Delhi District Court
State vs Narender @ Nikhil -:: Page 1 Of 62 ::- on 16 May, 2014
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
State
Versus
Mr.Narender @ Nikhil
Son of Mr.Hari Krishan,
Resident of H.No.196, Village Bajghera,
Gurgaon, Haryana.
First Information Report Number : 53/13
Police Station Uttam Nagar,
Under sections 420, 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 28.03.2013.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 15.04.2013.
Arguments concluded on : 12.05.2014
Date of judgment : 12.05.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr.Umesh Kumar.
Ms.Shubra Mehnidiratta, counsel for the Delhi Commission
for Women.
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Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
FIR No.53/2013, Police Station Uttam Nagar,
Under section 420 and 376 of the Indian Penal Code.
State versus Narender @ Nikhil -:: Page 1 of 62 ::-
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is known to the culprit, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted male adult on the pretext of marriage (who is already married) and whose trust is betrayed by a man in whom she reposes maximum trust so much so as to surrender herself before him into a physical relationship and then he walks out of her life.
Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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PROSECUTION CASE
2. Mr.Narender @ Nikhil, the accused, has been charge sheeted by Police Station Uttam Nagar, Delhi for the offence under sections 420 and 376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that at unknown time a B-456, Hastsasl, J.J Colony, Uttam Nagar Delhi, within the jurisdiction of Police Station Uttam Nagar, he committed rape on the prosecutrix (name withheld to protect her identity) several times under the false promise to marry her and also extorted Rs. 50,000/- from her.
CHARGE SHEET AND COMMITTAL
3. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 28.03.2013 and after its committal, the case was assigned to this Court for 15.04.2013 vide the order dated 12.04.2013 of the learned Sessions Judge.
CHARGE
4. After hearing arguments, charge for offence under sections 376/420 and 384 of the IPC was framed against the accused vide order dated 18.04.2013 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. In order to prove its case, the prosecution has examined as many as 09 witnesses i.e. the Prosecutrix as PW1; HC Hari Ram, the Duty Officer who had recorded the formal FIR of the case, as PW2; Ms.Shanti Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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Devi, mother or prosecutrix, as PW3; Ms. Alexia Tigga, Principal of Govt Girls Senior Secondary School, as PW4; Dr.Manoj, who had medically examined the accused, as PW5; HC Shyam Nandan Kishore, MHCM, as PW6; Ct. Ashok, witness of investigation, as PW7; Dr. Vijay Dabas, who had medically examined the prosecutrix, as PW8 and SI Satywati, the investigation officer of the case, as PW9.
6. The accused and his counsel have preferred not to cross examine PWs 2, 4, 5, 6 and 8 due to which their evidence remains uncontroverted and unrebutted and can be presumed to be admitted as correct by the accused.
7. The prosecution dropped PWs Mr.Bhudev Prasad and Mr.Krishan Lal as their evidence was of repetitive nature, as more specifically elaborated in the statement of the Additional Public Prosecutor dated 13.05.2013.
8. The accused and his counsel admitted the evidence of PWs Dr.Vijay Dabas (PW8) and Dr.Mahima who had medically examined the prosecutrix in the Casualty and the Gynecology Departments and had prepared her MLC submitting that the same may be read in evidence against the accused at the time of final disposal of the case, as is more specifically elaborated in the statement of the counsel for the accused recorded on 05.08.2013 and the order dated 05.08.2013.
Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CRIMINAL PROCEDURE CODE
9. In his statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.), recorded on 19.08.2013, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. He has submitted that the prosecutrix was engaged to one Mr. Pawan who belongs to his village and in collusion, this case has been lodged against him. The accused has preferred not to lead any evidence in his defence.
ARGUMENTS
10. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments filed on behalf of the accused.
11. The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under sections 376, 420 and 384 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
12. The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. There is a delay in lodging of the FIR which otherwise is also without the details. There are several contradictions in the Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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different statements of the prosecutrix. The prosecutrix had turned hostile in a case of gang rape of Police Station Chhawla which shows that she is not a reliable witness. The prosecution has failed to prove that the prosecutrix was working at Gurgaon and that the accused had met her on the bus. When the prosecutrix was supposedly attending her office then she could not have had physical relations between 11 am to 12 noon in the month of July, 2012 and lastly on 07.12.2012 at 6 pm. There is discrepancy in her evidence and bank statement regarding her giving Rs.50,000/- to the accused. There is contradiction in the timing of the tehrir, MLC of the prosecutrix, preparation of site plan, arrest of accused, etc. There are several contradictions in the testimonies of PWs 7 and 9. The FSL report also does not support the prosecution case DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
13. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
14. Under this sphere, I now proceed to test the submissions of both the sides and give findings on the issues involved.
CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS
15. The prosecution case unveils on 30.01.2013, when the complainant/ prosecutrix (PW1) came to the Police Station Uttam Nagar with her mother Ms.Shanti Devi (PW3) and her detailed statement/ complaint (Ex.PW1/A) was recorded. Rukka (Ex. PW9/A) was prepared and sent through Ct. Ashok (PW7) for lodging of the FIR. The FIR (Ex.
Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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PW2/A) was lodged by HC Hari Ram (PW2) who made endorsement on rukka (Ex.PW2/B). On 30.01.2013, SI Satyawati (PW9) took the prosecutrix and her mother to DDU hospital where she was got medically examined by Dr. Vijay Dabas (PW8) in the Casualty and Dr. Mahima (whose evidence is admitted by the accused on 05.08.2013) in the Gyanecology Department vide MLC (Ex. PW8/A). The exhibits of the prosecutrix were seized vide seizure memo (Ex.PW7/X). The prosecutrix pointed out the place of occurrence and the site plan (Ex PW9/B) was prepared at the instance of prosecutrix. On identification of the prosecutrix, the accused Mr.Narender @ Nikhil was arrested from a single room accommodation in Kachi colony, Deen Pur Colony near Deenpur Village, Najagarth vide arrest memo (Ex. PW1/B) and his personal search was taken vide personal search memo (Ex PW7/A). Copy of School Leaving Certificate (Ex. PW1/E) of the prosecutrix was seized vide seizure memo (Ex.PW1/C). Ms. Alexia Tigga (PW4) produced the admission register (Ex. PW4/A), certificate regarding date of birth of the prosecutrix (Ex.PW4/B) and computer print out of students details (Ex. PW4/C) showing the date of birth of the prosecutrix as 10.04.1994. The accused was taken by SI Satyawati (PW9) and Ct. Ashok (PW7) to DDU hospital where he was medically examined by Dr. Manoj (PW-5) vide MLC (Ex.PW5/A). His blood and other samples were taken by the doctor and were seized by the IO vide seizure memo (Ex. PW7/B). The prosecutrix handed over copy of her pass book (Ex PW1/F) which was seized vide seizure memo (Ex. PW2/D). On 30.01.2013, IO/SI Satywati deposited with HC Shyam Nandan Kishore (PW6) MHCM- eight sealed pullandas pertaining to the prosecutrix, three sealed pullandas pertaining to the accused and two Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
FIR No.53/2013, Police Station Uttam Nagar, Under section 420 and 376 of the Indian Penal Code.
State versus Narender @ Nikhil -:: Page 8 of 62 ::-
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sample seals of DDU hospital vide serial no. 4056 in register no. 19 (Ex. PW6/A). On 01.01.2013 nine sealed parcels along with sample seals were taken from the malkhna by SI Satyawati vide RC no. 22/21/13 (Ex. PW6/B) and deposited in the office of FSL vide acknowledgement (Ex. PW6/C). The exhibits of this case were examined by the FSL expert Ms. Seema Nain, Senior Scientific officer, Biology, vide her detailed FSL report (Ex.PW9/C).
