Delhi District Court
State vs . Rohit Tiwari on 12 August, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.36/15.
Unique Case ID No. 02405R0051652015.
State Vs. Rohit Tiwari
S/o Sh. Raj Narayan Tiwari,
R/o Village Kanchoshi Bazar,
Near Manas Inter College,
P.S. Divya Pur,
Distt. Oriya, U.P.
Date of Institution : 06.5.2015.
FIR No.112 dated 09.3.2014.
U/s. 376/420/406 IPC.
P.S. Palam Village.
Date of reserving judgment/Order : 10.8.2015.
Date of pronouncement : 12.8.2015.
JUDGMENT
1. Accused Rohit Tiwari has been facing trial for having committed the offence u/s.376 IPC.
2. The prosecution case is that a complaint typed in Hindi was received in the police station from the prosecutrix namely 'U' (real name withheld in order to conceal her identity) on 14.12.2013. The contents of the complaint, in nutshell, are that he prosecutrix, in the process of purchasing goods from the godown of the accused, developed friendship with him which later on blossomed into a love affair. They started talking to each other on SC No.36/15. Page 1 of 28 phone. They used to meet in the house of the prosecutrix and also outside. The accused had told her that he is unmarried and is residing at Delhi with his maternal aunt (Maami) Smt. Pandey, whereas he is the permanent resident of village Kanchoshi, District Oriya, U.P. The accused alongwith two ladies visited the house of the prosecutrix on 12.12.2012 and introduced them to the prosecutrix as his maternal aunt (Maami) and sister in law (Bhabhi). He told the prosecutrix in their presence that he wants to marry her and has brought them to seek their blessing. Accused's Mami and Bhabhi also told them that they seemed to be a good couple. Same day, accused alongwith prosecutrix left for Mehandipur Balaji for having 'Darshan'. They stayed there in a hotel for the night and the accused committed sexual intercourse with her during the night after pressurizing her. The prosecutrix was married but was residing separately from her husband for the last 17 years. At the instance of the accused, she obtained divorce from her husband with the belief in her mind that accused is going to marry her. Accused committed sexual relations with her between August, 2013 and November, 2013 on the promise of marriage. At the request of the accused, prosecutrix provided financial assistance to him by paying him a sum of Rs.3 Lacs. She paid Rs.1.5 Lacs to him by way of a cheque dated 04.6.2013 and another sum of Rs.1.5 Lacs by way of cheque in the month of September, 2013. In the month of September, 2013, the accused handed over two cheques to the prosecutrix in the sum of Rs.1.5 Lacs and Rs.1 Lac towards repayment of the aforesaid loan but both the cheques got dishonoured on presentation. The accused then disappeared all of a sudden in November, 2013 and the prosecutrix could not trace her. She visited the native village SC No.36/15. Page 2 of 28 Kanchoshi of the accused on 23.11.2013 and met his parents. She was informed that the accused is already married having children. She also came to know that the lady whom the accused had introduced to her as his sister in law (Bhabhi) is in fact his wife. Feeling cheated by the accused, the prosecutrix submitted the said complaint.
3. It is further the case of the prosecution that the prosecutrix had been summoned to the police station on 21.12.2013 where her statement was recorded by WSI Nirmala Devi. Thereafter the case was referred to prosecution branch for opinion as to whether any offence is made out against the accused and if so, what offence. After receipt of the opinion from the prosecution branch, SHO made endorsement on the aforesaid statement of the prosecutrix pursuant to which FIR was registered and the investigation was entrusted to WSI Kailash. She visited the spot of incident and recorded the statements of witnesses. She seized the divorce papers of the prosecutrix, train tickets, cheques in question, postal receipt, copy of statement of account of her bank account etc. from the prosecutrix on 18.3.2014. The prosecutrix was produced in DDU Hospital on 12.4.2014 for medical examination and the exhibits given by the doctor were seized. Her statement u/s.164 Cr.PC was got recorded on 25.4.2014. Accused could not be traced. NBWs were obtained against him which also could not be executed. Accordingly, proclamation u/s.82 Cr.PC was got issued against him. The bail application of the accused was rejected by the Sessions Court but he was granted anticipatory bail by the High Court on 16.12.2014. He was formally arrested by the IO on 17.12.2014. He is stated to SC No.36/15. Page 3 of 28 have made disclosure statement admitting his guilt. He was got medically examined in DDU Hospital and the exhibits given by the doctor were seized. The IO alongwith prosecutrix also visited Mehandipur Balaji and seized the relevant record therefrom.
