Delhi District Court
State vs . Brijesh @ Dablu; on 28 September, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL
ADDITIONAL SESSIONS JUDGE / SPECIAL FAST TRACK
COURT (NORTH): ROHINI: DELHI
Sessions Case No : 58492/16
State
Versus
Brijesh @ Dablu
S/o Sh. Muneshwar Rawat
R/o Village Ladama,
PS & District Jamui, Bihar.
FIR No. : 248/15
Police Station : Narela
Under Sections : 376 IPC
Date of Committal to Sessions Court : 13.04.2015
Date on which Judgment reserved : 18.09.2019
Date on which Judgment announced : 28.09.2019
JUDGMENT
1. The victim had started residing with her Mausi in Delhi from the age of 6 years as her mother had expired and father was residing in parental house at District Sitamarhi, Bihar. She is 7 th class fail. Accused was also working in the same shoe factory where she was working but she gave up job only in 23 months as coemployees had started suspecting that she had affair with accused. The accused had promised that he would State vs. Brijesh @ Dablu;
SC No. 58492/16; FIR No. 248/15; PS: Narela Industrial Area Page No. 1 of 13 marry her and she, thinking that such marriage would definitely take place one day, established physical relations with him several times in her house in the absence of her Mausa and Mausi. She had established physical relations in Haridwar also several time. She asked him 23 days before registration of FIR to marry her but his reply was that as per their custom, their marriage was possible only after the festival of Holi. But when she insisted for immediate marriage, he disclosed that he was a married man having four children. She was alone at home on 28.02.2015 at 4 pm when he came there, started quarreling and damaging the household articles. When he raised hand to slap her, her Mausi came all of a sudden and saved from him and simultaneously, gave intimation to the police which came to spot and took them to the police station.
3. Charge under Section 376 IPC was framed against the accused on 03.07.2015 to which he pleaded not guilty and claimed trial.
4. In order to prove the case, prosecution examined 17 witnesses.
5. PW8 deposed all the facts stated by her in complaint Ex.PW8/A upon which FIR was registered. Additionally, she deposed that the accused was supervisor in the factory in which she was working as helper. Her Mausi was also working in the same factory. The accused favoured her by allowing her to sit near the machine so that she may learn the process of shoes manufacturing. The workers of the factory started taunting her saying that she had an affair with the accused and hence, she left the job. She admitted that her statement Ex.PW7/B was recorded U/s State vs. Brijesh @ Dablu;
SC No. 58492/16; FIR No. 248/15; PS: Narela Industrial Area Page No. 2 of 13 164 Cr.P.C. and the accused was arrested vide arrest and personal search memos Ex.PW8/B and Ex.PW8/C and after detailed interrogation, his disclosure statement Ex.PW8/D was recorded.
PW11 Smt. Poonam, Mausi of the prosecutrix, deposed that victim was residing with her since she was of six years. She alongwith her husband had gone to market to purchase grocery articles on 28.02.2015 at 2.30 pm and when they returned at 4 pm, they found accused quarreling with her niece and was also dropping household articles on the floor. She called police by dialing 100 number which took them to the police station where victim told that the accused had established sexual relation with her on the pretext of marriage. She next deposed that after recording statement Ex.PW8/A of her niece, her (PW11) signature was also obtained at pointB. PW14 Sh. Rajesh Kumar, Mausa of the victim, deposed that he alongwith his wife went to market on 01.03.2015 at about 1.30 - 2.00 pm for purchase of household goods and when they returned at 4 pm, they found accused in drunken condition and he was quarreling with her niece and was throwing household articles on the floor. He next deposed that the accused caught hand of the victim and tried to take her to upstairs. His wife gave information to the police which came there and took them all to the police station.
6. PW5 W/Ct. Sanju was working in CPCR Police Head Quarter and her duty was on channel no. 123. On that day at about 5.10 pm, she received a call from H. No. 76, LIG DDA Flats, near Bada Gate, CNG State vs. Brijesh @ Dablu;
SC No. 58492/16; FIR No. 248/15; PS: Narela Industrial Area Page No. 3 of 13 Pump, Narela regarding a quarrel upon which she filled form no. 1 Ex.PW5/A and dispatched the same to the Communication Branch.
