Delhi District Court
State vs Harish Sharma on 31 October, 2015
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 52/2014
Unique ID No. : 02401R0659852013
State versus Harish Sharma
S/o Sh. Yadram Sharma
R/o 3C422, Budhi Vihar,
Muradabad, UP.
Case arising out of:
FIR No. : 216/2012
Police Station : DBG Road
Under Section : 376 IPC
Judgment reserved on : 12.10.2015
Judgment pronounced on : 31.10.2015
JUDGMENT
PROSECUTION CASE:
1. It is the case of Prosecution that on 25.05.2012, complainant 'P.D.' (name withheld in order to protect her identity) came to PS DBG Road and gave statement to ASI Pushpa alleging commission of rape by accused Harish Sharma. At the same time, she also gave in writing that as she had also given a complaint against accused at Mahila Thana at Raipur, where the matter is pending consideration, she does not want any action against the accused for one month as. However, on 26.09.2012, she again came to the PS DBG Road and got lodged a case FIR against the accused Harish Sharma on the basis of her complaint dated 25.05.2012, the contents whereof are being enumerated as under:
2. The complainant 'P.D.' is a resident of Raipur. About 1½ year back, she created a profile on the website jeewansathi.com for matrimonial purpose and found the details of one Harish Sharma, which she liked.
Thereafter, she sent a proposal for marriage to him and also disclosed her entire personal details to him. Accused accepted her proposal for marriage through his mobile phones viz., 9759684740 & 9990111593 and remained in touch with her for 1½ year on the pretext of marriage and gained her confidence.
3. The complainant further stated in her complaint that on 14.12.2011, accused called her to Delhi to meet his family members. She reached Delhi by train on 14.12.2011 in the evening and accused came to Hazrat Nizammudin Railway Station to pick her at about 6:30 PM and instead of taking her to his house, he took her to a hotel namely Orchid Garden at DBG Road, Karol Bagh, Delhi. Upon asking of complainant as to why he has brought her to a hotel, accused told her that his family members will come after two days to meet her and that he will introduce her to them in the same hotel. The complainant being unknown to Delhi city, had no option, but to stay in the said hotel.
4. The complainant further alleged in her complaint that accused had established physical relations with her against her wishes in the aforesaid hotel on the pretext of marriage. Due to fear of defamation in society, she did not disclose anyone about this incident. Family members of Accused also did not come to meet her. Accused asked her to return to her house at Raipur and assured her that he will come there along with his family to talk about their marriage. However, accused did not turn up for the same. Thereafter, the complainant also found that the Accused had closed his profile on jeewansathi.com and had also switched off his mobile numbers. Complainant also made several efforts for calling the accused at Mahila Thana at Raipur, but the accused did not turn up there. Thereafter, the complainant was constrained to lodge a complaint against the accused at PS DBG Road.
5. During the course of investigation, Complainant was got medically examined vide MLC No.15060 from LNJP Hospital and the exhibits collected from the hospital were taken into police possession and were deposited in the Malkhana thereafter. Search was also made for the Accused Harish Sharma at his office at Moradabad as well as his house at Amroha. Thereafter, Accused got Anticipatory Bail from the court on 26.10.2015. However, he was formally arrested on 28.10.2015 and was joined in investigation and his medical was also got conducted an the exhibits were also collected from the hospital.
6. Police also made from the staff of Hotel Orchid Garden, DBG Road, Delhi. Statement of witnesses were also recorded during investigation, exhibits were sent to FSL for opinion and after completion of investigation, charge sheet was filed before the court.
CHARGES :
7. Upon committal of the case and on the basis of material on record, Accused Harish Sharma S/o Sh.Yadram Sharma was charged for offence punishable under Sections 376 IPC vide order dated 05.08.2014. Accused pleaded not guilty and claimed trial when the charge was read over and explained to him.