16. As per the allegations of the prosecution, at unknown time at B-456, Hastsal JJ Colony, Uttam Nagar, Delhi, accused Mr. Narender @ Nikhil committed rape on the prosecutrixaged about 19 years several times under the false promise to marry her and also extorted Rs. 50,000/- from the prosecutrix.
IDENTITY OF THE ACCUSED
17. There is no dispute regarding the identity of the accused Mr.Narender @ Nikhil who has been identified by PW1-the prosecutrix, PW3-Ms.Shanti Devi, mother of the prosecutrix as well as the police witnesses of investigation. Accused is also named in the FIR (Ex.PW2/A) as well as the complaint of the prosecutrix (Ex.PW10/A).
18. Therefore, the identity of the accused stands established.
AGE OF THE PROSECUTRIX
19. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. During her evidence on 13.02.2013, the prosecutrix Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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has given her age as 19 years. In her MLC dated 30.01.2013 (Ex.PW8/A), she has disclosed her age as 19 years. PW4 has deposed that as per the school record, the date of birth of the prosecutrix is10.04.1994. As per the prosecution, she was a major at the time of the alleged incident.
20. Therefore, it is clear that the prosecutrix was a major at the time of incident.
VIRILITY OF THE ACCUSED
21. PW5, Dr.Manoj, had medically examined the accused and has proved the MLC of the accused (Ex.PW5/A). He has not been cross examined by the accused.
22. It is mentioned in the MLC of the accused (Ex.PW5/A) that "There is nothing to suggest that pt can't perform sexual act".
23. Even on physical examination, the doctor has found that the secondary sexual character is well developed.
24. Therefore, it is clear that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX
25. PW8, Dr.Vijay Dabas, had medically examined the prosecutrix in the Casualty and has proved her MLC (Ex.PW8/A). She was referred to Gynae Emergency where she was medically examined by Dr.Mahima who had Sessions Case Number : 96 of 2013.
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also taken the samples pertaining to the prosecutrix.
26. The accused and his counsel admitted the evidence of PWs Dr.Vijay Dabas (PW8) and Dr.Mahima who had medically examined the prosecutrix in the Casualty and the Gynecology Departments and had prepared her MLC submitting that the same may be read in evidence against the accused at the time of final disposal of the case, as is more specifically elaborated in the statement of the counsel for the accused recorded on 05.08.2013 and the order dated 05.08.2013.
27. It is clear from the MLC of the prosecutrix (Ex.PW8/A) that the prosecutrix had told the doctor in the history that "sexual assault by her friend (Narender)-a Bus Driver with her will 15-20 times as he promised her for marriage & Now he refused for marriage. Last sexual assault 1½ mth back (in Dec.12)".
28. The prosecutrix did not have any sign of any external injury. She was conscious, oriented. The hymen appeared torn. Her blood and other samples were taken.
29. It has been argued on behalf of the accused that as there is no medical evidence against the accused, it indicates that he has been falsely implicated in this case. She does not have any fresh injury on her body and had she been raped, there would have been injuries on her body and private parts.
30. However, this contention is not tenable as the medical evidence is Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. It is evidence of the prosecutrix or the eye witness which is of utmost importance and the judgment is mainly based on that evidence.
31. It cannot be ignored that as per the evidence of the prosecutrix, she last had physical contact with the accused about 1 ½ months earlier in December, 2012 while the prosecutrix was medically examined on 30.01.2013.
32. In such a situation, there could not have been any injury on her body and private parts due to lapse of time.
33. Otherwise also, medical and forensic evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. It is evidence of the prosecutrix which is of utmost importance and the judgment is mainly based on her evidence.
FORENSIC EVIDENCE
34. The FSL report prepared by Ms.Seema Nain, Senior Scientific Officer (Biology) (Ex.PW9/C) proved by IO SI Satywati (PW)) shows that human semen was detected on the exhibits '2', '4' and '8' i.e. cervical slide, vaginal slide, one dirty underwear, all pertaining to the prosecutrix. Blood was not detected on the exhibits of the prosecutrix taken in her internal gynecological examination.
Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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35. It has been argued on behalf of the accused that as there is presence of human semen in the exhibits of the prosecutrix, although the alleged physical relations of the prosecutrix with the accused were in December, 2012 about 1½ months earlier to her medical examination, the same shows that the human semen detected was not of the accused. The prosecutrix must have had physical relations with some other man.
36. However, this contention is not tenable as although the FSL reports do not help the prosecution in any manner but it cannot be ignored that the prosecutrix was medically examined after a long time of the alleged last physical contact with the accused. If she had any physical relations from December, 2012 till 30.01.2013 with some other man, the same does not indicate in any manner that the accused has not committed any offence. It may be mentioned here again that the medical and forensic evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted.
DELAY IN FIR
37. The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.
38. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be Sessions Case Number : 96 of 2013.
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satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
39. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
40. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
41. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is Sessions Case Number : 96 of 2013.
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satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
42. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."
43. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
44. The Hon'ble High Court of Madhya Pradesh in the judgment Sessions Case Number : 96 of 2013.
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reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"
45. It is claimed by the accused that as the FIR (Ex.PW2/A) has been lodged on 30.01.2013 at 13:45 hours while the allegations made by the prosecutrix in her complaint dated 30.01.2013 (Ex.PW1/A) are that at time not disclosed, the accused had physical relations with her on the pretext of marriage several times. The delay in lodging of the FIR has been not explained by the prosecution as the physical relations allegedly were made much prior to the lodging of FIR.
46. The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the prosecutrix was under the impression that the accused would marry her and kept waiting. She had given her complaint (Ex.PW1/A) to the police on 30.01.2013 when the accused refused to marry her and then the FIR was lodged.
47. I find on careful perusal of the file that as per the complaint, Ex.PW1/A which is made on 30.01.2013, the dates of the first and last Sessions Case Number : 96 of 2013.
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offences i.e. physical relations on a false promise of marriage are not mentioned. However,the prosecutrix in her MLC (Ex.PW8/A) dated 30.01.2013 has told in the history that she had sexual relations with the accused for last time about 1½ months ago and it was in December, 2012.
48. The prosecutrix, in her examination in chief before the Court, has deposed that the first incident was in the month of June, 2012. In her cross examination, she has deposed that the accused had physical relations for the last time on 07.12.2012.
49. She had been told by Mr.Raju, a friend of the accused, that the accused had married another girl and had taken her to Deen Pur, Najafgarh.
50. As regards the period w.e.f. June, 2012 till December, 2012 is concerned, it may be mentioned that during this period as there was an alleged promise to marry, so there was no occasion for the prosecutrix to make a complaint against the accused and therefore, it can be said that there is no delay in lodging of the FIR.
51. The prosecution has tried to justify the period w.e.f. December, 2012 till 30.01.2013 (date of FIR) by claiming that the prosecution verified about the marriage of the accused with another girl and then she went to the Police Station Uttam Nagar and made the complaint.
52. As long as the commitment of marriage subsists, relationship between the parties could not be described as constituting the offence of Sessions Case Number : 96 of 2013.
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rape under section 376 IPC, it was only after the accused had declined to marry with prosecutrix, be different dimension came to be attached to the physical relationship, which had legitimately continued June, 2012 to December, 2012. Things changed when the accused declined to marry her. After he declined, without any delay prosecutrix, verified about the factum of marriage of the accused with another girl and on the refusal of the accused to marry her, without any further delay, the prosecutrix referred the matter to the police and hence it would not be possible to hold that any doubt can be said to have created in the version of the prosecutrix, merely on account of delay in the registration of the first information report.
