Delhi District Court
State vs . Hari Mohan Sharma on 25 November, 2013
IN THE COURT OF SHRI YOGESH KHANNA, SPECIAL FAST TRACK COURT: SAKET COURTS: NEW DELHI. SC No. : 33/2013 FIR No. : 197/2011 U/s. : 376 IPC PS : New Friends Colony State (Govt. of NCT of Delhi) ........................ Complainant. Versus Hari Mohan Sharma S/o Shri Ved Prakash Sharma R/o Village Nakpur, Mukhtyapur Post : Sagham Machirya PS - Almori Distt., Muradabad, UP. .........................Accused person Date of Institution : 20.12.2011 Date of institution in this court : 07.01.2013 Judgment reserved for orders : 08.11.2013 Date of pronouncement : 25.11.2013 JUDGMENT
1. On 25.07.2011, the prosecutrix had filed a complaint with the SC / ST Commission, Khan Market, New Delhi stating inter- alia that :-
" She is a scheduled caste. Her parents had expired. She is a permanent resident of Uttranchal and is residing in New Friends Colony on rent. Accused Hari Mohan Sharma S/o Ved Prakash Sharma is also a resident of Uttranchal State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 1 of 28 and used to live on rent in the parental house of prosecutrix and hence she came in contact with him. The accused started coming to the house of prosecutrix at New Friends Colony, New Delhi, and one day he had pressed her neck and after threatening her committed sexual intercourse with her and then thereafter he had sexual intercourse on numerous time on the pretext of marring her. The prosecutrix became pregnant and when she brought this fact to the knowledge of accused, he refused to marry her and threatened her that he had made a video clip and if she would not get her pregnancy terminated, he would defame her. The prosecutrix then told to the parents of accused about this fact but on 24.07.2011 at about 7.30PM, the parents and brother of accused came to her rented accommodation and gave her beatings. Mother of the accused gave leg blows on her abdomen and threatened her to terminate the pregnancy. On hearing the noise of prosecutrix one Manveer Singh Kohli R/o D-807, New Friends Colony, New Delhi, came inside the house and intervened. The parents of accused then left the house threatening her that if she would not terminate her pregnancy within a week, they would get her killed" .
2. It appears that nothing happened in the SC / ST Commission but later, on the basis of this complaint, FIR bearing no. 197/2011 dt. 29.08.2011 u/s. 376 IPC was registered at police station New Friends Colony, New Delhi. During the course of investigation, the accused was arrested and later the charge sheet was filed. Since it was a Session's triable case, it was committed to this court.
3. On 19.03.2011, charge u/s. 376 IPC was framed State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 2 of 28 against accused to which he pleaded not guilty and claimed trial.
4. The prosecution till date had examined 10 witnesses. Thereafter the statement of accused, u/s. 313 CrPC, was recorded. The Accused did not prefer to lead any defence.
5. Before proceeding further, it would be appropriate, if I state in brief the depositions made by the prosecution witnesses.
PW-1, HC Ram Kishore deposed that on 29.08.2011, he had recorded the FIR Ex. PW-1/A and made endorsement Ex. PW-1/B on the rukka.
PW-2, Dr. Saloni Bansal deposed that on 29.08.2011, she examined the prosecutrix vide MLC Ex. PW-2/A. During examination, she had observed one bruise over the right thigh of the prosecutrix and it was about 3 to 4 days old.
PW-3, Ct. Sharda deposed that on 29.08.2011, she along with W/ASI Adrina had taken the prosecutrix to AIIMS Hospital for her medical examination. Her treating doctor gave her sealed pulanda as well as MLC which she gave to the investigating officer.
During cross examination, she deposed that house of prosecutrix was situated on top floor of the building where she was residing as a tenant and she was alone in her house.
PW-4, is the prosecutrix.
