Pre marital consented sex is not rape always

IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI

Sessions Case Number : 92 of 2013.
Unique Case ID Number : 02401R0058622013.

State
Versus
Mr. Bheem
Son of Mr.Ram Chandra,
Resident of C-76, Maya Puri, Phase-II,Delhi.

First Information Report Number : 148/12.
Police Station Maya Puri.
Under sections 376, 420 and 506 of the Indian Penal Code.

Date of filing of the charge sheet before : 04.02.2013.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 02.04.2013.
Arguments concluded on : 31.03.2014.
Date of judgment : 31.03.2014.

Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the State.
Accused on bail with counsel, Mr.M.P.Shukla.
Ms.Shubra Mehnidiratta and Ms.Poonam Sharma, counsel
for the Delhi Commission for Women.
**************************************************************

JUDGMENT
“To call woman the weaker sex is a libel; it is man’s injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man’s superior. Has she not greater intuition, is she not more self- sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?”—-Mahatma Gandhi.

1. This case falls in the list of twenty oldest cases pending before this Court and a sincere endeavour has been made to dispose this case as expeditiously as practically possible.

2. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to “preserve the family reputation” are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is known to the culprit, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted on the pretext of marriage and whose trust is betrayed by a man in whom she reposes maximum trust so much so as to surrender herself before him into a physical relationship and then he walks out of her life, giving threats to kill her.

3. “Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation.” The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.

PROSECUTION CASE

4. Mr.Bheem, the accused, has been charge sheeted by Police Station Maya Puri, Delhi for the offence under sections 376/420/506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that at unknown time at C-76, Phase-II, Maya Puri, Delhi, within the jurisdiction of Police Station Maya Puri, he committed rape on the prosecutrix (name withheld to protect her identity) under the false promise to marry and also threatened to kill her, if she disclosed about the same to anybody.

CHARGE SHEET AND COMMITTAL
5. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 04.02.2013 and after its committal, the case was assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, THC, Delhi for 02.04.2013.

CHARGE

6. After hearing arguments, charge for offence under sections 376, 420 and 506 of the IPC was framed against the accused vide order dated 02.04.2013 to which he pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

7. In order to prove its case, the prosecution has examined as many as 13 witnesses i.e. Mr. Shiv Lal, brother of prosecutrix, as PW1; HC Virender, the Duty Officer who had recorded the formal FIR of the case, as PW2; Ct. Ram Dass, the witness of arrest of accused, as PW3; Ms. Shivali Sharma, learned Metropolitan Magistrate, Mahila Court, Tis Hazari Courts, Delhi as PW4; HC Murari Lal, the MHCM, as PW5; Dr.Shalu, who had medically examined the prosecutrix, as PW6; Dr.Rajeev, who had medically examined the accused, as PW7; the prosecutrix as PW8; Ct. Nisha, who took the prosecutrix to DDU hospital for her medical examination, as PW9; Ms. Magdleen Marin, the counsellor, as PW10; Ct. Kuldeep, witness of investigation, as PW11; SI Shiksha, the investigation officer of the case, as PW12; and Dr. Anita Chhari, FSL expert, as PW13.

8. The accused has preferred not to cross examine PWs 2, 3, 4, 5, 6, 7, 9, 10, 11 and 13 and therefore their evidence can be presumed to have been admitted as correct by the accused since it remains uncontroverted and unrebutted.

STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.

9. In his statement under section 313 of the Cr.P.C., recorded on 20.03.2014, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case and pray that he may be acquitted. He has preferred not to lead any evidence in his defence.

ARGUMENTS

10. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.

11. The Additional Public Prosecutor for the State, assisted by the counsel for the prosecutrix, has requested for convicting the accused for having committed the offence under sections 376, 420 and 506 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.

12. The counsel for the accused, on the other hand, has requested for is acquittal submitting that there is nothing incriminating against the accused on the record. There is a delay in lodging of the FIR which otherwise is also without the details. There are several contradictions in the various statements of the prosecutrix which make her evidence unreliable..

DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS

13. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a
defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.