4. After completion of the investigation, the IO prepared the Charge Sheet and submitted the same to the concerned Ilaqa Magistrate.
5. Upon committal of the case to the court of Sessions, Charge u/s.376 IPC was framed against the accused on 04.7.2015. The accused denied the charges and hence trial was held.
6. The prosecution examined eight witnesses to bring home the guilt of the accused. The accused was examined u/s.313 Cr.PC on 28.7.2015 wherein he denied the prosecution case and claimed innocence. He, however, admitted that there was friendship between him and the prosecutrix and they had visited Mehandipur Balaji together on 12.12.2012. He admitted that he had taken loan of Rs.3 Lacs from the prosecutrix and the two cheques given by him to her towards repayment of the said loan got dishonoured. He further stated that he had told the prosecutrix that he is a married person having two children and the prosecutrix consented to sexual relations with him despite such knowledge. He also stated that the prosecutrix had visited his residence in Delhi couple of tiems and had met his wife as well as his children. He stated that the physical relations between him and the prosecutrix were always consensual.
SC No.36/15. Page 4 of 287. The accused examined his wife as DW1 in his defence.
8. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire record.
9. Ld. APP submitted that it is manifest beyond doubt from the evidence on record that the accused befriended with the prosecutrix and engaged in sexual relations with her on the promise of marrying her whereas he was already married at that time. She submitted that the accused deliberately concealed the factum of his marriage from the prosecutrix in order to exploit her sexually. She would further submit that the prosecutrix was all along under the belief that the accused is going to marry her and was so deeply involved with him that she even handed over the sum of Rs.3 Lacs to him at his request. According to the Ld. APP, the accused has exploited the prosecutrix not only sexually but also financially on the promise and assurance of marrying her knowing fully well that he cannot marry her as he is already married. She submitted that therefore the consent of the prosecutrix to the physical relations with the accused cannot be termed as free and voluntary consent. Her consent has been obtained by the accused on the basis of misrepresentation and misconception and therefore, the acts of physical intercourse between the accused and the prosecutrix tantamount to offence of rape as defined u/s.375 Cr.PC. She argued that the prosecution has succeeded in establishing the guilt of the accused and the accused is liable to be convicted.
10. Per Contra, Ld. Counsel for the accused vehemently SC No.36/15. Page 5 of 28 argued that he is an innocent person and has been falsely framed in this case. He submitted that the prosecutrix used to visit the residence of accused and hence was aware about the marital status of the accused and she engaged in sexual relations with him despite having knowledge that the accused is already married. He submits that admittedly the prosecutrix was married when the sexual relations between her and the accused started and therefore, there was no reason or occasion for her to accept the marriage proposal of the accused. He further argued that the investigation in this case had been faulty and defective in as much as the investigating officer has not recorded the statements of the maternal aunt of the accused and those of the mother as well as son of the prosecutrix which would have established the innocence of the accused. He pleaded for acquittal of the accused.
11. Ld. Counsel for the accused also cited following judgments in support of his submissions :
(i) Prashant Bharti vs. State of NCT - SC (Cri. Appeal No.175 of 2013).
(ii) Vinod Kumar vs. State of Kerala - SC (Criminal Appeal No.821/14 decided on 04.4.2014).
(iii) Alok Kumar vs. State - Delhi High Court (Criminal Appeal No.447/09 decided on 08.5.2015)
(iv)Soni vs. State of Haryana & anr, - Punjab & Haryana High Court (Crl. Misc.No.27354 of 2014 and Crl.
Appeal No.D-1393-DB-2014) decided on
17.11.2014).
(v) Gaurav Maggo vs. The State of NCT, Delhi, - High SC No.36/15. Page 6 of 28 Court of Delhi (Crl. Appeal No.369/14 dated 29.5.2015).
(vi) Uday vs. State of Karnataka, (Criminal Appeal No. 336/96 decided on 19.2.2013).
