Employee of Ministry of Commerce acquitted by Delhi Session Court after finding that the charges of Rape, Abortion were False
An employee of the Ministry of Commerce has been acquitted by a Delhi court of the charges of raping and sodomising a woman on the pretext of marrying her.
Additional Sessions Judge (ASJ) Poonam Bamba freed Delhi resident Rajesh Buraria of the charges of raping the 27-year-old woman, who was also working in the same office, on the ground that the prosecution has failed to prove that her consent for physical relations was taken under false promise of marriage.
IN THE COURT OF MS. POONAM A. BAMBA
ADDITIONAL SESSIONS JUDGE-01
PATIALA HOUSE COURT : NEW DELHI
In re: Session Case No. 28/12
State v. Rajesh Buraria
FIR No. 70/2012
u/S. 313/328/376/377 IPC PS Tuglak Road
Date of Institution : 25.10.2012
Arguments concluded on : 05.03.2013
Date of judgment : 06.03.2013
1.0 The prosecution case is that the prosecutrix was working as Data Entry Operator in the Ministry of Commerce. The accused was her officer. Accused offered to the prosecutrix to provide her coaching and books for clearing S.S.C Examination for a better job. On the pretext of giving her certain books, the accused called her at his friend’s rental accommodation in C.P.W.D Quarters, Talkatora, where, the accused established physical relations with her after giving her cold drink laced with some intoxicant. When she found the same on regaining consciousness, she started crying and told the accused that he had ruined her life. In response, the accused told her that he loved her and that she should not worry as he would be marrying her. Thereafter, the accused established physical relations with the prosecutrix for about 20-25 times during three years’ period, on the promise of marriage; accused even had carnal intercourse/oral sex with the prosecutrix. He always told her that there was nothing wrong in that as they are husband and wife and would be getting married. In between, she even became pregnant, but, on 29.09.2011, the accused got her aborted forcibly at Life Line Hospital, after giving her false name as Chanchal. When prosecutrix inquired as to when would he marry her, the accused told that he would marry her after marriage of his two sisters. On 16.08.2012, all of a sudden, the accused told her that his parents are forcing him to marry someone else and, therefore, he was unable to marry her. When the prosecutrix
offered to discuss the matter with his family members, the accused stopped her from doing so and assured that he himself will talk with them and ultimately he told her that he will marry the girl chosen by his parents. On which, the prosecutrix lodged the complaint with police station Tuglak Road, on 22.08.2012. On the basis of the prosecutrix’s complaint, FIR No. 70/2012, u/Ss 313/328/376/377 IPC was registered against the accused. After investigation, charge sheet u/Ss 313/328/376/377 IPC was filed.
2.0 Charge under Sections 313/328/376/377 IPC was framed against accused Rajesh Buraria vide order dated 21.11.2012. Accused pleaded not guilty and claimed trial.
3.0 The prosecution examined 18 witnesses in support of its case. These witnesses can be classified into three categories i.e., public witnesses, police witnesses, Doctors and others.
3.1 The public witnesses include PW1 Balbir Singh, father of the prosecutrix, PW2 is the prosecutrix. PW 4 Poonam and PW5 Smt Kusum Lata, are the sisters of the prosecutrix. PW11 Lalit Kumar, is the acquaintance of prosecutrix’s father. PW14 Dharam Veer worked in Ministry of Commerce as Daftari. PW15 Mahesh Kumar was an attendant at Udyog Bhawan at the relevant time. PW6 Ajay Lavania is the acquaintance of accused, who used to occasionally reside at House no. J-666, Kali Bari Marg, Government Quarters, where the prosecutrix was allegedly raped.
3.2 PW7, PW8, PW12, PW13 and PW16 are police officials and PW17 is the Investigating Officer.
3.3 PW3 Dr Neha had examined prosecutrix. PW9 Dr Sandeep Jain worked as Radiologist at Life Line Hospital.
3.4 PW10 Ms. Nitu Joshi worked as Counselor in Angja Foundation, an NGO, for counseling victims of rape. PW18 is the Ld. M.M., who recorded statement of the prosecutrix under Sec. 164 Cr.P.C.
4.0 The statement of accused under Sec. 313 CrPC was recorded on 29.01.2013 and 30.01.2013.
5.0 The accused led defence evidence and himself stepped into the witness box as DW-1.
6.0 I have heard Shri C.B. Singh, ld Counsel for accused as well as Shri Salim Khan, Ld. Additional PP for State and have
perused the record carefully.