PW1 ASI Naresh Kumar registered DD No. 23A Ex.PW1/A on 28.02.2015 at about 5.12 pm on receipt of information regarding quarrel at LIG Flat No. 76, Narela and handed over the same to SI Anand for enquiry.
PW13 W/Ct. Sunita deposed that she alongwith SI Manju Tyagi took prosecutrix, her Mausi Poonam and NGO official Nazma to SRHC Hospital on 01.03.2015 from where the victim was referred to BSA Hospital and accordingly, she was taken there and was medically examined. After medical examination, the doctor handed over her exhibits in sealed condition which were seized by SI Manju Tyagi vide seizure memo Ex.PW13/A. Thereafter, statement Ex.PW8/A of the prosecutrix was recorded and then the victim took them to Narela and pointed out the place of incident.
7. PW4 Dr. Kumari Sanjyoti Modi deposed that the prosecutrix was brought to BSA Hospital on 01.03.2015 by SI Manju Tyagi with the history of sexual assault and she conducted internal examination and made observations from point A1 to A2 on her MLC Ex.PW4/A. PW2 HC Dharmender deposed that he registered case FIR Ex.PW2/A on 01.03.2015 at 3.35 am when he was handed over rukka sent by SI Manju Tyagi.
PW3 HC Om Prakash was working as MHC(M) on 01.03.2015 and 02.03.2015 when WSI Seema deposited one sealed State vs. Brijesh @ Dablu;
SC No. 58492/16; FIR No. 248/15; PS: Narela Industrial Area Page No. 4 of 13 pullanda and three sealed pullandas respectively for which she made entry nos. 145 & 146 Ex.PW3/A1 and Ex.PW3/A2 in register no. 19. He deposed that he handed over exhibits to Ct. Dilbagh alongwith FSL form on 09.03.2015 vide R.C. No. 21/21 Ex.PW3/C and after deposit, the constable handed him over receipt acknowledgement Ex.PW3/B. He did not tamper with the case property until it was remained with him.
PW6 Ct. Dilbagh Singh deposed that on 09.03.2015, he collected four sealed pullandas from MHC(M) and deposited in FSL, Rohini vide R.C. No. 21/21/15.
8. PW16 Ct. Vinod deposed that he alongwith WSI Seema and prosecutrix went to Sanjay Colony, Narela on 02.03.2015 in search of the accused. He was arrested from Gali No. 8 vide arrest and personal search memos Ex.PW8/B and Ex.PW8/C respectively and his disclosure statement Ex.PW8/D was recorded. Thereafter, he led them to 3 rd floor of H. No. 76, Pocket6, Sector8, Narela and pointing out memo Ex.PW16/A was prepared. He was taken to SRHC Hospital where he was medically examined and the doctor handed over sealed parcels and sample seal to SI Seema who seized the same vide seizure memo Ex.PW16/B. PW9 Dr. Rajesh had examined the accused medically on 02.03.2015, prepared MLC Ex.PW9/A and opined that there was nothing to suggest that he was incapable of performing sexual intercourse.
9. PW7 Ld. MM Ms. Sadhika Jalan recorded statement Ex.PW7/B of the prosecutrix U/s 164 Cr.P.C. on 20.03.2015.
SC No. 58492/16; FIR No. 248/15; PS: Narela Industrial Area Page No. 5 of 13 PW10 Sh. Ajay Jain is the owner of factory no. A100, DSIDC, Narela where the accused and victim used to work together. He deposed that he was contacted by SI Seema on 22.03.2015 to join investigation consequent to which he had handed over employment papers Ex.PW10/A of the accused to the police. Ex.PW10/B and Ex.PW10/C are the salary register for the months of May 2013 and January 2015.
PW12 Sh. Parmanand Ravat, younger brother of accused, deposed that the accused was married with one Pooja Devi about 10 years ago and had three children from that marriage. The children and wife of the accused were residing in native village in District Jamui, Bihar whereas the accused had come to Delhi for job.
