Delhi District Court
State vs Rahul Kashyap on 8 July, 2014
IN THE COURT OF MS. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI
Unique Case I.D. No.02402R0104012013
SC No.180/13 Date of institution : 16.04.2013
FIR No. 12/13 Date of argument : 01.07.2014
PS: Shakarpur Date of judgment : 08.07.2014
U/S: 493/376/323 IPC
State versus Rahul Kashyap
S/o Babu Lal Kashyap
R/o H. No.19, Near Tanga Stand,
Old Geeta Colony, Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 07.01.2013 the prosecutrix came to police station Shakarpur and lodged her complaint wherein she alleged as follows:
(i) The prosecutrix aged 19 year (+) is a student SC No. 180/13 State vs. Rahul Kashyap Page 1 of 32 of Delhi University of B.A. Earlier in September-2011, the prosecutrix was working with Reliable Investment Solution Company at Laxmi Nagar. In her office, she met the accused who was also working there. The accused insisted the prosecutrix to have friendship with him otherwise he will die. Due to fear she accepted his friendship offer. After a few days, the accused started saying that he wanted to marry her.
(ii) In March, 2012, the accused started his own office in the name of I.T.U.S. at Singh Chamber, Lalita Park, Delhi. Accused insisted the prosecutrix to join his office and she joined him. After 10-12 days, accused shifted his office to Shastri Nagar, Geeta Colony.
(iii) In April, 2012, one evening when the other staff had left the office, the accused put sindoor in the partition (maang) of the prosecutrix and said that from that day they are husband and wife. Accused made physical relations with her against her will and consent. He also assured the prosecutrix that he will talk to his parents about their marriage. The accused made physical relations with her many times at different places under false promise of marriage.
(iv) In September-October-2012, accused shifted his office at C.R. Road, D Block, Gali No.12, Laxmi Nagar and in that office, accused again made physical relations SC No. 180/13 State vs. Rahul Kashyap Page 2 of 32 with her against her will and consent on the pretext of marriage. Thereafter the accused refused to marry the prosecutrix.
2. On the basis of the complaint of prosecutrix, a case u/s 376 IPC was got registered against the accused. The prosecutrix was taken to LBS hospital for her medical examination. Statement of the prosecutrix u/s 164 Cr.PC. was got recorded by the learned MM. Accused was arrested and he was got medically examined at LBS Hospital. After completion of investigation, charge sheet was filed against the accused for the commission of offence punishable u/s 376 IPC.
3. Since the offence in this case is triable by the court of sessions, vide order dated 11.04.2013, Ld. M.M. committed this case to the court of sessions and on allocation, it was assigned to this court.
4. Vide order dated 17.04.2013, charge u/s 493/376/323 IPC was framed against the accused by my learned predecessor to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution has examined SC No. 180/13 State vs. Rahul Kashyap Page 3 of 32 twelve witnesses i.e. PW1-prosecutrix, PW2-Dr. Ashok Sagar from LBS Hospital, PW3-mother of prosecutrix, PW4- Dr. Sachin and PW5-Dr. Aparna from LBS Hospital, PW6-HC Hem Chand, PW7-Ct. Vikrant, PW8-Sh. Vishal Gogne learned MM, PW9-Ct. Lokesh, PW10-Ms. Shashi, PW11-Sh. Jeetu Kumar Aggarwal and PW12-SI Pinki Rana, IO of the case.
6. After the prosecution evidence was closed, statement of accused u/s 313 Cr. P.C was recorded in which he denied the case of the prosecution in totality and claimed himself to be innocent. Accused did not prefer to lead defence evidence.
7. Out of these witnesses, PW1 prosecutrix and PW3 mother of prosecutrix are the material witnesses of this case whose testimonies shall be discussed at a later stage.
8. PW6-HC Hem Chand is the duty officer who recorded the FIR of this case and proved the same as Ex.PW6/A and thereafter the investigation of the case was handed over to SI Pinki Rana.