7.0 Admittedly, both the prosecutrix as well as the accused worked in the same office i.e., Ministry of Commerce, Udyog Bhawan; the prosecutrix was working there as Data Entry Operator since 2008 and the accused joined subsequently as a permanent employee at the post of Assistant. It is also not in dispute that the accused used to provide coaching for SSC/competitive examinations, as the same was put to prosecutrix (PW2) in her cross-examination. The fact that the prosecutrix also took coaching/tution from accused, is evident from suggestions put to her in her crossexamination by Ld. defence counsel.
7.1 Prosecutrix has deposed that the accused advised her to take coaching for examinations for a better job and offered to provide her coaching and books. On the pretext of helping her purchase some books, in Sept,2009, the accused called her at Rajendra place Bus Stand. Instead of taking her to market, the accused took her to a CPWD Quarter behind Bus Stand of Talkatora Stadium, on the pretext of waiting there as shops had not opened till then. He offered her tea, which she refused. Thereafter, the accused gave her cold drink, which she consumed; the accused showed her 2 – 3 books; but, after sometime, she started feeling dizzy. While she was still a little bit conscious, the accused started misbehaving with her i.e. touching her face, breasts and other parts of her body and
because of dizziness she could not put up much resistance. When she regained consciousness, she found herself naked and even the accused was naked and that she was bleeding from her private parts. She could sense that the accused had established physical relations with her.
7.1.1 Prosecutrix has further deposed that and when she inquired from the accused as to what had he done with her, the
accused told her that he loved her and wanted to marry her. He also told that – “ye to pavitra wala pyar hai”. At that time I was in doldrums and was not able to take any decision. Then accused consoled me by saying that “Jo ho gaya so ho gaya, tum to meri wife ho”. ….. When I got up from the bed accused Rajesh again caught hold of me by my hand and again established physical relations with me there. I started bleeding profusely. Accused took me to the bathroom and poured water on me….. thereafter he dropped me to Laxmi Nagar by his motorcycle. Accused repeatedly told me not to disclose that incident to anybody and promised to marry me….. I was not able to make any decision on this point……”.
7.2 The prosecutrix has given details of her further meetings/ physical relations established with accused even subsequently. Prosecutrix has stated that on the next Saturday the accused again took her to the same quarter on the pretext of making her meet his parents. But, there was no-one at home and the accused again forcibly established physical relations with her. He also had unnatural sex with her on that day. She further stated that – “On that day, accused kept me there in the room whole day and repeatedly committed sex with me as well as committed unnatural sex with me. He assured me that he was in love with me and will marry me. When I questioned him as to when he will marry me…. he told….. his two sisters were still to be married and after their marriage he assured me to perform marriage with me…”
7.2.1 Prosecutrix has also stated that after a gap of one Saturday, the accused again called her on the pretext that Senior Officers had called a meeting and took her to that very room (i.e. the above said Government quarter). On that day also, the accused established physical relations with her despite her resistance; he repeatedly had sexual intercourse with her. She has further deposed that the accused used to say that she was his wife and there was nothing wrong in it.
7.2.2 The prosecutrix has further stated that thereafter, the accused also used to take her to Lodhi Garden and other gardens. In those gardens also, the accused used to touch her body.
7.2.3 Prosecutrix has also deposed that once the accused showed her the photographs of the first day’s incident, in his camera and asked her, how would she feel, if showed them to others. Thereafter, on one Saturday, the accused called her on the pretext that she may personally delete the said photographs from his camera. When she declined, he told her that he would show those photographs to others, in case she did not visit him. Consequently, she met the accused at Rajendra Place bus stand on Saturday. The accused again took her to said Government Quarter, where she was taken for the first time, telling her that the camera was lying in the said quarter. On that day also, the accused forcibly established physical relations with her. When she resisted the same, the accused again told her that these acts are not meant to be disclosed to anyone and assured to marry her.
7.2.4 The prosecutrix has further testified that even thereafter, the accused called her to accompany him but she refused. He then threatened to show those photographs to others. She told him that he may do whatever he liked and refused to accompany him. Accused then did not ask her to accompany him for a considerable period but, he used to touch her in the office. She also stated that thereafter he never took her to the said quarter again.
