Delhi District Court
State vs . Astik Mandal Page No. 1/17 on 21 January, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0175212014
SC No. : 153/14 and 1390/16
FIR No. : 603/14
U/s. : 417/376 IPC
PS : Govind Puri, New Delhi.
State (Govt. of NCT of Delhi)
................... Complainant
Versus
Astik Mandal
S/o Kishori Mandal
R/o B871, Transit Camp,
Govind Puri, New Delhi. .........................Accused
Date of Institution : 19.07.2014
Judgment reserved for orders on : 16.01.2017
Date of pronouncement : 21.01.2017
J U D G M E N T
Facts
1.Accused Astik Mandal has been sent to stand trial for the offence punishable u/s 417/376 IPC on the allegations that since 2012 till 06.06.2014, he committed sexual intercourse with the prosecutrix ( name withheld to protect her identity) under misconception of fact of promise to marry her in the house at Gali No. 15 Tuglakabad Extension, New Delhi.
2. Briefly, the facts are that on 06.06.2014, the prosecutrix came at the police station Govindpuri and got recorded her statement alleging therein that she used to work as maid in FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 1/17 kothis. She has two children. Her husband had deserted her for about 2/3 years. About two years ago, she had met the accused. They became friends. He used to visit her house. On navratras, he came to her house and proposed her for marriage. He stayed in her house. Her children were playing outside. During that period, he committed sexual intercourse with her after giving false promise of marriage. He continued to establish physical relations with her on the assurance of marriage. In January, 2014, he left her. Investigation On this complaint, the case u/s 376 IPC was registered. The prosecutrix was got medically examined. The accused was arrested. He was got medically examined at AIIMS. He was found capable of performing sexual intercourse under normal circumstances. Her statement u/s 164 CrPC was got recorded. After the investigation, the accused was chargesheeted under section 376 IPC.
3. After complying with the requirements contemplated under section 207 CrPC, the case was committed to this Court. Charge
4. Prima facie case was made out vide order dated 14.08.2014 and the charge was framed against the accused for the offence punishable under section 417/376 IPC. He pleaded not guilty and claimed trial.
Prosecution Evidence
5. To substantiate its case, prosecution examined as many as nine witnesses.
PW1 HC Radhey Shyam recorded the FIR Ex. PW FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 2/17 1/A. PW2 Ms Archana Beniwal Ld MM recorded the statement of the prosecutrix u/s 164 CrPC Ex. PW2/B. She also appended the certificate on the statement.
PW3 Ct. Ram Niwas took the accused to AIIMS for his medical examination. He collected his exhibits and handed over to the IO vide memo Ex. PW 3/B. PW4 HC Vimlesh took the prosecutrix to AIIMS for her medical examination.
PW5 is the prosecutrix. She has testified on oath that she got married in 2003. She was having two children. Her husband left her about three years ago. She does not know his whereabouts. She used to work as maid in a kothi at Greater KailashII where she had met the accused about two years ago. He was driver. The accused asked her mobile number but she did not have the mobile phone. She used to live in a rented accommodation at Tuglakabad. The accused followed her and came in her house in the evening after 3/4 days. He proposed her for marriage. He told her that he has divorced his wife. She then called her landlady. The accused told her landlady that he wanted to marry her. She refused for marriage but the accused started coming to her house and kept on insisting her for marriage.
She stated that during Navratras, the accused FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 3/17 came in her house, he sent her son outside after giving him money, he closed the door from inside and forcibly established physical relation with her. When she tried to raise alarm, he assured to marry her. He thereafter started coming in her house and establishing physical relations with her giving her assurance of marriage.
