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Vikas vs State ( Nct) Of Delhi on 29 January, 2020

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL. REV. P. 104/2016 CRL. M.A. 2433/2016

Reserved on : 28.01.2020
Decision on : 29.01.2020

IN THE MATTER OF:
VIKAS ….. Petitioner
Through: Mr. Sidharth Aggarwal, Advocate
with Mr. Aditya Singla, Ms. Supriya
Juneja, Ms. Cheshta Jetly, Mr.
Sidharth Satija Mr. Ravi Pathak,
Advocates

versus

STATE (NCT) OF DELHI ….. Respondents

Through: Ms. Manjeet Arya, APP for State with
SI Rajender Singh, P.S. Malviya
Nagar
Ms. Mallika Parmar, Advocate
(DHCLSC) for respondent No. 2

CORAM:

HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

1. The present petition is directed against the order on charge dated
06.01.2016 and order dated 21.01.2016 whereby the trial court has framed
charge against the petitioner for the offence punishable under Sections
417/376 IPC in FIR No. 1561/2015 registered at P.S. Malviya Nagar.

2. The brief facts of the case, as noted in the impugned order, are as
follows :-

CRL. REV.P. 104/2016 Page 1 of 11

“1. The case of the prosecution as per the chargesheet is
that on 14.08.2015 the prosecutrix gave her statement in
police station Malviya Nagar stating to the following
effect: She was living with her 3 children in a rented
accommodation. Since the past 2 years she was staying in
different rented accommodations in Chirag Delhi. She
was a permanent resident of village Kalani in district
Gorakhpur Uttar Pradesh. Her one daughter was living
with her in-laws. When she was living in her in-laws
house in Bihar her husband used to beat her because of
this she became fed up and came with someone to Chirag
Delhi. Here she started doing the job of cooking in
houses. After 10 years of coming to Delhi her husband
also came to Chirag Delhi. He used to beat her. In
September 2014 she along with her children and husband
started staying in T-265 Chirag Delhi. One day when her
husband was beating her the accused who was living in
the opposite house got her freed from her husband and
assured her that he was unmarried. He assured her that
he would look after her and her children and would bear
all the expenses and that she should stay with him. He
told her to leave her husband. She believed the accused
and the accused used to come to her room and
established physical relations with her. The accused took
full advantage of her helplessness. Because of these
reasons her husband left her and went away. Since
September 2014, the accused established physical
relations with her in her rented accommodation and also
in his house. It was on 18.07.2015 that he for the las time
in her room had physical relations with her. About 15
days before her filing her complaint the accused went
away somewhere. The accused had taken advantage of
her helplessness and established physical relations with
her. Now she learnt that the accused was married and his
wife are living in Ghaziabad. The accused played with
her honour and established physical relations with her
and now had left. She wanted legal action against him.

2. On the basis of the above complaint of the prosecutrix

CRL. REV.P. 104/2016 Page 2 of 11
the FIR was lodged under Section 376 IPG. On
17.08.2015 the statement of the prosecutrix was recorded
under Section 164 Cr.P.C. Wherein she stated to the
following effect: She worked as a domestic help in
houses. She came from her village in Gorakhpur 2 years
back. Her husband used to beat her that is why she left
her house and came to Delhi in search of work. Her
husband also after 10 days came to Delhi. After coming
here he used to fight with her as he did earlier. 3 to 4
times she had to change her house as because of the
fights no one was ready to keep them for long. One day
her husband beat her and she got badly hurt. Her
husband ran away. Since then she did not allow her
husband to enter the house, in Chirag Delhi in front of
her house the accused was living. Everyday he used to
see them fighting. About 5 months back when her
husband ran away the accused gave the false promise of
marriage. When earlier there used to be fights and her
husband used to go away the accused used to come and
stay with her. For the past 8 months he was living with
her as husband and wife. The accused did not tell her that
he was already married. For the past 8 months he was
establishing physical relations with her saying that he
would marry her. About 20 days back the accused ran
away. He had also switched off his phone. Thereafter she
filed a police complaint The prosecutrix was taken for her
medical examination however, she refused to undergo a
gynaecological examination. The accused was arrested.
He was sent for his medical examination. The site plan
was prepared at the instance of the prosecutrix. On
12.10.2015 the statement of the brother of the accused
Mr. Chandrakant Gautam was recorded under Section
161 Cr.P.C wherein he informed that the accused got
married in April 2003 to Ms. Manju in New Delhi and he
had 2 children. The wife of the accused did not live with
him and was living somewhere in Ghaziabad with her
brother because of a fight which they had 2 to 3 years
back. The accused was friendly with the prosecutrix and