PROSECUTION WITNESSES:
8. Prosecution examined 15 witnesses in all in order to prove its case which may be categorized as under :
(i) Public Witnesses :
9. Prosecutrix 'PD' was examined as PW1. Her testimony would be discussed later in the course of the judgment in order to avoid repetition and for the sake of brevity.
10. PW3 Sh.Pranav Mahajan, Manager (Legal), Info Edge (India) Ltd. deposed that jeevansathi.com is a website which is owned and operated by Info Edge (India) Ltd. He further deposed that on 27.09.2013, upon receipt of notice under Section 91 Cr.PC from SI Sangeeta (Ex.PW3/A), he submitted the requisite information vide his lettercumcertificate under section 65B Evidence Act dated 30.09.2013 and proved the same as Ex.PW3/B.
11. Sh.Sanjay Gupta, Manager of Hotel Orchid Garden was examined as PW5. He identified entry No.4308 dated 14.12.2011 made in the Hotel Register and deposed that as per the said entry at Srl. No.4308, Accused Harish Sharma and Prosecutrix 'PD' checked into their hotel on 14.12.2011 at about 6 PM and checked out on 16.11.2011 at 7:45 AM and that Room No.208 was allotted to them. He also deposed that the copy of driving licence of Accused Harish Sharma was taken at the time of allotting the said room to them as identity proof as per the aforesaid entry in the register. He also proved photocopy of the said entry as Mark PW5/A.
12. PW6 Sh.D.R.Sarna, Chief Ticket Inspector, Nizamuddin Railway Station, Delhi deposed regarding handing over of the certified copy of Railway Chart for 28.07.2012 with respect to train No.12807 Samta Express to one police official in the month of September, 2013 and proved the same as Ex.PW6/A. He further deposed that the said certified copy had been prepared from the original records which is submitted by the TT of the concerned train at their railway station upon termination of journey. He also proved the certificate given by him in this regard as Ex.PW6/B.
13. PW7 Sh.Manohar Lal was examined in order to prove the Guest Entry Register, CCTV footage and documents pertaining to stay of Accused and Prosecutrix in hotel Orchid Garden, DBG Road, Delhi for the period 14.12.2011 to 16.12.2011. This witness also proved the original guest entry register which was seized vide seizure memo Ex.PW7/A and the photocopies of the entry bearing No.4308 dated 14.12.2011 at page 50 of the register along with documents furnished by Accused Harish Sharma and other documents as Ex.PW7/P2 (Colly) (running into 08 pages.).
14. PW8 Sh.Javed Akhtar, who is working in IDBI Bank,Muradabad Branch as Assistant Manager produced the summoned record i.e. Original attendance register of their branch for the period January, 2012 till June, 2013 and proved the attendance sheets for the months of September, 2012 and October, 2012 as Ex.PW8/A and Ex.PW8/B respectively. He further deposed regarding the attestation of the said attendance sheets by their Branch Manager Sh.Shehbaz Imam and also identified his signatures as he had seen him writing and signing inthe regular course of his duty in the bank.
Doctors:
15. PW4 is Dr.Neelima, who prepared the MLC (Ex.PW4/A) of the Prosecutrix on 26.09.2012 on the basis of alleged history given by her. This witness further deposed that the Prosecutrix again came to the hospital on the intervening night of 2627.11.2012 and she examined the Prosecutrix after obtaining her consent. PW4 also proved her detailed as Ex.PW4/B on the back side of MLC Ex.PW4/A, bearing her signatures at point A. She collected some exhibits, sealed with the seal of hospital and handed over the same to the accompanying police officials.
Police officials :
16. Remaining witnesses pertain to investigation which include Duty Officer HC Brijpal Singh, who was examined as PW2. He deposed regarding recording of the FIR on 26.09.2012 and proved the computerized copy of the same as Ex.PW2/A and his subsequent endorsement on the same as Ex.PW2/B.