53. Therefore, it can be said that the FIR was lodged without any delay.
STATEMENTS OF THE PROSECUTRIX
54. PW1, the prosecutrix, has deposed that she had joined a private job at Manesar in a company JSN on 15.06.2012. She used to travel to office office from her residence at Uttam Nagar in the company's bus. Accused Narender @ Nikhil (who has been correctly identified by the prosecutrix through the screen) also used to travel in the same bus. Accused intended to talk to her in the bus for which she refused initially but gradually the accused developed friendship with her. They exchanged their phone numbers and we started talking to each other on phone. Accused expressed his desire to marry her and therefore, he wanted to meet her mother. In the month of June, 2012, he came to the residence of the prosecutrix and met her mother and told mother of the prosecutrix that he wanted to marry the Sessions Case Number : 96 of 2013.
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prosecutrix and on which her mother replied that she would first talk to other family members and thereafter would respond to him. In the month of June, 2012, one day when the prosecutrix was alone in the house of her grand parents, the accused came there and asked the prosecutrix to have physical relations with him, for which she refused and he told her that they were about to marry each other and thereafter he had sexual relations with her without her consent. He had sexual relations with the prosecutrix number of times on the pretext of marrying her. On 04.07.2012 few boys in a vehicle Echo Car came there and forcibly picked the prosecutrix in their vehicle and 6 boys raped her in the car and she immediately telephoned the accused because she wanted to narrate to him the entire incident but he did not receive her call. Thereafter, the prosecutrix called the police at No. 100 and an FIR was registered at Police Station Chhawala. Then the accused came to know about the incident from somebody else. He called the prosecutrix on her mobile phone informing her that he was going to Haridwar for taking Kanwar and he would meet the prosecutrix on his return from Haridwar and after about 15 days of this, he came to the house of her grand parents where the prosecutrix was present and she narrated the entire incident happened with her. The prosecutrix specifically asked him whether he would marry her or leave her and on which he replied that he would still marry her and also wanted to meet her grand parents. He also had a talk with her grand parents regarding marriage with the prosecutrix.
Thereafter, he went to her native village at Bareily and informed all the relatives of the prosecutrix that he wanted to marry her. The prosecutrix and her maternal grand mother had also accompanied him to their village at Bareily. When they came back to Delhi from Bareily, the prosecutrix Sessions Case Number : 96 of 2013.
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received a notice from the Court in the above said rape case. He advised the prosecutrix to close the said case as he wanted to marry her. He told her that he would not accompany her to the Court on each and every date and at his instance, the prosecutrix did not depose in the Court against the accused persons and therefore, all the accused persons were acquitted. He also started demanding money from the prosecutrix and she started withdrawing the money from her saving bank account of Canara Bank at Uttam Nagar. Sometimes she withdrew Rs.10,000/-, sometimes Rs. 11,000/-, sometimes Rs.6,000/- and so on. In total, she had given a cash of Rs.50,000/- to him after withdrawing the same from her bank account. The prosecutrix told him that she was not having much balance in her account now but he stated that he was not bothered about the same and he wanted money from her. Thereafter, he started avoiding her and started abusing her and when the prosecutrix asked him to marry her, he refused for the same stating that "sab jagah tumhare jhande garh gaye hain or tumhara rape ho gaya hai". Accused told her that he was facing his trial in one murder case and there were chances that he might go to the jail on 04.01.2013. He further stated that if needed she should help him in getting him released from jail after spending Rs. 1,00,000 - Rs.1.5 lacs. Thereafter, she made efforts to contact the accused on his mobile phone but the same was switched off. She felt that accused has changed his mobile number. After few days, one Mr.Raju, friend of accused, telephoned her informing her that the accused had not gone to Jail in connection with the murder case and he was speaking lie with me. Mr. Raju also told the prosecutrix that the accused had married one other girl on 23.10.2012. Mr. Raju had taken the prosecutrix to the house of the accused at Deen Pur, Najafgarh where he Sessions Case Number : 96 of 2013.
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was living with his wife but he did not met the prosecutrix on that day. Thereafter, she went to Police Station Uttam Nagar and lodged a complaint (Ex.PW1/A) against the accused. From the Police Station, she was taken to DDU hospital for her medical examination. She had taken the police to the house of her maternal grand parents where accused had committed rape with her. Police had prepared the site plan (Mark A later exhibited as Ex.PW9/B) at her instance. Accused was arrested by the police vide arrest memo (Ex-PW1/B). During investigation, she had handed over photocopy of the school leaving certificate (Ex.PW1/E) as a proof of her age to the police and same was seized by the police vide seizure memo (Ex-PW1/C). She had also submitted the photocopy of her pass book of her bank account at Canara Bank (Ex-PW1/F) to the police for showing the withdrawal of money from her bank on different dates. Same was seized vide seizure memo (Ex-PW1/D). The Ladies Panty (Ex. P-1) was taken by the doctor at the time of her medical examination. She wanted the accused to return the money which he has taken from me time to time which may total to about Rs. 50,000/- to Rs. 60,000/-. She has prayed that the accused may be punished for the offence he has committed against her.
55. In her complaint (Ex.PW1/A), the prosecutrix has leveled similar allegation.
56. Before coming to the factual matrix, briefly the law regarding physical relations on a false pretext of marriage is required to be elaborated briefly.
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57. In the case reported as Uday v. State of Karnataka, AIR 2003 SC 1639, the Hon'ble Supreme Court has 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 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 done 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 must 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."
58. In the case reported as Sujit Ranjan v State, 2011 LawSuit (Del) 601, the Hon'ble Delhi High Court has held that:
"Legal position which can be culled out from the judicial pronouncements referred above is that the consent given by the prosecutrix to have sexual intercourse with whom she is in love, on a promise that he would marry her on a later date, cannot be considered as given under "misconception of fact". Whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under " misconception of fact " depends on the facts of each case. While considering the question of consent, the Court must consider the evidence before it and the surrounding circumstances before reaching a conclusion. Evidence adduced by the prosecution has to be weighed keeping in mind that the burden is on the prosecution to prove each and every ingredient of the offence Prosecution must lead positive evidence to give rise to inference Sessions Case Number : 96 of 2013.
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beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception and that promise made was false to his knowledge. The failure to keep the promise on a future uncertain date may be on account of variety of reasons and could not always amount to " misconception of fact " right from the inception."
59. In the case reported as Deepak Gulati v State of Haryana, (2013) 7 SCC 675 : 2013 Law Suit (SC) 442 , the Hon'ble Supreme Court has held that:
"Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. 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 malafide 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 any 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 mis- representation 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 malafide, and that he had clandestine motives. 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.
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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." Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirely, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."
60. Thus, in Uday's case (supra) and Deepak Gulati's case (supra), the Hon'ble Supreme Court laid down the law that if the prosecutrix is matured to understand the significance and morality associated with the act, she was consenting to and that she was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor and also that if 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 and further that if there is any evidence to prove conclusively, that the appellant never intended to marry with the prosecutrix, the accused be given benefit of doubt.
61. In the case reported as Kuldeep Tyagi v The State NCT of Delhi, 2013(2) JCC 840, it was observed that it was never the case of the prosecutrix that she ever insisted the accused to marry her. Thus, it was not a case of refusal to marry, despite promise, hence, not relevant.
62. In the judgment reported as Nikhil Parashar v. State of Delhi, 2010 (1) JCC 615, it was observed as follows:
"If I take the view that sexual intercourse with a girl, in the facts and circumstances such as in the present case, does not amount to Sessions Case Number : 96 of 2013.
