Delhi District Court
State vs . Gobind Sharma Page No. 1/20 on 30 October, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SOUTH EAST, SAKET COURTS: NEW DELHI.
Unique Case ID No.: 02406R0036462015
SC No. : 36/15 and 1711/16
FIR No. : 882/14
U/s : 417/376 IPC
PS : K M Pur, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Gobind Sharma
S/o Narayan Prasad Sharma
R/o House No. 1819, IV Floor
Sher Singh Bazar, Kotla Mubarak Pur,
New Delhi. ....................Accused
Date of Institution : 10.03.2015
Judgment reserved for orders on : 30.10.2017
Date of pronouncement : 30.10.2017
J U D G M E N T
Facts :
1. On 13.10.2014, the prosecurix ( name withheld to protect her identity) gave a complaint at the police station Kotla Mubarakpur, New Delhi alleging therein that she is the permanent resident of Imphal, Manipur. She has been working as Store Manager with IMA Clothing Pvt. Ltd. since 2013. She had met the accused through her cousin sister in the year 2001. He was her class mate at Jama Milia Islamia University. They FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 1/20 became friends and started talking to each other over telephone. After sometime, she started meeting and spending time with him. Since she belonged to a conservative family and from a different religion, she used to maintain distance from him.
She alleged that on 02.10.2003, accused proposed her and their relationship started. They also discussed the proposition of getting married but came to the conclusion that since they belonged to different religious back grounds, he being Hindu and she being Christian, it would be appropriate to obtain permission from their parents. She alleged that his intention from the day one was to commit fraud and sexually exploit her. She got into his trap. He made unequivocal promise that he would only marry her and not with anyone else and said that she is his lifeline. He started visiting her house at Mohammadpur, New Delhi and staying for one or two days in a week. Based on his promise and assurance, she informed her parents about their relationship. Initially, they were against their relationship being of different religious background but when she informed the accused about the stand of her family, he assured her that he would fight for her with her parents too. She persistently convinced her family. After sometime, they agreed for their marriage.
She alleged that in 2007, her mother came to Delhi. She introduced him to her mother. He assured her that he has informed his family and conviced them for their marriage but in fact he never informed his parents about their relationship. She alleged that the accused induced her with his false promises and finally succeded in achieving his nefarious design as he committed rape with her on many occasions by taking her consent under the false promise of getting married with her.
FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 2/20 She alleged that they started living together in a house at Kotla Mubarakpur bearing no. 1819, 4th floor and during their stay, he obtained her consent for sexual intercourse by making false promise that he would marry her. They started living as husband and wife. When she talked of marriage, he said "we will get married on 02.10.2008 as it would be our love anniversary and marriage anniversary". She alleged that in June 2008, her mother was diagnosed with cancer. She asked the accused to get married before she takes her heavenly abode but he said "what? Do you thing your mother will be dying tomorrow or very soon?" It hurt her very badly but she did not say a word. She alleged that her mother died on 16.09.2008. Her father then requested them to postpone their planned marriage. She alleged that the accused stayed in her house at Manipur for three days. After return from Manipur, they started living together as husband and wife. After a year, she asked the accused about their marriage but he replied "let the right time come. I have already told my mother about our relationship." She alleged that accused started avoidng the marriage on one pretext or the other. In 2010, the marriage of her younger sister scheduled. She again requested him to get married before the marriage of her younger sister but he told her that he wanted to get more strong financially before the marriage. She alleged that the accused attended the marriage of her sister at Manipur and all her family members and relatives treated him like soninlaw.