PW-5, Ct. Bobby Yadav deposed that on 07.09.2011, he had joined the investigation and is State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 3 of 28 a witness of arrest of accused vide arrest memo Ex. PW-5/A; the personal search of accused was conducted vide memo Ex. PW-5/B. The accused was medically examined at AIIMS Hospital and a sealed envelope given by the doctor to him was handed over by him to the investigating officer who seized it vide memo Ex. PW-5/C. He further deposed that accused was arrested from a railway ticket counter of New Delhi Railway Station but no public witness was joined as none agreed and that accused was apprehended at the instance of a secret informer.
PW-6, ASI Devender Singh deposed that on 25.08.2011, on receipt of a complaint from Human Rights Commission, he went to the house of prosecutrix but only on 29.8.2011 she could be found and she gave her complaint Ex. PW-4/A and he made endorsement Ex. PW-6/A on the said complaint and FIR was got registered. He again joined the investigation on 07.09.2011 and went to New Delhi Railway Station towards Ajmeri Gate side and found accused standing near a railway ticket counter from where he was arrested vide arrest memo Ex. PW-5/A. The personal search of accused was conducted vide memo Ex. PW-5/B and his disclosure statement Ex. PW-6/D was recorded. He further deposed that State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 4 of 28 all the writing work was done at the police station.
PW-7, Manbir Singh Kohli is a public
witness.
PW-8, Ms. Monika Saroha, Ld. MM ,
deposed that on 14.09.2011, she had recorded the statement u/s. 164 CrPC of the prosecutrix and her proceedings are Ex. PW-8/A. She allowed the copy to be given to the investigating officer vide order Ex. PW-8/B. PW-9, W/ASI Adrina is the investigating officer who deposed that on 29.8.2011, the investigation was handed over to her and she sent the prosecutrix to AIIMS Hospital for her medical examination with W/Ct. Sharda. She went to the house of prosecutrix where W/Ct.
Sharda handed over to her the MLC of prosecutrix; she interrogated the prosecutrix and recorded her statement ; on 07.9.2011 , a secret informer informed her about the whereabouts of the accused ; she then along with Ct. Bobby went to New Delhi Railway Station where accused was found standing near a railway ticket counter towards Ajmeri Gate side. The accused was apprehended and was interrogated by her, his disclosure statement Ex. PW-6/B was recorded; accused was arrested vide arrest memo Ex. PW-5/A and his personal search was conducted State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 5 of 28 vide memo Ex. PW-5/B. The accused was sent to AIIMS Hospital for his medical examination and he also pointed out the spot vide memo Ex. PW-9/A. The MLC of accused as well as his blood sample was seized vide memo Ex.
PW-5/C. On 14.09.2011. she got the statement of prosecutrix recorded u/s. 164 CrPC ; she further deposed that she did not examine the family members of the prosecutrix and also did not seize the clothes of the prosecutrix. Though she stated that she was not shown the photograph of accused but admitted that the informer was with her at the railway station where the accused was apprehended.
PW-10, Dr. Kiran Kukreja, deposed that on 22.07.2011, prosecutrix came to her clinic with a complaint of bleeding from vagina; she was tested positive for pregnancy vide report Ex. PW-10/A and her ultra sound was got conducted vide report Ex. PW-10/B. Per her ultra sound report, the prosecutrix was found to have ruptured ectopic pregnancy and she was referred to gynaecologist.
During her cross examination, she stated that identification papers of the patient are not attached with the report Ex. PW-10/A and there State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 6 of 28 is no mention of the history of patient but the report bear her seal and signature.
6. In his statement of accused, the accused denied all the facts and circumstances put to him and alleged his false implication saying that he is innocent.
