since April, 2011 she had relationship with the accused and the relationship was made on the promise of marriage; the accused thereafter, refused to marry her; 12 days prior to the medical examination accused had made physical relation with the victim. Witness has further stated that on examination she did not find any external injury, hymen was old, torned and healed; she had send the vagina slide for further examination. She has proved the medical examination report and the same was marked as Ex.Ka.8; on 9th February, 2014 on the basis of pathology report she had prepared the supplementary report in which no spermatozoa was found and the report was marked as Ex.Ka.9.
20. The prosecution case is that the accused on the promise of marriage with the victim entered into physical relation with the victim and when the victim asked the accused to marry her, he refused to marry. Accused had physical relation with the victim for two years prior to lodging of the first information report. Victim being PW1 has stated that she knew accused for last two years. Accused after making false promise of marriage raped her and also prepared nude video clips; when victim asked the accused for marriage he would assure the victim that he would talk to his family members.
21. Victim has not made any statement before the trial court that the accused ever went to the house of victim. Victim further stated that she went to the house of accused. Victim further in her cross examination has admitted that she was having love affair with the accused. Further stated that she had gone to the house of accused on several occasion in the last two years prior to the lodging of the first information report.
22. The investigating officer has further stated in his cross examination that the victim has not given details of the date, time and month when physical relation was made between the victim and the accused. Victim has not disclosed as to the place where the physical relation with the accused was made; Victim has not stated that the accused person has made physical relation with her without consent and forcefully. Victim has further not stated as to how many times accused had made physical relation with the victim. Investigating officer has further stated that during investigation no evidence has surfaced that the accused had committed rape of victim. Investigating officer has further testified that the victim wanted to marry the accused and the accused did not want to marry the victim.
23. Abaad (PW 3) has stated that he has not seen the accused committing any objectionable conduct with the victim and the statement made before the trial court was made on the basis of whatever he has heard. Abaad (PW3) is not the eyewitness of the alleged incident nor he has any knowledge with regard to the prosecution case and whatever is stated on the basis of the hearsay.
24. Zeenat (PW 4) who is sister of the victim specifically stated in her statement before the trial court that victim had never informed about her relationship with the accused to any member of family. She has stated that accused had called the victim for talking about marriage.
25. Victim prior to the present First Information Report had lodged on 22 December, 2013 a report at Police Station - Mawana that accused and another were harrasing the victim and when the victim opposed such conduct, then accused thereatened her for life. It is to be noted that the present first information report was lodged on 26 December, 2013, four-days subsequent to the report dated 22 December, 2013 by the victim against the accused person. The allegations in the report dated 22 December, 2013 was of harassment/objectionable conduct of the accused with the victim, whereas in first information report the allegation is that the accused had physical relation with the victim on the promise of marriage. Victim never made any report with regard to physical relation on the promise of marriage in her report dated 22 December, 2013 however when the first information report was lodged on 26 December, 2013, the allegations of rape on false promise of marriage surfaced and as such the conduct of the victim creates doubt on the prosecution story. The aforesaid further is indicative of the fact that no rape was conducted on the person of the victim by the accused person.
26. The victim on earlier occasion was residing with Aditya and father of Aditya had submitted an application to the District Magistrate which is paper number 29 Kha/2 to 29 Kha/3 and a compromise was also entered being paper no 29 Kha /5 and from the aforesaid it is evident that 1 ½ years prior Victim and Aditya had relation on Facebook; they were having love affair; paper number 29 Kha /7 which is written by Aditya Sharma and wherein the aforesaid person has promised that he will marry the victim and he will not harass the victim. He has also written that they will live as husband and wife. On the aforesaid document, victim has also signed.
27. Further, Aditya Sharma has lodged a first information report dated 27 August, 2017 being Case Crime No. 517 of 2017, under section 384 IPC being paper number 29 Kha/9 wherein it is alleged that the victim and the informant entered into friendship on Facebook and they had differences and as such a compromise was entered into in presence of villagers between both the parties and had paid ₹ 1 lakh with the promise that both the parties will not be in contact with each other and the victim will not harass the family members of Aditya. However, on 9th June, 2017 victim with the intention of blackmailing Aditya started harassing him and his family members that they will be send to jail. He has also alleged that victim is a characterless girl.
28. Further another document being paper number 29 Kha/13 is NCR dated 1st September, 2017, under section 323 IPC lodged by victim against Aditya that on 4 September, 2017 at about 11:30 AM with allegation that Aditya had beaten the victim.
29. The victim in her statement before the trial court has stated that she goes to the house of the accused at any time of the day. She also stated that the accused had taken her to the house of a friend on one occasion; he had also taken her to hotel at Delhi.
