Delhi District Court
Section 19 Ipc. In Bhupinder Singh vs . Union Territory Of Chandigarh on 13 August, 2013
In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeSpl. FTC2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 44/11
Charanjeet Kaur D/o Ram Lal
R/o T235/34A, Baljeet Nagar,
Hill Marg, New Delhi110008
versus
Chetan Khanna
S/o Sh.R.S.Khanna
R/o M617, Shakurpur Village,
J.J.Colony, New Delhi110034
Case arising out of:
Complaint Case No. : 37/1
Police Station : Patel Nagar
Under Section : 200 Cr.PC
Judgment Reserved on : 29.07.2013
Judgment pronounced on : 13.08.2013
JUDGMENT
1. As per record the present case commenced with filing of complaint Ex.PW1/C by the complainant / prosecutrix 'C K' (name withheld to protect the identity of the complainant) before the court of the concerned Metropolitan Magistrate. In brief, the allegations of the complainant are that she married the accused on 21.7.2008 at Arya Samaj Mandir, Yamuna Bazar, Delhi and the marriage certificate was duly issued on the same date i.e. on 21.7.2008. The accused took the complainant a hotel at Karol Bagh , Delhi where their marriage was consumated. The complainant alleged that out of the total room rent of Rs.2,800/, she paid Rs.1800/ while the remaining one thousand was paid by the accused. On the next day , accused took her to a rented accommodation at Patel Nagar, Delhi which he had taken on monthly rent of Rs.2000/ and they started living there as husband and wife.
Complainant further alleged that the accused did not take her to his house on the one pretext or the other. He often came late at night stating that he had work to do . In the meantime he continued to establish physical relationship and even used to force her to take medicines so that she would not conceive.
The complainant alleged that she also used to have intercourse with the accused under the impression that he is her legally wedded husband.
Complainant has alleged in her complaint that on 25.7.2008 accused informed that he would come late on account of closing work in his bank and he asked the complainant to go to her parental home and that he would take her from the house of her parents. However, despite waiting for the whole night the accused did not come to take the complainant at her parental home. Thereafter on 30.7.2008 accused again did not come to home under the pretext of closing work in his bank and on 2.8.08 accused informed the complainant that he was going on bank tour to Shimla and would return on 10.8.08. On 14.8.08 accused again informed the complainant that he was going Kanpur to the house of his sister on occasion of Raksha Bandhan. Though mother of complainant asked the accused to take complainant along with him to Kanpur but accused refused to take her on the ground that he would first inform his sister about his marriage. Thereafter accused used to come in the night and used to go at 5.00am in the morning and when the landlady of the tenanted premises asked for the ID proof for the purpose of rent agreement, accused refused to give the same and asked the complainant to give her ID proof.
It has further been alleged by the complainant in her complaint that on 25.8.08 the accused visited her office and told the complainant that he would meet her only at her office because of his night duty. Accused also told her to live in the house of her mother for 1015 days. Complainant also asked the accused to leave the job to live peacefully to which accused agreed to leave but subject to condition that she would bear his expenses.
Complainant further alleged that while she was shifting from the tenanted premises, she found photocopy of a ration card and she was shocked and surprised to see the same that accused is already married and is having a girl child of 8 years. When she told about it to accused, accused admitted his marriage and his daughter. Complainant has further alleged that thereafter accused started threatening her that if she would tell this fact to anybody, he would kill her and her family members. Complainant made complaint to SHO, PS Patel Nagar on 20.10.2008 but no action was taken. Thereafter she again sent another complaint on 31.1.09 to the Commissioner of Police, SHO PS Patel Nagar and on 4.2.2009 to DCP (Central) against the accused but no action has been taken against the accused.
The Ld. Metropolitan Magistrate, upon receipt of the complaint Ex.PW1/C directed the complainant to lead pre summoning evidence and on the basis of the material on record, summoned the accused for facing trial for offences punishable U/s 376/420 IPC.
Pursuant to committal of the case and on the basis of material on record, accused was charged for offence under Section 376/417/495 IPC to which he pleaded not guilty and claimed trial.
Four witnesses were examined on record to bring home the guilt of the accused.
The complainant 'CK' deposed as PW1 before the Court. In her deposition she narrated on the lines of her complaint and reiterated the facts and allegations against the accused.
