Delhi District Court
State vs Rohit on 28 September, 2016
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IN THE COURT OF MS.SHAIL JAIN,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 02/2014
State
Versus
1. Rohit
s/o Pappu Karan Singh
r/o H. No. 771, Ist FF, 12.5 yards TC Camp, Raghubir
Nagar, New Delhi.
2. Heera Devi
w/o Pappu Karan Singh
r/o H. No. 771, Ist FF, 12.5 yards TC Camp, Raghubir
Nagar, New Delhi.
First Information Report Number : 349 of 2013
Police Station : Rajouri Garden
Under sections 323/366/376 of the Indian Penal Code.
Date of receipt of files after committal in : 13/01/2014
the Sessions Court
Date of judgment : 28/09/2016
JUDGMENT
1. Accused Rohit has been charge sheeted by Police Station Kirti Nagar, Delhi for the offences under sections
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376/323/342/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 12/06/2013 accused took prosecutrix (name mentioned in the file but withheld to protect her identity) to an unknown place Uttam Nagar where he had committed rape upon the prosecutrix (name mentioned in the file but withheld to protect her identity) at Delhi. It is also the case of the prosecution that accused Rohit along with coaccused Heera Devi voluntarily gave beatings to prosecutrix ((name mentioned in the file but withheld to protect her identity) and confined her in a rented accommodation
2. After hearing arguments, vide order dated 20/03/2014, accused Rohit was charged for offences under sections 376/323/342/34 of the IPC & accused Heera Devi was charged for the offences under sections 323/342/34 IPC Accused persons pleaded not guilty and claimed trial.
3. In evidence prosecution has examined 10 witnesses to prove the guilt of the accused persons.
4. PW1 ASI Shiv Narain has deposed that 23/06/2013 he was posted as duty officer and on the basis of rukka, he has registered the FIR of present case and proved the copy of the same as Ex.PW1/A.
5. PW2 ASI Pradeep Kumar has deposed that on 14/06/2013, she lodged the DD no 35 A (Ex.PW2/A) regarding missing of prosecutrix by her husband.
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6. PW3 Ms Collete Rashmi Kujur, Ld Metropolitan Magistrate has recorded the statement of prosecutrix u/s 164 Cr.P.C, which is Ex.PW3/A.
7. PW4 ASI Maman Singh is first IO of the case. He has deposed that on 14.06.2013 ASI Pradeep Kumar , duty officer had handed over to him the DD No.35 A for investigation regarding the missing of prosecutrix. He had conducted all proceedings regarding missing i.e filling up missing form and sending the same along with photograph to television, NCRB and sending wireless messages on all India basis. ON 23.06.2013 the prosectrix was produced by her husband Mr. Gaurav. He made inquiries from the prosecutrix and thereafter I handed over the file to SI Sumitra.
8. PW5 is the prosecutrix. She has deposed that she was married with Mr. Gaurav, 33 ½ years back. At the time, when she was 3 months pregnant, she developed friendship with the accused Rohit, who used to visit the gali, where she was living. Accused Rohit was also known to her husband and after some time he started coming to their home also. She used to talk with the accused on his mobile phone. She had some altercation with her husband and therefore she accompanied the accused at his instance. Accused took her to Uttam Nagar & kept her there for 34 days. His mother also used to visit the above said place.
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Thereafter, accused took her to Haridwar. Thereafter, she came back to Uttam Nagar with the accused and insisted him to marry her, but the accused kept on delaying on one or the other pretext. After, 1012 days she tried to run away from the house of the accused in the night but she was seen by him while escaping, accused Rohit took her back and also hit her on her back with a fist blow. The accused called his mother also. She expressed her will to go back to her home. The accused Rohit and his mother Heera had given beating to her. When she insisted repeatedly for going to her house, accused Heera Devi agreed to leave her at her house but she told her not to name either the accused Rohit or her. Accused Heera Devi brought her to Tagore Garden and left her in a park near her house. Her father, husband and mother in law came at the park and they took her to PS and her statement (Ex.PW5/A) was recorded. Thereafter, she was taken to hospital for medical examination. From there she came back to PS and from PS she went along with her husband. Her husband got her a rented accommodation near Sheetla Mandir, Tagore Garden. Her statement u/s 164 Cr.P.C (Ex.PW3/A) was recorded by Ld Metropolitan Magistrate. The accused Rohit committed rape upon her at Uttam Nagar prior to leaving from Haridwar and after coming back to Uttam Nagar from Haridwar. Her elder sister Ms. Suman got married with accused Rohit about 34 months ago.
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9. PW6 Dr Pannam Sharma has proved the MLC of prosecutrix and proved the same as Ex.PW6/A.
10. PW6 (it should be PW6A)Ms Pallavi Borah has proved MLC of prosecutrix dated 24/06/2014.
11. PW7 Sh Gaurav is the husband of the prosecutrix.
12. PW8 Shri Girdhari Lal is father of the prosecutrix. He has not supported the case of the prosecution. He has stated that he came to know from mother of Gaurav that prosecutrix and Rohit had gone together.
