IN THE COURT OF MS. [ENTITY], ADDITIONAL SESSIONS JUDGE03, NORTH, DELHI. FIR No.: 53/2009 PS: Kamla Market U/[SECTION] [ACT] S.C. No.: 59/2009 In the matter of: State Vs. [ENTITY] S/o [ENTITY] R/o Mohalla Naya Sarai, Baghwali Mosque, Sambhal Disst. Muradabad, UP . Date of receiving in Sessions Court : 05.10.2009 Arguments Heard : 07.4.2010 Date of Judgement : 07.4.2010 JUDGEMENT
Case Of Prosecution:
1. On 24.4.2009 a complaint was received in the police station Kamla Market against the accused [ENTITY] for committing rape upon the complainant (name withheld to keep her identity confidential). In the complaint, the complainant had taken the plea that she is running a rehri of selling dalroti in front of New Delhi Railway Station and accused [ENTITY] is visiting her rehri for the last three years. He does the work of coolie at railway station. Said accused promised to marry the complainant and about four months back he started visiting house of the complainant also and made physical relations with her. As per the complainant, the accused commited rape upon her for the last four months and about one and a half months back he gave beatings to the labour working with the complainant and thereafter he himself went missing from the railway station for the last 15 days. According to the complainant, accused [ENTITY] on the pretext of marriage has committed rape upon her and therefore, legal action be taken against him. After the receipt of the complaint, a case u/[SECTION] [ACT] was registered against the accused. The investigation was handed over to [ENTITY].
During investigation, IO made a search for the accused and arrested him. Medical of both the accused as well as complainant was conducted and the exhibits were sent to FSL. Subsequently, statement of witnesses were recorded and after completion of investigation, challan under 376/506 [ACT] was filed against the accused.
2. Since the offence u/[SECTION] [ACT] is exclusively triable by the courts of Sessions, therefore after supply of the documents, Ld. M.M. committed the case to the court of Sessions.
Charge Against Accused:
3. Prima facie case u/[SECTION] [ACT] was made out against the accused. Charge was framed against him to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined six witnesses in all.
5. The brief summary of deposition of the prosecution witnesses is as under:
Formal Witnesses
6. PW3 is ASI [ENTITY] who got recorded the FIR No.53/09 and proved the same as Ex. PW3/A. Material witnesses
7. PW1 is the prosecutrix who has stated that she knows the accused [ENTITY] present in the court as he used to come on her rehri for taking food. She is running a tea/roti stall at the gate no.2 of New Delhi Railway Station towards Ajmeri Gate. As and when the accused came on her rehri, he had proposed to get marriage with her but she refused every time. Thereafter the accused started to come at her house in Shakur Ki Dandi near Zakir Hussain College. Before four months of the Holi of that year, the accused came to her house. She was not feeling well and was lying on her bed. The accused had forcibly raped her. She protested to the accused on which the accused offered to marry her. Thereafter the accused started living in her house. He switched off her mobile phone. He used to rape her daily and every time assured her that he will marry her. She agreed for the marriage. The accused lived in her house for about 4 months. The accused had also beaten her workmen who used to work on her rehri. He got stopped her work of rehri. She has a son aged about 5 years and a daughter aged about 10 years from her previous husband. Her previous husband [ENTITY] pressurized her for begging. She refused and got divorce from him from the court. Another lady had also come to her house. She asked the accused about his relationship with that lady. That lady had told her that the accused is living with her for the last 10 years. The accused had left her house. After 15 days, the accused came to her house in her absence. When the accused lived in her house for about 4 months, there were talks in the family that the accused will purchase a vehicle TATA Sumo and will start business of travel. She had arranged Rs. 2.5 lacs which were lying in her house. When after 15 days, the accused came to her house, he asked her daughter [ENTITY] to hand over Rs. 2.5 Lacs and her jewellery to him for purchasing a vehicle TATA Sumo and her daughter [ENTITY] had handed over him Rs. 2.5 Lacs and her jewellery containing gold ear rings, gold chain and locket and gold ring. When she returned to her house, on the same day her daughter had disclosed the above said facts. She tried to search the accused in the area of New Delhi Railway Station and on the places where he used to stay but accused could not be traced out. Thereafter she made complaint to the higher authorities. Her complaint is Ex. PW1/A which bears her signature at point A. After one and half months, the accused was arrested by the police on her pointing out vide arrest memo Ex. PW1/B which bears her signature at point A. His personal search was taken vide memo Ex. PW1/C which bears her signature at point A. The accused had threatened her to kill if she will disclose the fact of rape and his stay in her house. The police had got done her medical examination from Irwin Hospital.
