Sex on assurance of marriage is not rape

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

SC No. 109/13.
Unique Case ID No. 02405R0287532011.

State
Vs.
Ashish Kumar,
S/o Sh. Balwinder Pal,
R/o A-52, Kiran Garden,
Uttam Nagar,New Delhi.

Date of Institution : 29.8.2011.
FIR No.135 dated 21.5.2011.
U/s. 376/506 IPC.
P.S. Bindapur.

Date of reserving judgment/Order : 05.12.2013.
Date of pronouncement : 20.12.2013.

JUDGMENT

1. The prosecution has chargesheeted the above named accused for the offences punishable u/s.376/506 IPC.

2. As per the case of the prosecution, the prosecutrix namely ‘P’ (real name withheld in order to conceal her identity) has submitted a written complaint in P.S. Bindapur on 07.5.2011, the gist of which is as under : “I am in relationship with a boy named Ashish Kumar since July, 2006. His parents were aware about our relationship and he had promised to get married to me. He committed sexual intercourse with me several times and I had become pregnant somewhere in the month of July, 2008. I informed him about the same and asked him to solemnize marriage with me but he sought some time to convince his family and to marry his two elder sisters first. He insisted me to abort and when I refused, he blackmailed me saying that he would not marry me if I did not abort. Therefore, I got my pregnancy aborted. All the times, he kept on promising me that he would marry me after the marriage of his sisters. When both of his sisters had got married, I asked him to solemnize marriage with me but he again requested for some more time. When I came to know that he is getting married with someone else, I rushed to his house in Delhi on 09.4.2011. I stayed in his house for 21 days and he had sexual relations with me at his house several times during that period. He had taken lakhs of rupees from me for our marriage. On 29.4.2011, he and his parents took me to Pathankot (Punjab) to solemnize my marriage with him but there all the family members abused, harassed and insulted me. They told me that since my parents are not alive, there is nobody to support me and to fight for me. Thereafter, he took me to Amritsar saying that he will get married to me there but he left me in front of a gurudwara and disappeared. I tried to contact him on his mobile phone as well as on the mobile phone of his father but both the mobile phones were switched off. From Amritsar, I returned to Delhi alone by train on 01.5.2011. When I reached his home, nobody was there. I have been cheated, harassed and insulted and hence I request you to take necessary action against them.”

3. On the basis of aforesaid written complaint of the prosecutrix, FIR was registered u/s.376/506 IPC and investigation was handed over to SI Domnica. She recorded statement of the prosecutrix u/s.161 Cr.PC and got her medically examined in DDU Hospital on 21.5.2011 vide MLC No.9981/11. Exhibits handed over by the doctor were seized by her. Prosecutrix was not having in her possession any document regarding the abortion. On 23.5.2011 she was produced before the Ld. Magistrate, who recorded her statement u/s.164 Cr.PC. IO collected the school certificate of the prosecutrix regarding her age which reveals her date of birth to be 28.3.1989. Accused came to be arrested on 09.6.2011. He was got medically examined in DDU Hospital and the exhibits handed over by the doctor were seized. All the exhibits were sent to FSL for forensic examination. After the completion of the investigation, Charge Sheet was prepared and submitted to the concerned Ld. Magistrate.

4. Upon committal of the case to the court of Sessions, Charge u/s.376/506 IPC was framed against the accused on 22.12.2012. Accused abjured his guilt and accordingly prosecution was called upon to lead its evidence.

5. The prosecution has examined 10 witnesses to establish the guilt of the accused. Ld. APP also tendered in evidence the FSL results Ex.PA & Ex.PB. The accused was examined u/s.313 Cr.PC on 02.7.2013 wherein he admitted that he had started friendship with the prosecutrix through Yahoo chat on internet and used to meet her occasionally but denied that he had committed sexual intercourse with her at any point of time. He claimed false implication in this case.

6. The accused has examined himself as DW1 in his defence. During the course of his testimony, he produced the printout of various E-mails and chats which had taken place between him and the prosecutrix and which have been marked as Mark-A to Mark-S. The accused also examined his wife as DW2. DW3 is the Senior Executive of Yahoo India Pvt. Ltd., who deposed that E-mail Id “ashishkumar84@yahoo.com” was generated by Mr. Ashish Kumar on 15.9.2004 and he had provided his alternate Email address as “mrashishkumar84@gmail.com”. However, the witness deposed that his office is unable to provide any date regarding E-mail Id “diya_spirit@yahoo.com” as the same is registered in US Domain and not in Indian Domain. He proved his affidavit in this regard as Ex.DW3/B. DW4 is the Manager (Administration and HR), M./s. Keppel Land International Limited, Bangluru, who deposed that E-mail Id “parvati@elitahomes.com” was allotted by their company to Ms. Parvati during the course of her employment with the company and further stated that he has not brought the records pertaining to said E-mail Id as those have already been erased by the company. DW5 is Associate Manager Facilities, Infosys Limited, who deposed that the records pertaining to official E-mail account allotted to accused Ashish has already SC No.109/13. Page 4 of 33been deleted from the records and are not available with the company. He proved his detailed affidavit in this regard as Ex.DW5/A.

7. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire record.

8. Ld. APP vehemently argued that accused has deceived the prosecutrix by making her to submit herself to intercourse with him on the promise that he would marry her which promise he never intended to fulfill. She submitted that it is evident from the testimony of the prosecutrix that she gave consent for sexual intercourse with the accused only on the promise and assurance of the accused that he would marry her at any cost. According to her, the accused obtained consent of the prosecutrix to the sexual intercourse by deceit and fraud and hence he has committed the offence of rape. She further submitted that the printouts of E-mails and chats Mark-A to Mark-S produced by the accused during his testimony cannot be looked into as those are not accompanied by certificate u/s.65B of Indian Evidence Act and for the reason that those have not been put to the prosecutrix in her cross examination so as to elicit her comments regarding those. However, she further submitted that even if these E-mails and chats are read in evidence, these support the case of the prosecution that the accused had been assuring and promising the prosecutrix at every moment that he would marry her. According to her, the accused is liable to be held guilty for the offence of rape.

9. On the other hand, Ld. Counsel for the accused vehemently argued that there is no iota of evidence on record to suggest that the accused at any point of time promised the prosecutrix that he would marry her. He submitted that the prosecutrix has mentioned neither in her written complaint to the police nor in her statement u/s.164 Cr.PC that in her examination in chief that she consented to intercourse with the accused only on getting of assurance from the accused that he would marry her. He further submitted that the prosecutrix has not mentioned in her examination in chief the date when the sexual intercourse took place between the two for the first time and when the accused made promise to her for the first time that he would marry her. He submits that even if it be assumed that accused had promised the prosecutrix that he would marry her, still there is no evidence on record that he had done so before engaging him in sexual intercourse with her. He further submitted that the E-mails and chats between the accused and the prosecutrix Mark-A to Mark-S are admissible in evidence as they are supported by the affidavit of the accused, who had taken these printouts from the computer and therefore the affidavit of the accused can be read as a certificate u/s.65B of the Evidence Act. He further submitted that the accused was not obligedto confront the prosecutrix by these E-mails and chats during her cross examination. According to him, the accused is liable to be acquitted.