7. It would now be important to examine the statement of prosecutrix who has deposed as PW-4. In her deposition, she stated the following :
" that she is a permanent resident of Uttranchal and that the accused used to reside as a tenant in her house. She was pursuing her study of LLB from Chanakya Law College while accused was doing MBA; accused met her in college and used to talk on telephone, she came to Delhi in 2010 and accused kept on talking with her on telephone. In December 2010 or 2011, accused came to Delhi. He called her on telephone from New Delhi Railway Station, she went there, the accused took her to hotel where they took tea and then she returned to her house by taking a bus. However the accused pursued her in the same bus and in the evening came to her house; accused knocked her door and entered the house and started forcing her, she pushed him aside, accused fell down and as he got up, he caught hold of the prosecutrix and opened the State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 7 of 28 string of her salwar, then he forcibly committed sexual intercourse with her and she lost her senses; when she regained her senses, she found accused was with her and said that he wanted to marry her and hence had committed sexual intercourse. The accused remained in her house for about 2 / 3 days and did sexual intercourse with her during those days. She asked him to marry her but accused insisted that the prosecutrix should come to Rudrapur so that they can marry there.
After 15 days, the prosecutrix went to Rudrapur and insisted him to marry her but accused again asked her to wait as he wanted to take fees from his father for MBA and he insisted that she did not tell this incident to his father otherwise his father would not give fee(s) to him. The accused thus did not marry with the prosecutrix alleging that he would marry her after his MBA is complete ; lest his father would not pay expenses of his education. The prosecutrix then returned to Delhi. The accused continued visiting her in Delhi & used to stay at hotels in between where they used to have sexual intercourse. The accused even used to beat her whenever she did not obey his instructions.
On 22.7.2011, she called the accused State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 8 of 28 on telephone informing him about her pregnancy and also to his father, but on 23.7.2011 at about 4 / 5 PM, the parents of accused along with the brother of accused came to her house and gave her beatings. Next day on 24.7.2011 she went to SC/ST Commission and also the Women Commission and lodged her complaint. In the meanwhile, she also went to Dr. Kiran Kukreja at New Friends Colony for her treatment and got her pregnancy aborted. She also gave her statement Ex. PW-4/A to the Ld. MM.
During her cross examination by the ld defence counsel, the prosecutrix deposed that her parents had expired and that she has two brothers and two sisters and all of them are married. She further deposed that she never objected the accused from calling her on phone and they used to have normal talks. She went to see accused at New Delhi Railway Station on her own will. The accused had disclosed her that he had got a job at Gurgaon. The accused followed her in the bus when she was entering to her house in January 2011 but entered into her house at about 7.30 /7.40PM and had forcibly raped her; though she raised alarm but none came to her rescue as she used to reside at the top floor. The accused remained in her house after that as he State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 9 of 28 had promised to marry her and so she did not report the matter to the police about the incident. She admitted that she also wanted to marry with accused after the incident. She contacted the father of accused in this regard but he refused to marry her. She called the father of accused several times on telephone and that accused used to tell her that he had already informed his father about their relationship. Accused had also taken her to the house of his sister where they had stayed for two days. She further deposed that she came to know about her pregnancy on 22.7.2011 and thereafter the parents of accused came to her house and had beaten her. She did not raise any cry / alarm as the neighbour were too far away from her room. However a servant of Manvir Singh Kohli came there by chance. She denied that she had falsely implicated the accused or that she was the one who wanted to marry with accused or that accused never promised to marry her.
PW-7, Manbir Singh Kohli had supported the prosecutrix by saying that the prosecutrix used to work in his guest house and one day in January 2011 she brought the accused and disclosed him that she wanted to marry with the accused and that PW-7 had advised them to bring the material for performing the marriage ceremony on that day State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 10 of 28 itself. Both of them went to Lajpat Nagar Market, New Delhi but the prosecutrix returned alone and disclosed that accused had fled away from the market.
During her cross examination, he was confronted with his statement Ex. PW-7/DA wherein the fact that accused or the prosecutrix went to Lajpat Nagar Market to bring articles required for performing marriage, was not recorded.
However these facts, strangely enough, are not put to the investigating officer and hence this omission would not be considered as a material omission in terms of explanation given under section 162 CrPC.
8. Hence, on the basis of the above facts and circumstances , the ld Addl. PP for the State submitted that the accused be convicted for the offence u/s. 376 IPC for committing rape with the prosecutrix after eliciting her consent on the false promise of marriage during his relation with her from December 2010 or January 2011 and that the delay in registering the FIR by the prosecutrix against the accused be not considered as fatal in view of the fact that accused promised her to marry and it remained a cogent reason for her of not filing the FIR till the accused refused to marry her.