14. Under this sphere, I now proceed to test the submissions of both the sides and give findings on the issues involved.

CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS

15. The prosecution story unveils with Mr.Shiv Lal, brother of the prosecutrix, (PW1) calling the police at 100 number. On the receipt of the said call, IO/SI Shiksha (PW12) along with Ct. Ram Dass (PW3) went to the spot where prosecutrix (PW8) along with her brother Shiv Lal (PW1) and the accused were found arguing with one another and crowd of people was also collected at the spot. IO/SI Shiksha conducted inquiries and prosecutrix told her that the accused had committed rape upon her on the false pretext of marrying her. Even in the presence of the police, the accused refused to marry the prosecutrix (PW8) and then the prosecutrix (PW8) lodged complaint with the police (Ex. PW8/A). On 11.10.2012 IO/SI Shiksha was present at PS Maya Puri and PCR call vide DD no. 15 A (Ex.PW12/X) was received regarding quarrel at C-76, Phase II, Mayapuri, Delhi. IO/SI Shiksha (PW12) recorded the detailed statement (Ex.PW8/A) of the prosecutrix(PW8) and thereafter she prepared rukka (Ex.PW12/A) and handed over rukka to Ct. Ram Dass (PW3) for registration of the case. HC Virender (PW2) registered he FIR (Ex. PW2/A), made endorsement on the rukka (Ex.PW2/B) and issued certificate under section 65 B Evidence Act (Ex.PW2/C). After getting the case registered Ct. Ram Dass(PW3) came back to the spot and handed over rukka and copy of FIR to IO/SI Shiksha. The site plan (Ex.PW12/X-1) was prepared at the instance of the prosecutrix. The prosecutrix (PW8) was taken by Lady Ct. Nisha (PW9) to DDU hospital for medical examination by the police and Dr.Arif Jafari (evidence of Dr.Arif Jafari and the MLC of the prosecutrix are admitted by the accused vide statement dated 05.08.2013 of his counsel) examined her and she had narrated the entire history of affair and relations being made by the accused with her on the promise of marriage to the doctor. She was medically examined by Dr. Shalu (PW6 ) vide MLC (Ex.PW6/A) and the samples pertaining to her were seized vide seizure memo (Ex.PW9/A). After two days of registration of FIR, the prosecutrix accompanied the police to Tis Hazari courts and her statement under section 164 Cr.P.C (Ex.PW4/A) was recorded by Ms. Shivali Sharma, learned Metropolitan Magistrate (PW4) on the application (Ex. PW4/B) of IO/SI Shiksha (PW12) and copy of the statement was given to the IO on her application (Ex. PW4/C). Ms. Magdleen Marin (PW-10) received a call from PS Mayapuri and she reached PS Mayapuri and prosecutrix (PW8) was present in PS and inquired the matter from her in a separate room and counselled her vide counselling report (Ex.PW10/A). IO/SI Shiksha interrogated the accused and arrested him vide arrest memo (Ex.PW3/A) and his personal search was taken vide personal search memo (Ex.PW3/B). He confessed vide disclosure statement (Ex.PW3/C). The accused was sent to DDU hospital for his medical examination along with Ct. Kuldeep (PW11) where you were medically xamined by Dr. Rajeev (PW7) vide MLC (Ex. PW7/A) and after his medical examination, he was brought back to Police Station Mayapuri and Ct. Kuldeep handed over the exhibits pertaining to the accused which were seized vide seizure memo (Ex.PW11/A) and case property was deposited in malkhana. On the same day, brother of the prosecutrix Mr. Shiv Lal (PW1) visited the Police Station and the prosecutrix was handed over to him and the accused was sent to lock up. On 12.10.2012, he was produced before the Court of the learned Metropolitan Magistrate and was remanded to judicial custody. On 11.10.2012, IO/SI Shiksha had deposited with HC Murari Lal/MHCM (PW5) three sealed pullandas and one sample seals in the malkhana and the entry to this effect was made in register number 19 at Sl. no. 1388 (Ex.PW5/A) and on the same day, four sealed pullandas and one sample seal were deposited by IO/SI Shiksha (PW-12) and entry to this effect was made in register number 19 at Sl. No. 1388 again (Ex.PW5/B). On 17.10.2012, four sealed pullandas and two sample seals were sent to FSL, Rohini through Ct. Kuldeep (PW11) vide RC No. 94/21/12 (Ex.PW5/C) for deposit of the same and acknowledgement receipt (Ex. PW5/D) was taken. After completing the investigation, chargesheet was prepared and filed before the Court. The FSL result (Ex.PW12/X2) was filed before the Court. Ms. Anita Chhari, Senior Scientific Officer (Biology) (PW-13) examined the exhibits and prepared the FSL result (Ex.PW12/X-2).

16. As per the allegations of the prosecution, accused Mr.Bheem on unknown time at C-76, Phase-II, Maya Puri, Delhi , he committed rape upon the prosecutrix (PW8) several times under the false promise to marry her and also threatened to kill her, if she disclosed about the same to anybody.

IDENTITY OF THE ACCUSED
17. There is no dispute regarding the identity of the accused Mr.Bheem, who has been identified by PW1- Mr. Shiv Lal, brother of the prosectrix, PW8- the prosecutrix as well as the police witnesses of investigation. It is also not in dispute that they were known to each other prior to the lodging of the FIR. Accused is also named in the FIR as well the complaint case filed by the prosecutrix.

18. Therefore, the identity of the accused stands established.

AGE OF THE PROSECUTRIX

19. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. During her evidence, the prosecutrix has given her age as 19 years. In her MLC, she has disclosed her age as 19 years. As per the prosecution, she was a major at the time of the alleged incident.

20. Therefore, it is clear that the prosecutrix was a major at the time of incident.

VIRILITY OF THE ACCUSED

21. PW7, Dr.Rajiv, had medically examined the accused and has proved the MLC of the accused (Ex.PW7/A). He has not been cross examined by the accused.

22. It is mentioned in the MLC of the accused (Ex.PW7/A) that “There is nothing to suggest that the person is not capable to perform the sexual intercourse”

23. Even on physical examination, the doctor has found that the secondary sexual characters were well developped.

24. Therefore, it is clear that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.

MLC OF THE PROSECUTRIX

25. PW6, Dr.Shalu, had deposed that the prosecutrix had been medically examined on 11.10.2012 vide MLC (Ex.PW6/A).

26. It is clear from the MLC of the prosecutrix (Ex.PW6/A) that the prosecutrix had told the doctor in the history that she has an affair with a boy and he was ready to marry her so they have physical relations twice two months back but now he denied to marry her.