9. PW5-Dr. Aparna, Specialist Gyne, LBS Hospital, SC No. 180/13 State vs. Rahul Kashyap Page 4 of 32 Delhi deposed that on 7.01.2013, the prosecutrix was brought to the hospital by SI Pinki Rana for her medical examination. The prosecutrix was examined by Dr. Nidhi Gupta, SR who has left the services of the hospital and her present whereabouts are not known. PW5 identified the signature of Dr. Nidhi Gupta and proved the MLC of the prosecutrix as Ex. PW5/A.
10. PW4-Dr. Sachin deposed that on 8.01.2013, accused was brought in casualty by Ct. Vikrant for his medical examination. He proved his MLC as Ex. PW2/A.
11. PW2-Dr. Ashok Sagar deposed that on 09.01.2013, accused was again produced in the hospital by SI Pinki Rana for his potency test. He proved his report regarding potency test as Ex. PW2/B.
12. PW7-Ct. Vikrant deposed that on 07.01.2013 he accompanied the IO alongwith the prosecutrix and her mother and went to LBS Hospital for medical examination of the prosecutrix. He is also the witness of arrest of accused and proved the arrest memo as Ex.PW1/B and the personal search of the accused as Ex.PW1/C. He states that the disclosure statement Ex.PW7/A of accused was recorded and he (accused) was got medically examined in SC No. 180/13 State vs. Rahul Kashyap Page 5 of 32 LBS Hospital. The seal exhibits received from the hospital were seized vide memo Ex.PW7/B.
13. PW9-Ct. Lokesh, deposed that on 09.01.2013 he alongwith IO took the accused to LBS Hospital for his potency test.
14. PW8-Sh. Vishal Gogne, learned Metropolitan Magistrate deposed that on 11.01.2013 he recorded the statement of the prosecutrix u/s 164 Cr. P.C. Ex. PW1/D.
15. PW10-Ms. Shashi deposed that in March-2012, a cabin was given on rent to the prosecutrix which was vacated by her within 10-12 days. She deposed that she does not know the accused. This witness was cross examined by the learned Addl. PP for the State with the permission of the court as she has not supported the case of the prosecution. During her cross examination, she stated that the cabin situated at Lalita Park, Laxmi Nagar was taken on rent by the prosecutrix.
16. PW11-Sh. Jeetu Kumar Aggarwal deposed that his father is a property dealer and he is only doing the sale and purchase of the property and not arranging the property on rent for any person. He deposed that he does SC No. 180/13 State vs. Rahul Kashyap Page 6 of 32 not know if the house no.10A, Sunder Park, Shastri Nagar was given on rent to any person by his father. This witness was also declared hostile by learned Addl. PP for the State and was cross examined on behalf of the State with the permission of the court. During cross examination, he also denied the suggestion that house no.10A, Sunder Park, Shastri Nagar was arranged by his father for accused on rent in the year 2012 but no rent agreement was prepared.
17. PW12- SI Pinki Rana is the investigating officer of this case who deposed that on 07.01.2013, the prosecutrix alongwith her mother came to the police station and lodged the report Ex. PW1/A on which she got the present case registered against the accused. The prosecutrix was taken to LBS Hospital for her medical examination but the prosecutrix refused her internal medical examination at her own. She further deposed that accused was arrested on the identification of the prosecutrix. He was also got medically examined at LBS Hospital. On 09.01.2013, the potency test of the accused was got conducted vide report Ex.PW2/B. On 11.01.2013, the statement of the prosecutrix Ex. PW1/D u/s 164 Cr. P.C was got recorded by the learned M.M. The date of birth certificate of the prosecutrix was seized vide memo Ex.PW1/F and birth certificate was also got verified from SC No. 180/13 State vs. Rahul Kashyap Page 7 of 32 the office of Sub Registrar vide memo Ex. PW12/B. On 30.03.2013, the prosecutrix took the IO to Geeta colony where she met Jitender Aggarwal and recorded his statement. Thereafter the prosecutrix took the IO to Lalita Park where she recorded the statement of Shashi (PW10) who was the receptionist in the office. After completion of investigation she prepared the challan and filed in the court.