7.2.5 It has also come in the examination in chief of the prosecutrix that the accused was allotted a Government accommodation in Dev Nagar in the year 2011. She has deposed that after sometime, on the pretext of buying a shirt for him, the accused called her to his Dev Nagar house. No family member of the accused was present at that time. The accused again forcibly established physical relations with her.
7.2.6 Prosecutrix has also deposed that thereafter, she used to go around with the accused. During this period, she realised that she was pregnant. But, to abort the child, accused deceitfully gave her some tablets and subsequently took her to hospital and got her aborted against her wishes.
7.2.7 Prosecutrix has also deposed that since January/February, 2012, the accused started visiting her house for providing her coaching. On 08.06.2012, when the accused came to her house for coaching, no family member except a small daughter of her sister was at home; accused again forcibly established sexual relations with her. After her examinations, she joined her office after 09.06.2012 and contacted the accused to find out as to when would he marry her. He assumed to marry her after marriage of his sister; she kept quiet.
7.2.8 The prosecutrix has further testified that on 16.08.2012, the accused conveyed to her that his parents have arranged his marriage with some other girl, on which she protested as to how could he do that. The prosecutrix has narrated as to how the accused then started avoiding her. She then visited accused’s house, but accused asked her not to discuss anything with his mother; and that he himself will discuss the matter with his parents. On that assurance, she returned home. On Saturday, she again contacted the accused over telephone and insisted to visit his house to discuss about their marriage with his parents and then again visited accused’s house on 18.08.2012, but she was again assured by the accused that he himself will talk to his father in this regard. The accused then took her to Rajghat and persuaded her not to have any tension and assured that he will himself sort out the matter with his parents and shall inform her on Sunday. But, when she did not receive any phone call from accused till Sunday evening, she herself called him up. Accused then came to her house and in presence of her family members admitted his mistake and told that he cannot marry her against the wishes of his parents. When her sister objected to the same, the accused spoke to his mother over phone and disclosed to her that he wanted to marry her; accused’s mother asked him to come back home; she also asked him to bring along her (prosecutrix’s) parents. Thus, she (prosecutrix) alongwith her father and sister and accused went to accused’s house. Accused introduced her as his girlfriend to his father and disclosed about sexual relations between them and also about the pregnancy and abortion. On hearing all this, the accused’s father asked them for two days’ time to think over and assured
to get back to them. But, when they did not hear anything from accused’s father, she (prosecutrix) called up accused on 21.08.2012 and inquired about his father’s decision. Accused then told her that he cannot go against the wishes of his father. The prosecutrix then took accused’s father’s telephone number. Thereafter, the father of the prosecutrix talked to the accused’s father to know his decision. Accused’s father conveyed that he will not marry accused with the prosecutrix and that her father may do anything he liked. On which, the prosecutrix lodged the complaint Ex.PW2/A, the next day i.e. 22.08.2012 with PS Tughlak Road.
7.2.9 The prosecutrix has also deposed that whenever she objected to physical relationship with the accused, he allured her by saying that the same is normal between the husband and the wife.
7.3 No suggestion to the contrary was put to prosecutrix with respect to specific instances of sexual intercourse described by her. Only a general suggestion of falsehood was put to her. Prosecutrix has stood by her version of physical intimacy with the accused in her cross-examination.
7.3.1 The fact that the Quarter No. J-666, Kali Bari, Near Talkatora Garden, New Delhi, was used by accused is also established by the evidence on record. PW14, Dharamvir, who worked as Daftari in DOPT, North Block has deposed that the said quarter was allotted to him. The factum of allotment of the said quarter to PW14 is further substantiated by Ex.PW17/D1, i.e. letter of Directorate of Estate, which was put to IO/PW17 in her cross-examination by Ld. defence counsel himself. PW14 has also deposed that the said quarter was occasionally used by PW6 Ajay Lavania, who was working in the same Department. Same is also corroborated by PW6 Ajay Lavania. PW6 has testified that he knew accused as both of them had taken training at Institute of Secretariat Training and Management, Old JNU Campus, Delhi, together. He also testified that as he (PW6) resided at Bharatpur, Rajasthan, would use/stay at PW14’s abovesaid quarter whenever, he got late; sometimes, accused also accompanied him to the said quarter. PW6 has also stated that the accused knew that key of the house used to be kept under the pot, although, PW6 expressed his ignorance about accused visiting the said quarter with prosecutrix/ or any lady. Thus, testimony of PW6 and PW14
corroborate PW2/prosecutrix’s version that the said quarter belonged to accused’s friend/acquaintance and they entered the said house after accused opened the lock.