She alleged that in 2011, the grand mother of the accused died. When she brought up the topic of marriage again, he told her that no marriage ceremony in his family would take place before the expiry of one year. She alleged that in 2011, her younger sister with her husband came to Delhi and FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 3/20 stayed with them for three months. She brought up the issue of marriage again but he started to complain about small and petty things trying to find faults in whatever she did. His behaviour started changing but he by sending her romatic cards and letters trapped her once again and she forgave him. She alleged that during her absence from Delhi, his parents came to Delhi for medical check up. She found out from her neighbours that after she left and before his parents came, he packed all her belongings in cardboard boxes and kept them in the corner of the house. She felt that something was not right and his parents did not have the knowledge of their relationship. When she told him that she was returning Delhi, he asked her to stay a little longer in Manipur till his parents were in Delhi. She alleged that after staying for five months, she returned to Delhi. His parents were also in Delhi. She could not enter the house as his parents were there and he did not allow her. She stayed at her friend's house. She kept on requesting him to inform his parents but he did not. She alleged that his behaviour changed completely. She moved in her aunt's place at Kali Bari but they used to meet off and on.
She alleged that in 2013, she got a job at Vasant Kunj. She moved in with her cousin sister at Munirka. Accused also came to Munirka. She allowed him to stay as he was promising to marry her. She alleged that on 18.09.2014, she called the accused at around 8:30 a.m. but he did not take her call. She then sent him message but he did not respond. She decided to confront him in person. She then went to Kotla Mubarakpur where she sensed that something was wrong. She knocked at his gate but he did not open the gate. She called her friend who used to stay on the same floor. She opened the gate. She asked the accused to open his FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 4/20 door but he told her that they would talk in the corridor. He insisted her to leave. After persuation, he opened the door. He forcefully tried to send her home but she refused. He then locked his door and stormed out angrily from the building. When she entered his room, to her utter shock and surprise, she found a lady namely Sisia. When she asked him about her, he replied she is like his sister only. She alleged that the intention of the accused was only to use her for his physical needs and he obtained her consent for the sexual intercourse by making false promises that he would marry her and he had sexual intercourse with her since 2007 till 2014 by making her believe that he would marry her.
Investigation
2. On her complaint, the case was registered u/s 420/376 IPC. The prosecutrix was sent to Safdarjung hospital for her medical examination where she refused for any kind of gynecological examination. The accused was arrested. He was got medically examined qua his potency at AIIMS. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. After the investigation, the accused was sent for trial for the offence punishable u/s 376/420 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 13.05.2015 and the charge was framed against the accused for the offences punishable under section u/s 417/376 IPC. He pleaded not guilty and claimed trial. Prosecution Evidence :
5. To substantiate its allegations against the accused, the FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 5/20 prosecution examined as many as ten witnesses.
PW1 Lady Ct. Santosh took the prosecutrix to Safdarjung Hospital for her medical examination. PW2 Dr Shyam Kishore did the medical examination of the accused vide MLC Ex. PW 2/A. He found him capable of performing sexual intercourse under normal circumstances.
PW3 Dr Mansi did the medical examination of the prosecutrix vide MLC Ex. PW 3/A. She recorded brief history of incident on the narration of the prosecutrix. She did not find any external injury on the person of the prosecutrix. She stated that the prosecutrix had refused for her gynecological examination.
PW4 SI Santosh Chauhan was the investigating officer of the case. She deposed on the lines of the investigation. She stated that alongwith the complaint, the prosecutrix had given 18 photographs Ex.C1 collectively showing her relationship with the accused and seven copies of greeting cards Ex.C2 collectively.
PW5 is the prosecutrix. I will discuss her testimony at the time of appreciation of evidence. PW6 Ct Sita Ram witnessed the arrest of the accused.
PW7 Mawite Vaiphei was the sister of the FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 6/20 prosecutrix. She stated that the prosecutrix had told her about her relations with the accused. She had also met him when she came to Delhi for some days. She stated that the accused had told her that he loved the prosecutrix and wanted to marry her. He also came with the prosecutrix in her native place. She stated that the prosecutrix had told her that she was in livein relationship with the accused but she never told her that she had physical relations with him.
She was crossexamined by Ld. Public Prosecutor. She then admitted that the prosecutrix had told her that the accused had established physical relations with her after giving her false assurance of marriage and later he refused to marry her.
On being crossexamined, she stated that whenever she came to Delhi, she stayed in the house of the accused.