CRL. REV.P. 104/2016 Page 3 of 11
used to go to her house. Despite his efforts to make the
accused understand he did not understand. Because of
these reasons he turned the accused out of house no.
100A Chirag Delhi. The accused used to go to the room
of the prosecutrix.

3. On 15.10.2015 the supplementary statement of the
prosecutrix under Section 161 Cr.P.C was recorded
wherein she stated that the accused on 22.07.2015 had
forcibly established physical relations with her. From the
mobile phone records of the accused and the prosecutrix
It was revealed that they both had been in touch with
each other. The chargesheet was filed under Section 376
IPC.”

3. Learned counsel for the petitioner contended that as per the
allegations made in the FIR registered on 14.08.2015, the prosecutrix herself
was a married lady living separately from her husband along with her two
children. He submits that the prosecutrix has not levelled any allegation of
rape in her initial complaint and the statement is only with respect to
consensual physical relations and from a bare reading of the FIR no
cognizable offence is made out. He has placed reliance on State of West
Bengal Ors. v. Swapan Kumar Guha Ors. reported as (1982) 1 SCC
561 to contend that as no cognizable offence was reported, the FIR itself
ought not to have been registered.

He further submits that the prosecutrix had tried to improve the case
at the time of recording of her statement under Section 164 Cr.P.C. where,
for the first time, she levelled allegations of false promise of marriage given
by the petitioner. While placing reliance on the decision on Prashant Bharti
v. State (NCT of Delhi) reported as (2013) 9 SCC 293, it was submitted that
the basic ingredients of the offence punishable under Section 376 IPC are

CRL. REV.P. 104/2016 Page 4 of 11
not made out as the prosecutrix herself was married and not divorced at the
time of the incident.

Further, it was submitted that although in her initial complaint the last
incident of physical relations occurred on 18.07.2015, however, in her
supplementary statement recorded under Section 161 Cr.P.C. on 15.10.2015,
it was stated that the petitioner had made forcible sexual relations with her
on 22.07.2015. In support of his submission that all the essential ingredients
of the offense ought to be disclosed in the FIR and the lacuna and deficiency
can not be filled up obtaining additional complaint or supplementary
statement, he has placed reliance on the decision on Deepa Bajwa v. State
Ors. reported as 2004 (77) DRJ 725.

Lastly, it was submitted that the prosecutrix had refused for her
internal medical examination.

4. Per contra, ld. APP for the State, duly assisted by learned counsel for
the complainant, submitted that in the first complaint itself, the prosecutrix
had stated that “Vikas ne meri majboori aur bebasi ka poora phayada
uthaya”. It was further pointed out that the petitioner had misrepresented
about his marital status to the prosecutrix in the initial meeting. It was
submitted that the petitioner had stated that he was a bachelor to the
prosecutrix, however, the prosecutrix later came to know that the petitioner
was already married, which fact is also apparent from the statement of
brother of the petitioner, namely, Chandrakant Gautam recorded under
Section 161 Cr.P.C. wherein it was stated that the petitioner was already
married to one Manju in April, 2003 and out of the said wedlock, he had two
children. It was further stated that the aforesaid wife of the petitioner was
living separately from him on account of matrimonial dispute with the

CRL. REV.P. 104/2016 Page 5 of 11
petitioner.