10. The testimony of the prosecutrix is the most vital and important piece of evidence for the prosecution in the instant case. She has been examined as PW8. She has disclosed her age as 27 years. She deposed that she had started chatting with the accused on internet in April/May, 2006 and ultimately both became friends. They met each other for the first time in Banglore on 14.7.2006 and enquired about each other job, family status etc. At that time, accused was working with M/s. Infosys and was posted at Mysore. Thereafter the accused used to visit Banglore and met her at her house on weekends and holidays. After sometime, the accused expressed his interest in solemnizing the marriage with her. He promised her that he would marry her after the marriage of his two elder sisters, one of whom was divorcee. He expressed his inability to get engaged to her but convinced her that he would definitely marry her. He introduced her to his parents and sisters and made her to talk to them on phone from Banglore. She further deposed that in the mid of November, 2006 she alongwith accused went to her native place in Hyderabad to meet her parents. Accused convinced her that he would persuade his parents and her sister also that he is going to marry her. After returning from Hyderabad, accused started showing physical interest in her and asked her to engage into sexual intercourse with him but she showed her disinclination for the same. She told her that they should wait uptill marriage but the accused provoked her mentally to such an extent that she had to give in. He told her that he is going to be her husband and there is nothing wrong to have sexual intercourse with him. After intense mental and physical provocation, she engaged into sexual intercourse with him many a times, as a result of which she had become pregnant in the month of July, 2008 and later on had to abort the same at the instance of the accused. She further deposed that in February, 2009 accused got transferred to Pune office of Infosys. She went to meet him in Pune in August, 2009, stayed with him for three days and thereafter accused committed intercourse with her. She again went to Pune in November, 2009 and stayed with the accused for two days. Every time when she met the accused, he convinced and assured her that he would marry her. Whenever she asked him about the marriage, he used to tell her that his sister’s marriage is fixed for May, 2010 and they should wait till that time. She had also helped the accused financially by transferring a huge amount to his bank account. She further deposed that in June, 2010 the accused moved to Delhi and told her that since both of his sisters have been married, it is turn for their marriage. She came to Delhi on 07.8.2010 and stayed in the house of the accused for two days. He introduced her to his parents and also had intercourse with her. Accused promised and assured her in front of her parents that he is going to marry her. In November,2010 she again visited the house of accused in Delhi to fix the date of marriage but this time his parents told her that accused is Manglik and they should wait for his marriage till he completes 27 years of age. She decided to wait for few more months till the accused completed 27 years of age. On return from Delhi, she came to know from other sources that the parents of the accused are searching for some other girl for the accused. She confronted the accused with the same but he denied all this saying that he cannot get married to any other girl till he completes 27 years of age. She again came to the house of the accused in Delhi on 09.4.2011 and stayed there for 21 days but during this period she was shocked to see the behaviour of the accused’s parents who told her to go back and wait further. She was thrown out of the house by the parents of the accused in the night of 09.4.2011 itself and accused also slapped her but later on she was allowed to come inside the house and stay there. During this period of 21 days also accused kept on assuring that he is going to marry her. During that period also, they had sexual intercourse with each other. On 16.4.2011 accused took her to Dwarka Court and introduced her to a lawyer namely Deepak Singh Sindhu saying that he is planning a court marriage with her. They filled up marriage application form and accused paid a sum of Rs.10,000/-to the lawyer as fee. After some days, accused told her that they should not go for a court marriage as he is the only son of his parents and his parents want a proper marriage to solemnize at their native place in Pathankot, Punjab. She further deposed that on 29.4.2011, she alongwith accused, his parents and his cousin Happy went to Pathankot, Punjab, in train and reached there in the morning of 30.4.2011. The uncle of the accused and his aunt came to receive them at railway station and took them to Hotel Staywell near the railway station. Soon after they checked into the hotel, accused as well as his parents started showing true colours. They abused her, beat her and used foul and filthy language with her. Accused also gagged her mouth when she tried to shout. Accused told her that he was only enacting a drama and whatever happened between them should be forgotten. In the afternoon of 30.4.2011 accused and his cousin Happy took her to Golden Temple, Amritsar, saying that accused would marry her there. They reached Amritsar at 6 p.m. and in front of the Golden Temple also, accused assured her that he would marry her. He told her to close her eyes and pray to the God. She closed her eyes and started praying. As soon as, she opened her eyes, she found that the accused and his cousin had left and she was alone. She dialled mobile number of the accused and his parents but all were switched off. She called the brother-in-law of the accused who stays at Banglore but he also feigned ignorance about the accused. She stayed at Amritsar for the night and next day came to Delhi. She directly went to the house of the accused but it was locked and the neighbours did not know anything about the accused and his family members. She stayed at Delhi for some days and tried to contact the accused but did not succeed. Ultimately, she visited P.S. Bindapur and submitted a written complaint, on the basis of which FIR was registered. She was produced before a Magistrate, who recorded her statement u/s. 164 Cr.PC Ex.PW4/A. According to her, accused was arrested from his house in her presence on 09.6.2011 vide arrest memo Ex.PW2/A.

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11. In her cross examination, prosecutrix (PW8) deposed that she had been doing job with M/s. Keppel Land international Limited, Banglore, since the year 2005 and her job was of secretarial and administrative nature. She joined UB Group in August, 2011. She has been residing independently as a tenant in Banglore since the year 2003 and was paying a sum of Rs.5,000/-as rent per month for one room set. She further deposed that they (accused and the prosecutrix) had intercourse for the first time in the month of November, 2006 at the house of the accused at Banglore. She deposed that the accused had showed interest in getting marriage to her at the time of their first meeting itself i.e. 14.7.2006. Thereafter he slowly used to put it in her mind that he would marry her. In the month of August, 2006, he promised that he would marry her but did not give any specific time frame for marriage. She met the parents of the accused for the first time in September, 2008 at the time marriage of his elder sister at Banglore. She deposed that the purpose of visit of accused to her native house at Hyderabad in November, 2006 was to assure her family members about their marriage and nothing else. She explained that by his statement in the examination in chief that the accused mentally provoked her to have sexual intercourse with him, she meant that he convinced her as well as her family members that he would marry her in any event and there is nothing wrong in having sexual intercourse between them before the marriage. She consented to the sexual intercourse with him only because of his promise of marriage even though he did not give any definite time frame for marriage and told her that marriage would be possible only after the marriage of his two sisters. The accused used to tell her that if she is not going to satisfy her husband i.e. him, where will he go. A specific question was put to her by the Ld. Cross examining Counsel that if she had any kind of fear that if she did not engage in sexual intercourse with the accused, he would not marry her or that she had any kind of temptation that he will marry her only if she had intercourse with him. She replied that the only reason for which she consented to have sexual intercourse is that she had become convinced that he would marry her. She further deposed that after she had come to know about her pregnancy, she informed the accused, who advised her to abort the same. Accordingly, she visited the clinic of Dr. Sumangla near her residence at Banglore and consumed the tablets which were prescribed by the doctor. The tablets were purchased by the accused but she did not remember exactly how many tablets did she consume. She deposed that she had gone to Pune to meet the accused in August, 2009, November, 2009 and April, 2010. The accused did not come to Banglore from Pune to meet her. In Pune, she stayed with the accused at his residence.