17. W/SI Pushpa was examined as PW13. She deposed that on 25.05.2012 while she was posted at PS DBG Road, the complaint of the Prosecutrix was assigned to her and she made inquiries from her. The Prosecutrix trold her that she had also filed a complaint against the Accused Harish Kumar in Mahila PS Raipur, Chhatisgarh and she asked W/SI Pushpa for keeping her complaint pending for one month as the next date of hearing of her said complaint was 04.06.2012.
18. PW13 further deposed that on 26.09.2012, Prosecutrix again came in the PS and requested to take action on her compliant which was given by her in PS DBG Road on 25.05.2012. PW13 prepared the rukka on the said complaint vide Ex.PW13/A and got registered the FIR. After registration of the FIR, investigation of this case was assigned to W/SI R.P. Minz and PW13 handed over all the relevant documents to W/SI R.P. Minz.
19. Ct. Lal Chand was examined as PW14. He deposed regarding handing over of rukka and copy of FIR to W/SI R.P.Minz for investigation on 26.09.2012.
20. PW15 is H/Ct. Raj Dulari who along with IO/WSI R.P. Minz took the Prosecutrix to LHMC hospital on 26.09.2012 for her medical examination. She further deposed that the examining doctor handed over some sealed exhibits to her which she handed over to the IO, who later seized the same vide seizure memo Ex.PW10/A.
21. Insp.R.P. Minz stepped into witness box as PW10. She deposed that on 26.09.2012, investigation of this case was assigned to her. ASI Pushpa handed over all the relevant documents to her. PW10 got the Prosecutrix medically examined at LHMC hospital and collected the MLC and sealed exhibits of Prosecutrix from HC Raj Dulari, which were given to her by examining doctor and seized the same vide seizure memo Ex.PW10/A. PW10 also prepared the site plan of hotel Orchid Garden, DBG Road (Ex.PW1/PA) and deposited the exhibits in the malkhana and recorded the statement of witnesses. She also searched for the accused at Muradabad along with police staff but he could not be found there. PW10 lastly deposed that on 05.10.2012, she deposited the case file with MHC(R) of PS DBG Road as the investigation was transferred to some other officer.
22. MHCM HC Ajay was examined as PW11. He deposed regarding deposit of sealed exhibits during the course of investigation on 27.09.2012, 28.10.2012, 02.11.2012 & 31.10.2012 and proved their entries made by him in the Register No.19 as Ex.PW11/A, Ex.PW11/B, Ex.PW11/C and Ex.PW11/D respectively.
23. Ct.Pradeep Bisht was examined as PW12. He deposed regarding taking of sealed exhibits vide RC No.51/21/12 from Malkhana on 022.11.2012 on the directions of the IO and depositing of the same in FSL Rohini. He further deposed regarding handing over the copy of RC and acknowledgment to MHC(M).
24. PW9 is IO/WSI Sangeeta to whom further investigation was assigned on 26.10.2012. She arrested the Accused upon his surrender in the PS on 28.10.2012 vide arrest memo Ex.PW9/A and also conducted his personal search memo Ex.PW9/B. As the Accused was on anticipatory bail, she released him after formal arrest. She also got the Accused medical examined vide MLC Ex.PW9/C and also got conducted his potency test.
25. PW9 also prepared the seizure memos of the various articles which she seized during the course of investigation, recorded the statement of witnesses pending FSL result, completed the investigation, prepared the charge sheet and filed the same in the court.
26. PW9 further deposed regarding collection of FSL result i.e. Biological Examination (Ex.,PW9/G) and Handwriting Expert Report (Ex.PW9/H) and filed the same before the court.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C.:
27. In his statement recorded under Section 313 Cr.PC, Accused Harish Sharma pleaded innocence and his false implication in this case. He stated that Prosecutrix in fact blackmailed him in order to extract money from him and on his refusal to do so, she got this false case registered against him. He further stated that he never established physical relations with the Prosecutrix at any point of time. Accused did not lead any evidence in his defence.