13. PW9 HC Amar Kumar has deposed that on 26/06/13 he has joined the investigation with the IO. In his presence, accused Rohit was arrested vide memo Ex.PW9/A and personal search of accused was conducted vide memo Ex.PW9/B.
14. PW10 SI Sumitra Sharma is the second IO of the case. She has deposed that on 23.06.2013, investigation of this case was assigned to her by the SHO. She along with prosecutrix went to DDU hospital for her medical examination. As the prosecutrix was pregnant, so her exhibits were not taken. She had collected the MLC (Ex. PW6/A) of the prosecutrix . She had recorded the statement of the prosecutrix, which is Ex.PW5/A. The missing report of the prosecutrix was already lodged by her husband on 14.06.2013, which is Ex.PW7/A. She prepared rukka on the same, which is exhibited as Ex. PW10/A. She presented the rukka and statement of the
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prosecutrix to the duty officer for registration of the FIR. On the pointing out by the prosecutrix, she had prepared site plan (Ex. PW5/B). On 25.06.2013, statement of the prosecutrix u/s 164 Cr.PC was got recorded, which is Ex.PW3/A. Accused Rohit was arrested vide arrest memo Ex. PW9/A. His personal search was taken vide personal search Ex. PW9/B. The accused Rohit Kumar confessed his crime and his disclosure statement (Ex. PW10/B) was recorded. The date of birth certificate of accused Rohit Kumar and photographs of accused Rohit along with the prosecurix were seized vide seizure memo (Ex. PW10/C). Accused was sent for medical examination to DDU hospital with HC Amar Singh. Accused Heera Devi, who is the mother of the accused Rohit, was formally arrested and released on police bail. Arrest memo of accused Heera Devi is exhibited as Ex. PW10/D. After completion of investigation, charge sheet was prepared and filed in the Court.
15. Thereafter prosecution evidence was closed.
16. Statement of both accused persons u/s 313 Cr.P.C were recorded wherein they have denied the allegations. They have stated that they have been falsely implicated in the present case. Accused persons had stated that they want to lead evidence in defense.
17. DW1 Ms Suman has deposed that she is real sister of the prosecutrix. She got married to accused Rohit with her free
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consent and they have a child. Prior to registration of FIR, she was engaged with Rohit in February 2013. Her sister got married with Pappan in 2010. Without taking divorce, her sister got married with Mr Gaurav and she has a daughter namely Durga from Mr Gaurav. Accused has not committed any offence against her sister. Her sister has falsely implicated accused in present case and her mother in law.
18. I have heard arguments from Sh Sanjiv Kumar , Ld counsel for accused as well as from Sh Subhash Chauhan, Ld Additional P.P for the State.
19. It is submitted by Ld counsel for accused that there is no specific date of incident mentioned by prosecutrix. It was also argued by Ld defense counsel that prosecutrix and accused were knowing each other. The prosecutrix had insisted the accused to marry her. It is also submitted by Ld defense counsel that physical relations established between the parties were consensual and were not forced. It has also been argued that prosecution has not been able to prove any threat or force under which prosecutrix was put for establishing the physical relations or that accused had committed rape upon the prosecutrix. It is the prosecutrix, who wanted to marry with accused Rohit. There are contradictions in the statement of prosecutrix. With these submissions, it is prayed by Ld defense counsel that accused persons be acquitted for the offences, they are charged with.
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20. On the other hand, Sh Subhash Chauhan, Ld Additional P.P had submitted that prosecutrix is relative of the accused and she has specially stated in her complaint, in examination in chief as well as in statement u/s 164 Cr.P.C, that, both accused persons ie Rohit & Heera Devi had confined her in a rented accommodation at Uttam Nagar and gave beatings to her. Accused Rohit had also committed rape upon prosecutrix. Therefore, it is prayed by ld Additional P.P that accused be convicted for the offence, they are charged with.
21. I have considered the arguments advanced by Ld counsel for the parties and gone through the file.
22. In the present case, it has been argued by Ld defense counsel that relationship between the parties were consensual and it was the prosecutrix, who had insisted the accused to marry her. In these circumstances, the moot question which arises is, whether the relationship established between the parties were with the consent of prosecutrix or same were forced? Rest of the prosecution witnesses examined by the prosecution are either police officials, who have taken part in the investigation or are the doctors who have medically examined prosecutrix and accused. Therefore, in order to appreciate the allegation of commission of offence u/s 376 IPC as levelled against the accused, only testimony of prosecutrix is to be seen.
23. After considering the testimony of prosecutrix, I am of the
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opinion that Ld defense counsel has rightly pointed out that there are various discrepancies and contradictions in the testimony of the prosecutrix which makes her testimony unbelievable.
24. After considering the submissions made by Ld counsels for the parties as well as perusal of the case file, evidence led by the prosecution, it is clear that in the entire evidence, prosecutrix has nowhere alleged that, she was taken away, by accused Rohit, " without her consent" or that accused had promised to marry her due to which, he had committed rape upon prosecutrix. As is clear from the examination in chief recorded on 24/4/14 wherein prosecutrix had specifically stated that "after coming back to Delhi from Haridwar, I came back to Uttam Nagar with the accused and I insisted him to marry me, but the accused kept on delaying on one or the other pretext".
