Delhi District Court
State vs . Mahavir Page No. 1/7 on 30 August, 2016
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0182092014
SC No. : 167/14 & 1557/2016
FIR No. : 193/14
U/s. : 417/376 IPC
PS : Chitranjan Park, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Mahavir
S/o Late Narayan Singh
R/o C5, Sector15, Noida
Uttar Pradesh. .........................Accused
Date of Institution : 11.08.2014
Judgment reserved for orders on : 30.08.2016
Date of pronouncement : 30.08.2016
J U D G M E N T
Facts
1. The case of the prosecution is that the prosecutrix ( name withheld to protect her identity) worked as maid in different houses for about five years. During that period, she came in contact with the accused. He used to work at Gurgaon. He left the job and started working in Kothi No. G5, Ground Floor, Greater Kailash, PartI as cook. She also left her job and started working in the same kothi. There he introduced the prosecutrix as his wife. She used to live in the same room of the kothi with the accused. There the accused established physical relations with her number of times giving her promise that he would marry her. On FIR No. : 193/14 PS : C R Park State Vs. Mahavir Page No. 1/7 22.06.2014, he took her to his village at Uttarakhand. They got down from the bus on 23.06.2014 at about 6.00 a.m. He took her in a lonely place in the jungle where he committed sexual intercourse with her. He then took her in a dhaba and went away leaving her there. He came there at about 3.004.00 p.m and told her that he has quarreled with his family and he would not take her to his house. He asked her to accompany him to Delhi but she refused. He then went away. She also came back. The accused kept her salary for two months i.e Rs.8,000/. When she asked him to pay her salary, he gave her only Rs.50/. On 24.06.2014, she went to the police station and lodged the complaint that accused made physical relations with her giving her false promise of marriage and also kept Rs.8,000/ with him. Investigation
2. Zero FIR was registered at the police station Kamla Nagar. She was sent to LNJP hospital where she refused her internal examination. She was taken to the police station C R Park where the case u/s 376/406 IPC was registered. Search for the accused was made. On 27.06.2014, the accused was arrested from the place near Kohinoor mall, Masjid Moth at the instance of the prosecutrix. He was got medically examined. The doctor found him capable of performing sexual intercourse under normal circumstances. Statement of the prosecutrix u/s 164 CrPC was recorded where she alleged that the parents of the accused refused to marry the accused with her. After the investigation, the accused was sent for trial for the offences punishable u/s 376/406 IPC.
Charge
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 25.08.2014, prima facie case was made out against the accused u/s 417/376 FIR No. : 193/14 PS : C R Park State Vs. Mahavir Page No. 2/7 IPC. Charge was framed. He pleaded not guilty and claimed trial. Prosecution Evidence
4. To substantiate its allegations against the accused, prosecution examined as many as seven witnesses.
PW1 SI Bhup Singh on receipt of zero FIR recorded the statement of ASI Pushplata. He with the prosecutrix and the staff went for the search of the accused at Tehri Gharwal but could not get any clue. He then handed over investigation to WSI Maneeta. PW2 ASI Pushplata was posted at the police station Kamla Market. On 24.06.2014, the prosecutrix came to her. She got her counseled from NGO and took her to LNJP hospital. She recorded her statement and got registered the zero FIR. She then took the prosecutrix to the police station C. R. Park.
PW3 Dr. Namita Jain did the medical examination of the prosecutrix at LNJP hospital on 25.06.2014 after recording the history narrated by her and prepared the MLC Ex. PW 3/A. PW4 Dr. Asit Kumar Sikary did the medical examination of the accused on 27.06.2014 vide MLC Ex. PW 4/A and found him capable of performing sexual intercourse under normal circumstances. PW5 Ms Sheetal Chaudhary recorded the statement of the prosecutrix u/s 164 CrPC Ex. PW 5/B. PW6 Ct. Ashutosh was present when the accused was arrested from the place near Kohinoor Mall, C R FIR No. : 193/14 PS : C R Park State Vs. Mahavir Page No. 3/7 Park.
PW7 SI Maneeta is the IO of this case. She deposed on the lines of the investigation. She prepared the site plan Ex. PW 7/A and prepared the chargesheet. She stated that the prosecutrix is not traceable. Statement of Accused
5. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him and stated that the prosecutrix used to work as maid. They loved each other and wanted to marry. They had physical relations but they were consensual.
Findings
6. I have heard the arguments advanced by Ld. Amicus curiae Sh. M. S. Karwasra for the accused and Ld. Addl. PP for the State.
7. In the instant case, the prosecutrix is not traceable. Summons were sent to the prosecutrix through the IO as well as through DCP but as per the report, she has not been living at the said address and her whereabouts are not known. In State of Karnataka v. Mahabaleshwar Gourya Naik AIR 1992 SC 2043, it was held that even if the victim of rape is not available to give evidence on account of her having committed suicide the prosecution case cannot be thrown away over board. In such a case, non availability of the victim will not be fatal and the court can record a conviction on the basis of record brought by the prosecution. But the question here is whether the evidence led by the prosecution is sufficient to base conviction of the accused. In Hanumant Vs. State of Madhya Pradesh, AIR 1952, SC 343, it was observed:
" It is well to remember that in cases where the FIR No. : 193/14 PS : C R Park State Vs. Mahavir Page No. 4/7 evidence is of circumstantial nature, the circumstance from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstance should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. "
8. The prosecutrix in her complaint given to the police has alleged that the accused made physical relations with her number of times. He used to say that he would marry her soon. They used to live in the same room. The accused had introduced her as his wife. He also took her to his native place but since he quarreled with them, he did not take her to them. In the complaint, she did not say that the accused refused to marry her. In her statement u/s 164 CrPC, she had stated that the accused had introduced her to his employer as his wife. Even he introduced her to his friends as his wife. He used to say that he would marry her. He took her to his village where he told his family members that he has married with her. They lived there for two days however his mother did not like her. They came back in Delhi. He again went to his native place but did not take her there. He telephoned her that he is not coming back. She then went to the police station and lodged the complaint. She had stated that although the accused is willing to marry her but his family members are not agreeing for their marriage. The said statement does not show that the accused at any time had refused to marry her. He was rather willing to marry her against the wishes of his family members.
FIR No. : 193/14 PS : C R Park State Vs. Mahavir Page No. 5/7
9. In the instant case, the prosecutrix had refused for her internal examination. The examining doctor did not find any history of physical assault on her person. Since the prosecutrix is not traceable, no direct evidence has come as to whether their physical relations were consensual or forcible, however, the facts and circumstances of the case show that physical relations between the accused and the prosecutrix were consensual and the accused never forced upon her. The accused always wanted to marry her. When the parents of the accused did not agree for their marriage, she in a fit of anger lodged the complaint.
10. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
Conclusion
11. From the evidence and circumstances discussed above, I am of the view that the circumstances appearing in this case when examined in the light of above principles do not lead to any decisive conclusion that the accused had committed sexual intercourse with the prosecutrix giving her false promise of marriage punishable under section 417/376 IPC. Hence, viewed from this angle, the accused is acquitted of the offences punishable under section 417/376 IPC. His bail bond be cancelled. His surety be discharge. He is however directed to furnish bail bond in the sum of Rs.15,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.
FIR No. : 193/14 PS : C R Park State Vs. Mahavir Page No. 6/7
12. The case property be confiscated to the State after the expiry of period of the appeal.
13. File be consigned to record room.
Announced in the open
court today i.e. 30.08.2016 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts/ND
FIR No. : 193/14
PS : C R Park
State Vs. Mahavir Page No. 7/7