ARGUMENTS, ANALYSIS AND FINDINGS :
28 I have heard detailed arguments advanced by learned defence counsel and learned Addl. PP for the State and have also gone through the written submissions filed by the defence and the relevant case law cited in the course of arguments.
29. On the one hand learned Addl. PP submitted that it is established by the testimony of the Prosecutrix 'PD' that the accused established physical relations with her after giving her assurance of marriage and thereby obtained her consent for physical relations by keeping her under misconception of fact and thus committed rape upon her. On the other hand, learned defence counsel submitted that the Prosecution has failed to prove the charges against the accused.
30. It was submitted by learned defence counsel that the entire case of the Prosecution is false and there is an unexplained delay of more than 9 months in the registration of the FIR. Moreover, even the complaint dated 25.05.2012 on which the FIR was subsequently registered was also made by the Prosecutrix after the lapse of more than 05 months from the date of the alleged incident. Further, she also requested the police officials not to take any action against the accused till her further instructions and as per the charge sheet, she did not respond till 26.09.2012 despite best efforts by the police.
31. It was further submitted by learned defence counsel that the Prosecutrix has made mutually contradictory allegations against the accused by alleging on the one hand that the accused forcibly established physical relations with her during the period from 14.12.2011 to 15.12.2011 and on the other hand she claimed that the accused established physical relations with her on the promise of marriage. It was contended that these mutually contradictory claims of the Prosecutrix are sufficient to demolish the entire case of the Prosecution.
32. It was further submitted that the Prosecutrix is an educated girl aged about 35 years and she entered into physical relations with the accused, apparently, with her consent and knowing fully the consequences of her act. Learned defence counsel thus submitted that the physical relations, if any, established between accused and the Prosecutrix were consensual in nature and by no stretch of imagination can be termed as rape, as alleged by the Prosecutrix. It is thus alleged that the accused deserves to be acquitted for the alleged offence under Section 376 IPC as the said allegations have not been proved against him.
33. For appreciating and analyzing the rival submissions during the course of arguments, it is necessary to deal with the testimony of Prosecutrix/PW1 'PD', who is the most material witness of Prosecution.
34. Prosecutrix/PW1 deposed that she is post graduate and has completed her M.Com and her date of birth is 29.05.1980. She created her profile on jeewansathi.com sometime in the year 2010 and uploaded the profile of accused Harish Sharma, which she liked and she sent a request to him on the website. Thereafter, Accused contacted her telephonically and they started interacting with each other and remained in touch for about 1½ year.
35. On 14.12.2011, accused asked her to come to Delhi to meet his family members. She reached Delhi by train in the evening of 14.12.2011 and Accused took her in a TSR to a hotel namely Orchid Garden at DBG Road from Hazrat Nizammuddin Railway Station. She further deposed that accused asked her not to say anything before the hotel Manager. He made an entry in the hotel register and took a room in that hotel and introduced her as his fiancee. When she inquired from the Accused as to why he has brought her there, he told her that his family members will come after two days to meet her and that he will introduce her to them in the same hotel.
36. Prosecutrix/PW1 further deposed that Accused made her stay in the hotel for two days and during this period he established physical relations without her consent and despite her refusal several times. When she tried to object, Accused use to give her assurance that he will marry her and that his family is also coming to meet her for the purpose of their marriage.
37. After two days, Accused told her that his mother has suddenly fallen ill and that he will have to go to his house. He also asked her to return to her house at Raipur and assured her that he will come there along with his family to talk about their marriage.
38. PW1 also deposed that thereafter when she tried to call up the accused, he did not take her calls nor replied to her messages. Finally, she contacted one Advocate namely Mr.Yuvraj Singh, who called the accused on 28.02.2012, but Accused flatly told him that he does not know any 'P.D'. She further deposed that the accused finally talked to her and asked her to give him one month's time, but he did not contact her. Finally, she approached Mahila Thana at Raipur, where the matter was referred to Mediation Centre (Paarivarik Paramarsh Kendra), but Accused did not appear despite service of notice for four dates. Thereafter, she got the case registered against the Accused on the basis of her complaint dated 25.05.2012 (Ex.PW1/A).