9. The ld defence counsel, on the other hand, argued that State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 11 of 28 there are various contradictions in the testimony of prosecutrix and as such she should not be believed. Further he argued about delay in FIR and the law relating to live-in-relationship.
10. I have heard the arguments and perused the material on record. There is no doubt to the legal proposition that the conviction of accused can be based solely on the testimony of prosecutrix and no corroboration is required. However such testimony needs to be truth worthy and reliable.
11. Now let me find the contradictions, as alleged and if such contradictions / omissions are material or not.
12. The ld defence counsel had pointed out the contradictions qua incident dt. 23.7.2011 as to if all the family members of the accused or simply the parents and brother of accused had visited the house of prosecutrix or had beaten her or that her pregnancy was terminated due to of the beatings given by the mother of the accused. The ld defence counsel pointed out to the complaint Ex. PW-4/A; the statement Ex. PW-4/B of prosecutrix recorded u/s. 164 CrPC and also her statement recorded u/s. 161 CrPC, though not exhibited. The ld. Defence counsel argued that in the above statements, somewhere the prosecutrix had said that the parents and the brother of the accused only had come to her house; somewhere she says that the parents, brother and the sister of accused came to her house and somewhere she says that the parents, brother and the accused came to her house and gave her beatings. The ld defence counsel further argued that if one peruse the report dt. 22.07.2011 Ex. PW-10/A of Dr. Kiran Kukreja , one may find that the prosecutrix was bleeding on 22.07.2011 and her State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 12 of 28 ultrasound was got done at around 2.55PM of 22.07.2011 and hence such bleeding from the vagina cannot be attributed to the injuries caused to the prosecutrix allegedly by the parents of accused as per deposition of the prosecutrix, the parents of accused came to her house on 23.07.2011 around 4 / 5PM.
13. I agree to these submissions made by the ld defence counsel that as the prosecutrix has deposed about the visit of parents on 23.7.2011 so their visit could not be a cause of bleeding she had on 22.7.2011. However, this alone is not an issue involved in the case. I am not holding a trial as to who caused the injury or who was responsible for termination of the pregnancy of prosecutrix. The question here is if the prosecutrix was raped by the accused in December'2010 or in January 2011 or that her free consent for sexual intercourse was ever obtained or if the accused had sexual intercourse with the prosecutrix on false pretext of marriage.
14. Before coming to the factual matrix , let me state briefly the law in this regard.
15. In 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 State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 13 of 28 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 of consent being one of them.
16. Further in Sujit Ranjan v State, 2011 LawSuit(Del) 601, the Hon'ble Delhi High Court has held as under :-
" 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 State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 14 of 28 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.
17. In Deepak Gulati v State of Haryana, 2013 LawSuit(SC) 442, the Hon'ble Supreme Court has held that ;-
" Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and 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 mis-representation 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 State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 15 of 28 marry her, despite having every intention 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."
Thus, in Uday's case (supra) and Deepak Gulati's case (supra), the Hon'ble Supreme Court laid down the law ;-
" That if the prosecutrix is matured to understand the significance and morality associated with the act, she was consenting to and that she was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor and also that if it is difficult to impute to the accused, State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 16 of 28 knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her and further that if there is any evidence to prove conclusively, that the appellant never intended to marry with the prosecutrix, the accused be given benefit of doubt.
Further, the ld defence counsel had also referred to Kaini Rajan v State of Kerala decided on 19.09.2013 by the Hon'ble Supreme Court in Crl. Appeal No. 1467/2013 and argued that it was a case of promise of marriage wherein the accused was acquitted.
However, I have gone through this judgment, here the dispute before the Hon'ble Supreme Court was as to if the rape on 17.09.1997 at 8.30AM was allegedly committed by the accused. However, the Hon'ble Supreme Court held that in an early morning, on a public road, it was not possible for accused to forcibly commit rape and hence the accused was acquitted.
