Delhi District Court
State vs (I) Tahir Khan on 8 February, 2016
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 12/2015
Unique ID No. : 02401R0045522015
State versus (i) Tahir Khan
S/o Sh.Sabir Ali
R/o VPO Addupura Anwala,
Mohammadpur Pathra,
Bareily, UP.
(ii) Sabir Ali
S/o Saadi Lal
R/o VPO Addupura Anwala,
Mohammadpur Pathra,
Bareily, UP.
Case arising out of:
FIR No. : 262/2014
Police Station : Chandni Mahal
Under Section : 376/506 IPC
Judgment reserved on : 23.01.2016
Judgment pronounced on : 08.02.2016
JUDGMENT
Prosecution Case:
1. It is the case of the Prosecution that on 07.10.2014, Prosecutrix 'R' [name withheld in order to protect her identity] came to PS Chandni Mahal and gave her written complaint against Accused Tahir Khan and his father Sabir Ali. She stated that Accused Tahir Khan is a resident of Bareilly, UP and that is known to her for the last one year. She further stated that as both of them liked each other, they wanted to marry each other. She further stated that Accused Tahir Khan had told her that he had already talked to his parents regarding their marriage, who have consented for the same.
2. Complainant further alleged in her complaint that Accused Tahir Khan gradually gained her confidence and on 19.06.2014 at about 12:30 Noon he took her to a room at H.No.1710, Suiwalan and established physical relations with her on the pretext of marriage. Thereafter, he also established physical relations with the complainant on 01.07.2014 and 21.07.2014. When complainant asked Accused Tahir Khan for marriage, on 21.07.2014 both Accused Tahir Khan and Complainant went to Karkardooma Courts, Delhi for marriage, however Accused Tahir Khan fled away from there without informing her. Thereafter, she was unable to contact Accused as his phone was switched off.
3. Complainant further alleged in her complaint that when she told the father of Accused about her relations with the Accused, he demanded Rs.1516 lacs stating that the said amount would be required for the marriage. Father of Accused i.e. Sabir Ali also told her to forget about her marriage with Tahir if she is unable to arrange the money. She further added in her complaint that she had also deposited Rs.6000/ in the bank account of Accused and that besides the amount of Rs.6000/, Accused had also taken Rs.15000/ from her.
4. On the basis of the aforesaid complaint, a case under Section 376 IPC was registered against Accused Tahir Khan. Complainant was got medically examined and the exhibits were collected from the hospital.
Complainant was also produced before the learned MM, where her statement under Section 164 Cr.PC was recorded. During the course of further investigation, Accused Tahir Khan was apprehended and was got medically examined and the exhibits collected therefrom were sent to FSL for opinion. Charge sheet further reveals that during the course of investigation Sabir Ali, father of Accused extended threats to the Prosecutrix for taking back the case back against Accused Tahir Khan. On the basis of the same, Section 506 IPC was added and Sabir Ali was also arrayed as an accused in this case. Thereafter, after completion of investigation in all respects, charge sheet was filed before the court. Charges:
5. Upon committal of the case and on the basis of material on record, vide order dated 07.04.2015 accused Tahir Khan S/o Sabir Ali was charged for offence punishable under Sections 376 [2] [n] IPC, whereas Accused Sabir Ali S/o Saadi Lal was separately charged for the offence punishable under Section 506 IPC. Both Accused pleaded not guilty and claimed trial when the charges were read over and explained to them separately.
Prosecution Evidence:
6. Prosecution examined 10 witnesses in all in support of its case, which include HC Surender Pal, who was examined as PW1. He deposed regarding recording of the FIR on 07.10.2014 and proved its computerized copy as Ex.PW1/A and his subsequent endorsement on the same as Ex.PW1/B.
7. Prosecutrix 'R' was examined as PW2. She correctly identified Accused Tahir Khan in the court and deposed that they came in touch in 2013 through Facebook and then started talking on phone. She further deposed that during their conversations on phone, accused told her that he is working with Axis Bank and he also asked from her about her family status. She told the accused that one of her elder sister is getting married at Bareily. Accused Tahir also told her that he also belongs to Bareily. Accused also asked from her about her marital status and she told him that she is unmarried. Accused proposed her for marriage.
8. PW2 further deposed that in order to assure her about his profile on Facebook, accused Tahir also sent copy of his Aadhar Card to her via Email on her Email ID. She also sent her photograph on the Facebook account of accused on his asking. Accused told her that his family members like my photograph and he proposed me for marriage. He also stated that he is ready to talk to her family members for marriage.