27. The prosecutrix did not have any fresh external injury.

28. It has been argued on behalf of the accused that as there is no medical evidence against the accused, it indicates that he has been falsely implicated in this case. She does not have any fresh injury on her body and had she been raped, there would have been injuries on her body and private parts.

29. However, this contention is not tenable as the medical evidence is only for the purpose of corroboration and solely on the ground of lack of such eidence, the accused cannot be acquitted. It is evidence of the prosecutrix or the eye witness which is of utmost importance and the judgment is mainly based on that evidence.

30. It cannot be ignored that as per the evidence of the prosecutrix, she last had physical contact with the accused two months earlier to her medical examination on 11.10.2012.

31. In such a situation, there could not have been any injury on her body and private parts due to lapse of time.

32. Otherwise also, medical and forensic evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. It is evidence of the prosecutrix which is of utmost importance and the judgment is mainly based on her evidence.

33. The contention of the counsel for the accused is not tenable as the medical evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted.

FORENSIC EVIDENCE

34. The FSL report (Ex.PW12/X-2) proved by Ms.Anita Chhari (PW13) shows that as the DNA could not be isolated, the opinion cannot be given.

35. It has been argued on behalf of the accused that as there is no medical and forensic evidence against the accused, it indicates that he has been falsely implicated in this case.

36. However, this contention is not tenable as although the FSL report does not help the prosecution in any manner but it cannot be ignored that the prosecutrix was medically examined after a long time of the alleged last physical contact with the accused. It may be mentioned here again that the medical and forensic evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted.

DELAY IN FIR

37. The contention of the advocate for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.

38. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.

39. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.

40. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon’ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.

41. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:

“The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor.
On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally
unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.

42. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon’ble High Court of Delhi has observed as follows:

“The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year.”
43. Further, the Hon’ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:

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“No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon’ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case”
44. The Hon’ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:

“in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused
persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established”

45. It is claimed by the accused that as the FIR (Ex.PW2/A) has been lodged on 11.10.2012 at 19:30 hours while the allegations made by the prosecutrix in her complaint (Ex.PW8/A) are that the accused had physical relations with her on the pretext of marriage several times and she told her brother about the same on 11.10.2012. The delay in lodging of the FIR has been not explained by the prosecution as the physical relations allegedly were made much prior to the lodging of FIR.

46. The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the prosecutrix was under the impression that the accused would marry her and kept waiting. She had given her complaint (Ex.PW8/A) to the police on 11.10.2012 when the accused refused to marry her and then the FIR was lodged.

47. As per the complaint, Ex.PW8/A which is made on 11.10.2012, the date of the first offence is not mentioned.

48. The prosecutrix in her MLC (Ex.PW6/A) dated 11.10.2012 has told in the history that she had sexual relations with the accused for last time about two months ago which means it was in August, 2012.

49. The prosecutrix, in her evidence before the Court, has deposed that he first incident was five six months prior to her lodging the complaint which means it would be in the month of March-April, 2012.

50. The FIR has admittedly been lodged on 11.10.2012 at 19:30 hours.

51. As regards the period w.e.f. March-April, 2012 till August, 2012 is concerned, it may be mentioned that during this period as there was an alleged promise to marry, so there was no occasion for the prosecutrix to make a complaint against the accused and therefore, it can be said that there is no delay in lodging of the FIR.

52. The prosecutrix has tried to justify the period w.e.f. August, 2012 (as per the MLC) till 11.10.2012 (date of FIR) by deposing in her examination in chief that when the accused refused to marry her, her brother overheard them talking and then she narrated everything to her brother who took her to the house of the accused where he refused to marry her, then her brother called the police.

53. As long as the commitment of marriage subsists, relationship between the parties could not be described as constituting the offence of rape under section 376 IPC, it was only after the accused had declined to marry with prosecutrix, be different dimension came to be attached to the physical relationship, which had legitimately continued over the past six months. Things changed when the accused declined to marry her. After he declined, without any delay prosecutrix disclosed the entire episode to her brother. On the refusal of the accused to marry her, without any further delay, brother of
the prosecutrix referred the matter to the police and hence it would not be possible to hold that any doubt can be said to have created in the version of the prosecutrix., merely on account of delay in the registration of the first information report.

54. Therefore, it can be said that the FIR was lodged without any delay.

STATEMENTS AND EVIDENCE OF THE PROSECUTRIX

55. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW8, the prosecutrix.

56. The prosecutrix has deposed on oath that in the year 2012, she (PW8) started working in a factory situated at C-167 Phase II Mayapuri, Delhi and she used to do packaging work and used to reside in a nearby Jhuggi alongwith her brother Raju and the accused also used to work in the factory. He started talking to the prosecutrix (PW8) and developed intimacy with her and when they both became friendly, he told her that he wanted to marry her and the prosecutrix (PW8) agreed to this. Five or six months prior to her filing the present complaint, the accused took her two times to the roof of the said factory and there after promising the prosecutrix to get married soon, made physical relations with her. He was also living in a Jhuggi near that factory and two times, he had taken the prosecutrix to his jhuggi. He again promised to marry her and made physical relations with her and it was only on his assurance that he shall marry the prosecutrix (PW8) soon and she agreed for this sexual relations. However, when long time passed, the
prosecutrix pressurized him to marry her and he threatened to kill her and her brother. He used to call the prosecutrix (PW8) on the mobile phone of her sister Neelam and used to talk to her on this phone and once her brother overheard her talking to you and then on his asking she narrated the entire story to her brother. Thereafter, her brother Shiv Lal (PW1) took the prosecutrix to the house of the accused and he was present in the house. However he straightway refused to marry her and also told them that he had already been engaged to someone in the village and thereafter, her brother called at 100 number and the police came at the spot. Even in the presence of the police, accused Bheem refused to marry her. Then she lodged complaint with the police (Ex.PW8/A). She was taken to DDU hospital for medical examination by the police. The doctor concerned examined her and she had narrated the entire history of affair and relations being made by the accused Bheem with her on the promise of marriage to the doctor. She had shown the spot i.e. jhuggi where accused Bheem made relations with her to the police and the police person had made site plan thereof in her presence. After two days of registration of FIR, she accompanied the police to Tis Hazari Courts and her statement under section 164 Cr.P.C. (Ex. PW4/A) was recorded by the learned Metropolitan Magistrate.

