Delhi District Court
State vs . Vikul Bakshi on 19 January, 2016
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 91/15.
Unique Case ID No. 02405R0163762015.
State Vs. Vikul Bakshi
S/o Sh. Joginder Pal Bakshi,
R/o H.No.49, Ward No.11,
Near Saraswati School Mohalla Sawaniya,
Jagadhari Distt. Yamuna Nagar,
Haryana.
Date of Institution : 04.11.2015.
FIR No. 272 dated 28.2.2015.
U/s. 376/506 IPC.
P.S. Dabri.
Date of reserving judgment/Order : 14.1.2016.
Date of pronouncement : 19.1.2016.
JUDGMENT
1. Accused Vikul has been facing trial for having committed the offences u/s.376 IPC and u/s.506 IPC. Prosecution alleges that the accused committed sexual intercourse with the prosecutrix namely 'P' (real name withheld in order to conceal her identity) on 16.11.2014 and 11.12.2014 against her consent and on the false pretext of marriage and then threatened to defame her if she insisted upon marrying her.
2. According to the case of the prosecution, the prosecutrix had appeared in the police station on 28.2.2015 and submitted a written complaint to SI Kamlesh. She prepared rukka SC No.91/15. Page 1 of 16 on the said complaint and got the FIR registered. She started investigation. She got the prosecutrix medically examined in DDU Hospital. However, the prosecutrix did not give consent for gynecological examination. NGO Counsellor was summoned who counselled the prosecutrix in the police station. The IO prepared a rough site plan of the crime spot at the instance of the prosecutrix. Statement of the prosecutrix u/s.164 Cr.PC was got recorded on 02.3.2015. The IO obtained the customer details and the call details record of the mobile phone of both the prosecutrix as well as the accused. The accused could not be traced despite search. The accused joined the investigation on 25.5.2015 pursuant to the directions of the High Court. He was interrogated by the IO. His medical examination was got conducted in DDU Hospital. The IO further recorded the statements of all the material witnesses.
3. After completion of the investigation, the IO prepared the Charge Sheet and submitted the same to the concerned Magistrate.
4. Upon committal of the case to the court of Sessions, Charges u/s.376 IPC and u/s.506 IPC were framed against the accused on 19.12.2015. The accused denied the charges and hence trial was held.
5. The prosecution has examined seven witnesses to prove the guilt of the accused. The accused was examined u/s.313 Cr.PC on 12.1.2016 wherein he admitted that he used to talk to the prosecutrix regularly on phone and had also taken her to his rented house in Janakpuri on 16.11.2014 but denied that he SC No.91/15. Page 2 of 16 committed sexual intercourse with her either on that day or on 11.12.2014. He also denied all other incriminating evidence put to him and claimed false implication. He chose not to lead any evidence in defence.
6. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire material on record.
7. The prosecutrix has been examined as PW4. She stated that the accused is the son of sister in law (Nanad) of her paternal aunt (Bua). She further deposed that she has been staying in the house of her paternal aunt since her childhood. The accused used to come to that house regularly and they met each other. According to her, the accused had been showing interest in her for a very long time and used to tell her that he loves her and wants to marry her. He also used to send text messages to her on Facebook saying that he loves her and wants to marry her. She deposed that she told the accused on 21.10.2014 that he should discuss with his family members about the marriage. Thereafter, accused's father Joginder Bakshi enquired about date of birth and also took copy of her horoscope to match it with that of the accused. He then told them that the marriage between accused and her can take place and he is in favour of such marriage. She stated that the accused's father was staying in Ahmedabad at that time as he was posted there and told her that he would come to their house for the marriage talks as and when he reaches Delhi.
8. She further deposed that she and accused used to talk to each other regularly. On 16.11.2014, when she was present in SC No.91/15. Page 3 of 16 the house of her maternal grandmother at Rithala, accused made call to her asking her to meet him at Rithala Metro Station. Accordingly, they met at Rithala Metro Station and accused took her to his rented house in Janakpuri in an auto rickshaw to introduce her to his friends. He introduced her to his friend Mandeep. He then offered her cold drink and Maggi. Thereafter, Mandeep left. Accused locked the door of the room from inside and knelt on one of his knees in front of her saying that he loves her and is very happy to have her in his house. He forced her to have sexual relations with him. When she objected, he told her why should she have any problem in that as he is prepared to solemnize court marriage with her. Thereafter, he committed physical relations with her forcibly and against her consent and then dropped her at her house.