(vii)Krishan Kumar Malik vs. State of Haryana - SC (Criminal Appeal No.1252/11 arising out of SLP (Crl.) No.8021/09 decided 04.7.2011).
(viii)Surjan & Ors. vs. State of M.P. - SC (equivalent citations : AIR 2002 SC 476, JT 2001 Suppl 2 SC 385, (2202) 10 SCC 214, decided on 13.3.2001).
12. The prosecutrix has been examined as PW6. She deposed that she started buying the goods from accused's godown about four years ago i.e. in the year 2011. She had been residing separately from her husband Sanjay Sharma for the last 17 yeas. During the course of time, she and the accused became friends and the accused started visiting her house. She deposed that the accused told her that he is unmarried and is residing alone at Delhi in the house of his maternal aunt (Maami). He took her to the house of her maternal aunt also on one or two occasions where she met his maternal aunt (Maami) namely Kusum and his sister in law (Bhabhi). She further deposed that the accused came to her house alongwith his maternal aunt and sister in law on 12.12.2012. Accused's maternal aunt and sister in law suggested to her that she should marry the accused and they would be a perfect couple. She accepted the suggestion and expressed her willingness to marry the accused. She told them that she is already married, to which accused's maternal aunt asked her to obtain divorce from her husband. She alongwith accused visited SC No.36/15. Page 7 of 28 Mehandipur Balaji on the same day where they spent night in Shiv Dham Ashram and he established physical relations with her during the night.
13. She further deposed that after a few days, on the request of the accused, she paid him a sum of Rs.1.5 Lacs as he was suffering losses in his tea business. She alongwith accused then went on a pilgrimage to Mahakaleshwar temple, Ujjain, on 10.6.2013. She stated that the accused mentined her name on the railway ticket as Uma Tiwari. Upon return from Ujjain, she and her husband filed a joint petition for mutual divorce whereupon the first motion was granted by the Family Court. A few days thereafter, accused again demanded a sum of Rs.1.5 Lacs from her saying that he is to pay the same to his lawyer in his native village or otherwise, he would be jailed and their marriage would not take place. Accordingly, she paid further sum of Rs.1.5 Lacs in cash to the accused.
14. She further deposed that she and her husband filed second motion petition for mutual divorce in January, 2014 which was also granted. The accused had handed over two cheques in the sum of Rs.1.5 Lacs and Rs.1 Lac respectively to her towards repayment of the loan amount of Rs.3 Lacs but both the cheques were dishonoured. She stated that meanwhile, the accused had committed sexual intercourse with her several times. If she refused to oblige him, he used to tell her that he would not marry her. She stated that the accused came to her house on 01.11.2013 and had sexual intercourse with her and then left for his native village. Thereafter, she could not contact him. She went to meet SC No.36/15. Page 8 of 28 his maternal aunt but she also refused to recognize her.
15. She further deposed that she then visited the native village Kanchoshi of the accused on 23.11.2013. The accused saw her and fled towards fields. She went to his house and met his parents. Accused's mother told her that the accused is already married and showed her the marriage album of the accused pointing therein towards a lady saying that she is the wife of the accused. She was shocked to know that it was the photograph of that lady whom the accused had introduced as his sister in law (Bhabhi) to her. Accused's mother also told her that accused has two children and threatened her not to come there again or otherwise, she would be killed.
16. She then submitted a typed complaint dated 14.12.2013 Ex.PW6/A in the police station. Her statement Ex.PW6/B also was recorded in the police station on 21.12.2013. she was summoned to the police station after about 3 or 4 months and was taken to DDU Hospital for medical examination. She was then produced before a Lady Magistrate in Dwarka Court who recorded her statement u/s.164 Cr.PC which she proved as Ex.PW4/A. She had handed over all the requisite documents i.e. divorce papers, train ticket dated 10.6.2013, cheque no.081847 drawn on Punjab National Bank, Post Office receipt, copy of her Passport pertaining to bank account in Mysore Bank and copies of applications as well as reply to the IO, which were seized vide memo Ex.PW6/C. She also proved certified copy of the judgment and decree of divorce dated 04.1.2014 passed by the Family Court, Dwarka, as Ex.PW6/D. SC No.36/15. Page 9 of 28
17. In the cross examination, she deposed that she had met the accused about three years before filing the complaint in the police station and used to purchase tea of brand 'Today' from him. She had given her mobile number to the accused after about 15 days of their first meeting as he told her that he would send goods to her at her residence and she need not trouble herself in coming to his shop. She stated that their friendship got transformed into love after about two months from their first meeting. They had physical relations with each other two times at her house before the marriage proposal was made to her. She could not say how many times, accused slept in their house before 12.12.2012. Accused used to sleep on the ground floor of her house. Her son used to sleep on the first floor. She used to sleep sometimes with the accused on the ground floor and sometimes with her son on the first floor. She stated that they used to live like a family. Her mother had left her house in October, 2012.