In her testimony before the Court she stated that she is owner of a boutique namely 'Gurukripa Enterprises' situated at Karol Bagh and she had taken a loan from DBS Chola Mandalam. Accused present today in court used to visit her to collect installments of aforesaid loan. During those visits of accused to her house, he became friendly with her and her family members. PW1 further deposed that accused offered a good match for her marriage to her mother. But, she did not like the boy who was introduced by the accused and she refused the said proposal. She further deposed that at this, accused proposed himself to her mother and she also agreed to the proposal of accused.
PW1 further stated that on 21.07.2008, her marriage was solemnized with the accused at Arya Samaj Mandir, Yamuna Bazar in the presence of her father and one Purshottam Sharma known to her father. No one attended the marriage from the side of the accused. One certificate was issued in regard to solemnization marriage, copy of the same is Ex.PW1/A (OSR). After the marriage, she was taken to a hotel at Karol Bagh by the accused but she does not remember the name of that hotel and her marriage was consummated during the night they stayed in that hotel. On the next day i.e., 22.07.2008 they had taken a house on rent i.e. H.No.29/38, West Patel Nagar, New Delhi for a monthly rent of Rs.3000/ and started living there as husband and wife.
It has further been deposed by the PW1 that on 25.07.2008, accused left the house for his office but did not return during night and he came back on the next morning at her boutique. Accused told her that due to bank closing period, he remained on duty and did not come to the house for this reason. Again on 30.07.2008, accused did not come to the house at night and assigned the same reason for his absence. After staying 23 days with her and on 02.08.2008 he left the house by telling that he was going to Shimla on account of some official work and would return on 10.08.2008. On 10.08.2008 accused returned from Shimla and stayed at home for 23 days. On 14.08.2008 accused again left the house stating that he is going to Kanpur to meet his sister for Rakhi festival and returned back after 34 days. On 25.08.2008, accused again left the house by stating that he had joined some work for night duties for 1015 days and he asked her that she should stay with her parents during the said period. Accordingly, she went to her parents home and started living there. On 10.09.2008, accused came to her parental home and took her to their house. However, he left the house at about 3:00 AM stating that he will return in the morning. The accused however never returned to the house after that day. But, he came to her boutique on 19.09.2008 and told her that he will not come to the house and would meet her only at my place of work for which she refused. Whenever the accused used to establish sexual relations with her, he used to compel her to take a contraceptive pill.
PW1 has further deposed that after the accused left her, she shifted to her parental home. During the course of shifting, she found one folder containing photocopy of the Ration Card of the accused. There, the details of family members of the accused were mentioned which included his parents, wife namely Reena Khanna and one daughter aged about 8 years. After about one week, she saw accused on the road below my office and confronted him about the photocopy of the Ration Card. The accused admitted that he was already married and was also having one daughter. PW1 further narrated that on 20.10.2008 she made a complaint to the police.
She has produced the complaint dated 20.10.08 made by her to SHO PS Patel Nagar. Copy of the same is Ex. PW1/B and stated that no action was taken by the police on her said complaint. Then, she sent other complaint dated 31.1.09 to higher police officials and another complaint dated 04.2.09 to DCP (Central). Despite her aforesaid complaints, no action was taken by the police. Then she made a complaint in the court dated 16.3.09 which is Ex. PW1/C. The prosecution also examined Sh. Deepak Shastri, The Pandit who solemnized the marriage of the accused with complainant as PW4. He produced original affidavit dated 21.7.2008 furnished by accused Chetan Khanna and complainant CK at the time of marriage. The photocopy of their affidavits were exhibited as Ex.PW4/A and Ex.PW4/ B. He also deposed that he had solemnised their marriage and also correctly identified both the accused as well as complainant who were present in the court. PW4 also deposed that he had issued the marriage certificate Ex.PW2/A at the time of marriage of accused with complainant. The witness however, did not produce the original marriage register stating that the same is deposited in another case of PS Timarpur.
Apart from the aforesaid witnesses, Sh. Purshottam Sharma a witness to the marriage of the accused and the complainant was brought into the witness box as PW2. He deposed that on 21.7.2008 he had attended the marriage of complainant CK and accused Chetan Khanna at Arya Samaj Mandir , Yamuna Bazar, Delhi. He identified his signature on the marriage certificate Ex.PW2/A. PW3 is Sh.Bhuwan Sehgal, he deposed that in July'08 accused Chetan Khanna had approached his mother through a broker for taking on rent one room set in his property at West Patel Nagar, Delhi which was let out to him at monthly rent of Rs.3000/. PW3 also deposed that accused was living in the said premises along with the CK as husband and wife.