9. She further stated that the accused felt sorry for his conduct and assured that he would definitely marry her. They continued to talk to each other. After some time, accused went to his native house in Ambala and talked to his parents about the marriage. His father again talked to her on phone and told her that he would come to their house for marriage talks. She deposed that accused made a call to her on 11.12.2014 saying that he wants to meet her to finalize the date of the marriage. He came to her house to pick her up and again took her to his rented house in Janakpuri. That day also, he had forcible physical relations with her. She stated that thereafter the attitude of the accused towards her changed. He used to talk to her but not in the way as he used to do earlier but assured to marry her.
SC No.91/15. Page 4 of 1610. She deposed that she made a call to accused's father on 22.12.2014 informing him that the accused has established physical relations with her and now is avoiding the marriage. Accused's father assured her that he would talk to her parents in this regard. The accused then sent a text message to her on 31.12.2014 wishing her 'Happy Birthday' as it was her birthday. She did not send any reply to the accused. However, she checked his Whatsapp status in the evening which was as "in a relationship with someone special, Love u, C.". She made a call to the accused asking him the meaning of his Whatsapp status but the accused abused her saying that there is no place in his life for her. She immediately called his father and apprised him about her conversation with the accused, who again assured her that he would ensure her marriage with the accused.
11. At that time, she was staying in her uncle's house at Ambala. As she was weeping, her uncle and aunt asked her what the matter was. She narrated everything in detail to them about the accused. Her uncle made a call to accused's father saying that he wants to meet him. Accused's father asked her uncle to come to his house for the talks. Accordingly, she alongwith her uncle and aunt visited accused's house at Ambala on 01.1.2015 where the accused's father told him that the accused cannot marry her as he is Manglik. Accused's mother rebuked her saying that they are not going to accept the girl like her. Accused also refused to marry her straightaway saying that nobody can cause any harm to him or force him to marry her.
12. She further deposed that accused and his family SC No.91/15. Page 5 of 16 members started defaming her amongst her relations saying that she is not a girl of good character. On account of immense harassment, she visited police station on 28.2.2015 and submitted the written complaint Ex.PW4/A. She was taken to DDU Hospital where her medical examination was conducted. She also proved her statement u/s.164 Cr.PC recorded on 02.3.2015 as Ex.PW4/B. She had shown the room in the rented house of the accused to the IO where the accused had committed physical relations with her. IO had prepared the site plan Ex.PW4/C at her instance. She had also given a joint photograph of herself and the accused Ex.PW4/E to the IO. She also handed over the copies of Whatsapp messages to the IO. She stated that she used to send Whatasap messages to the accused from her mobile no. 9953991031 upon his mobile no. 9560014800. She further stated that she was using one more mobile no. 9958533975 and the accused was also using another mobile no. 9953414688. This mobile number is allotted in her name but was being used by the accused.
13. In the cross examination, she deposed that she is in the final year of Chartered Accountant course and is also doing job in M/s. Accenture, Noida, since 10.7.2015. She is still residing in the house of her paternal aunt at Sahibababd. Her parental house is also in Sahibabad and is at a walking distance from the house of her paternal aunt. She visits her parental house regualrly.
14. She stated that in November, 2014, she was not doing any job but was doing the course of C.A. She used to leave house at 6 a.m. and used to return at 6 p.m. She had told her grandmother on 16.11.2014 that she is going to meet a friend but SC No.91/15. Page 6 of 16 did not tell her the name of that friend. She stated that they reached the rented house of accused at Janakpuri at about 1 p.m. She stayed with the accused in that house for night and went to her parental house the next morning. She left accused's house at about 10 a.m. on 17.11.2014 The two friends of accused namely Mandeep and Balkesh met her in the house. There were two bedrooms and one drawing room in the house. Mandeep and Balkesh slept in one bedroom whereas she and accused slept in another bedroom during the night. She stated that accused had established physical relations with her on 16.11.2014 at about 4 p.m. Accused's friends prepared meals for all of them in the kitchen. She also took meals and slept alongwith the accused in the bedroom. The next day, accused accompanied her in Metro and dropped her at the house of her paternal aunt.