5. I have heard learned counsels for the parties and gone through the
case record.

6. The scope of revision under Section 397 Cr.P.C. has been discussed in
the case of Amit Kapoor Vs Ramesh Chander and Anr. reported as (2012) 9
SCC 460 as under:-

“17.Framing of a charge is an exercise of jurisdiction
by the trial court in terms of Section 228 of the Code,
unless the accused is discharged under Section 227 of
the Code. Under both these provisions, the court is
required to consider the ‘record of the case’ and
documents submitted therewith and, after hearing the
parties, may either discharge the accused or where it
appears to the court and in its opinion there is ground
for presuming that the accused has committed an
offence, it shall frame the charge. Once the facts and
ingredients of the Section exists, then the Court would
be right in presuming that there is ground to proceed
against the accused and frame the charge accordingly.
This presumption is not a presumption of law as such.
The satisfaction of the court in relation to the existence
of constituents of an offence and the facts leading to
that offence is a sine qua non for exercise of such
jurisdiction. It may even be weaker than a prima facie
case. There is a fine distinction between the language
of Sections 227 and 228 of the Code. Section 227 is
expression of a definite opinion and judgment of the
Court while Section 228 is tentative. Thus, to say that at
the stage of framing of charge, the Court should form
an opinion that the accused is certainly guilty of
committing an offence, is an approach which is
impermissible in terms of Section 228 of the Code”.

7. In Sajjan Kumar Vs. Central Bureau of Investigation reported as 2010
(10) SCALE 22, it has been held as under:-

CRL. REV.P. 104/2016 Page 6 of 11

“20. A Magistrate enquiring into a case under Section
209 CrPC is not to act as a mere post office and has to
come to a conclusion whether the case before him is fit
for commitment of the accused to the Court of Session.
He is entitled to sift and weigh the materials on record,
but only for seeing whether there is sufficient evidence
for commitment, and not whether there is sufficient
evidence for conviction. If there is no prima facie
evidence or the evidence is totally unworthy of credit, it
is the duty of the Magistrate to discharge the accused,
on the other hand, if there is some evidence on which
the conviction may reasonably be based, he must
commit the case. It is also clear that in exercising
jurisdiction under Section 227 CrPC, the Magistrate
should not make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial”.

8. In the present case, although the initial complaint was made
14.08.2015, but within three days i.e. on 17.08.2015 the statement of the
prosecutrix under Section 164 Cr.P.C. was recorded where the factum of
making physical relations on the false promise to marry was mentioned.
Although, the complainant’s MLC was not placed on record however, a
perusal of the same from the case diary reveals that the complainant was
examined on 17.08.2015 and in the history of assault, she stated about the
incident dated 22.07.2015. It was stated that the petitioner came to her
house and sexually assaulted her and rather continued to commit forceful
acts for five hours. In her supplementary statement dated 15.10.2015
recorded under Section 161 Cr.P.C., the prosecutrix mentioned the incident
of 22.07.2015. She has explained that she forgot to mention the last
incident. Even in her initial complaint made on 14.08.2015, it was stated
that the petitioner had suddenly disappeared about 15 days ago. Similarly,

CRL. REV.P. 104/2016 Page 7 of 11
in her statement under Section 164 Cr.P.C. recorded on 17.08.2015, it was
stated that the petitioner left her about 20 days ago which means that the
petitioner was in touch with the prosecutrix till about 27/28.07.2015.
Accordingly, I do not find any merit in the contention of the learned counsel
for the petitioner that the complainant has made improvement in her
statement recorded under Section 164 Cr.P.C.

9. In Swapan Kumar Guha (Supra), the case related to an FIR lodged by
a Commercial tax officer, Bureau of Investigation against the respondent
firm and its partners u/s 3 of the Price Chit Money Circulation Schemes
(Banning) Act. It was held that the FIR lacked the basic ingredients of the
offence as the necessary ingredients of Section 2(c) that the scheme for
making quick or easy money must be dependent on any event or
contingency relative or applicable to the enrolment of members into the
scheme. The aforesaid allegation was wanting in the FIR. In these
circumstances, the FIR was quashed. In the present case, as noted above, in
the initial complaint itself it was stated that prosecutrix was beaten by her
husband and the petitioner who was staying in the opposite house, took
advantage and despite being married misrepresented himself to be a
bachelor and made physical relations with her. The prosecutrix is a
domestic servant who was a resident of a village in Gorakhpur and on
account of physical torture given by her husband, left her home and came to
Delhi. Her husband followed and ordeal of the prosecutrix continued even in
Delhi. In Prashant Bharti (Supra), unlike in the present case, there was no
allegation of forcible physical relations. In Deepa Bajwa (Supra), the case
related to offence under the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989 where initially a complaint was made