Further In State v Saurabh Vashisht, 2013(3) JCC 2007, the judgment of the Hon'ble Supreme Court namely Karthi @ Karthick v State of Tamil Nadu (supra) was never considered. Even otherwise, in this case the parents of the victim and of the accused had meetings wherein they did not agree for marriage of their wards, though the accused and prosecutrix wished to marry each other. Hence in the light of these circumstances , Hon'ble Court held that the offence u/s. 376/417 IPC was not made out.
Similarly in Kuldeep Tyagi v The State NCT of Delhi, State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 17 of 28 2013(2) JCC 840, it was never the case of the prosecutrix that she ever insisted the accused to marry her. Thus, it was not a case of refusal to marry, despite promise, hence, not relevant.
18. However, on the other hand, the ld. Prosecutor had referred to Yedla Srinivasa Rao Vs. State of A.P., 2006(3) JCC 1623, wherein the Hon'ble Supreme Court has held as under ;
" In the present case the accused on one day on finding the prosecutrix alone committed rape upon her and when she resisted he allured her by saying that he would marry her. Thereafter under this pretext the accused used to commit sexual intercourse with her and she became pregnant. The accused then gave her some tablets for abortion to get rid of the pregnancy which did not work. Subsequently when the prosecutrix insisted the accused to marry her, the accused informed that his parents were not agreeing for their marriage and as such he would not marry.
The Hon'ble Supreme Court after going through the law laid down in various cases held that the intention of accused, as per the testimony of the prosecutrix, was right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him.
Hence, the Hon'ble Supreme Court held that the consent was not voluntarily as was given under the misconception of fact that the State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 18 of 28 accused shall marry her and hence it is not a consent in law.
The Ld. Prosecutor had also referred to Karthi @ Karthick v State of Tamil Nadu, Crl. Appeal No. 601 of 2008 decided on 01/07/2013, wherein the facts were as under :-
" Accused used to tease the prosecutrix and one day finding her alone in her house committed sexual intercourse forcibly and then promised to marry her and requested that she should not disclose this fact to anybody. Thereafter they both were engaged in consensual sex at different places and in all these meeting the accused swore that he would marry with the prosecutrix . However one day on 05.10.2003, both the prosecutrix and accused gone in a temple where she requested the accused to marry her but he refused and on his refusal, she divulged the entire facts to her family members. Panchayat was held in village and the accused was summoned there and persuade to marry with prosecutrix but he refused to marry the prosecutrix and then the prosecutrix lodged a report.
The Hon'ble Supreme Court after considering the case law laid down in (Uday's case) held that the first sexual intercourse was forceful and thereafter the subsequent acts of sexual intercourse, were actions of actively cheating her, by giving her the impression that he would marry her. The occurrence at the Murugan temple, is of significant importance, where he left the prosecutrix when he was asked to marry her.
Hence the court held that the sexual intercourse by the accused with the prosecutrix was not consensual as obtaining consent by exercising deceit, cannot be legitimate defence to State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 19 of 28 exculpate an accused.
On delay the Hon'ble Supreme Court held that as long as the commitment of marriage subsists, relationship between the parties could not be described as constituting the offence of rape u/s. 376 IPC, it was only after the accused had declined to marry with prosecutrix, be different dimension came to be attached to the physical relationship, which had legitimately continued over the past six months . Things changed when the accused declined to marry her. After he declined, without any delay prosecutrix disclosed, the entire episode to her immediate family and then the Panchayat was called. On the refusal of the accused to marry her, without any further delay the prosecutrix referred the matter to the police and hence it would not be possible to hold that any doubt can be said to have created in the version of the prosecutrix., merely on account of delay in the registration of the first information report.