9. She further testified that on 23.03.2014 accused came to Delhi and they met for the first time in the area of Pahar Ganj, New Delhi. At his instance, they searched a rented accommodation in the area of Daryaganj as accused Tahir wanted to live in Delhi in order to find a job in Delhi. He told her that he has left his previous job. They found H. No. 1710, Suen Walan, Delhi and Prosecutrix 'R' paid Rs. 500/ as security. Accused also told that landlord that they are already married and she is his wife.
10. PW2 further deposed that on 19.06.2014 accused again came to Delhi. He was carrying a bag containing his belongings and documents.
She also took some household articles for use of accused. They both reached at the aforesaid house. As she was keeping all the articles properly, accused Tahir bolted the door of the house from inside and started removing her clothes. When she objected, accused swore to God that he will marry her as soon as he finds a suitable job. He assured her that he loves her and will marry her only and also asked her to trust upon him and then accused forcibly established physical relations with her without her consent. Thereafter, she returned to my house.
11. On 01.07.2014 accused again called her at the aforesaid house and told her that he has given interview for a job and that he will be joining the job shortly. On that day also, he again established physical relations with her after giving assurance of marriage. She further deposed that as and when accused used to come to Delhi, she used to deposit money in his bank account, at his request as he used to ask her for money.
12. On 21.07.2014, accused again came to Delhi and again established physical relations with her without her consent after giving her assurance of marriage.
13. Thereafter, on 21.07.2014 she and accused Tahir went to Karkardooma Court for marriage. Their Advocate prepared the documents, but on the pretext of making a phone call, accused ran away from there without informing her. Accused called her on her mobile phone 34 times and requested her not to disclose anything to his family members otherwise he will commit suicide and due to this reason, she did not make any complaint against him on that day. Thereafter, she was unable to contact accused as his phone was switched off.
14. Prosecutrix 'R' called the father of accused and told him about her relations with accused Tahir. He also assured her that he will solemnize her marriage with accused Tahir and demanded Rs. 1516 lakhs stating that said amount would be required for the marriage. She also correctly identified father of the accused i.e. accused Sabir Ali in the court and further deposed that he also told her that the marriage will not be solemnized if her family is not able to pay the said amount. Father of accused i.e. Sabir Ali also told her to forget about her marriage with Tahir, if she is unable to arrange the money. When she expressed her inability to spent Rs. 1516 lakhs, thereafter, mobile phone of his father was also switched off and she was unable to contact accused persons.
15. Prosecutrix/PW2 further deposed that on 26.07.2014, she made a complaint at Mediation Centre, Rajpur Road, Delhi. She also produced the original payinslips vide which she deposited cash in the account of Accused and proved the copies of the same as Ex.PW2/D1 to Ex.PW2/D6. She also deposed that she had in fact deposited money in his account seven times totaling to about Rs.6000/ to Rs.7000/, but Accused tore one payinslip and she handed over six payinslips to the police during investigation.
16. PW2 further deposed that notice was issued to accused from Mediation Centre, but he failed to appear there also. Thereafter, on 07.10.2014, she made a complaint at PS Chandni Mahal and proved the same as Ex. PW2/A which is in her own handwriting. She also proved the site plan of the place of incident as Ex.PW2/B, which was prepared at her instance bearing her signatures at point A. This witness also correctly identified her signatures on the statement under Section 164 CrPC which was recorded before the learned MM. The same is Ex PW2/C.
17. In order to pressurize her to withdraw this case, accused persons got registered a false case against her and her family members at Bareilly. She also deposed that on 17.11.2014 when she came to Tis Hazari Court at the time of hearing of bail application of accused Tahir, accused Sabir met her outside the court while she was leaving. Accused Sabir threatened her to withdraw this case, otherwise she will be killed. She informed the IO about the same who recorded her statement.
18. Mother of Prosecutrix stepped into the witness box as PW3. She deposed that she had five daughters and two sons. After identifying Accused Tahir Khan in the court she deposed that he was relative of in laws of her elder daughter. She also deposed that gradually Accused Tahir Khan and her daughter i.e. Prosecutrix 'R' started talking and meeting each other since about 1½ years back and her daughter i.e. Prosecutrix 'R' told her that Accused has told her that he wants to marry her and she is also interested in marrying the Accused. In the same breath, PW3 further deposed that as the Accused Tahir Khan belonged to their caste and community, they also had no objection for their marriage.
