Delhi District Court
State vs Accused on 19 February, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE, (SPECIAL FAST TRACK COURT) KARKARDOOMA
COURTS, SHAHDARA, DELHI
Unique Case I.D. No.02402R0349042012
SC NO. 02/13 Date of Institution :04.01.2013
FIR No.124/12 Date of Argument :18.02.2013
PS Sonia Vihar Date of Order :19.02.2013
U/S 366/376 IPC
State Versus Accused
Anil Kumar
S/o Sh. Ram Pyari
R/o Gali No.1, A Block,
Ist Pushta, Sonia Vihar,
Delhi.
JUDGMENT
The facts in brief of the prosecution case are that Kumari ____X_____, aged 19 years, here in after referred to as the prosecutrix, had been living with her family at H. No. __________________Z________________, Sonia Vihar, Delhi and she was also doing B.A. from correspondence. Shri Anil Kumar, here in after referred to as the accused, had been a tenant in her house for about 3-4 months and thereafter, he had been residing in her neighbourhood in Street No.1, A Block, Sonia Vihar. They developed friendly relations. The accused also disclosed SC No.02/13 State vs. Anil Kumar Page 1 of 32 that he was unmarried. On 16.03.2012 at about 6:30 a.m. in the morning, the accused after giving allurement of marriage with her, took her to Jalandhar (Punjab) and assured that after meeting his mother they would solemnized the marriage. Instead, the accused kept her in a rented room and committed rape on her without her consent. He also disclosed that he was already married. She insisted for going to her parents but accused did not took her to her parents and instead had been making physical relations with her for a period of about six months. On her repeated insistence, accused took her to the house of her maternal uncle at Sonia Vihar on 16.09.2012. Her father also arrived there and they were taken to P.S. Sonia Vihar. She made her statement to the police. IO made endorsement on her statement and got the FIR No.124/12 at P.S. Sonia Vihar recorded u/s 366/376 IPC. WT message was flashed. Steps were also taken for publication of the message in the newspaper. The accused was arrested on the same day. His arrest memo and personal search memo were prepared. Prosecutrix was sent to GTB hospital by W/Ct. Geeta for her medical examination where her MLC was prepared. Her internal medical examination could not be conducted as she refused to give consent for her internal medical examination. Accused was interrogated. His disclosure statement was recorded. He was also sent to SC No.02/13 State vs. Anil Kumar Page 2 of 32 GTB Hospital by Ct. Jaiveer Singh for his medical examination where accused was medically examined and his MLC was prepared. Blood sample, etc. of accused were taken and given to Ct. Jaiveer Singh who handed over the same to IO. IO seized the samples vide seizure memo. His semen sample could not be taken as he did not cooperate. Doctor observed that there was nothing to suggest that the patient was incapable of doing sexual intercourse. On 17.09.2012, the prosecutrix was produced before Ld. M.M. for recording of statement u/s 164 of the Code of Criminal Procedure, here in after referred to as the Code. IO, after collecting the documents regarding age of prosecutrix, recording the statements of witnesses and after completion of investigation, filed a charge sheet against accused for his trial for the offences punishable u/s 366/376 IPC.
2. On appearance Ld. Metropolitan Magistrate, after supplying copies of charge sheet and documents to the accused, committed this case to the court of sessions.
3. This case was assigned to Shri T.S. Kashyap, Ld. ASJ (NE) and vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013. On constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & SC No.02/13 State vs. Anil Kumar Page 3 of 32 Sessions Judge, transferred this case to this court.
