Delhi District Court
Sc No: 399/17 State vs . Nitin Shrivastva on 29 November, 2017
SC No: 399/17 State Vs. Nitin Shrivastva
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE- SPECIAL FAST TRACK COURT
SOUTH-WEST, DWARKA COURTS, DELHI
In the matter of:-
S. C. No. 399/17
FIR No. 108/17
Police Station Dabri
Under Section 376 IPC
State
Versus
Nitin Shrivastva
S/o Sh. Devi Prasad Shrivastva
R/o A-Block, 55B, Street No.2
Naseerpur, New Delhi .....Accused
Date of institution 06.07.2017
Judgment reserved on 29.11.2017
Judgment Pronounced on 29.11.2017
Decision Acquitted
Judgment 1 of 14
SC No: 399/17 State Vs. Nitin Shrivastva
JUDGMENT
1. Accused is facing trial on allegations of committing repeated rape on prosecutrix "K" aged about 20 years.
2. Initially FIR in question was registered on complaint of prosecutrix alleging that two years prior to lodging of FIR, she got befriended with Nitin who used to come in her neighborhood to meet his Mausi. On day of Holi festival of 2016, Nitin took her to his house and forcibly established physical relations with her and stated that he would marry prosecutrix. Thereafter, Nitin established physical relations with her many a times on pretext that he will marry her. On 25.02.2017, Nitin took prosecutrix to Hotel Airport and established physical relations with her. Prosecutrix alleged that she took three condoms which they used in her bag to throw it but forgot. Mother of prosecutrix noticed condoms in her bag and then she narrated to her mother about the incidents and her mother called at 100.
Judgment 2 of 14 SC No: 399/17 State Vs. Nitin Shrivastva
3. After registration of case, prosecutrix was medically examined and her statement was got recorded U/s 164 Cr.P.C. Accused was arrested and charge-sheeted. Charge for offence punishable U/s 376(2)(n) IPC was framed against accused. He pleaded not guilty and claimed trial.
4. Prosecution examined 8 witnesses. PW Name of witness Nature of Documents proved witness 1 K Prosecutrix Supported prosecution version and proved her complaint as Ex PW1/A, her medical examination vide MLC as Ex PW1/B, her statement recorded u/s. 164 Cr. P.C as Ex PW1/C and arrest of accused vide memo as Ex PW1/D. 2 M Mother of Supported prosecution case prosecutrix 3 Neelam Mausi of accused Did not support prosecution case deposed that she did notice prosecutrix with accused.
Judgment 3 of 14
SC No: 399/17 State Vs. Nitin Shrivastva
4 ASI Rajkumar Duty Officer Proved FIR & his
endorsement of rukka as Ex
PW4/A & B.
5 Ms. Paridhi Ld MM Recorded statement of
prosecutrix u/s. 164 Cr. P.C
6 Ajay Shulka Hotel Manager Proved that prosecutrix and
accused came to Hotel on
25.02.2017 as per Hotel
record as Ex PW6/A to B.
7 Dr Vinit Doctor Medical Examination of
accused
2 SI Chanderkanta Investigating DD No. 67A made by mother
Officer of prosecutrix as Ex PW8/A,
Recorded statement of
complainant, prepared rukka
as Ex. PW8/B, got prosecutrix
and accused medically
examined and collected their
exhibits, prepared site plans
at instance of complainant as
Ex PW8/K & Ex PW2/L,
arrested accused vide memo
as Ex PW1/D, personally
searched him vide memo
Ex PW8/D and recorded his
disclosure statement as
Ex PW8/E.
Judgment 4 of 14
SC No: 399/17 State Vs. Nitin Shrivastva
5. Accused in statement u/s 313 Cr.P.C, stated that his relationship with prosecutrix was consensual. Prosecutrix is his legally wedded wife. He never established physical relations with her against her consent and was falsely implicated by prosecutrix under pressure from her mother.
6. In defense accused examined Pt. Yash Dev as DW1. He deposed that he solemnized marriage between prosecutrix and accused on 24.09.2017 at Arya Samaj Mandir. DW1 proved marriage certificate as Ex DW1/A and other documents in respect of their marriage as Ex DW1/B to I.
