:1: In the Court of Ms. [ENTITY] Additional Sessions JudgeSpl. FTC02 (Central) Tis Hazari Courts: Delhi. [CASE NUMBER] Unique ID No. : 02401R0808642008 State versus [ENTITY] S/o Sh.[ENTITY] R/o 32/33, Kucha Choudhary, Chandni Chowk, Delhi. Case arising out of: FIR No. : 533/07 Police Station : Timarpur Under [SECTION] [ACT] Judgment reserved on : 06.07.2013 Judgment pronounced on : 18.07.2013 JUDGMENT
The case in hand was registered on the basis of a complaint made by the complainant dated 25.09.2007, which was filed before the concerned Metropolitan Magistrate. Vide order dated 29.09.2007, SHO concerned was directed to register the FIR and investigate the matter.
It was contended by the complainant that she is originally a native from Bangalore and is the legally wedded wife of the accused.
It is alleged that the accused was introduced to her by her brotherinlaw at Bangalore. Thereafter, the accused started extending promises to marry the complainant and on this pretext the complainant accompanied the accused to Delhi and brought with her jewellary worth Rs.1,50,000/ and cash amount of Rs.2 lakh and the same was handed over to the accused.
It is further alleged in the complaint that accused put '[ENTITY]' on the forehead of the complainant and told her that now onwards both of them were husband and wife. They started living at Laxmi Nagar, East Delhi and thereafter the complainant stayed with him at DDA Flats, Jhilmil Colony, East Delhi.
It is further alleged by the complainant that on number of occasions she had told the accused that she desires to visit his parents house and upon her putting much pressure, the accused took the complainant to his parents house, where his parents, his brotherinlaw started using abusive language and told that they did not acknowledge the complainant as their daughterinlaw. Accused told the complainant that he would arrange for an alternative accommodation and he persuaded the complainant that his business is not running smoothly and if he has to purchase even a small house, he needs at least Rs.10 lacs. Thereafter, the complainant went to her native place at Bangalore and took Rs.6 lacs from her mother as her share in her parental property. The said amount of Rs.6 lacs was given to the accused by the complainant. On his assurance that this amount would be used to purchasing their house, it was alleged that on one pretext or the other, the accused did not purchase the house rather embezzled the money. Thereafter, the accused just in order to get rid did not allow the complainant to conceive and forcibly took her to the nursing home for abortion and after giving sleeping pills got the child aborted.
The complainant further alleged that the accused ruined her life, sexually exploited her and has misappropriated the jewellary worth Rs.1.50 lacs and cash amount of Rs.2 lacs taken at the time of marriage and thereafter deceiving the complainant and lured her to part with a sum of Rs.6 lacs and accordingly has cheated and misappropriated her. Further, the accused has lured the complainant by sexually exploiting the complainant and thereby misappropriated for the amount of Rs.2 lacs, jewellary and a further sum of Rs.6 lacs, which he promised to purchase a house for the living of the complainant and that the accused escaped from his undertaking and promise and ran away leaving the complainant at lurch at the mercy of public.
During the course of investigation, medical examination of the Prosecutrix was got conducted by the IO/WASI [ENTITY] on 09.10.2007 vide [CASE NUMBER] and the exhibits and sample seal were taken into possession. The accused was arrested on 24.10.2007 vide arrest memo Ex.PW7/A and his medical examination was also got conducted on 24.10.2007 vide [CASE NUMBER]. The exhibits and sample seals pertaining to the accused and the prosecutrix were sent to the FSL, Rohini for expert opinion. As per the charge sheet, during the course of further investigation, the complainant/prosecutrix was asked to produce the evidence in support of her complaint. However, the complainant was neither able to provide any evidence with respect to the same nor had supplied any medical papers and proof regarding the money which she had handed over to the accused. Based on the aforesaid information, the case challan under [SECTION] [ACT] was prepared. The FSL result so obtained was tagged with the case file and after completion of the investigation, the case was sent up for trial. Charges :
On the basis of material on record, charge under [SECTION] & [SECTION]/[SECTION] [ACT] was directed to be framed against the accused [ENTITY] vide detailed order dated 28.03.2011 and consequently on 12.07.2011 charge under the aforesaid sections was framed, to which he pleaded not guilty and claimed trial.
Prosecution Evidence :
The Prosecutrix 'A' being the complainant was examined as PW4, who deposed that her brotherinlaw ([ENTITY]) namely [ENTITY] introduced her to the accused as the accused is the friend of [ENTITY]. She further deposed that accused deals in camera and he has a shop in Chennai. The accused used to visit Bangalore because he used to purchase cameras which were imported from Singapore. She also deposed that as the accused used to meet his brotherinlaw, the accused came close to her and both of them became friend and the accused promised her that he would marry her and that on the promise of the accused, she accompanied him to Delhi in the year 2003. She also brought with her jewellery worth Rs.1.5 lacs and cash Rs.2 lacs. She along with accused started living at Laxmi Nagar at Delhi in a two room rented accommodation.
