Delhi District Court
(Judgment) State vs . Arvind on 5 March, 2018
(Judgment) State Vs. Arvind
SC No.103/15
FIR No.838/14
PS : Vijay Vihar
U/s.376/323 IPC
IN THE COURT OF SH. SHAILENDER MALIK
ADDITIONAL SESSIONS JUDGE, SPECIAL FAST TRACK COURT,
NORTHWEST, ROHINI, DELHI
In the matter of:
SC No.103/15
FIR No.838/14
Police Station : Vijay Vihar
Under Sections : 376/323 IPC
State
Versus
Arvind
S/o. Sh. Kaleshwar
R/o. K56, Vijay Vihar,
PhaseII,
Delhi ......Accused
Date of FIR : 30.07.2014
Date of institution/committal : 28.10.2014
Charge framed on : 15.05.2015
Arguments advanced on : 19.02.2018
Judgment Pronounced on : 05.03.2018
Decision : Acquitted
Appearance:
Sh. Himanshu Garg, Ld. Addl. PP for the State.
Sh. Anwar Ahmed Khan, Ld. Counsel for accused.
Page 28 of 28
(Judgment) State Vs. Arvind
SC No.103/15
FIR No.838/14
PS : Vijay Vihar
U/s.376/323 IPC
JUDGMENT
1. Accused Arvind s/o. Sh. Kaleshwar is facing prosecution for the offences u/s.376/323 IPC.
2. Prosecution story precisely stated is that on 30.07.2014, WSI Sumitra upon receipt of DD no.50B got complainant/ prosecutrix medically examined and collected MLC. On same day, IO recorded statement of prosecutrix 'S' (name withheld to protect privacy). Prosecutrix stated in her statement that she resides with her family in a rented accommodation and is working in A.P. Kent R.O. About 1½ year earlier, accused Arvind was running shop of motorcycle repair, near her house in Laxmi Park, Nihal Vihar. Prosecutrix says that earlier she was doing work of selling tea and samosas (snacks) etc. from her house. Accused Arvind used to frequently come to her shop for tea and snacks etc. During their talks, she and Arvind started loving each other. Prosecutrix says that one day, accused Arvind asked for marriage with her and told her that he is bachelor. Prosecutrix says that she got attached to Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC him and started meeting Arvind.
3. Prosecutrix says that on 26.12.2013, she and Arvind came from their house and Arvind asked her to find a room. Prosecutrix says that her friend arranged a room near Azad Pur Vegetable Market. Where accused Arvind established physical relations with her on false promise of marriage. Prosecutrix says that after staying in that room for three days, accused Arvind told her that he is already married and he called his wife Pooja by making a call to her, in that room in Azad Pur Market. Then wife of accused Arvind came to that room and started arguing with Arvind. Prosecutrix says that thereafter they three came to Sector5, Rohini, where from her sister ('P') took her to their house at Laxmi Park. Prosecutrix says that she made a complaint to police against accused Arvind. On 31.12.2013, Arvind voluntarily accepted his mistake in the PS Adarsh Nagar. Prosecutrix says that she then did not ask for any police action, as there was settlement between them.
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(Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC
4. Prosecutrix says that after some days on 25.05.2014, Arvind met her in Mangol Puri and he pressurised her to live with him. Prosecutrix says that she denied for the same. She says that accused Arvind told her that if she would not live with him, then he will commit suicide. Upon which prosecutrix stated to have agreed to live with him. Prosecutrix says that on 04.07.2014, accused Arvind took her to house of his friend in Sector5, Rohini, where he established physical relations with her, against her consent. Prosecutrix further says in her complaint that when accused Arvind asked her to meet, she told him that first he should disclose about their relations to his wife, then she will meet him. Prosecutrix alleges that accused Arvind refused to disclose to his wife. Prosecutrix states that on 28.07.2014, when she was going to house of accused Arvind, which is in Vijay Vihar, accused Arvind met her on the way, near Sector4, Petrol Pump. Prosecutrix says that she told him that she wants to meet his wife, upon which he gave beating to her. Prosecutrix says that at that Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC time, she did not make complaint about his giving beating to her, because accused Arvind told her that he will keep her also with his wife. But now, accused Arvind has denied for it. She alleges that accused Arvind has committed rape upon her by giving false assurance of marriage with her.
5. On the abovesaid complaint of prosecutrix, present case was registered. During the investigation, statement of prosecutrix was also recorded by Ld. MM u/s.164 Cr.P.C. Accused Arvind was arrested. After completion of investigation, chargesheet was filed against the accused for the offence u/s.376/323 IPC.