57. In her cross examination by the accused, she has admitted that her duty hours in the factory during the relevant period were from 9.00 a.m to 9.00 p.m. It was a three storeyed building and the factory where she used to work was on the third floor. 7-8 male workers and 5 female workers including her used to work in that factory. She had gone on the roof top of that factory twice along with accused Bheem, however she do not remember exact date
and month. She had not told anybody about her visit to the roof top along with the accused. However she told SI Shiksha i.e. IO of this case that accused Bheem took her twice at the roof top. When accused Bheem called at the mobile phone of her sister first time, he had only told her sister that he wanted to talk to her, however accused neither disclosed his name nor she knew before hand that accused Bheem had called at the mobile phone of her sister. She used to stay with her brother Mr. Raju and during night used to sleep on the roof of that house as Mr.Raju was having only one room and he was living along with his family in that room. She denied the suggestion that she used to sleep on the roof of house of her sister Ms. Neelam who used to reside in the neighbourhood of her brother Mr. Raju and accused Bheem. She has admitted that the roof of the house belonging to her sister and accused Bheem are adjacent to each other. She had submitted in her complaint made at Police Station Mayapuri that accused Bheem threatened to kill her and her brother Mr.Raju. She denied the suggestion that she had written her statement under section 164 Cr.P.C and then handed the same over to the learned Metropolitan Magistrate. She had told the learned Metropolitan Magistrate that accused Bheem had threatened to kill her and her brother Mr.Raju. She admitted that she had physical relations with the accused Bheem with her free consent. She voluntarily submitted that it was only because the accused had promised to marry her. Had the accused Bheem not promised to marry her, she would not have had physical relations with him. She is now married. She had got married to Mr. Mithun about six months ago. She has denied the suggestion that the accused Bheem had never threatened to kill her and her brother. She has denied the suggestion that as the accused had promised to marry her and had physical relations with her but as he did not marry her, she
had levelled false allegations of his threatening to kill her and her brother (the defence counsel had submitted at this stage that the accused Bheem does not dispute that he had promised to marry the prosecutrix and that thereafter he had physical relations with her). She had denied the suggestion that the accused has been falsely implicated in this case by her as he had retracted from his promise to marry me. She denied the suggestion that she is deposing falsely.

58. In her statement under section 164 Cr.P.C. (Ex.PW4/A), the prosecutrix has stated that she had joined a company and after a week she had become acquainted with accused and accused asked her to be his friend and she developed friendship with him. They developed deep love, then he started doing some wrong acts with her. By wrong acts she means what happens after marriage – sex. She told him that this happens after marriage on which the accused told her that he will marry her. Then, they had physical relations two times with their consent. Then he went to his village, he had not informed about her in his family and his brother and sister in law fixed his marriage and engagement was done. She wants to marry the accused and accused also wants to marry her but his family is not agreeable.

59. It may also be mentioned here that on perusal of DD no. 15 A dated 11.10.2013 (Ex.PW12/X), it transpires that the same is regarding the quarrel (jhagda). The IO/SI Shiksha (PW12) has deposed similarly in her examination in chief and has elaborated the same in her cross examination, saying that Mr. Shiv Lal, brother of the prosecutrix, was asking accused why he had raped his sister and why he was not agreeing to marry her and on this
issue the quarrel was going on between them.

60. Before coming to the factual matrix, briefly the law regarding physical relations on a false pretext of marriage is required to be elaborated briefly.

61. In the case reported as Uday v. State of Karnataka, AIR 2003 SC 1639, the Hon’ble Supreme Court has 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 done by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also 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.”
62. In the case reported as Sujit Ranjan v State, 2011 LawSuit (Del) 601, the Hon’ble Delhi High Court has held that:

“Legal position which can be culled out from the judicial pronouncements referred above is that the consent given by the prosecutrix to have sexual intercourse with whom she is in love, on a
promise that he would marry her on a later date, cannot be considered as given under “misconception of fact”. Whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under ” misconception of fact ” depends on the facts of each case. While considering the question of consent, the Court must consider the evidence before it and the surrounding circumstances before reaching a conclusion. Evidence adduced by the prosecution has to be weighed keeping in mind that the burden is on the prosecution to prove each and every ingredient of the offence Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception and that promise made was false to his knowledge. The failure to keep the promise on a future uncertain date may be on account of variety of reasons and could not always amount to ” misconception of fact ” right from the inception.”

63. In the case reported as Deepak Gulati v State of Haryana, (2013) 7 SCC 675 : 2013 Law Suit (SC) 442 , the Hon’ble Supreme Court has held that:

“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 malafide 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 any 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 mis-representation 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 malafide, and that he had clandestine motives. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The ” failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance.” Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirely, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.”