CRL. REV.P. 104/2016 Page 8 of 11
on 19.04.2001 which was kept pending as the ingredients of offence under
Section 3 of the Act were not complete. Legal opinion from the prosecution
branch was obtained by the SHO and after recording the supplementary
statement, the FIR was registered on 14.06.2001. The decisions cited are
distinguishable and not applicable to the facts of the present case.

10. At the stage of charge, the test is of a prima facie view and a case of
strong suspicion against the accused. The Court is not required to sift and
weigh the evidence with an objective of whether the trial would result in
conviction or acquittal.

11. In Rohtash v. State of Rajasthan reported as (2006) 12 SCC 64, the
Supreme Court held as under :-

“14. The first information report, as is well known, is not
an encyclopaedia of the entire case. It need not contain
all the details. We, however, although did not intend to
ignore the importance of naming of an accused in the first
information report, but herein we have seen that he had
been named in the earliest possible opportunity. Even
assuming that PW1 did not name him in the first
information report, we do not find any reason to
disbelieve the statement of Mooli Devi, PW6. The
question is as to whether a person was implicated by way
of an afterthought or not must be judged having regard to
the entire factual scenario obtaining in the case.”

12. In State v. J. Doraiswamy and Ors., reported as (2019) 4 SCC 149 the
Supreme Court held as under:

“14. In our view, consideration of the record for discharge
purpose is one thing and the consideration of the record
while deciding the appeal by the Appellate Court is another
thing.

15. While considering the case of discharge sought
immediately after the charge-sheet is filed, the Court cannot

CRL. REV.P. 104/2016 Page 9 of 11
become an Appellate Court and start appreciating the
evidence by finding out inconsistency in the statements of
the witnesses as was done by the High Court in the
impugned order running in 19 pages. It is not legally
permissible.”

(emphasis added)

13. The following observations made in State of M.P. v. S.B. Johari
reported as (2000) 2 SCC 57 were reaffirmed in State of Delhi v. Gyan Devi
and Ors. reported as (2000) 8 SCC 239: –

“In our view, it is apparent that the entire approach of the
High Court is illegal and erroneous. From the reasons
recorded by the High Court, it appears that instead of
considering the prima facie case, the High Court has
appreciated and weighed the materials on record for
coming to the conclusion that charge against the
respondents could not have been framed. It is settled law
that at the stage of framing the charge, the court has to
prima facie consider whether there is sufficient ground for
proceeding against the accused. The court is not required to
appreciate the evidence and arrive at the conclusion that the
materials produced are sufficient or not for convicting the
accused. If the court is satisfied that a prima facie case is
made out for proceeding further then a charge has to be
framed. The charge can be quashed 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-examination or rebutted by defence evidence, if any,
cannot show that the accused committed the particular
offence. In such case, there would be no sufficient ground
for proceeding with the trial…”

14. The prosecutrix has unequivocally stated at the time of her medical
examination that the petitioner made forcible physical relations with her on
22.07.2015. In somewhat similar facts, this Court in Ajeet Singh v. State
Anr. reported as 2019 SCC OnLine Del 11264 while relying on the decision

CRL. REV.P. 104/2016 Page 10 of 11
rendered in Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra Ors.

reported as 2018 SCC OnLine SC 3100, held that there is a clear distinction
between rape and consensual sex.

15. In view of the above discussions, the revision petition is dismissed.
The Miscellaneous application is disposed of as infructuous.

(MANOJ KUMAR OHRI)
JUDGE
JANUARY 29, 2020
ga

CRL. REV.P. 104/2016 Page 11 of 11

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