18. PW1 is the prosecutrix who deposed that in September,2011, she was working in a private Insurance Company at D-25, 1st Floor, Laxmi Nagar where she met the accused who was also working there as a tele caller- cum- salesman. Accused started sending her SMS and also made telephone calls to her. She made complaint to her seniors officers against the accused. Accused stated to the prosecutrix that he just wanted to speak to her in a normal manner. Thereafter,accused started forcing the prosecutrix to have friendship with him. He also started stalking her while she was coming and going to the office. Prosecutrix reluctantly agreed to be a friend of the accused and that friendship continued for sometime. One day, accused proposed marriage to the prosecutrix when she was returning home after attending her office. She told him that she was unable to marry him without the consent of her SC No. 180/13 State vs. Rahul Kashyap Page 8 of 32 family. Accused told her that he would meet her parents and convince them for their marriage. She further deposed that the accused started his office at Chamber No.4 of Singh Chamber, Laxmi Nagar and he asked her to join the office at the post of tele caller. Initially, she was not agreed for this proposal but on his persistent asking, she agreed to join his office and accused was paying Rs. 8000/- per month as salary. Thereafter accused shifted his office to Shastri Nagar and took the prosecutrix to his new office. Accused started pressurising her to make physical relations with him. In April, 2012 at about 5-5:30 pm when other staff of the office had already left, the accused insisted the prosecutrix to make physical relations with him and said that he would marry her. He caught hold of her hand. She tried to free her hand, and scuffle in that process started. One bangle of the prosecutrix was broken and the accused sustained injury on the thumb of his hand. The blood started oozing out from the injury of the accused and he put his blood on the forehead (maang) of the prosecutrix and said that their marriage has taken place. The accused made physical relations with the prosecutrix by force. Thereafter, accused made physical relations many times with the prosecutrix. In the month of August, accused invited the prosecutrix at his house to attend a function. Accused told the prosecutrix that he would speak to his SC No. 180/13 State vs. Rahul Kashyap Page 9 of 32 family members regarding their marriage but he did not do so. The prosecutrix insisted for their marriage but he kept on postponing the same on one pretext or the other. Accused also misbehaved with the prosecutrix. Whenever the prosecutrix told the accused that she has already informed her parents about his misbehaviour, he (accused) used to cause injury himself by hitting with stone. When she seriously insisted for marriage, accused refused to marry her. Thus the prosecutrix lodged the complaint Ex.PW1/A at the police station against the accused. The prosecutrix was taken to LBS Hospital for her medical examination. Her statement u/s 164 Cr.P.C. Ex.PW1/D was got recorded by the learned M.M.
19. PW3-mother of the prosecutrix deposed that on 07.01.2013 she and the prosecutrix went to police station Shakarpur for lodging the complaint against the accused as he committed wrong acts with her daughter. Police took her daughter to LBS Hospital for her medical examination and she had also accompanied her daughter to the hospital. She further deposed that after medical examination of the prosecutrix, she alongwith her daughter and the police officials went to the house of accused from where the accused was arrested. During her cross examination, she deposed that accused never visited her SC No. 180/13 State vs. Rahul Kashyap Page 10 of 32 house. She also deposed that her daughter never disclosed about her relationship with the accused to her. She also deposed that she had seen the accused first time in the police station.
20. I have heard arguments addressed by learned Addl.PP for the State and learned defence counsel and perused the record.
21. The accused is facing trial for the offences punishable u/s 376 IPC (offence of rape), u/s 493 IPC (offence of cohabitation by a man deceitfully making her to believe that she is his lawful wife) and u/s 323 IPC (offence of voluntarily causing simple hurt).