12. From the aforesaid testimony of the prosecutrix, it is evident that she was about 20 years old in the year 2006 when she started friendship with the accused. She was well educated and doing a job of secretarial and administrative nature with a reputed company of Banglore. She was an independent lady and had been residing on rent alone in Banglore since the year 2003. She had strong inclination towards the accused and used to spend time willingly with him. She used to visit his place of residence off and on, even in Pune and Delhi and spent nights with him. The physical relations between her and the accused had developed with her consent as admittedly, she had neither offered any resistence nor had complained to anybody about the acts of the accused. She used to exchange E-mails with the accused and used to chat with him and the accused had been giving her assurance that he would marry her but never gave any specific time frame for the same. She continuously used to have physical relations with the accused till the year 2011.

13. To rebut the allegations levelled by the prosecutrix against him, the accused has entered the witness box himself as DW1. He disclosed his aged as 29 years and deposed that he joined Infosys in May, 2006 as System Engineer and remained there till June, 2010, when he joined Accenture Services Pvt. Ltd. He was staying in Banglore from October, 2006 to February, 2009. He deposed that initially he was chatting with the prosecutrix at her E-mail ID Diya_spirit@yahoo.com. She has sent her photographs through E-mails on 05.7.2006 and 10.7.2006 but he did not reply his E-mails. After a few days, the prosecutrix made a call on his mobile number saying that they should start friendship as they share common views. As per her request, they met at Banglore bus stand in the end of July, 2006 for the first time when he was coming to Delhi. She told him that she is in a depressed state of mind as a person named Umesh with whom she was in a relationship had got married. Thereafter, she kept on calling him regularly and also used to come to meet him at his office. He deposed that he never promised to marry the prosecutrix. He also did not convince her parents about their marriage at the time of their visit to her native village. According to him, it was the prosecutrix, who had been insisting upon him to marry her but he had told her categorically that his focus is on his career and not on marriage. He also deposed that the prosecutrix told him that her friend Rupa had found a match for her but she turned down the proposal as she wanted to marry him. At that time also, he rejected the marriage proposal. He deposed that the prosecutrix kept on calling him and during those calls, she was alluring him to have physical relations with her. On 14.5.2009 she told him that she is going to marry a boy named Vikram in Trichi in Tamilnadu. Thereafter, Vikram assaulted her physically and she had sent the photographs in this regard. She also demanded Rs.50,000/- from him but he did not give money to her. Thereafter the prosecutrix again started insisting upon him to marry her by saying that she wants to marry him only. He further deposed that in January, 2009 when the prosecutrix had called him for a farewell lunch to her residence in Banglore on the occasion of his transfer to Pune, she administered some sedatives to him and thereafter started tempting him for physical relations but he resisted her temptations and no sexual intercourse took place. Thereafter, the prosecutrix again started harassing him by transferring the amount of Rs. 1,20,000/- to his account without any intimation to him and without disclosing her account number. However, with some difficulty, he got to know about the account number of the prosecutrix and deposited the amount back in her account. In December, 2009 he informed her about his engagement in Punjab. She again transferred a sum of Rs.1 Lac in his account and told him that he could not return this amount to her and also closed her bank account. He submitted an application to his bank i.e. ICICI Bank asking them as to from which account this sum of Rs.1 Lac had been transferred to his account and vide communication dated 23.9.2010 (Ex.DW1/C), he was informed that this amount has been transferred from bank account no.01190023242. When he made inquiries from the prosecutrix about her account number, she started alleging that he made her to abort her pregnancy in the years 2009 and 2010. Again after one week, she transferred further sum of Rs.1 Lac to his account and then closed her account. He returned this sum of money also to her. He further deposed that the prosecutrix got to know from some common friend that his marriage has been fixed for 10.5.2011 and she came to their house in Delhi on 09.4.2011. She told the accused that she had come in search of a job and is staying at Khanpur. Her advocate Sh. Deepak Singh Sindhu telephoned him on 16.4.2010 saying that he had not returned money to her and in that regard, he should meet him in the court. He showed all the transactions to the said advocate and the matter was settled. She requested them to take her to Punjab for attending the marriage ceremony. Accordingly, his parents, his cousin Happy and the prosecutrix reached Pathankot on 30.4.2011. The parents of Happy received them at the railway station and they checked in Hotel Staywell. His would be wife and her parents had also come there. After taking meals they all went to Golden Temple. In the bus, the prosecutrix was sitting alongwith his wife and she told her that they (prosecutrix and the accused) are already married and were residing in Banglore as husband and wife. His wife informed her parents about the same and in the meanwhile, prosecutrix ran away from there. His parents-in-law called off the marriage and insulted them. After few days, he alongwith his parents went to his in-laws house, showed all the E-mails to them and convinced them that there was no relationship of husband and wife between him and the prosecutrix. They got convinced and ultimately, their marriage took place on 24.5.2011. He also deposed that the prosecutrix has filed a false complaint against him with the intention that he would not be able to marry at Delhi and would be constrained to marry her. According to him, the prosecutrix had also tried to hack his E-mail Id while he was in custody in this case and after he was released on bail, the prosecutrix called his parents and demanded Rs.20 Lacs from them or otherwise, she would file a case against them at Banglore. She has filed a false complaint against them at Banglore also. He filed on record the printouts of E-mails and Chats exchanged between him and the prosecutrix, which are Mark-A to Mark-S.