19. PW3 further deposed that about 78 months ago, she came to know that her daughter i.e. Prosecutrix 'R' had gone to the court for solemnizing marriage with the Accused Tahir Khan but he fled away and did not marry her. Her daugher i.e. Prosecutrix 'R' also told her that Accused Tahir Khan and his family members were demanding Rs.15 lacs from her when her daughter talked to him telephonically. Her daughter also informed her that Accused had established physical relations with her after giving her assurance of marriage and that both of them lived in Daryaganj on rent. PW3 lastly deposed that about four months ago, she had talked to the uncle of Accused Tahir and he also informed her that the parents of Accused were demanding Rs.15 lacs for solemnizing marriage of Tahir with her daughter.
20. SI Vishnu Dutt was examined as PW4. He deposed that on 05.04.2014, he after taking permission of senior officers along with the staff reached the house of Accused Tahir Khan at Village Addupura, Anwala, District Barielly to execute the NBWs issued against him. At the instance of secret informer and on the basis of photograph available in their record, he apprehended Accused Tahir Khan from his house and brought him to PS Chandni Mahal and handed over him to IO/WSI Anita. PW4 also proved the photograph on the basis of which Accused was apprehended by him as Ex.PW4/A and his arrival entries at PS Anwla as Ex.PW4/B and Ex.PW4/C.
21. PW5 is Dr.Nidhi Aggarwal, who deposed regarding the medical examination conducted by her with respect to the Prosecutrix 'R' on 07.10.2014 and proved the MLC in this regard as Ex.PW5/A.
22. PW6 is Ct.Jagpravesh who deposed regarding taking over of the rukka and FIR after its registration on 07.10.2014 and handing over the same to W/SI Anita for further action.
23. PW7 W/SI Anita is the IO of the case, who deposed regarding the investigation conducted by her in this case. She deposed regarding the preparation of rukka consequent upon the receipt of complaint of Prosecutrix (Ex.PW2/A) on 07.10.2014 and got recorded the FIR of this case. She also got conducted the medical examination of the Prosecutrix and collected the exhibits which she seized vide memo Ex.PW7/A and later deposited them in the malkhana. PW7 further deposed regarding preparation of the site plan at the instance of the Prosecutrix as Ex.PW 2/B. She also deposed regarding obtaining of the NBWs against Accused Tahir Khan who was evading his arrest and got her apprehended by a police team headed by SI Vishnu Dutt from his house at Barielly on 06.11.2014 and later on arrested him vide arrest memo Ex.PW2/E. She also got the Accused medically examined and collected the sealed exhibits vide memo Ex.PW7/B and deposited the same in the malkhana.
24. PW7 also got recorded the statement of the Prosecutrix recorded under Section 164 Cr.PC pursuant to her application Ex.PW7/C and further deposed that during the course of investigation on 18.11.2014, she added Section 506 IPC against the coaccused Sabir Ali, father of the Accused Tahir Khan on the statement of the Prosecutrix.
25. PW7 took into possession the deposit slips handed over to her by the Prosecutrix vide which she deposited some amount in the bank account of the Accused and seized the same vide seizure memo Ex.PW 2/D. The same were proved as Ex.PW2/D1 to Ex.PW2/D6. PW7 also deposed regarding getting the print out of the conversation held between Accused and the Prosecutrix through social networking site Facebook from the Cyber Cafe through its proprietor Mohd. Iqbal and proved the print out of the same, running into three pages as Ex.PW7/F1 to Ex.PW7/F3 and certificate under Section 65B of Evidence Act given by the proprietor of the said Cyber Cafe to this effect as Ex.PW7/G.
26. PW7 also collected the FSL report with forwarding letter and proved the same as Ex.PW7/H. She also tender the same in evidence at the time of her deposition and the same was not objected to by the defence. PW7 also recorded the statements of the witnesses, prepared the charge sheet and submitted the same in the court.