18. She deposed that she had met the accused's maternal aunt about one month before 12.12.2012. On 12.12.2012 the accused alongwith his maternal aunt and sister in law had come to her house at about 12 noon and remained there till 3 p.m. she was present alone in the house at that time. She alongwith accused left for Mehandipur Balaji at about 4.30 p.m. on that day. They had gone to Mehandipur Balaji in accused's car and reached there at about 9 p.m. They spent the night in an Ashram and went for 'Darshan' in the morning. She had told the accused that it would not be proper to have physical relations at the religious place like Mehandipur Balaji but the accused stated nothing will happen and SC No.36/15. Page 10 of 28 he then committed physical relations with her. They did not have any quarrel or any verbal altercation with each other at Mehandipur Balaji. She deposed that she was not forced by anybody to take divorce from her husband. Nobody pressurized her to file second motion petition for mutual divorce and she filed the same voluntarily on her own will. She further deposed that they had left for Ujjain on 11.6.2013 and the accused had booked train tickets.
19. She further deposed that she came to know on 10.11.2013 that the accused has fled from Delhi. She searched for him at various places and also made inquiries from other persons, from whom also accused had taken money. She did not recollect the names of those persons. She searched for the accused in Sagarpur on 11.11.2013 and 12.11.2013. She had boarded a passenger train from Ghaziabad Railway Station upto Divyapur where accused resides and reached there at about 10 a.m. on 24.11.2013. She stated that she got the complaint Ex.PW6/A typed by her lawyer in Dwarka Court. She did not know to whom was the said complaint sent other than the SHO. She denied the suggestion that when the accused's wife came to Delhi, she became aware about the relations of the accused with her and scolded her. She further denied that when accused's wife scolded her, she demanded money from the accused and when the accused expressed his inability to pay money to her, she lodged a false complaint. She deposed that she has not seen the accused's wife. She denied that she had not visited accused's native village.
20. The IO SI Kailash appearing as PW8 has, in her SC No.36/15. Page 11 of 28 examination in chief, described the steps taken by her in the investigation of this case. In her cross examination, she deposed that whenever she visited the residence of the prosecutrix, only her son used to be there alongwith her. She stated that the prosecutrix did not permit her to make inquiry from her son and hence she did not record his statement. She deposed that she had made inquiries from accused's maternal aunt and also recorded her statement. She explained that she did not cite her as a witness in this case as she did not say anything inculpatory against the accused. She further deposed that she has met the accused's wife during the investigation of this case. According to her, accused's wife had come to the police station a few days after the arrest of the accused. She made inquiries from her but did not record her statement. Accused's wife had told her that she was staying at Delhi alongwith accused and the two children in Geetanjali Park and the prosecutrix had visited their residence on one occasion regarding some dispute over money. Accused's wife had also told her that she did not know about the relation of her husband with the prosecutrix. However, she did not say that she had given golden ornaments to prosecutrix as security for repayment of loan by her husband. She also deposed that she had visited address RZ-26P/18A, Gali No.1, Indira Park, Sagarpur, New Delhi, where she came to know that the accused had resided there for some time alongwith his maternal aunt and later on shifted to Geetanjali Park.
21. PW4 is the Ld. M.M. who had recorded u/s.164 Cr.PC Ex.PW4/A of the prosecutrix. She proved her certificate annexed to the said statement as Ex.PW4/B. She has not been cross examined SC No.36/15. Page 12 of 28 on behalf of the accused.
22. It would not be of any use to describe the deposition of other prosecution witnesses as they had only taken part in the investigation of this case alongwith IO. However, I feel it appropriate to mention here what accused's wife had deposed as DW1.