6. Considering the evidence on record, Ld. Predecessor of this Court vide order dated 15.05.2015, framed charge for the offences punishable u/s.376 (2)(n) / 323 IPC against the accused, to which he pleaded not guilty and claimed trial.
7. In order to substantiate the charge, prosecution has examined as many as 12 witnesses.
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(Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC PW Name of Nature of Documents proved witness witness PW1 ASI Ashok Duty Officer PW1 has proved the handing over of tehrir sent by IO, on the basis of which, FIR was registered vide Ex. PW1/A. This witness also proved the certificate u/s.65B of Indian Evidence Act as Ex. PW1/B qua registration of FIR and her endorsement on the rukka as Ex. PW1/C. PW2 Dr. Brijesh Medical of The accused was examined Narayan Singh accused by Dr. Neeraj in the supervision of PW2, who prepared MLC of accused Arvind Ex. PW2/A after his medical examination.
PW3 Dr. Mukesh Conducted The witness conducted Kumar potency test potency test upon the of accused accused at the request of IO and he proved his report / opinion vide Ex. PW3/A. PW4 HC Purshottam MHCM The witness was working as MHCM in the PS at the relevant time. He proved the relevant entries qua deposition of case property by IO in the Malkhana, sending the same to FSL and collection of acknowledgment Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC of FSL vide Ex. PW4/A to PW4/D respectively.
PW5 Ct. Dharamvir Witness of The witness joined the investigation investigation with IO WSI Sumitra on 01.08.2014 and the accused was arrested vide arrest memo Ex. PW5/A and his personal search was conducted vide memo Ex.
PW5/B. Thereafter, accused was got medically examined from BSA Hospital, where doctors handed over sealed parcels pertaining to the accused and the same were taken into police possession vide memo Ex. PW5/C. Thereafter, accused was produced before the Court and remanded to JC.
PW6 Dr. Annu Regarding She has appeared on behalf
medical of Dr. Deepika Gupta, who
examination conducted medical
of examination of prosecutrix on
prosecutrix 30.07.2014 and proved the
MLC of prosecutrix as Ex.
PW6/A.
PW7 'S' Prosecutrix/ She had narrated the
complainant incidents leading to
registration of FIR. She has
also proved her complaint Ex.
PW7/A. She has also proved
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(Judgment) State Vs. Arvind
SC No.103/15
FIR No.838/14
PS : Vijay Vihar
U/s.376/323 IPC
her MLC Ex. PW6/A and her
statement recorded by Ld.
MM u/s.164 Cr.P.C. Ex.
PW6/B.
PW8 W/Ct. Anita She got the She had accompanied the
prosecutrix prosecutrix when she was
medically taken to BSA Hospital for her
examined medical examination.
PW9 Ct. Jai Singh Witness The witness was deputed to
deposited deposit case property at FSL
the case Rohini. He proved the
property at relevant entry as Ex. PW9/A
FSL and acknowledgment of FSL
as Ex. PW9/B.
PW10 Inspector 2nd She was assigned further
Vipnesh Investigating investigation of the case and
Officer she got the exhibits sent to
FSL Rohini through Ct. Jai
Singh/PW9. She recorded
statements of witnesses
u/s.161 Cr.P.C. and after
completion of investigation of
the case, I filed the charge
sheet.
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(Judgment) State Vs. Arvind
SC No.103/15
FIR No.838/14
PS : Vijay Vihar
U/s.376/323 IPC
PW11 Ms. Shefali Recorded She has proved the recording
Barnala statement of statement of prosecutrix
Tandon, Ld. u/s.164 u/s.164 Cr.P.C. Her initial
MM Cr.P.C. proceedings before recording
statement are Ex. PW11/A
and statement of victim are
Ex. PW7/B. PW11 also
proved the certificate
regarding correctness of
recording her statement Ex.
PW11/B. She further proved
her directions for sending the
proceedings to the Court
concerned vide Ex. PW11/C.
PW12 WSI Sumitra Investigating She has deposed about the Officer steps taken by her during the course of investigation. She has given the details of steps taken by her and has deposed about meeting of prosecutrix in the PS and thereafter sending her to BSA Hospital for getting her medical examination conducted through Ct. Anita.