Similarly, in Raja Dass Vs. State of West Bengal, Crl. Appeal No. 291 of 2006,the Hon'ble High Court of Kolkatta held that :
" The case must be judged by its own facts and circumstances in the backdrop of the evidence on record. The evidence on record is overwhelming to establish that the accused had physical relationship with the victim under a promise of marriage for over a period of 3 / 4 years which he never intended to perform and State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 20 of 28 that ultimately victim became pregnant and that on account of refusal on the part of accused to marry victim, the victim was compelled to disclose about her pregnancy to her mother followed by village " Salish" wherein accused was asked to marry victim but without any result and that accused ultimately left village and his father proposed to give Rs. 40,000/- to the victim or to her family to hush up the matter and for arranging marriage of victim in some other place. There is no denial that the financial status of accused was much higher than that of victim. The accused should have known and knew very well that his father being a military personnel and well off will not agree to the proposal of marriage with victim and that inspite of said knowledge accused continued to mix with victim and had physical relation with a promise of marriage. If we go by section 90 of the Indian Penal Code which defines a free consent, we find that consent of the victim to have physical relation with the accused was given by the victim in view of the promise of marriage of the accused who knew from very beginning that the said promise was false one, and hence consent of the victim was not a free consent and was rather a consent under misconception of fact within the meaning of section 90 of the Indian Penal Code and amounted to " without her consent" as made out under section 375 of the Indian Penal Code. In this connection it also came out from the evidence on record that whenever victim asked the accused to marry her, accused took the plea that he was unemployed and that on getting employment he would marry her and continued to have physical relation with her with that promise of marriage.
State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 21 of 28
19. Thus, on analyzing the law laid down by the Hon'ble Superior Courts it appears that the intention of the accused at the time of entering into a relationship is to be seen by the court as to if he really intended to marry the prosecutrix or he merely made the promise to get sexual favours from the prosecutrix. If the facts suggest that the accused genuinely wished to marry prosecutrix but it could not materialize due to reasons beyond his control, then in such an event no offence could be made out. However, on the contrary, if he had no intention to marry the prosecutrix since beginning then his case would be squarely covered within the ambit of offence under section 376 IPC.
20. Now with this background of law, I come to the proven facts of this case to find out if the accused really intended to marry with the prosecutrix.
a) It is an admitted fact that the prosecurix's parent had expired and she has been residing alone in Delhi as a destitute girl ;
b) that the prosecutrix in January 2011 was called by the accused at New Delhi Railway Station. They both went to the hotel where they had tea. While she was returning to her house in a bus the accused followed her and in the evening had reached her house; knocked the door and entered her house and started forcing upon her. As she pushed him aside the accused fell down but he got up , caught hold of the prosecutrix by his hand and opened the string of her salwar and forcibly committed sexual intercourse.
When she regained her senses she found the accused by her side and said that he wanted to marry her and hence he has committed State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 22 of 28 sexual intercourse with her. Thereafter accused remained in her house for 2 / 3 days and committed sexual intercourse with her. Thus it shows that initially the accused had forcible sex with the prosecutrix and then continued committing sex with her on a promise to marry her. The prosecutrix submitted to his advances only on account of his promise to marry;
c) that the prosecutrix when insisted the accused to marry her, he initially asked her to come to Rudrapur where he would marry her. However when after 15 days the prosecutrix reached Rudrapur the accused told her that he intends to do MBA and that if he would marry her, his father would never pay the fees and hence he shall marry her till after his MBA is complete ;
d) that the prosecutrix returned to Delhi but accused continued visiting her and used to have sex with her in hotels too ;
e) that the prosecutrix when informed the father of accused about her relations, he refused to marry his son with the prosecutrix. However, the accused assured her that he has already informed his family members about their relations and even took the prosecutrix to his sister's house and stayed with her there for two days;
f) that on 22.07.2011 when prosecutrix telephoned the accused and his father informing about her pregnancy she was allegedly beaten on 23.07.2011 by the parents of the accused ;
g) that it is also a proven fact that prosecutrix had miscarriage on 22.07.2011, per deposition of PW-10 Dr. Kiran Kukreja.