4. This court vide order dated 04.01.2013 opined that there was sufficient material on record to frame charge against the accused for the offences punishable u/s 365/366/376 IPC, therefore, charge against the accused for his trial for the said offences was framed and read over to him in vernacular language. He pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case examined HC Uttam Yadav as PW1; HC Surender Kumar as PW2; Sh. _________Y______ as PW3; Kumari ____X_____ as PW4; Sh. __Y-1__ as PW5; W/Ct. Geeta as PW6; W/Ct. Nisha as PW7; Ct. Jaiveer as PW8; Ct. Vishal as PW9; SI Yogesh Kumar as PW10; SI Mithlesh as PW11; SI Monika as PW12; Dr. Sushma, CMO, GTB Hospital as PW13; Smt. Maya Devi as PW14; Dr. Badri Narayan Sharma, CMO, GTB Hospital as PW15; Dr. Priyadarshani Nanda as PW16; Ms. Susheel Bala Dagar, Metropolitan Magistrate as PW17; and Dr. Ashesh Kumar Jha, Senior Resident, Department of Suregery, GTB Hospital as PW18.
6. After closing of prosecution evidence statement of the accused u/s 313 of the Code was recorded. All the SC No.02/13 State vs. Anil Kumar Page 4 of 32 material and incriminating evidence was put to him. Accused admitted that before 16.03.2012 he had been residing alongwith his maternal uncle in the house of prosecutrix and thereafter, he was residing in her neighbourhood and that during that stay he developed friendship with the prosecutrix and that he took her to Jalandhar and kept in a tenanted room in the house of PW14 Smt. Maya Devi at Village garhe and that at the insistence of PW4/prosecutrix, he brought her to the house of her maternal uncle PW5 Sh. _______Y-1_____ who informed to her parents and that he was arrested and his arrest memo Ex.PW4/C and his personal search memo Ex.PW4/D were prepared and that he was sent to GTB Hospital for his medical examination through Ct. Jaiveer where PW15 examined him vide MLC Ex.PW15A and that samples of his pubic hair, etc., were collected and he was referred for potency test and that he was also examined by Dr. Adesh Kumar Jha vide sheet Ex.PW18/A and his genitalia was found normal and that samples were handed over to the IO and that the prosecutrix and Smt. Maya and other PWs correctly identified him and that he paid Rs. 1,000/- per month as rent to Smt. Maya. He either denied about rest of the prosecution evidence or expressed his ignorance about the same. However, he pleaded that parents of prosecutrix wanted him to marry the SC No.02/13 State vs. Anil Kumar Page 5 of 32 prosecutrix. He refused to marry her as he was already married. He took the prosecutrix to Jalandhar as she had threatened him to commit suicide and implicate him in a false suicide case. The facts of his marriage with Smt. Shakuntala Devi was in the knowledge of the parents of the prosecutrix. He pleaded that he was innocent and did not commit any offence.
7. In support of his defence, Smt. Saroj wife of the accused was examined as DW1.
8. After closing of evidence by both the parties, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused and perused file.
9. It has been argued by Ld. Defence Counsel that the prosecutrix was major at the time of alleged occurrence. She had been in love with the accused for about three years and she voluntarily left her house with the accused and made physical relations voluntarily. She was aware that accused was already married so there was no deception to the prosecutrix about the marital status of the accused. He further argued that in the community of the parties, second marriage is not impossible, rather SC No.02/13 State vs. Anil Kumar Page 6 of 32 several times second marriages are performed. As every act was done with consultation and consent of the prosecutrix, the accused did not commit any wrong with her and he is entitled for acquittal.
10. On the other hand, it has been argued by Ld. Additional Public Prosecutor for the state that the prosecutrix was allured under the pretext of marriage and she was kept in a rented accommodation and under the promise of marriage, accused committed sexual intercourse with her and when she came to know that accused was already married and he refused to marry with her, she returned at her home.
11. Ld. Additional Public Prosecutor submits that taking away a girl with the allurement of marriage comes under the category of deception. She relied on a case, Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203, the Supreme Court observed that:
"16. What then is the meaning and content of the expression 'without her consent'? Whether the consent given by a woman believing the man's promise to marry her is a consent which excludes the offence of rape? These are the questions which have come up for debate directly or incidentally.
17. The concept and dimensions of 'consent' in the context of Section 375 IPC has been viewed from different angles. The decided cases on the issue reveal different SC No.02/13 State vs. Anil Kumar Page 7 of 32 approaches which may not necessarily be dichotomous. Of course, the ultimate conclusion depends on the facts of each case.