After returning from the hospital, she was handed over sealed parcels pertaining to the prosecutrix, which took into police possession vide memo Ex. PW12/A and then recording of statement of Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC complainant and preparation of tehrir Ex. PW12/B. PW12 alongwith Ct. Anita and Ct.
Virender went to the house of accused, and met his wife, who told that accused did not live there. Then she reached to the house of father of accused at Laxmi Park and made enquiries from him.
Then she got recorded the statement of prosecutrix by Ld. MM vide her request Ex.
PW12/C. On 01.08.2014, she alongwith prosecutrix and Ct.
Dharmender reached the house of accused Arvind and he was arrested from there vide arrest memo Ex. PW5/A and personal search memo Ex. PW5/B. Accused was then got medically examined through Ct. Dharambir and his sealed parcels handed over by the doctors were taken into possession vide seizure memo Ex. PW5/C.
8. Upon completion of prosecution evidence, accused was called upon to explain and all the incriminating evidence put to him Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC u/s.313 Cr.P.C. wherein while denying all the evidence, accused has taken the defence that he is innocent and falsely implicated in this case. Accused further states that on 15.10.2015, prosecutrix met him, when he was in jail. She stated to have met him on 2 / 3 times, while he was in jail, alongwith his wife.
9. No evidence was led in defence.
10. I have heard Sh. Himanshu Garg, Ld. Addl. PP for the State and Sh. Anwar Ahmed Khan, Ld. Counsel for the accused. I have also gone through the written submissions filed on behalf of the accused.
Statement of prosecutrix recorded u/s.164 Cr.P.C.
11. Before I discuss evidence on record, it is appropriate to reproduce herein, statement u/s.164 Cr.P.C. of prosecutrix, to appreciate facts and evidence. Statement of prosecutrix as recorded on 31.07.2014 reads as :
"I know accused for last 1½ year and I love him. On his asking, I ran away from my home and went alongwith him. We took one room in Azad Pur, where we stayed for Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC four days. During this period, physical relations were established between us, with my consent. But I was not aware that Arvind was already married. On 30 December, 2013, I came to know that he is married, then I met with his wife. Then Arvind and his wife told me that we all three will live together but he denied it, next morning. Then I went to PS Adarsh Nagar, there we entered into a settlement and I went to my house. Then Arvind met me after five months and gave me his mobile number. He started taking round in street of my home. Then, he again established physical relations with me by emotional blackmail. But now he is neither keeping me with him nor solemnizing marriage with me.
When I forced him, he gave me severe beating on last money because of which I received many injuries and I got should fracture.
Police officials are pressurising me for compromise. This is what I wanted to tell. I have heard my statement, it is correct."
Discussion of evidence
12. Let us now examine evidence. Most material witness in present case is prosecutrix, who has appeared in witness box as PW7. Prosecutrix says that she is working in the company AP Kent. About 1 ½ year prior to the joining service in AP Kent, she used to sell tea and samosas from a shop at her house, where accused Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC Arvind used to come to take tea and samosas from her shop. PW7 says that accused developed friendship with her and both of them started liking each other. Prosecutrix further says that one day, accused called her in the street behind her house, when she went there, accused proposed her for marriage. PW7 says that she enquired from the accused about his marital status, accused told her that he is bachelor. Witness further says that after few days, accused told her to go somewhere and to perform marriage and thereafter, they will live together. PW7 says that she got agreed for the same and left her house. She stated to have gone with the accused to Old Delhi Railway Station, where they spent night together. Thereafter, accused asked her to find a house for stay, upon which, PW7 stated to have called friend of her elder sister to arrange a house for her. Said person arranged a room at Azad Pur near Vegetable Market. PW7 says that accused told her that he will marry her next morning and asked for establishing physical relations in the night, but PW7 stated to have told him Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC that we will not have any relations in the room, but accused established physical relations with her and in the morning, he told her that he would marry her next day. PW7 further says that accused again established physical relations with her on second night. After three days, accused told her that he was married.
13. PW7 further testifies that accused thereafter called his wife Puja in that room. Wife of the accused told her that now they will live together, in order to prevent prosecutrix from lodging any complaint against accused. PW7 says that thereafter they went to Sector5 Rohini in a park, where her sister was called by wife of the accused. PW7 says that there, wife of the accused started quarreling them and told them that she cannot stay with her and accused. PW7 stated to have come back to her home. She stated to have lodged a complaint on 31.12.2013 in PS Adarsh Nagar, where accused was produced by the police, however, she withdrew her complaint on the advise of her sister Puja and wife of the accused.