64. Thus, in Uday’s case (supra) and Deepak Gulati’s case (supra), the Hon’ble Supreme Court laid down the law that if the prosecutrix is matured to understand the significance and morality associated with the act, she was consenting to and that she was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor and also that if it is difficult to impute to the accused, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her and further that if there is any evidence to prove conclusively, that the appellant never intended to marry with the prosecutrix, the accused be given benefit of doubt.

65. In the case reported as Kuldeep Tyagi v The State NCT of
Delhi, 2013(2) JCC 840, it was observed that it was never the case of the prosecutrix that she ever insisted the accused to marry her. Thus, it was not a case of refusal to marry, despite promise, hence, not relevant.

66. In the judgment reported as Nikhil Parashar v. State of Delhi, 2010 (1) JCC 615, it was observed as follows:

“If I take the view that sexual intercourse with a girl, in the facts and circumstances such as in the present case, does not amount to rape, it will result in unscrupulous and mischievous persons, taking undue advantage of innocent girls by promising marriage with them, without having any intention to do so, re-assuring the girl and her family by making the two families meet each other and formalize the matter by ceremonies, such as an engagement, persuading the girl to have sexual intercourse with him by making her believe that he was definitely going to marry her and then abandoning her, after robbing her of what is most dear to her. A case where the girl agrees to have sexual intercourse on account of her love and passion for the boy and not solely on account of the misrepresentation made to her by the boy or a case where a boy, on account of circumstances, which he could not have foreseen or which are beyond his control, does not marry her, despite having all good intentions to do so, has to be treated differently from a case, such as the present one, where the petitioner since the very inception had no intention of marrying the prosecutrix to whom he was a complete stranger before he met her to consider the proposal for marriage with her.”
67. In the case reported as Karthi @ Karthick v State of Tamil Nadu, Crl. Appeal No. 601 of 2008 decided on 01/07/2013, AIR 2013 SC 2645, the facts were that the accused used to tease the prosecutrix and one day finding her alone in her house committed sexual intercourse forcibly and then promised to marry her and requested that she should not disclose this fact to anybody. Thereafter they both were engaged in consensual sex at different
places and in all these meeting the accused swore that he would marry with the prosecutrix. However one day on 05.10.2003, both the prosecutrix and accused gone in a temple where she requested the accused to marry her but he refused and on his refusal, she divulged the entire facts to her family members. Panchayat was held in village and the accused was summoned there and persuade to marry with prosecutrix but he refused to marry the prosecutrix and then the prosecutrix lodged a report.

68. The Hon’ble Supreme Court after considering the case law laid down in (Uday’s case) held that the first sexual intercourse was forceful and thereafter the subsequent acts of sexual intercourse, were actions of actively cheating her, by giving her the impression that he would marry her. The occurrence at the Murugan temple, is of significant importance, where he left the prosecutrix when he was asked to marry her. Hence the court held that the sexual intercourse by the accused with the prosecutrix was not consensual as obtaining consent by exercising deceit, cannot be legitimate defence to exculpate an accused.

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69. Thus, on analyzing the law laid down by the Hon’ble Superior Courts it appears that the intention of the accused at the time of entering into a relationship is to be seen by the court as to if he really intended to marry the prosecutrix or he merely made the promise to get sexual favours from the prosecutrix. If the facts suggest that the accused genuinely wished to marry prosecutrix but it could not materialize due to reasons beyond his control, then in such an event no offence could be made out. However, on the contrary, if he had no intention to marry the prosecutrix since beginning then his case
would be squarely covered within the ambit of offence under section 376 IPC.

70. Turning to the present case, on carefully scrutiny of her different statements, it transpires that the prosecutrix has made several improvements in her evidence and her deposition is contrary to her earlier statements.

71. A major contradiction which is seen is in the alleged threat given by the accused to the prosecutrix. In her complaint (Ex. PW8/A) the prosecutrix has deposed that whenever she used to ask the accused for marriage, he used to avoid the same and threatened her that in case she disclosed to any one about the relationship, he would kill her and her brother due to which she did not tell anyone. In her statement under section 164 of the Cr.P.C. (Ex.PW4/A) the prosecutrix is completely silent about the threat. In her statement under section 161 of the Cr.P.C. dated 11.10.2012, the prosecutrix is completely silent about the threat. In her evidence before the Court, the prosecutrix has deposed that when she pressurized the accused to marry her, he threatened to kill her and her brother.

72. Another contradiction is regarding the number of times and the places where the accused had physical relations with the prosecutrix. In her complaint (Ex.PW8/A), the prosecutrix has stated that the accused had physical relations with her several times (kai baar). In her statement under section 164 of the Cr.P.C. (Ex.PW4/A), she has mentioned that they had physical relations two times with her consent. In her statement under section 161 Cr.P.C. dated 11.10.2012, the prosecutrix has submitted that accused had physical relations with her in the jhuggi of his brother at C-76
Mayapuri, Phase-II, Delhi. In her evidence before the Court, the prosecutrix has deposed that accused had taken her two times to the roof of the factory and two times in his jhuggi near the factory and had made physical relations with her.