18. Indian Penal Code does not define 'consent' in positive terms, but what cannot be regarded as 'consent' under the Code is explained by Section 90. Section 90 reads as follows:
"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;..."
19. Consent given firstly under fear of injury and secondly under a misconception of fact is not 'consent' at all. That is what is enjoyed by the first part of Section 90. These two grounds specified in Section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries.
20. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the Court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.
21. Section 90 cannot, however be construed as an SC No.02/13 State vs. Anil Kumar Page 8 of 32 exhaustive definition of consent for the purposes of the Indian Penal Code. The normal connotation and concept of 'consent' is not intended to be excluded. Various decisions of the High Court and of this Court have not merely gone by the language of Section 90, but travelled a wider field, guided by the etymology of the word 'consent".***
29. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to 'misconception of fact' within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 Clause secondly." [Emphasis supplied]
12. Ld. Defence Counsel submitted that principles of law laid down in Deelip Singh @ Dilip Kumar v. State of Bihar, (supra), is not attracted on the facts of present case as in the present case accused did not promise the prosecutrix to marry her.
13. Ld. Defence Counsel further relied on a case, Amarjeet v. State of Haryana, 2003(1) RCR (Criminal), 168. In that case prosecutrix remained in the company of accused for 17 days. No hue and cry was raised and no injury or sign of violence on her body was found. It was SC No.02/13 State vs. Anil Kumar Page 9 of 32 held that prosecutrix was a consenting party. Conviction u/s 376 (2) (g) was set aside and conviction u/s 366 IPC was upheld.
14. Ld. Defence Counsel further relied on a case, Kuldeep Kumar Mehto v. State of Bihar, 1998, SCC (Cri.) 1460, wherein the Apex Court observed that:
"11. Then coming to the conviction of the appellant under Section 376 IPC, although both the courts below have held after accepting the evidence of the prosecutrix as being truthful that the appellant had forcibly committed the rape, we are of the opinion that the said finding is unsustainable. The prosecutrix had sufficient opportunity not only to run away from the house at Ramgarh but she could have also taken the help of the neighbours from the said village. The medical evidence of Dr. Maya Shankar Thakur, PW5 also indicates that there were no injuries on the person of the prosecutrix including her private parts. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse and if this be so, the conviction of the appellant under Section 376 IPC cannot be sustained. There is one more additional factor which we must mention that it is not the case of the prosecutrix that she was put in physical restraint in the house at Ramgarh, with the result that her movements were restricted. This circumstance also goes to negative the case of forcible intercourse with the prosecutrix by the appellant."
15. Ld. Defence Counsel further relied on a case, K.P. Thimmappa Gowda v. State of Karnata, AIR 2011 SC 2564 wherein Court observed that:
"11. Admittedly, the appellant has married another woman. We are of the opinion that the appellant deserves the benefit of doubt because on careful consideration of SC No.02/13 State vs. Anil Kumar Page 10 of 32 the evidence on record, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt.
12. In criminal cases, the rule is that the accused is entitled to the benefit of doubt. If the court is of the opinion that on the evidence two views are reasonably possible, one that the appellant is guilty, and the other that he is innocent, then the benefit of doubt goes in favour of the accused.
13. In the present case, the facts are that Rathnamma herself stated in her evidence that she had sex with the appellant on several occasions. It is also an admitted fact that the FIR against the appellant was lodged just a few days before the birth of Rathnamma's child, which means there is delay of over 8 months in lodging the FIR. The finding of the trial court, which has not been disturbed by the High Court, is that Rathnamma was about 18 years of age at the relevant time. On these facts a view is reasonably possible that Rathnamma had sex with the appellant with her consent and hence there was no offence under Section 376, IPC because sex with a woman above
16 years of age with her consent is no rape."