7.3.2 The fact that accused was taking prosecutrix to the said Government quarter is also substantiated by suggestion put to prosecutrix by in her cross-examination Ld. defence counsel. Same is reproduced here -“It is correct that the accused had taken me to the Government Quarters and the occupants of the quarters in the vicinity were at home, it being a holiday. I do not know the exact address of the house, to which accused took me. I think it was quarter no. 666.”
7.3.3 Testimony of prosecutrix that she was visiting Lodhi Garden and other gardens with accused is also corroborated by PW11 Lalit Kumar, an acquaintance of prosecutrix’s father and PW15 Mahesh Kumar, who once worked in Ministry of Commerce, Udyog Bhawan and knew prosecutrix. PW11 has deposed that about 10 – 12 months ago (prior to his deposition on 03.01.2013) he had seen accused and prosecutrix in front of Lodhi Garden. Nothing to the contrary was put to him in his cross-examination. PW15 has deposed that once he saw prosecutrix was going on motorcycle with some person; subsequently he had asked prosecutrix about that person; she had disclosed his/accused’s identity.
7.3.4 In view of the above, it is established that prosecutrix and the accused shared physical intimacy/had sexual intercourse on various occasions and were also going around. Ld. defence counsel argued that prosecutrix can not be believed as initially, in her complaint (Ex.PW2/A), prosecutrix stated that she was sexually exploited during the period September, 2010 to June, 2012. But, after procuring of information by IO regarding date of vacation (13.05.2010) of the abovesaid quarter, supplementary statement of prosecutrix u/Sec. 161 Cr.PC (Ex.PW17/D2) was recorded on 10.10.2012; prosecutrix made improvement in her version in the said
statement that she was exploited during September, 2009 to June, 2012. Subsequently, she also deposed on the same lines before the court. In view of enormity of situation and considering the evidence which has come on record, I am inclined to accept prosecutrix’s explanation that she may have given the year (2010 instead of 2009) wrong being in disturbed state of mind at that time as accused/his father flatly refused for marriage. Thus, I find no substance in the Ld. defence counsel’s argument.
8.0 Thus, as per prosecutrix’s own version, on first occasion, the accused had sexual intercourse with her while she was unconscious after accused gave her cold drink laced with some intoxicant. Except PW2’s oral testimony (about mixing of intoxicant in the cold drink by the accused), no other evidence has come on record. In absence of any medical evidence, oral testimony of PW2 alone is not sufficient to arrive at any finding in this regard. Thus, it remains unsubstantiated that the prosecutrix was administered any intoxicant by the accused, much less to facilitate sexual intercourse with prosecutrix against her consent. Charge u/Sec. 328 IPC against the accused, therefore, stands not proved.
8.1 In view of the same, the prosecutrix’s version that she had become unconscious on that day has also become suspect and so is her version that the accused had sexual intercourse with her in unconscious condition. The prosecution has, therefore, failed to prove beyond reasonable doubt that the accused had sexual intercourse with prosecutrix without her consent while she was unconscious.
9.0 As per the prosecutrix, the accused had subsequently, (i.e. after raping her in unconscious condition) promised to marry her. The prosecutrix in her crossexamination has denied that she loved accused. She has stated that she had no option but to wait for accused to marry her, after whatever was done by accused to her (in unconscious condition).
9.1 If the prosecutrix did not love accused, why did she allow the accused to again have sexual intercourse with her, even after regaining consciousness. It is unfathomable, that the prosecutrix would have submitted herself merely on accused’s saying that she was his wife.
9.1.1 Not only this, the prosecutrix again accompanied accused to the same quarter, after a week. Prosecutrix in her cross-examination has stated that –
“… I had accompanied him again despite the happening of the previous Saturday as he had told me that he was taking me to
meet his parents. ….. Thereafter, the accused again forcibly established physical relations with me. …… It is correct that at
that time I knew that I was not the accused’s wife. Vol. But he used to tell. It is correct that I had visited the same quarter on
the subsequent Saturday also. ….. On the third Saturday also the accused had established physical relations with me deceitfully.”