10. PW15 SI Manju Tyagi is the first IO and she deposed that while working in PS KN Katju Marg on 01.03.2015, she was asked by Control Room to reach PS Narela consequent to which she went there and found prosecutrix and her Mausi Poonam there. The victim was counseled through NGO official Nazma and taken to SRHC Hospital from where she was referred to BSA Hospital as Gynecologist was not available there. She was taken to BSA hospital where the victim was medically and internally examined and after examination, the doctor handed over sexual assault evidence collection kit in sealed condition and one sample seal which she seized vide seizure memo Ex.PW13/A. Thereafter, she recorded statement Ex.PW8/A of the prosecutrix, prepared rukka Ex.PW15/A and returned to the police station after dropping the victim to her house. Rukka was given to duty officer who registered case State vs. Brijesh @ Dablu;
SC No. 58492/16; FIR No. 248/15; PS: Narela Industrial Area Page No. 6 of 13 FIR and further investigation was assigned to SI Seema.
PW17 SI Seema deposed that original rukka and case FIR were handed over to her by duty officer on 01.03.2015. SI Manju Tyagi handed over MLC of the prosecutrix and seizure memo of her exhibits. She next deposed that she alongwith complainant reached to the spot and prepared site plan Ex.PW17/A at her instance. She got statement of the prosecutrix recorded U/s 164 Cr.P.C. next day and arrested the accused from Sanjay Colony at the instance of victim vide arrest and personal search memos Ex.PW8/B and Ex.PW8/C respectively. He then led police party to the place of incident and pointed out that place consequent to which pointing out memo Ex.PW16/A was prepared. Medical examination of the accused and his potency test were got conducted through Ct. Vinod in SRHC Hospital. After medical examination, the doctor had handed over three sealed parcels and one sample seal which she seized vide seizure memo Ex.PW16/B. Case property was deposited in FSL, Rohini on 09.03.2015 through Ct. Dilbag. She next deposed that from the employer namely Ajay Jain of the accused and victim, she had collected documents Ex.PW10/B and seized the same vide seizure memo Ex.PW17/C. Brother of the accused produced family photographs and copy of ration card of the accused on 01.04.2015 which she seized vide seizure memo Ex.PW17/D.
11. Under section 313 Cr.P.C., the accused took the plea of false implication.
SC No. 58492/16; FIR No. 248/15; PS: Narela Industrial Area Page No. 7 of 13
12. The accused did not examine even a single witness in defence.
13. First argument of ld. defence counsel is that the prosecutrix had worked with the accused for about three months. Her Mausa and Mausi also worked with him during that period. So, the prosecutrix would have definitely come to know that the accused was a married man having 34 children.
He next argued that the prosecutrix had consented physical relation with the accused due to love, affection, lust and to gain advantage from the accused and that is why she had accompanied him to Haridwar twice. As physical relations were not based upon any promise of marriage, the prosecutrix did not tell her Mausa and Mausi that she had an affair with the accused.
He next argued that the victim is a major lady and was residing in Delhi for last about 1012 years and hence, she can be said to be well aware of the consequences of sexual acts. She had used her mind independently.
Last argument is that there is nothing on the file which may suggest that the accused was well aware that the prosecutrix had given consent for sex with her solely on the promise of marriage with her.
14. On the other hand, ld. additional PP argued that it has been proved by PW12 Parmanand Rava, brother of the accused, that the accused was married long ago and had 34 children. His wife and children were residing in his native village whereas he came to Delhi for State vs. Brijesh @ Dablu;
SC No. 58492/16; FIR No. 248/15; PS: Narela Industrial Area Page No. 8 of 13 job. Despite being a married man, he promised prosecutrix that he would marry her. He submitted that the said promise was false right from inception because it was made just to get her consent for sexual intercourse.
15. It has been held in Uday vs. State of Karnataka, AIR 2003 SC 1639; that:
"21. It therefore, appear 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".
"23....In the instant case, the prosecutrix was a grown up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact."
SC No. 58492/16; FIR No. 248/15; PS: Narela Industrial Area Page No. 9 of 13 Hon'ble Apex Court, in Shivashankar @ Shiva vs. State of Karnataka and Anr., in Criminal Appeal No. 504 of 2018, decided on 6 th April 2018, {2018 (3) All Crl. LR 84 (SC)}, observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eight years is 'rape', especially in the face of the complainant's own allegation that they lived together as man and wife.
In Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra, AIR 2019 SC 327, it is held by Hon'ble Apex Court that:
"It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind".