27. Before parting further, it may be noted that when the case was listed for judgment on 15.12.2015, Prosecution filed an application under Section 311 Cr.PC, which was allowed and PW8 Sh.I.A.Khan, PW9 Sh.Lava Tripathi and PW10 Sh.Kapil Sharma were examined by the Prosecution in order to prove the factum of purchase of stamp papers at Karkardooma Courts and preparation of their marriage documents pertaining to Accused and the Prosecutrix on 21.07.2014. Arguments, Analysis and Findings:
Case against Accused Tahir Khan:
28. I have considered detailed arguments advanced by learned Defence Counsel and have also gone through the written submissions filed on behalf of accused. I have also considered the submissions of Prosecution and carefully gone through the evidence on record.
29. It was argued by learned Defence Counsel that the alleged offences do not stand proved against the accused and that the Prosecution has failed to bring home the guilt of the accused.
30. The case of the Prosecution, as discussed above, emanated on the basis of the allegations of the Prosecutrix 'R'. Prosecutrix/PW2 has spelt out in her complaint Ex.PW2/A, her subsequent supplementary statement under Section 161 Cr.PC as well as in her statement recorded under Section 164 Cr.PC (Ex.PW2/C) and it is her plea that Accused Tahir Khan committed rape upon her on 19.06.2014, 01.07.2014 and 21.07.2014 at H.No.1710, Sui Walan, Delhi after obtaining her consent for the said physical relations, upon giving her assurance that he will positively marry her. However, on the date fixed for the registration of their marriage at Karkardooma Courts, Delhi i.e. on 21.07.2014, Accused Tahir Khan fled away from there and later refused to marry the Prosecutrix 'R'.
31. The law with regard to appreciating the testimony of a rape victim has been settled by Hon'ble Superior Courts. In Narender Kumar vs. State (NCT of Delhi), reported as V(2012) SLT 129, it has been held as under:
"Testimony of Prosecutrix - Corroboration of testimony of prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under given facts and circumstances."
32. In yet another judgment titled as State of Punjab vs. Gurmit Singh & Ors., reported as AIR 1996 SC 1393(1), Hon'ble Supreme Court held as under:
"The testimony of victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict and accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence on an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding."
33. In the present case besides the testimony of Prosecutrix 'R', there is also the testimony of PW8, PW9 & PW10 to the effect that the Accused Tahir Khan fled away from Karkardooma Courts on 21.07.2014 when he and the Prosecutrix went there for the purpose of preparation of their marriage documents.
34. Prosecution examined PW8 Sh.I.A.Khan, Advocate in order to establish its case that the Accused fled away from Karkardooma Courts on 21.07.2014 after promising to marry the Prosecutrix. PW8 Sh.I.A.Khan identified Accused Tahir Khan in the court and deposed that initially Accused Tahir Khan had come to his seat at Karkardooma Courts on 01.07.2014 and given him advance of Rs.2000/ along with photocopies of the identity proof and photographs of himself and Prosecutrix for getting prepared the marriage documents. Subsequently, on 21.07.2014, Accused Tahir Khan again came to him along with Prosecutrix. PW8 also deposed that on his asking, Accused Tahir brought three stamp papers in the denomination of one stamp paper of Rs.50/ and two of Rs.10/, for preparing the marriage documents. He further deposed that he got prepared the affidavits of Accused Tahir and Prosecutrix 'R' on stamp papers of Rs.10/ each and got prepared one marriage deed on stamp paper of Rs.50/. He further deposed that he also affixed the photographs of Accused Tahir and Prosecutrix 'R' on the said documents which were prepared by him. The said documents including ID proofs of Accused and Prosecutrix are Ex.PW2/PX (Colly). PW8 further deposed that he has also obtained the signatures of the Prosecutrix at points 'A' on the said documents and when he asked the Accused to append his signatures on the said documents, Accused asked PW8 to first get the signatures of the Prosecutrix on the said documents. In the meantime, a call came on the mobile phone of Accused and Accused left from his seat while talking on his phone stating that he will return shortly. However, Accused Tahir did not return and when the Prosecutrix called him and asked him to come back, he refused.
35. PW9 Sh.Lava Tripathi deposed that he is looking after the affair of estamp vending from the counter of Karkardooma Courts, Delhi and he is the Branch Manager of Stock Holding Corporation of India Ltd. at Karkardooma Courts, Delhi. He deposed that the print out of estamp papers and records pertaining to its sale is taken out by him from the computer system, which is exclusively under his control and supervision. PW9 further deposed that estamp papers Ex.PW2/PX (Colly) have been issued from their counter at Karkardooma Courts and it has got unique certificate number, which gets created automatically on the computer system maintained by them. He also produced the estamping list of all certificates report dated 21.07.2014 stating that it is the list of all the stamp papers sold from the counter at Karkardooma on 21.07.2014. The said list is Ex.PW9/A and the name of Accused Tahir Khan appears at Srl. No.129 in the said list. This witness also furnished the requisite certificate under Section 65B Evidence Act pertaining to the aforesaid computer generated report.