9.1.2 The falsity of the prosecutrix’s explanation that accused took her to the said quarter on the pretext of making her meet with his parents is exposed from the fact that she very well knew that the said quarter was not the residence of the accused. In her complaint dated 22.08.2012, Ex.PW2/A, the prosecutrix herself has mentioned that accused took her to his friend’s rented accommodation at CPWD Quarters, TalKatora. It is very interesting to note that prosecutrix subsequently made improvement in her version which is evident from the cutting/alteration made by Ld. MM while recording prosecutrix’s statement u/Sec. 164 Cr.PC, which is Ex.PW2/G. Ld. MM firstly recorded the version of prosecutrix as …… “Mujhe kitaabe dilane ke liye…. market le jaane ki jagah….Mujhe apne dost ke Flat No. 666 jo Talkatora Stadium ke Bus Stand ke sath sarkari Flats hain le gaya. Mujhe laga ki yeh Flat Rajesh ka hai. Usne mujhe baad mein bataya ki yeh flat uske dost ka hai”.
But, words “apne dost ke” were later struck off by Ld. MM, undoubtedly in line with prosecutrix’s (thought out) version.
9.2 From prosecutrix’s testimony, it is evident that she repeatedly accompanied accused to the same Government quarter, despite being subjected to sexual intercourse (against her wishes). In her cross-examination, prosecutrix has stated that she visited that Government Quarter (J-666, Kali Bari Marg) with accused 4 – 5 times during the period September, 2009 to December, 2009; it used to be on Saturdays. She has also stated that “The accused must have established physical relationships with me number of times. …. It is correct that in my complaint Ex.PW2/A, I have mentioned that he had established physical relationship with me 20 – 25 times”. The prosecutrix then simply stated that on all the occasions the accused forcibly had sexual intercourse with her. The
prosecutrix has not given any details of use of force by the accused. It is unbelievable that despite being subjected to repeated sexual assault, the prosecutrix still took the risk to accompany accused. If the accused was having sexual intercourse with prosecutrix against her wishes, why did she always fell to his pretexts and never suspected his intention. Rather, mostly on Saturdays/off days of both of them, the prosecutrix accompanied the accused.
9.2.1 All these facts and circumstances, not only point towards prosecutrix’s own complicity but also, reflect on her credibility.
9.3 What stopped the prosecutrix from lodging the complaint, when accused had sexual intercourse with her for the first time in September, 2009, and continued thereafter, when she did not even have any feelings for him.
9.3.1 Prosecutrix’s explanation that accused used to tell her that she was his wife and this (sexual intercourse) was normal between husband and wife does not cut much ice. The prosecutrix is 27 years old educated urban girl; she was even working and was exposed to the outside world. She in her cross-examination admitted that – “…… It is correct that at that time I knew that I was not the accused’s wife. Vol. But he used to tell”. Moreover, as per her own version the prosecutrix had been asking the accused as to when would he marry her. Thus, she very well that she was yet to be accused’s wife.
9.3.2 Prosecutrix has introduced yet another explanation of blackmailing by the accused, in her testimony. She has deposed that when she refused to accompany the accused, he showed her photos of the first day’s incident and threatened to show them to others. It is noteworthy that there is no mention about any such photos and threat extended on that score, in her complaint Ex.PW2/A. Prosecutrix has admitted in her crossexamination that she had not mentioned either in her complaint Ex.PW2/A or in her statement made before the Ld. Magistrate or to the police that accused blackmailed her by taking her photos/preparing video. She then gave explanation that she had not disclosed the said fact as the accused had already deleted the said video. If that be so, where was the occasion for her to even state so before the court. This entire story of blackmail appears to be a sham.
9.4 The fact that despite accused having sexual intercourse with her allegedly against her wishes on the first occasion, the prosecutrix continued to accompany the accused despite possibility of being subjected to same fate; continuous physical relations between the accused and the prosecutrix and their going around to different parks and gardens show that they were in relationship / love with each other; and prosecutrix submitted herself to the accused thinking that they would get married, some day. The prosecutrix (as per her own version) even became pregnant once; the said pregnancy as per prosecutrix was aborted on 29.09.2011. Even thereafter, the prosecutrix had physical relations with the accused and lastly in June, 2012. From these facts and circumstances, it is clear that the prosecutrix was a consenting party to the sex with the accused. Of course, she thought that they would get married. But, when accused refused to marry her against wishes of his father, this complaint came to be filed. Prosecutrix herself has given an explanation that – “I had not lodged any complaint with police for three years as the accused had been assuring to marry me. Vol. When he refused to marry, I lodged the complaint.