25. This statement of prosecutrix clearly shows that prosecutrix had accompanied the accused by her own choice. Further, it was the prosecutrix who had insisted the accused to marry her. It is also the case of the prosecutrix that sister of the prosecutrix had married the accused Rohit during the pendency of this case and was engaged with accused Rohit prior to the institution of the present case. Even father of the prosecutrix examined as PW8 has not levelled any allegation against accused Rohit. In the cross examination of
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prosecutrix conducted on 18/11/2014, prosecutrix had specifically stated that after 23 years of her marriage with Gaurav, accused started visiting her residence and after about one month, he had proposed the prosecutrix for marriage, which she had accepted. There is no allegation levelled by the prosecutrix nor proved by the prosecution in any manner that it was accused Rohit who had made false promise to the prosecutrix for marriage, rather admittedly, it is the prosecutrix who had insisted for marrying with accused Rohit.
26. From the testimony of prosecutrix, it is clear that all the allegations levelled by the prosecutrix in the complaint are vague. As per the complaint, the prosecutrix was taken by accused out of Delhi and they came back to Delhi after 45 days . The prosecutrix was married to Gaurav and she has admitted in the crossexamination that she was knowing that without taking divorce from her earlier husband, she cannot marry with other person, therefore, it cannot be said that there was any promise of marriage made by accused. Rather, in defense, sister of prosecutrix and wife of accused Rohit had appeared as DW1 wherein she had stated that accused Rohit had not gone anywhere and he was in Delhi all the time. Considering the witness to be an interested witness, her testimony cannot be given much weightage. However, it is the case of the prosecution also, that one SIM of mobile
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phone was given by the accused to the prosecutrix but no such phone has been recovered from either prosecutrix or accused. Even otherwise, CDR of mobile phone of the accused have not been placed or proved by the IO, which could show the whereabouts and location of the accused.
27. In the case reported as Uday v. State of Karnataka, AIR 2003 SC 1639, the Hon'ble Supreme Court has held as under : "It therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid done by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence
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of consent being one of them."
28. In the case reported as Sujit Ranjan v State, 2011 LawSuit (Del) 601, the Hon'ble Delhi High Court has held that:
"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".
Whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under " misconception of fact " depends on the facts of each case. While considering the question of consent, the Court must consider the evidence before it and the surrounding circumstances before reaching a conclusion. Evidence adduced by the prosecution has to be weighed keeping in mind that the burden is on the prosecution to prove each and every ingredient of the offence Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception and that promise made was false to his knowledge. The failure to keep the promise on a future uncertain date may be on account of variety of reasons and could not always amount to "
misconception of fact " right from the inception."
29. In the case reported as Deepak Gulati v State of Haryana, (2013) 7 SCC 675 : 2013 Law Suit (SC) 442 , the Hon'ble Supreme Court has held that:
"Consent may be express or implied, coerced or
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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 in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had malafide 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 any 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, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention
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to do so, such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was malafide, and that he had clandestine motives. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The " failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance."
Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirely, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.
30. In view of the judgments mentioned above, I am of the
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opinion that all these facts taken together, clearly proves that relations between prosecutrix and accused were consensual and therefore, it cannot be said beyond reasonable doubt that accused had committed rape upon prosecutrix on the false pretext of marriage. As it is admitted case of prosecution that prosecutrix was already married with Sh Gaurav and knowing fully well that she is married and pregnant, she had accompanied with accused Rohit. In the entire evidence led by prosecutrix, there is not even an iota of suggestion that accused had forced the prosecutrix to indulge in physical relationship or had actually raped her.
31. As regards the offence u/s 342/366 IPC is concerned, prosecution has also failed to prove its case as prosecutrix had stated in her evidence that she insisted accused to marry her, thus it cannot be said that it was accused who had taken her away from her house, with intent to subject her to sexual intercourse, rather it was the prosecutrix who had willingly accompanied the accused. The version of the prosecutrix is unreliable and untrustworthy, benefit of which is to be given to the accused. Hence accused Rohit is acquitted of the offence u/s 376/323/342/34 IPC. As regards the allegation against accused Heera Devi are concerned, it is clear from my above discussion that prosecution has miserably failed to prove that prosecutrix was abducted or restrained by accused Rohit. Similarly there is no averment of wrongful restraint
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made by prosecutrix against accused Heera Devi. The only allegation against accused Heera Devi is that she gave beatings to the prosecutrix. Even for that neither date nor time or place is mentioned by prosecutrix. It is also not stated by prosecutrix as to how she was given beatings and whether she suffered any injury or not, as it is important to note that prosecutrix was pregnant at that time. In the absence of these material particulars, I am of opinion that allegations against accused Heera Devi has also not been proved by prosecution beyond reasonable doubt. Accused Heera Devi is thus acquitted of the offences u/s 323/342/34 IPC.
32. File be consigned to record room.
Announced in the open Court on (SHAIL JAIN) this 28th of September, 2016 Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi.
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