The Prosecutrix further deposed that in the month of February, 2003 the accused took her to a Mandir, where he performed marriage with her by filling her Maang with [ENTITY] and tied Mangalsutra around her neck and both of them started living as husband and wife in Laxmi Nagar in rented accommodation. She further deposed that accused had taken from her jewellary amounting to Rs.1.5 lacs and cash of Rs.2 lacs and during the stay with accused as his wife, she became pregnant three times. She also deposed that she wanted to give birth to a child but the accused gave medicines to abort.
The prosecutrix further deposed that accused told her that he wants to purchase his own house and asked her to bring an amount of Rs.10 lacs from her mother. She told the accused that her mother was unable to fulfil the demand of Rs.10 lacs. Thereafter she along with accused went to Bangalore, where accused told her to demand Rs.
10 lacs from her mother. Accused demanded Rs.10 lacs from her mother for purchasing a house. Initially her mother refused to give Rs. 10 lacs to accused. She also deposed that she asked her mother to give her share in ancestral property as she had already given share of the property to her elder sister [ENTITY]. Her mother gave her Rs.6 lacs as her share in the ancestral property, which she gave to the accused. The witness also deposed that she along with accused came back to Delhi and started living in the same rented accommodation where they used to live and that the accused had not purchased any house but they lived in the same rented accommodation. They stayed in different accommodation in the area of Laxmi Nagar till December, 2006 and then shifted to a rented accommodation in Wazirabad in the month of JanuaryFebruary, 2007. She further deposed that while shifting from Laxmi Nagar to Wazirabad, accused hired two trucks for loading the house hold articles. In one truck, he loaded almirah, bed and other articles and in the second truck, he loaded the house hold articles and kitchen items. When we reached at Wazirabad, ony one truck reached there which carry the house hold articles and kitchen articles and the second truck did not reached there. The Prosecutrix deposed that the accused had deliberately made the truck not to reach at the rented accommodation at Wazirabad because in the almirah there were documents showing my marriage with the accused, photographs showing her and the accused and other medical documents. The Prosecutrix had asked the accused as to why he had not purchased the house to which he told her that he would purchase his house.
PW1 further deposed that on one day in the evening hours, she told the accused that she was not feeling well, who in turn asked her to come in Chandni Chowk for medical treatment where he was running a shop in Chandni Chowk. As told by the accused she reached at Chandni Chowk for treatment and accused met her at some private hospital where the doctor gave her medical prescriptions and thereafter accused called his friend with a vehicle and told that they were going to Rajasthan. She told the accused that she was not feeling well and she need rest on which the accused told her that he had money and he would given her medical treatment on the way if required. She also deposed that instead of taking her to Rajasthan, they took her to Haryana and on the way the accused had shown bundle of Rs.500/ to her. While they were coming back to Delhi from Haryana, the accused gave her lemon water and after taking lemon water, she became unconscious. She deposed that the accused wants to kill her and that the accused and his friend dropped her at the rented accommodation at Wazirabad, Delhi and never came to the rented accommodation at Wazirabad, Delhi.
The Prosecutrix further deposed that she went to the house of accused at Chandni Chowk as well as to the shop of accused twice in a photo market at Chandni Chowk, Delhi, but he was not found there. She made calls on the mobile number of accused on number of times but he did not pick up her phone despite ringing. There was no food at her house and no money to maintain herself and that she was served with food by the landlord where she resided in tenanted premises. She further deposed that the accused had neither returned her jewellery and cash taken from her nor he joined her after leaving her alone at rented accommodation at Wazirabad and that she started working as maid servant in the nearby houses and earned her livelihood.
She also deposed that she gave complaints against the accused to PS Timarpur, DCPNorth, Hon'ble LG, Principal Secretary, Home Secretary and the Chairman of Delhi Women Commission, Hon'ble Chief Minister of Delhi, which were duly received (Marked as PW4/1 to PW4/7) but the police did not register the case against the accused. She then filed complaint and application under [SECTION] [ACT] before the court (Ex.PW4/A) and on the direction of the court, the instant case was registered and she was taken to the hospital by the police for her medical examination. She also deposed that [ENTITY], who was the friend of the accused had attended her marriage with the accused. She even asked him about where the accused had gone who told her that he does not know where the accused had gone.
PW1 ASI [ENTITY] who being the duty officer on 07.10.2007 received the rukka, recorded the case FIR and proved the same as Ex.PW1/A. PW5 is W/Ct. [ENTITY], who deposed regarding taking the Prosecutrix to Aruna Asif Ali Hospital for her medical examination and handing over of two slides so received from the hospital to the IO, who seized the same vide seizure memo Ex.PW5/A. Whereas PW6 [ENTITY] deposed regarding the deposit of case property by W/ASI on 09.10.2007 & 24.10.2007 and proved the relevant entry in Register No.19 as Ex.PW6/A1, Ex.PW6/A2 & Ex.PW6/B respectively. This witness also deposed regarding the handing over of the three exhibits and two sample seals to Ct.[ENTITY] for their onward submission at FSL, Rohini vide RC No.218/21 and proved the same as Ex.PW6/C and its acknowledgment as Ex.PW6/D. He further deposed that on 09.05.2008, he went to FSL Rohini and obtained the FSL result with case property and deposited the case property with [ENTITY] and handed over the result to IO W.ASI [ENTITY].