16. My attention goes to a case, Uday v. State of Karnataka, AIR 2003 SC 163: 2003 AIR SCW 1035. In that case the prosecutrix was a grown up girl studying in a college. She was deeply in love with the accused appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand SC No.02/13 State vs. Anil Kumar Page 11 of 32 the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. The Apex Court held 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. 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. 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."
[Emphasis supplied]
17. In a case Anthony alias Bakthavatsalu, AIR 1960 Mad 308, it was observed:
"A woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former."SC No.02/13 State vs. Anil Kumar Page 12 of 32
18. My attention goes to a case a case Jayanti Rani Panda v. State of West Bengal, 1984 Cri LJ 1535 (Cal). In that case the accused was a teacher of the local village school and used to visit the residence of the prosecutrix. One day during the absence of the parents of the prosecutrix he expressed his love for her and his desire to marry her. The prosecutrix was also willing and the accused promised to marry her once he obtained the consent of his parents. Acting on such assurance the prosecutrix started cohabiting with the accused and this continued for several months during which period the accused spent several nights with her. Eventually when she conceived and insisted that the marriage should be performed as quickly as possible, the accused suggested an abortion and agreed to marry her later. Since the proposal was not acceptable to the prosecutrix, the accused disowned the promise and stopped visiting her house. A Division Bench of the Calcutta High Court noticed the provisions of S.90 of the Indian Penal Code and concluded:-
"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In oder to come within the meaning of misconception of fact, the fact must have an immediate SC No.02/13 State vs. Anil Kumar Page 13 of 32 relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry, we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90, I.P.C. cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her." [Emphasis supplied]
19. Let us examine the evidence on record in the light of arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for the accused keeping in view the principles of law laid down in above referred cases.
Kidnapping or abducting of the prosecutrix to confine her secretly and wrongfully
20. In order to prove its case that accused committed an offence of kidnapping or abducting with intent secretly and wrongfully confining a person, punishable u/s 365 IPC, prosecution has to prove firstly, that the prosecutrix was either kidnapped or abducted by the accused and secondly, the prosecutrix was abducted or kidnapped with the intention to cause the prosecutrix to be SC No.02/13 State vs. Anil Kumar Page 14 of 32 secretly and wrongfully confined.
Kidnapping of the prosecutrix by the accused
21. PW1 on this aspect deposed that she was 19 years of age on the date of recording of her statement on 05.01.2013. She also stated that in March 2012 she was doing B.A. through correspondence from SOL College, Mall Road. Her father PW3 did not disclose age of his daughter/prosecutrix. On 16.09.2012, the prosecutrix told her age as 19 years. PW10 filed and proved a document Ex.PW10/B regarding date of birth of the prosecutrix. This certificate was issued by the Principal, A-Block, Sonia Vihar, Delhi. In that certificate, date of birth of the prosecutrix, has been mentioned as 27.07.1993. There is no cross examination on this aspect. The date of occurrence is 16.03.2012. On calculation, her age comes to 18 years 7 months and 19 days. Therefore, it is held that as the prosecutrix was major, i.e., above 18 years of age on the date of occurrence, so, offence of kidnapping is not made out.
Abduction of the prosecutrix by the accused by force
22. Section 362 IPC defines abduction. In order to constitute an offence of abduction under section 362 IPC, it has to be shown that the prosecutrix was by force SC No.02/13 State vs. Anil Kumar Page 15 of 32 compelled or by any deceitful means induced any person to go from any place. It is not in dispute, rather it was admitted by the accused that the prosecutrix and accused left their house on 16.03.2012. There is no evidence on record that accused took her by force. So it is held that the prosecutrix was not abducted by force.