15. She stated that when she was in the house of the accused at Janakpuri on that day, she received a call from her maternal grandmother at about 8 p.m. or 9 p.m. and she told her falsely at the instance of the accused that she has gone to the house of her paternal aunt. She also received a call from her brother at night and told him also at the instance of the accused that she is in the house of her maternal grandmother at Rithala. She admitted that she had accompanied the accused on that day from Rithala Metro Station voluntarily. She denied that the physical relations between them had taken place with her consent on that day. She did not narrate the incident of forcible sexual intercourse to Mandeep and Balkesh.
16. She further deposed that accused met her on SC No.91/15. Page 7 of 16 11.12.2014 at Janakpuri Metro Station at about 11 a.m. and they reached his rented house at 11.30 a.m. That day, she had come from the house of her paternal aunt, whom she had told that she is going for her coaching classes. She admitted that she had accompanied the accused to his house on that day also voluntarily. She remained in the house of the accused till 3 p.m. She denied that the physical relations between them on that day also were with her consent.
17. She admitted that she knew that the accused is younger to her by two and a half years. She admitted that the Facebook essages, copies of which were shown to her and are Mark-A (colly), have been sent from her Facebook ID. She denied having sent these messages to the accused. According to her, the accused knew her Facebook password and she did not know who had sent these messages from her Facebook ID. She stated that she used to check her Facebook account regularly but did not notice these messages having been sent from her Facebook ID. She admitted that she knew from the very beginning that accused is Manglik. She also admitted that her parents and her paternal aunt had never talked to accused's father about her marriage. She admitted that they did not know before 31.12.2014 that she is in love with the accused and wants to marry him. She admitted that neither any Roka ceremony nor any Ring ceremony have been performed between herself and the accused.
18. Sh. Vipin Sharma, the uncle of the prosecutrix, has been examined as PW6. He deposed that the prosecutrix had come to stay with him at his house in village Rampur on SC No.91/15. Page 8 of 16 28.12.2014. During her stay in his house he found that she used to be in depressed state. After about two days, she found her talking on phone to one Vikul and also weeping. He heard her saying to Vikul that he has ruined his life. She was also saying to him that he has promised to marry her and why is he backing out of the promise. He asked her what the matter was, upon which she told him that Vikul had committed physical relations with her on the promise of marriage but is avoiding to marry her. He asked her to talk to Vikul's father. She made a call to Vikul's father and talked to him in his presence who assured her that he would get his son married to her. She talked to Vikul also in her presence who again refused to marry her.
19. He further deposed that he talked to Vikul's father on phone on 01.1.2015 and told him that he wants to meet him. Accused's father asked him to come to his house. Accordingly, he alongwith his wife and prosecutrix reached the house of accused in Sindora, District Yamuna Nagar. Vikul and his parents were present there. He talked to Vikul's father about the marriage but Vikul's mother told them bluntly that the marriage is not possible. Vikul also stated that he is not interested in marrying the prosecutrix as some other girl has come in his life. They returned home. He again talked to Vikul's parents on phone but each time they showed disinclination towards solemnization of marriage of their son with the prosecutrix. He had accompanied the prosecutrix to P.S. Dabri on 28.2.2015 where she had submitted her complaint.
20. From the statement of the prosecutrix in her SC No.91/15. Page 9 of 16 examination in chief as well as cross examination, it clearly appears that she had accompanied the accused to his rented house in Janakpuri on 16.11.2014 and 11.12.2014 voluntarily and the physical relations between the two on those days were with her consent and not against her consent or forcible.