30. From the statement of the victim, it is evident that she has not given any evidence that the accused had on false pretext of marriage engaged in physical relationship with the victim. Further she has also not stated the time, place and date when physical relationship/ rape was committed by the accused. Victim further stated that her date of birth is 9 July, 1993 and as such the victim was major on the date of alleged incident.
31. It is to be noted that where the physical relationship is made between two persons on consensual basis then the allegations of rape cannot be founded unless consent is not voluntarily.
32. Rape is defined in section 375 of the Indian Penal Code as sexual intercourse with a woman, against her will, without her consent or with her consent where the consent has not been obtained voluntarily. Where a woman enters into physical relationship with a man voluntarily, the aforesaid act may not come within the purview of rape when the parties to the aforesaid act are major. The law recognises individual freedom to have physical relation with person of opposite sex as a legitimate right under Article 21 of the Constitution.
33. The sexual intercourse between a man and a woman without the consent of women is rape. In the present case there is no allegation with regard to the fact that the victim was subjected to physical relationship without her consent or forcefully. The allegations against the accused are that the accused entered into physical relationship with the victim on the false promise of marriage. Section 375 of the Indian penal code postulates sexual intercourse with a woman with her consent as rape where such consent has not been obtained voluntarily.
34. Section 114-A of the Evidence Act, 1872 (hereinafter referred to as "the 1872 Act") 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 1872 Act be pressed into service. The sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 375 and 376 I.P.C have to be taken into consideration, along with the provisions of Section 90 IPC.
Section 90 I.P.C provides that any consent given under a misconception of fact, would not be considered valid consent and in the context of Section 375 I.P.C, such physical relationship would tantamount to committing rape.
35. Section 90 IPC defines "consent" known to be given under fear or misconception:
"90. Consent known to be given under fear or misconception.- A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;"
36. Where a woman does not "consent" to the sexual acts described in the main body of Section 375, the offence of rape has occurred. While Section 90 does not define the term "consent". A "consent" based on a "misconception of fact" is not consent in the eye of the law.
37. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
38. The Apex Court in Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 has observed as under :
"12. This Court has repeatedly held that consent with respect to Section 375 IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. In Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 which was a case involving the invoking of the jurisdiction under Section 482, this Court observed :-
"15. ... An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of."
39. This understanding was also emphasised in the decision of this Court in Kaini Rajan v. State of Kerala [Kaini Rajan v. State of Kerala, (2013) 9 SCC 113 :-
"12. ... "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the 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."
40. The consent given by the prosecutrix to have sexual intercourse with whom she is in love, on a promise that he would marry her on a later date, cannot be persumed as given under "misconception of fact". Whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under "misconception of fact" depends on the facts of each case. While considering the question of consent, the Court must consider the evidence before it and the surrounding circumstances before reaching a conclusion. Evidence adduced by the prosecution has to be weighed keeping in mind that the burden is on the prosecution to prove each and every ingredient of the offence. Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception and that promise made was false to his knowledge. The failure to keep the promise on a future uncertain date may be on account of variety of reasons and could not always amount to "misconception of fact" right from the inception.
41. The Apex Court in Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 observed as under :
"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
42. The Apex Court in Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 observed as under :
"23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC."
43. It is not the prosecution case that physical relationship was entered into without the consent of the victim or she was forcefully raped by the accused. The victim was major on the date of alleged occurrence. There is no evidence to the fact that the victim and the accused were seen together in a room by family members or any other person. There is no evidence to the fact that there was any relationship between the victim and the accused. No nude video of the victim was recovered during investigation.
44. The medical evidence and the statement of Doctor who conducted medical examination of victim indicates that there was no external injury found on the body of the victim and the hymen was old, torned and healed. No spermatozoa was found in the viginal seamer of victim nor any internal injury in the private part was found. Medical evidence does not support the prosecution story. Prosecution witness no 6 has stated in a cross examination that she did not find any evidence of sexual assault or physical relationship.
45. On the basis of the aforesaid, the trial court came to the conclusion that there is material contradiction in the statement of victim and the physical relationship was established with the consent of the victim, who is major. The prosecution case is surrounded by suspicious circumstances and is doubtful and no case under section 376 IPC is made out against the accused.
46. It is further to be noted that as per the prosecution case the victim was subjected to rape for two years on the promise of marriage. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act. There is no evidence or circumstance in the present case that there was false promise of marriage which was given in bad faith. Further, the allegation of physical relationship with the victim in the facts and circumstances of the present case does not bear any direct nexus to the promise of marriage. The prosecution case rests upon the fact that the accused had physical relationship on the promise of marriage with the victim however when the victim asked the accused to marry her he resiled from his promise to marry. There is no evidence as to the date, time and place when the accused promised to marry the victim. No evidence has been led that the initial promise of marriage was in bad faith. A failed relationship between two persons which did not culminate into a marriage may not amount to an offence under the Indian penal code. The prosecution has not proved the date, time and place when the alleged rape was made by the accused on the victim.