Abduction of the Prosecutrix by deception
23. PW4, the prosecutrix stated that the accused was residing in her neighbourhood in Sonia Vihar. He had also resided in a house for about 3-4 months about 2 ½ years back. During that period they had developed friendship. He had told her that he was unmarried. On 16.03.2012 at about 9:30 a.m., he took her from her house on the pretext to marry with her. He had also asked her to introduce herself with his mother. She was taken to Jalandhar and she was kept in a tenanted room at Village Garhe. In cross examination she admitted that she knew the accused for the last three years as she was residing on rent in her house with his maternal uncle. She was not aware regarding the family members of the accused. The accused told her that he was having his mother, brother and sister and that his father had expired. She had friendship with the accused for the last three years. She had exchanged greeting card, diary and photographs. They SC No.02/13 State vs. Anil Kumar Page 16 of 32 used to talk on telephone which was given by her parents on the occasion of Diwali in the year 2011. They used to meet each other after computer class. She was in love with the accused. Her family members were not aware regarding her love affairs with the accused. She was willing to marry with accused. She decided to marry accused after developing friendship with accused. She did not take any information from the accused before deciding to marry the accused. Accused had left his house four days prior to leaving house by her. She had a conversation with accused on the date when they left. On 15.03.2012 they had decided to go to Jalandhar. At about 6:30 a.m. on 16.03.2012, when she was going to attend computer class accused met her at Bus Stand and asked her to accompany him on the pretext that they would go to see the mother and she accompanied him. Accused did not tell her the place of availability of his mother. They went to Jalandhar by bus and they also used an auto. Accused arranged a room on rent from Smt. Maya Devi. Accused disclosed her name to landlady as Bharti. She did not tell her correct name to Maya Devi.
24. On considering the rival contentions of Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel and on analyzing the evidence on record, I come SC No.02/13 State vs. Anil Kumar Page 17 of 32 to the conclusion that the prosecutrix was abducted by the accused by deception. The reasons which support my decision are firstly, that evidence on record has established that the prosecutrix was not aware about the marital status of the accused before leaving her house with the accused. Secondly, the statement of wife of accused that a girl had telephoned her and that she told that girl that wife of accused Anil was answering that telephone call will not provide any benefit to the accused as it could not be established that, that girl was in fact the prosecutrix. Thirdly, the accused was aware about his marital status. There is no evidence on record that he disclosed his marital status to the prosecutrix before eloping with her. It was the duty of the accused to tell his marital status to the prosecutrix before taking the prosecutrix with him but he has failed to do so. In this way the accused kept the prosecutrix in dark and eloped with her. Fourthly, the prosecutrix in her statement categorically stated that she stayed with the accused at Jalandhar till she was unaware about the marital status of the accused and when she became aware about the fact that accused was married, he started insisting the accused to take her to her parents house.
SC No.02/13 State vs. Anil Kumar Page 18 of 32Secretly and wrongfully confinement of the prosecutrix
25. PW4 on this aspect deposed that accused had taken her in Jalandhar and he kept her in a tenanted room in village Garhe. In cross examination, she stated that he went to Jalandhar by bus and again by auto and arrived at Jalandhar in the evening. Accused arranged a room of Maya Devi on rent. Landlord, his wife, son and his wife were residing there. Accused disclosed her name to the landlady as Bharti. She did not tell her correct name to the landlady. 20 days before coming to Delhi she made a telephonic call to her mother and informed her that she was not feeling well and she wanted to come to home at Delhi. She was having mobile phone with her. He had a talk with her mother 2-3 times. She used to talk with her mother in the absence of accused. She denied the suggestion that she was in employment at Jalandhar. PW14 on this aspect deposed that in the last year in the month of March, accused Anil alongwith one girl arrived at her house and stayed there on rent for about 4-5 months and paid rent @ Rs.1,000/- per month. Accused present in the court was that Anil. Girl Bharti told her that her mother was serious and she was under depression and they left her house on 15.09.2012. Accused used to go to attend his work. The girl had also worked in school named Camry for SC No.02/13 State vs. Anil Kumar Page 19 of 32 three months. Accused and Bharti used to visit outside of the house on the days of holidays.
