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Forced SeX with wife is not RAPE

IN THE COURT OF SH. VIRENDER BHAT, A.S.J.
(SPECIAL FAST TRACK COURT), DWARKA COURTS, NEW DELHI.

SC No.1/14.
Unique Case ID No. 02405R0349722013.

State Vs. Vikash,
S/o Sh. Ram Niwas,
R/o Jatav Mohalla, Thana Sahani Gate,
Gaon Sahani,Ghaziabad, U.P.

Date of Institution : 13.12.2013.

FIR No.256 dated 17.10.2013.
U/s. 376/328 IPC.
P.S. Baba Haridas Nagar.

Date of reserving judgment/Order : 02.5.2014.
Date of pronouncement : 07.5.2014.

JUDGMENT

1. The above named accused has been facing trial for having committed the offences punishable u/s.366/376/377/328 IPC.

2. It is the case of the prosecution that the prosecutrix namely ‘L (real name withheld in order to conceal her identity) had sent a typed complaint to the SHO, P.S. Baba Haridas Nagar, through speed post, which was received in the police station on 07.10.2013. The prosecutrix has mentioned in the said complaint that she had come in contact with the accused while working with a coaching centre run by All India Sewa Sangh and they developed relations between themselves. One day, the accused alongwith his father administered to her intoxicant mixed in cold drink, took her to the office of Registrar of Marriages at Ghaziabad and got the marriage related documents signed by her. Later on accused committed rape upon her and left her with the threat that in case she disclosed the same to anybody, they would not spare her as well as her relations. Due to the said threat, she did not narrate the incident to anybody at home. The accused refused to take her to his home and again repeated the aforesaid threat to her on 26.9.2013. She has also mentioned in the complaint that accused had done unnatural sex too with her on the next day as well as thereafter on various occasions. Accused has been taking her nude photographs and used to blackmail her regarding those.

3. It is on the basis of the aforesaid complaint of the prosecutrix that the FIR was registered and the investigation was entrusted to ASI Savita, who got the prosecutrix medically examined in RTRM Hospital, Jaffarpur, vide MLC No.5674/13. She seized the sealed exhibits given to her by the doctor. She produced the prosecutrix before the concerned M.M. on 19.10.2013, who recorded her statement u/s.164 Cr.PC. The prosecutrix was got counselled from an official of NGO. Accused came to be arrested on 26.10.2013 from his residence at Ghaziabad and was got medically examined at RTRM Hospital vide MLC No.2837/13. His samples obtained by the doctor were seized by the IO in sealed condition. All the exhibits were later on sent to FSL for forensic examination.

4. After completion of the investigation, Charge Sheet was prepared by the IO and laid before the concerned Ld. Magistrate, who then committed the case to the court of Sessions for trial. In the Sessions Court, charges u/s.328 IPC, u/s.366 IPC, 376 IPC, u/s.377 IPC against the accused on 16.1.2014. The accused denied the charges and accordingly prosecution was called upon to lead its evidence.

5. The prosecution has examined 12 witnesses to prove the charges against the accused. Accused was examined u/s.313 Cr.PC on 16.4.2014 wherein he denied the prosecution case and claimed innocence. He further stated that the marriage between him and the prosecutrix was solemnized on 02.2.2011 at her parental house in presence of her mother but his parents were against the said marriage. After marriage, he took the prosecutrix to his house at Ghaziabad, where she stayed for 4 – 5 days and thereafter he again brought her to her parental house. He used to visit the parental house of the prosecutrix at Delhi to meet her. Upon insistence of the prosecutrix, they decided to get their marriage registered and accordingly they met at Dwarka More Metro Station on 04.3.3013, went to Ghaziabad court and got their marriage registered. From the court, he took her to his house where she stayed with him for 8 days. Thereafter, she returned to her parental house to complete her course which she was undergoing. Thereafter he came to take her back but her brother demanded Rs.60,000/- from him, which he refused to pay. He made a call to the prosecutrix to ask her whether she wants to stay with him and she replied in affirmative. Accordingly, he took the prosecutrix from her parental house in the month of September, 2013. On 23.9.2013, prosecutrix asked him to tell Anju, his sister, to transfer her house in his name and when he expressed his inability to do so, he was framed in this case. The accused has however, chosen not to lead any evidence in defence.

6. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire material on record.

7. It is the case of the prosecution that the accused and his father had taken the prosecutrix to Ghaziabad Court deceitfully after administering some intoxicants to her mixed in cold drink where she was made to sign some marriage related documents and later on the accused committed rape upon her at his house.