[ENTITY] was examined as PW9 who deposed regarding having received three sealed pullandas and two sample seals of Aruna Asaf Ali Hospital from MHC(M) PS Timarpur and depositing the same at FSL, Rohini against its acknowledgment. While PW7 Ct.[ENTITY] deposed regarding arrest of accused vide arrest memo Ex.PW7/A and taking of the accused to the Aruna Asaf Ali Hospital for his medical examination and collection of the one pullanda containing the blood sample of the accused with sample seal of the hospital from the hospital and handing over the same to the IO, who seized the same vide seizure memo Ex.PW7/B. W.ASI [ENTITY] stepped into the witness box as PW10. She deposed that on 07.10.2007 after registration of the FIR, the investigation of the case was handed over to her. She further deposed that consequent upon receipt of FIR and rukka Ex.PW10/A from the duty officer, she went to the house of complainant at Wazirabad and made her join the investigation. This witness further deposed regarding conduction of medical examination of Prosecutrix at Aruna Asaf Ali Hospital on 09.10.2007 vide MLC (Ex.PW8/A) and collection of two sealed pulandas along with one sample seal of CMO,AAA hospital which was seized by her vide seizure memo Ex.PW5/A. She also deposed regarding arrest of the accused Ex.PW7/A, medical examination of the accused at AAA hospital vide MLC Ex.PW3/A and collection of one sealed pulanda along with sample seal and its seizure vide memo Ex.PW7/A. She further deposed regarding collection of the exhibits from the malkhana and deposit of the same at FSL, Rohini by Ct.[ENTITY] (PW9) on her instructions on 26.11.2007.
PW2 is Dr.[ENTITY], Assistant Director (Biology), FSL, Rohini, Delhi, who deposed regarding receipt of three sealed parcels from SHO PS Timarmpur, Delhi on 26.11.2007. This witness also proved the Biological Report and Serological Report in this context as Ex.PW2/A and Ex.PW2/B respectively. Whereas Dr.[ENTITY] stepped into the witness box as PW3 and deposed regarding conducting of medical examination of the accused [ENTITY] by her on 24.10.2007 vide [CASE NUMBER] and proved the same as Ex.PW3/A. While, PW8 Dr.[ENTITY] appeared in the witness box to depose on behalf of Dr.[ENTITY] who conducted the medical examination of the Prosecutrix vide [CASE NUMBER]. This witness identified the signatures of Dr.[ENTITY] on the MLC proved as Ex.PW8/A as she had seen her writing and signing during her course of employment.
It is pertinent to mention that vide order dated 04.06.2013 Sh.[ENTITY] was ordered to be summoned as a witness by the court keeping in view the fact that Prosecutrix resided at Gali No.8, Wazirabad Village, Delhi as tenant in his house.
Sh.[ENTITY] was examined as CW1. He deposed that he is the owner of he is the owner of house at Gali No.8, Wazirabad Village, Delhi, which had been let out by him. This witness correctly identified the accused and deposed that in the year 200607 accused came to him for taking his said house on rent. He let out his house to the accused at the rent of Rs.2000/ per month and asked him for verification but the accused failed to provide the necessary documents. He also deposed that Accused had taken the said house on rent stating that it is required for residence for himself and his wife namely Smt.[ENTITY]. The accused lived with the said lady in that house for about 45 days after which he left from there. Smt.[ENTITY] came to his house at Gali No.5 to inquire about the accused but he expressed his inability to tell anything about his whereabouts. He further deposed that Smt.[ENTITY] vacated his house after 1015 days stating that she and her husband were earlier residing at Laxmi Nagar in a rented premises and that her husband had also a house at Lajpat Rai Market. This witness also went along with Smt.[ENTITY] to the said address at Lajpat Rai Market and left her there. This witness also deposed that he do not remember correctly but probably it was the house of the accused at Lajpat Rai market where he had dropped Smt.[ENTITY] on her request.