9.4.1 Prosecutrix’s own sister PW4 Poonam in her crossexamination has stated that prosecutrix was in relationship with the accused. Prosecutrix’s father PW1 in his examination in chief has stated that when accused visited his house on 19.08.2012, he informed that he developed intimacy with his daughter/prosecutrix and even established physical relations with her. PW1 has also stated that – “At that time prosecutrix (name withheld) was also present there and she also accepted this fact.”
9.5 Although, the accused has totally denied having any relationship whatsoever, with the prosecutrix. But, the same is borne out from the evidence as discussed in preceding paras. The extent to which the accused went to somehow wriggle out of the situation and deny any relationship with prosecutrix is evident from the fact that in his statement u/Sec. 313 Cr.PC, he even denied that he ever gave any coaching/tution to prosecutrix. Whereas, as already noted in preceding paras that Ld. defence counsel himself suggested to the prosecutrix in her cross-examination that accused used to provide coaching for competitive examinations and that she was also taking coaching from accused. The same expresses the falsehood of accused.
9.6 In view of the above evidence on record, it is established beyond reasonable doubt that prosecutrix and accused were in relationship and prosecutrix had consensual sex with the accused.
9.7 It was argued by Ld. Addl. PP that prosecutrix’s consent, if any, was obtained by the accused by falsely promising to marry her and was no consent. Question which arises for consideration is whether the accused had sexual intercourse with the prosecutrix holding out a promise for marriage? Whether prosecutrix’s consent given under that belief of marriage/misconception, would amount to consent in law or not?
9.7.1 Six circumstances have been enumerated in Section 375 IPC, wherein the sexual intercourse would amount to rape. For our purposes, Clause Secondly is relevant, which reads as under :
“375. – A man is said to commit “rape” who, except in the case hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the six
following descriptions :- …………..
Secondly. – Without her consent.
9.7.2 Section 90 IPC defines consent. It provides negative definition of consent. That is, what cannot be regarded as
“consent” for the purposes of IPC. It reads as under : “90. Consent known to be given under
fear or misconception – A consent is not such a 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.”
9.7.3 From the plain reading of Section 90 IPC, it is clear that consent given under fear of injury or under “misconception of fact” is not a consent. But, mere giving of consent under fear of injury or under “misconception of fact” is not sufficient to hold that no consent existed unless it is further established that the wrong doer knew or had reason to believe that the consent was given in consequence of such misconception. The existence of the twin requirements of Section 90 IPC must be cumulatively satisfied in order to enable a Court to hold that no consent in law existed at the relevant time. Thus, only when both the conditions precedent co-exist, it can be safely held that no consent, as envisaged under the IPC, existed (Md. Jakir Ali Vs. The State of Assam, 2007 Cr.L.J. 1615; and Deelip Singh @ Dilip Kumar Vs. State of Bihar, AIR 2005 SC 203).
9.7.4 Thus, the Court has to see whether the person giving the consent had given it under fear of injury or “misconception of fact” and the court should also be satisfied that the alleged offender is conscious of the fact or should have the reason to think that but for the fear or misconception, the consent would not have been given.
9.7.5 It may be mentioned that in somewhat similar facts, as in the instant case, Section 375 Clause Secondly and Section 90 IPC came to be scrutinized by Hon’ble Supreme Court in Uday Vs. State of Karnataka, (2003) 4 SCC 46. After considering several judgments on the issue, the Hon’ble Supreme Court held that the consent given by the prosecutrix to sexual intercourse with a person, with whom she was 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”. Of course, the Hon’ble Court added a word of caution that no strait jacket formula can be adopted for determining whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under a “misconception of fact”.
9.7.6 It would also be pertinent to refer here to the observations made by Division Bench of Hon’ble Calcutta High Court in Jayanti Rana Panda Vs. State of West Bengal (1984 Cr.L.J. 1535) in para 7, which reads as under : –
“7. ….. Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is … why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore, it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged. The failure to keep the promise at the future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance.
The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the court
can be assured that from the very inception the accused never really intended to marry her.”
