Delhi District Court
State vs . Narender & Anr. Page No. 1/15 on 25 April, 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. 02406R0065272015
SC No. : 38/15 (old) and 2077/16 (new)
FIR No. : 38/15
U/s. : 376 IPC
PS : Badarpur, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
1). Narender (Since expired)
S/o Late Shri Dayanand
2). Sachin
S/o Late Shri Dayanand
R/o House no. 318,
Dhandhan Mohalla,
Badarpur, New Delhi ..................... Accused
Date of Institution : 11.03.2015
Judgment reserved for orders on : 24.04.2017
Date of pronouncement : 25.04.2017
J U D G M E N T
FACTS :
1. On 16.01.2015, the prosecutrix (name withheld to protect her identity) came at the police station Badarpur, New Delhi and gave a FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 1/15 complaint inter alia that she was married to Sachin on 22.01.2014 as per Hindu rites and customs. He used to beat her everyday after taking liquor. On 13.01.2015 in the afternoon, he entered her room in drunken condition, abused her and made physical relation with her without her consent. He asked her to have oral sex with him and tried to do anal intercourse. When she refused, he told her that since she has married to him, she would have to do what he wanted. He also told her that she would have to do it with his friends also. On 14.01.2015, when her husband was away and she was alone, her jeth i.e. the accused Narender entered her room, molested her and committed sexual intercourse with her against her wishes. She informed her brother who brought her in her parent's house. INVESTIGATION :
2. On this complaint, case was registered against the accused persons u/s 376 IPC at PS Badarpur. She was got counseled. She was medically examined at AIIMS. Her exhibits were collected. Her statement u/s 164 Cr.P.C. was got recorded. Accused Narender was arrested on 18.01.2015. He was got medically examined qua his potency. Accused Sachin was formally arrested on 30.01.2015. He was got medically examined. Their exhibits were sent to the FSL, Rohini. After the investigation, both the accused persons were sent for trial for the offence punishable under section 376 IPC.
CHARGE :
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case committed to this Court. Vide order dated 30.03.2015, prima facie case was made out against both the accused persons. Accused FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 2/15 Narender was charged for the offence punishable u/s 376 (2) (f) IPC. Accused Sachin was charged for the offence punishable u/s 377 IPC. Both the accused persons pleaded not guilty and claimed trial. During trial, the accused Narender expired on 20.01.2017. The proceedings against the accused Narender were abated vide order dated 14.02.2017.
PROSECUTION EVIDENCE :
4. To substantiate its allegations against the accused Sachin, prosecution examined as many as ten witnesses.
PW1 is the prosecutrix. She testified on oath that she was married to the accused Sachin on 22.01.2014 as per Hindu rites and customs. After the marriage, she started living with him. His sisters and mother used to live with them. Narender, his jeth, lived with his family in a separate house in the same mohalla.
She stated that after about one and half months of her marriage, accused Sachin started beating her after taking liquor. In October, 2014, she made complaint against him at the police station Badarpur. A settlement was arrived in the Family Court, Saket Courts on 12.01.2015 whereby her husband agreed to pay her Rs. 3,000/ per month and to live with her in a separate room on the ground floor.
She stated that on 13.01.2015 at about 2.00 pm, he came in her room. She was lying on the bed. He FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 3/15 established physical relations with her. At about 3.30 / 4.00 pm, he went away. At about 7.00 / 8.00 pm, he came back. At that time also, she was lying on the bed. He had brought liquor with him. Despite her resistance, he established physical relation with her. He slapped her, pulled her from the bed and beat her. She raised alarm. Poonam, Pooja and Renu, sisters of the accused came in her room. Renu and Pooja slapped her asking why she was fighting with the accused. They also abused her. She, thereafter, called the police. 3 - 4 police officials came. By that time, the accused Sachin fled away from there. She was taken to the police station where she called her brother. Her brothers and Bhabhi came there. She was taken to AIIMS where her medical examination was conducted. She proved her discharge summary Ex. PX.
She stated that on 14.01.2015 in the afternoon at about 3.004.00 pm, when she was lying on the bed and the door of the room was open, accused Narender came. He asked her as to what happened on the previous day. He came close to her and committed sexual intercourse with her forcibly. She raised alarm but no one came for her rescue. She was under shock and trauma. She rang her brother Amit @ Golu and FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 4/15 asked him to take her to her parent's house. She did not narrate the incident to her brother because of shame. Her brother took her to her parent's house at Dakshinpuri. After a short while, she narrated the incident to her elder sister Sonia. Thereafter, her brother and sister took her to the Police Station, where she made the complaint Ex.PW1/A. She stated that on the next day at about 10 am, she was called for her medical examination. At about 8.30/9.00 pm, she was got medically examined at AIIMS vide MLC Ex.PW1/B. On the next day, she gave her statement to the Magistrate Ex.PW1/C. On being crossexamined by Ld. Addl. PP, she admitted that on 13.01.2015, the accused Sachin after establishing physical relation with her did unnatural sex with her by making her suck his penis; he said, he likes it very much; and he tried to commit carnal intercourse with her.