Section 376 IPC
22. The prosecutrix (PW1) in her statement has deposed that the accused made physical relations with her. Accused in his statement u/s 313 Cr.PC has denied the case of the prosecution in totality. During the investigation, the prosecutrix was taken to LBS Hospital on 07.01.2013 where she refused her internal examination. However, I am of the opinion that there is no reason to disbelieve the SC No. 180/13 State vs. Rahul Kashyap Page 11 of 32 prosecutrix on this aspect. There was no suggestion to the prosecutrix that the accused did not make physical relations with her. On the other hand, during cross examination it was suggested to the prosecutrix that the prosecutrix and the accused visited hotels about twenty five times and during these visits physical relations were made between them. It was also suggested that the physical relations were maintained because the prosecutrix was having faith on the accused and the accused was having faith on the prosecutrix. In these circumstances, I am of the opinion that it stands established that the prosecutrix and the accused had physical relations i.e. sexual intercourse.
23. As per the case of the prosecutrix, the physical relation between her and the accused was first time made in April, 2012. Such relationship continued till about the end of the year 2012 and the prosecutrix made the complaint to the police on 07.01.2013. There is no allegation that the prosecutrix was below 16 years of age at the relevant time. Even otherwise, as per the copy of birth certificate on record, the date of birth of the prosecutrix is shown as 25.04.1993. Thus, the prosecutrix was above 18 years of age at the relevant time. Hence, the prosecutrix was capable of giving consent for sexual SC No. 180/13 State vs. Rahul Kashyap Page 12 of 32 intercourse and sexual intercourse between the prosecutrix and the accused by itself would not constitute the offence of rape.
24. Section 375 IPC (as it existed prior to the amendment which came into force on 03.02.2013) read as follow:-
"375. Rape- A man is said to commit "rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First.---- Against her will.
Secondly.---- Without her consent. Thirdly.---- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.---- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.---- With her consent, when, at the time SC No. 180/13 State vs. Rahul Kashyap Page 13 of 32 of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.---- With or without her consent, when she is under sixteen years of age."
25. Perusal of the above provision would show that the sexual intercourse between a man and woman who is not under 16 years of age constitute offence of rape if:- (i) same is against her will; (ii) without her consent; (iii) with her consent when her consent has been obtained by putting her or any person in whom she is interested in fear of death, of hurt; (iv) with her consent when the man knows that he is not her husband or that her consent is given because she believes that he is another man to whom she is or believe herself to be lawfully married; (v) with her consent when at the time of giving such consent by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any SC No. 180/13 State vs. Rahul Kashyap Page 14 of 32 stupefying or unwholesome substance; she is unable to understand the nature and consequences of that to which she gives consent.
26. The prosecutrix in her deposition in the court has stated that one evening in April, 2012 after the other persons in the office had left, accused insisted her to make physical relations with him and started saying that he would marry her (prosecutrix). He caught hold of her hand and when she tried to free her hand, in that process, a scuffle started, her bangle was broken and the accused sustained injury on his thumb. Blood started oozing out from the injury. He put his blood in her forehead (maang) and said that marriage between them has already been taken place and he made physical relations with her by force.
27. In the facts of this case, I am of the opinion that the statement of the prosecutrix that the accused made physical relations with her by force is not believable. The prosecutrix in her statement in court has stated that accused put his blood in her maang and made physical relations with her. Her statement about this incident is not consistent. In her complaint Ex. PW1/A, it is stated that accused put sindoor on her forehead (maang). In the SC No. 180/13 State vs. Rahul Kashyap Page 15 of 32 statement u/s 164 Cr.P.C., it is recorded that accused cut his hand by blade and put his blood in her maang whereas in the court during her deposition, she stated that one evening accused caught hold of her hand and a scuffle started between her and the accused. In that process, the bangle of the prosecutrix was broken and blood started oozing out and accused put his blood in her maang.