73. Another contradiction which is observed in the evidence of the prosecutrix is regarding the manner in which her brother came to know about the entire story. In her evidence, the prosecutrix has deposed that once her brother overheard her talking to accused Bheem and then on his asking she narrated the entire story to her brother. Thereafter, her brother Shivlal took her to the house of accused Bheem. Accused Bheem was present in the house however he straightaway refused to marry her and also told them that he has already been engaged to someone in the village. Thereafter, her brother called at 100 number. In her complaint (Ex. PW8/A), she has stated that she had herself told her brother on 11.10.2012 about the entire incident on which she and her brother had gone to the house of accused where she asked the accused to marry him and he told that he has already been engaged in his village and refused to marry her and argument took place between them and her brother called at number 100. The prosecutrix is completely silent in her statement under section 164 of the Cr.P.C. as well statement under section 161 Cr.P.C. about the manner in which her brother had come to know about the incident.

74. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it
unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version.

75. It is pertinent to mention here that besides the above stated different versions on the material points there are some overwhelming contradictions and glaring inconsistencies in the evidence of the prosecutrix which cannot be ignored. In her cross examination, the veracity of the testimony of the prosecutrix stands shattered.

76. The Additional Public Prosecutor, relying upon the judgments reported as Karthi @ Karthick v State of Tamil Nadu, Crl. Appeal No. 601 of 2008 decided on 01/07/2013, AIR 2013 SC 2645 and State of U.P. Vs. Naushad, Criminal Appeal No.1949 of 2013 arising out of SLP (CRL.) No.5390 of 2008, decided on 19.11.2013 has argued that the prosecutrix was under a misconception of facts and her consent for physical relations was obtained by misrepresentation and fraud.

77. Here, it may be mentioned that it is important to understand what consent implies and what is consent on misconception of facts.

78. An argument has been raised by the Additional Public Prosecutor that the accused on the pretext of love and promise to marry established a physical relationship with the prosecutrix which amounts to rape as this is
obtaining the consent of the prosecutrix by fraud and incitement which neither voluntary nor free. Had the prosecutrix known that the accused would not marry her, she would not established physical relations with him.

79. On the other hand, it had argued by the counsel for the accused that the prosecutrix had physical relationship with the accused with her free consent and will.

80. The crucial expression in section 375 of the IPC which defines rape as against her will. It seems to connote that the offending act was despite resistance and opposition of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained in Section 90 which reads as follows:

“Consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all.”

81. Jowitts Dictionary on English Law, Words and Phrases, Permanent Edn. explains “consent” as follows:

“Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent is obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of mind.”
82. In Words and Phrases, Permanent Edn., Vol.8-A, the following passages culled out from certain old decisions of the American Courts are found:

“…..adult females understanding of nature and consequences ofsexual act must be intelligent understanding to constitute consent.”

83. Here, it would be necessary to mention that in the case reported as Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC (Cri) 1448, it has been observed that:

“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 an 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 unless the Court can be assured that from the very inception the accused never really intended to marry her.”
84. Similar observations have also been made in the judgments reported as Pradeep Kumar Verma v. State of Bihar & anr., AIR 2007 SC 3059; Jyotsana Kora v. The State of West Bengal and anr., Manu/WB/0364/2010; Deelip Singh alias Dilip Kuamr v. State of Bihar, (2005) 1 SCC 88; Uday v. State of Karnataka, (2003) 4 SCC 46 and Naresh Kumar v. State (Govt. of NCT) Delhi, 2012 (7) LRC 156 (Del).

85. When a girl, a major, willfully has physical relations with the accused on the promise to marry on an uncertain date, it cannot be said that it
is a misconception of fact or that her consent has been obtained by fraud. It is clear that the prosecutrix accepted whatever physical relationship was there with her free consent.

86. In the present case, it is clear that that the consent of the prosecutrix on the promise to marry cannot be said to be under a misconception of fact as she was a major at the time of the alleged incident and intelligent enough to understand the consequences of establishing physical relationship with the accused. Mere promise to marry on an uncertain date does not indicate that the accused has obtained her consent for the physical relationship by fraud or misrepresentation. Consent given by the prosecutrix to have physical relationship with whom she is in love, on a promise that he would marry her on a later date, cannot be considered as given under misconception of fact.

87. Physical relations by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix ‘against her consent’. How is ‘consent’ defined? Section 90 of the IPC defines consent known to be given under ‘fear or misconception’ which reads as under:- “90. Consent known to be given under fear or misconception –

A consent is not such consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.

88. Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated. It cannot be said that the alleged consent said to have obtained by the accused was not voluntary consent and the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is not borne out from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix.

89. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent.

90. Section 114-A of the Indian Evidence Act, 1872 provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, alongwith the provisions of Section 90 of the Act 1872. Section 90 of the Act 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.

91. The judgments reported as Uday v. State of Karnataka, AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059, observe that in the event that the accused’s promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act (s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.

92. 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 mis-representation 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.

93. After careful perusal of the judgment reported as Karthi @ Karthick v State of Tamil Nadu, Crl. Appeal No. 601 of 2008 decided on 01/07/2013, AIR 2013 SC 2645, it can be said that the same does not apply to the facts of the present case as in that case force had been used by the accused at the time of first incident of physical relations, a panchayat for the marriage between the prosecutrix and the accused had been held where the accused had refused to marry her and there were two witnesses also. However, the facts of the present case are very different.