State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 23 of 28
21. Thus on the fact so established above and considering the law laid down in Yedla Srinivasa Rao(supra); Karthi @ Karthick (supra), Majafuja Babu (supra), State of UP vs Naushad (supra) and other judgments referred to above, it can safely be said that the intention of the accused, right from the beginning was never honest and he kept on promising her that he would marry her. However, he avoided to marry her on one pretext or the other, be it asking her to come to Rudrapur or to wait till his completing the MBA and his ultimate refusal. The accused very well knew that his father would be against the love marriage and would not pay his fee but even then he continued misusing the prosecutrix till she became pregnant. The accused is an adult male, who had chosen to have sexual relation with the victim girl and thereafter making a lame excuse that his father would not pay the fee(s) if he would marry her is nothing but was an attempt to wriggle him out of such relationship.
Thus the kind of consent obtained by the accused cannot be said to be free consent because the prosecutrix was under a misconception of fact that the accused intend to marry her, therefore, she had submitted to sexual intercourse with him.
22. An argument was raised by the accused that the prosecutrix being aware of the act she was indulging in and she being a major girl surely knew about the morality attached to the act & hence the accused cannot be held solely liable; to my mind is wholly misconceived. It is a settled law that submission of a woman cannot be treated as her consent.
23. The woman has been given a special status by our State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 24 of 28 Constitutional makers and the laws need to be interpreted in favour of destitute girls. It cannot be ignored that in a patriarchal society, like ours, such a girl has to face the tough world ahead, once left in such a miserable position by a robust educated male, here an MBA, who would conveniently forget such girl to marry another suitable girl to lead a life of his choice, leaving such victim in a lurch with a feeling of being cheated in her life by one and all.
I may add here that the concept of live- in- relationship does not mean merely residing together, rather, it means to live in a commitment or in a relation of being together in future. In our society, when a woman enters into this relationship, she has in her mind, only a marriage in future, however, when such relationship ends abruptly, it means a lot to the woman. It ends her emotionally, physically and at such stage telling her she was morally incorrect; leaving her to face the consequences of the act alone, after being made pregnant by a man merely on the ground that now he has realized that his parent would never agree to marriage, would be putting premium on the abhorable conduct of such male. Absolving himself from the responsibility and the situation in which he has put the woman by making her pregnant would be giving the benefit of doubt to such person to which he is not entitled.
Here, I need to refer to Nikhil Parashar v State of Delhi, 2010(1) JCC 615 , wherein the following observation was made by the Hon'ble High Court :-
" If I take the vi ew that sexual intercourse with a girl, in the facts and circumstances such as State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 25 of 28 in the present case, does not amount to rape, it will result in unscrupulous and mischievous persons, taking undue advantage of innocent girls by promising marriage with them, without having any intention to do so, re-assuring the girl and her family by making the two families meet each other and formalize the matter by ceremonies, such as an engagement, persuading the girl to have sexual intercourse with him by making her believe that he was definitely going to marry her and then abandoning her, after robbing her of what is most dear to her. A case where the girl agrees to have sexual intercourse on account of her love and passion for the boy and not solely on account of the misrepresentation made to her by the boy or a case where a boy, on account of circumstances, which he could not have foreseen or which are beyond his control, does not marry her, despite having all good intentions to do so, has to be treated differently from a case, such as the present one, where the petitioner since the very inception had no intention of marrying the prosecutrix to whom he was a complete stranger before he met her to consider the proposal for marriage with her."
" A view, which is likely to result in victimization or exploitation of innocent girls, needs to be avoided and the Courts need to take a view, which would discourage unscrupulous persons from taking advantage of innocent girls by alluring them and having sexual intercourse with them, on a false promise of marriage."