21. The prosecutrix has also given inconsistent and contradictory versions in this regard in her statements recorded during the course of investigation and in her testimony before this court. In the written complaint Ex.PW4/A submitted by her in the police station on 28.2.2015, she has stated that the accused committed forcible physical relations with her in his house at Janakpuri on 16.11.2014. However, in the statement u/s.164 Cr.PC Ex.PW4/B, she has stated that the accused emotionally blackmailed her saying that he loves her and is going to marry her and then committed sexual relations with her. In the testimony before this court, she again stated that the accused committed physical relations with her forcibly and against her consent. Therefore, the prosecutrix is herself not clear in her mind as to whether physical relations between her and the accused on that day were committed by the accused forcibly or by blackmailing her with the promise of marriage. There is a clear cut distinction between the two types of physical relations i.e. physical relations by force and the physical relations with the consent of the prosecutrix but on the promise or assurance of the marriage.
22. The prosecutrix has not stated either in her complaint Ex.PW4/A or in statement Ex.PW4/B as to whether the physical relations between her and the accused on 11.12.2014 were SC No.91/15. Page 10 of 16 forcible or on the pretext of marriage. She has simply mentioned therein that the accused had committed physical relations with her at his house on that day.
23. The prosecutrix has herself deposed in her cross examination that she alongwith the accused reached his rented house at Janakpuri on 16.11.2014 at 1 p.m. Accused's friend Mandeep and Balkesh were present in the house at that time. The accused had physical relations with her at about 4 p.m. after sending his friends out. Thereafter, the friends of the accused prepared meals for all of them in the kitchen and after taking meals, accused as well as prosecutrix slept in one of the bedrooms in the house together whereas accused's two friends slept together in another bedroom. The accused did not have sexual relations with her during the night. She left accused's house at 10 a.m. on 17.11.2014 and the accused dropped her at the house of her paternal aunt. If the accused would have committed forcible physical relations with her on 16.11.2014, she would not have stayed with him in the house overnight and would not have slept alongwith him in his bedroom. It does not appear from the conduct of the prosecutrix that she was feeling either ashamed or depressed after the incident of sexual intercourse with the accused. She appears to have accompanied the accused to his house on that day with the intention to spend night with him there. She appears to have spent time with the accused and his friends peacefully and happily and also slept with the accused in his bedroom for the night without any hesitation. Had it been the intention of the accused to have forcible physical relations with her, he would have done so as many times as he liked during the SC No.91/15. Page 11 of 16 night as there was nobody to stop him from doing that but he did not do.
24. Similarly, the prosecutrix again accompanied the accused to his house voluntarily on 11.12.2014. If the physical relations between her and the accused on the previous occasion i.e. on 16.11.2014 had been forcible and against her consent, she would not have accompanied the accused to his house on 11.12.2014. That day she had come from the house of her paternal aunt upto Janakpuri Metro Station wherefrom accused took her to his house. She had told her paternal aunt that she is going for her coaching classes and instead accompanied the accused to his house to have good time with him. She remained in the house of the accused for about three and a half hours, during which period they are stated to have engaged in physical relations again. The conduct of the prosecutrix clearly establishes that she had accompanied the accused to his house on that day willingly and was a consenting party to the physical relations with him.
25. Further, the messages exchanged between the prosecutrix and the accused Mark-A (colly) too indicate that the prosecutrix was having consensual sexual relations with the accused. The prosecutrix has admitted that these messages have been sent from her Facebook ID but added that she didn't send these messages and didn't know who did it. She has deposed that she used to check her Facebook account regularly but didn't notice these messages. Perusal of these messages show that these have been sent/received between 05.12.2014 and 10.12.2014. These are not normal routine messages. These show that prosecutrix was SC No.91/15. Page 12 of 16 herself eager to have sex with the accused that they have been discussing the manner in which they would enjoy sex on 11.12.2014, whether or not to use condom etc. It can't be believed that such large number of messages sent from the Facebook ID of prosecutrix would have remained unnoticed by her. If she hadn't sent these messages to the accused, she would have been shocked to notice these and would have complained either to her parents or to the accused himself. She didn't show any surprise or dismay when these were shown to her in the witness box. It is thus evident that she had chatted with the accused through these Facebook messages. Hence these messages too demonstrate that the prosecutrix was a consenting partner to physical relations with the accused and she herself had been eager to enjoy sex with him and the plan to have sexual encounter on 11.12.2014 had been made well in advance and it was not spontaneous.