Plea of the Accused & defence evidence :
The evidence on record was put to the Accused in his statement recorded under [SECTION] [ACT]. In his said statement he pleaded innocence and stated that the complainant/Prosecutrix is trying to falsely implicate him as she was his employee as sales girl at his shop and had taken Rs.20,000/ as advance from him towards her salary and she wanted another advance of Rs.15,000/ which he refused to give to her. He stated that the complainant is a prostitute and used to work and live at Kotha at G.B.Road and he tried to help her by giving her job when she came to his shop along with one other person who she said was her uncle. He gave her job and she started misbehaving with his customers and making her customers at his shop for the purposes of prostitution and his customers started complaining against her as she used to allure them for prostitution. He had to removed her from job. Thereafter, she started threatening him to falsely implicate him in this case and got his photographs and articles published in the local private newspaper against him. He also stated that the complainant also created lot of disturbance and ruckus against him terminating her at his shop and also at his house. He was constrained to approach Civil Court to seek an injunction against her. The Civil Court has passed a decree in his favour and against her. It was also pleaded by the accused that the complainant also filed a case under [SECTION] of [ACT] and [SECTION] [ACT] against him which have been dismissed.
Pursuant to examination of CW1 Sh.[ENTITY], Additional Statement of Accused was recorded under [SECTION] [ACT] on 03.07.2013, wherein the accused pleaded that he do not know as to who is the owner of the house at Gali No.8, Village Wazirabad as he has not met Sh.[ENTITY] for renting out his property. There is no question of providing the necessary documents for verification at the time of taking the said house on rent from CW1 as he has never taken any house on rent from Sh.[ENTITY]. He further stated that he has never said or met Sh.[ENTITY] for giving on rent his property to me or to Smt.[ENTITY] and that Smt.[ENTITY] is not his wife. He never lived in the house of Sh.[ENTITY], neither as a tenant nor otherwise so there is no question of leaving the said premises. He do not know about the inquiry made by Smt.[ENTITY] about him or anyone else. He lastly stated that he is not aware as to when Smt.[ENTITY] lived or vacated the premises of Sh.[ENTITY].
Arguments, Analysis and Findings :
I have heard arguments of Defence as well as Prosecution in the light of the evidence on record and considered the relevant case law cited before me in support of respective arguments. I have also gone through the written submissions of the ld. Defence counsel.
The arguments of learned defence counsel were two fold. It was firstly contended that the accused neither married the Prosecutrix, nor did he ever reside with her as her husband. It was argued that the Prosecution has failed to bring on record any proof, either documentary or otherwise, to establish the allegations of marriage between him and the Prosecutrix. My attention was drawn to the crossexamination of the Prosecutrix (PW4), wherein she even failed to state the name and address of the temple where the accused allegedly solemnized marriage with her.
Learned defence counsel also argued that there is no independent witness to support the claim of the Prosecution that the accused had married the Prosecutrix at any point of time. It was further argued that the Prosecution has also miserably failed to prove that the accused and the Prosecutrix lived as husband and wife or that the accused cheated her, as alleged.
It was contended that the Prosecutrix (PW4) herself admitted in her crossexamination that there is no photograph of marriage of her and the accused nor is there any other documentary proof viz., voters' card, ration card etc., where accused is mentioned as her husband. It was contended that the although the Prosecutrix claimed that all such documents were taken away by the accused, yet no complaint to this effect was made by her to the police.
It was further contended that the court witness who was examined in terms of order dated 04.06.2013 as CW1 Sh.[ENTITY], is a false witness and his testimony cannot be relied upon. Learned defence counsel contended that CW1 Sh.[ENTITY] did not furnish any documentary proof regarding letting out the house at Gali No.8, Wazirabad Village, Delhi to the accused nor did he proved any other document to show that the accused and the Prosecutrix resided in his house on rent as husband and wife.
The second limb of the argument advanced by learned defence counsel was that even if it is assumed for the sake of arguments that the accused did marry the Prosecutrix as alleged, even in these circumstances no offence of rape can be said to be made out against the accused since the Prosecutrix herself claims to be his wife. It was pointed out that the opening line of the complaint Ex.PW4/A is that "the complainant is the legally wedded wife of the accused". It is also the own case of the Prosecution that the accused married her by filling her 'Maang' with '[ENTITY]' and tied of 'Mangalsutra' around her neck and since she accepted and considered herself as wife of the accused, no case of rape can be made out against the accused. Moreover, Prosecutrix deposed before the court that she still considers herself to be the wife of the accused and hence no offence under [SECTION] [ACT] can be said to have been committed by the accused in view of the aforesaid.
Learned defence counsel also argued that though the Prosecutrix deposed before the court that she brought jewellary and cash with her when she came to Delhi from Bangalore and also got Rs.6 lacs from her mother for purchasing a house, yet there is no evidence to this effect except the bald statement of the Prosecutrix. Neither the mother nor the brotherinlaw of the Prosecutrix were cited or examined as witness nor is there any other proof to establish the fact that the accused misappropriated the cash and jewellary of the Prosecutrix and hence no offence under [SECTION] [ACT] can be made out against the accused.
On the other hand, the Prosecution argued that the accused has cheated the Prosecutrix and misappropriated her jewellary and cash. It was also argued by the ld. APP that the accused on the pretext of marrying the Prosecutrix gave her an impression that she is his legally wedded wife, which impression she carries till date, whereas the accused denies that she is his wife. It was hence argued that the Prosecutrix, in these circumstances, cannot be said to have given her free and voluntary consent for sexual intercourse with the accused and the accused is thus guilty of committing rape upon the Prosecutrix and criminally misappropriated her cash and jewellary.