36. PW10 Sh.Kapil Sharma is the stamp paper clerk who works at the counter at Karkardooma Courts, Delhi. He deposed on seeing the stamp papers Ex.PW2/PX (Colly) that the same were sold by him from the said counter on 21.07.2014.
37. The testimonies of PW8, PW9 and PW10 have been assailed by the defence on the ground that admittedly the alleged documents of marriage i.e. Marriage Deed and Affidavit, Ex.PW2/PX (Colly) do not bear the signatures of Accused Tahir Khan. Further, they also do not bear the seal or signatures of PW8 I.A.Khan, Advocate. Learned defence counsel also argued that though PW9 deposed that the said estamp papers Ex.PW2/PX (Colly) were issued from their counter at Karkardooma Courts, however PW9 clarified in his crossexamination that the purchaser of estamp paper is not required to establish his identity by producing his ID proof before buying the stamp paper. It is thus argued that it is possible that anyone can come and buy stamp paper over the counter. He submitted that it is the Prosecutrix, who had in fact purchased the estamp paper at Karkardooma Courts on 21.07.2014 in order to falsely implicate the Accused in the present case. Neither the signatures of the Accused Tahir Khan appear on the said documents nor there is any other proof to establish that it is the Accused Tahir Khan who has purchased the said stamp papers at the counter at Karkardooma Courts on 21.07.2014.
38. I have considered the aforesaid submissions of learned defence counsel. However, on going through the testimonies of PW8, PW9 & PW10, I am of the opinion that it has been duly established on record that the estamp papers Ex.PW2/PX (Colly) were purchased from the estamp vending counter at Karkardooma Courts Complex, Delhi on 21.07.2014. The testimony of PW9 also establishes that the name of Accused Tahir Khan appears in the list of purchasers of estamp papers sold from the counter of Karkardooma Courts on the said date i.e. 21.07.2014.
39. Although, it is contended by the Defence that Accused did not purchase the said estamp papers on 21.07.2014, however, there is no explanation as to why his name would appear at Srl. No.129 of the list Ex.PW9/A as the purchaser of one of the stamp papers. It is also noteworthy that PW8 categorically deposed that on 21.07.2014, Accused Tahir Khan had come to him along with Prosecutrix 'R' and had brought some stamp papers for preparation of marriage deed and the affidavits of himself and the Prosecutrix 'R'. PW8 also deposed that he prepared the said documents Ex.PW2/PX (Colly), which were also signed by the Prosecutrix 'R' and he also fixed the photograph of Accused and Prosecutrix on the said documents prepared by him. PW8 also corroborated the testimony of Prosecutrix 'R' and deposed that the accused left from there on the pretext of attending a call on his mobile phone and did not return despite the efforts made by the Prosecutrix 'R' to call him back.
40. There appears to be no plausible reason as to why PW8, who is an independent witness would depose falsely regarding presence of the Accused at Karkardooma Courts on 21.07.2014 i.e. the same date when the Prosecutrix alleged that the Accused accompanied her for marrying her and fled away from the Karkardooma Courts Complex on the pretext of attending a call on his mobile phone.
41. Further, there is no reason as to why and how the computer generated record furnished by PW9 would be fabricated or the name of Accused would feature as the purchaser of the estamp paper worth Rs.10/ on the same date i.e. 21.07.2014. I do not find myself inclined to accept the contention of the defence that it is the Prosecutrix who had in fact purchased the stamp papers in the name of the Accused in order to falsely implicate him in this case. It does not appeal to reason as to why Prosecutrix would fabricate such a record on 21.07.2014 when she had herself accompanied the accused to the court for their marriage and in that view of matter she could not have anticipated that the Accused would refuse to marry her and she would have the reason to falsely implicate accused in this case later on.