9.7.7 Jayanti Ram Panda’s case (supra) was referred with approval by the Hon’ble Supreme Court in Uday’s case, Dilip Singh’s case (supra) and in a subsequent case title as Pradeep Kumar @ Pradeep Kumar Verma Vs. State of Bihar & Anr., Appeal (crl.) 1086 of 2007.
9.8 Now reverting back to the instant case. The prosecutrix is 27 years old well educated girl; she was in love with accused; she had continued physical relations with accused spanning over a period of approximately three years. It has come in prosecutrix’s own testimony that the accused kept assuring to marry her after marriage of his sisters. But, later on when accused’s father fixed his marriage with someone else he told her that he cannot go against his father’s wishes. Prosecutrix has also deposed that accused even told his mother over phone (on 19.08.2012) that he wanted to marry prosecutrix; even at his own residence on that day, the accused introduced her as his girlfriend to his father and disclosed about sexual relations between them. Prosecutrix in her statement u/Sec. 164 Cr.PC (Ex.PW2/G), has also stated that on 16.08.2012, accused had told her that his parents were forcing
him to marry elsewhere. Even when she visited accused’s house alongwith her father and sister, the accused told his parents that he wanted to marry her (prosecutrix). On which, accused’s father sought two days’ time, but later refused to marry accused with her. From these facts and circumstances, it is evident that the accused was ready to marry prosecutrix all along but, could not dare to do so against his father’s wishes.
9.8.1 The judgment of Hon’ble Supreme Court in Yedla Srinivasa Rao Vs. State of A.P., 2006  JCC 1623, relied upon by Ld. Additional PP is not of much assistance to the State, the facts in the said case being distinct. In Yedla Srinivasa Rao’s case (supra), the girl was aged about 16 years; she resisted the accused’s insistence on sexual intimacy. But, ultimately she consented after the accused’s constant persuasion and promise to marry her. The Hon’ble Supreme Court in those circumstances distinguished the facts in that case from Jayanti Rani Panda’s case (supra) observing in para 10 that – “….But, in the instant case, a girl though aged 16 years was persuaded to sexual intercourse with the assurance of marriage which the accused never intended to fulfil and it was totally under misconception on the part of the victim that the accused is likely to marry her, therefore, she submitted to the lust of the accused. Such fraudulent consent cannot be said to be a consent so as to condone the offence of the accused….”
9.9 The prosecution was under an obligation to lead positive evidence to demonstrate that the accused had no intention to marry prosecutrix at all from the very inception and that promise made, was false to his knowledge. The prosecution has failed to adduce any evidence to show that the accused had no intention to marry the prosecutrix right from the beginning and had extended the said promise only to establish sexual relations with her.
9.9.2 Rather, it is too evident from the record that the accused could not take on his father and simply gave in to his dictates; he may have breached the promise to marry and shattered the faith of prosecutrix, but, it was not a false promise to begin with. Howsoever unfortunate, but, it does not amount to an offence under IPC. It would be apt to refer here to the observations in this regard, made by Hon’ble Supreme Court in Para 39 in Dileep Singh’s case (supra), which read as under:
“39. With this verdict, the appellant, no doubt extricates himself from the clutches of the penal law by getting the benefit of doubt on charge levelled against him. But, we cannot ignore the reprehensible conduct of the appellant, who by promising to marry the
victim woman, persuaded her to have sexual relations and caused pregnancy. The act of the accused left behind her a trail of misery, ignominy and trauma. …… Though there is no evidence to establish beyond reasonable doubt that the appellant made a false or fraudulent promise to marry, there can be no denial of the fact that the appellant did commit breach of the promise to marry, for which the accused is prima facie accountable for damages under civil law…..”
9.10 In the instant case also, no doubt the prosecutrix has suffered immense mental trauma because of accused’s conduct. As, it has come on record by Ld. defence counsel’s own suggestion to the prosecutrix in cross-examination that she is undergoing treatment at IBHAS. Prosecutrix admitted that she is under treatment for last few months. She even placed on record copy of her prescription slip of IBHAS, during the course of the proceedings/ arguments.
9.11 In view of the above, the prosecution has failed to prove beyond reasonable doubt that the prosecutrix’s consent for sex/unnatural sex was obtained under false promise of marriage. In view of the same, the accused can not be held guilty of offence punishable u/Ss 376/377 IPC.