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rape, it will result in unscrupulous and mischievous persons, taking undue advantage of innocent girls by promising marriage with them, without having any intention to do so, re-assuring the girl and her family by making the two families meet each other and formalize the matter by ceremonies, such as an engagement, persuading the girl to have sexual intercourse with him by making her believe that he was definitely going to marry her and then abandoning her, after robbing her of what is most dear to her. A case where the girl agrees to have sexual intercourse on account of her love and passion for the boy and not solely on account of the misrepresentation made to her by the boy or a case where a boy, on account of circumstances, which he could not have foreseen or which are beyond his control, does not marry her, despite having all good intentions to do so, has to be treated differently from a case, such as the present one, where the petitioner since the very inception had no intention of marrying the prosecutrix to whom he was a complete stranger before he met her to consider the proposal for marriage with her."
63. In the case reported as Karthi @ Karthick v State of Tamil Nadu, Crl. Appeal No. 601 of 2008 decided on 01/07/2013, AIR 2013 SC 2645, the facts were that the accused used to tease the prosecutrix and one day finding her alone in her house committed sexual intercourse forcibly and then promised to marry her and requested that she should not disclose this fact to anybody. Thereafter they both were engaged in consensual sex at different places and in all these meeting the accused swore that he would marry with the prosecutrix. However one day on 05.10.2003, both the prosecutrix and accused gone in a temple where she requested the accused to marry her but he refused and on his refusal, she divulged the entire facts to her family members. Panchayat was held in village and the accused was summoned there and persuade to marry with prosecutrix but he refused to marry the prosecutrix and then the prosecutrix lodged a report.
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64. The Hon'ble Supreme Court after considering the case law laid down in (Uday's case) held that the first sexual intercourse was forceful and thereafter the subsequent acts of sexual intercourse, were actions of actively cheating her, by giving her the impression that he would marry her. The occurrence at the Murugan temple, is of significant importance, where he left the prosecutrix when he was asked to marry her. Hence the court held that the sexual intercourse by the accused with the prosecutrix was not consensual as obtaining consent by exercising deceit, cannot be legitimate defence to exculpate an accused.
65. The judgment of the hon'ble Supreme Court in State of U.P. Vs. Naushad, Criminal Appeal No.1949 of 2013 arising out of SLP (CRL.) No.5390 of 2008, decided on 19.11.2013, was a case where the prosecutrix had become pregnant due to the physical relations with the accused, who was also related to her. The accused had admitted before two prosecution witnesses who were functioning as Panchayat that he had committed sexual intercourse and promised to marry her but he absconded despite the promise made before the Panchayat. He had even offered money to her. That shows that the accused had no intention to marry her right from the beginning and committed sexual intercourse totally under the misconception of fact by prosecutor that he would marry her.
66. Thus, on analyzing the law laid down by the Hon'ble Superior Courts it appears that the intention of the accused at the time of entering into a relationship is to be seen by the court as to if he really intended to marry the prosecutrix or he merely made the promise to get sexual favours from the Sessions Case Number : 96 of 2013.
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prosecutrix. If the facts suggest that the accused genuinely wished to marry prosecutrix but it could not materialize due to reasons beyond his control, then in such an event no offence could be made out. However, on the contrary, if he had no intention to marry the prosecutrix since beginning then his case would be squarely covered within the ambit of offence under section 376 IPC.
67. Turning to the present case, on carefully scrutiny of her different statements, it transpires that the prosecutrix has made consistent and similar statements to the police and before the Court.
68. The counsel for the accused has argued that the prosecutrix has failed to show that she was employed and working at Manesar and therefore, her story from the very beginning is false.
69. I find that the prosecutrix has deposed in her cross examination that "I do not have the letter of appointment and the identity card of JSN company at Manesar where I was working till about one year ago but I have a pay slip which I can produce, if required on next date of hearing." However, the accused and his counsel did not ask her to produce her pay slip which indicates that the accused impliedly admitted about the job of the prosecutrix. Here, it may be mentioned that the issue before this Court is not whether or not the prosecutrix was working at Manesar, Gurgaon but the question is whether or not the accused had physical relations with her on a false promise of marriage.
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70. The accused has denied that he was not a bus conductor on the bus which the prosecutrix used to take for going to her work at Manesar. However, this contention appears to be wrong, especially in view of the suggestion given to the prosecutrix in her cross examination "It is correct to suggest that the accused was a conductor in a bus in which I used to travel to my office at Manesar." This suggestion clearly indicates that the prosecutrix used to take a bus for going to Manesar and the accused was a bus conductor on the same bus. This further indicates that the claim of the prosecutrix that she had met the accused on the bus on her way to her work at Manesar is correct. The fact that she did not remember the registration number of the bus is immaterial as it is practically not possible to remember the same after so many months.
71. The counsel for the accused has, next, argued that the accused has never visited the house of the grandparents as well as the parents of the prosecutrix and the prosecutrix has not been able to tell when the accused had visited her grand mother's house when she has deposed in her cross examination that "I do not remember the exact date when I visited the house of the accused but it was after he had visited my mother and discussed marriage." However, this part of the deposition strengthens the case of the prosecution that the accused had indeed visited the house of the grand mother of the prosecutrix as well as the house of the mother of the prosecutrix. The prosecutrix has also categorically deposed in her examination in chief that "One day when I was alone in the house of my grand parents, accused came there and asked me to have physical relations with him, for which I refused." This part of her testimony Sessions Case Number : 96 of 2013.
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remains uncontroverted which indicates that the accused had indeed visited the house of the grand parents of the prosecutrix.
72. The counsel for the accused has further argued that if the prosecutrix was away to her office then it was not possible for the accused to have had physical relations with her during her duty hours. The prosecutrix has deposed in her cross examination that "I do not remember the exact date but it was in the month of July, 2012 when accused had established physical relations with me for the first time and it was in the house of my maternal grand mother (Nani). It was about 11.00 a.m - 12.00 noon. The accused had physical relation with me for the last time on 07.12.2012 at about 6.00 p.m in the house of my maternal grand mother.......I used to leave for my office at 6.00 a.m and returned at 8.00 p.m." However, it is also clear from the evidence of the prosecutrix as well as the questions put to her on behalf of the accused, that she has nowhere stated that it was only on working days that the accused had physical relations with her. The inference from her above evidence is that it was on the days that the prosecutrix did not go to her office or on holidays that the accused had physical relations with her from 11 am to 12 noon or 6 pm, as deposed by her.
73. The counsel for the accused has also argued that the evidence of the prosecutrix is not believable as she has already turned hostile in a case of gang rape due to which all the accused in that case were acquitted. He has also filed the certified copies of the chargesheet in FIR number 147/12 Police Station Chhawla, under sections 365/376 (g)/34 IPC titled as State Sessions Case Number : 96 of 2013.
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versus Braham Prakash and others, judgment dated 07.01.2013, order sheet dated 07.01.2013. The Additional Public Prosecutor has countered the same submitting that it was at the instance of the accused that the prosecutrix had turned hostile in that case as he had told her that he would marry her after the case is closed.
74. The prosecutrix in her examination in chief has deposed that the accused advised her to close the said case as he wanted to marry her. He told her that he would not accompany her to the Court on each and every date and at his instance, the prosecutrix did not depose in the Court against the accused persons and therefore, all the accused persons were acquitted. She has clarified the situation further in her cross examination by deposing that "I was told by accused Narender that he would get Rs. 2.5 Lacs for me in the other rape case but he has himself taken that amount and has not given any money to me. It is wrong to suggest that accused of that case i.e FIR no. 147/12, PS Chhawla and their families had offered Rs. 2.5 Lacs to me for turning hostile in that case Vol. accused Narender @ Nikhil had given me this suggestion. I had turned hostile in that case as accused Narender @ Nikhil had told me that in case I turned hostile, he would marry me."