The aforesaid evidence was put to the accused in his statement recorded under Section 313 Cr.P.C. wherein he admitted that he used to visit the prosecutrix to collect installments of loan which she had taken from DBS Cholamandalam. Though the accused denied the factum of his marriage with the prosecutrix, he admitted that he was married and was having a daughter and rather claimed that the prosecutrix was also aware of his marriage and about his daughter. Accused refused to lead any evidence in defence and claimed that he has been falsely implicated by the prosecution in order to extract money from him as she had laid her hand on photocopy of his ration card.
I have heard the arguments advanced by Ld. Defence counsel, Ld. APP for state and complainant herself and have also gone through the evidence on record.
Ld. defence counsel argued that infact the prosecutrix had found photocopy of the ration card of the accused containing details of his family members and she was trying to extract money from him. It was also argued that no marriage was ever solemenised between the accused and the complainant and that the witnesses are false and interested. Moreover, father of the prosecutrix who is stated to be a witness to their alleged marriage was also not brought in the witness box.
On the other hand, it was contended on behalf of the prosecution that the guilt of the accused stand proved beyond reasonable doubt in view of the testimony of the prosecutrix, the witnesses to the marriage and the landlord of the house where they stayed after the marriage as husband and wife.
On going through the record, it is apparent that the accused himself has not denied the fact that he knew the complainant as he used to go to her for collecting the installments of loan. It is also not his plea that he was not married or that he was not having a daughter from his marriage. Though the accused has completely denied the factum of his marriage with the complainant CK, yet I find on going through the evidence brought on record that his marriage with the complainant on 21.7.2008 has been proved on record beyond doubt.
The testimony of PW4 Deepak Shasatri who solemnised their marriage, coupled with the deposition of PW2 who was one of the witnesses of the marriage clearly establishes the case of the prosecutrix that the accused married her on the aforesaid date at Arya Samaj Mandir, Yamuna Bazar, Delhi. The original affidavits submitted by the complainant as well as the accused at the time of solemnisation of marriage, were produced by PW4 and their copies were duly exhibited on record. There is no reason to disbleive either this documentary evidence or the testimony of PW4 who not only proved the affidavits and the marriage certificate but also correctly identified the complainant as well as the accused stating that he had solemnized their marriage on 21.7.08.
I find myself unable to subscribe to the argument of the defence that mere nonexamination of father of the complainant is sufficient in itself to throw out the entire case or to disbelieve the testimonies of other witnesses examined on record. Even without the corroborative testimony of the father of the complainant, the allegations leveled by the complainant, in my opinion, stand duly proved on record.
It has been brought on record that the accused married the complainant on 21.7.2008 despite the fact that he was already married. This fact was revealed to the complainant much after their marriage while she was in the process of shifting to the house of her parents and when she found photocopy of ration card of the accused, it may be reiterated at the cost of repetion that in response to question no.16 in his statement u/s 313 Cr.P.C., this fact was admitted by the accused when stated that everyone including the prosecutrix was having knowledge of his marriage and daughter.
Hence, it is proved on record that during subsistance of his marriage, accused solemnised marriage with the prosecutrix on 21.7.08 which was not a valid marriage. The prosecutrix consented for sexual intercourse with the accused under the belief that she is his legally wedded wife. Accordingly, her consent can not be said to be free or voluntarily and was obviously given under misconception of fact within the meaning Section 19 IPC. In Bhupinder Singh Vs. Union Territory of Chandigarh Crl. Appeal No. 1047/47 dated 10.7.2008, the Hon'ble Supreme Court in similar circumstances held that :
"Appellant - accused marrying complainant during subsistence of his first marriage and cohabiting with her for about four years - Submission that complainant knew about his marital status and hence clause "Fourthly" to Section 375 would have no application Held, even though the complainant claimed to have married the accused, which fact is established form several documents, that does not improve the situation so far as the appellantaccuse is concernedHis subsequent marriage had no sanctity in law and was void ab initio Hence, conviction of appellant under clause "Fourthly" of Section 375 sustainable."
