Delhi District Court
State vs . Azad Sharma on 11 December, 2015
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACT COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.17/15
FIR No.524/14
PS Vasant Kunj (S)
U/s 376/506 of IPC
State Vs. Azad Sharma
s/o Sh. R.K. Sharma
r/o H.No.C-007, Rail Vihar,
Sector-5, Part-2, Gurgaon
Unique ID No.02403R0252172014
Date of Institution 26.07.2014
Argument heard/order reserved 07.12.2015
Date of judgment 11.12.2015
Final Order Acquitted
JUDGMENT
1. Succinctly, the facts of the case unfolded from the charge sheet filed u/s 173 Cr.P.C are that somewhere in the month of April, 2010, the accused came into contact of prosecutrix and introduced himself as unmarried and working in a company and earning Rs.1.5 lacs per month. Within a week accused proposed to marry her stating that she has to wait for some time as he is busy in a project and he might go to abroad for about 1-2 years. On this assurance, prosecutrix started living with accused in live-in relationship and number of times accused made physical relationship with her. On 22.04.2014, prosecutrix came to know that accused was already married when one lady ie accused's wife and his son came to prosecutrix' house. Then accused told that her wife will die very soon as her wife was patient of renal problem and he will marry prosecutrix. On complaint of prosecutrix, present FIR was registered against the accused.
2. After completion of investigation, the challan was filed before the learned M.M. On 26.07.2014. Thereafter, the case was committed to the court of learned FIR No.524/14 PS Vasant Kunj (S) U/s 376(2)(n)/506 of IPC State vs Azad Sharma 1 of 10 District & Sessions Judge, Patiala House Court, New Delhi.
3. The case was assigned to this court on 12.08.2015 in view of circular no. 55/DHC/Gaz./G-1/VI.E.2(a)/2015 dated 7th July, 2015.
4. On 29.06.2015 charge was framed against the accused for the offence punishable u/s 376(2)(n) and 506 of IPC by the Learned Predecessor Court to which accused pleaded not guilty and claimed trial.
5. In order to substantiate the allegations, the prosecution examined Duty Officer ASI Naresh Kumar as PW1, Prosecutrix/complainant as PW2, W/Ct. Indu Bala who accompanied the prosecutrix to AIIMS hospital for her medical examination as PW3, WSI Barhmo Devi, the IO of the case as PW4 and Inspector Upender Singh the subsequent IO as PW5.
6. Admission/denial of the documents was also conducted on 20.10.2015 in which, accused admitted the genuineness of recording of statement of prosecutrix u/s 164 Cr.P.C by learned Magistrate Ex.PW2/C, his MLC and potency test as Ex.PX and PY and MLC of prosecutrix Ex.PW2/B. After completion of prosecution evidence, matter was posted for statement of accused.
7. Statement of accused was recorded u/s 313 Cr.P.C separately in which accused denied all the material allegations and stated that he is innocent and has been falsely implicated in this case. Accused stated that he used to visit the house of prosecutrix to give money as and when demanded by her. He has never assured her to marry her. The present complaint was lodged falsely with a view to extract money from him. He never threatened or blackmailed her. He never took any photographs or threatened to upload the same on internet. Instead, the prosecutrix wanted to blackmail him and for this reason she had kept some photographs in her laptop. She lodged the present complaint when he refused to FIR No.524/14 PS Vasant Kunj (S) U/s 376(2)(n)/506 of IPC State vs Azad Sharma 2 of 10 give her money due to financial crunch to pressurize him to give money. However, accused opted not to lead any defence evidence.
8. Final arguments heard on behalf of both the parties. I have also gone through the records.
9. It is argued on behalf of the State that from the statement of prosecutrix, it is clear that on false promise of accused to marry her, prosectrix started living with accused from April, 2010 to May, 2014 and lastly accused made physical relationship with her on 11.05.2014. PW2/prosecutrix has supported the prosecution story in her examination in chief before the court. She also admitted of having made statement before the magistrate u/s 164 Cr.P.C. Therefore, accused may be convicted for the alleged offence.
10. On the other hand, learned defence counsel argued that accused is innocent and physical relationship between accused and prosecutrix was consensual and this fact has been admitted by the prosecutrix in her cross examination. Accused has been falsely implicated in this case to create pressure upon the accused to extract money from him.