28. Apart from above, the evidence on record would show that the relationship between the prosecutrix and the accused continued for about eight months and the prosecutrix continued physical relations with the accused and they had physical relations at various places outside the office. As per her own deposition, the prosecutrix did not disclose about the incident to her family members. She continued visiting the office of the accused. Under these circumstances, I am of the opinion that though the prosecution has been able to establish that the prosecutrix and the accused had physical intercourse but the prosecution has not been able to establish beyond reasonable doubt that the accused used force or coercion for making physical relations with the prosecutrix.
29. It is also the case of the prosecution that the accused made physical relations with the prosecutrix and SC No. 180/13 State vs. Rahul Kashyap Page 16 of 32 continued making such relations under false promise of marriage with the prosecutrix. It would be advisable to look into the law laid down by Hon'ble Supreme Court in this regard.
30. In Uday vs. State of Karnataka (AIR 2003 Supreme Court 1639) after referring to the previous cases on the subject, the Hon'ble Supreme Court held as follows:
"It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutor 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 prosecutor to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the SC No. 180/13 State vs. Rahul Kashyap Page 17 of 32 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."
31. In Deelip Singh @ Dilip Kumar vs. State of Bihar [(2005) 1SCC88], the Hon'ble Supreme Court explained the above observation made in Uday Kumar's case ( supra) as follows:
"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 SC No. 180/13 State vs. Rahul Kashyap Page 18 of 32 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. This is what in fact was stressed by the Division Bench of Calcutta High Court in the case of Jayanti Rani Panda, supra which was approvingly referred to in Uday's case, (supra). The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end- "unless the Court can be assured that from the very inception, the accused never really intended to marry her". In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu's case, supra (vide passage quoted supra). By making the solitary observation that "a false promise is not a fact within the meaning of the Code", it cannot be SC No. 180/13 State vs. Rahul Kashyap Page 19 of 32 said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no strait jacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday's case as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out". (emphasis added )
32. In Deelip's case (supra) the Hon'ble Supreme Court also held as follows:
"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 SC No. 180/13 State vs. Rahul Kashyap Page 20 of 32 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." ( emphasis added ) [see also Vinod Kumar vs. State of Kerala (judgment dated 04.04.2014 in Crl. Appeal No. 821 of 2014)].
33. In Kaini Rajan vs. State of Kerala (2013) 9 SCC 113, the Hon'ble Supreme Court observed as follows:
"12 Section 375 Indian Penal code defines the expression "rape", which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, SC No. 180/13 State vs. Rahul Kashyap Page 21 of 32 capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. 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 Indian Penal Code 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 SC No. 180/13 State vs. Rahul Kashyap Page 22 of 32 circumstances.[see State v. Mango Ram (2000) 7 SCC 224]."
34. In Deelip Singh's case (supra), the Hon'ble Supreme Court while acquitting the accused in the facts of that case held that the predominant reason which weighed with the prosecutrix in agreeing for sexual intimacy with the accused was the hope generated in her of the prospect of marriage with the accused. Moreover, the Court held that she came to the decision to have a sexual affair only after being convinced that the accused would marry her and it is quite clear from her evidence, which is in tune with her earlier version given in the first information report. The Hon'ble Court also noticed that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act.
35. In this case, the prosecutrix at the relevant time was above 19 years of age and a student of college. As per appointment letter Ex.PW1/E, she had joined a private Insurance Company in September, 2011. The accused was also working in the same office. Later on, the accused left that office to setup his own business. The prosecutrix also chose to leave her earlier job and join the new firm of accused. There is no evidence that the accused had issued SC No. 180/13 State vs. Rahul Kashyap Page 23 of 32 any appointment letter to the prosecutrix. The accused was about 23 years of age at the time of incident. Both were unmarried.
36. The evidence on record would show that the present is not a case of isolated incident of sexual intercourse. This relationship continued for about eight months. During this period, the prosecutrix and the accused visited some hotels and made physical relations. This shows there was no active resistance by the prosecutrix. The prosecutrix did not disclose about this relationship to her family members and that would show that she was fully aware of the moral aspects of this relationship. The prosecutrix in her cross examination admitted that during this period she was in love with accused but she was not aware if the accused was also in love with her. During this period, the accused and the prosecutrix must have remained together for long durations and the prosecutrix would have been able to judge the possibility of their relationship maturing into matrimonial bond even if the accused was representing to the contrary.