I also find on ongoing to the evidence on record that the accused committed the offence punishable U/s 417 IPC in as much as he cheated the complainant by fraudulently or dishonestly inducing her to marry him to establish sexual relation with him, without disclosing that he was already married and thereby he induced the prosecutrix to live with him as his wife, which she would not otherwise do if she were not so deceived, and thereby caused harm to the complainant in body and mind.
Accordingly, in the light of the above discussion and the evidence on record, I find that the charge for offence U/s 376 and 417 IPC stand duly proved against the accused.
With regard to the charge under Section 495 IPC also, I find that the complainant PW1 by way of her testimony proved that she came to know about marriage of the accused when she found the photocopy of his ration card containing details of his wife and other family members. In his statement U/s 313 Cr.P.C. accused has not denied the factum of his earlier marriage and the daughter from the said marriage. From the statements of PW1, 2 and 4 , it has been proved on record that the accused solemnized the marriage with the complainant on 21.7.08 and at that time his earlier marriage was already in subsistence. It is not the plea of the accused that he was not already married. His plea that the complainant married him despite having knowledge of his previous marriage has not been proved on record.
Moreover, his plea in response to question no.15 in the statement under Section 313 Cr.P.C. that prosecutrix had taken out photocopy of his ration card from his bag during one of his visits to her office for collecting installments of loan, is also apparently an after thought. It is noteworthy that when the prosecutrix was cross examined, it was suggested to her that accused had given his ration card to her in lieu of his identity card as his Icard had not been issued by the bank.
Consequently in the light of aforesaid discussion, I find that from the evidence led on record, the charges under Section 376/417 and 495 IPC clearly stand proved against the accused Chetan Khanna. Accordingly, he is convicted for the said offences. Let him be heard on the point of sentence.
Announced in the Open Court on this 13th day of August, 2013 (Kaveri Baweja) Additional Sessions JudgeSpl. FTC2 (Central) Tis Hazari Courts: Delhi.
In the Court of Ms. Kaveri Baweja Additional Sessions JudgeSpl. FTC2 (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 44/11 Charanjeet Kaur D/o Ram Lal R/o T235/34A, Baljeet Nagar, Hill Marg, New Delhi110008 versus Chetan Khanna S/o Sh.R.S.Khanna R/o M617, Shakurpur Village, J.J.Colony, New Delhi110034 Case arising out of:
Complaint Case No. : 37/1
Police Station : Patel Nagar Under Section : 200 Cr.PC Judgment pronounced on : 13.08.2013 ORDER ON SENTENCE
Vide judgment dated 13.08.2013, the above named convict viz., Chetan Khanna has been convicted for the offences punishable under Sections 376/417 and 495 IPC. While addressing arguments on the quantum of sentence, learned counsel Sh.Vikram Sharma, Advocate appearing on behalf of the convict has prayed for a lenient view. He has submitted that due to the offences committed by the above named convict, his family is likely to suffer as he is sole bread earner of his family. It is submitted that the father of the convict has already expired and he has a family comprising of 11 years old daughter, a minor son and his wife, besides his brother and his wife who are also present in the court today. It is submitted that the convict is earning his livelihood by plying threewheeler and has no previous antecedents and is not a previous convict.
On the other hand, Prosecution has vehemently argued that the offences alleged to have been proved against the above named convict entail him for maximum prescribed punishment and there is no ground of any leniency whatsoever in view of the fact that the accused has ruined the life of the innocent complainant by inducing her to establish sexual relations with him by concealing the factum of his marriage and has thereby cheated her and committed the offence of rape besides committing offence punishable under Section 495 IPC. It is also submitted that there is a growing tendency of cheating the innocent girls by the people like the above named convict and a strong message needs to be sent to the society in order to curb such conduct in future.
I have considered the rival submissions in the light of the allegations proved on record against the convict Chetan Khanna. Although, on the one hand, it cannot be ignored that the convict Chetan Khanna due to his lust ruined the life of the innocent complainant by cheating her into a so called marriage due to which she succumbed to establish physical relations with him believing herself to be his lawfully wedded wife, yet at the same time it is to be kept in mind that the wife and children of the above named convict shall also suffer due to his above conduct in which they had no role whatsoever to play. The convict had thereby cheated not only the complainant but has also committed breach of trust of his wife and children by committing the aforesaid offences. Hence, in these circumstances, I see no ground to reduce the sentence for seven years for the offence punishable under Section 376 IPC.