14. In the cross examination, he denied that he had promised to marry the prosecutrix in any of the meetings with her. He also denied that he had assured her parents that he would marry her. He deposed that it was on the insistence of the prosecutrix that he alongwith his two friends visited her house in her native place. He denied that E-mails Mark-F and Mark-S are fabricated and manipulated. He also denied that the prosecutrix had become pregnant from his loin in July, 2008 and he asked her to terminate the pregnancy or otherwise, he would not marry her. He deposed that upon his transfer to Pune on 07.2.2009 he had not apprised the prosecutrix about his Pune address. He admitted that the prosecutrix had come to Pune in August, 2009 but denied that she had visited his residence or stayed with him for three days or that they had physical relations during those three days. According to him, they met in a restaurant in Pune. He admitted that the prosecutrix had again come to Pune in November, 2009 but denied that she had stayed with him at Pune. According to him, they met at Sahaj Yoga temple and other public places. He also denied that the prosecutrix visited his house in Delhi on 07.8.2010 and he introduced her to his parents but denied that she stayed in their house for two days. According to him, she left their house on the same day. He further admitted that the prosecutrix had visited their house again in November, 2010 and then on 09.4.2011 but denied that she stayed with them for 21 days. According to him, she stayed in their house for about 4 or 5 days and he did not extend any promise of marriage during those days and there was no physical relations between them during those days. He also deposed that his father Sh. Balwinder Pal has filed complaint against the prosecutrix before a Ld. Magistrate in Dwarka Court, New Delhi, regarding demand of Rs.20 Lacs made by her after he was released on bail. He denied all other suggestions put to him by the Ld. APP.

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15. From the aforesaid testimony of the accused, it appears that there had been no sexual relations between him and the prosecutrix at any point of time. It is also evident that the prosecutrix had been pestering him for sexual intercourse but he had been keeping off from the same deliberately as he wanted to focus on his career. He had never made any promise or assurance to the prosecutrix that he would marry her and it is the prosecutrix who had been time and again telling him that she wants to marry him and for this reason, she had turned down a proposal of marriage from her friend Rupa. It is also evident that the prosecutrix had once told him that she is going to marry a boy Vikram in Trichi in Tamilnadu but that boy assaulted her physically and the relations became sour. The prosecutrix had been transferring money to the bank account of the accused time and again without any demand from him and without his information, probably to harass him and to create some evidence against him. She never stayed with the accused at his residence at Banglore or at Pune. She stayed in his house at Delhi only once and that too for just 4 or 5 days. She knew that the accused is going to marry a girl in Punjab on 10.5.2011 and had accompanied his family to Pathankot on 30.4.2011 to attend the marriage ceremony and there she told the accused’s would be wife that she is already married to the accused and they have been residing at Banglore as husband and wife.

16. Undoubtedly, in cases involving offence of rape, the testimony of the prosecutrix, if found to be worthy of credence as well as reliable and inspiring confidence requires no corroboration and court may convict the accused on the basis of her sole testimony. She is undoubtedly a competent witness u/s.118 of Evidence Act and her evidence must receive the same weight as is attached to that of an injured in case of physical violence. However, if for some reason, the court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for some other evidence on record, which may lend assurance to her testimony, short of corroboration required in case of accomplice. If the court finds it difficult to accept the version of the prosecutrix at its face value, it may search for evidence, direct or circumstantially which would lend assurance about her testimony. It also needs mention that even in cases of rape the onus is always on the prosecution to prove affirmatively all the ingredients of the offence which it seeks to establish and such onus never shifts. It is not the duty of the defence to explain why and how the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take the support from the weakness of the case of defence. However, the great suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legally admissible evidence and the material on record, the conviction cannot be ordered. There is initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt.