" Taking a view that persuading a girl to have physical relations on the false promise of marriage, despite having no intention to marry, will in no case constitute rape, will amount to putting premium on a conduct which is not only highly reprehensible and abhorable but also criminal in nature. If this is allowed to happen, it State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 26 of 28 will enable immoral and dishonest persons, including those who come to this country for such very purposes, to exploit girls belonging to weaker sections and lower strata of society by alluring them with false promise of marriage pressuring them to have physical relations with them by making them believe that they are going to marry them and that there was nothing wrong in having such relations with a person who is very soon going to be her husband and later on turn; their back at her, in a comfortable belief that the law being on their side, they can easily get away with their misdeeds. The courts cannot and should not give such a licence to those who keep on looking for opportunities to exploit the sentiments and vulnerability of Indian girls who perceive marriage as a pious bonding; and not as a union of two bodies. Allowing such persons to go scot free after exploiting poor and helpless girls in this manner could never have been the intention of the legislature which considered rape to be such a heinous as to attract imprisonment up to life" .
Lastly, I may refer to State of UP v.
Naushad, Crl. Appeal No. 1949 of 2013(Arising out of SLP (Crl.) No. 5390 of 2008 decided on 19.11.2013, wherein the following was observed :
" A woman's body is not a man's plaything and he cannot take advantage of it in order to satisfy his lust and desires by fooling a woman into consenting to sexual intercourse simply because he wants to indulge in it. The accused in this case has committed the vile act of rape and deserves to be suitably punished for it" .
The Hon'ble Supreme Court in this case convicted the accused for offence u/s. 376IPC for his committing sexual intercourse on the false State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 27 of 28 promise of marriage.
Delay, if any.
23. On delay, I need to add that, per Karthi @ Karthick (supra) as long as the commitment of marriage subsists, the relationship between the parties could not be described as constituting the offence of rape u/s. 376 IPC. It is only after the accused had declined to marry with the prosecutrix, different dimensions came to be attached to the physical relationship, which had legitimately continued over the past few months. Things changed when the accused refusal to marry her and after his refusal there was no delay on the part of the prosecutrix as immediately after her abortion she had filed present complaint.
24. Thus, I am of the considered view that the consent of the victim to have physical relations with accused was given by the prosecutrix on the promise of marriage by the accused who knew from very beginning because of the attitude of his parents that the said promise was a false one and hence the consent of the prosecutrix was not a free consent. It has come on record that whenever the prosecutrix asked the accused to marry her, he avoided it on one pretext or the other, but continued having physical relations with her till she was made pregnant. He even left her alone during her pregnancy, hence the accused stands guilty for the offence u/s. 376 IPC.
Announced in the open court today i.e. 25.11.2013. (Yogesh Khanna ) ASJ-Spl. FTC / Saket Courts New Delhi.
State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 28 of 28 State Vs. Hari Mohan Sharma FIR No. 197/2011 PS: New Friends Colony U/s : 376 IPC 02.12.2013 ORDER ON SENTENCE Present : Shri A. T. Ansari Ld. Addl. P.P. for State Sh. Girish Sharma, Ld counsel for convict. Convict in JC and produced in court.
I have heard the arguments on sentence and perused the material available on record.
It is argued by the ld counsel for convict that he is aged about 31 years; an unmarried man having old aged parents to look after and that he is an educated person, an MBA and never been involved in any other criminal case except the present one, hence seeks lenient view.
On the other hand, the Ld Addl. PP seeks maximum punishment for accused as per law.
Considering the fact and circumstances; the nature of offence involved, I sentence accused Hari Mohan Sharma for the offence punishable u/s. 376 IPC to rigorous imprisonment for seven years with fine of Rs. 5,000/- (Rs. Five Thousands only) and in default of payment of fine, to suffer simple imprisonment for one month.
State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 29 of 28 Page No. -2- Benefit of section 428 CrPC be given to accused. I also recommend appropriate compensation, under section 357-A CrPC, be awarded to the prosecutrix and hence, a copy of this order be sent to the Secretary, Delhi Legal Service Authority, New Delhi, for deciding the quantum of compensation to be awarded to her under the scheme referred to in sub-section 1 of section 357-A CrPC.
Announced in the open court on 02.12.2013.
(Yogesh Khanna) ASJ(Spl. FTC) Saket Court Complex 02.12.2013 State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 30 of 28 State vs. Hari Mohan Sharma SC No. : 33/13 FIR No. : 197/2011 PS : New Friends Colony Page No. 31 of 28