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(Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC
14. PW7 further says that after about 5 months, accused again started roaming around her house and her family members scolded him. Accused sent his mobile number through one of his friend and prosecutrix stated to have made a call to him by telling him not to roam around her house as she had nothing to do with him. PW7 says that on 25.05.2014, accused Arvind came to her house in an auto being driven by him and took her alongwith him in that auto. Accused stopped his auto in Mangol Puri and told her that he loves her and asked her to stay with him, but PW7 stated to have refused. Witness says that accused picked up a brick and told her that he will hit it on his head and would commit suicide. PW7 told him that she would stay with him on the condition that he would arrange a meeting with his wife and she would agree to keep her. Accused agreed for the same. PW7 says that on 04.07.2014, accused called her to Sector4 Rohini for meeting with his wife, when she went there, accused took her to the house of his friend, where friend of the accused left them in that house and locked it Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC from outside. PW7 says that there, accused again forcibly established physical relations with her. Later, friend of the accused came after two hours and she stated to have went back to her home.
15. PW7 further says that on 28.07.2014, she made a call to the accused telling him that she is going to meet his wife. Accused then met her at Sector5 Rohini Petrol Pump, wherefrom, they boarded on a rickshaw, in the meantime, brother in law of the accused saw them and accused got down from the rickshaw and started giving beatings to her. PW7 says that she got shoulder fracture. Later she lodged the complaint Ex. PW7/A and her statement u/s.164 Cr.P.C. is Ex. PW6/B.
16. Prosecutrix in her further examination in chief recorded on 11.05.2016 testified that she does not want to proceed with the case against the accused as she is going to be married and her parents have directed her to settle the matter with the accused. She says that she does not want to depose anything further. Page 28 of 28
(Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC Thereafter, prosecutrix was crossexamined on behalf of defence. Relevant portion of her crossexamination will be referred to later in this judgment. Having considered the examination in chief of the prosecutrix, it is evident that according to her, accused had promised her for marriage and thereafter, physical relations were established between accused and her, on the false assurance of marriage by the accused, whereas accused was later found to be already married. In the facts of present case what is crucial to be considered is whether, the accused is guilty of the act of sexual intercourse with the prosecutrix 'against her consent', when she has deposed that the accused promised marriage with her and had sexual intercourse with her on this pretext.
17. Considering definition of offence of rape whether Clause First or Clause Secondly of section 375, IPC is attracted. The expressions 'against her Will' and 'without her consent' may overlap sometimes but surely the two expressions in Clause First and secondly have different connotation. The expression 'against her Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC Will' would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression 'without her consent' would comprehend an act of reason accompanied by deliberation. 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 the mind of a person to permit the doing of an act complained of. Section 90, IPC refers to the expression "consent". Section 90, though, does not define "consent", but describes what is not consent. "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. The concept of 'consent' in context of section 375, IPC has come Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC up for consideration before Superior Courts on more than one occasion. Before I deal with some of these decisions, reference to section 90 of the IPC may be relevant which reads as under:
"Consent known to be given under fear or misconception
--A consent is not such a consent as it 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; or......"
18. Apex Court in a long line of cases has given wider meaning to the word 'consent' in the context of sexual offences as explained in various decisions. It is further stated that consent supposes three things--a physical power, a mental power, and a free and serious use of them and if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind. Evidence of the prosecutrix in this case needs to be analyzed and examined carefully. Law regarding physical relations on a false pretext of marriage is required to be discussed Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC briefly. In the case reported as Uday v. State of Karnataka, AIR 2003 SC 1639, the Hon'ble Supreme Court has held as under : "It therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid done by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."
19. In the case reported as Sujit Ranjan v State, 2011 LawSuit (Del) 601, the Hon'ble Delhi High Court has held that: Page 28 of 28
(Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC "Legal position which can be culled out from the judicial pronouncements referred above is that 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 considered 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."
20. In the case reported as Deepak Gulati v State of Haryana, (2013) 7 SCC 675, the Hon'ble Supreme Court has held that:
"Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC 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 malafide 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 any 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 mis representation 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 malafide, and that he had clandestine motives. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The " failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance." Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirely, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."