17. In the instant case, the prosecution alleges that the accused obtained consent of the prosecution for sexual intercourse on the basis of false promise of marriage and therefore the consent of the prosecution cannot be termed as free or fair, the same being a tainted one and hence the accused has committed offence of rape.

18. The Supreme Court considered this issue at length in case of Uday vs. State of Karnataka, 2003 (1) JCC 506, AIR 2003 SC 1639and held 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 is 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 strait jacket 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 fact. It may 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.”

19. Similarly, in Pradeep Kumar @ Pradeep Kumar Verma vs. State of Bihar & anr., (2007) 7 SCC 413, the Supreme Court observed as under : “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 cannot 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.”

20. In Deelip Singh @ Dilip Kumar vs. State of Bihar, AIR 2005 SC 203, it has been observed : “20. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 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 of 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 90 which is couched in negative terminology.”

21. The Supreme Court again in Deepak Gulati vs. State of Haryana, Criminal Appeal No.2322/10 decided on 20.5.2013, held as under : “Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.”

22. In the case at hand, the prosecutrix in her complaint dated 07.5.2011 to the police, on the basis of which FIR has been registered, has nowhere stated when did the accused extend promise of marriage to her for the first time and when they had sexual intercourse with each other for the first time. It is not clear from the said complaint whether physical relations between the two started before the accused promised her to marry or after that. In her statement u/s.164 Cr.PC Ex.PW4/A she has stated that they developed physical relations for the first time in the year 2008. There is no mention of any promise of marriage in that statement. She has simply mentioned that the accused gained her trust and stated that they will get married after the marriage of his two sisters.

23. In the examination in chief also, the prosecutrix has not mentioned when did the accused extend promise of marriage to her for the first time and when did they engage into physical relations for the first time. It is when she was questioned in this regard in the cross examination that she stated that the accused showed interest in getting married to her at the time of their first meeting itself on 14.7.2006 and then in the month of August, 2006 he promised that he would marry her but did not give any specific time frame for the same. In the cross examination, she stated that they had sexual intercourse for the first time in the month of November, 2006. This is totally contrary to her statement u/s.164 Cr.PC Ex.PW4/A where she had mentioned that they had physical relations for the first time in the year 2008. The first time when the accused committed sexual intercourse with her has been described by the prosecutrix in her examination in chief as under: “After returning from Hyderabad, we continued to meet each other and the accused started showing physical interest in me. He started telling me to engage into sexual intercourse with him but I showed my disinclination for the same. I told him that we should wait uptill our marriage. However, he provoked me mentally to such an extent that I had to give in. He told me that he is going to be my husband and there is nothing wrong if I engaged into sexual intercourse with him. Ultimately after intense mental and physical provocation, I compellingly engaged into sexual intercourse with him many a times.”

24. The aforesaid portion of the testimony of the prosecutrix is patently an improvement over her previous statements recorded during the course of investigation. In those statements, she did not state that the accused obtained her consent for sexual intercourse after intense mental and physical provocation. Even if the aforersaid portion of her testimony is taken on its face value, it does not show that the accused obtained her consent to the sexual intercourse solely on the basis of promise to marry. A promise to marry is totally different from the mental and physical provocation, as mentioned by the prosecution in her testimony. If a boy engages a girl, whom he loves, in sexually explicit talks and during those talks touches her sensitive body parts so that she becomes sexually active and consents to sexual intercourse, it can be said that the boy provoked the girl mentally and physically to have physical relations with him but it cannot be said that he obtained her consent by any misconception, fraud or any other promise. Mental and physical provocation is altogether different from a promise to marry and the two cannot be equated. There is no categorical statement of the prosecutrix in her examination in chief that she gave consent for sexual intercourse with the accused only on the basis of her promise to marry or on account of any threat or pressure from the side of the accused. It is evident that she did not offer any resistance and did not try to leave that place. I consider it not proper for a girl to engage in sexual intercourse with a boy who simply tells her that he is going to be her husband and there is nothing wrong in engaging her into sexual intercourse with him. It was for the girl in such circumstances to weigh the pros and cons of the intended act and to decide whether or not she should submit her a body to the boy.

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25. It is important to note her that the prosecutrix, in none of her statements mentions the place where the accused held out promise of his marriage to her for the first time or where they had physical relations with each other for the first time.