8. The prosecutrix has not stated in the FIR what effect did the intoxicant substance have upon her which was given to her by the accused and his father in the cold drink. She does not say whether she was conscious while signing the marriage related documents or was in any kind of intoxicated state. In the statement u/s.164 Cr.PC Ex.PW1/B, she has stated that after consuming the cold drink offered to her by the accused and his father at Dwarka More, she lost her senses. She became frozen and was not in conscious state. When she regained consciousness, she found herself in Ghaziabad court and by that time, accused’s father was not there and she came to know that her marriage has been solemnized with the accused.

9. In her testimony before this court as PW1, the prosecutrix has deposed that on 04.3.2013, the accused gave a call to her on her mobile phone no.9213612843 saying that there is a vacancy in Janakpuri and if she is interested, she should accompany him to that place. She replied that she is interested in said job. Thereafter, accused alongwith his father came to her office and took her upto Dwarka More in a bus. Upon coming out of the bus at Dwarka More, they offered a cold drink to her which they had purchased from the cold drink shop and on consuming which she lost consciousness. However, she did not become totally unconscious. She could visualize slightly whatever was happening. From Dwarka More, they took her in Metro Train to the court at Ghaziabad and on the way, the accused told her that in case, she did not marry him, he will die. In Ghaziabad court, the accused took her signature on certain papers, upon which something was written but she could not reach that court. She regained full consciousness in Ghaziabad court premises and the accused told her that he has solemnized court marriage with her. Thereafter, accused took her to his house in Ghaziabad and committed forcible sexual intercourse with her saying that they are now husband and wife.

10. It is thus evident that the testimony of the prosecutrix is not consistent with her statements recorded during the course of investigation. In the FIR, she does not say whether she was conscious or unconscious when she signed the marriage related documents in Ghaziabad court. In her statement u/s.164 Cr.PC Ex.PW1/B, she states that she had become unconscious after consuming the cold drink and regained consciousness in Ghaziabad court where she came to know that her marriage has been solemnized with the accused. As per her deposition before this court, she was conscious to a large extent even after consuming the cold drink and could see what was happening around her and also could listen what accused was telling her. Moreover, her testimony also suffers from improvements and embellishments. She has stated neither in the FIR nor in her statement u/s.164 Cr.PC Ex.PW1/B that she was taken by the accused and his father from the office on the date of incident for providing her a job at Janakpuri or that she had received a call from the mobile phone of the accused saying that there is a vacancy in Janakpuri.

11. It may also be noted here that the prosecutrix in her cross examination has deposed that they got down from the Metro train at Vaishali Metro Station and from there, they took a bus upto Ghaziabad court. They boarded the bus below the Metro station and it took them half an hour to reach Ghaziabad court. They reached Ghaizabad court at about 12 noon or 1 p.m. The accused had taken out her identity card from her bag and got the same photocopied in Ghaziabad court. They remained in Ghaziabad court till 1.30 p.m. From these answers of the prosecutrix to the questions put to her in cross examination, it is very difficult to believe that she was not in full consciousness during her travel from Dwarka More Metro Station upto Ghaziabad court and during the time, she was present in Ghaziabad court alongwith the accused. She remembers all the minute details of her travel from Dwarka More to Ghaziabad court and has been able to tell what had happened at Ghaziabad court.

12. She has also deposed in the cross examination that she was semi conscious when she appeared before the Registrar of Marriages in Ghaziabad court but she did not tell the Registrar that she has been brought there by deception and that she is not fully conscious. Therefore, she knows even this fact that she had been produced before the Registrar of Marriages in Ghaziabad court. She admitted her signature on the documents captioned as “Hindu Vivah Sanskar Patra” Ex.PW1/G and photocopy of her I. Card Ex.PW1/H. She also admitted that she is seen in the photograph Ex.PW1/I alongwith the accused, which bears her signature at point a and which was clicked in Ghaziabad court before solemnization of marriage. She also stated that before the said photograph was taken, she had put a garland around the neck of the accused and accused had put a garland around her neck. She also admitted her signature on the copy of an application for registration of marriage Ex.PW1/J and stated that it also bears her photograph which was taken in Ghaziabad court on the same day i.e. 04.3.2013. She also admitted her signature on the affidavit Ex.PW2/E and stated that it was got prepared by the accused in Ghaziabad court.