23. She deposed that she alongwith her husband and two children had been residing on rent on the second floor of a house in Geetanjali Park, Palam, New Delhi, since the year 2006. Her husband was into the business of selling tea. They shifted back to their native village Kanchoshi in the year 2013. She further stated that the prosecutrix used to purchase goods from her husband's godown. Her husband used to keep certain goods for sale at the residence also and some customers including the prosecutrix used to take goods from their residence. She stated that the prosecutrix had visited their residence many a times to purchase goods. She used to deliver the goods to the prosecutrix and take payment from her.
24. She further deposed that at the time of shifting back to their native village, they had kept certain goods in their rented house at Delhi. They came back to Delhi in November, 2013 to take back those goods from rented house. That time, her husband's maternal aunt (Maami) namely Kusum Pandey told them that the prosecutrix was making enquiries about her husband Rohit. She called prosecutrix to their house and asked her what the matter was. Prosecutrix told her that she loves her SC No.36/15. Page 13 of 28 husband Rohit and Rohit has also taken some money from her. She told the prosecutrix that they are living happily with each other and have two children also. Prosecutrix replied that she has no difficulty in staying with them in the same house. She further deposed that she was not having any money with her and hence she gave her golden necklace, golden ring, two golden earrings and one golden pendant worth about Rs.2 lakhs in total to the prosecutrix as her husband owed money to her. Thereafter they returned to their village. She further stated that after about 15 to 20 days, prosecutrix visited their village. That time, she and her husband were not present in the village as they had gone to her parental house in Auriya. Her mother in law made a call to them informing them about the arrival of the prosecutrix. They immediately returned to their village but prosecutrix had left already.
25. In the cross examination conducted by the Ld. APP, she deposed that she did not visit the residence of the prosecutrix in the year 2012. She did not know whether her husband had gone out of Delhi on 12.12.2012. She did not know whether her husband had gone to Ujjain in the month of June, 2013 alongwith prosecutrix. She was not in possession of any bill or receipt in respect of golden jewellery, which she had given to the prosecutrix. She stated that she did not take any written acknowledgment from the prosecutrix in lieu of the said golden jewellery. She further deposed that she had quarrelled with her husband when she came to know in November, 2013 about his relations with the prosecutrix. She stayed separately from her husband for about one and a half years and joined him again in SC No.36/15. Page 14 of 28 May, 2015. She stated that the reason for her separation from her husband was his relation with the prosecutrix. She admitted that the name of the prosecutrix was mentioned to her by her husband and for that reason, she knows her name. She further denied the suggestions put to her by the Ld. APP.
26. The case of the prosecution is that the accused represented himself as a bachelor to the prosecutrix and obtained her consent to the physical relations on the promise that he would marry her whereas he was already married to DW1, which fact was deliberately concealed by him from the prosecutrix. The defence raised on behalf of the accused is that the prosecutrix too was married and hence there was no reason or occasion for her to be misled by any promise of marriage of the accused and she also knew that the accused is a married person having children. It was thus sought to be argued that the sexual relations, if any, between the prosecutrix and the accused, were out of her free will and choice and without any deception or misrepresentation on the part of the accused. Thus the issue which arises for consideration is whether the consent of prosecutrix to the sexual relations with the accused was free and voluntary or was obtained by the accused by misrepresentation and on the basis of false promise to marry.
27. The Supreme Court considered this issue at length in case of Uday vs. State of Karnataka, 2003 (1) JCC 506, AIR 2003 SC 1639 and 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 SC No.36/15. Page 15 of 28 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 prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down 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 may 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."
28. Similarly, in Pradeep Kumar @ Pradeep Kumar Verma vs. State of Bihar & anr., (2007) 7 SCC 413, the Supreme Court observed as under :
"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry. We do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in SC No.36/15. Page 16 of 28 such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her."
29. In Deelip Singh @ Dilip Kumar vs. State of Bihar, AIR 2005 SC 203, it has been observed :
"20. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology."
30. The Supreme Court again in Deepak Gulati vs. State of Haryana, Criminal Appeal No.2322/10 decided on 20.5.2013, held as under :
"Consent may be express or implied, coerced or misguided, obtained willingly or through deceit.SC No.36/15. Page 17 of 28
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 mala fide 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 an 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 misrepresentation 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 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 mala fide, and that he had clandestine motives."