75. It is clear from the evidence of the prosecutrix that the contention of the counsel for the accused is not tenable that as the prosecutrix had turned hostile in another case, her evidence is not reliable. It was only at the instance of the accused that she had resiled. Even otherwise, it may be mentioned here that the conduct of the prosecutrix in another case is of no Sessions Case Number : 96 of 2013.
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consequence in this case as it is (mis) conduct of the accused which is under scrutiny in this case and not of the prosecutrix.
76. The Additional Public Prosecutor, relying upon the judgments reported as Karthi @ Karthick v State of Tamil Nadu, Crl. Appeal No. 601 of 2008 decided on 01/07/2013, AIR 2013 SC 2645 and State of U.P. Vs. Naushad, Criminal Appeal No.1949 of 2013 arising out of SLP (CRL.) No.5390 of 2008, decided on 19.11.2013 has argued that the prosecutrix was under a misconception of facts and her consent for physical relations was obtained by misrepresentation and fraud.
77. Here, it may be mentioned that it is important to understand what consent implies and what is consent on misconception of facts.
78. An argument has been raised by the Additional Public Prosecutor that the accused on the pretext of love and promise to marry established a physical relationship with the prosecutrix which amounts to rape as this is obtaining the consent of the prosecutrix by fraud and incitement which neither voluntary nor free. Had the prosecutrix known that the accused would not marry her, she would not established physical relations with him.
79. On the other hand, it had argued by the counsel for the accused that the prosecutrix never had physical relationship with the accused.
80. The crucial expression in section 375 of the IPC which defines rape as against her will. It seems to connote that the offending act was despite Sessions Case Number : 96 of 2013.
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resistance and opposition of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained in Section 90 which reads as follows:
"Consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all."
81. Jowitts Dictionary on English Law, Words and Phrases, Permanent Edn. explains "consent" as follows:
"Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent is obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of mind."
82. In Words and Phrases, Permanent Edn., Vol.8-A, the following passages culled out from certain old decisions of the American Courts are found:
".....adult females understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent."
83. Here, it would be necessary to mention that in the case reported as Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC (Cri) 1448, it has been observed that:
"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 Sessions Case Number : 96 of 2013.
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to marry we do not know when. If a full grown girl consents to an act of sexual intercourse on a promise of marriage and continues to indulge in 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 unless the Court can be assured that from the very inception the accused never really intended to marry her."
84. Similar observations have also been made in the judgments reported as Pradeep Kumar Verma v. State of Bihar & anr., AIR 2007 SC 3059; Jyotsana Kora v. The State of West Bengal and anr., Manu/WB/0364/2010; Deelip Singh alias Dilip Kuamr v. State of Bihar, (2005) 1 SCC 88; Uday v. State of Karnataka, (2003) 4 SCC 46 and Naresh Kumar v. State (Govt. of NCT) Delhi, 2012 (7) LRC 156 (Del).
85. When a girl, a major, willfully has physical relations with the accused on the promise to marry on an uncertain date, it cannot be said that it is a misconception of fact or that her consent has been obtained by fraud. Then it is clear that the prosecutrix accepted whatever physical relationship was there with her free consent.
86. In the present case, it is clear that that the consent of the prosecutrix on the promise to marry can be said to be under a misconception of fact as she was not told by the accused that he was already married (as admitted by the accused in his statement under section 313 of the Cr.P.C.). It is also clear that the accused never had any intention to marry the prosecutrix since the very beginning of their friendship and relationship since he was already married and could not have married another girl during the subsistence of Sessions Case Number : 96 of 2013.
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his marriage.
87. Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix 'against her consent'. How is 'consent' defined? Section 90 of the IPC defines consent known to be given under 'fear or misconception' which reads as under:- "90. Consent known to be given under fear or misconception -
A consent is not such consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
88. Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated. It cannot be said that the alleged consent said to have obtained by the accused was voluntary consent and the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is borne out from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix.
89. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent.
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90. Section 114-A of the Indian Evidence Act, 1872 provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, alongwith the provisions of Section 90 of the Act 1872. Section 90 of the Act 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.
91. The judgments reported as Uday v. State of Karnataka, AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059, observe 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.
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92. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. 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 mis-representation 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.
93. The counsel for the accused has further argued that the prosecutrix has although denied her consent in physical relations with the accused but her mother, PW3, has deposed that the prosecutrix had told her that she had physical relations with the accused with her consent. It must be Sessions Case Number : 96 of 2013.
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remembered here that it is not the case of forced rape but it is a case on misconception of facts and misrepresentation by the accused that he would marry the prosecutrix and on this assurance he obtained her consent for the physical relations. If the false promise of marriage was not there, the prosecutrix would not have given her consent for physical relations with the accused. Therefore, the consent of the prosecutrix was obtained on false pretext of marriage and assurance given by the accused that he would marry her. In such a situation, the mother of the prosecutrix was not wrong in saying that the prosecutrix had told her that she had physical relations with the accused with her consent.
94. It can be seen from the evidence of the prosecutrix that she has consistently deposed that the accused travelled in the same bus as her when she went to her office at Manesar, he befriended her and then on an assurance of marriage, he had physical relations with her several times. She had later come to know that the accused was married. Nothing material has come forth favourable to the accused in her lengthy cross examination nor has the accused been able to shatter the veracity of her testimony.
95. It is also crystal clear that the consent given by the prosecutrix to physical relations with the accused was not voluntary and it was given under misconception of fact. Prosecution has been able to show by leading positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception since he was already married and that promise made was false to his knowledge.
Sessions Case Number : 96 of 2013.
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96. It is an admitted position that the accused did not marry the prosecutrix. It is also proved that the accused had physical relations with the prosecutrix several times between June, 2012 to 07.12.2012.
97. Admittedly, the accused got married to one Ms.Rekha on 03.11.2011 (answer to question number 8 in the statement of the accused under section 313 of the Cr.P.C.). This means that when the accused had met the prosecutrix, promised to marry her and had physical relations with her for the first time in the month of June, 2012, he was already married and he was fully aware and knew that he could not have married the prosecutrix. His intention to marry the prosecutrix was never there and he only had a malafide intention to have physical relations with the prosecutrix without marrying her. In such a situation even if he had assured the prosecutrix for marriage, he could not have honoured the same being already married and he has obtained the consent of the prosecutrix for physical relations with him by playing fraud and misconception of facts and misrepresentation.
98. Therefore, it is clear that the consent of the prosecutrix for physical relations was obtained by the accused on misrepresentation of facts, misconception and by fraud. The prosecutrix would not have allowed the accused to have physical relations with her had she been aware and she had known that the accused would not marry her being an already married man. This consent cannot be said to be voluntary.
99. The only dispute which emerges is whether or not it was with her free consent or under a misconception on the false pretext of promise to Sessions Case Number : 96 of 2013.
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marry that the prosecutrix had physical relations with the accused. By no stretch of imagination it can be said that the accused had never promised to marry her. It is crystal clear that the prosecutrix had physical relations with the accused and it was only due to misconception of facts and false promise of marriage.
100. Therefore, upon a complete and careful reading of the evidence of the prosecutrix, it is revealed that the prosecutrix remained under the impression that the accused is going to fulfill his promise of marrying her due to which she allowed him to have physical relations with her. Infact, he had no such intention and has only exploited the prosecutix.
