X (Assumed Name) vs State & Anr. on 16 August, 2017

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : MAY 05, 2017
DECIDED ON : AUGUST 16, 2017

+ CRL.REV.P. 110/2017 Crl.M.A.1875/17, 1877/17
X (Assumed name) ….. Petitioner
Through : Mr.V.K.Garg, Sr.Advocate, with
Mr.Ankur Chhibber and Ms.Noopur
Dubey, Advocates.

VERSUS

STATE ANR. …. Respondents
Through : Mr.Amit Gupta, APP.

+ CRL.REV.P. 166/2017 Crl.M.A.3602/2017

STATE (NCT) OF DELHI ….. Petitioner
Through : Mr.Amit Gupta, APP.

VERSUS

HARJOT SINGH PELIA ….. Respondent
Through : None.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG

Crl.Rev.P.110/2017 166/2017 Page 1 of 11
S.P GARG, J.

Crl.M.A.1875/17, 1877/17 (delay in filing and refiling) in
CRL.REV.P. 110/2017
Crl.M.A.3602/2017 (delay) in CRL.REV.P. 166/2017

For the reasons mentioned in the applications, the delay in
filing and refilling the revision petitions is condoned.

The applications stand disposed of.

CRL.REV.P. 110/2017 and CRL.REV.P. 166/2017

1. Present revision petitions have been preferred one by the victim
‘X’ (changed name) and the other by the State to challenge the legality
and correctness of an order dated 30.08.2016 of learned Additional
Sessions Judge in Sessions Case No.441333/2016 emanating from FIR
No.157/2016 registered under Sections 376/506 IPC at Police Station
Dwarka (South) whereby the respondent was discharged of the
offences.

2. I have heard the learned counsel for the parties and have
examined the file. Learned Senior counsel for the victim urged that the
Trial Court did not appreciate the case in its proper and true perspective.
The trial court fell into grave error in not appreciating that the victim’s
consent to have physical relations with the respondent was under
misconception of facts. The respondent had given false assurance to the
prosecutrix that he would marry her. Subsequently, the respondent did
not fulfill the promise to marry her; he had no intention from the very
inception to perform marriage with ‘X’ and obtained her consent to
sexual intercourse by deceit. Presumption under Section 114A of the

Crl.Rev.P.110/2017 166/2017 Page 2 of 11
Indian Evidence Act was ignored for no sound reasons. The respondent
had even taken ‘X’ to Golden Temple and had performed marriage
ceremony there. There was credible evidence on record to prove that
the prosecutrix was criminally intimidated and after taking undue
advantage of her situation whereby she had a disturbed marriage with
her previous husband which led to divorce, she was allured to have
physical relation on the false promise to marry. Reliance has been
placed on Deelip Singh @ Dilip Kumar vs.State of Bihar (2005) SC
203; Onkar Nath Mishra and Ors vs.State (NCT of Delhi) and
Anr.(2008) 2 SCC 561; State of Uttar Pradesh vs.Naushad (2013) 16
SCC 651; Karthi @ Karthick vs.State represented by Inspector of
Police, Tamil Nadu (2013) 12 SCC 710; Deepak Gulati vs.State of
Haryana (2013) 7 SCC 675.

3. Admitted position is that the prosecutrix was previously married
to Lt.Col.Aveek Day on 17.04.2003 and had a child aged around 9
years out of the said wedlock. She was aged 22 years of age at the time
of her first marriage. Relations between the prosecutrix and her
previous husband Aveek Day became strained. They sought divorce by
mutual consent and first motion petition was filed in February, 2014.
The said marriage came to an end finally on 25.08.2014 by grant of a
decree of divorce by mutual consent. It is further relevant to note that
the respondent too was a married man and the said marriage was
subsisting at the time of lodging of the FIR. Undisputedly, the
prosecutrix and the respondent were acquainted with each other. In
June, 2013, the prosecutrix with her husband came to Delhi on his
posting. There were visiting terms between the two families.

Crl.Rev.P.110/2017 166/2017 Page 3 of 11

Seemingly, intimacy developed between the prosecutrix and the
respondent during this period.

4. ‘X’ lodged a comprehensive written complaint forming basis of
the FIR, on 9.3.2016; she gave detailed account as to how and in what
manner, the respondent allured her to have physical relation by
promising to marry her and also to take the responsibility of her nine
year old son. Since she was mentally distressed, the respondent
encouraged her not to consider her previous marriage and gave her a
shoulder to rely on and insisted her to break the marriage and marry him
for a promising and a better future. She disclosed that in October, 2014,
the respondent took her and her son to Golden Temple and after taking
‘circles’ (rounds) and offerings prayer convinced her that they were
married. After an assurance of a beautiful and secured future, he tried
to convince her to have a physical relationship. At first attempt, he
forced himself on her and had sex without her consent. She further
informed that on 16.01.2016, the respondent took her to Chandigarh;
made false promise to buy her a flat in Mohali. On 17.01.2016 they
returned to Delhi and he informed her that his brother-in-law was
coming for getting the mutual divorce and he would keep her posted.
Similar allegations were reiterated in her 164 Cr.P.C. statement.