16. PW10 Ajay Jain is the employer of the accused and victim and he placed on record their employment papers. As per Ex.PW16/A, the victim, her Mausi Poonam and Mausa Rajesh Kumar had worked with PW10 from February to April 2014. He placed on record the salary register of accused for May 2013 and January 2015 as Ex.PW10/B and Ex.PW10/C respectively. Those registers prove that the accused had worked with PW10 from May 2013 to January 2015. PW10 intimated police vide Ex.PW16/A that the accused had worked in his factory till February 2015.
SC No. 58492/16; FIR No. 248/15; PS: Narela Industrial Area Page No. 10 of 13 As per above documents, the victim and her mausa and mausi had worked with the accused for three months from February 2014 to April 2014. As per prosecutrix, he was working as supervisor and she used to work as helper. The personal record of a permanent employee is alway in the custody of the employer because such record is required for advancing PF and ESI facilities. Through employer, coemployees also come to know of such personal details. So, while working with the accused, the prosecutrix and her mausa and mausi would have come to know that the accused was a married man having 34 children. She is absolutely wrong in deposing that she did not know earlier that the accused was a married man.
17. The prosecutrix deposed in cross examination that she had visited Haridwar thrice with the accused and had established sexual intercourse there also. She admitted that she had accompanied accused to Haridwar voluntarily. She admitted that she had established physical relations with her consent. She further admitted that she did not disclose about her relationship to her mausa and mausi. She deposed in examination in chief that the accused used to make her sit near the machine so that she may learn the process of shoes manufacturing. This kind of cross examination suggests that she had established physical relations with the accused not on account of any promise of marriage but due to love, affection, lust and the advantage which he was giving to her by allowing her to sit near the machine to learn the process of shoes manufacturing.
SC No. 58492/16; FIR No. 248/15; PS: Narela Industrial Area Page No. 11 of 13 Prosecutrix admitted in cross examination that she did not tell her mausa and mausi about her relationship with the accused. It is on record that mother of the prosecutrix had died and her father was residing in Bihar. She had started residing with her mausa and mausi when she was of only six years. So, her mausa and mausi were everything for her. These were the persons who were to solemnize her marriage. Had the relationship with the accused been based upon promise of marriage, she would have told them about such relationship because mausa and mausi were the only persons in the world who were to initiate talks of her marriage with accused. But she did not tell them and it shows that her relationship was either based on love and affection or on lust or taking some advantage from him.
On these points, the case of the accused is well covered by above citations.
18. In Surjit Ranjan vs. State, Crl. Appeal No. 248/2010 decided on 27.01.2011, Hon'ble Delhi High Court held that as per Section 90 IPC, the prosecution is required to prove that the accused knew or had reason to believe that the opposite party had consented for sex as a consequence of her belief based upon his promise that they would get married in due course. In the case in hand, the prosecution did not examine any witness or place on record any document to suggest that he was aware that the prosecutrix had given consent for physical relation because of his promise to marry her.
SC No. 58492/16; FIR No. 248/15; PS: Narela Industrial Area Page No. 12 of 13
19. In view of above discussion, it is held that the prosecutrix had established physical relations with the accused not due to his promise to marry her but due to either love and affection for the accused or due to lust or for gaining some advantage from him.
20. Accordingly, accused Brijesh @ Dablu is acquitted of the offences, he was charged with.
21. The personal and surety bonds of the accused are hereby cancelled. Surety is hereby discharged. The endorsement made, if any, on any document of soundness of surety, be cancelled and the document be returned to surety.
22. However, in terms of Section 437(A) Cr.P.C., accused has furnished the fresh personal bond in the sum of Rs. 10,000/ with one surety of the like amount, which are accepted with the directions to appear before Higher Court, in the event, he receives any notice of appeal or petition against the judgment.
File be consigned to record room.
UMED Digitally signed
by UMED
SINGH SINGH GREWAL
Date: 2019.09.30
GREWAL 10:47:19 +0530
Announced in the open Court (Umed Singh Grewal)
On this 28th September 2019 ASJ: Special FTC (North)
Rohini Courts: Delhi
State vs. Brijesh @ Dablu;
SC No. 58492/16; FIR No. 248/15; PS: Narela Industrial Area Page No. 13 of 13