PW8 Ms Sheetal Chaudhary, Ld MM recorded the statement of the prosecutrix u/s 164 CrPC Ex. PW4/G. PW9 ASI Rajender Prasad proved the recording of FIR Ex. PW 4/B. PW10 Deepak was the owner of house no. 1819, Kotla Mubarakpur, 4th floor of which, he had let to FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 7/20 the accused and the prosecutrix in 2008. He stated that he had asked from them about their relations and they told him that they would marry soon. He stated that accused lived there for 4 - 5 years and as and when he went to the house to collect the rent, the prosecutrix was in the house.
Statement of Accused u/s 313 CrPC
6. After recording the prosecution evidence, the statement of accused was recorded u/s 313 CrPC. He denied all the incriminating evidence against him. He stated that he had met PW5 / prosecutrix in 2004 through her cousin Kim who was his batch mate in Jamia Milia Islamia University. He is Hindu and PW5 is Christian. Their frienship started in 2004 but he never promised to marry her nor established physical relations with her. He admitted that he had met the mother of the prosecutrix but stated that he never talked about his marriage plans. He admitted that he had gone to the native place of the prosecutrix to attend the rituals. He stated that the prosecutrix used to live in her house at Kotla Mubarakpur with her family where he used to visit. He never stayed with her nor gave her assurance of marriage. He admitted that his grand mother expired in 2010. He stated that he had attended the marriage of younger sister of prosecutrix but on the invitation of her brother. He stated that he has been continuously staying in the house at Kotla Mubarakpur since 2008. He stated that since she wanted to marry him, she threatened him to implicate him in this case. He never sent any greeting to the prosecutrix but he admitted the photographs. He stated that the prosecutrix lived with him for a month when her brother was involved in some case and thereafter she FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 8/20 went to Manipur.
Defence Evidence
7. In defence, the accused did not examine any witness in defence.
Arguments
8. I have heard the arguments advanced by Sh. Ratneshwar Dass, Ld counsel for the accused and Sh. Mohd. Iqrar, Ld Addl. PP for the State. Findings
9. Section 375 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 under sixteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.......
10. The basic question now is if the prosecutrix ever consented for the sexual intercourse because of her love for the accused or her consent was obtained under misconception of fact.
11. Section 90 of the IPC defines consent. It reads: a consent is FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 9/20 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.....
12. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance the good and evil on each side. Consent in rape covers states of mind ranging widely from actual desire to reluctant acquiescence. Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.
13. In the case of Rao Harnarain Singh Sheoji Singh vs The State, AIR 1958 P H 123, the High court while holding the accused liable for the offence of rape has distinguished between the word 'consent' and 'submissions' as shown below:
(1) A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law.
(2) Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent. (3) Submission of her body under the influence of fear or terror is no consent. There is a difference FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 10/20 between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. (4) Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure. (5) A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wants. Consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.
14. The expression 'under a misconception of fact' is enough to include a case where the misrepresentation, made by the accused, leads to a misconception of fact in the mind of prosecutrix, who, believing the misrepresentation made to her and presuming, it to be true and correct, forms a misconception of fact that the accused was definitely going to marry her and acting thereupon, she consents to have sexual intercourse with him.
15. 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".
Whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under "misconception of fact" depends on FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 11/20 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."