8. PW4 is Ct. [ENTITY] who stated that on 25.4.2009 he was posted as constable at police station Kamla Market, Delhi. On that day the IO of the case had joined him in the investigation of this case alongwith the prosecutrix. During investigation they went to New Delhi Railway Station where at the pointing out of the prosecutrix accused was arrested in this case vide arrest memo Ex. PW1/B. His personal search was taken vide memo Ex. PW1/C which bears his signature at point B respectively. Thereafter accused was taken to the hospital. His medical examination was got conducted from the concerned doctor. Thereafter accused was produced before the concerned court and remanded to J/C. IO of the case recorded his statement.
9. PW5 [ENTITY] is IO of the case. He has stated that on 24.4.2009, he was posted as SI at P.S. Kamla Market, Delhi. On that day, the duty officer had handed over him a computerized copy of the FIR of this case alongwith complaint of prosecutrix endorsed by the SHO Ex.PW1/A for investigation. He joined the prosecutrix in the investigation alongwith other police staff. During investigation they tried to search the accused but he could not be traced out on that day. On the next day on 25.4.2009, he again joined the prosecutrix in the investigation of this case alongwith other police staff. During investigation, they went to New Delhi Railway Station. When they reached at gate no.2 of railway station, the accused present in the court was pointed out by the prosecutrix. He arrested the accused in this case vide memo Ex. PW1/B. His personal search was taken vide memo Ex. PW1/C. Thereafter the accused and the prosecutrix were taken to JPN hospital for their medical examination. Thereafter he recorded supplementary statement of the prosecutrix. During investigation, he had recorded the statement of witnesses and after completion of investigation, the accused was challaned.
10. PW6 [ENTITY] is the daughter of the prosecutrix who stated that she knows the accused present in the court as he used to visit their house. He lived in their house for about 4 months. The accused used to beat her mother as and when she used to receive any telephone call. He also used to beat her. He used to force her to call him "Papa" (Father). He used to misbehave with her mother. He used to make her stand on the gate of her house and used to direct her to inform him if anybody enters into the house and he used to torture her mother in the house. The accused used to pressurize her mother to marry him but her mother always refused. The accused used to threat her mother to kill her. He also used to beat her and her younger brother aged about 5 years. The accused used to threat her to eliminate her if she will disclose the occurrences in the house outside to anyone. She, her mother and her younger brother were terrorised by the accused. She had also told these facts to the police and the police had recorded her statement. Her mother had received cash amount from her maternal grand mother and she had kept about Rs. 2 lacs and ornaments in a box in their house. The accused came to their house in the absence of her mother and told her that her mother is standing in the market and she has purchased a vehicle and her mother requires cash and ornaments which are lying in the house as she has to make the payment of vehicle. She had handed over the entire cash amount and entire jewellery lying in the box to the accused. The accused took the same and went away and thereafter he did not return. She had told these facts to the police also and the police had recorded her statement in this regard.
Medical witnesses
11. PW2 Dr.[ENTITY], Medical Officer from LNJP hospital who examined the accused [ENTITY] and prepared his MLC and proved the same as Ex. PW2/A. He also examined the prosecutrix and prepared her MLC and proved the same as Ex. PW2/B.
12. Statement of accused was recorded u/[SECTION] [ACT] wherein accused denied the case of the prosecution and stated that he has been falsely implicated in the present case at the instance of the prosecutrix. He stated that he had given a sum of Rs.19,000/ to the prosecutrix as a loan and when he asked to return the same, the prosecutrix started making complaints against him to the police and got registered this false case.
13. I have heard ld. APP for the state and ld. defence counsel for the accused and have carefully perused the record.
14. [SECTION] of [ACT] defines 'Rape' as under:
[SECTION]. Rape:"A man is said to commit 'rape' who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following 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 whim 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 whim she is or believes herself to be lawfully married, Fifthly : with her consent, when at the time of giving such consent, by reason or 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, Sixthly : with or without her consent, when she is under sixteen years of age. Explanation : Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape".
[SECTION] of [ACT] deals with the punishment of rape which reads as under :
[SECTION] [ACT]: Punishment for Rape: "(1) whoever, except in the cases provided for by sub section (2) commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which many be for the life or for a term which may be extended to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment or either description for a term which may extend to two years or with fine or with both".
15. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. The offence of rape in its simplest term is 'the ravishment of a woman without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will'.
16. Rape or raptus is when a man hath carnal knowledge of a woman by force and against her will; or as expressed more fully, 'rape is the carnal knowledge of any woman above the age of particular years, against her will; or of a woman child, under that age , with or against her will'.