26. On the basis of evidence on record and particularly discussed here in above, it is held that prosecution has failed to prove one of the ingredient of Section 365 IPC, i.e., that prosecutrix was confined secretly and wrongfully. Conversely, the evidence has established that the prosecutrix was having freedom to make phone calls and to move out of the tenanted room. Consequently, it is held that prosecution case so far as it relates to commission of offence of kidnapping or abducting with intent secretly and wrongfully confine a person punishable u/s 365 IPC is concerned, it remained unproved.
Abduction and inducing the prosecutrix to compel marriage, etc.
27. In order to prove its case that accused committed an offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly, that the prosecutrix was either kidnapped or abducted by the accused and secondly, the prosecutrix was abducted and kidnapped with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to SC No.02/13 State vs. Anil Kumar Page 20 of 32 marry any person against her will or in order that she may be forced to do illicit intercourse.
28. The evidence regarding abduction of prosecutrix by the accused has already been discussed here in above. Same is not being repeated to avoid repetition. On the basis of evidence discussed here in above, it is held that prosecutrix was abducted by the accused. Let us now examine whether the prosecutrix was abducted with the intention that the prosecutrix may be compelled or knowing it to be likely that she may be force to do illicit intercourse.
Sexual intercourse with the prosecutrix by the accused
29. PW4 on this aspect deposed that accused took her to Jalandhar where he kept her in a tenanted room at Village Garhe. He did not arrange her meeting with his mother. Accused forcibly made physical relations with her. She explained that accused committed rape on her repeatedly for a period of six months. In the cross examination, she stated that accused maintained physical relations with her after one week of reaching Jalandhar. It was suggested to her that they were maintaining physical relations when the accused was residing on rent in her SC No.02/13 State vs. Anil Kumar Page 21 of 32 house. it was further suggested to him that accused made physical relations with her with her consent. She admitted that she refused to undergo internal medical examination.
30. It has been argued on behalf of Ld. Defence Counsel that prosecution could not prove physical relations with the accused. The refusal to undergo internal medical examination created doubt about the allegation of commission of rape. I am not convinced with this argument. On the basis of the evidence on record and the suggestions put to the witness, it stands abundantly established that there had been physical relationships between the parties. Therefore, it is held that accused committed sexual intercourse with the prosecutrix.
31. On the basis of evidence on record and particularly discussed here in above, it is held that prosecution has successfully proved both the ingredients of the ingredient of Section 366 IPC i.e. that prosecutrix was abducted and she was compelled to do illicit intercourse.
Commission of rape on the prosecutrix by the accused
32. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, prosecution has to prove firstly, that sexual intercourse was committed SC No.02/13 State vs. Anil Kumar Page 22 of 32 with the prosecutrix; secondly, that sexual intercourse was committed with her forcibly against her will by the accused. Let us examine the prosecution evidence on these aspects:
33. The evidence regarding commission of sexual intercourse with the prosecutrix by the accused has already been discussed here in above. Same is not being repeated to avoid repetition. On the basis of evidence discussed here in above, it is held that accused committed sexual intercourse with the prosecutrix. Let us now examine whether the accused committed sexual intercourse with the prosecutrix forcibly without her consent and against her will.
Sexual intercourse on prosecutrix by the accused without her consent
34. The admissions/evidence favourable to the accused, have already been discussed here in above. I have considered admissions of the prosecutrix but in my view these are not going to help the accused. Conversely, the evidence on record and particularly discussed here in above has proved beyond suspicion and reasonable doubt, that accused committed sexual intercourse with the prosecutrix forcibly against her will and without her SC No.02/13 State vs. Anil Kumar Page 23 of 32 consent.
35. The other reasons which support my decision about commission of offence of kidnapping/abducting or inducing a woman to compel her marriage, etc. and commission of rape by the accused are firstly, that as per discussion made here in above, the prosecution has proved all the necessary ingredients of both these offences. I found the statement of the prosecutrix consistent, reliable and trustworthy.