11. The allegation against accused in present case is that with an assurance that the accused will marry prosecutrix in future as her wife was suffering from renal problem, he had sexual relationship with her during the period from April 2010 to May 2014 but accused refused to fulfill his words later on. Thus, question arises whether there was consent of the prosecutrix or not for physical relationship and if she consented, the consent was under misconception of fact i.e she gave the consent only upon the false promise of marriage by the accused or under threat of blackmail by uploading nude pictures/videograph by the accused.
12. Consent is not defined in positive terms in Indian Penal Code but the provisions FIR No.524/14 PS Vasant Kunj (S) U/s 376(2)(n)/506 of IPC State vs Azad Sharma 3 of 10 of section 90 of IPC clearly indicates that what cannot be regarded as consent. Consent given firstly under fear of injury and secondly under a misconception of fact is not a consent at all. The relevant provision of section 90 of IPC is reproduced for ready reference:-
"90. Consent known to be given under fear or misconception. - A consent is not such a consent as is 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."....
13. Section 375 IPC defines rape with a woman against her will. Relevant provision of section 375 IPC are reproduced for ready reference as under:-
375. Rape. - A man is said to commit "rape" if he -
....
....
....
.....
under the circumstances falling under any of the following seven descriptions:-
First. - Against her will.
Secondly. - Without her consent.
Thirdly. - With her consent, when her consent has been obtained
by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly. - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. - With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
FIR No.524/14 PS Vasant Kunj (S) U/s 376(2)(n)/506 of IPC State vs Azad Sharma 4 of 10 Sixthly. - With or without her consent, when she is under eighteen years of age.
Seventhly. - When she is unable to communicate consent.
Explanation 1. - For the purposes of this section, "vagina" shall also include labia majora Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
14. In the case of Pradeep Kumar @ Pradeep Kumar Verma 1, the Hon'ble Supreme Court held as under:-
10. In most of the decisions in which the meaning of the expression consent under the IPC was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words and Phrases, Permanent Edn. And other legal dictionaries.
Stroud defines consent as an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. Jowitt, while employing the same language added the following:
Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent be 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 the mind.
11. 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 female's understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent.
Consent within penal law, defining rape, requires exercise of intelligence (1)Pradeep Kumar @ Pradeep Kumar Verma vs State of Bihar and Anr., Crl. Appeal No.1086 of 2007 decided on 17.08.2007 FIR No.524/14 PS Vasant Kunj (S) U/s 376(2)(n)/506 of IPC State vs Azad Sharma 5 of 10 based on knowledge of its significance and moral quality and there must be a choice between resistance and assent.
15. In the case of Mango Ram2, the Hon'ble Supreme Court observed as under:-
"Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances".
16. In the case of Jayanti Rani Panda3, the Hon'ble Calcutta High Court held as under:-
Para 7:
Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is ... Why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore, it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged.
The discussion that follows the above passage is important and is extracted hereunder:-
The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry. We do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in 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 can not (2) State of H.P. Vs Mango Ram, MANU/SC/0527/2000 : 2000 Cri. LJ 4027 (3)Jayanti Rani Panda vs State of WB, MANU/WB/0299/1983 FIR No.524/14 PS Vasant Kunj (S) U/s 376(2)(n)/506 of IPC State vs Azad Sharma 6 of 10 be called in aid in such a case to pardon the acts of girl and fasten criminal liability on the other, unless the court can be assured that form the very inception the accused never really intended to marry her.
17. The Hon'ble Supreme Court further opined in the case of Uday4" 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 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 straitjacket 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 test laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weight 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".
18. Further, factum of presumption of no consent on behalf of prosecutrix u/s 114A of Evidence Act, 1872 was discussed in case where the allegation of rape is on account of false promise of marriage in case of Deepak Gulati5 and it was observed as under:-
"15. Section 114-A of Indian Evidence Act, 1872 (hereafter referred to as the '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 therein 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 along with 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, that thus, such a physical relationship (4)Uday vs State of Karnataka MANU/SC/0162/2003 (2003 Cri LJ 1539) (5)Deepak Gulati vs State of Haryana, Crl. Appeal. No.2322 of 2010 dated 20.05.2013 FIR No.524/14 PS Vasant Kunj (S) U/s 376(2)(n)/506 of IPC State vs Azad Sharma 7 of 10 would tantamount to committing rape".