17. In the definition of rape, the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; the second where it is done without her consent; the third, fourth and fifth, when there is consent but it is not such a consent as excuses the offender, because it is obtained by putting her or any person in whom she is interested in fear of death or of hurt (third clause); or 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 (fourth clause); or 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 (fifth clause); or where the intercourse is with a girl so young that consent is immaterial (sixth clause).
18. The section requires two essentials :
1. Sexual intercourse by a man with a woman
2. The sexual intercourse must be under circumstances falling under any of the six clauses in the section.
19. To have sexual intercourse with a woman against her will is rape. The expression "against her will" means that the act must have been done inspite of the opposition of the woman. Nonresistance on the part of the woman does not amount to consent. An inference as to consent can be drawn if only based on evidence or probabilities of the case.
20. The [ACT] does not define 'consent' in positive terms, but what can not be regarded as 'consent' under the Code is explained by [SECTION]. Consent given first under fear of injury and secondly under a misconception of the fact is not 'consent' at all. That is what is enjoined by the first part of [SECTION]. These two grounds specified in [SECTION] are analogous to coercion and mistake of the fact which are familiar grounds that can vitiate a transaction. The factors set out in the first part enacts the corresponding provision from the point of view of the accused. It 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.
21. Now coming to the case in hand, the prosecutrix appeared as PW1. She has stated that she is aged about 26 years and is running a tea/roti stall at the gate no.2 of New Delhi Railway Station towards Ajmeri Gate. The accused used to come on her rehri and proposed to her but she refused every time. Thereafter he started coming to her house in Sakur Ki Dandi near Zakir Hussain College. Before four months of the Holi accused came to her house. She was not feeling well and was lying on her bed and accused had forcibly raped her. She made protest but the accused offered to get marriage with her. Thereafter the accused started living in her house. He switched off her mobile phone and he used to rape her daily and every time assured her that he will get marry with her. Accused lived in her house for about four months. He had also beaten her workers who used to work on her rehri. He got stopped her work on rehri. She stated that she has a son aged about 5 years and a daughter aged about 10 years from her previous husband. She got divorce from her previous husband. Another lady also came to her house and disclosed that accused is living with her for the last 10 years. Thereafter accused left her house. After 15 days accused came to her house in her absence and took away her jewellery and cash amount of Rs. 2.5 lacs from her daughter. When she returned to her house, her daughter told these facts. She tried to search the accused but he could not be traced out. Thereafter she made a complaint to the higher authorities. She has proved her complaint as Ex. PW1/A.
22. Perusal of complaint Ex. PW1/A shows that complainant has stated in her complaint that accused used to visit at her rehri and used to propose her for marriage and thereafter he committed rape upon her. In the complaint she has only mentioned that on the false pretext of marriage, the accused has committed rape upon her. She has nowhere stated that her previous husband had given divorce to her nor she has stated that accused took Rs. 2.5 lacs and her jewellery from her house in her absence. The complaint made by the prosecutrix initially to the police does not say any such thing. In her complaint, she has mentioned herself as wife of [ENTITY] and she has not stated anything about her previous husband. Prosecutrix herself stated that she has two children, one daughter aged about 10 years and son aged about 5 years. If she was married, then how she gave her consent to the marriage with the accused or she was allured by the accused in marrying him, has not been explained by the prosecution. During the testimony of PW1 in the court, she has stated that she had given divorce to her previous husband which is in contradiction to what has been stated by the IO in his report u/[SECTION] [ACT]. Whereas IO has mentioned that previous husband of prosecutrix is dead i.e. he is no more. She has further stated that accused started living in her house. Prosecutrix is a grown up lady and she has two children also and it is hard to believe that accused on his own without the consent of the prosecutrix started living in the house of the prosecutrix and used to commit the offence of rape daily upon the prosecutrix as stated by the prosecutrix. The prosecutrix herself has admitted that her landlord used to reside at first floor and where she is residing is a thickly populated area. But it seems that she did not make any complaint to anybody regarding the act of rape committed by the accused, for obvious reasons. It seems that she was the consenting party to the whole episode. Ld. APP for the stated argued that the prosecutrix has stated that accused committed rape upon her on the pretext of marriage and her consent for the same was obtained by fraud and therefore, the same is no consent in the eyes of law.
23. In case titled as [PRECEDENT], the accused was held to be entitled to acquittal under [SECTION] [ACT] on the ground that prosecutrix accompanied the accused to the house of someone and stayed there for about a week and did not disclose the incident to anybody even without being under any threat. It was held that inference can be drawn that she was consenting party.