101. In the present case, it is not the plea of the accused that the prosecutrix consented to establish sexual relations with the accused as she was in love with him. Not even a single suggestion to this effect was given to the prosecutrix during her entire cross examination. Rather, from the deposition of the prosecutrix, it has been established on record that the accused established sexual relations with the prosecutrix after keeping her under a false promise that he would marry her. She continued to have physical relations with the accused believing his promise to be true though the accused apparently made promise to marry the prosecutrix only to seduce her into the physical relationship and in fact never intended to marry her. He was also fully aware of his own marriage with Ms.Rekha solemnized on 03.11.2011 which was even prior to meeting the prosecutrix. In such circumstances, it is certainly not a case where the consent of the prosecutrix can be said to be free or voluntary and not based on Sessions Case Number : 96 of 2013.
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misconception.
102. From the above discussion, it is clear that the evidence of the prosecution is fully reliable, believable and trustworthy regarding the veracity of the prosecution case and the prosecution has successfully established the commission of the offence of rape.
103. Consequently, in the light of the above discussion, I am of the opinion that the offence of rape punishable under Section 376 IPC read with section 420 of the IPC clearly proved to have been committed by the accused considering the overall facts and circumstances of the present case.
104. Accordingly, the accused is liable to be convicted for the offence punishable under section 376 of the IPC read with section 420 of the IPC.
105. As regards the offence under section 384 of the IPC, it may be mentioned that the prosecution has failed to prove the charge under section 384 of the IPC against the accused.
106. The claim of the prosecutrix is that she had given Rs.50,000/- to the accused. She has deposed in her examination in chief that the accused also started demanding money from the prosecutrix and she started withdrawing the money from her saving bank account of Canara Bank at Uttam Nagar. Sometimes she withdrew Rs.10,000/-, sometimes Rs.11,000/, sometimes Rs.6,000/- and so on. In total, she had given a cash of Rs.50,000/- to him Sessions Case Number : 96 of 2013.
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after withdrawing the same from her bank account. The prosecutrix told him that she was not having much balance in her account now but he stated that he was not bothered about the same and he wanted money from her.
107. In her cross examination, the prosecutrix has deposed "I had withdrawn the money from my account from time to time and given it to the accused and it totaled to about Rs. 50,000-Rs. 60,000/-. At that time I had about Rs. 50,000/- in my account. I do not remember the exact dates when I had given the money to the accused but it must be about in weeks time. I had lastly given him Rs. 5000-Rs. 6000/- . I had not given him any money by cheque although I have cheque book."
108. It transpires on perusal of the passbook of the prosecutrix (Ex.PW1/F) that it is only from 06.02.2012 to 18.09.2012. Between June, 2012 to December, 2012 i.e. the period during which the accused was associated with the prosecutrix that she had withdrawn Rs.1,000/- on 06.06.2012; Rs.4,000/- on 04.07.2012; Rs.2,000/- on 09.08.2012 and Rs. 600/- on 18.09.2012 which totals to Rs.7,600/- and not Rs.50,000/- which the prosecutrix has claimed to have withdrawn and given to the accused. Further none of these withdrawals are for Rs.10,000/- or Rs.11,000/- or Rs. 6,000/- which she had allegedly made, as deposed by her in her examination in chief. Also, in a week's time there is no withdrawal of Rs. 50,000/- to Rs.60,000/-, as claimed by the prosecutrix. She never had a deposit of Rs.50,000/- in her bank during the relevant period.
109. Therefore, it appears that the prosecution has failed to prove that Sessions Case Number : 96 of 2013.
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the accused extorted Rs.50,000/- from the prosecutrix and accordingly, he becomes entitled to be acquitted for the offence under section 384 of the IPC.
DEFENCE OF THE ACCUSED
110. In his statement under section 313 of the Cr.P.C., the accused has given mainly three word answers by saying "It is wrong" to most of the questions or feigning ignorance by saying "I do not know". He has stated that he is innocent and has been falsely implicated in this case by the prosecutrix as the prosecutrix was engaged to one Mr.Pawan who belongs to his village and in collusion, this case has been lodged against him. However, PW1, the prosecutrix, has not even been given such a suggestion in her cross examination. In fact, the suggestion given to her and denied by her is "It is wrong to suggest that I have falsely implicated the accused in the present case as there has been a quarrel between accused and his neighbour namely Deepak who is my relative and in order to settle the scores I have implicated the accused in the present false case Vol. I do not know any man by the name of Deepak."
111. Two different stands have been taken by the accused in the cross examination of the prosecutrix and his statement under section 313 of the Cr.P.C. and none of them is proved as the accused preferred not to lead any defence evidence in support of his stand.
112. He has also failed to shatter the veracity of the testimony of the prosecutrix or falsify her claim that he had promised to marry her and Sessions Case Number : 96 of 2013.
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allured and enticed her to have physical relations with him on a false promise of marriage.
113. Therefore, I am of the considered opinion that there is no veracity in the defence of the accused.
MENS REA / MOTIVE
114. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
115. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was Sessions Case Number : 96 of 2013.
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committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
116. In the present case there is sufficient evidence on record to show that the accused did have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
117. In the present case, a story has been projected that the accused has raped the prosecutrix on a false promise of marriage and this version is proved to be true. He was already married before he befriended the prosecutrix, promised to marry her and had physical relations with her. Knowing fully well that he was already married, he made the prosecutrix have physical relations with him on a false promise of marriage which he knew that he shall never fulfill.
118. There does appear to be criminal intention and mens rea on the part of the accused.
Sessions Case Number : 96 of 2013.
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INVESTIGATION
119. The counsel for the accused has argued that there are several contradictions in the evidence of the prosecution witnesses and there is faulty investigation, which are as follows:
i. The prosecutrix has deposed that she lodged the complaint at 10 am-11 am but the tehrir/rukka was prepared at 1.45 pm. ii. The prosecutrix has deposed that she had gone to the hospital at about 4 pm but the MLC shows that the time was 2.35 pm. iii. The prosecutrix has deposed that the site plan was prepared after one week of the registration of FIR but the date on the site plan is 30.01.2013 i.e. the date of FIR.
iv. The prosecutrix has deposed that the accused was arrested on 27.01.2013 but the FIR was lodged on 30.01.2013.
v. Accused was never residing at Deen Pur, Najafgarh (from where he was allegedly arrested, as per arrest memo, Ex.PW1/B) and is a resident of Bajghera, District Gurgaon, Haryana (from where he was actually arrested, as claimed by the accused).
vi. Ct.Ashok, PW7, has deposed that he took the prosecutrix to DDU Hospital at 4 pm but the time of 2.35 pm is mentioned in her MLC which is also in contradiction to the evidence of PW9.
120. Here, it may be observed that the onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. If evidence of prosecutrix is read and considered in totality of circumstances along with Sessions Case Number : 96 of 2013.
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other evidence on record, in which offence is alleged to have been committed, her deposition does inspire confidence. Prosecution has disclosed true genesis of crime.
121. The above mentioned contradictions do not strike at the root of the prosecution case nor indicate that the accused has not committed the offence as the same relate to the investigation conducted after the lodging of the FIR. It is immaterial that the prosecutrix deposed that she lodged the complaint at 10 am-11 am but the tehrir/rukka was prepared at 1.45 pm; she had gone to the hospital at about 4 pm but the MLC shows that the time was 2.35 pm.; the site plan was prepared after one week of the registration of FIR but the date on the site plan is 30.01.2013 i.e. the date of FIR; she has deposed that the accused was arrested on 27.01.2013 but the FIR was lodged on 30.01.2013. These contradictions are too minor and too irrelevant to be even taken note of or considered.