Upon considering the rival submissions made before me and on going through the record of the case, it cannot be disputed that there is no evidence either in the form of any document or any witness to support the Prosecution case regarding 'Marriage'of the accused and the Prosecutrix. Prosecutrix (PW4) herself deposed before the court that the accused took her to a Mandir where he performed marriage with her by filling her 'Maang' with '[ENTITY]' and tied 'Mangalsutra' around her neck. She claimed that one friend of the accused namely [ENTITY] was also the witness to the said marriage. Obviously, the friend of the accused would not be produced in the witness box to depose against him.
Be that as it may, on the other hand, on going through the record of the case, particularly the deposition of the Prosecutrix, it is revealed that she claimed that she is still the wife of the accused (reference may be made to her crossexamination recorded on 08.10.2012). It is hence clearly borne out that the Prosecutrix was given the impression by the accused that he has solemnized marriage with her by filling her 'Maang' with '[ENTITY]' and tying 'Mangalsutra' around her neck. It has also come on record during the cross examination of the Prosecutrix that she cannot read and write. It is also not in dispute that the Prosecutrix is a native from Bangalore. In her deposition before the court, the Prosecutrix candidly deposed before the court that she is not aware of the name of the temple where the accused performed the marriage with her nor did she know the location of the said temple. She categorically stated in her crossexamination recorded on 18.02.2013 that she did not take the police to the temple where accused solemnized the marriage with her.
It is also the claim of the Prosecutrix that the accused took away all the photographs and medical documents regarding her marriage with the accused and other medical documents. She deposed that when they were shifting from Laxmi Nagar to Wazirabad in the month of JanuaryFebruary2007, accused hired two trucks for loading the house hold articles. In one truck, he loaded almirah, bed and other articles and in the second truck he loaded the house hold articles and kitchen items and when they reached at Wazirabad, only one truck reached there which carry the household articles and kitchen articles and the second truck did not reach there. She also deposed that the accused had deliberately made the truck not to reach at the rented accommodation at Wazirabad because in the almirah there were documents showing her marriage with accused, photographs showing her and the accused and her medical documents. She also stated that accused had demanded Rs.10 lacs from her mother for purchasing a house. Initially her mother refused to give the money but she asked her mother to give her share in ancestral property. Her mother then gave her Rs.6 lacs as her share in the ancestral property which she gave to the accused. At the same time, her mother also told her that thereafter she should not meet her.
In the light of the aforesaid, the Prosecutrix cannot be expected to be in a position or able to produce any evidence with regard to her marriage with the accused.
I may at this juncture, also mention that the Investigation Officer, has also for reasons best known, failed to conduct proper investigation in the matter.
It is noteworthy that the IO recorded statements of only four witness in the name of investigation of this case. As per the chargesheet, the only witnesses whose statements were recorded under [SECTION] [ACT] are Ct.[ENTITY], L/Ct.[ENTITY], Ct.[ENTITY] and [ENTITY]. For reasons best known, the IO did not even bother to record the statement of Prosecutrix under [SECTION] [ACT] and rather wrote in the charge sheet that the Prosecutrix was unable to produce any proof against the accused.
The testimony of the Prosecutrix (PW4) that accused took away all documentary proof thus cannot be said to be an after thought, as argued by the ld. Defence counsel.
I also on going through the record find that though admittedly there is no police complaint given by the Prosecutrix regarding the contention that the accused took away all documentary proof of marriage and medical record etc. while they were shifting to Wazirabad as he diverted the said truck which contained the said articles along with the belongings. However, the Prosecutrix in her crossexamination recorded on 18.02.2013 explained before the court that the accused did not leave behind any proof of their living together. She also stated that she did not inform the police when the accused was taking away everything as he cheated her whey they were moving to Wazirabad and prior to that she was not aware of his intentions. Noticeably, the complaint Ex.PW4/A, on the basis of which the present case was registered bears the address of the Prosecutrix of Wazirabad. Hence, admittedly when she filed the said complaint, she was residing in Wazirabad. As deposed by her, she was not aware of the true intentions of the accused at that time. IO has even failed to record her statement under [SECTION] [ACT]. There was hence, no occasion for the aforesaid facts to come on record by way of the present charge sheet.
It is also pertinent to note that as per record, the Prosecutrix filed an application under [SECTION] [ACT] praying for further investigation into the matter alleging connivance of the Investigation Officer with the accused. However, the said application was dismissed vide order dated 16.11.2010 passed by the learned committal court. Be that as it may, it cannot be said that the Prosecutrix never tried to bring on record the relevant facts or that it was an after thought.