7. It is contended on behalf of accused that there is no evidence to indicate that accused either enticed or established forcible relations with her. It is submitted that testimony of prosecutrix makes it evident that his relationship with prosecutrix was consensual. Thus, accused has not committed any offence and he is entitled to be acquitted.
Judgment 5 of 14 SC No: 399/17 State Vs. Nitin Shrivastva
8. Per-contra, Ld. Addl. PP submits that prosecutrix in all her statements stated that accused not only enticed & confined her but she was raped by him also. It is submitted that testimony of prosecutrix which is reliable and trustworthy establishes guilt of accused and in these facts accused is liable to be convicted.
9. I have heard arguments and perused material on record.
10. Versions of prosecutrix: Prior to deposition of prosecutrix her statement Ex PW1/D was recorded u/s 164 Cr.P.C . It's loose English translation reads as under:
"I have a boy friend. His name is Nitin. His Mausi resides under our house. I got befriended with him through daughter of his Mausi. For one year we only used to meet at his Mausi's house. Next year on Holi he told me that he wanted to have sex and conveyed his wish. He said what is store in future we will see that. On his assurance that he would support me I said yes. On day of Choti Holi we had consensual sex. On next day, he talked to his family about our marriage but his mother did not consent and stated that if he would marry me then do not enter their house. He mentioned me about this. We stated this and decided that his mother might agree later on.
Judgment 6 of 14 SC No: 399/17 State Vs. Nitin Shrivastva
After some days, a theft took place at Mausi's house. Family of her Mausi does not like me because husband of Mausi told me to run away with him as he is not happy with his wife. He told me that he would give me lot of money and told me to reside at Manesar. I told this incident to family of Nitin. They accused me of stealing.
I asked many a times to Nitin to convince his family for our marriage. Nitin kept repeating words of her mother. Nitin stated when thief would be before us then they might agree.
We continued to meet for one year and many times we had physical relations between us. On 25.02.2017 we went to Mahipalpur. Then Nitin kept packet of condom in my bag. I forgot to throw it. On 01.03.2017 my mother found used condom packet. Then out of fear I ran from home and when I told Nitin he also ran with me. We were going to Jaipur. I left a letter for my mother " Sorry, forgive me". My mother asked Mausi of Nitin to call Nitin.
On phone, Nitin told his Mausi that I am not with him. Nitin told me that first he would go nad then I should come.
When I told Nitin to tell his family about our running from home, he slapped me and said that I would do only what he says. I walked to home. Nitin told his Mausi that he did not run with me and now he would not marry me."
Judgment 7 of 14
SC No: 399/17 State Vs. Nitin Shrivastva
11. Prosecutrix in her examination-in-chief has
supported the prosecution version and has testified as under:
"I know accused Nitin .. as his maternal aunt (mausi) used to reside in our building at ground floor. Accused used to come to house of his mausi for meeting her, during that time, we started talking to each other and slowly, gradually became good friends. In the month of March, 2016 on the day of Holi, at about 11 am, accused took me to his home. Then we both had consensual physical relations as accused promised me that he would marry me. Accused established physical relations with me many a times after promising me that he would marry me.
On 25.02.2017, at about 11:30 pm, I went along with accused to Hotel Airport Land, Mahipalpur. Accused used three condoms while establishing physical relations with me. Thereafter, while leaving the hotel, I kept those used condoms in my bag to throw them but I forgot to do so. When I reached home, my mother opened my bag for searching something and found those condoms. Thereafter, I told everything to my mother. Out of fear of my father, my mother disposed off those condoms. Then I lodged the present complaint. Accused on pretext of marrying me established physical relations with me.
12. Relevant extract from cross-examination of prosecutrix reads as under:
Judgment 8 of 14 SC No: 399/17 State Vs. Nitin Shrivastva
I have met parents of accused often. I have never talked to parents of accused regarding my marriage with him nor my parents have approached parents of accused with any marriage proposal. My parents were not aware about my friendship with accused.
When we established physical relations for the first time, accused told his mother that he wanted to marry me but mother of accused flatly refused by saying that if accused would marry me than he will have to leave his house. Accused had informed about this fact to me. But even then we continued with our relationship.