16. PW5/prosecutrix deposed on the lines of her complaint Ex. PW5/A and stated that she had met the accused in 2001 through her cousin sister. They started talking and gradually became friends. She stated that the accused was Hindu and she was Christian. On 02.10.2003, their relationship started. He promised her so many times to marry her. She trusted on his promises and gave her consent for the physical relations. She had also told her parents about her relations with the accused. Initially, they were against the marriage due to difference in religions but later, she convinced them and they agreed for their marriage. She stated that in 2007, the accused met her mother and expressed his love for her. In 2008, her mother was diagnosed with cancer. She asked the accused to marry her but he avoided and asked her not to worry. After one month, her mother expired. She then told the accused that she cannot marry him for one year because of rituals. The accused had also come to Manipur to attend the rituals of her mother. She stated that in Delhi, she used to live in Kotla Mubarak Pur where he used to FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 12/20 visit and stay with her. He established physical relations with her giving her assurance of marriage. Whenever she asked him to marry, he avoided on one pretext or the other. She stated that in 2010, the grand mother of the accused expired. He asked her to wait for one year due to rituals and assured her that he would marry her after one year. She stated that the accused avoided the issue of marriage even after one year on one pretext or the other. She stated that in 2010, the accused attended the marriage of her younger sister in Manipur. He stayed in her house for three days. She again asked the accused to marry her but he avoided giving lame excuses. She got irritated because of his excuses and went into depression. She left her job in 2011 and went to Manipur where she stayed for five months. She stated that the accused remained in touch with her on phone. After five months, she returned to Delhi and started living in a rented accommodation at Kotla Mubarak Pur. The accused had taken the said house for her on rent where he lived with her. She stated that the accused belonged to Arunachal Pradesh. His parents came in the house as his mother was ill. He did not disclose his relationship to his parents and packed all her belongings. Although, she asked him to talk about their relationship to his parents but he refused saying that he would inform them but he did not, despite her repeated requests. She stated that he did not want her to stay there with his parents. She then stayed in the house of her neighbour for a week. The accused told her that they would live together after the treatment of his mother. She then stayed in the house of her aunt at Connaught Place for 34 months. During that period they remained in touch on phone. She then got a job in Vasant Kunj and she shifted at Munirka where also he started visiting her. She stated that during his visits and conversations with her, he started FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 13/20 finding faults in her so that she gets irritated and leave him. She got angry and came to his house at Kotla at about 11.00 p.m. She stated that he did not want to open the gate but she got it opened with the help of his neighbour. He came out of the house but locked the door of his room from outside and did not allow her to enter his room. She got suspicious. She broke the window and opened the door through that window. She entered his room and saw a lady inside the room. She suspected that the accused had affair with that lady. She then stopped talking to him and told him that she would file a complaint against him as he ruined her life. She then lodged complaint Ex. PW5/A. She proved her MLC Ex.PW3/A and statement u/s 164 CrPC Ex. PW4/G. She also handed over 18 photographs Ex. C1 collectively and copies of seven greeting cards Ex. C2 collectively to the police. On being crossexamined by Ld. Public Prosecutor, she admitted that the accused had assured her that even if his parents would not agree for their marriage, he would marry her and not with anyone else saying that she is his lifeline. She stated that the accused in the presence of her mother had told her that he has informed his family and convinced them for their marriage. She stated that when they were returning from Manipur, he had assured her relatives that he would marry her only. On being crossexamined by the defence counsel, she stated that her brother lived with her in Delhi for 2 - 3 years. He was involved in a case of cheating with his wife. She stated that when her brother went back to Manipur, he left her with the accused in the house. She denied that she used to demand money from the accused. She admitted that one of her sister expired in 2011 and she had been suffering from HIV positive. She denied that the accused never promised to marry her or their physical relations FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 14/20 were consensual without any promise of marriage. She also denied that the accused never called her in his house and she herself voluntarily used to go and stay there. She denied that on 18.09.2014, she did not go to the house of the accused nor saw him with any lady. She stated that during the period from 2007 to 2014, she lived at Kotla Mubarakpur, with her brother and sisterinlaw, at connaught place with her aunt and at Munirka and Safdarjung, with her cousin sister. She denied that the accused gave her greeting cards Ex.C2 not being only her friend but being family friend. She admitted that when her sister used to come to Delhi, she used to stay with her. She also admitted that as on now she does not have any grievance against the accused.