The allegations regarding the hiring of two trucks by the accused and taking away the evidence relating to their marriage photographs and other valuable goods were brought on record by the Prosecutrix by way of her affidavit dated 27.09.2008. The said affidavit was accompanying the application under [SECTION] [ACT].
Moreover, the Prosecutrix deposed before the court that their marriage was attended by one [ENTITY], who is the friend of the accused. She also claimed that she lived in the rented accommodation at Gali No.8, Wazirabad Village, Delhi. While filing the charge sheet the address of the Prosecutrix was mentioned as C/o Sh.[ENTITY]. R/o Gali No.8, Wazirabad Village, Delhi. Despite this, Sh.[ENTITY] was not cited as a prosecution witness.
However, vide order dated 04.06.2013 Sh.[ENTITY] was summoned by the court and examined as CW1. On stepping into the witness box, he deposed before the court that he had let out his house at Gali No.8, Wazirabad Village, Delhi to the accused at a monthly rent of Rs.2000/. He identified the accused present before the court and deposed that the accused had taken the said house on rent stating that it is required for residence for himself and his wife namely Smt.[ENTITY]. He deposed that the accused lived with the said lady in that house for about 45 days after which he left from there and Smt.[ENTITY] came to his house to inquire about the accused.
I am unable to subscribe to the arguments of learned defence counsel that CW1 Sh.[ENTITY] is not a reliable witness. It is noteworthy that CW1 Sh.[ENTITY] is an independent public witness. There is no reason, whatsoever, for him to depose falsely before the court. Though a slight deviation in his statement regarding dropping of Prosecutrix at the house of accused by his son and not by him, has been brought at in his cross examination, yet the same is, not in my view, so material, so as to discard the testimony of this witness completely.
Moreover, in the entire crossexamination of CW1 Sh.[ENTITY] not even a single suggestion has been put to the witness as to why he would depose falsely before the court. There is nothing to suggest that he is an interested witness or that he was given anything for deposing falsely at the instance of the Prosecutrix. Rather, I find that the deposition of CW1 Sh.[ENTITY] fully corroborates the testimony of the Prosecutrix. He brought out before the court by way of his testimony that the accused took his house on rent for residing there with his wife 'A' i.e. the Prosecutrix and he left thereafter leaving the Prosecutrix alone in the house after few days.
The testimony of the Prosecutrix (PW4) thus stands fully corroborated by the deposition of CW1 Sh.[ENTITY]. The claim of the Prosecutrix that the accused lived with her in the said house at Wazirabad as her husband has been duly corroborated by the deposition of the independent public witness CW1 Sh.[ENTITY], who testified that he had let out his house at Gali No.8, Wazirabad village to the accused and the Prosecutrix lived with the accused in that house. The address of the Prosecutrix mentioned in the list of the witnesses annexed with the charge sheet is also the same i.e., C/o Sh.[ENTITY], Gali No.8, Village Wazirabad, Delhi.
From the aforesaid evidence, I am therefore convinced that there is sufficient evidence on record to establish beyond reasonable doubt that the accused and the Prosecutrix lived as husband and wife in the house of CW1 Sh.[ENTITY] at Gali No.8, Village Wazirabad, Delhi. The absence of any documentary proof by way of an Voters' ID Card, Ration Card etc. also stand fully explained from the deposition of the Prosecutrix herself as discussed in the preceding paragraph. The question of presence of any independent witness at the time of marriage of the accused with the Prosecutrix also does not arise as it was witnessed by the friend of the accused himself.
It thus stands proved on record that the accused misrepresented to the Prosecutrix that she is his legally wedded wife, though no proper marriage was solemnized between the accused and the Prosecutrix.
A possible argument which could have been raised by the defence, though not argued in so many words, is that the Prosecutrix herself was not a minor when she allegedly married the accused and was supposed to know that no marriage could be solemnized by filling of 'Maang' with the '[ENTITY]' and by tying 'Mangalsutra' around her neck. The obvious explanation for this possible argument is that the Prosecutrix belonged to Bangalore and was also an illiterate lady. She possibly did not know the rituals to be followed at the time of marriage, particularly in northern part of India.
I may hasten to add at this juncture that even otherwise, it is not the case of the Prosecution that any marriage was in fact solemnized between the accused and the Prosecutrix. Rather, from the evidence on record, it has been clearly brought out that the Prosecutrix was given an impression by the accused that she is his wife and she continued to remain under the said misrepresentation given by the accused that he has married her.
There is evidence in the form of deposition of the independent public witness i.e. CW1 that the accused and the Prosecutrix lived in a rented accommodation as husband and wife. Hence, in these circumstances I find that it stands proved on record that the accused gave Prosecutrix an impression of marriage between them. It has been proved that they lived as husband and wife in the house of CW1 Sh.[ENTITY].
The Prosecutrix, on the other hand, still believes herself to be the wife of the accused, though the accused clearly denies the same.