On being crossexamined by Ld. Defence Counsel, she admitted that there is matrimonial dispute between her and her husband. She stated that on 13.01.2015, accused Sachin had given her beatings and she made the complaint to the police on 100 number qua the rape committed by the accused Sachin. She stated that the police did not record her FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 5/15 statement saying that there is nothing unusual in the relation between husband and wife. She denied that no such incident happened and for that reason, she did not make any complaint. She was confronted with her complaint Ex.PW1/A and statement u/s Ex.PW1/C where certain facts which are appearing in her evidence were not stated. She denied that her brother had informed the police about the quarrel only and no incident of rape happened on that day.
PW2 Ms. Archana Beniwal, Ld. MM recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW1/C. PW3 Dr. Rajanikana Swain did the medical examination of accused Narender vide MLC Ex. PW3/A. He found him capable of performing sexual intercourse under normal circumstances. He took his blood in gauze, penile swab, control swab, sealed it and handed over to Ct. Bijender with sample seal. PW4 Dr. Varnit proved the MLC of the prosecutrix Ex.PW1/B prepared by Dr. Shreenivas as per which, the prosecutrix was brought in the hospital on 16.01.2015 at 08:15 p.m. Her gynecological examination was conducted and her matted pubic hair, cuttings of pubic hair, vulval swabs / smear, vaginal swab were taken, sealed and handed over to Ct.
FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 6/15 Varsha with sample seal.
PW5 is younger brother of the prosecutrix. He stated that the prosecutrix was married to Sachin @ Bittu on 22.01.2014. She used to complain that her husband takes liquor and harasses her. She also told them that she does not want to live with him since her inlaws torture and beat her. He brought her back. She lived in their house for long. He stated that the prosecutrix told her sister that her jeth and husband made physical relations with her forcibly. He took her to the police station where she lodged the report.
On being crossexamined, he denied that the accused persons or their family members never harassed the prosecutrix nor beat her rather her sister wanted to grab the property of the accused persons due to which she made false allegations of rape. PW6 Ct. Varsha took the prosecutrix to AIIMS for her medical examination. She collected her MLC and exhibits and handed over to the IO who seized the same vide memo Ex.PW6/A. PW7 HC Charan Singh recorded the FIR Ex.
PW7/A. He endorsed the rukka Ex.PW7/B. He issued certificate u/s 65B of the Indian Evidence Act Ex.PW7/C. PW8 SI Sarita Rathi was the Investigating Officer FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 7/15 of the case. She deposed on the lines of the investigation. She sent the exhibits to FSL and collected the FSL result Ex. PW 8/H. On being crossexamined, she admitted that no information of any kind was received from the prosecutrix against the accused persons before 16.01.2015. She admitted that there were differences between the prosecutrix and her husband. She admitted that on 12.01.2015, a compromise took place between the prosecutrix and her husband. PW9 Sushma, counselor, DCW did the counseling of the prosecutrix on 16.01.2015 and gave her report Ex.PW9/A. PW10 Ct. Bijender took the accused Narender to AIIMS for his medical examination. He collected his MLC and his exhibits with sample seal and handed over to the IO.
STATEMENT OF THE ACCUSED U/S 313 CR.P.C. :
5. After the prosecution evidence, statement of the accused Sachin u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him and stated that there used to be quarrel between him and the prosecutrix on petty issues. They compromised the matter in the Family Court He never beat her nor forced her nor abused her and whenever they made relations, they were consensual.
FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 8/15 DEFENCE EVIDENCE :
6. In defence, the accused did not examine any witness.
ARGUMENTS & CONTENTIONS :
7. I have heard the arguments advanced by Ld. Counsel Sh. Jitender Tyagi for the accused Sachin and Sh. Mohd. Iqrar, Ld. Addl. PP for the State.
8. Ld. counsel for the accused Sachin vehemently argued that the accused has been falsely implicated. There was matrimonial dispute between the prosecutrix and the accused. She concocted a false story to pressurize the accused to give her divorce. Ld. Counsel stated that the alleged incident took place on 13.01.2015 but the report was lodged on 16.01.2015. There are material improvements / contradictions in the testimony of the prosecutrix which go to the root of the case and create doubt on the veracity of the prosecution case.
9. Ld. Addl. PP on the contrary argued that the accused was the husband of the prosecutrix. Inlaws of the prosecutrix used to harass and torture her. He wanted the prosecutrix to have oral sex with him. He forced her to suck his penis. He also tried to commit anal intercourse with her.
The brother of the accused namely Narender also committed rape upon her on the next day. She did not make complaint against the accused Sachin since she wanted to save the honour of the family. When the atrocities of the accused persons did not stop, she lodged the report. Ld. Addl. PP stated that the testimony of the prosecutrix is consistent and cogent and is sufficient to base the conviction of the accused.
FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 9/15 FINDINGS :
10. I have considered the arguments and gone through the entire material on record.
11. The accused Sachin was charged for the offence punishable u/s 377 IPC on the allegations that on 13.01.2015 at noon time, he committed carnal intercourse with his wife / prosecutrix against her will and without her consent. As per the amendment vide dated 03.02.2013, the definition of rape has been amended. Section 375 IPC defines rape which reads as under:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First against her will.
FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 10/15 Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
12. 376B IPC provides punishment for sexual intercourse by husband upon his wife during separation. It provides that whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
Explanation. In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375.
13. Section 198B of the Code of Criminal Procedure, which has been inserted w.e.f. 03.02.2013 provides that no Court shall take cognizance of FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 11/15 an offence punishable under section 376B of the Indian Penal Code where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband.
14. As per the amended definition of rape, a man is said to commit rape if he penetrates his penis to an extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person against her will and without her consent. Exception to this section 375 IPC provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape. Section 376B IPC provides that if an husband has sexual intercourse with his own wife who is living separately whether under a decree of separation or otherwise, without her consent, shall be punished.
15. A bare perusal of the testimony of the prosecutrix / PW1 would show that she was married to the accused Sachin on 22.01.2014. Their matrimonial dispute arose after 1½ month of her marriage. She made the complaint against her husband. On 12.01.2015, they entered into a compromise whereby the accused / her husband agreed to pay Rs. 3000/ p.m. to her. They started living on the ground floor of the house. Her testimony and facts and circumstances of the case show that the prosecutrix at the time of alleged incident had not been living separately from her husband i.e. the accused. She had been living with the accused in the capacity of his wife. She was above 18 years of age.
16. PW1 / prosecutrix has deposed that on 13.01.2015 at about 2 p.m., the accused Sachin established physical relation with her. At about 3:30 / 4 FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 12/15 p.m., he went away. He came back at about 7 / 8 p.m. He brought liquor with him. Despite her resistance, he established physical relation with her. He slapped her, pulled her from the bed and gave her beatings. She called the police at 100 no. 3 - 4 policemen came there and took her to the police station. She was got medically examined. Perusal of the record would show that no complaint was made by her to the police on 13.01.2015. PW8 / IO has stated that on 16.01.2015, the prosecutrix came at the police station and gave the complaint Ex.PW1/A. Her testimony shows that she did not receive any information from the prosecutrix against the accused persons before 16.01.2015.
In her examinationinchief, PW1 / prosecutrix did not depose that the accused did oral sex or the sex against the order of nature with her. When she was questioned by the public prosecutor, she stated that the accused did unnatural sex with her by making her suck his penis saying that he likes it very much and he also tried to commit carnal intercourse with her. In her statement u/s 164 Cr.P.C. Ex.PW1/C, she did not state that the accused did unnatural sex with her by making her suck his penis saying that he likes it very much or that he also tried to commit carnal intercourse with her. In the history narrated to the doctor vide MLC Ex.PW1/B1, she did not allege that the accused did oral sex with her. Although, she gave the history of physical abuse by her husband on multiple occasions but she was silent on the aspect of oral sex.
17. It is not the case of the prosecution that the prosecutrix at the time of alleged incident had been living separately from the accused. Her testimony is very categorical to the fact that she had been living with her FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 13/15 husband on the ground floor. As per the amended definition, penetration of penis into the vagina, mouth or anus of a woman without her consent and against her will amounts to rape punishable u/s 376 IPC. Exception 2 of Section 375 IPC provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape. It is not the case of the prosecution that the prosecutrix was under 15 years of age at the time of alleged incident. The facts and circumstances of the present case show that the prosecutrix and the accused were in a marital relationship at the time of alleged incident. Although, they had matrimonial dispute but they had not been living separately from each other. Although, the accused has denied having done oral sex with the prosecutrix or tried to commit anal intercourse with the prosecutrix but for the sake of arguments even if it is assumed that, the accused did the said act, as per the amendment in section 375 IPC and 376B IPC, the very act as alleged by the prosecutrix would not amount to rape punishable u/s 376 IPC. The amended definition of rape also covers the ingredients as provided u/s 377 IPC.
CONCLUSION:
18. Looking into the above contradictions and in the light of above discussions, I am of the view that the prosecution has failed to prove its case against the accused Sachin. I, therefore, acquit the accused Sachin of the offence punishable under section 377 IPC. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs. 25,000/ with one surety in the like amount, in compliance FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 14/15 of section 437A Cr.P.C. The case property be confiscated to the State after the expiry of period of appeal.
19. File be consigned to record room.
Announced in the open court today i.e. 25.04.2017 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi FIR No. : 38/15 PS : Badarpur State Vs. Narender & Anr. Page No. 15/15