31. Thus in view of law laid down by the Supreme Court in the aforesaid judgments, the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love and on the 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 an fact within the meaning of Indian Penal Code. The failure to keep the promise to marry at future uncertain date does not always tentamount to misconception of fact at the inception of a fact itself. The matter would be different if the consent is obtained SC No.36/15. Page 18 of 28 by creating a belief in mind of the prosecutrix that she is already married to the accused. In such a case, the consent would be said to result from a misconception of fact. In each case, the evidence led by the prosecution has to be scrutinized keeping in view the well established legal dogma that the burden is on the prosecution to prove each and every ingredients of the offence, the absence of free consent to sexual intercourse being one of them. It is also to be kept in mind that the consent is an act of reason, preceded by due deliberation wherein the mind ways the good and evil on each side. There is a distinction between mere breach of promise and not fulfilling a false promise. The court must examine whether the prosecutrix had given a consent to sexual intercourse after wholly understanding the nature and consequences of sexual indulgence. There may be cases where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of misrepresentation made to her by the accused. There may be cases where the accused on account of circumstances, which he could not have foreseen or which were beyond his control, was unable to marry the prosecutrix despite having every intention to do so. These cases deserve to be treated differently. An accused can be convicted for rape only if the court reaches the conclusion that his intention was malafide right since the inception of relations and that he had clandestine motives and that he was conscious of the fact that the prosecutrix would not have given the consent to sexual intercourse but for his misrepresentation and deception.
32. The prosecutrix, on her part also, is obliged to satisfy the court that she would not have given consent to the sexual SC No.36/15. Page 19 of 28 intercourse with the accused but for his false promise of marriage and that at that time when promise is made to her, she was free to marry the accused i.e. she was not under any legal bar to solemnize marriage with the accused.
33. In the instant case, as already noted that admittedly the accused was married to DW1 when he befriended the prosecutrix in the year 2012 and their friendship blossomed into love. There is nothing in the cross examination of prosecutrix or in the cross examination of any other witnesses or in the deposition of DW1 to show that the accused had informed the prosecutrix that he is a married person. There is no evidence to suggest that the accused was known to the prosecutrix before their friendship and could have been aware of his marital status. The accused also, in his examination u/s.313 Cr.PC did not assert anywhere that he had told the prosecutrix that he is a married person. Therefore the arguments raised by the Ld. Counsel for the accused that the prosecutrix befriended the accused and had sexual relations with him despite her knowledge that he is a married person, is without any merit and deserves outright rejection.
34. The accused had very candidly stated in his statement u/s.313 Cr.PC that there had been consensual sexual relations between him and the prosecutrix (see - reply to Question No.45). Even otherwise also, the prosecutrix has not been cross examined at all on this point. No suggestion has been given to her in the entire cross examination that the accused did not indulge in sexual relations with her at any point of time.
SC No.36/15. Page 20 of 2835. Hence it is manifest that the accused was a married person when he engaged in sexual relations with the prosecutrix but he had not apprised the prosecutrix of his marital status and had concealed the same from her. The Ld. Counsel for the accused drew my attention to the deposition of DW1 wherein she has deposed that the prosecutrix had visited their residence many a times to purchase goods and she used to deliver goods to the prosecutrix and take money from her, to emphasize that the prosecutrix knew that the accused is a married person. The argument has been noted only to be rejected. This assertion of DW1 has never been put to the prosecutrix in her cross examination. She was the best person to say whether or not she used to visit the residence of the accused to take delivery of the goods from his wife. Even no suggestion has been given in this regard to her in the entire cross examination. She has deposed in the cross examination that she gave her mobile number to the accused after about 15 days of their first meeting as he told her that he would send goods to her residence and she need not trouble herself in coming to his shop. Here it has not been put to her that she has stated this falsely and in fact accused had asked her to take delivery of goods from his residence. Further when the evidence in this regard was to put to the accused in his examination u/s.313 Cr.PC (see - Question No.4), he simply stated that it is incorrect. He has nowhere asserted that the prosecutrix used to visit his residence to receive goods from his wife and knew that he is a married person. This fact has come for the first time in the testimony of DW1 and therefore patently appears to be fabricated and concocted. I feel no difficulty to reject the testimony of DW1 in this regard.