26. The prosecutrix had herself mentioned in each of her statement that the accused did not give her any specific time frame of marriage. Therefore, the prosecutrix was having no guarantee when the accused would marry her and in these circumstances, she should have been more circumspect before giving her consent for sexual intercourse.

27. The statement of the prosecutrix in her cross examination that she consented to have sexual intercourse with the accused only for the reason that she had become convinced that she would marry her does not appeal to any reason in view of what has been discussed herein above. I fail to understand how the prosecutrix had got convinced in just two or three months after her first meeting with the accused that he would definitely marry her. I myself do not feel convinced and satisfied that the prosecutrix was misled by any promise or utterance of the accused and she gave her consent to the sexual intercourse with him because of the same. It appears that the prosecutrix being a mature, educated and employed lady, understood the nature and consequence of sexual indulgence with the accused and agreed to have sexual intercourse with him only on account of her love and passion for him and not solely on account of any alleged misrepresentation.

28. Coming to the printouts of E-mails exchanged between the parties and their Chats on the internet, filed by the accused at the time of his deposition as DW1. These have been marked as Mark-A to Mark-S. These were not exhibited at that time as this court was in doubt whether these have been sufficiently proved as per the Indian Evidence Act. These include transcripts of internet chats between the prosecutrix and the accused dated 27.11.2006, 07.12.2006, 14.5.2008, 09.6.2008 and 24.9.2010 from their respective E-mails ID parureddi@gmail.com and mrashishkumar84@gamil.com. These also include transcripts of Emails dated 16.1.2007, 15.6.2007, 30.11.2007, 09.1.2009, 17.2.2009, 11.2.2009 and 17.2.2009, sent by prosecutrix from her aforesaid E-mail ID to the accused on his aforesaid E-mail ID. These also include transcripts of E-mails dated 12.2.2009 sent by the prosecutrix from her another E-mail ID parvathi@elitahomes.com to the accused and E-mail dated 12.7.2010 sent by the prosecutrix from her another E-mail Id sahajparvati@gmail.com to the accused. No question has been put to DW1 in his cross examination regarding authenticity and genuineness of the aforesaid E-mail as well as internet chats. It is manifest that the prosecution does not dispute that the two Emails IDs referred to in these E-mails and internet chats do not belong to and were not operated by the prosecutrix.

29. Normally, in order to prove an electric record, the requirements of section 65B of the Evidence Act have to be complied with but there is no bar in adducing secondary evidence in their proof under the provisions of sections 63 and 65 of the Evidence Act. It is a matter of common knowledge that E-mails and internet chats are stored in very huge servers of internet service provider and those servers cannot be produced in the court. Therefore when a witness produces the printouts of the E-mails and internet chats in the court certifying that these have been obtained truthfully and correctly, the printout documents admissible as secondary evidence in view of section 63 of the Evidence Act, unless these are disputed by the other side. Section 63 reads as under :

“63. Secondary evidence. – Secondary evidence means and includes –
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.” 30. In this regard, I may profitably refer to following passage from the judgment of the Supreme Court reported as 2005 (11) SCC 600, State vs. Navjot Sandhu: “According to section 63, secondary evidence means and includes, among other things, “Copies made from the original by mechanical process which in themselves ensures the accuracy of the copy, and copies compared with such copies”. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored on huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at page 276. Hence printouts taken from the computers/servers by mechanical process and certified by a responsible officer of the service providing company can be led in evidence through a witness who can identify the signature of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of section 65B, which is a provision dealing with the admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, sections 63 and 65. It may be that the certificate containing the details in sub section (4) of section 65B is not filed in the instant case, but that does not mean that the secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely sections 63 and 65.”

31. In the instant case, the E-mails and internet chats Mark-A to Mark-S produced by the accused during the course of his testimony have not been disputed from the side of the prosecution. DW1 in his testimony has certified their correctness and accuracy. Therefore, I am of the opinion, those have been proved as per law and I hereby mark them as Ex.J1 (colly).

32. The E-mails and internet chats between the prosecutrix and the accused tell a totally different story. It is manifest from these that in fact, it was the prosecutrix, who was insisting upon the accused to have sexual intercourse with her and the accused was not inclined to the same. It is also apparent from these E-mails and chats that the prosecutrix was not sure whether or not the accused would marry her and still she was pestering him for physical relations. The contents of these E-mails and internet chats totally contradict the version of the prosecutrix and destroy the prosecution case in totality. In fact, these advance the defence taken by the accused that he did not engage into sexual intercourse with the prosecutrix at any point of time and had never promised to marry her and he as well as the prosecutrix were merely friends. These E-mails and internet chats corroborate the testimony of DW1, which has been already noticed hereinabove.