5. It is pertinent to note that during investigation, the prosecutrix
was medically examined. No injuries, whatsoever, were found on her
body including private parts to infer forcible rape. Needless to state that
there was considerable delay in lodging the FIR. The first incident of
alleged commission of rape had occurred in October, 2014. No
plausible explanation has been offered as to why the prosecutrix

Crl.Rev.P.110/2017 166/2017 Page 4 of 11
maintained complete silence for long and did not lodge the report
promptly. Contrary to that, she continued to have sexual relations with
the respondent subsequently without demur.

6. The prosecutrix admittedly had physical relationship with the
respondent with consent. No material has emerged on record to infer if
any promise to marry was made by the respondent to the prosecutrix to
obtain her consent for physical relationship. The prosecutrix was well
aware that there was no possibility of legal marriage between the two as
the respondent was already having a living spouse and no proceedings,
whatsoever, had been initiated to seek divorce. Even the prosecutrix
herself was a married lady having the custody of a nine year old child
and divorce was finally granted on 25.08.2014. The prosecutrix was a
mature and educated lady. She had adequate intelligence and maturity
to understand the significance and morality associated with the act she
was consenting to. The physical relationship between them had
occurred with her active consent as there was neither any resistance nor
she had lodged any complaint anywhere at any time for long two and a
half year. She did not initiate any steps to get alleged promise to marry
fulfilled. She was conscious of the complications surrounding her
marriage to the respondent. There was no question of her giving consent
under some misconception. She herself is not clear and certain if
physical relations at first instance were consensual on respondent’s
promise to marry or it were against her wishes forcibly. Had the
respondent established physical relations against victim’s consent in
October, 2014, there was no reason for her not to raise hue or cry or
alarm or to report the incident to the police immediately. Soon after the

Crl.Rev.P.110/2017 166/2017 Page 5 of 11
incident in October, 2014, she continued to have physical relations with
the respondent prior to lodging of the FIR. When the marriage between
the two did not materialize due to certain factors particularly the
respondent being already a married man, the prosecutrix lodged the
FIR. Prior to that she had even approached the respondent’s wife and
some confrontation had taken place between the two.

7. On perusal of the entire evidence collected during investigation,
it can safely be inferred that ingredients of Section 376 IPC are not
attracted; the allegations in the complaint do not constitute commission
of offence punishable under Section 376 IPC.

8. In Alok Kumar vs.State 2015(7) LRC 13 (Del), this Court held as
under:-

“…….there was no misconception of facts i.e. promise
to marry because when the complainant started live in
relationship with the petitioner, petitioner had not
divorced his previous wife, even complainant was not
divorced at that time. As such, complainant could not
have been induced into physical relationship based on
assurance of marriage. Undisputedly, complainant was
major at that time as such consensual physical
relationship would not constitute offence under Section
376/420 IPC.”

9. In Deepak Gulati vs.State of Haryana (2013) 7 SCC 677, the
Supreme Court held as under:-

“21. 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

Crl.Rev.P.110/2017 166/2017 Page 6 of 11
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 Indian Penal
Code cannot be called into aid in such a situation, to pardon the
act of a girl in entirety, 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.

22. The instant case is factually very similar to the case of Uday
(Supra), wherein the following facts were found to exist:

I. The prosecutrix was 19 years of age and had adequate
intelligence and maturity to understand the significance
and morality associated with the act she was consenting
to.

II. She was conscious of the fact that her marriage may
not take place owing to various considerations, including
the caste factor.

III. It was 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.

IV. There was no evidence to prove conclusively, that the
Appellant had never intended to marry the prosecutrix.

23. To conclude, the prosecutrix had left her home voluntarily, of
her own free will to get married to the Appellant. She was 19
years of age at the relevant time and was, hence, capable of
understanding the complications and issues surrounding her
marriage to the Appellant. According to the version of events
provided by her, the prosecutrix had called the Appellant on a
number given to her by him, to ask him why he had not met her at
the place that had been pre-decided by them. She also waited for

Crl.Rev.P.110/2017 166/2017 Page 7 of 11
him for a long time, and when he finally arrived she went with
him to the Karna lake where they indulged in sexual intercourse.
She did not raise any objection at this stage and made no
complaints to any one. Thereafter, she also went to Kurukshetra
with the Appellant, where she lived with his relatives. Here to, the
prosecutrix voluntarily became intimate with the Appellant. She
then, for some reason, went to live in the hostel at Kurukshetra
University illegally, and once again came into contact with the
Appellant at the Birla Mandir. Thereafter, she even proceeded
with the Appellant to the old bus-stand in Kurukshetra, to leave
for Ambala so that the two of them could get married in court at
Ambala. However, here they were apprehended by the police.

24. If the prosecutrix was in fact going to Ambala to marry the
Appellant, as stands fully established from the evidence on
record, we fail to understand on what basis the allegation of
“false promise of marriage” has been raised by the prosecutrix.
We also fail to comprehend the circumstances in which a charge
of deceit/rape can be leveled against the Appellant, in light of the
afore-mentioned fact situation.”