37. The prosecution was required to establish that the accused made promise of marriage which at the very SC No. 180/13 State vs. Rahul Kashyap Page 24 of 32 inception he had no intention to fulfil and the prosecutrix was completely oblivious of such intention. Lack of consent is an ingredient of offence of rape. The burden is on the prosecution to establish this ingredient. Intention is to be gathered from the facts and circumstances of the case.
38. At the relevant time, the prosecutrix was above 18 years of age while the accused was 22 to 23 years of age and both were unmarried. Accused was her erstwhile colleague at a private insurance Company. She chose to give up her earlier job simultaneously or near about a time when the accused left that company. She joined the accused when he started his business. The prosecutrix was in love with the accused. The prosecutrix and the accused belonged to different castes. The prosecutrix and the accused continued the relationship even though the accused did not introduce her to his family members. In the circumstances, the possibility that the marriage between the prosecutrix and the accused did not crystallize as the family of the accused may have had some reservation about the same and they forced the accused to break the relationship cannot be ruled out. It is also possible that initially the accused had intention to marry the prosecutrix but subsequently for some reasons he changed his mind and called of the relationship. The SC No. 180/13 State vs. Rahul Kashyap Page 25 of 32 evidence on record is not sufficient to negate the possibility that the accused initially had the intention to marry the prosecutrix but for some reason, the accused changed his mind. In such circumstances I am of the opinion that the prosecution has failed to establish that the accused made physical relations with the prosecutrix under an intentional false promise of marriage and he had no intention to marry the prosecutrix at the inception of his making physical relations with the prosecutrix. Thus, the charge u/s 376 IPC must fail. The accused is liable to be acquitted for the offence punishable u/s 376 IPC.
Section 493 IPC
39. In Ram Chandra Bhagat vs. State of Jharkhand [(2013) 1SCC 562], a bench of three Hon'ble Judges of Apex Court held that for the purpose of 493 IPC, it is not necessary that the rituals necessary for Hindu marriage should be performed. In the facts of that case, conviction of the accused was upheld with the following observations:
"22. Upon perusal of the evidence we find that upon being acquainted with the complainant, the accused had developed a close relationship with the complainant. He used to visit the SC No. 180/13 State vs. Rahul Kashyap Page 26 of 32 complainant from time to time and he had promised the complainant to marry her, Upon perusal of the evidence, we further find that the accused-Appellant had got a form, with regard to marriage registration, signed by the complainant. The form was signed by the accused-Appellant and he also induced the complainant to sign the form so as to get married. The form duly signed by both the persons had been exhibited and the signature of the Appellant had been identified. The afore-stated fact made the complainant to believe that the accused-Appellant had married her and, therefore, she had started residing with him as his wife. In fact, the Appellant did not marry the complainant. The persons related to the complainant and the accused were also made to believe that the complainant was the wife of the Appellant, though rituals necessary for Hindu marriage had never been performed. It is an admitted fact that no marriage had taken place between the complainant and the Appellant but only on the basis of the documents signed by the complainant at the instance of the accused- Appellant, the complainant was made to believe that she was a lawfully married wife of the accused-SC No. 180/13 State vs. Rahul Kashyap Page 27 of 32
Appellant.
23. As a result of the afore-stated deceitful act of the accused-Appellant, the complainant started residing with him as she believed that she had lawfully married the accused- Appellant. There is sufficient evidence on record to show that the complainant had resided with the accused-Appellant and the afore-stated fact was also reflected in the voters' list. In the voters' list the name of the complainant was shown as the wife of the Appellant. As a result of the cohabitation, the complainant had given birth to two children. The accused-Appellant had acknowledged the fact that the said two children were his children. Several ceremonies in relation to the birth of the children had also been performed by the accused- Appellant.