She stated that on 07.05.2014, he came in her house, stayed there for three days and during that period, he established physical relations with her several times giving her assurance of marriage. He then left the house and did not return. She tried to contact him on phone but it was switched off. She also went to his house where she met his wife and other family members. When she enquired about the accused, his family members started quarreling with her. She then approached the Pradhan of the colony who advised her to approach the police. She then made the complaint Ex. PW 5/A on 06.06.2014. She proved her MLC Ex. PW 4/A and her statement u/s 164 CrPC Ex. PW 2/B. On being crossexamined, she stated that there was no problem between her and her husband but he left her when her younger son was six months old. Her brotherinlaw used to help her when she needed money. She stated that sometimes the accused used to bring Bhojo to her house. Some other friends of the FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 4/17 accused also visited her house. The accused knew about her marriage and children. He told her that he has taken divorce from his wife. She stated that she knew the place where accused used to live and she had gone there once. Her brother used to send her money in the account of the accused. She stated that the accused started coming regularly in her house. They fell in love and she thereafter accepted his marriage proposal. She denied that the physical relations between them were with her consent. She stated that she had allowed the accused to come in her house even after knowing the factum of his marriage. She denied that she used to demand money from the accused and when the accused stopped giving her money, she got registered the case. PW6 Dr. Akshatha proved the MLC of the prosecutrix Ex. PW 4/A prepared by Dr. Shriniwas. She stated that the brief history of the incident narrated by the prosecutrix was recorded in the MLC. PW7 Kanta Devi was the landlord of the premises where the prosecutrix lived as tenant for two months. She stated that she does not know if any boy/man used to come there to meet the prosecutrix. On being crossexamined by the Public Prosecutor, she stated that she did not tell the police that the accused used to come in the room of the prosecutrix.
PW8 SI Kiran Sood was the investigating officer and FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 5/17 deposed on the lines of investigation. She recorded her statement Ex. PW 5/A and got the case registered. She got the prosecutrix medically examined and arrested the accused. She also prepared the site plan Ex PW 8/C at her instance. She stated that the prosecutrix had told her that she was married and has son. Her husband has left her and she does not know his whereabouts. She did not enquire about the antecedents and character of the prosecutrix. She stated that the prosecutrix had told her that she lodged the report when the accused after promising to marry her disappeared. She had made enquiry from the local people but she did not get any clue.
PW9 Dr. Shyam proved the MLC of the accused Ex. PW 3/A prepared by Dr. Asit Kumar Sikary as per which, the accused was capable of performing sexual intercourse under normal circumstances. Statement of Accused
6. After the prosecution evidence, statement of the accused under section 313 CrPC was recorded. He denied all the incriminating evidence against him. He stated that the prosecutrix already knew about his marital status. Their relations were consensual. He never promised to marry her. She used to take money from him for making physical relations. She was indulged into prostitution and had kept 34 ladies. She used to live on their earnings. He stated that she had demanded Rs.2 lacs from him and when he refused, she made the complaint.
FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 6/17 Defence Evidence
7. The accused examined Dibyendu Pramanik as DW1.
DW1 stated that he knows the prosecutrix for about three years. She is married having children. He with his friend had gone to the her house. They established physical relations with her after paying her money. He went to her house 2/3 times and on each visit, he established physical relation with her on payment of money. He stated that he never took the accused to her house.
On being crossexamined, he admitted that he is related to the accused.
Findings
8. I have heard the arguments advanced by Ms Sushmita Banerjee, Ld counsel for the accused and Sh. Mohd. Iqrar,Ld. Addl. PP for the State.
9. Ld counsel for the accused vehemently argued that the prosecutrix was already married. She had not taken divorce from her husband. There was no promise of marriage by the accused. The physical relations between the accused and the prosecutrix were consensual. There is no medical and forensic evidence to support the testimony of the prosecutrix. PW7 did not say anything against the accused. There was no history of physical or sexual abuse as recorded in the MLC. She had extramarital relations with the accused. She knew that the accused was married. Ld counsel referred the case of Tilak Raj v. State of Himachal Pradesh, Crl.
FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 7/17 Appeal No. 13/2016 to contend that no inference can be drawn that there was fraudulent or dishonest inducement of the prosecutrix by the accused to constitute the aforesaid offence.