33. There is not even a slightest indication in the aforesaid E-mails and internet chats between the accused and the prosecutrix that the accused had held out any promise of marriage to her and she consented to sexual intercourse with the accused only for that promise and in fact, sexual intercourse had taken place between the two. It is another thing that the prosecutric had the impression that the accused also loves and intends to marry her. The conduct of the accused may have given rise to such impression in the mind of the prosecutrix but that alone is not sufficient to hold that the consent of the prosecutrix for intercourse with the accused was not voluntary. There is nothing in these E-mails or internet chats to demonstrate that the accused had assured her on any point of time that he would marry her. If, in fact, the prosecutrix had consented to sexual intercourse with the accused only on later’s promise of marriage, she would have said so in these E-mails. She has not mentioned even a word in these E-mails or in internet chats about any promise of marriage held out to her by the accused.

34. Now even if it be assumed to be true that the accused at some point of time had held out a promise of marriage to the prosecutrix and the prosecutrix indulged in intercourse with the accused on such promise, I wonder how the intercourse between the two in such circumstances would amount to rape.

35. In my opinion, every act sexual intercourse between two adults on the assurance of promise of marriage does not become rape, if the assurance or promise is not fulfilled later on by the boy. When a grown up, educated and office going woman subjects herself to sexual intercourse with a friend or colleague on the latter’s promise that he would marry her, she does so at her own peril. She must be taken to understand the consequences of her act and must know that there is no guarantee that the boy would fulfill his promise. He may or may not do so. She must understand that she is engaging in an act which not only is immoral but also against the tenets of every religion. No religion in the world allows pre-marital sex.

36. The Calcutta High Court in the case of Jayanti Rani Panda Vs. State of West Bengal & Anr., 1984 Cri.L.J. 1535 observed that in order to come within the meaning of misconception of fact, the fact must have an immediate relevance. It was also observed that if a fully grown up 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 and it was held that Section 90 IPC can not be invoked unless the court can be assured that from the inception accused never intended to marry her.

37. However it can not be said that in no case, having sexual intercourse with a girl on the basis of a promise to marry would amount to commission of rape. Every such case has to examined on its individual facts and attending circumstances. The Supreme Court in Yella Grinivasa Roa Vs. State of A.P., 2006(3) JCC 1623held that if it is shown that since the very inception of making the promise, the accused did not intend to marry her and the prosecutrix extends her consent to have sexual intercourse with him, only on the strength of such misrepresentation made to her, and thereby forms a misconception of fact that the accused was definitely going to marry her, it would amount to commission of rape.

38. In Uday Vs. State of Karnataka (supra)before the Supreme Court, a friendship had developed between the prosecutrix and the appellant. When the appellant proposed to marry her, the prosecutrix told him that since they belonged to different castes, their marriage is not possible. In these circumstances the Supreme Court was of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she was deeply in love on a promise of marriage, can not be said to be given under a misconception of fact. The court further held that for determining whether consent given by the prosecutrix was voluntary or under a misconception of fact, no straight jacket formula can be laid down but following factors stand out:-

1. Where a girl was of 19 years of age and had sufficient intelligence to understand the significance and moral quality of the act she was consenting to
2. She was conscious of the fact that her marriage was difficult on account of caste considerations.
3. It was difficult to impute to the appellant knowledge the prosecutrix had consented in consequence of a misconception of fact arising from his promise and
4. There was no evidence to prove conclusively that the appellant never intended to marry the prosecutrix.

39. In the instant case also, the prosecutrix was 20 years old in the year 2006 when she started friendship with the accused and hence a mature girl. She was well educated and doing a job of secretarial and administrative nature with a reputed company of Banglore. She was an independent lady and had been residing on rent alone in Banglore since the year 2003. Hence, I consider that she was intelligent enough to understand moral quality and consequences of her act and there were no chances of their being misled by any assurance given to her by the accused. There is no evidence on record to show that she consented to sexual intercourse with the accused only on the later’s promise of marriage and otherwise, she would not have given her consent for the same. In fact, there is evidence on record in the form of Emails and internet chats between the two (Ex.J1) that prosecutrix had been pestering and inducing the accused to have sexual intercourse with her.

40. In view of the aforesaid discussion, I feel that the prosecution has failed to prove that sexual intercourse had taken place between the prosecutrix and the accused and the consent of the prosecutrix to the same was obtained by the accused by any misconception of fact. Thus the prosecution has failed to prove the charges against the accused.

41. Therefore, the accused is liable to be acquitted and is hereby acquitted.

Announced in open (VIRENDER BHAT)
Court on 20.12.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.

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