122. As regards the argument that the accused was never residing at Deen Pur, Najafgarh (from where he was allegedly arrested, as per arrest memo, Ex.PW1/B) and is a resident of Bajghera, District Gurgaon, Haryana (from where he was actually arrested, as claimed by the accused), it may ben observed that at no point of time, during the investigation, after the filing of charge sheet, before committal of the case, after the committal of the case, during trial, in the evidence of the prosecution witnesses especially PWs 7 and 9, the accused has never made this claim. He has never made any complaint to the senior police officers, the Court or any other Government authority that he had not been arrested from Deen Pur, Sessions Case Number : 96 of 2013.
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Najafgarh and this place of arrest is wrongly shown by the IO. It was for the first time that the accused made this submission when his statement under section 313 of the Cr.P.C. was being recorded. He has failed to produce any witness to substantiate his stand, not even Mr.Sunil who was informed about his arrest (as per the arrest memo-Ex.PW1/B) nor his wife or any witness.
123. These facts show that the accused is putting up a false plea that he was not arrested from Deen Pur, Najafgarh. The evidence led by the prosecution witnesses as well as the fact that the accused has himself failed to examine any witness clearly indicate that the place of arrest of the accused was indeed Deen Pur, Najafgarh and not anywhere else.
124. As regards the last contradiction pointed out by the counsel for the accused that Ct.Ashok, PW7, has deposed that he took the prosecutrix to DDU Hospital at 4 pm but the time of 2.35 pm is mentioned in her MLC which is also in contradiction to the evidence of PW9, it may be mentioned that this submission is not correct. PW7 has deposed that he along with the prosecutrix and her mother reached the Police Station from DDU Hospita at about 4 pm and not that he took the prosecutrix to DDU Hospital at 4 pm. The prosecutrix was medically examined at 2.35 pm, as per the MLC (Ex.PW8/A). PW9, IO, has also deposed that she had taken the prosecutrix from the Police Station to DDU Hospital at about 2-2.30 pm.
125. The argument of the counsel for the accused is not tenable that due to the above mentioned contradictions, the accused merits to be Sessions Case Number : 96 of 2013.
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acquitted.
126. The investigation conducted in the present case has been deposed by PWs 7 and 9. The MLCs of the prosecutrix and the accused have been proved by PWs 5 and 8. PW6 is the MHC (M) with whom the exhibits of the case were deposited. The FSL report has been proved by PW9. The FIR has been proved by PW2. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
127. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case. The investigation appears to have been conducted fairly and properly.
128. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.
129. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
Sessions Case Number : 96 of 2013.
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130. Therefore, the investigation although it is material but not very relevant as the evidence of the prosecutrix itself is fully reliable, believable and trustworthy.
131. It may also be observed here that the accused has also failed to show that he is not the person who had raped the prosecutrix under the promise to marry. He has also failed to lead any evidence to substantiate his claim or falsify the prosecution version or show that the evidence of the prosecution witnesses is not reliable and credible.
CONCLUSION
132. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
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133. Applying the above principles of law to the facts of present case, it is evident that the evidence of the prosecution especially the prosecutrix is reliable, believable and trustworthy and the prosecution has established the case of rape on a false promise of marriage. The facts of the case are consistent with the hypothesis of guilt of the accused.
134. The prosecution has successfully proved that at unknown time a B-456, Hastsaal, J.J Colony, Uttam Nagar, Delhi, the accused committed rape on the prosecutrix several times under the false promise to marry her.
135. The prosecution has proved the identity of the accused, the age of the prosecutrix (major), the virility of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLCs, FSL report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witnesses of the prosecution have been able to build up a continuous link. The only fact which the prosecution has not been able to prove is that the accused had extorted Rs.50,000/- from the prosecutrix. Rest all the facts relevant in respect of the offences punishable under sections 376 read with section 420 of the IPC have been properly proved.
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136. In view of the foregoing reasons, the conscience of this Court is completely satisfied that the prosecution has been able to successfully bring home the charge against the accused Mr.Narender @ Nikhil regarding the commission of offences under section 376 read with section 420 of the IPC and the prosecution has not been able to bring home the charge against the accused Mr.Narender @ Nikhil regarding the commission of offence under section 384 of the IPC.
137. Accordingly, the accused, Mr.Narender @ Nikhil, is hereby convicted for having committed offences punishable under section 376 read with section 420 of the IPC and he is acquitted for offence under section 384 of the IPC
138. Let him be heard of the point of sentence.
Announced in the open Court (NIVEDITA ANIL SHARMA) on this 15th day of May, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA, ADDITIONAL SESSIONS JUDGE (SPECIAL FAST TRACK COURT)-01, WEST, TIS HAZARI COURTS, DELHI Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
State
Versus
Mr.Narender @ Nikhil
Son of Mr.Hari Krishan,
Resident of H.No.196, Village Bajghera,
Gurgaon, Haryana.
First Information Report Number : 53/13
Police Station Uttam Nagar,
Under sections 420, 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 28.03.2013. the Court of the Metropolitan Magistrate Date of receipt of file after committal : 15.04.2013.
Date of judgment : 12.05.2014. Arguments on sentence concluded on : 16.05.2014. Date of order on sentence : 16.05.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the State.
Convict Mr.Narender @ Nikhil has been produced from judicial custody.
Mr.Umesh Kumar, counsel for the convict.
Ms.Poonam Sharma, counsel for the Delhi Commission for Women.
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ORDER ON SENTENCE "A while ago?" Anaxantis asked. "Yes, he raped me a while ago. Exactly nine months and two days ago. What's that? Nine months or nine minutes. It's the same. And it is in the past, you say? Then why is it still happening, every day, every time I close my eyes? Every time I hear someone behind me, and I don't know who it is? How is it that I get an almost irresistible urge to kill anyone who happens to touch me unexpectedly? Tell me, Hemarchidas, how do I forgive, let alone forget, something that is still happening, that keeps happening over and over? How? How do I do that?"
― Andrew Ashling, The Invisible Chains - Part 1: Bonds of Hate
1. In pursuance of judgment dated 12.05.2014 as passed by this Court convicting the accused namely Mr.Narender @ Nikhil for offence punishable under section 376 read with section 420 of the Indian Penal Code (hereinafter referred to as the IPC), I have heard the Additional Public Prosecutor for the State as well as the counsel for the convict and also the convict on the point of quantum of sentence to be awarded to the convict and also perused the case record.
2. It has already been observed in the judgment that this case is a glaring example of the growing menace of sexual abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is subjected to unwanted physical contact by a perverted male adult who on the assurance and promise to marry had physical relationship with her and then walked out of her life.
3. "The psychological harm on the victim is massive as it evokes doubts, raises questions for which answers are not easy to get. The victim may suppress emotions or be filled with feelings of rage, guilt and shame. It Sessions Case Number : 96 of 2013.
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is difficult for such victims to trust others later on in life. The victim needs to stand up for himself/herself and not allow the trauma to make them psychologically and socially weak. Active social support from family, friends, guidance centres and counselors can bring the victim's faith in the goodness of human beings back." ---Dr.Sanjay Chugh, Senior Consulting Psychiatrist.
4. The victim lacks self-confidence and is always under a sense of guilt and denial. It's not about the body. It's more about the mind. Sexual abuse is a rape of the mind and thought processes.