24. Thus, upon perusal of the evidence, we find that there was sufficient evidence to the effect that the accused- Appellant has deceived the complainant, which ultimately resulted into a belief in the mind of the complainant that she was a lawfully married wife of the accused- Appellant, though she was not."
40. In Pradeepta Kumar Mohapatra vs. State [2013 SC No. 180/13 State vs. Rahul Kashyap Page 28 of 32 (4) JCC 2605], the Hon'ble High Court of Delhi observed as under:
"15. If a woman is induced to change her status from that of an unmarried to that of a married woman with all the duties and obligations pertaining to the changed relationship and that result is accomplished by deceit, such woman within the law can be said to have been deceived and the offence under Section 493 IPC is brought home. Inducement by a person deceitfully to a woman to change her status from unmarried woman to a lawfully married woman and on that inducement making her cohabit with him in the belief that she is lawfully married to him is what constitutes an offence under Section 493. The victim woman has been induced to do that which, but for the false practice, she would not have done and has been led to change her social and domestic status. The ingredients of Section 493 can be said to be fully satisfied when it is proved- (a) deceit causing a false belief of existence of a lawful marriage and (b) cohabitation or sexual intercourse with the person causing such belief."SC No. 180/13 State vs. Rahul Kashyap Page 29 of 32
41. In this case, it is not the case of the prosecution that the prosecutrix believed that putting of sindoor on her forehead (maang) by the accused constituted marriage between them. On the other hand the case of the prosecution is that the prosecutrix was asking the accused to enter into marriage bond with her while the accused was not doing so. For the offence u/s 493 IPC, there should be use of deception by the accused which leads to a belief in the mind of the victim that she is the lawful wife of the accused. Since in this case, the prosecutrix did not believe that the alleged act of putting blood/sindoor in her forehead (maang) amounted to their marriage, section 493 IPC would have no applicability. The prosecutrix was major and about 19 years of age. She was a working girl. It is not the case of the prosecution that any of the rituals i.e. sapt-padi etc was performed between the accused and the prosecutrix at the time of incident. As discussed above, the case of the prosecutrix has not been consistent regarding the alleged incident of April, 2012. There is no witness to corroborate this allegation of the prosecutrix. Thus, accused is liable to be acquitted of the offence punishable u/s 493 IPC.
Section 323 IPC SC No. 180/13 State vs. Rahul Kashyap Page 30 of 32
42. As far as offence u/s 323 IPC is concerned, in her deposition, the prosecutrix has stated that the accused slapped her and broke her hand when she asked him to marry her. This allegation is not supported with her own complaint Ex.PW1/A on the basis of which FIR was registered. There are no particulars as to when and where the accused slapped and caused injury on his hand. In her statement u/s 164 Cr.P.C, the prosecutrix stated that accused beat her on 03.12.2012 which caused marks and swelling on her face. However, as per MLC Ex.PW5/A, the prosecutrix at the time of her medical examination on 07.01.2013 stated to the doctor that accused physically assaulted her on 03.01.2013 when she forced him to marry her. No doubt the MLC Ex. PW5/A of the prosecutrix records some scratch/injury marks on her person but in view of the inconsistent stand of the prosecutrix, I am of the opinion that the prosecution has not been able to show beyond reasonable doubt that the scratch/injury marks were caused by the accused. Under these circumstances, I am inclined to give benefit of doubt to the accused for the offence u/s 323 IPC.
43. In view of above discussion, I am of the opinion that the prosecution has not been able to prove its case against the accused for the offence punishable u/s SC No. 180/13 State vs. Rahul Kashyap Page 31 of 32 376/493/323 IPC. Thus, the accused is acquitted for the said offences.
44. File be consigned to record room after necessary compliance.
Announced in the open court on 08.07.2014 (Sarita Birbal) Additional Sessions Judge, (SFTC), Karkardooma Courts, Delhi SC No. 180/13 State vs. Rahul Kashyap Page 32 of 32