10. Ld Addl. PP per contra argued that firstly the accused made friendship with the prosecutrix. He knew that the prosecutrix had been living separately from her husband. He then started going to her house. He made false promise of marriage and on that pretext, one day, he committed sexual intercourse with the prosecutrix. He continued to make physical relations for two years giving her false promise of marriage. He had told the prosecutrix that he has taken divorce from his wife but when the prosecutrix went to his house when the accused was not coming to her, she came to know that he has been living with his wife and children. Ld Addl. PP stated that the accused elicited the consent of the prosecutrix to make physical relations with her giving her false promise of marriage. He rather sexually exploited her.
11. I have considered the submissions and gone through the material on record.
12. Section 375 IPC defines rape. It reads as:
"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.......
Fifthly..........
Sixthly: With or without her consent, when she is FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 8/17 under sixteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.......
13. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
14. A bare perusal of the testimony of the prosecutrix/PW5 would show that she was married in 2003. She has two children from her wedlock. Her husband left her about three years ago. Nothing can be inferred from her testimony that before the accused made promise to marry her, she had taken divorce from her husband. She knew that the accused was married. She instead verifying believed on the accused that he has divorced his wife. Her testimony shows that she had also gone to the house of the accused. Her testimony shows that the accused used to bring his friend Bhojo in her house. Sometimes his other friends also came at her house. She used to have food with them. Even during that period, she did not try to find out if the accused has taken divorce or not. It is not the case that the accused made physical relations with the prosecutrix once rather their relations continued for two years. Even during that period she did not press the accused to marry her. She has stated that the accused had told her landlady/PW7 that the accused wanted to marry her. PW7 denied this fact and has stated FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 9/17 that she does not know if any boy/man used to come to meet the prosecutrix nor she told the police that the accused used to come in the room of the prosecutrix. She has stated that she had allowed the accused to come in her house even after knowing that the accused is married. In her complaint Ex. PW 5/A, she had alleged that on navratras, the accused came in her house and proposed her for marriage. He stayed there and committed sexual intercourse with her giving her promise to marry her. In her testimony, she has stated that during navratras, the accused came in her house, sent her son outside, closed the door from inside and committed sexual intercourse with her forcibly. When she raised alarm, he assured her to marry. In her statement u/s 164 CrPC, she has stated that the accused committed rape upon her for two years. When she asked him why he raped her, he told her that he would marry her. In the instant case, their relations continued for two years. The period of two years is not a small period. When the accused stopped coming in her house, she made the complaint.
15. It would be relevant to quote the observation of the Hon'ble Supreme Court in the case of Prashant Bharti vs State Of NCT Of Delhi, Crl. Appeal No. 175 of 2013, wherein it was observed: "Obviously, an inducement for marriage is understandable if the same is made to an unmarried person. The judgment and decree dated 23.9.2008 reveals, that the complainant/prosecutrix was married to Lalji Porwal on 14.6.2003. It also reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two divorced one another by mutual consent under Section 13B of the Hindu Marriage Act. In FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 10/17 her supplementary statement dated 21.2.2007, the complainant/ prosecutrix accused Prashant Bhati of having had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007 at his residence, on the basis of a false promise to marry her. It is apparent from irrefutable evidence, that during the dates under reference and for a period of more than one year and eight months thereafter, she had remained married to Lalji Porwal. In such a fact situation, the assertion made by the complainant/ prosecutrix, that the appellantaccused had physical relations with her, on the assurance that he would marry her, is per se false and as such, unacceptable. She, more than anybody else, was clearly aware of the fact that she had a subsisting valid marriage with Lalji Porwal. Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage. If the judgment and decree dated 23.9.2008 produced before us by the complainant / prosecutrix herself is taken into consideration alongwith the factual position depicted in the supplementary statement dated 21.2.2007, it would clearly emerge, that the complainant/prosecutrix was in a relationship of adultery on 23.12.2006, 25.12.2006 and 1.1.2007 with the appellantaccused, while she was validly married to her previous husband Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the assertion made by the complainant/prosecutrix, that she was induced to a physical relationship by Prashant Bharti, the appellantaccused, on the basis of a promise to marry her, stands irrefutably falsified."