42. From the above discussion and the evidence of PW8, PW9 & PW10, I am of the opinion that it has been duly established on record that the Accused did accompany the Prosecutrix 'R' on 21.07.2014 to Karkardoooma Courts, Delhi. They approached PW8 Sh.I.A. Khan, Advocate for preparation of their marriage documents. The stamp papers on which said documents were prepared were also purchased from the e stamp vendor counter at Karkardooma Courts Complex on 21.07.2014, one stamp paper having purchased by the Accused in his own name, as per record furnished by PW9. Further, the testimonies of both Prosecutrix 'R' and PW8 also establish that the Accused fled away from Karkardooma Courts before signing the said documents i.e. marriage deed and affidavits, which were duly prepared by PW8 on the asking of Accused Tahir Khan himself. Moreover, the absence of seal/stamp or signatures of PW8 Sh.I.A.Khan, Advocate on documents Ex.PW2/PX (Colly) is self explanatory since it is a matter of common sense that an Advocate would append his signature and affix his seal on a document only when it is complete in all respects, duly signed by the parties concerned. In this case, obviously PW8 did not have the occasion to sign/seal the documents Ex.PW2/PX (Colly) as Accused Tahir Khan fled away before signing the same.
43. The testimony of Prosecutrix 'R' further establishes that she was in touch with the Accused through Facebook. Noticeably, Accused Tahir Khan also did not dispute this fact in his statement recorded under Section 313 Cr.PC on 24.11.2015, in response to question No.1. In the said statement Accused Tahir Khan also admitted having came to Delhi and met the Prosecutrix on 23.03.2014, thus establishing that they were in touch through Facebook and telephonically and it had also admitted again from his statement recorded under Section 313 Cr.PC that he also sent a copy of his Adhaar Card to Prosecutrix and she also sent her photograph to him through Facebook.
44. Prosecutrix/PW2 also deposed that 23.03.2014 they found H.No.1710, Suiwalan, Delhi and she paid Rs.500/ as security to the landlord of the said house. Incidently, the said landlord though cited as Prosecution witness, could not be examined as a witness as he reportedly expired during the course of trial.
45. Be that as it may, Prosecutrix/PW2 deposed that on 19.06.2014 that Accused Tahir Khan again came to Delhi and established physical relations with her at the aforesaid house on the assurance that he will marry her. He again repeated this act on 01.07.2014 and 21.07.2014 after extending assurance to the Prosecutrix that he will marry her.
46. The contention of the defence that the Prosecution has failed to produce on record any evidence with respect to the said alleged place of incident must necessarily be turned down in view of the fact that the testimony of the Prosecutrix remained unimpeached despite her lengthy crossexamination wherein she categorically deposed that the Accused Tahir Khan established physical relations with her in the said house at H.No.1710, Suiwalan, Delhi on the assurance that he will marry her.
47. Moreover, during the course of her crossexamination, the defence itself suggested to the Prosecutrix that no rent agreement was executed in respect of the said house as the landlord was known to the Prosecutrix. The Prosecutrix however responded that "It is wrong to suggest that no rent agreement was executed as the landlord was known to me." Prosecutrix further admitted that "I had paid rent of Rs.2300/ of the tenanted house i.e. H.No.1710, Suiwalan, Delhi. (Vol. I had paid rent to the landlord on the asking of Accused as he assured me that he will give me the said money lateron."
48. Thus, it does not lie in the mouth of the Accused to contend now that no such house was taken on rent or that no physical relations as alleged by the Prosecutrix were established by the Accused in the said rented accommodation, as deposed by the Prosecutrix/PW2.
49. In the course of her testimony, the Prosecutrix/PW2 also deposed that during her relationship with the Accused Tahir Khan, she used to deposit money in the bank Account of the Accused on various occasions at his request. She also produced the payinslip of her bank account in the course of her testimony. The Accused in his statement recorded under Section 313 Cr.PC admitted in response to Question No.11 that as and when he used to come to Delhi, Prosecutrix used to deposit money in his bank account at his request and that he had also taken Rs.15000/ in cash from the Prosecutrix on various occasions. It also appears from the testimony of Prosecutrix/PW2 that after Accused fled away from Karkardooma Courts, Delhi on 21.07.2014, she tried to get the matter amicably resolved by moving complaint/application Mark PW2/1 at Mediation Centre, Rajpur Road, Delhi and finally approached the police vide her complaint Ex.PW2/A only on 07.10.2014. She has also deposed that she tried to contact Accused Tahir Khan several times, but the mobile phone of the Accused Tahir Khan was switched off. His father i.e. coaccused Sabir Ali agree to solemnize her marriage with the Accused Tahir Khan and demanded Rs.1516 lacs for the same and when she expressed her inability to arrange the said amount, the mobile phone of his father was also switched off.