39. PW1 also deposed that she handed over the clothes which she was wearing at the time of the incident to the police during the course of investigation in the month of October, 2012 and they were seized by the police vide seizure memo Ex.PW1/B. She also handed over 06 railway tickets of her journey to and fro from Raipur to Delhi which were seized vide seizure memo Ex.PW1/C. Prosecutrix/PW1 correctly identified the clothes which she had given to the police when the same were produced and shown to her in the court.
40. On the basis of the aforesaid testimony of the Prosecutrix and other evidence led on record in the course of trial, including the guest entry register of Hotel Orchid Garden, DBG Road, Delhi produced by PW7 Sh.Manohar Lal, which has been established on record by the Prosecution that the Accused and the Prosecutrix stayed in hotel Orchid Garden at DBG Road, Delhi from 14.12.2011 till the morning of 16.12.2011 in Room No.208 of the said hotel. PW1 testified that the accused took her to the said hotel from Hazarat Nizammuddin Railway Station in a TSR and upon inquiry he informed her that he is taking her there to meet his family members.
41. It would be pertinent to note that it is not in dispute that the Accused is a resident of Moradabad, UP. In her crossexamination dated 25.09.2014 Prosecutrix/PW1 also deposed that she had visited Muradabad in the month of May, 2012 to meet the accused. Thus, admittedly, the accused was not residing in Delhi along with his family. Prosecutrix 'PD', who was in touch with the accused since about 1½ year prior to 14.12.2011, would also, in all probability, be well aware that the Accused and his family members were not residing in Delhi. It has also emerged from her crossexamination that she did not inform her family members that she was going to Delhi to meet the Accused when she left from Raipur on 13.12.2011. In fact, the Prosecutrix deposed that she lied to her family members that she has to attend some official work in Delhi and did not reveal that she was going to Delhi to meet the Accused and his family members. It is also borne out from her crossexamination that in fact, all her family members had reserved their train tickets for going to Mathura for 16.12.2011 and Prosecutrix had cancelled her reservation for 16.12.2011 and preponed her programme for reaching Delhi two days prior thereto i.e. on 14.12.2011. Thus, she apparently altered her travel plans without informing her family members and reached Delhi on 14.12.2011, knowing fully well that the Accused and his family members did not reside in Delhi. It is not her claim that the family members of Accused were also coming to Delhi from Moradabad, UP to meet her. It is also apparent on going through the testimony of Prosecutrix that the Accused checked into the hotel Orchid Garden, DBG Road, Delhi on 14.12.2011 in her presence and introduced her as his fiancee to the hotel staff. Even at that time the Prosecutrix did not object to the same.
42. It is also noteworthy that in the course of her crossexamination recorded on 25.09.2014, Prosecutrix 'P.D.' also stated that she had informed her parents that she is going to Delhi on an official tour and the accommodation will be arranged by her office. It has also come on record that she had plans to reach Vrindavan, Mathura on 16.12.2011, for which date her parents had also reserved her train tickets. It is thus obvious that the Prosecutrix reached Delhi on 14.12.2011 and intended to stay there till 16.12.2011. It is not her claim that she had made any reservations for her stay during the period from 14.12.2011 to 16.12.2011. Thus apparently, when the Prosecutrix reached Delhi on 14.12.2011, she had already planned to stay till 16.12.2011. She was introduced by the Accused as his fiancee when they reached hotel Orchid Garden, DBG Road, Delhi. She admittedly raised no alarm or noise when the accused allegedly raped her in the said hotel. Her claim that the Accused forcibly committed rape upon her and also gave her assurance of marriage is indeed selfcontradictory.