16. It was held in the case of Alok Kumar vs State & Anr. in Crl. M. C No. 299/2009, decided on 9 August, 2010 that:
''Livein relationship' is a walkin and walkout relationship. There are no strings attached to this relationship, neither this relationship creates any FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 11/17 legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time. Those, who do not want to enter into this kind of relationship of walkin and walkout, they enter into a relationship of marriage, where the bond between the parties has legal implications and obligations and cannot be broken by either party at will. Thus, people who chose to have 'livein relationship' cannot complain of infidelity or immorality as livein relationships are also known to have been between married man and unmarried woman or between a married woman and an unmarried man''.
17. Facts and circumstances of the present case show that prosecutrix had entered into livein relationship knowing fully well that her husband has not divorced her at that time. She once married, was not a naive as not to know the realty of livein relationship. It cannot be thought that she was not aware that livein relationship was not a marriage but it was a relationship of convenience where two parties decide to enjoy company of each other at will and may leave each other at will.
18. In the instant case, there is a considerable delay in lodging the complaint which is not explained by the prosecution. In the case of State of Karnataka vs. Mapilla P.P. Soopi AIR 2004 SC 83, it was held that undue delay in lodging the complaint, without substantive evidence contributes to the doubt in the prosecution case. In the case of Vijayan vs. State of Kerala (2008) 14 SCC 763, the incident took place seven months prior to the date of lodging of complaint. No complaint or grievance was made FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 12/17 either to the police or to the parents prior thereto. It was held that in cases where sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supportive evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape.
19. It is to be noted that there was no history of sexual and physical assault as recorded in the MLC Ex. PW 4/A. Facts and circumstances of the present case also show that the physical relations between the accused and the prosecutrix were consensual and were not on the promise of marriage. She made the complaint against the accused when the accused stopped coming to her house.
20. In Sujit Ranjan Vs. State 2011 Law Suit (Del) 601, it was held:
"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".
21. In Deepak Gulati Vs. State of Haryana 2013 VI AD (S.C.) 233 2013, it was held:
"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 consensual sex and FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 13/17 in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused".
22. It was held in the case of Rohit Tiwari Vs. State Crl 928/2015 dated 24.05.2016 that if a fully grown up lady consents to the act of sexual intercourse on a promise to marry and continue to indulge in such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of facts. In the case of Uday v. State of Karnataka, AIR 2003 SC 1639, it was held where the prosecutrix had sufficient intelligence to understand the significance and moral quality of the act she was consenting to, it is difficult to impute that the prosecutrix had consented in consequence of a misconception of fact arising from his promise.
23. In the case of Mohd. Iqbal Vs. State, Bail application no. 2145 of 2009 it was held by Hon'ble High Court as under :
"There is an old Jewish saying "if you are close when you should be distant, you will be distant when you should be close". It is for both man and woman to restrain themselves and not to indulge FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 14/17 in intimate activities prior to the marriage. Undoubtedly it is responsibility, moral and ethical, both, on the part of men not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But ultimately, it is woman herself who is the protector of her own body. Promise to marry may or may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues."
24. In the case of Tilak Raj supra, the prosecutrix was an adult and mature lady of around 40 years at the time of incident. She was in relationship with the accused for the last two years. The accused used to stay overnight at her residence. It was held that the case set up by the prosecutrix that the accused sexually exploited her on the pretext of marriage seems to be highly unrealistic and unbelievable.
25. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 15/17 greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration".
26. In the case of Narender Kumar Vs. State, (2012) 7 SCC 171, it was held that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredients of the offence. Such onus never shifts. The prosecution case has to stand on its own leg and cannot take support from weakness of the case of defence. However, the great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
Conclusion
27. In the light of what has been stated above, I am of the view that prosecution has failed to prove its case against the accused. I therefore, acquit the accused of the offence punishable under section 417/376 IPC. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs.10,000/ with one surety in the like amount, in FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 16/17 compliance of section 437A Cr.P.C.
28. File be consigned to the Record Room.
Announced in the open court today i.e. 21.01.2017 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi.
FIR No. : 603/14 PS : Govind Puri State Vs. Astik Mandal Page No. 17/17