94. The judgment of the hon’ble Supreme Court in State of U.P. Vs. Naushad, Criminal Appeal No.1949 of 2013 arising out of SLP (CRL.) No.5390 of 2008, decided on 19.11.2013, relied upon by the prosecution, would not be applicable to the facts of the present case as in that case the prosecutrix had become pregnant due to the physical relations with the accused, who was also related to her. The accused had admitted before two prosecution witnesses who were functioning as Panchayat that he had committed sexual intercourse and promised to marry her but he absconded despite the promise made before the Panchayat. He had even offered money to her. That shows that the accused had no intention to marry her right from
the beginning and committed sexual intercourse totally under the misconception of fact by prosecutor that he would marry her. However, the facts of the present case are different.

95. After the lodging of the complaint (Ex.PW8/A), the earliest statement made by the prosecutrix before the Court i.e. before the learned Metropolitan Magistrate under section 164 Cr.P.C. (Ex.PW4/A) shows that they were deeply in love and the prosecutrix had physical relations with the accused with her consent. Although the prosecutrix in her evidence before the Court has deposed that she had physical relations with the accused only on the assurance of the marriage otherwise she would not have had the same appears to be an afterthought since she has herself deposed that the accused started talking to her and developed intimacy with her. They became friendly and he told her that he wanted to marry her to which she agreed. Apparently, the families of both the accused and prosecutrix were not involved.

96. It emerges from the evidence of the prosecutrix that she herself was inclined to marry the accused as without any date of marriage being fixed she had physical relations with him and thereafter she was pressurizing the accused to marry her. In fact, in her cross examination she has deposed that “It is correct that I had physical relations with the accused with my free consent”. The prosecutrix is aged about 19 years and she had given her consent in lieu of an alleged promise made by the accused for marrying her and had willfully submitted to the physical relations with him despite being capable of fully understanding the significance and morality attached with such acts and being conscious that marriage may not take place for various
factors. Though there is no evidence showing that the accused never intended to marry her merely because accused could not keep his promise on account of un-aviodable circumstances prosecutrix cannot be said to have given her consent under mis-conceptions of facts arising from any false promise of marriage. Merely by saying that he would marry her it cannot be said that the accused had promised her to marry her. The failure to keep an alleged promise made with respect to future uncertain date due to the reasons that are not very clear from the available evidence does not always amount to mis- conception of fact.

97. PW1, Mr. Shiv Lal, has deposed that his sister had developed friendship with the accused. Accused had taken his sister on 08.11.2012 to Noida while he was searching for his sister, he received a telephonic call from her on 09.11.2012 and she told him that the accused is aware of the place where they were residing. When he talked to the accused,he was not informed about the place one Mr. Vidhyanand made a call to him informing him that his sister is with him and he should take her. He talked to his sister and he confirmed the same he went to Sector 83 Noida where he met his sister along with Mr. Vidhya Nanad near police Chowki of Sector 83 Noida. He brought his sister back and Mr.Vidhyanand also accompany them to Delhi. He called accused Bheem who reached their jhuggi. His sister told him that the accused had physical relations with her on the pretext of marriage but on inquiry the accused refused to marry her. Accused also told him that he had physical relations with many girls whether he should marry them. Then he called the police at 100number.

98. The version of PW1, Mr. Shiv Lal, is entirely different from the version projected by the prosecutrix. It appears from the evidence of PW1 that the prosecutrix had herself gone with the accused and whatever relations were established, were with her free consent.

99. The prosecutix also preferred to go with the accused to different places on different occasions knowing that she would have physical relations with the accused. She was also aware that she is not married to him. Despite the same, she still preferred to be with him and did not raise any objection or resistance nor told her family or contacted the family of the accused nor both the families ever met for the marriage of the prosecutrix with the accused. This fact clearly indicates that the prosecutrix was a consenting party. It appears that the prosecutrix being aware of the acts she was indulging in and she being a major surely knew about the morality attached to the act and hence the accused cannot be held liable.

100. The only dispute which emerges is whether or not it was with her free consent or under a misconception on the false pretext of promise to marry that the prosecutrix had physical relations with the accused. By no stretch of imagination it can be said that the accused had promised to marry her. It is crystal clear that the prosecutrix had physical relations with the accused voluntarily and with her free consent and it was without any misconception of facts or any false promise of marriage. She was capable of understanding the complications and issues surrounding her marriage with the accused and then being involved with the accused to the extent of having physical relations with him.

101. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime.

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102. If one integral part of the story put forth by a witness-prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence.

103. It is a case of heinous crime of rape, which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere
possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused and not merely dwell upon the shortcoming of defence.

104. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 376, 420 and 506 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was forced into having physical relations by the accused on a false promise of marriage and threatened by the accused.

105. It is clear that the prosecutrix had willfully physical relationship with the accused, being a consenting party, and that the accused does not appear to have committed any offence.

106. The prosecutrix is an adult. She is sufficiently intelligent to understand the significance and moral quality of the act she was consenting to, having friendship with the accused and having no grievance about his conduct and behaviour at any time and having established physical relationship number of times with her consent and without any resistance. She never informed her family about her relationship with the accused or his offer to marry her. Her versions are inconsistent and contradictory. All the surrounding circumstances reveal that the prosecutrix established physical relationship with the accused with her free consent and in such a situation, there is nothing on the judicial record to show that the accused has ever committed any offence, as alleged.

107. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped as her consent is not free.

108. The hon’ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment reported as Bharwada Boginbhai Hijri Bhai v. State of Gujarat, 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.