It is correct that if my mother would not have seen the condoms then I would never have lodged the present complaint.
12. Allegation against accused is that accused established physical relations with prosecutrix by obtaining her consent on false pretext to marry her. However, prosecutrix during her cross-examination admitted that accused told her that his mother is against their marriage and had said that if accused would marry prosecutrix than he would have to leave his house.
Testimony of prosecutrix suggests that she was aware that accused himself was unsure of his marriage with her even then she continued her relationship with accused.
Judgment 9 of 14 SC No: 399/17 State Vs. Nitin Shrivastva
14. Prosecutrix in her deposition further admitted that though she met parents of accused but she has never talked to them regarding her marriage with accused nor her parents approached parents of accused with any marriage proposal.
Prosecutrix testified that her parents were not aware about her friendship with accused. Testimony of prosecutrix that no marriage talks were initiated between her and accused belies her claim that she established physical relations with accused under impression that accused would marry her.
13. PW2 mother of prosecutrix testified that for the first time, she came to know that prosecutrix was having an affair with accused when she saw condoms. Previously, she saw them talking to each other and did not suspect any sexual activity between them. Prior to that prosecutrix never told her that she wanted to marry accused or accused had promised her that he would marry prosecutrix.
Judgment 10 of 14 SC No: 399/17 State Vs. Nitin Shrivastva
15. In Deepak Gulati Vs State of Haryana, (2013) 7 SCC 675 Hon'ble Apex Court held as under:
16. This Court considered the issue involved herein at length in the case of Uday Vs State of Karnatka AIR 2003 SC 1639, Deelip Singh @ Dilip Kumar Vs State of Bihar AIR 2005 SC 203; Yedla Srinivasa Rao Vs State of A.P.., (2006) 11 SCC 615; and Pradeep Kumar Verma Vs State of Bihar AIR 2007 SC 3059, and came to the conclusion that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.....
21. 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."
Judgment 11 of 14 SC No: 399/17 State Vs. Nitin Shrivastva
16. It is evident that prosecutrix herself accompanied accused to various places. Before lodging of complaint, prosecutrix made no efforts to involve her parents or parents of accused to initiate marriage talks between her and accused. PW2 (mother of prosecutrix) confirmed that prosecutrix never told her that she wanted to marry accused or accused had promised her that he would marry prosecutrix. Their testimony shows that prosecutrix never had in mind of any marriage proposal nor she shared it with her parents.
14. Nonetheless it is in evidence that prosecutrix got married to accused as per marriage certificate as Ex DW1/A, therefore, her allegation that accused established physical relations with her by making a false promise does not hold good.
15. Facts of the case shows that prosecutrix would not have lodged FIR if her mother would not have seen the condoms Judgment 12 of 14 SC No: 399/17 State Vs. Nitin Shrivastva which she carried home. Prosecutrix at the time of lodging complaint was not aggrieved by false promise of accused rather she lodged FIR after her relationship with accused came in knowledge of her parents. As held in aforesaid judgment, in this as well there is no evidence that at initial stage accused had no intention whatsoever, of keeping his promise to marry prosecutrix.
16. From above stated discussions it emerges that :
i) Prosecutrix was 20 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to.
ii) She of her free will went with accused and established physical relations with him.
iii) Prosecutrix lodged FIR as her mother seen the condoms.
iv) It is difficult to impute to the accused, 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.
v) There is no evidence to prove conclusively that accused never intended to marry the prosecutrix rather accused has married prosecutrix.
Judgment 13 of 14 SC No: 399/17 State Vs. Nitin Shrivastva
17. Conclusion: In the light of aforesaid discussions, it is evident that prosecution has failed to prove charges against accused. Accordingly, accused stands acquitted. His surety is discharged. Bail bond stands canceled. Accused is directed to furnish a personal and surety bond in sum of Rs. 10,000/- under provisions of Section 437-A Cr.P.C which shall remain in force for period of six months.
File be consigned to record room.
Announced in the open court on 29th day of November, 2017.
GAUTAM MANAN Addl. Sessions Judge (SFTC) South-West, Dwarka Courts, Delhi.
Judgment 14 of 14