13. It is clear from the aforementioned testimony of the prosecutrix that she was fully conscious and was fully aware of whatever took place in Ghaziabad court. There is no indication from her testimony that she had signed the aforementioned documents in unconscious or intoxicated state or that she did not know the nature of these documents and the purpose for which these were prepared. The prosecutrix has also admitted in her cross examination that the accused has filed a petition u/s.9 of Hindu Marriage Act against her in Ghaziabad court and she had engaged a lawyer to defend her in that petition. She also deposed that in the reply filed by her to the said petition, she has stated that she does not want to go and stay with the accused. She has not stated in the reply that she had not given consent for her marriage with the accused and the marriage was solemnized under the influence of intoxication.

14. The Registration Clerk from the office of Sub Registrar, Ghaziabad, U.P., has appeared as PW2 and has proved all the documents, which the accused and the prosecutrix had submitted for the registration of their marriage. He had brought originals of these alongwith him. He proved the application for registration of marriage submitted by the accused and the prosecutrix on 04.3.2013 as Ex.PW1/J, photocopy of Marksheet of Xth class of the prosecutrix as Ex.PW2/A, photocopy of school leaving certificate of the accused as Ex.PW2/B, the Election I. Card as Ex.PW2/C, Election I. Card of the prosecutrix as Ex.PW1/H, marriage photograph of the parties as Ex.PW1/I, marriage certificate as Ex.PW2/D, Hindu Vivah Sanskar Patra as Ex.PW1/G and joint affidavit submitted by the parties as Ex.PW1/E. He further deposed that after completion of the formalities, their office issued marriage certificate to the parties, which he proved as Ex.PW1/C.

15. The testimony of the witnesses produced by the prosecution itself i.e. PW1 and PW2 make it manifest that the marriage between the accused and the prosecutrix had been solemnized and registered in the office of Sub Registrar, Ghaziabad with the will and consent of the prosecutrix and she was fully conscious during the time when the aforesaid formalities were being completed and that she was aware that the documents are being prepared for registration of the marriage which she had solemnized with the accused. Ld. APP has failed to point out anything in the testimony of these witnesses or in the deposition of any other prosecution witness which may suggest that the prosecutrix was not fully conscious and was in a intoxicated state when the aforesaid formalities for registration of the marriage with the accused were being completed or that when she appeared before the Registrar of Marriages in Ghaziabad court.

16. As per PW10, the date of birth of the prosecutrix is 26.12.1991 which implies that she was more than 21 years of age when she solemnized marriage with the accused.

17. According to the deposition of the prosecutrix herself, the accused engaged in sexual intercourse with her after the solemnization of marriage and the registration of marriage in Ghaziabad court, as noted hereinabove, and therefore, the parties being husband and wife, the sexual intercourse between the two does not come within the ambit of offence of rape as defined in section 375 of IPC, even if the same was against the will and consent of the prosecutrix.

18. The fact that the prosecutrix had willingly solemnized the marriage with the accused, is also indicated by the following portion of her examination in chief :

“………….After about one month of the aforesaid incident, I made a call to the accused telling him that as he has solemnized the marriage with me, he should take me with him. However, he told me that he cannot keep me with him till he arranges an independent room on rent. He kept on avoiding me like this for two or three months. Thereafter the accused flatly told me that he cannot keep me with him. The accused told me that his family members would not accept me.
On 25.9.2013 the accused made a call to me and asked me to meet him at Som Bazar market, Najafgarh. We met in Som Bazar market and after talking to me for a few minutes, accused started beating me. Many persons gathered around us. A police official also came to the spot. I told police official that accused has solemnized court marriage with me but I do not have any documentary proof. However, the accused showed the documents of court marriage to the police official. The police official made me to write on a paper that I have solemnized marriage with the accused. Accordingly, I did the same and we both signed that paper. The paper was kept by the police official with him. ……..”
19. It is thus evident that the prosecutrix had willingly and in full senses solemnized marriage with the accused and the marriage was registered in the office of Registrar of Marriages, Ghaziabad, on 04.3.2013. The parties engaged in physical relations with each other after the marriage. The prosecutrix was more than 21 years old at that time.

20. Thus the prosecutrix and accused being legally wedded husband and wife, the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused. There is no clinching or convincing evidence on record to show that the accused had administered any stupefying substance to the prosecutrix on 04.3.2013 before taking her to Ghaziabad court. The prosecutrix has nowhere deposed in her testimony that the accused had committed anal intercourse also with her.

21. The prosecution has, therefore, failed to establish the guilt of the accused.

22. Resultantly, the accused is hereby acquitted.

Announced in open (VIRENDER BHAT)
Court on 07.5.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.

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