SC No.36/15. Page 21 of 2836. The evidence on record, therefore, clearly establishes that the accused had obtained consent of the prosecutrix to the sexual relations with him deceitfully by concealing the fact that he is a married person. It was for the accused to make the prosecutrix aware about his marital status before engaging in sexual relations with her. The prosecutrix, after getting knowledge that the accused is a married person having children, may not have consented to physical relations with him. The prosecutrix was all along under impression that the accused is an unmarried person and this fact weighed in her mind in consenting to physical relations with him. It is thus manifest that the prosecutrix gave consent to physical relations with the accused under misconception of fact that he is an unmarried person. Her consent is therefore clearly hit by section 90 of the Indian Penal Code and is no consent in the eyes of law. Therefore, the acts of physical intercourse between the accused and the prosecutrix tantamount to offence of rape as defined u/s.375 of IPC.
37. The evidence further establishes the fact that the accused had held out an assurance of marriage also to the prosecutrix. The prosecutrix has consistently mentioned in her typed complaint Ex.PW6/A, in her statement recorded in the police station Ex.PW6/B, in her statement u/s.164 Cr.PC Ex.PW4/A and in her deposition before this court that the accused came to her house alongwith her maternal aunt and sister in law, who suggested the prosecutrix to marry the accused. They told the prosecutrix that she and the accused would make a perfect couple and the prosecutrix accepted the proposal of marriage. All this SC No.36/15. Page 22 of 28 happened in the presence of the accused. She has reiterated the same in her cross examination also. Nothing adverse or contrary has been elicited in her cross examination in this regard. It is therefore evident that the accused may have been feeling difficulty in conveying to the prosecutrix, his intention to marry her and he conveyed the same to her through his maternal aunt and sister in law. The prosecutrix has further deposed that she told them that she is already married to which accused's maternal aunt asked her to obtain divorce from her husband.
38. It is thus limpid that the prosecutrix did not conceal her marital status from the accused. She told him in front of his maternal aunt and sister in law that she is already married and it was suggested to her that she should obtain divorce from her husband. Admittedly, the accused took the prosecutrix to Mehandipur Balaji on the same day i.e. 12.12.2012 where they spent night together in an Ashram and had 'Darshan' of the deity in the morning. They also engaged in physical relations with each other during the night.
39. It is not disputed that the prosecutrix initiated proceedings for obtaining divorce from her husband and ultimately both filed a joint petition for mutual divorce before the concerned Family Court. The first motion for mutual divorce was granted vide order dated 24.6.2013. The prosecutrix had been residing separately from her husband for the last about 17 years before she came in contact with the accused. The only thing which led her to contact her husband and persuade him for filing the joint petition for mutual divorce after such a long period of time SC No.36/15. Page 23 of 28 appears to be the belief in her mind that the accused is going to marry her. No other reason can be fathomed or discerned from the record. This is indicative of the fact that the prosecutrix honestly believed that the accused is going to marry her and therefore proceeded to obtain divorce from her husband.
40. The argument of the Ld. Defence Counsel that the prosecutrix, being a married lady, could not have been mislead by any promise of marriage, has no merit. A married lady, living separately from her husband for as long as 17 years is as susceptible as an unmarried lady. Such a lady is always in need of true love and in search of a dependable partner with whom she may start her life afresh after desertion by her husband. The prosecutrix herein, found a dependable person in the accused. Evidence demonstrates that she has not only accepted marriage proposal from accused's side but acted further upon it by seeking divorce by mutual consent from her husband in order to be able to marry the accused. And all along, she was under the belief that accused is unmarried.