50. The aforesaid evidence thus reasonably explains the delay in lodging the FIR by her only on 07.10.2014.
51. From the above evidence of the Prosecutrix and the other Prosecution witnesses, particularly the testimonies of PW8, PW9 & PW 10, I am of the opinion that the Prosecution has been able to establish that the Accused established physical relations with the Prosecutrix on 19.06.2014, 01.07.2014 & 21.07.2014, after giving assurance that he will marry her and after obtaining the consent by keeping under misconception of fact by assuring her that he will marry her.
52. The law in this regard is fairly well settled. Though the term 'consent' is not defined in the Indian Penal Code, yet Section 90 IPC lays down as under : Section 90 IPC. Consent known to be given under fear or misconception : A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;
53. The issue of obtaining consent of prosecutrix after extending false promise of marriage has been discussed by Hon'ble Superior Courts in a catena of judgments. In the case of Deelip Singh @ Dilip Kumar vs. State of Bihar, MANU/SC/0948/2004, the Hon'ble Apex Court relied upon the case of Jayanti Rani Panda vs. State of West Bengal, MANU/WB/0299/1983, which was approvingly referred to in the case of Uday vs. State of Karnataka, MANU/SC/0162/2003 and observed that 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 of elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. It further added that 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.
54. It was reiterated that this fact was stressed by the Division Bench of Hon'ble Calcutta High Court in Jayanti Rani Panda (Supra) which was referred to in the case of Uday Singh (Supra). Hon'ble Supreme Court further added that "these are the questions which have to be answered on an analysis of the evidence. The last question raises the allied question, whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was never intended to be acted upon by him. As pointed out by this Court in Uday's case the burden is on the Prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114A of Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides."
55. Similarly, in the case of Girish Baruah vs. State of Assam, 2009 (3) GLR 242, the Hon'ble Guahati High Court again relied upon the case of Deelip Singh (Supra) and observed as under : "...that for the purpose of determining as to whether 'consent' existed or not, not only the previous conduct of the accused, but even his contemporaneous acts or the subsequent conduct can be legitimate guides. This, in turn, shows that while determining the question whether 'consent' existed or not, the Court has to take into account not only the previous or contemporaneous act of the accused, but also his subsequent conduct. To put it a little differently, the previous or the contemporaneous acts of an accused or even his subsequent conduct may help the Court determine as to whether the offer of marriage made by the Accused was a mere hoax to obtain 'consent' or was it an honestly made promise of marriage."
56. Keeping the aforesaid legal propositions in mind and the facts of the present case as analyzed hereinabove, it is apparent that the Accused not only held out the assurance to the Prosecutrix time and again that he will marry her and ostensibly obtained her consent for physical relations on such assurance but the fact that he did not intend to keep his promise is also clearly reflected from his subsequent conduct of fleeing away from Karkardooma Courts, Delhi on 21.07.2014 when they both went and met PW8 for the purpose of marriage.
57. I may hasten to add that it is not the plea of the Accused that he was unable to keep his promise of marriage for any particular reason like opposition from his family or some other unforeseen circumstances. During the entire course of trial, the Accused failed to spell out any such circumstances which prevented him from keeping his promise to marry the Prosecutrix. Rather, his conduct of fleeing away from Karkardooma Courts on 21.07.2014 clearly reflects that the intention of the Accused was not honest since the very inception and that he never intended to marry the Prosecutrix 'R'. Prosecutrix, on the other hand, continued to support him financially, as also admitted by the Accused. Not only this, she tried to contact the Accused and his father to convince them for solemnization of her marriage with Accused Tahir Khan and even approached the Mediation Centre for this purpose.
58. It is also pertinent to note that it has come on record through the testimony of PW3, mother of the Prosecutrix that her daughter i.e. Prosecutrix 'R' informed her that Accused Tahir Khan wants to marry her and she is also interested in marrying her and that she (PW3) did not have any objection for their marriage as Accused Tahir Khan belonged to their caste and community.