47. The prosecution case further alleges that on 25 December, 2013 at about 6.00 pm accused and his family members had abused and beaten the victim. As per the first information report, victim on 25th December, 2013 along with her younger sister - Zeenat went to the house of the accused, where Mateen, Shahbaz, Smt. Shaheen and accused Tarik were present. Victim informed the family members of the accused that accused on the false pretext of the marriage was having sexual relationship with the victim and she wanted to marry accused Tarik. Accused Tarik and his family members abused the victim and thereafter, have beaten the victim. When the victim objected to the aforesaid act of the accused person and his family members, then Mateen with iron rod, Shahbaaz with danda, beaten the victim and, as a result of the same, victim sustained injuries. It is also alleged that Shaheen and Tarik have entangled dupatta in her neck. When the victim made distress call, the neighbours and other persons came and she was saved.
48. The victim was medically examined by Dr Suranju Kumar Baliyan (PW6). The medical examination report was exhibited as Ex.Ka.8. As per the medical examination report, no external injury was found on the person of the victim. The doctor who conducted the medical examination of the victim testified before the trial court as PW6. The aforesaid witness has stated before the trial court that no external injuries were found on the body of the victim. The medical examination of the victim was conducted on 30 December, 2013 at District Woman Hospital, Meerut at about 1:45 PM.
49. It is also alleged in the first information report that on 25th December, 2013 victim went to the house of the accused along with younger sister-Zeenat and she was examined before the trial court as PW2. The aforesaid witness has testified before the court that the accused person and his family members have beaten victim and she sustained injuries on account of the aforesaid beating by the accused and his family members. The aforesaid account of the witness does not corroborate with the medical evidence. Further, aforesaid witness has not stated that the accused Tarik and Shaheen had strangled the victim with Dupatta.
50. Abaad (P.W.-3) has stated that he knows accused who lives near his house; he has stated that victim and accused were having relationship and talk of marriage was going on between them; victim and accused were in relationship for past two years from the date of incident; accused did not marry the victim and as such on 25 December, 2013 at about 5-6 pm he was present in his house; when he came out of his house he heard noise coming out from the house of Mateen and a huge crowd had assembled at the door steps of accused; when the witness went to the house of Tarik, father of accused Mateen, his wife Shaheen, his son Shahbaz, victim and her sister were present. At that place Zeenat was shouting and accused, Shahbaz, Mateen and Shaheen were beating her; victim was raising alarm and was stating that for last two years the accused was making false promise of marriage and was having physical relationship with the victim. Javed and other persons were also present who saved the victim. Witness further stated that the medical examination of the victim was held on the same day; he had gone along with the victim for medical examination; victim was having injury; doctor had seen the injury of the victim on 25.12.2013; on 25.12.2013 the police had taken the victim to the doctor; advocate had written the first information report; medical of the victim was held between 9 pm to 10 pm and thereafter the report was prepared; he is stated that the victim sustained 40-50 injuries on her body. The said witness stated that the first information report was lodged on the same day of occurrence at police Station. As per the first information report, the same was lodged on 27/12/2013 after the directions of the Senior Superintendent of Police, Meerut. The medical examination of the victim was held on 30/12/2013 at District Hospital, Meerut. As per the Medical Examination Report no injury was found on the body of the victim. The medical testimony of the doctor also confirmed that there were no external injury and no injury in the private part of the victim. On the aforesaid basis, the testimony of the PW-3 that the victim sustained injury on account of beating/physical assault is not corroborated with the medical evidence. There is serious contradiction in the evidence of prosecution witness no 3 as detailed hereinabove and as such the testimony of the aforesaid witness is doubtful. The trial court on the aforesaid basis discarded the testimony of PW-3.
51. The trial court on the basis of the aforesaid has acquitted the accused for offence under section 376, 323, 504 and 506 by means of judgment dated 10 December, 2013.
52. Considering the overall circumstances and submission of learned A.G.A. and after going through the evidence and lower court record, we are unable to persuade ourselves in taking a different opinion from that of trial court. The trial court was fully justified in acquitting the accused-respondent.
53. Learned AGA failed to point out any illegality, infirmity or perversity in the judgment of the trial court.
54. The leave to appeal application is, accordingly, rejected.
55. The appeal, in consequence, stands dismissed.
Order Date :-9.3.2022
Bhaskar
(Vikram D. Chauhan, J.) (Suneet Kumar, J.)