From the deposition of the Prosecutrix, I also find that it has been clearly brought out on record that sexual relations were established between the accused and the Prosecutrix and that they lived as husband and wife. She has also deposed that she conceived thrice but the accused made her to abort. The absence of medical record for the same has been duly explained by the Prosecutrix (PW4), as discussed in the preceding paragraphs.
Hence, it has been established on record that the sexual relations were established with the accused and the Prosecutrix, yet the question which now arises is as to whether the said sexual relations were in fact established with the consent of the Prosecutrix or not. In other words, in order to establish the commission of offence under [SECTION] [ACT], it is now to be determined as to whether the Prosecutrix voluntarily gave her consent for sexual relations with the accused.
[SECTION] [ACT] deals with consent. It reads as under : "90. Consent known to be given under fear or misconception A consent is not such a 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".
The term 'Misconception of fact' has not been defined in the Code. A bare reading of [SECTION] [ACT] makes it clear that any consent given under a misconception is invalid, if the person to whom the consent is given is aware of its existence. In [PRECEDENT], a Division Bench of the Madras High Court considered the scope and amplitude of the expression 'misconception of fact' occurring in [SECTION] in the context of the offence of kidnapping. It was held :
"the expression 'under a misconception of fact' is broad enough to include all cases where the consent is obtained by misrepresentation, the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given."
This decision lays down that a misrepresentation as regards the intention of the person seeking consent i.e. the accused, could give rise to the misconception of fact.
The scope and ambit of [SECTION] [ACT] was also discussed by the Hon'ble Supreme Court in its pronouncement titled as [ENTITY] @ Dilip Kumar vs. State of Bihar, (2005) 1 SCC 88, wherein it has been held as under: "The factors set out in the first para of [SECTION] are from the point of view of the victim.
The second part of [SECTION] enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear or injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception the consent would not have been given. This is the scheme of [SECTION] which is couched in negative terminology."
Although the case of [ENTITY] (Supra) relied upon by the ld. Defence counsel was distinguishable on facts, however, in the said case, the concept of 'consent' and 'misconception' within the meaning of [SECTION] [ACT] was discussed at length.
Learned defence counsel also relied upon several judgments of the Hon'ble Supreme Court and Hon'ble High Courts in support of his arguments, which form part of the record. However, on going through the same, I find that the judgments relied upon by the learned defence counsel during the course of his arguments are distinguishable on facts. They relate to the cases where sexual relations were established by the accused on the false promise of marriage. The present case, however, stands completely on a different footing. It is a case where the accused taking advantage of the naivety of the Prosecutrix made her believe that she is his legally wedded wife. Because of the said misrepresentation of the accused, the Prosecutrix 'A' (PW4) lived as his wife and apparently consented for sexual relations with the accused under the misconception that he is her legally wedded husband. The consent of the Prosecutrix (PW4), in these circumstances, cannot be said to be a free or voluntary consent.
In the judgments relied upon by the learned defence counsel, the view taken by the Hon'ble Superior Courts, particularly in [PRECEDENT] and [ENTITY] (Supra) that a false promise is not a fact within the meaning of consent. The present case is however, clearly distinguishable on facts. The case in hand is one where prosecutrix was given misrepresentation by the accused regarding solemnization of their marriage and hence the judgments relied upon by the learned defence counsel have no application to the present case.
Further, accused failed to bring on record any evidence to prove his defence that Prosecutrix (PW4) was employed at his shop or that he gave advance which she refused to return and hence falsely implicated him in this case. No evidence either in the form of any receipt of salary, employee register or statement of nearby shopkeeper has been led to prove this plea. Further, no customer or any family member has been examined to prove 'ruckus' allegedly created by her either at the shop of accused or at his house. Furthermore, during the course of arguments, learned defence counsel drew my attention to the crossexamination of the IO ASI [ENTITY] (PW10), who deposed that accused took him to two kothas at G.B.Road, where two ladies running the kothas stated on seeing the photograph of the Prosecutrix that she had lived at the Kotha for 56 months. However, this, in itself, in my view, is wholly insufficient to hold that the Prosecutrix was a prostitute as claimed by the accused. Moreso, the IO admittedly did not record their statement nor the kotha owners were summoned as DWs.
I also find that the certified copies of documents filed by the accused cannot be said to be admissible in evidence per se as submitted by ld. APP. Although, there is no doubt that the judgments of the concerned courts in the suit for permanent injunction and HMA can be taken judicial note of. However, the fact still remains that the observations of the learned civil court in the said judgments cannot have a bearing upon the present case.
In the light of the evidence on record and the aforesaid discussion, the accused, in my opinion, is liable to be convicted for the offence punishable under [SECTION] [ACT]. I may reiterate, even at the cost of repetition that there is ample evidence on record by way of deposition of the Prosecutrix duly corroborated by the testimony of CW1 Sh.[ENTITY] that the accused and the Prosecutrix lived as husband and wife in the house of CW1 Sh.[ENTITY]. It has also been proved that the consent of the Prosecutrix was obtained by the accused by misrepresenting to her that he has married her by putting '[ENTITY]' in her 'Maang' and tying 'Mangalsutra' around her neck.