59. In the light of the above observations, the testimony of the Prosecutrix and other PWs as discussed above and the aforesaid subsequent conduct of the Accused, I am of the opinion that the Prosecution has been able to establish its case beyond reasonable doubt that Accused Tahir Khan established physical relations with the Prosecutrix 'R' on 19.06.2014, 01.07.2014 & 21.07.2014 after obtaining her consent on the assurance of marriage, which he never intended to fulfill, thereby vitiating her consent and thus committed the offence punishable under Section 376(2)(n) IPC. Case against Accused Sabir Ali :
60. Insofar as Accused Sabir Ali is concerned, it is a matter of record that he is facing trial on the allegations that on 17.11.2014 when Prosecutrix 'R' came to the court during the hearing of the bail application of the Accused Tahir Khan, Accused Sabir Ali criminally intimidated her and threatened her to withdraw her complaint against Accused Tahir Khan.
Subsequently, Section 506 IPC was added and Accused Sabir Ali was arrayed as an Accused. Though, Prosecutrix/PW2 testified that Accused Sabir Ali threatened her on 17.11.2014 at Tis Hazari Courts to withdraw the case, however, this allegation has not been substantiated on record beyond the realm of reasonable doubt. It is noteworthy that the IO/SI Anita (PW7) deposed in her crossexamination that a complaint regarding the said threat was filed on 17.11.2014 and Section 506 IPC was added in the case on 18.11.2014. She further admitted that said complaint is not on record. She also stated that no call was made by the Prosecutrix with regard to the said threat. She further deposed that she did not verify the allegation of threat alleged by Prosecutrix against the Accused Sabir Ali.
61. In the light of the aforesaid testimony of the IO/SI Anita (PW
7), I am of the opinion that Accused Sabir Ali is entitled to benefit of doubt. Accordingly, he stands acquitted for the offence under Section 506 IPC. Conclusion:
62. Consequently, in view of the discussion rendered herein above, Accused Tahir Khan S/o Sabir Ali is hereby convicted for the offence punishable under Section 376(2)(n) IPC. Accused Sabir Ali s/o Saadi Khan is however, acquitted of the offence under Section 506 IPC. Let Accused Tahir Khan be heard on the point of sentence.
Announced in the Open Court
on 08th day of February, 2016 (Kaveri Baweja)
Additional Sessions JudgeSFTC2 (Central)
Tis Hazari Courts: Delhi.
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 12/2015
Unique ID No. : 02401R0045522015
State versus Tahir Khan
S/o Sh.Sabir Ali
R/o VPO Addupura Anwala,
Mohammadpur Pathra,
Bareily, UP.
Case arising out of:
FIR No. : 262/2014
Police Station : Chandni Mahal
Under Section : 376/506 IPC
Judgment pronounced on : 08.02.2016
1. Vide judgment dated 08.02.2016, Accused Tahir Khan has been convicted for the offence punishable under Section 376 (2) (n) IPC .
2. I have heard arguments of learned defence counsel as well as learned Addl. PP on the point of sentence. It is submitted by learned defence counsel that the Accused is only 27 years of age and is pursuing BBA Course. He is also stated to be the eldest son in his family which comprises of his parents and one younger brother. It is submitted by learned counsel appearing on behalf of the above named convict that a lenient view may be taken keeping in view the aforesaid facts and circumstances.
3. Learned Addl. PP, on the other hand, submits that the offence punishable under Section 376 (2) (n) IPC is punishable upto life imprisonment and prays that maximum prescribed punishment may be awarded to the above named convict keeping in view the gravity of allegations.
4. I have considered the rival submissions in the light of the facts and circumstances of the case. I am of the opinion that the interest of justice would be met if the above named convict is sentenced to undergo Rigorous Imprisonment for 10 years for offence punishable under Section 376(2)(n) IPC, in addition to payment of fine of Rs.5000/, in default whereof, he shall undergo Simple Imprisonment for 02 years. It is ordered accordingly.
5. Needless to add that the convict shall also be entitled to the benefit of Section 428 Cr.PC.
6. In addition, I also recommend payment of adequate compensation to the victim in the present case, as per provisions of Section 357A Cr.PC. The quantum of compensation to be awarded under Victim Compensation Scheme shall be decided by Delhi Legal Aid Services in terms of provision under Section 357A Cr.PC.
7. Copy of the judgment and order on sentence be supplied to convict free of cost. It is also directed that a copy of the judgment and order on sentence be also sent to Secretary, DLSA (Central District) for necessary action. File be consigned to record room.
Announced in the Open Court on 11.02.2016 (Kaveri Baweja) Additional Sessions JudgeSFTC2 (Central) Tis Hazari Courts: Delhi.