17. On a closure scrutiny of the evidence of the prosecutrix with the material placed on record, I find that the prosecutrix / PW5 had met the accused in the year 2001. They became friends and started meeting and spending their quality time with each other. They also knew that they belonged to different religions as she was Christian and the accused was Hindu. She had apprehension that her marriage with the accused was difficult on account of religious considerations. For that reason, she used to maintain distance from him. Her testimony reveals that their relationship started in 2003. They also discussed the proposition of getting married but came to the decision that owing to different religious backgrounds, they would seek permission from their parents. Her testimony reveals that their relationship continued till 2013 but during that period, she never met his parents nor tried to know from his parents whether the accused had ever told them about his relationship with her. She has stated that they lived in live inrelationship for quite a long time at different places and made physical FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 15/20 relations. It is strange that for such a long time, she believed on the assurance of the accused that he would marry her and did not insist for the marriage before making physical relations. She even did not suspect on the intention of the accused when he packed her articles in the house at Kotla Mubarakpur and did not allow her to meet his parents. Even then she allowed the accused to visit her places and make relations with her.
18. She has stated that when she went to his house at Kotla, the accused did not open the gate. She opened the door of the room by breaking the window and saw a lady inside the room. She suspected that the accused had an affair with that lady. It is strange that she did not try to find out from that lady nor made any inquiry to find out the relationship of the accused with that lady, whether she had an affair with the accused or not. She immediately lodged the complaint Ex.PW5/A. On the contrary, the accused has denied his relationship with any other lady.
19. Her testimony reveals that her brother used to live with her. He lived with her for 2 - 3 years. In the instant case, the prosecution did not examine her brother though he was the material witness in this case.
20. Perusal of the testimony of PW5 / prosecutrix reveals that she was well educated. She was graduate. She had adequate intelligence to understand the implications of making physical relations before marriage. She also knew that owing to difference in religions, there could be problem in their marriage but she went on with the relationship and also lived with him in livein relationship. Their relations continued for about 10 years. The period of 10 years is not a small period to understand the intention of the accused whether he would marry her or not. She or her family members never tried to meet the parents of the accused to convince them for the FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 16/20 marriage. Facts and circumstances rather show that she freely, voluntarily and consciously consented to having sexual intercourse with the accused and her consent was not in consequence of any misconception of fact. She has categorically stated that she does not have any grievance against the accused.
21. In the case of Uday vs. State of Karnataka, 2003 (1) JCC 506, the prosecutrix and the accused were deeply in love. They used to meet often. She went out with the accused to a lonely place at night. The accused had also made promise on more than one occasion to marry her. It was held that in such circumstances, the promise loses all significance particularly when they are overcome with emotions and passions and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well and the prosecutrix had willingly consented to having sexual intercourse with the accused with whom she was deeply in love but not because that he promised to marry but also she desired it. In these circumstances, it would be very difficult to impute to the accused knowledge that the prosecutrix had consented in consequence of a misconception of a fact arising from his promise. The observations made in the case supra have relevance in this case. It was held that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activities, it is an act of promiscuity on her part and not an act induced by misconception of fact.
22. In the case of Rohit Chauhan vs. State NCT of Delhi, 2013, Bail application no. 311/2013 dated 22.05.2013, it was observed:
"There may be cases where both persons out of their FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 17/20 own will and choice develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship but when the relationship breaks due to one or the other reason, the woman uses the law as a weapon for vengeance and personal vendetta."
23. 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 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.
24. 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.
Conclusion
25. The irresistible conclusion which can be drawn in the present case is that the relations between the accused and the prosecutrix were consensual and not on misconception of fact. There was no promise of marriage. They were deeply in love with each other. She did not appear to have consented FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 18/20 for sexual relationship in consequence of misconception of fact arising from his promise of marriage.
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.
27. In Ashish Batham Vs. State of MP, (2002), 7 SCC 317), it was held :
"Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility FIR No. : 882/14 PS : Kotla Mubarakpur State Vs. Gobind Sharma Page No. 19/20 of the evidence brought on record".
28. In the light of above discussions and findings, I am of the view that the prosecution has failed to prove its case against the accused beyond reasonable doubt. I therefore, acquit the accused Gobind Sharma of the offence punishable under section 417/376 IPC giving him benefit of doubt. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs.50,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.
29. File be consigned to the Record Room.
Announced in the open
court today i.e. 30.10.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 882/14
PS : Kotla Mubarakpur
State Vs. Gobind Sharma Page No. 20/20