19. To prove the allegations the prosecution examined as many as 5 witnesses including prosecutrix/complainant as PW2. In this case, PW2 ie prosecutrix/complainant is the material witness and without her support, the prosecution would never be in a position to prove its case. Albeit, she has partly supported the prosecution case stating that accused made physical relationships with her but simultaneously she stated that the physical relationships made by accused was consensual. In view of her testimony, it would be futile exercise to discuss the testimony of remaining examined witnesses.
20. In her statement, prosecutrix has nowhere stated that accused made physical relationship with her forcibly. PW2/prosecutrix further stated that accused used to tell her that he will marry her stating that his wife is suffering from kidney problem and there is likelihood that her wife would die in 2-3 years. In her cross examination, prosecutrix stated that she was having sexual relations with accused for the past 6 years. The accused was bearing all her expenses like rental, household and other expenses as well. The relationship between her and accused was with her consent. Accused never attempted to rape her. They often had small quarrels but the accused never physically abused her or beaten her. She came to know in 2010 that accused is married and having children. Prosecutrix further deposed that since wife of accused has recovered from her illness and therefore, she does not want to marry accused nor she want any action against the accused.
21. The prosecutrix/PW2 was already married lady having two children at the time of incident and at that time she did not obtain divorce from her husband. Thus, she was major and full-grown up lady who could well understand what is wrong and right. The prosecutrix has supported the prosecution case to the extent that accused made physical relationship with her but simultaneously she stated that FIR No.524/14 PS Vasant Kunj (S) U/s 376(2)(n)/506 of IPC State vs Azad Sharma 8 of 10 the said relationship was made with her consent and even in her examination in chief deposed that she was residing with the accused even before 15 days of her deposition. No doubt, the statement of the prosecutrix alone is sufficient to convict the accused but also equally important fact is that as to what reliance the court should place on statement of prosecutrix in peculiar facts and circumstances of the case. From the statement of prosecutrix, it appears that she became optimistic of marriage with accused in future knowing the health condition of wife of accused. Prosecutrix started living with accused in live-in relationship with a hope that accused will marry her in future if her wife who was suffering from kidney problem, will expire. But accused refused to marry prosecutrix as her wife got recovered from her illness. Thus, it cannot be said that accused had no intention to marry her or he made physical relationship with prosecutrix on false promise of marriage. In her cross examination, prosecutrix has categorically stated that accused used to ask her that he will marry her in future in case his wife who was suffering from kidney problem, will die. The relationship became bitter when accused's wife got recovered from kidney problem due to which accused stopped giving financial assistance to the prosecutrix. From the statement of prosecutrix/PW2, it is clear that physical relationship was made by the accused with consent of prosecutrix. In her cross examination on behalf of the accused, she has clearly stated that she was never raped by the accused and physical relationships with her by the accused were with her consent. Thus, this court does not see any reason to assume that the physical relationship made by the accused with prosecutrix was without her consent or there was no intention of accused to marry prosecutrix since beginning and attracts commission of offence u/s 376 (2)(n) of IPC.
22. Further, there is no evidence on record that there was any nude photos or veideographs available with accused to blackmail her.
23. From the aforesaid discussions, it is clear that in this case, the prosecutrix was FIR No.524/14 PS Vasant Kunj (S) U/s 376(2)(n)/506 of IPC State vs Azad Sharma 9 of 10 consenting party as she never made any complaint about the intention or such promise made by the accused till the date of last incident. No conclusive incriminating evidence has come against the accused in the testimony of prosecutrix. Thus, in view of the testimony of prosecutrix/PW2 and peculiar facts and circumstances of the present case, this court has no option but to acquit the accused.
24. In view of the aforesaid discussions and aforesaid case laws, it is held that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused is acquitted of charges leveled against him. Accused is directed to furnish fresh bail bond in the sum of Rs.20,000/- in terms of section 437A Cr.P.C. At this stage, fresh bail bonds furnished u/s 437A Cr.P.C and accepted for a period of six months. His earlier bail bond stands cancelled. Surety stands discharged. Original documents, if any, be returned back to the rightful claimant after endorsement cancelled thereupon. File be consigned to the Record Room after due completion.
(Devendra Kumar Sharma) ASJ/FTC/Court No.7/PHC Lockup Building/11.12.15 Announced in open court on 11.12.2015 (Total number of page 10) (One spare copy attached) FIR No.524/14 PS Vasant Kunj (S) U/s 376(2)(n)/506 of IPC State vs Azad Sharma 10 of 10