26. Thus the evidence on record clearly demonstrates that the physical relations between her and the accused on both these occasions i.e. 16.11.2014 and 11.12.2014 were consensual i.e. with her consent. The issue which now crops up for consideration is whether her consent to the sexual relations with the accused was free and voluntarily or was tainted i.e. obtained by the accused on the basis of a false promise of marriage.
27. The prosecutrix has nowhere stated either in her complaint Ex.PW1/A or in her testimony before this court that she consented to have physical relations with the accused only on the belief that he would solemnize marriage with her. She has stated therein that the accused had physical relations with her forcibly SC No.91/15. Page 13 of 16 and against her consent, which turned out to be false. It has already been observed herein-above that the physical relations between her and the accused had always been consensual.
28. Though the prosecutrix has deposed that the accused had all along been assuring her that he would definitely marry her, yet it does not appear that she took him seriously in this regard. She did not tell her parents or her paternal aunt, in whose house she was residing, that the accused wants to marry her or has laid a proposal of marriage to her. She did not tell them that the accused's father has talked to her about the marriage and has taken a copy of her horoscope to match it with that of the accused. She did not inform her parents or her paternal aunt that the accused's father is going to visit their house for the marriage talks. She also did not tell her parents or her paternal aunt at any point of time that she has chosen a boy and is going to marry him. After all, the accused was not unknown to her parents or her paternal aunt. He is the son of the sister in law of her paternal aunt. The prosecutrix has nowhere deposed that she herself wanted to marry the accused and for this reason only she engaged in sexual relations with him.
29. The prosecutrix has deposed that the accused had asked her to meet him on 11.12.2014 to finalize the date of marriage and accordingly she met him at Janakpuri Metro Station. I fail to understand how could she proceed to meet the accused to finalize the date of marriage when she had not discussed the issue of marriage at all either with her parents or her paternal aunt. She has herself deposed in the cross examination that her parents and SC No.91/15. Page 14 of 16 her paternal aunt came to know for the first time on 31.12.2014 that she is in love with the accused and they intend to marry each other. Hence it cannot be believed that the prosecutrix was sure and certain in her mind that the marriage between her and the accused is going to take place and therefore her consent to the physical relations with the accused cannot be taken to be based upon any promise of marriage from the side of the accused.
30. Further, as already noted hereinabove, the Facebook messages Mark-A (colly) exchanged between the prosecutrix and the accused clearly indicate that the prosecutrix herself was eager to have sexual relations with the accused and she was not doing so on any promise of marriage with him. It appears that the two, being in the prime of their youth, were having sexual relations with each other in youthful eagerness and nothing else.
31. The prosecutrix has also admitted in her cross examination that she knew from the very beginning that the accused is Manglik. She has further deposed that when she alongwith her uncle had gone to the house of the accused on 01.1.2015, accused's father told them that the accused cannot marry her as he is Manglik. This too suggests that the parents of the accused were not in favour of this marriage probably for the reason that the accused was Manglik and his marriage with the prosecutrix would not have proved successful.
32. Thus there is no evidence on record to suggest that the prosecutrix had given her consent to the physical relations with the accused solely on the latter's promise to marry her or that SC No.91/15. Page 15 of 16 the accused was having knowledge that the prosecutrix is consenting to the physical relations with him only on his promise to marry her. Therefore, the consent of the prosecutrix to the physical relations with the accused is not hit by section 90 of the Indian Penal Code and the same appears to be voluntarily and uninfluenced by any promise or assurance of the accused.
33. Hence the prosecution has failed to prove the charges against the accused beyond reasonable doubt. The accused is liable to be acquitted and is hereby acquitted.
Announced in open (VIRENDER BHAT)
Court on 19.1.2016. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.91/15. Page 16 of 16