43. It is also pertinent to note that as per the testimony of Prosecutrix, the Accused established physical relations with her several times during the aforesaid period despite which she did not make any effort to leave the hotel and she only checked out with the Accused in the morning of 16.12.2011, and not prior thereto. In her crossexamination 'P.D.' also stated that she went to Mathura to meet her Gurji after checking out from the hotel on 16.12.2011 and did not reveal about the incident to anyone.
44. The above conduct of the Prosecutrix thus indicates that the physical relations between her and Accused, were established with her consent. The claim of the Prosecutrix that the Accused had assured her that he will marry her and thus obtained her consent under the said misconception of fact, to my mind, is not sufficient to cover the case within the definition of rape under Section 375 IPC.
45. It is well settled law that a promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90 IPC. In the case of N.Jaladu ILR (1913) 36 Mad 453 relied upon by the Hon'ble Apex Court in Deelip Singh @ Dilip Kumar vs. Stae of Bihar, 2005 SCC (Crl.) 253, it has been held that a representation deliberately made by the Accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly IPC.
46. It is equally well settled that the onus to prove the absence of such consent lies solely upon the Prosecution. In the present case having regard to the evidence led on record, I find that the Prosecution has failed to discharge this onus. There is not even an iota of evidence on record to establish that the accused did not entertain the intention of marrying the Prosecutrix since the very inception or that the consent of the Prosecutrix obtained by him ostensibly on the promise of marriage gave rise to any misconception of fact within the meaning of Section 90 IPC.
47. In fact the testimony of the Prosecutrix itself reveals that the Accused had been telling her that he has not been able to remain in touch with her on account of illness and hospitalization of his mother. Similarly, in the transcript Ex.PW1/PF, Accused is pleading with the Prosecutrix to let his mother recover first.
48. Though the Prosecutrix has also claimed that she contacted one Advocate namely Sh.Yuvraj Singh, who called the accused on 28.02.2012, but Accused flatly told him that he does not know her, yet Mr.Yuvraj Singh, Advocate has neither been cited nor examined by the Prosecution as a witness to substantiate this allegation of the Prosecutrix. There is nothing on record to establish that the Accused from the very beginning did not intend to marry Prosecutrix or that the promise to marriage held out by him was false from its very inception.
49. A perusal of the complaint made by the Prosecutrix at Mahila Thana at Raipur (Mark PW1/PX1) also reveals that the Prosecutrix made the said complaint on the advise of her known persons, who told her that it appears that accused has ditched her and she should report the matter to the police. In the said complaint, the Prosecutrix has herself mentioned that before making any report, she wants to settle the matter with the Accused and that he should be called to the Mediation Centre. Moreover, the Prosecutrix also admitted having sent the text messages Ex.PW1/DA to the Accused after the date of the alleged incident. The transcript Ex.PW1/PE also reveals that the Proesutrix and Accused were saying 'I Love you' to each other in the said conversation.
50. Considering the above evidence in its totality and keeping in view the facts of the case, it is apparent that the Prosecutrix and the Accused had entered into consensual physical relationship. The Prosecution, as aforesaid, has not led any evidence to establish that when the Accused extended assurance of marriage to the Prosecutrix, it was a false promise or that he did not entertain any intention of marrying the Prosecutrix from the very inception. In absence of any cogent evidence to this effect , it cannot be held that the Prosecutrix gave her consent for physical relationship with the Accused under any misconception of fact as per the mandate of Section 90 IPC or that her consent was vitiated on account of any such misconception given to her by the Accused at any point of time.
51. Accordingly, in the light of the above discussion, I am of the considered opinion that the Prosecution has failed to bring home charge for the offence punishable under Section 376 IPC against the Accused Harish Sharma. Accused Harish Sharma S/o Sh.Yadram Sharma is hereby acquitted of the offence punishable under Section 376 IPC. His bail bond stands cancelled. Surety Discharged. File be consigned to Record Room. Announced in the open Court on 31st day of October, 2015.
(Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.