5. The Additional Public Prosecutor for the State has requested for the maximum sentence to be imposed upon the convict submitting that he does not deserve any leniency keeping in view the offence committed by him.
6. The convict and his counsel, on the other hand, have requested for a lenient view to be taken against him and for his release on probation as the convict hails from a poor family. He is a helper in a cloth shop. He is aged about 22 years. He is recently married and his wife is in the family way. His family comprising of his wife and aged parents is dependent upon him as he is the sole bread winner. He is being tried in a case under section 302 of the IPC but has never been convicted for any offence. He has remained in judicial custody w.e.f. 30.01.2013 to 29.08.2013. He is now in judicial custody w.e.f. 12.05.2014, after the judgment. It is also submitted that he shall not commit any offence in future.
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7. Considering the aforesaid submissions from both the sides, the family circumstances of the convict and perusing the case record, I consider it proper to award a substantive sentence upon the convict. Rape in itself is abominable and ghastly and it worsens and becomes inhuman and barbaric when the convict under the guise of promise to marry the prosecutrix has violated her person and soul by having physical relationship and then refused to marry her. He has subjected the prosecutrix to unwanted physical contact by a perverted male adult as had she known that he would not marry her, she would not have surrendered herself to him into a physical relationship. He was already married when he befriended the prosecutrix, promised to marry her and had physical relations with her. Her consent was obtained by fraud and on mis-conception of facts.
8. Keeping in view the offence committed by the convict, I am not inclined to take a lenient view against him and release him on probation. He has raped a young woman who was helpless, defenceless, vulnerable and an easy prey who trusted the convict so much so that she surrendered herself to him and he used, violated and exploited her body.
9. I am of the considered opinion that the convict should be awarded a substantive, stern and firm sentence because he has defiled her. As per social morality which attaches highest importance to the chastity of a woman, the outrage and breach of her privacy and modesty is a heinous offence. Keeping into consideration the fact that the act of rape is an act of a perverted man, the minimum sentence provided of seven years or a lesser imprisonment should not be awarded to the convict. I do not find any Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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mitigating factors.
10. The object of sentence should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The welfare and interest of other women in the society also needs to be protected for the reason that if the convict is released, they may be subjected by him in a similar offence with them.
11. It has been held in the judgment reported as State of Karnataka v.
Raju, 2007 (11) SCC 490, as follows:
"The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused . It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. ? To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The legislative mandate to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence."
Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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12. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats.
13. In AIR 2000, Supreme Court, 1470, the Supreme Court held has under:
Socio-economic, status, religion, race caste or creed o the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court.
14. In the judgment reported as Shri Bodhisattwa Gautm v. Miss Subhra Chakraborty, AIR 1996 SC 922, the Hon'ble Apex Court observed that:"
The entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the 'Constitution'). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions."
Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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15. A view which is likely to result in vicitimization or exploitation of innocent girls needs to be avoided and the Courts need to take a view which would discourage unscrupulous from taking advantage of innocent girls by alluring them and having physical relations with them on a false promise of marriage. If a view otherwise is taken, it will amount to putting premium on the mis-conduct of a men which is not only highly reprehensible and abhorable but also criminal in nature. If this allowed to happened it will enable immoral and dishonest persons to exploit girls by alluring them with a false promise of marriage, pressurizing them to have physical relations with them by making them believe that they are going to marry them and there is nothing wrong in having relations with a person who is very soon going to be her husband and later on turn their back at her in a comfortable belief that the law being on their side, they can easily get away with their misdeeds. The Court can not and should not give such a licence to those who keep on looking for opportunities to exploit the sentiments and vulnerability of Indian girls who perceive marriage as a pious bonding and not as a union of two bodies. Allowing such persons to go scott free after exploiting poor and helpless girls in this manner could not have been the intention of the legislature which considered rape to be such heinous as to attract imprisonment upto life.( Reliance can be placed upon the judgment of the Hon'ble Delhi High Court dated 01.02.2010 in Nikhil Parasar versus The State Govt NCT Of Delhi in bail application no.1745/2009 : Nikhil Parashar v. State of Delhi, 2010 (1) JCC 615)
16. Sexual violence apart from the being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the Constitution) the Courts, are therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A society sensitized judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions (Reliance can be placed upon 2004 IX AD (S.C.) 5 and Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty (AIR 1996 SC 922).
17. Recently, crime against women generally and rape in particular is on the increase and the society also appears to be concerned for the honour of women. In this backdrop, this Court is required to treat the issue with more sensitivity. The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. The offences against women are on a rise and there is an urgent need to curb this tendency by awarding deterrent punishment to perpetrators of this grave offence.
Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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18. In the present case, the act of the convict is most deplorable, both legally and morally. It is time for realization that certain category of sexually depraved behaviour is totally unacceptable in the Indian Socio-
Legal System which seeks to protect the chastity the first virtue of a woman and such behaviour can prove to be costly as has happened in the present case. The victim is a young woman who reposed trust in the convict and on his promise to marry him surrendered before him into a physical relationship. Then the convict shattered her faith and trust in him.
19. Keeping in view the ghastly and inhuman act of the convict, a substantive and stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but also serves as an example for the others who might also venture on the same forbidden path. The convict does not deserve any leniency.
20. Therefore, considering these aggravating facts, I hereby sentence Mr.Narender @ Nikhil, the convict for offence under section 376 read with section 420 of the IPC to rigorous imprisonment for ten years and a fine in the sum of Rs.50,000/- in default of payment of which, he shall undergo rigorous imprisonment for a period of one year.
21. Benefit of section 428 of the Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules. The convict has remained in judicial custody w.e.f. 30.01.2013 to 29.08.2013 during investigation and trial. He is now in Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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judicial custody w.e.f. 12.05.2014, after the judgment. He is sent to judicial custody for serving the remaining sentence.
22. The entire amount of fine, if realized, is awarded to the prosecutrix as compensation for the benefit of the prosecutrix.
23. Further, this Court directs that the State shall pay to the prosecutrix/victim an appropriate sum as victim compensation in terms of Rules 3 and 5 read with Entry 2 to the schedule of the Delhi Victims Compensation Scheme 2011 (notified on 02.02.2012) read with section 357-A of the Cr.P.C. The terms of the scheme entitle every rape victim to minimum compensation of Rs.2 lacs and a maximum compensation of Rs.3 lacs. Having regard to the facts of the case and the circumstances of the prosecutrix/victim, the Government of NCT is directed to pay an appropriate amount of compensation to the victim. 75 % of the amount shall be deposited in a fixed deposit, in terms of Rule 7 of the Scheme, in a nationalized bank for a period of three years and the remaining 25 % shall be available for utilization and initial expenses by the victim/prosecutrix.
24. These directions shall be complied within six weeks. The Delhi Legal Services Authority, which is the designated body under the said Scheme, shall oversee the implementation of these directions. The State shall ensure that the victim is duly informed within one week. The victim/prosecutrix be produced by the prosecution before the Delhi Legal Services Authority on 21.05.2014 for the said purpose.
Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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25. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
26. A copy of the judgment dated 12.05.2014 and a copy of the or-
der on sentence dated 16.05.2014, duly attested, besides the complete set of copy of the relevant case record, in compliance of directions of the High Court, be given to the convict, namely, Mr.Narender @ Nikhil, free of cost immediately.
27. A copy of the judgment dated 12.05.2014 and a copy of the or- der on sentence dated 16.05.2014 also be given to the Additional Public Prosecutor, as requested.
28. After completion of the formalities and expiry of the period of limitation, the ahlmad is directed to consign the file to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 16th day of May, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 96 of 2013.
Unique Case ID Number : 02401R0172622013.
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