Insofar as offence under [SECTION] [ACT] is concerned, I find that there is no evidence on record except the testimony of the Prosecutrix that she handed over cash amounting to Rs.6 lacs and jewellery to the accused, which she brought from her native place at Bangalore. In the light of this evidence the accused [ENTITY], in my view, is entitled to benefit of doubt with regard to the charge for offence under [SECTION] [ACT]. He is accordingly acquitted for the same.
Hence, considering the above discussion and the evidence on record, as also the relevant case law, accused [ENTITY] S/o Sh.[ENTITY] is hereby convicted for the offence punishable under [SECTION] [ACT]. Let him be heard on the point of sentence. Announced in the open Court on July 18, 2013 ([ENTITY]) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
In the Court of Ms. [ENTITY] Additional Sessions JudgeSpl. FTC02 (Central) Tis Hazari Courts: Delhi.
[CASE NUMBER] Unique ID No. : 02401R0808642008 State versus [ENTITY] S/o Sh.[ENTITY] R/o 32/33, Kucha Choudhary, Chandni Chowk, Delhi. Case arising out of: Police Station : Timarpur Under [SECTION] [ACT] Judgment pronounced on : 18.07.2013 ORDER ON SENTENCE
Vide judgment dated 18.07.13 accused [ENTITY] S/o Sh.[ENTITY] has been convicted for offence punishable under [SECTION] [ACT].
I have heard the arguments on the point of sentence. It is submitted by the learned defence counsel that the convict [ENTITY] is a sole bread earner of his family. His family comprises of his aged mother and wife who is in family way. It is further submitted that the convict is not involved in any previous case. A prayer for releasing the convict on probation has been made by the learned defence counsel.
The prayer for lenient view is opposed by the Prosecution on the ground of seriousness of the offence proved to have been committed by the above named convict. It is also submitted that there is no question of releasing him on probation in view of the aforesaid.
Having regard to the totality of the facts and circumstances of the case and the offence which has proved to have been committed by the convict [ENTITY], which undoubtedly is a serious offence, I am of the opinion that interest of justice would be served if the convict [ENTITY] is sentenced as under :
For the offence under [SECTION] [ACT], the convict [ENTITY] S/o Sh.[ENTITY] is sentenced to undergo Rigorous imprisonment for a period of 07 years in addition to payment of fine of Rs.10,000/, in default whereof, he shall undergo for Simple Imprisonment for 01 year.
In addition thereto, keeping in view the facts and circumstances of the case, I also recommend payment of compensation to the Prosecutrix 'A' under the provisions of [SECTION] [ACT]. The quantum of compensation is to be decided by the Delhi Legal Services Authority in accordance with the provisions of [SECTION] [ACT]. Accordingly, a copy of the judgment and order on sentence are directed to be sent to the Secretary, DLSA (Central) for necessary action and compliance under intimation to this court. Ordered accordingly.
Copy of the judgment and order on sentence be also provided to convict [ENTITY] free of cost. File be consigned to Record Room.
([ENTITY]) Additional Sessions JudgeSpl. FTC2 (Central) Tis Hazari Courts: Delhi.
20.07.2013 State Vs. [ENTITY] FIR No. : 533/07 PS : Timarpur [CASE NUMBER] 18.07.2013 Present : Ms.[ENTITY] - ld. APP for the State.
Accused on bail with proxy counsel.
Vide separate judgment announced today in the open court, accused [ENTITY] S/o Sh.[ENTITY] is hereby convicted for the offence punishable under [SECTION] [ACT]. Let him be taken into custody forthwith.
Put up for arguments on the point of sentence on 20.07.2013.
([ENTITY]) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi 18.07.2013 State Vs. [ENTITY] FIR No. : 533/07 PS : Timarpur [CASE NUMBER] 20.07.2013 Present : Ms.[ENTITY] - ld. APP for the State.
Accused produced in JC.
Counsel for the accused.
Vide separate order on sentence announced today in the open court, convict [ENTITY] S/o Sh.[ENTITY] is sentenced to undergo Rigorous imprisonment for a period of 07 years in addition to payment of fine of Rs.10,000/, in default whereof, he shall undergo for Simple Imprisonment for 01 year for the offence punishable under [SECTION] [ACT].
In addition thereto, keeping in view the facts and circumstances of the case, I also recommend payment of compensation to the Prosecutrix 'A' under the provisions of [SECTION] [ACT]. The quantum of compensation is to be decided by the Delhi Legal Services Authority in accordance with the provisions of [SECTION] [ACT]. Accordingly, a copy of the judgment and order on sentence are directed to be sent to the Secretary, DLSA (Central) for necessary action and compliance under intimation to this court.
Copy of the judgment and order on sentence be also provided to convict [ENTITY] free of cost. File be consigned to Record Room.
([ENTITY]) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi 20.07.2013