36. Secondly, the accused has partly admitted the case of prosecution as in the statement u/s 313 of the Code, he admitted that he was friendly relations with the prosecutrix and they went to Jalandhar on 16.03.2012. They stayed in a room of Smt. Maya Devi in village Garhe. Indirectly by putting suggestions to the prosecutrix, it has been admitted that accused committed sexual intercourse repeatedly with the prosecutrix. He was potent to have sexual intercourse. In this way the prosecution case has been supported even by the accused.
37. Thirdly, the other prosecution witnesses also corroborated the prosecution case. For example, PW1 proved that missing report vide DD No.19A was recorded at SC No.02/13 State vs. Anil Kumar Page 24 of 32 PS Sonia Vihar. DD No.19A was proved as Ex.PW19/A. PW2 proved computerized copy of FIR as PW2/A and rukka as Ex.PW2/B. PW3, father of the prosecutrix proved the fact of leaving the house by prosecutrix on 16.03.2012 at 6 or 6:30 a.m.; lodging of missing report vide Ex.PW3/A, return of prosecutrix on 16.09.2012 taking of prosecutrix and the accused at PS on that day. PW5 corroborated the fact of return of prosecutrix and accused and producing them at the PS. PW6 proved the fact of taking of the prosecutrix to GTB hospital for her medical examination. PW7 proved the fact of typing of the material of FIR on the computer. PW8 proved seizing of parcels vide memo Ex.PW8/A. PW9 proved handing over of asal tehrir and copy of FIR to SI Mithlesh. PW10 is IO who corroborated the statement of all other witnesses. PW12 proved the fact of preparation of charge sheet. PW13 proved MLC of prosecutrix as Ex.PW13/A and treatment card of the prosecutrix as PW13/B. PW14 proved the fact of staying of the prosecutrix and accused in her premises at Village Garhe, Jalandhar. PW15 proved MLC of accused as Ex.PW15/A. PW16 proved MLC of prosecutrix as Ex.PW16/A. PW17 proved her statement recorded u/s 164 of the Code. PW18 proved emergency sheet of the accused as Ex.PW18/A. Nothing in cross examination could come out which would support the plea of accused.
SC No.02/13 State vs. Anil Kumar Page 25 of 3238. Fourthly, the testimony of DW1 will not provide any benefit to the accused as nothing material could come out which could have supported the case of the accused.
39. Fifthly, on perusal of the testimony made before this court by the prosecutrix and the statement given before the Ld. M.M. u/s 164 of the Code, I find that her testimony is consistent and beyond creating any reasonable suspicion and shadow of doubt in the truthfulness of her testimony. Similarly, there is no inconsistency in the statement made before this court and the statement Ex.PW4/A given by prosecutrix before the police.
40. Sixthly, the prosecutrix was cross examined at length. She denied the suggestion that accused made physical relations with her with her consent. She also stated that when the accused did not arrange her meeting with his mother and refused to marry her then she decided to comeback to her parents house. The entire cross examination could not bring out any point which may create reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
SC No.02/13 State vs. Anil Kumar Page 26 of 3241. Seventhly, there is no evidence on record showing any motive or reason for the prosecutrix to depose falsely against the accused particularly when he was her neighbour and she developed friendship with him unless he had committed the alleged crimes. My view finds supports by a case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R. (S.C.) 753, wherein the Apex Court observed:
"***Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites." [Emphasis supplied]
42. Lastly, it is not only the duty of the judge to see that one innocent person should not be punished even if hundred offenders are allowed to go scot-free but also he has to see that the accused who has committed the crime must not go unpunished. It is also duty of the court to separate the grain from the chaff as held in case of Bhagwan Dass vs. State (NCT of Delhi), (2011) 6 SCC 396. While considering and analyzing entire prosecution SC No.02/13 State vs. Anil Kumar Page 27 of 32 evidence this court has come to the conclusion that all the oral, circumstantial and scientific evidence has proved that the accused Anil Kumar committed offence of abduction or inducing a woman to compel her marriage, etc. and committed sexual intercourse with the prosecutrix forcibly against her will. Therefore, it is bounden duty of this court to hold the accused guilty and convict him.