10. I find no irregularity or material infirmity in the impugned
order. At the stage of framing of charge, the court has no jurisdiction to
go into the merits of the allegations, and is only required to evaluate the
material and documents on record with a view to find out if the facts
emerging therefrom taken at their face value disclose the existence of
all ingredients constituting the alleged offence. The Trial Court is not
required to weigh the evidence as if it is for conviction or acquittal.

11. Discussing the law on consideration of charge, this Court in the
case of ‘Prashant Bhaskar vs.State (Govt.of NCT of Delhi) in
Crl.Rev.P.385/2009 decided on 22.09.2009 held:

Crl.Rev.P.110/2017 166/2017 Page 8 of 11

It needs no elaboration that at the stage of framing of charge, the
court is required to evaluate the materials and documents which
have been placed on record by the prosecution and taken at the
face value, whether existence of the ingredients constituting the
alleged offence or offences are disclosed. It is for this limited
purpose alone that the court is permitted to sift the evidence. In
para 7 of the judgment in (1990) 4 SCC 76 Niranjan Singh
Karam Singh Punjabi Ors. Vs. Jitendra Bhimraj Bijja Ors.
the Apex Court defined the parameters of the scope and
consideration thus:

“7. The next question is what is the scope and ambit of
the ‘consideration’ by the trial court at that stage. Can he
marshal the evidence found on the record of the case and
in the documents placed before him as he would do on the
conclusion of the evidence adduced by the prosecution
after the charge is framed? It is obvious that since he is at
the stage of deciding whether or not there exist sufficient
grounds for framing the charge, his enquiry must
necessarily be limited to deciding if the facts emerging
from the record and documents constitute the offence with
which the accused is charged. At that stage he may sift
the evidence for that limited purpose but he is not
required to marshal the evidence with a view to
separating the grain from the chaff. All that he is called
upon to consider is whether there is sufficient ground to
frame the charge and for this limited purpose he must
weigh the material on record as well as the documents
relied on by the prosecution. In the State of Bihar v.
Ramesh Singh 1977 CriLJ 1606 this Court observed that
at the initial stage of the framing of a charge, if there is a
strong suspicion-evidence which leads the Court to think
that there is ground for presuming that the accused has
committed an offence then it is not open to the Court to
say that there is no sufficient ground for proceeding
against the accused. If the evidence which the prosecutor
proposes to adduce to prove the guilt of the accused, even
if fully accepted before it is challenged by cross-

Crl.Rev.P.110/2017 166/2017 Page 9 of 11

examination or rebutted by the defence evidence, if any,
cannot show that the accused committed the offence, then
there will be no sufficient ground for proceeding with the
trial. In Union of India v. Prafulla Kumar Samal and
Anr.1979 CriLJ 154 , this Court after considering the
scope of Section 227 observed that the words ‘no
sufficient ground for proceeding against the accused’
clearly show that the Judge is not merely a post-office to
frame charge at the behest of the prosecution but he has
to exercise his judicial mind to the facts of the case in
order to determine that a case for trial has been made out
by the prosecution. In assessing this fact it is not
necessary for the court to enter into the pros and cons of
the matter or into weighing and balancing of evidence
and probabilities but he may evaluate the material to find
out if the facts – 9 – emerging therefrom taken at their
face-value establish the ingredients constituting the said
offence. After considering the case law on the subject,
this Court deduced as under: (1) That the Judge while
considering the question of framing the charges under
Section 227 of the Code has the undoubted power to sift
and weigh the evidence for the limited purpose of finding
out whether or not a prima facie case against the accused
has been made out. (2) Where the materials placed before
the court disclose grave suspicion against the accused
which has hot been properly explained the Court will be
fully justified in framing a charge and proceeding with
the trial. (3) The test to determine a prima facie case
would naturally depend upon the facts of each case and it
is difficult to lay down a rule of universal application. By
and large however if two views are equally possible and
the judge is satisfied that the evidence adduced before
him while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully within his
right to discharge the accused. (4) That in exercising his
jurisdiction under Section 227 of the Code of judge which
under the present Code is a senior and experienced judge
cannot act merely as a Post office or a mouth-piece of the

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prosecution, but has to consider the broad probabilities
of the case, the total effect of the evidence and the
documents produced before the Court, any basic
infirmities appearing in the case and so on. This however
does not mean that the Judge should make a roving
enquiry into the pros and cons of the matter and weigh
the evidence as if he was conducting a trial. xxxx From
the above discussion it seems well settled that at the
Sections 227-228 stage the court is required to evaluate
the material and documents on record with a view to
finding out if the facts emerging therefromtaken at – 10 –
their face value disclose the existence of all the
ingredients constituting the alleged offence. The court
may for this limited purpose sift the evidence as it cannot
be expected even at the initial stage to accept all that the
prosecution states as gospel truth even if it is opposed to
common sense or the broad probabilities of the case.”

12. In the light of the above discussion, the impugned order
discharging the respondent of the offences under Section 376/417 IPC
cannot be faulted. The revision petitions lack in merits and are
dismissed.

13. Copy of the order be transmitted to the Trial Court for
information.

S.P.GARG
(JUDGE)
AUGUST 16, 2017/sa

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