41. The accused has admitted that he had accompanied the prosecutrix to Ujjain on 10.6.2013, though he has disputed the purpose of the visit as mentioned by the prosecutrix. She has stated that they had gone to Ujjain to have 'Darshan' of Mahakaleshwar Shivling whereas the accused asserts in his statement u/s.313 Cr.PC that they had gone there for her treatment as she was having stones in her kidney and he knew that there is a reputed doctor in Ujjain, who treats such kind of ailments. However, intriguingly, this has not been put to SC No.36/15. Page 24 of 28 prosecutrix in her cross examination. Since the deposition of prosecutrix in this regard has remained uncontroverted during her cross examination, it is to be taken that they had visited Ujjain to have 'Darshan' of Mahakaleshwar Shivling. The important thing is that the name of the prosecutrix has been mentioned in the train ticket as U. Tiwari. This fact is not denied on behalf of the accused. The only contention of the accused in this regard is that the train tickets were purchased by the prosecutrix herself whereas the prosecutrix has deposed that the train tickets were arranged by the accused. Be that as it may, the accused was having the knowledge that the name of the prosecutrix has been mentioned as U. Tiwari in the train ticket. He should have objected to the same. However, he did not do so. Therefore, the fact that both the accused and the prosecutrix had gone together on a pilgrimage to Ujjain and the name of the prosecutrix was mentioned upon the train ticket as U. Tiwari, clearly demonstrates that both had agreed to marry each other.
42. It needs note here that the accused in his application for bail dated 23.9.2014 has mentioned that he came in contact with Sanjay Sharma, the husband of the prosecutrix, during the course of his business, became friends with him and he then introduced him to his wife (the prosecutrix). He also has mentioned that he alongwith Sanjay Sharma, Sushil Aggarwal, Pawan Kumar and Amar Singh, used to travel in group to temples at Mehandipur Balaji, Mahakaleshwar Shivling, Ujjain etc. These factual aspects mentioned in the application have remained completely untouched during the trial of this case. The prosecutrix has not been cross examined at all by putting these factual SC No.36/15. Page 25 of 28 aspects to her. Even DW1 does not say anything in this regard in her testimony. It is thus evident that the defence raised by the accused during the course of trial was totally different from the one raised by him in his bail application which goes on to show that he has been concocting false stories in his defence at every step in order to project his innocence.
43. It is further evident from the evidence on record that the prosecutrix came to know for the first time on 23.11.2013, when he had visited the house of accused in his native village Kanchoshi, that he is a married person having children. The visit of prosecutrix to accused's house in the village on the aforesaid date is not disputed on behalf of the accused. Even DW1 has also mentioned about the said visit of the prosecutrix in her testimony. The prosecutrix has explained in her deposition that when she was not able to contact the accused after 01.11.2013 and his maternal aunt refused to recognize her, she was constrained to visit his native village where she came to know about his actual marital status. The prosecutrix has then submitted a typed complaint in the police station on 14.12.2013. The delay of about 20 days in submitting the complaint cannot be termed as fatal to the prosecution case in the facts and circumstances of this case and deserves to be ignored.
44. Upon assessment of overall evidence on record, I am of the opinion that the prosecution has been successful in proving the charge against the accused beyond reasonable doubt. No doubt can be entertained regarding the fact that the accused befriended the prosecutrix and began sexual relations with her on SC No.36/15. Page 26 of 28 the promise of marrying her while concealing from her that he is already a married person having children. The intention of the accused was dishonest right since the beginning. He knew that the prosecutrix may be averse to the sexual relations with a married man and hence told her that he is unmarried. He knew that he cannot marry her but still offered and assured to marry her. The prosecutrix consented the physical relations with the accused on the misconception that the accused is unmarried and is going to marry her. The prosecutrix, though was herself married at that time, had conveyed her marital status in clear terms to the accused in the presence of her maternal aunt and sister in law, who then asked her to obtain divorce from her husband. The prosecutrix not only believed that the accused is going to marry her but acted on this belief by persuading her husband in filing the joint petition for mutual divorce. Thus the consent of the prosecutrix to sexual relations with the accused is a tainted one and is hit by section 90 of the Indian Penal code. It is no consent in the eyes of law. Therefore, the acts of sexual intercourse between accused and the prosecutrix tantamount to rape as defined u/s. 375 of IPC and the accused is liable to be acquitted for the same.
45. The accused has exploited the prosecutrix not only sexually but financially also.
46. The judgments cited by the Ld. Counsel for the accused at the Bar have no bearing on the facts of this case. The factual matrix involved in the present case is totally different from the fact and circumstances of those cases.
SC No.36/15. Page 27 of 2847. Resultantly, the accused is hereby convicted of the offence u/s.376 IPC.
Announced in open (VIRENDER BHAT)
Court on 12.8.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.36/15. Page 28 of 28