CONCLUSION
43. In view of the above reasons, discussion and evidence on record and particularly discussed here in above, it is held that prosecution could not prove its case against accused beyond reasonable suspicion and shadow of doubt so far as it relates to commission of offence of kidnapping or abducting with intent secretly and wrongfully confine a person punishable u/s 365 IPC.
44. It is further held that the prosecution has successfully proved its case against the accused Anil Kumar beyond any reasonable suspicion or shadow of doubt that accused enticed or took away and thereby abducted the prosecutrix by deception of fact that he was not married with the allurement to marry her and committed sexual intercourse with her forcibly against her will. Thus, the accused committed offence of abduction of SC No.02/13 State vs. Anil Kumar Page 28 of 32 the prosecutrix with the intent that the prosecutrix may be compelled or may be forced to do illicit intercourse punishable u/s 366 IPC.
45. It is further held that the prosecution has successfully proved its case against the accused Anil Kumar beyond any reasonable suspicion or shadow of doubt that he committed sexual intercourse with prosecutrix forcibly and repeatedly against her will and without her consent and thereby committed offence of rape punishable u/s 376 IPC.
46. Consequently, accused is held guilty and convicted for the offence of kidnapping/abducting/inducing woman to compel marriage, etc. and offence of rape punishable u/s 366/376 IPC, respectively and accused is acquitted for the offence of kidnapping or abducting the prosecutrix with intent to cause the prosecutrix to be secretly and wrongfully confined punishable u/s 365 IPC. Announced in the Open Court Dated:19.02.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.02/13 State vs. Anil Kumar Page 29 of 32 IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT) KARKARDOOMA COURTS, SHAHDARA, DELHI SC No.02/13 State vs. Anil Kumar FIR No.124/12 PS Sonia Vihar State Versus Anil Kumar ORDER ON SENTENCE 21.02.2013 Present: Ms. Madhu Arora Addl. P.P. for the State.
Convict/accused in J.C. Sh. Chaman Sharma Advocate for the convict/accused.
I have heard arguments on the quantum of sentence.
2. It has been argued on behalf of Ld. Defence Counsel that accused/convict is a young boy of 25 years of age; he belongs to a poor family; he is the only bread earner in the family; and he has no previous criminal record. It has been prayed that lenient view in sentence may be taken considering the re-formative theory of punishment.
3. On the other hand, it has been argued on behalf of Ld. Additional Public Prosecutor that deterrent punishment may be awarded to the accused once the case SC No.02/13 State vs. Anil Kumar Page 30 of 32 is proved against the accused.
4. Keeping in view the submissions and all relevant factors and circumstances in which the accused committed crime, it would be just and appropriate if moderate view in sentence is taken. Accordingly, convict/accused Anil Kumar is sentenced to undergo rigorous imprisonment for 5 years and he is further sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for one year for the offence punishable under section 366 IPC.
5. Convict/accused Anil Kumar is further sentenced to undergo rigorous imprisonment for 7 years and he is further sentenced to pay a fine of Rs.7,000/- in default simple imprisonment for one year and six months for the offence punishable under section 376 IPC.
6. Both these sentences will run concurrently.
7. It is further ordered that if convict/accused Anil Kumar has undergone any period in judicial custody, that period will be set off against the sentence as provided U/s 428 Cr. P.C.
8. Out of the fine amount, and after expiration of the period of appeal, a sum of Rs.6,000/- be paid to the prosecutrix as compensation. Besides this compensation, she will also be entitled to get other compensation, if available to her under other laws.
9. The convict/accused Anil Kumar be sent to SC No.02/13 State vs. Anil Kumar Page 31 of 32 imprisonment to serve the sentence.
10. A copy each of judgment and order on sentence is supplied to convict/accused Anil Kumar free of cost.
File be consigned to Record Room.
Announced in the Open Court Dated:21.02.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.02/13 State vs. Anil Kumar Page 32 of 32