(a)By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(b)Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(c)The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind, whereas it might go unnoticed on the part of another.

(d)By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(e)In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.

(f)Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short
time span. A witness is liable to get confused, or mixed up when interrogated lateron.

(g)A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.

109. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is she has leveled false allegations of rape and threat against the accused.

110. Regarding the alleged threats given by the accused to the prosecutrix, it may be observed that neither the prosecutrix has given the details of the words used by the accused not their impact on her which makes her evidence unbelievable. Had there been any threat, it would have been only for a particular time and not for an indefinite period. She was living in a residential area, going out of the house, in association with others, in contact
with the others, and could have taken their help if there was any threat or she needed help. The effect of the alleged threat, has not been disclosed anywhere. Neither the words used nor the impact of the threat have been furnished by the prosecution. Merely making a bald allegation that she was threatened does not suffice for convicting the accused and there was no reason why she could not have disclosed about the alleged threat to the others with whom she had come in contact with. The fact that she chose to remain silent, only shows that there was no danger nor any threat. There should be some positive corroborating evidence.

111. In the light of the aforesaid nature of deposition of the prosecutrix, PW8, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:

“Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness.”
112. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.

113. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent
statements due to which her testimony becomes unreliable and unworthy of credence.

114. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was forced by the accused to have physical elations on a false promise of marriage and then threatened by him.

115. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon’ble Supreme Court of India as under:-

“Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted……”
116. This brings me to the final question as to whether it was she was raped by the accused on a false promise of marriage and threatened. In this regard it is no doubt true that in her statement before this Court, she has stated that she had physical relations with the accused on a false pretext of marriage but there are several contradictions in her statements which remain unexplained and indicate that no such offence was ever committed by the accused.

117. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.

118. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.

119. All the above facts and the ration of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offence of rape on promise to marry the prosecutrix and threat by accused Mr.Bheem and the accused merits to be acquitted for the offence under sections 376, 420 and 506 of the IPC.

DEFENCE OF THE ACCUSED

120. In his statement under section 313 of the Cr.P.C., the accused has stated that he is innocent and has been falsely implicated in this case by the prosecutrix. He has preferred not to lead any evidence in his defence.

121. The defence of the accused appears to be plausible considering the unreliable evidence of the prosecutrix which suffers from overwlelming contradictions and galring inconsistencies.

122. It may also be mentioned here that although the accused has taken the stand in his statement under section 313 of the Cr.P.C. that he did not have physical relations with the prosecutrix and has also given similar suggestions to the prosecutrix. However, his own stand is falsified when he has given suggestions contrary to his stand to the prosecutrix, which indicates that indeed there were physical relations established between the accused and the prosecutrix. In the cross examination of the prosecutrix, she has deposed that “It is wrong to suggest that the accused Bheem has never threatened kill me and my brother. It is wrong to suggest that as the accused had promised to marry me and had physical relations with me but as he did not marry me, I have leveled false allegations of his threatening to kill me and my brother ( the defence counsel had submitted at this stage that the accused Bheem does not dispute that he had promised to marry the prosecutrix and that thereafter he had physical relations with her).”

123. However, the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused. The prosecution cannot take advantage of the weakness of fact that the accused as not led any evidence in his defence.

124. It has already been discussed above that the evidence of prosecutrix is not reliable and is unworthy of credence. Therefore, the defence of the accused appears to be plausible.

MENS REA / MOTIVE

125. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.

126. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.

127. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

128. In the present case, a story has been projected that the accused has raped the prosecutrix on promise of marriage and thereafter threatened to kill her and her brother and this version appears to be untrue as there is no reason why he would do so. There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecutrix.

129. There does not appear to be any criminal intention and mens rea on the part of the accused.

INVESTIGATION
130. The investigation conducted in the present case has been deposed by PWs 3, 5, 9, 11, 12. The MLCs of the prosecutrix and the accused have been proved by PWs 6 and 7. The FSL reports have been proved by PW13. The FIR has been proved by PW2. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.

131. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case. The investigation appears to have been conducted fairly and properly.

132. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.

133. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.

134. Therefore, the investigation although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable

CONCLUSION
135. Since the prosecutrix as PW8 is neither reliable nor believable as there are overwhelming inconsistencies, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.

136. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish rape by the accused on the pretext of marriage and threats by accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.

137. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

138. Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Bheem stands established. It also stands established that the prosecutrix was not a minor when the alleged offence was committed. It also stands established that the accused had not raped her on a false promise of marriage. It also stands established that the accused has neither promised to marry the prosecutrix nor raped her on a false pretext of marriage. It also stands established that the accused and not threatened to kill the prosecutrix and her borther. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.

139. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was raped by the accused on a false promise of marriage or threatened by the accused.

140. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Bheem.

141. Accordingly, Mr.Bheem, the accused, is hereby acquitted of the charges for the offence punishable under sections, 420 and 506 of the IPC.

142. It would not be out of place to mention here that today there is so much public outrage and a hue and cry being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.

COMPLAINCE OF SECTION 437-AOF THE CR.P.C.

143. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.

144. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.

145. One copy of the judgment be given to the Additional Public Prosecutor, as requested.

146. After the expiry of the period of limitation for appeal and on completion of the formalities, the Ahlmad shall consign the file to the record room.

(NIVEDITA ANIL SHARMA)
Announced in the open Court on this 31st day of March, 2014. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.

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