21. Thus, in Uday's case (supra) and Deepak Gulati's case (supra), the Hon'ble Supreme Court laid down the law that if the prosecutrix is mature to understand the significance and morality associated with the act, she was consenting to and that she was conscious of the fact that her marriage may not take place owing to various factors in those situation her consent cannot be considered to be affected by misconception of fact. Precisely stated where element to deceit from beginning or obtaining consent for sexual intercourse is not fraudulent, in that case consent of prosecutrix cannot be said have even affected by act described in section 375 IPC. Reference can be given of judgment in Tilak Raj Vs Satate of HP I (2016) SLT 262, wherein Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC it was held that on perusal of evidence on record, case set up by prosecutrix of alleged sexual exploitation on pretext of marriage, seems to be highly unrealistic and unbelievable. It was also held that there is no evidence against accused to infer any fraudulent or dishonest inducement of prosecutrix by accused to constitute offence under Section 415 IPC.
22. Coming now to the facts of the present case, as is evident from the evidence of prosecutrix, accused used to visit to her shop for taking tea and samosas etc. and then both of them developed friendship and started liking each other. PW7 says that then accused once proposed her for marriage and told her that he is unmarried. Later, it revealed that accused was already married. From the evidence of prosecutrix, it is clear that she developed love affair with the accused and by that stage, there was no proposal of marriage with the accused. From the case law, as discussed above, it is established that mere failure of promise of marriage, in itself may not allow to a deceitful act in every Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC circumstance. There should be evidence to show that accused had fraudulent intentions right from the beginning and consent of the prosecutrix for sexual intercourse was obtained deceitfully or by misconception of facts. In the evidence of prosecutrix, she has admitted that she left the house with the accused with her consent. There are certain improvements in the evidence of prosecutrix, however even if, those improvements in her evidence visavis in her previous statement, are ignored, still it would be clear that she left her house and arranged a room near Azad Pur Vegetable Market with full understanding of consequence of her conduct. Prosecutrix being a grown up lady admittedly established physical relations with the accused in that room in Azad Pur Vegetable Market, in such circumstance, it cannot be stated that there was any deceitful act only on the part of accused to derive her for indulging in sexual intercourse.
23. Another important aspect coming in the evidence of prosecutrix is that she stayed in the room with accused in the area of Azad Pur, Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC for about three days and then accused stated to have told her that he is already married and called his wife in that room. It also came in the evidence of prosecutrix that she thereafter lodged a complaint in PS Adarsh Nagar on 31.12.2013, however later she admittedly withdrew her complaint, on the intervention and advise of her sister as well as wife of the accused. Thus, even after coming to know that accused is married, prosecutrix admittedly settled with the accused, for reasons best known to her. This circumstance also clearly indicates that prosecutrix was rather already aware about the accused and still settled her dispute in the Police Station and did not pursue her complaint. In this regard, it is important to refer crossexamination of PW7, when she states that she knew about the accused being already married on 29.12.2013.
24. It has also come in the evidence of prosecutrix that even after coming to know that accused was married, prosecutrix still established physical relations with him. In this regard, PW7 has Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC testified that on 04.07.2014, accused has called her to Sector4 Rohini and then took her to the house of his friend, who left his house, leaving both of them in that house and locked it from outside. According to prosecutrix, accused forcibly established physical relations with her in that house of friend of the accused. However, according to her, she thereafter went back to her house without raising any alarm or making any complaint to anyone. If accused had forcibly established physical relations with her and prosecutrix being already aware that he was married person, it was very obvious and natural on her part to make a complaint, but she did not lodge any complaint at that time. PW7 has admitted in crossexamination that she did not lodge any complaint to the police on 04.07.2014.
25. Above discussed circumstance clearly established that prosecutrix had consensual relations with the accused and there was no element of deceit on the part of the accused. I find that evidence of the prosecutrix is not cogent enough to inspire any confidence Page 28 of 28 (Judgment) State Vs. Arvind SC No.103/15 FIR No.838/14 PS : Vijay Vihar U/s.376/323 IPC to show that accused deceitfully derived her for sexual intercourse with false promise of marriage. Taking the evidence of prosecutrix in totality coupled with the legal proposition as discussed above, I find that accused is certainly entitled for benefit of doubt. Consequently, I find that accused is entitled for acquittal. Accordingly, accused is acquitted of the charges against him. Accused is directed to furnish bail bond and surety bond in sum of Rs.10,000/ in compliance to Section 437A Cr.P.C.
26. File be consigned to Record Room on compliance to section 437A Cr.P.C.
Announced in open Court on 05th day of March, 2018 (SHAILENDER MALIK) ASJSpecial Fast Track Court NorthWest, Rohini Courts, Delhi Page 28 of 28