Accordingly, having regard to the aforesaid, interest of justice would be met, if convict Chetan Khanna S/o Sh.R.S.Khanna is sentenced as under:
1) For the offence punishable under Section 495 IPC, the above named convict is sentenced to undergo Rigorous Imprisonment for 7 years in addition to fine of Rs.5,000/, in default whereof he shall undergo SI for 2 years;
2) For the offence punishable under Section 376 IPC, the above named convict is sentenced to undergo Rigorous Imprisonment for 7 years in addition to fine of Rs.15,000/, in default whereof he shall undergo SI for 2 years and
3) For the offence punishable under Section 417 IPC, the above named convict is sentenced to undergo Rigorous Imprisonment for 1 year.
All the sentences shall run concurrently. It is directed that the above mentioned fine shall be paid by way of compensation to the Prosecutrix 'CK' under the provisions of Section 357 Cr.PC. It is clarified that the said fine has been imposed upon the convict Chetan Khanna keeping in view his financial condition. Besides the aforesaid fine, I also deem it appropriate to recommend payment of adequate compensation to the above named Prosecutrix/complainant 'CK' as may be deemed fit by the DLSA under the provisions of Section 357A Cr.PC.
Ordered accordingly. Copy of this judgment and order on sentence be supplied to the convict free of cost and be also sent to the Secretary, Delhi Legal Services Authority (Central District) for information and compliance. File be consigned to record room.
(Kaveri Baweja) Additional Sessions JudgeSpl. FTC2 (Central) Tis Hazari Courts: Delhi.
17.08.2013 Charanjeet Kaur Vs. Chetan Khanna CC No. : 37/1 PS : Patel Nagar SC No. : 44/2011 13.08.2013 Present : Ms Neeta GuptaLd. APP for the State.
Accused on bail with counsel.
Vide separate judgment announced today in open court, Accused Chetan Khanna is found guilty for committal of offence punishable U/s 376/417 & 495 IPC. He be taken into custody forthwith and sent to J/c. To come up for order on sentence on 16.8.2013.
At this stage, Ld. Defence counsel requested for some other date on the ground that he has to attend some matters on 16.8.2013 at Saket Court. At the request of Ld. Counsel, earlier given date stands cancelled. To come up for argument on the point of sentence on 17.8.2013.
(Kaveri Baweja) Additional Sessions JudgeSpl. FTC2 (Central) Tis Hazari Courts: Delhi.
13.8.2013.
Charanjeet Kaur Vs. Chetan Khanna CC No. : 37/1 PS : Patel Nagar SC No. : 44/2011 17.08.2013 Present : Ms Neeta GuptaLd. APP for the State.
Accused produced from JC.
Sh.Vikram Sharma - ld. Counsel for the accused.
Vide separate order on sentence announced today in open court, Accused Chetan Khanna has been sentenced as under :
1) For the offence punishable under Section 495 IPC, the above named convict is sentenced to undergo Rigorous Imprisonment for 7 years in addition to fine of Rs.5,000/, in default whereof he shall undergo SI for 2 years;
2) For the offence punishable under Section 376 IPC, the above named convict is sentenced to undergo Rigorous Imprisonment for 7 years in addition to fine of Rs.15,000/, in default whereof he shall undergo SI for 2 years and
3) For the offence punishable under Section 417 IPC, the above named convict is sentenced to undergo Rigorous Imprisonment for 1 year.
All the sentences shall run concurrently. It is directed that the above mentioned fine shall be paid by way of compensation to the Prosecutrix 'CK' under the provisions of Section 357 Cr.PC. It is clarified that the said fine has been imposed upon the convict Chetan Khanna keeping in view his financial condition. Besides the aforesaid fine, I also deem it appropriate to recommend payment of adequate compensation to the above named Prosecutrix/complainant 'CK' as may be deemed fit by the DLSA under the provisions of Section 357A Cr.PC.
Copy of this judgment and order on sentence be supplied to the convict free of cost and be also sent to the Secretary, Delhi Legal Services Authority (Central District) for information and compliance. File be consigned to record room.
(Kaveri Baweja) Additional Sessions JudgeSpl. FTC2 (Central) Tis Hazari Courts: Delhi.
17.8.2013.