24. It was further held in [PRECEDENT]) that "the prosecutrix did not disclose the name of the accused to her parents early though she knew him. She disclosed the name only when the doctor found that the profuse bleeding from her private part was due to sexual intercourse. FIR also was lodged after ten days without any satisfactory explanation. It was held that the prosecutrix being a consenting party and she being not a minor, it was not a case of rape.
25. In the present case, no external injuries were detected either on the person of the accused or on the person of the prosecutrix. The prosecutrix is a mother of two children and well capable to understand the consequences of her own act. She herself has stated that accused used to visit at her rehri and he proposed to marry with her but she refused. If she refused, then how accused started residing in her house and she did not disclose the factum of rape to anybody shows that she was a consenting party to the whole episode. Neither the prosecutrix was ever put under any fear of death nor hurt by the accused.
26. Hon'ble Apex Court in [PRECEDENT] held that "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] of [ACT] can not be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the court can be assured that from the very inception the accused never really intended to marry her. 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 tests 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 facts. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
27. In [PRECEDENT] Hon'ble Supreme Court held 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, can not be said to be given under a misconception of the fact. A false promise is not a fact within the meaning of the Code. It was added 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.
28. In [PRECEDENT], the Hon'ble Supreme Court observed that "consent for the purpose of of [SECTION] 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.
29. In the present case as per the prosecutrix, the accused stayed at her house for about four months. It seems that prosecutrix did not make any complaint regarding this fact to anybody despite the fact that she is a grown up lady and a mother of two children. Subsequently when the accused left her house, she made a complaint. From the complaint given to the police and her statement given in the court, the prosecutrix has made lots of improvements and this is only for one reason i.e. to fill up the lacuna in her earlier statement. The daughter of the prosecutrix has been examined by the prosecution as PW6. She is little girl of aged about 11 years but from her testimony it seems that the witness is clearly tutored one as she stated that accused used to beat her mother as and when she received any telephone call. He also used to beat her and used to force her to call him 'papa'. She has stated that he used to make her stand on the gate of her house and used to direct her to inform him if anybody enters into the house and he used to torture his mother in the house. No such facts has been disclosed by the mother of PW6 in her testimony. She further stated that accused used to prerssurise her mother to marry him but her mother always refused. From the statement of PW6, if PW1 always refused to marry with accused, then how the accused stayed in the house of the prosecutrix for about four months without any resistance has not been explained by the prosecution. PW6 further stated that her mother and her younger brother were terrorised by the accused but the prosecutrix herself has not stated any such thing. PW6 has stated that her real father had left them long ago. She has denied the suggestion that accused had not taken away the jewellery and cash from their house. She herself handed over the cash and jewellery to the accused but neither any description of those jewellery items have been given by the prosecutrix nor by the PW6. PW6 has stated that she has given cash amount of Rs. 2 lacs to the accused whereas the PW1 herself has stated that her daughter has given cash amount of Rs. 2.5 lacs to the accused. Not only that from the facts of the case, it is clear that prosecutrix herself was the consenting party. It is also clear that in order to prerssurise the accused, the prosecutrix has made great improvement in her statement given to the IO to that which she has made in the court. The other witnesses examined by the prosecution are the duty officer who recorded the FIR or the IO who investigated the case after the complaint of the prosecutrix. From the statement of the prosecutrix, it is clear that she was consenting party to the whole incident. Therefore, it cannot be said that prosecution has been able to prove its case u/[SECTION] [ACT] against the accused beyond shadow of doubt.
30. So far as the ingredients of criminal intimidation is concerned, the prosecutrix has stated that accused threatened her if she will disclose the fact of rape while staying in the house of the prosecutrix or his stay in the house of the prosecutrix for about four months, he would kill her. It is hard to believe that during those four months, the prosecutrix and her children were kept in their own house under threat by the accused or they were not allowed to go outside the house by the accused or to talk anybody. The prosecutrix has stated only a single line in her statement that accused threatened to kill her. These allegations are quite vague as neither any particulars when such such threat was made nor any other facts have been disclosed by the prosecutrix. It seems to be a afterthought story only to pressurise the accused or to rope in, in a false case. As such prosecution has failed to prove the its case against the accused u/[SECTION] [ACT] also.
31. In view of above said discussion, prosecution has been failed to prove its case against the accused. As such, accused is acquitted for the offence. He is on bail. His bail bond cancelled. Surety discharged. Case property be confiscated to the state after expiry period of appeal/revision, if any. File be consigned to record room.
([ENTITY]) ASJ03/NORTH/DELHI Announced in the open court today i.e. 07.4.2010.