10.0 Accused is also charged with offence u/Sec. 313 IPC. Prosecutrix has deposed that on 28.09.2011, she felt that she was pregnant. She told the accused about the same. Accused asked her to get the foetus aborted, but she was not agreeable. On her persuation, accused agreed with her. Thereafter, accused took her to Mandi house and told that it was a very good news for him as he has become father; he gave her a piece of chocolate and thereafter, he asked her to close her eyes; when she shut her eyes, accused put two tablets in her mouth and gave her a water bottle to drink water; she consumed the tablets; she felt a bitter taste in her mouth and asked the accused about the same; the accused then told her that he gave her abortion pills. When she protested as to why he gave her abortion pills, then he told her that marriage of his sister was to be solemnized on 02.12.2011 and revelation of the factum of her pregnancy would have created problem in the marriage of his sister. From Mandi house Metro Station, she returned home. At night she felt severe pain and bleeding started and by morning hours, her condition deteriorated; she informed the accused over phone; accused then came to a place outside her house on 29.09.2011 and took her to Life Line Hospital, located at Guru Angad Nagar. Doctor after examining her, advised her to get ultrasound done. Accordingly, she got ultrasound done. Doctor then prescribed medicine for 15 days and advised her to take care in future.
10.1 The prosecutrix’s version in her testimony before this Court that the accused gave her pills for abortion, is at variance with her version given in her complaint Ex.PW2/A. In Ex.PW2/A, the prosecutrix has stated that the accused got her forcibly aborted at Life Line Hospital.
10.2 Further, in her cross-examination also the prosecutrix stated that “…. After examining me, the doctor had advised for Ultrasound, which I got done and thereafter some medicines were prescribed. The doctor had told me that I was pregnant “par zyada time nahi hua”. Thus, as per the same, the prosecutrix was pregnant when she visited Life Line Hospital.
10.3 Prosecution has placed on record a certificate issued by PW9 Dr. Sandeep Jain of Life Line (Hospital), which was proved by him as Ex.PW9/A.
10.3.1 Said certificate (Ex.PW9/A) of Dr. Sandeep Jain only mentions that one Ms. Chanchal, a female aged about 28 years
was referred to him by Dr. Renu Chawla for ultrasound because of abdominal pain. Ultrasound report was normal.
10.3.2 PW9 Dr. Sandeep Jain deposed that on 10.09.2012, police approached him with respect to an ultrasound report pertaining to Ms. Chanchal, aged 28 years, female. On the basis of the available record in the Life Line Hospital, Priyadarshni Vihar, Delhi, he gave a written report Ex.PW9/A. He further stated that he has no knowledge about any other facts pertaining to said Ms. Chanchal. In his cross-examination, PW9 explained that by report “normal”, it is meant that the uterus was normal in size and echo pattern; there was no evidence of any mass / gestational sac in the uterus and that both ovaries are normal. He also explained that there could be thousands of reasons for abdominal pain. He also stated that he was not able to recollect the condition of the patient. Thus, there is no mention of abortion being carried out either in the testimony of PW9 or in Ex.PW9/A.
10.4 Even the IO/ PW17 has deposed that she visited Life line Hospital; the said hospital had informed her that no abortion was carried out in their hospital, although one Chanchal was treated in the said hospital on 29.09.2011.
10.5 Even if the prosecution version is accepted for a while that the prosecutrix was got treated at Life Line Hospital
under the name “Chanchal”; and the billing receipt Mark PW17/B, placed on record by the State (although not proved as per law) is looked into, same is hardly of any assistance to the prosecution. The said receipt only indicates payment of Rs. 400/- for ultrasound. As per Ex.PW9/A and the testimony of PW9, the patient Chanchal was suffering from abdominal pain and her ultrasound was carried out for the said purpose; the ultrasound was normal. PW9 has even stated that there could be many reasons for abdominal pain.
10.6 In view of the above facts and circumstances, the prosecution has failed to prove beyond reasonable doubt that the accused caused prosecutrix to undergo abortion much less without her consent. Thus, charge u/Sec. 313 IPC also stands not proved against the accused.
11.0 In view of the above findings, the accused is acquitted of offences punishable u/Ss 313/328/376/377 IPC in case FIR No. 70/2012, PS Tughlak Road. File be consigned to Record Room.
Announced in open Court (Poonam A. Bamba)
Date : 06th March, 2013 ASJ-01/PHC/New Delhi